author: IIakjiit, J.:

text:
    WILLIAM GRANGER, Plaintiff, v. THE VILLAGE OF SENECA FALLS, Defendant.

      Alteration of the grade of a sidewalk by the owner of the adjoining 'property — liability of the city for injuries sustained by one injured in consequence thereof.

    TJpon the trial of this action, brought to recover damages for injuries sustained by the plaintiff in falling upon a sidewalk in a street in the defendant village, it appeared that the grade of the sidewalk had been altered by the owners of the adjoining lots to improve the approach to a building, so as to increase and nearly double the pitch of the sidewalk at the place where the plaintiff fell. Upon the trial the court granted a motion for a nonsuit made by the defendant upon the ground that the walk as laid was a matter resting in the discretion of the board of trustees, that they were legislative officers and that their action was judicial in fixing the grade.

      Held, that it erred in so doing, as it did not appear that the village trustees had ever established or approved of the new grade.

      Urquhart v. The City of Ogdensburg (91 N. Y., 67, and 97 id., 238) followed.
    Motion for a new trial made by the plaintiff on exceptions taken upon the trial at the Seneca Circuit and ordered to be heard in the first instance at the General Term.

      Rogers c& Ilarmon, for the plaintiff.

      Richard G. Miller, for the defendant.
   IIakjiit, J.:

This action was brought to recover damages for injuries which the plaintiff claims to have sustained in falling upon a sidewalk on Ovid street, in the village of Seneca Falls, causing a fracture of the tibia about four inches above the ankle. Upon the trial the plain tiff gave evidence tending to show that the sidewalk, at the place of the accident, had existed for upwards of twenty years and was of a uniform grade, descending thirty-one inches in thirty-seven and one-half feet; that about two years before the accident the abutting owner Sharp erected a new block of buildings, and at that time changed the walk in order to have it come up to a better pitch with the entrance of his store, raising it twelve or fifteen inches at the south end; that there was another owner south of him and they filled in at that point so as to give the walk a sudden pitch, so that after the walk was reconstructed in the middle section of twelve and one-half feet there was a descent of twenty inches, thus nearly doubling the pitch of the walk at that place. Upon the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit upon the ground that the walk, as laid, was a discretionery matter of the board of trustees ; that they were legislative officers and that their action was judicial in fixing the grade. The court, thereupon, granted the motion and to such ruling an exception was taken which presents the only question which we are now called upon to consider. The difficulty with the defendant’s position is that it does not appear that the village trustees had ever established or approved of the new grade of the walk as -constructed by Sharp and the abutting owner south of him. Had there been formal corporate action by the board of trustees of the village, thus establishing the grade, a different question would have been presented.

In the case of Urquhart v. The City of Ogdensburg (91 N. Y. 67), it was held that where a sidewalk had been reconstructed with a steeper grade than that originally adopted, in the absence of evidence showing by whom it was so reconstructed, it must be assumed to have been the work of the city and that the establishing of the grade was the exercise of judicial discretion, and that that discretion extended to the new grade established. But in the same case again considered in 97 New York, 238, this doctrine was to some extent modified. It was then held that while the corporation may not be liable for any defect in the original plan, and while it may adopt a sidewalk already constructed or rebuild upon a new plan, and thus secure to itself immunity, this must be done by formal corporate action; and where a change in the grade or slope has been made by the owner of adjoining premises in rebuilding, making the sidewalk dangerous for travel, the omission on the part of the corporation, after notice, to take any action in reference to tbe matter is not a defense in an action brought against it to recover damages for injuries caused by the defect. As we have seen, tbe change in the sidewalk in this case was made by the owner of adjoining premises, and it doos not appear that the village trustees have ever adopted or approved of the grade, as changed by the reconstructed walk. It follows that the motion for nonsuit was improperly granted. (Garrett v. The City of Buffalo, 22 W. Dig., 262.)

The motion for new trial should be granted, with costs to abide event.

Smith, P. J., and Bradley, J., concurred.

Motion for new trial granted, with costs to abide event.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM R. MASON, Respondent, v. THE BOARD OF SUPERVISORS OF WAYNE COUNTY, Appellant.
    Mandamus — when it will he granted to compel a hoard of supervisors to permit a claimant to amend informalities in the form of a claim presented hy him.
    An appeal having been taken from the audit and allowance by a board of town auditors of a bill presented by the relator, a justice of the peace, for alleged services in criminal proceedings, the claim was referred by the board of supervisors to a special committee. Objections having been raised to the effect that the bill was informal, in not specifying the name and residence of the complainant in each case, and in not being properly verified, and the relator having asked for permission to withdraw the bill for correction and amendment, the committee reported to the board that it found the bill informal and that the relator asked to withdraw it. The board refused to permit the relator to withdraw the hill, and thereafter confirmed a report of the committee disallowing it.

      Held, that the relator was entitled to a peremptory writ of mandamus commanding the board of supervisors to permit him to amend and correct any inform-alities in his bill, and to make the same conform'to the statutory requirement.
    That he should not, however, be allowed to withdraw the bill already presented, nor could the board permit him to do so.
    Appeal from an order of the Monroe Specia] Term, granting a peremptory writ of mandamus.

      T. TF. Collins, for the appellant.

      John II. Camp, for the respondent.
   Haight, J.:

The writ of mandamus is a State writ, and should be issued in the name of the people of' the State, but where it is awarded upon the application of a private person it must show that it was issued upon the relation of that person. (Code of Civil Pro., §§ 1991, 1994.) The writ is informal in this regard. The relator, a justice of the peace, in November, 1886, presented-a bill for alleged services as such justice in criminal proceedings, to the board- of town auditors of the town of Lyons, in the county of Wayne, for audit and allowance. The claim so presented was by the board of town auditors audited and allowed. An appeal was taken therefrom to the board of supervisors of Vayne county. At the next annual meeting of the board of supervisors, the claim was referred to a special committee on appeals of the town of Lyons, before whom the parties appeared. Objections being raised to the effect that the bill was informal in not specifying the names and residence of the complainant in each case, and that’is was not made out and verified in accordance with the provisions of the statute, the relator asked the privilege to withdraw the bill for correction and amendment. Thereupon the committee reported to the board of supervisors that they found the bill before them informal and defective, in that it is not in conformity with the requirements of the statute, and an application having been made on behalf of the- justice for leave to withdraw his bill for correction and amendment, so as to make it conform to the law, your committee desire to submit that question to the whole board, and request that they be released from further consideration of the bill until the determination of the question. That thereupon the board of supervisors passed the following resolution:

“Resolved, That the privilege of withdrawing and modifying the bills considered by the special committee on appeals for the town of Lyons be denied.”

Thereupon the chairman of the special committee on appeals of the town of Lyons reported against the allowance of the bill, and thereafter the report of the committee was confirmed. Thereupon the relator upon notice, moved the Special Term that a peremptory writ of mandamus issue to the board of supervisors commanding the board to permit the relator “ to amend and correct any informalities in his bill, and make the same conform to the statutory requirements ; that he be permitted to amend said bill by stating therein the name and residence of the complainant in each case, the offense charged, the place where the offense was committed, and his action as justice on said complaint, and the name of the constable to whom the warrant on such complaint was delivered, whether the person charged was or was not arrested, whether the examination was waived, or whether witnesses were sworn thereon. That upon said bill being so corrected and amended, that you forthwith proceed to pass upon each separate item of the same and to allow each and every of the legal charges therein contained.”

The court, upon hearing the parties, granted the motion and the writ in question was thereupon issued. Undoubtedly the bill, as made out, was not in compliance with the provisions of the statute, and the board of supervisors very properly refused to audit it in that form, but the fact that claimant had presented informal bills to the board of supervisors for audit is not a reason for absolutely rejecting the claim, and thus deprive him of that which may be honestly and fairly due him. In a disposition to be just the right in such cases to amend will readily be suggested. JBy permitting an amendment the relator could present his claim in the form and manner prescribed by the statute, and then the board of supervisors could examine and pass upon the various items embraced therein, doing justice to all parties.

It is contended, however, by the appellants, that the claim was not absolutely rejected, so that it can be again presented to another board. Such, however, is not the reading of the report appearing in the supervisors’ minutes, a copy of which is made a part of the moving papers upon which the writ was allowed.

It is further contended that the board has no power to allow a claim to be withdrawn. Accounts, when presented to the board of supervisors, are required by the clerk to be numbered and a memorandum of the time of presenting, with the names of the persons in whose favor they shall be made out, and by whom they shall be presented, and shall be entered in the minutes of the board to which they shall be presented, and no such accounts, after being presented, shall be withdrawn from the custody of the board, or its clerk, for any purpose whatever, except to be used as evidence upon a judicial trial or proceeding, and in such case it shall, after being so used, be forthwith returned to such custody. (Sec. 28, chap. 180, Laws of 1845.)

But no withdrawal of the account was necessary, or was asked for. in the notice of motion herein. All the relief that the relator wanted or was entitled to, was the leave to amend. Such relief was just and proper and should have been granted. The writ issued, as we have seen, is informal. It also directs that the relator be permitted to withdraw his bill. In this particular it exceeds the relief asked for in the notice of motion. It is also apparent that nothing can be gained by having a special meeting of the board at this time, the annual tax levy having been heretofore made.

The writ should be amended by inserting a proper title, and modified by striking out the clause “-Permitting the bill to be withdrawn,” and the clause “ That the board shall thereafter within five days convene,” and insert in place thereof “ That the board at its next annual session,” and, as so modified, affirmed, with ten dollars costs and disbursements.

Smith, P. J., and Bradley, J., concurred.

Order and writ amended and modified as indicated in the opinion, and order, as so modified, affirmed, with ten dollars costs and disbursements.


text:
    SUSAN A. NEWMAN, Respondent, v. ROBERT T. FRENCH and Others, Appellants.

      Lease —a covenant by the lessor to repair and a covenant of the lessee to pap rent ' aire independent covenants.

    In this action, brought to recover rent reserved by a lease containing a covenant on the part of the plaintiff to keep the buildings in good repair and condition for the purposes of the business conducted therein, the defendants served an ■answer admitting the execution of the lease and their entry thereunder, and .alleging that one of the buildings was subsequently destroyed by fire, without their fault, and that the plaintiff had neglected and refused to rebuild the same. The plaintiff replied, alleging- that the fire originated through the gross carelessness óf the defendants. Upon the trial the court directed a verdict upon the pleadings in favor of the defendants for the amount of a counter-claim set up in their answer.

      Held, that it was error so to do as the plaintiff’s covenant to repair was inde' pendent of the defendants’ covenant to pay rent, and the performance of his covenant by the lessor was not a condition precedent to any liability on the part of the defendants to pay rent.
    Appeal from an order of tbe Monroe Circuit granting a new trial,' upon a motion made upon tbe minutes of tbe judge, after a verdict ordered in favor of tbe defendants.

      W. H. Kem/on, for tbe appellants.

      Walter F. IlvMell, for tbe respondent.
   Haight, J.:

This action was brought to recover rent reserved by a lease of real estate to tbe defendants. The lease contained a covenant on the part of tbe plaintiff to keep tbe buildings in good repair and condition for tbe purposes of tbe business conducted therein. Tbe answer admitted tbe lease, and that tbe defendants entered into tbe possession of tbe premises thereunder, but alleged that one of tbe buildings was subsequently destroyed by fire, without fault of tbe defendants, and that tbe plaintiff bad neglected and refused to rebuild tbe same. Tbe answer also contained a counter-claim, in which tbe defendants demanded judgment. Tbe plaintiff’s reply admitted tbe destruction of one of tbe buildings by fire, and alleged that tbe fire originated solely through tbe gross carelessness of tbe defendants while deliberately’ and willfully engaged in roasting or beating almond shells or some other equally inflammable substance, for tbe purpose of using tbe same in tbe business referred to in tbe lease, as an adulterating material, contrary to tbe statute in such case made and provided, and that while so engaged tbe defendants well knew tbe hazard of tbe same, and that in so doing there was extreme danger and great probability that tbe same would cause tbe destruction of tbe building by fire.

Upon tbe trial tbe cqurt directed a verdict upon tbe pleadings in favor of tbe defendants for tbe amount due upon their counterclaim, but on a motion for. new-trial made upon tbe minutes it ordered a new trial upon tbe ground that the plaintiffs covenant contained in tbe lease to repair is independent of tbe defendant’s covenant to pay rent, and that it was error for tbe court to hold that tbe performance by tbe lessor was a condition precedent to any liability on tbe part of tbe defendants for rent. In tbe case of Allen v. Culver (3 Denio, 284) it was held that tbe covenants to pay rent and to repair were independent, and that tbe lessee was bound to pay a proportionate part. of tbe rent on account of tbe buildings remaining uninjured, notwithstanding tbe default in rebuilding.

In tbe case of Whitbeck v. Skinner (7 Hill, 53), it was held, that in assumpsit to recover tbe rent of demised premises tbe tenant may ayail himself of a breach of tbe landlord’s agreement to repair by way of recoupment, though not as a set-off

In the case of Kelsey v. Ward (16 Abb. Pr., 98), it was held, that a breach of tbe landlord’s contract to improve or repair tbe demised premises, is no defense to bis demand for rent; that it was available only by way of counter-claim or in a cross-action.

In the case of Speckels v. Sax (1 E. D. Smith, 253), it was held, that although tbe terms of a lease bind tbe landlord to repair, bis neglect to do so will not authorize tbe tenant’s abandonment of tbe demised premises, unless by tbe terms of the agreement tbe repairs were made a condition precedent to tbe obligation to occupy; that the landlord’s failure to repair, where be is bound to do so by his agreement with tbe tenant, will not amount to an eviction but only to a breach of covenant.

In the case of Myers v. Burns (35 N. Y., 269), it was held, that in an action for rent tbe defendant can, under a covenant of tbe landlord to keep tbe premises in repair, set up as a counter-claim tbe amount expended by him in tbe necessary repair of the premises; and also damages sustained by tbe loss of tbe use of certain parts of the premises rendered untenantable for want of repair.

In tbe case of Kelsey v. Ward (38 N. Y., 83), it was held that an action for rent is not barred by tbe failure of tbe lessor fully to perform bis contract, where tbe lessee enters into possession and occupies tbe premises; that tbe remedy of tbe lessee is by recouping from tbe rent such damages as they have sustained by failure of the lessor to fulfill his contract, or to bring a separate action for the recovery of such damages. (See, also, Cook v. Soule, 1 T. & C., 116; S. C., 56 N. Y., 420; Hexter v. Knox, 7 J. & S., 109; Harger v. Edmonds, 4 Barb., 256; Hallett v. Wylie, 3 Johns., 44.) These authorities appear to sustain the decision of the trial court in granting the motion for a new trial; where the motion for a new trial is made upon the minutes motion costs only are allowable. (3 Wait’s Pr., 512.)

The order should, therefore, be affirmed, with costs to abide event.

Smith, P. J., and Bkadley, J., concurred.

Order affirmed, with costs to abide event.


author: BRADLEY, J. :

text:
    MARY M. BURTON, Appellant, v. SALMON BURTON, Respondent.

      Action for divorce — no jurisdiction is acquired by the personal service of the process of a court on persons residing out of the State unless such service ts expressly authorized by statute.

    •A. statute of the State of Pennsylvania, after declaring the causes for which divorces may he granted, provides, in the second section thereof, that the husband or the wife may exhibit his or her petition or. libel to the judges of the Court of Common Pleas, where the injured party resides, setting forth particularly and specially the causes of his or her complaint, and that “ thereupon a subpoena shall issue from the said court, directed to the party so complained against, commanding him-or her to appear at the next or any subsequent Court of Common Pleas to answer said petition or libel, and upon due proof at the return of the said subpoena that the same shall have been served personally on the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the same,” the court may proceed to judgment in the manner therein provided. It further provides for the issuing of an al-ias subpoena and for the publication of a notice by the sheriff, in case it appear upon the return of the subpoenas so issued that the party could not be found in the said county, and that the same proceedings shall be then had as are authorized and directed by the second section of the act.

      Held, that the words “wherever found” in the statute do not embrace other States and countries, as those within which personal service can be effectually made to bring a party into court.
    That a Court of Common Pleas of Pennsylvania acquires no jurisdiction over, a wife residing in this State, by the personal service upon her in this State of a subpoena issued by the said court, in an •action for divorce brought by the husband, a resident of the State of Pennsylvania.
    The Pennsylvania cases bearing upon this question examined and considered by Bradley, J.
    Appeal from, a judgment, entered in Chautauqua county, upon the report of a referee dismissing the complaint.

      H. G. Kingsbury, for the appellant.

      John 8. Lambert, for the respondent.
   BRADLEY, J. :

The action is for divorce. The defendant alleges as a bar the recovery by him of a judgment dissolving the marriage in the Court of Common Pleas of McKean county, State of Pennsylvania. The referee found and determined that such judgment was recovered by him and that it was a defense in bar of this action, and upon that ground dismissed the complaint! The question presented here is whether the judgment so recovered was valid and effectual as against the plaintiff. The referee has found that the parties were married in Nebraska, in 1859, that they shortly after became residents of the State of New Tork, and continued so until in 1877 when they removed to the State of Pennsylvania; that in March, 1879, the plaintiff deserted the defendant and returned to the State of New York, and has since resided there; that the defendant then was and has remained a citizen of the State of Pennsylvania; that in August, 1882, upon the petition' of the defendant a subpoena-was issued out of the Court of Common Pleas of McKean county, commanding the plaintiff to show cause at the then next term of the court why the defendant should not be divorced from the bonds of matrimony ; that such subpoena was personally served upon the plaintiff in the State of New York; and that such proceedings were thereupon had ; that judgment or decree was entered in that court dissolving the marriage contract. The record of the judgment was put in evidence by which it appears, as found by the referee, that the cause upon which the suit was founded in the Common Pleas was the desertion of the defendant by the plaintiff, which comes within the causes for which a divorce may be granted in that State. Upon the facts as found by the referee his conclusion is supported, if tbe court in wbicb tbe judgment was entered bad jurisdiction of tbe person of tbe plaintiff in that suit. Tbe parties being citizens of tbe State of Pennsylvania and the plaintiff having left her husband in that State and come into tbe State of New York, and tbe defendant in this action still remaining a citizen of that State, bis relation to it, for aught that appears, characterized that of bis wife for tbe purpose of an action there for a divorce in bis behalf, and as such citizens they were so subject to tbe laws of Pennsylvania that process might be obtained by him there and served upon tbe wife, although absent from tbe State, in such manner as tbe statute there prescribed, and that being done jurisdiction of her person would be acquired in support of tbe proceedings and judgment as effectually as if she bad been personally served within tbe State or bad appeared in the action. (Hunt v. Hunt, 72 N. Y., 217; Huntley v. Baker, 33 Hun, 578.) But tbe service upon a party defendant not in tbe State where tbe action is instituted is purely statutory, and jurisdiction of tbe person of tbe absent party can in such case be acquired in tbe manner only which tbe statute provides (Smith v. Wells, 69 N. Y., 600), and tbe question of jurisdiction of tbe person of a defendant is an open one for inquiry and examination upon tbe question of tbe validity of a judgment recovered against him. There was no service in any manner made upon tbe wife in tbe Pennsylvania suit, other than personally, in the State of New York, nor did she appear in that action. It is contended that such service was all that tbe statute required and was within its provisions. If that is so tbe judgment may be supported upon tbe facts as found.

Tbe statute of Pennsylvania, passed in 1815, after declaring tbe causes for wbicb divorces may be granted, provides as follows: “ Section 2. If any person shall be injured as aforesaid, tbe bus-band, in bis own proper person, or the wife, may exhibit bis or her petition or libel to tbe judges of tbe Court of Common Pleas where tbe injured party resides, in term time, or to one of tbe judges of tbe same court in tbe vacation, setting forth particularly and specially tbe causes of bis or her complaint, and thereupon a subpcena shall issue from tbe said court, directed to tbe party so complained against, commanding him or her to appear at tbe next or any subsequent Court of Common Pleas, to answer said petition or libel, and upon due proof at tbe return of the said subpoena that the same shall have been served personally on the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the same, the court may proceed to judgment in the manner there provided. Section 3. If, upon the return of the said subpoena, proof shall be made that the said party could not be found in the said county, an alias subpoena shall issue, returnable the first day of the next or any subsequent term, and be served personally in manner aforesaid; and if so served, the same proceedings shall be had as are directed and authorized in the second section of this act. And if, on the return of the said alias subpoena, proof shall be made that the said party could not be found in the said county, the sheriff of the same shall cause notice to be published in one or more -newspapers printed within or nearest to the said county, for four weeks successively, prior to the first day of the then next term of said court, requiring the said party to appear on the said day to answer the said complaint, at which term, or any subsequent term, the same proceedings shall be had as are authorized and directed by the second section of this act.”

The proposition must be recognized that the process of the courts of one State cannot effectually run beyond its limits for the purpose of taking jurisdiction of person or property in another State, because the power of the courts- through their processes is not extra territorial. (Dunn v. Dunn, 4 Paige, 425; Holmes v. Holmes, 4 Lans., 392; Ablemam v. Booth, 21 How. [U. S.] 506; Bischoff v. Wethered, 9 Wall., 812.) There may, however, be a substituted service provided for, and, to accomplish it, a personal service beyond the State authorized; but then jurisdiction is not acquired by force of the process of the court as such merely, but because the. statute has provided that means of constructively getting the party into court for the purpose of adjudication upon the matters or rights involved. And” while the judgment may be effectual by force of the statute within the jurisdiction of the court, it may not be so elsewhere.

It cleaidy would not be beyond its limits as against a party defendant not a citizen of the State in which the proceedings were had and judgment rendered while it would be as against one whose domicile is within the State. The contention of the learned counsel for. the defendant is that the words “ wherever found ” in the second section of the statute referred to, authorize the personal service of the subposna in a divorce case to be made outside the State, and because the wife must be treated as a. citizen of that State, although residing out of it, the service upon her gave the court jurisdiction of her person and rendered the judgment valid everywhere.

This, therefore, presents a question of construction of the statute, and to aid in that respect there are in evidence no other statutes of that State relating to general practice in respect to the territorial limitations within the State, if any, in which service of process for the commencement of actions and proceedings in the Courts of Common Pleas of the respective counties may be made, but it does appear by the third section of the act that the failure to find a defendant in the county of the court from which the subpoena is issued, is a sufficient reason for resort to the alias subpoena and the substituted service by publication of the process, which tends to show that the personal service m'ay not necessarily be sought beyond the limits of such county, and that the words “ wherever found ” were intended not to restrict the territorial limits within which the process might be served personally, to such county. The enactments of the law-making power of a State do not have any extra territorial application, and there is no presumption that they are intended for such purpose, but to the contrary, unless it is clearly expressed. The use of the words referred to may be deemed to embrace within their application the entire State of Pennsylvania and nothing more. It certainly is difficult to assume that the legislative intent was to authorize the court to send their process into other States and countries to take jurisdiction of persons “wherever found” there, but rather if it had been intended that the process might go or be served beyond the State, as an effectual notice of the judicial proceeding, it would have been clearly so expressed. The statute of Pennsylvania does not require that any party other than the plaintiff to a suit for divorce be a resident of the State, but treats it as sufficient for the purposes of such relief that the party plaintiff shall have been a citizen of the commonwealth for one year, and then a resident of the county in which the suit is brought, and by its terms applies as well to defendants who never have resided in the State as to those who may have done so. The statutory application in terms is alike to both. But if the courts of that State have given construction to this statute, and the use for which the words “ wherever found ” were employed, it should be followed, for the views of the courts of the respective States of their own statutes usually govern those of the courts of other States in that' respect. A member of the bar of Pennsylvania was called as a witness and testified that it had generally been held in the Courts of Common Pleas that service on a party defendant personally anywhere is a good service, and will give the court jurisdiction to “ decree a divorce whether served in or out of the State, and that is the law of Pennsylvania.” And on his cross-examination he referred to Harvey v. Harvey, Keene v. Keene, and Love v. Love, and remarked that there were some later decisions, to which he did not specifically refer. We have examined those cases. Harvey v. Harvey (2 Week. Notes of Cases, 225), was in the Common Pleas in 1875. The subpoena was personally served on the husband (the defendant) in this State pursuant to order of the court, and there was no publication. On motion to dismiss the libel the court said: “ The personal service on the respondent in a divorce suit, when out of the jurisdiction, is matter of grace to him. The practice has been established for forty years. While under the statute nothing but publication was required, yet in a matter of such serious importance ” personal notice should, if possible, be given-. “The directions' to advertise, under the act, should be strictly followed. Personal service may be superadded, if you will.” Keene v. Keene (Id., 492), was also in the Common Pleas. And motion was made for an order on the sheriff of Philadelphia county to delegate the sheriff of Chicago, to serve the subpoena in divorce. The court in denying the motion, remarked “We have no jurisdiction over any officer outside the commonwealth. Service by the sheriff, of course, is best, but it is not necessary, as personal- service by any one, accompanied by the proper affidavit, is all that the statute requires.” Love v. Love (10 Phila. Rep., 453) was in Common Pleas. The wife was defendant and had deserted her husband (the plaintiff) in Pennsylvania and gone to Missouri where she has since resided nine years. Held, that the statutory notice was not effectual because she was not a citizen of Pennsylvania, that the statute of the State has no force beyond its territory, and that sbe may plead against tbe judgment for want of service within the jurisdiction. Divorce was denied. Our attention has also been called to Snyder v. Snyder (Id., 306) in the Common Pleas, where objection was taken that the defendant (the husband) residing in Massachusetts, had not been served by publication, but personally only. And the court said: “ An advertisement is only a less efficacious mode of giving notice, and when the better plan is available and is resorted to it is certainly no just cause of complaint. The act also says that the subpoena is to be served on defendant wherever ’ found, and although there might be an argument, in case there had been no personal service, that the word "wherever referred to the limits of the State, yet where there has been actual service, the defendant is certainly estopped from objecting that the notice was not given in the manner which would have been less likely to have reached him.” In Ralston’s Appeal (93 Penn. St., 133), the husband, a resident of Philadelphia, instituted a suit in the Common Pleas for a divorce, and the process was served personally on the defendant in the State of Delaware, where they were married in 1865. The husband afterwards became a resident of Pennsylvania, and his wife remained in Delaware. The court held that no jurisdiction was acquired of the person of the defendant, and by the opinion delivered by Mercub, J., on motion for reargument, the court said: “ If a legal service could thus be made in Delaware, it can be in California. Such cannot be the true construction of the statute. The language 'wherever found ’ cannot be so construed as to give to a court of this State extra territorial power to bring within its jurisdiction the person oí a citizen and resident of another State. * * * The service of a subpoena in divorce thus made in another State . on a resident thereof, for the purpose of giving jurisdiction of his person, is not authorized by any law. If any such practice has prevailed, it is a vicious one, and should be abolished.”

These are all the cases of the Pennsylvania courts to which our attention has been called, or that we have been able to find, relating directly to this statute and its effect. They do not seem to establish the construction contended for by the defense. The Ralston case is the latest of them, and is the decision of the highest court of the State. And while it does not necessarily determine that notice may not be given to a citizen of the State by personal service upon him beyond its boundaries (which we assume may be done by way of substituted service when the statute so provides), it is clearly no authority in support of the defendant’s contention, but its tendency is to the effect that such service, merely, gives no jurisdiction of the person of a defendant. And treating the question as one of construction of the statute only, we think the words “ wherever found ” in the statute do not embrace other States and countries as those within which the personal service can be effectually made to bring a party into court. It is, therefore, unnecessary to further consider the domiciliary status of the parties respectively, or any other question.

The judgment should be reversed, and a new trial granted, costs of this appeal to abide the final award of costs.

Smith, P. J., and Haight, J., concurred.

Judgement reversed, and new trial ordered before another referee, costs to abide the final award of costs.


author: Bradley, J.:

text:
    FRANK BURNS, Appellant, v. DEVINE M. MUNGER, Respondent.

      Contract to perfect title to the satisfaction of the vendee — when the vendee will he compelled to accept a title in fact perfect, although an apparent record lien remains undischarged.

    This action was brought by the plaintiff, as the assignee of one Collins, to recover the purchase-price of a canal-boat sold by Collins to the defendant upon the following written agreement executed, delivered and signed by him on April 28,1880:
    ' In consideration of Patrick J. Collins delivering to me a pefect title to the canal-boat H. M. Sabey, and clearing up the record title as to the same, nullifying all liens, mortgages, etc., to my satisfaction, I will pay to the order of said Patrick J. Collins, and on delivery of all the papers necessary to properly transfer said boat to me or to my order, the sum of one thousand dollars.”
    The referee found that on April 29,1880, Collins delivered the boat and a bill of sale, duly executed -by him, to the defendant, with intent to convey the title to him, but that the condition as to clearing the record tille, etc., had not been performed for the reason that Collins had not procured the discharge of two chattel mortgages given by a former owner of the boat, which had been duly filed in the office of the auditor of the canal department.

      Reid, that as it appeared that Collins had purchased the boat at a sale upon the foreclosure of a ehattel mortgage given by the said prior owner to the person from whom he purchased the boat, which had been duly filed in the auditor’s office prior to the giving and filing of the two other mortgages, and that there was no statute providing for the discharge of chattel mortgages filed in the office of the auditor, a perfect title to the boat passed to the defendant, which he was bound to accept, and that the referee erred in directing a judgment in his favor.
    Appeal from a judgment in favor of the defendant, entered in Niagara county, on the report of referee.
    The action was brought to recover the purchase-price of a canal boat sold by one Collins to the defendant, and alleged to be due and payable to the plaintiff, who is the assignee of the claim. The action is upon the agreement of the defendant, made in writing as follows: *
    “New YobK, April 28, 1880.
    “ In consideration of Patrick J. Collins delivering to me a perfect title to the canal .boat H. M. Sabey and clearing up the record title to the same, nullifying all liens, mortgages, etc., to my satisfaction., I will pay to the order of said Patrick J. Collins, and on delivery of all the papers necessary to properly transfer said boat to me or to my order, the sum of ope thousand dollars.
    “D. M. MUNG-ER.”
    The referee has found that the agreement was on April 28,1880, executed and delivered by the defendant to Collins, and that on April 29, 1880, Collins delivered the boat and a bill of sale of it duly executed by him to the defendant or to his agent, and that although the name of the pui’chaser in the bill of sale was left blank, it and the boat were so delivered with the intent to convey title to the said boat to the purchaser. The referee also found that the condition in the agreement of April 28, 1880, providing for clearing up the record title, nullifying all liens, mortgages, etc., to the satisfaction of the defendant, had not been performed, and directed judgment for the defendant. This conclusion is based upon'the further facts found by him, that one Glenn being the owner of the boat sold it to Helen Herring in August, 1877, and took from her a chattel mortgage upon it to secure $1,550 of the purchase-money; that, pursuant to the mortgage, the boat was taken from the possession of the mortgagor, the sale of it duly advertised, and on July 24, 1879, it was sold at public auction to Collins, who took possession and held it until the delivery of it to the defendant or his agent, April 29, 1880; that after her purchase of the boat, and in 1878 and 1879, Herring made to Ryan and Hogan, respectively, mortgages upon it, which were filed in the office of the auditor of the canal department; that the mortgage to Ryan was renewed by filing a copy in 1879, and not after, and that the mortgage to Hogan was in like manner renewed annually to and including 1881. There is no finding that the lien of these two mortgages, or of either of them, continued on the boat after the sale on the prior and purchase money mortgage. The party who took possession of the boat under 'such purchase by the defendant, and ran it, caused the boat to be placed upon a dry dock in New Jersey for repairs in July, 1881, and failing to pay charges for the repairs there made, it was sold by a United States marshal, pursuant to a decree on account of the claim and in execution of the lien of the dry dock men.

      F. Brundage, for the appellant.

      William Nathaniel Cogswell, for the respondent.
   Bradley, J.:

It must be assumed, for the purposes of this review, that by the sale of the boat to the defendant and the delivery of it and the bill of sale, he took title free from all liens. The view of the referee evidently was. that the two subsequent mortgages ceased to be effectual liens or charges upon the boat from and after the sale of it upon the prior and purchase-money mortgage, and that the title of the defendant was, so far as appeared, perfect on the delivery of the property on April 29,1880, and put his determination on the ground that the right to require payment' was dependent upon the condition precedent, that the record in the auditor’s office should in some manner represent that those two junior mortgages were satisfied, or that the apparent lien appearing by such record, should be made to disappear. The general rule upon the subject is that a condition precedent must be fully performed to give a right of action to the party on wbom its performance rests. (Oakley v. Morton, 11 N. Y., 25.) And this proposition is asserted as the defense. The purpose of the parties to the agreement of sale was to vest in the defendant a perfect title to the boat, and to that end the provision referred to was inserted by the defendant in the instrument containing his promise to pay.. It is entitled to a reasonable interpretation, and some reference may be had to the purpose in view to ascertain the intention of the parties in making and taking the agreement. There is no provision furnished by the statute for making the discharge of chattel mortgages of record. It is provided that they may be filed with the auditor and that an entry be made in a book kept in his office in a manner specified. (Laws 1864, chap. 412.) It could not have been contemplated that any entry should be made in the books of the auditor not authorized by the statute. The consideration upon which the defendant agreed to pay the purchase-price was that Collins should deliver the papers necessary to transfer the boat to the defendant and deliver to him a perfect title to it, but it is said that this is not all, because the further requirement embraced within the consideration is the clearing up the record title nullifying all liens, etc. How is this to be done otherwise than by transferring a perfect title by delivery of the papers requisite for such purpose ? The liens and mortgages were nullified when the perfect title was transferred. There could then remaiu no record title or title on the record in the application of that term to personal property. The clearing up the title seems to be all that was required to accomplish what was within the meaning of the agreement. How it should be done is not provided for by the contract other than that it should be done to the satisfaction of the defendant. And when it is effectually done his caprice cannot properly take the place of satisfaction on his part. Assuming, as we do, that the defendant, so far as relates to the title and to its freedom from lien, received by the sale and delivery of the property all that was bargained for, the continued appearances upon the files and register of the auditor’s office of the two junior mortgages is not a substantial cause for failure to pay, and the rigor of a condition precedent will not in such case be applied unless the construction of the agreement requires. The formal discharge of those mortgages by the mortgagees would not change the apparent situation of the record in the auditor’s office, but the fact would have'to appear aliunde the record. The manner in which the lien of these mortgages are discharged is not important, as no method of doing it is provided by the contract, and the effect is the same if such lien had been, in fact, discharged .at the time oi the sale and delivery of the boat to the defendant or to the person for whom he made the purchase.' The legal effect of the first and purchase-money mortgage made by Herring to Glenn, was a sale by the mortgagor to the mortgagee of the property, with a .right of redemption in the former, which was cut off by the sale, and the effect of the sale was the same upon the subsequent mortgagees of Herring. "When these two junior mortgages were filed the prior one had been filed and there had been no omission to refile it in the manner prescribed by the statute. It was then effectual as against them and would continue so without any subsequent refiling of it. (Meech v. Patchin, 14 N. Y., 71.)

There is, therefore, no opportunity upon the facts, as they appear by the record, to conclude that this mortgage had not priority in fact and legal effect at the time the boat was taken and sold pursuant to it, or that the sale was not in the proper or approved manner to cut off any subsequent liens on the property. It seems to follow that the lien of these junior mortgages was discharged by such fore closure of the senior mortgage and the sale pursuant to it, and the record title, if it may be called such, represented by those two mortgages, and the filing and registering them was cleared up, so far as practicable, and as effectually as if discharges to that effect had been executed by the mortgagees. (Bragelmam v Daue, 69 N. Y., 69; Edmiston v. Brucker, 40 Hun, 256.) There is no claim made that there was any appearance of liens upon the boat ether than those represented by those two junior mortgages. And to say that the seller of the boat undertook to obtain from the mortgagees a satisfaction or discharge of those mortgages is the expression of a requirement not within his power to perform without their consent; and as the performance of the contract does not require that to be done a construction cannot properly be given to it which will impose an impossible condition, or one the performance of which does not come within the power or control of the seller of the property or his assigns. The view of the referee was that at the time of making the sale and agreement, it was contemplated by tbe parties to it, that something further should be done by way of clearing up the record title and nullifying liens, and that nothing having been done in that direction, it is not sufficient that the mortgages were then in fact no lien, and that the satisfaction of the defendant was not required until those mortgages were m some manner removed from the records or files of the auditor’s office. This is reasoning the contract into a construction which its terms do not necessarily require, and thus making a condition which is neither substantial in its effect, or practicable for performance. But he has found that the agreement in question was made the day prior to the delivery of the property and bill of sale; and while such delivery may not be treated as a waiver of any condition in the contract of the day previous, it may be entitled to some consideration upon the question of the purpose and construction of the agreement in view of the delivery and acceptance which thus followed the time of its execution; and of'the fact that the agreement of sale had not been executed on the part of the seller at the time the contract in question was made. The conclusion that a new trial should be granted is reached upon the assumption, which we think the facts, as found by the referee, require, that a perfect title to the property passed by the sale m question.

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

Smith, P. J., and Haight, J., concurred.

Judgment reversed, and new trial ordered before another referee, costs to abide event.


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    WILLIAM J. PRUSIA, Overseer of the Poor of the Town of Gaines, Respondent, v. GEORGE BROWN, Appellant. SAME, Respondent, v. GEORGE BROWN and RICHARD REED, Appellants.

      Surety upon an undertaking on appeal— is not released by the arrest of the principal under am, execution or by his imprisonment a/nd discharge.

    In this action, brought upon an undertaking made by tbe deiendant on an appeal taken from a Justice’s Court to a County Court, in an action brought by the plaintiff against one Guenther, it appeared that after a judgment of affirmance had been entered, and an execution against the property of Guenther had been issued and returned unsatisfied, an execution against his person was issued upon which he was arrested • and imprisoned in the county jail until discharged, pursuant to the provisions of 'sections 2200, 2212 of the Code of Civil Procedure.

      Held, that the imprisonment and discharge of Guenther did not discharge the defendant from liability upon the undertaking.
    Appeals from judgments entered upon decisions of tbe court on trials without a jury at tbe Orleans'Circuit.
    Tbe action No. 1 is upon an undertaking made by tbe defendant on an appeal taken from a Justice’s Court to tbe Orleans County Court, in an action of tbis plaintiff against one Guentber, where tbe judgment was affirmed. Tbe. action No. 2 was brought upon an undertaking made by tbe defendants on appeal to tbis court from a judgment of tbe Orleans County Court, in an action of tbe plaintiff against Guentber. Tbe plaintiff recovered in both actions, and tbe defendants appeal.

      John G. Sawyer, for tbe appellants

      John Cunneen, for the respondent.
   Bradley, J.:

On tbe appeals taken by tbe defendant “ Guentber in tbe two actions of tbe plaintiff against hi'm, tbe usual undertakings were made in bis behalf by tbe defendants in these actions respectively, and after tbe judgments in those original actions were affirmed, and judgments of affirmance entered, executions against the property of Guentber were issued to and returned by tbe sheriff of Orleans county, unsatisfied. Thereupon executions against bis person were issued, upon which be was arrested and imprisoned in tbe jail of tbe county. Afterwards, in proceedings instituted for that purpose, pursuant to tbe statute, be made assignment of bis property, and was duly discharged from such imprisonment. (Code of Civil Pro., §§ 2200, 2212.) And after such- discharge these actions were brought upon tbe undertakings.

It is contended by the defendant’s counsel that by reason of such imprisonment of Guentber, in execution, tbe defendants, as bis sureties, were discharged from liability upon their undertakings, because such imprisonment was a satisfaction of tbe judgments during the time of its continuance. The taking of a judgment-debtor in custody on final process issued upon it was at common law a satisfaction of the judgment, and such is the effect now, except so far as it is qualified by the statute. (Id., § 2213.) And all proceedings upon the judgment and its lien are suspended during the continuance of the imprisonment. (Sunderland v. Loder, 5 Wend., 58, Jackson v. Benedict, 13 Johns., 533.) Within that time the surety for the debtor in the action in which the judgment was rendered, and the execution upon it issued, by which he was taken into custody, has a defense to any action that may be brought against him as such surety. (Koenig v. Steckel, 58 N. Y., 475.) The remedy of the creditor against the surety was complete when the executions against property were returned unsatisfied. The defendants, therefore, insist that the plaintiff had only one of two remedies — either to proceed by action against the sureties upon the undertaking, or by execution against the person of the judgment-debtor; and having taken the latter cannot avail himself of the former, because by imprisoning such debtor the plaintiff has suspended or defeated the defendants’ right of subrogation for their protection as sureties. It is true that a creditor cannot make any alteration with the principal of the stipulations of his contract without discharging the surety, and cannot relinquish any security for the debt to the principal without like effect, unless it is with the consent of the surety, because they result in the suspension and impairment of his right of subrogation; but here, although such may have been the effect upon the surety, the creditor has done neither. He has simply pursued the legal remedies against the principal which the law furnishes, and that he might do so we think was within the contemplation of the defendants when they assumed the relation, which the execution of the undertakings gave them, to the parties and to the proceedings provided for by the statute. (People v. Vilas, 36 N. Y., 459, 461, 462.) The processes of execution, both against property and person of the judgment-debtor, were not in any sense an act of relinquishment of any right to the debtor, but were used as the enforcement of the legal remedies against him with a view to obtaining satisfaction of the debt. And when the latter obtained his discharge the process had failed to produce that result, and the creditor then had the same remedies against his property for sums due upon tbe judgments which he had before the last executions were issued. (Code, § 2213.) And we think the suspension of remedy against the defendants upon the undertakings was then also removed. In Stewart v. McGuin (1 Cow., 99), a recovery against a surety for a defendant in a suit in Justices’ Court, was had and supported after the defendant was discharged from imprisonment on execution. That case arose under 1 Revised Laws (388, § 4), and the dicharge was obtained pursuant to section 12 of the same act. The principle applicable was the same there as here, except so far as the requirement and fact of assignment now, and not then existing, may distinguish the cases. It is not seen how that could make any difference, as it is made for the benefit of the creditor, and, therefore, cannot prejudice the rights'of the sureties. A voluntary assignment to secure the debt, made to the creditor or to a trustee for his benefit by a debtor, is not any prejudice to the surety of the latter, and affords him no right other than that of subrogation. And the fact that the debtor had been discharged from imprisonment, is recognized as the reason and support for the decision in Stewart’s case by the court in Sunderland v. Loder (5 Wend., 59). In Koenig v. Steckel (supra) the recovery against sureties was denied, upon the ground that their principal was then in custody on execution, during which time remedy was suspended. No discharge of an imprisoned debtor, other than in the manner provided by the statute, will remove the suspension or restore remedy. (Poucher v. Holley, 3 Wend., 184; Kasson v. People, 44 Barb., 347.) If these views are correct, the arrest and imprisonment of the judgment debtor upon the execution, is no defense for the defendants. And we fail to see in the record any force in the objection for the purposes of the action against Brown and Reed, relating to the omission of the notice of appeal to the General Term in the judgment-roll, or in the excluded offer of evidence in respect to the time when the amount of costs of the appeal .was actually inserted in the judgment. This clerical omission was unimportant, assuming, as we must, for aught that appears, that they had been in due time taxed. None of the exceptions seem well taken.

The judgments should be affirmed.

Smith, P. J., and Haight, J., concurred.

Judgments affirmed.


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    THE METROPOLITAN TRUST COMPANY OF THE CITY OF NEW YORK, Appellant, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent, Impleaded, etc.

      Agreement between two railroad, companies as to the management of the companies and the interchange of their business — validity of it — when a promise of one company to the other to advanee moneys to pay interrest to bondholder's cannot be enforced by the bondholders.

    This action was brought for the foreclosure of a mortgage made by the Tona-wanda Railroad Company to a trustee to secure the payment of $500,000 of its bonds, by which it granted and sold its railroad, right of way, lands, rails, tracks, bridges, buildings, structures, fixtures and appurtenances, whether then owned and possessed, or thereafter to be acquired, and all franchises, rights, privileges, and all other corporate property, real and personal, of the company, whether theretofore or thereafter acquired by it. After the execution of the mortgage the Tonawanda Company entered into an agreement with the Erie Railroad Company, by which it agreed to deliver to the latter company all its freight and passengers, and to use its influence to promote the interest and business of that company; and further agreed that, for the protection of the Erie Company in rendering assistance to the Tonawanda Company under the contract, the latter would cause to be deposited with the Erie Company a majority of its capital stock, upon which, so long as the management of the Tonawanda Company should be satisfactory to it, the Erie Company would give, or cause to be given, to such representative of the Tonawanda Company as should be designated by it, the right to vote.
    The Erie Company agreed to use its influence and exercise its control to promote the interests and the business of the Tonawanda Company, and to make good any deficiencies in the net earnings of the Tonawanda Company to meet the interest upon its bonded indebtedness from time to time as the same became due and payable, and for any and all advances so made by it, with interest thereon, as well as for any and all advances so made to said Tonawanda Company by the Erie Company for other purposes, with interest thereon, the Erie Company was given a first lien upon the railroad, franchises and property of the Tonawanda Company, next after its bonded indebtedness, and a first charge upon its surplus earnings, next after the payment of the accruing interest upon its said bonded indebtedness.
    The complaint alleged the performance of such agreement on the part of the Tonawanda Company, a default in the payment of the interest due on its bonds; that the Erie Company failed to make good the deficiencies; that in making such agreement it was understood and intended between the companies that the provision in the agreement that the Brie Company was to make good any deficiencies in the net earnings to meet the interest on its bonded indebtedness should enure to the benefit and protection oí the bondholders of the, Tonawanda Company, and asked for a judgment against the Erie Company for any deficiency that might arise on the sale.

      Held, that while the validity of the agreement made between the two companies was established by the decision of this court in the first department, it was properly held in the present action that the plaintiff was not entitled to a judgment for deficiency against the Erie Company upon the ground that he was not, under the said agreement, entitled to enforce the promise of the Erie Company therein contained, as it was not made for the benefit of the bondholders but only for the benefit of the company itself.
    That the undertaking of the Erie Company contained in the said agreement was not embraced in, nor was it conveyed by, the mortgage as a part of the property of the Tonawanda Company.
    That, under the agreement, the Erie Company did not occupy the position of a grantee in fee of the property who had assumed the payment of existing liens thereon.
    Appeal by tbe plaintiff from so much of the judgment entered in Allegany county upon the report of the referee as dismisses the complaint as to the New York, Lake Erie and Western Railroad Company.
    This action was brought for the foreclosure of a mortgage made by the defendant, the Tonawanda Yalley and Cuba Railroad Company, September 1,1881, to secure the payment of $500,000 of its bonds, which were soon after issued. The mortgage was made to James D. Eish, as trustee (in whose place the plaintiff was afterwards substituted as like trustee); by this mortgage the company granted and sold its railroad, right of way, lands, rails, tracks, bridges, buildings, structures, fixtures and appurtenances, whether then owned and possessed, or thereafter to be acquired, all locomotive engines, cars, shop, tools, machinery, and all franchises, rights, privileges, and all other corporate property, real and personal, of the mortgagor, whether theretofore or thereafter acquired by it, and whenever default should be made in the payment of the principal or interest, all the tolls, incomes, earnings and profits of the company, and all the estate, right, title and interest, property, possession, claim and demand in law and equity of such company, with the appurtenances. Default was made in the payment of the interest which became due on the bonds, September 1, 1884.
    The complaint alleges that on March 12,1883, the Tonawanda Yal-ley and Cuba Railroad Company (called the Tonawanda Company) and the New York, Lake Erie and Western Railroad Company (called the Erie Company) entered into an agreement “wherein, after reciting that the Tonawanda Company had been constructed by parties in sympathy with the Erie Company with a view of contributing to the business of said company, and of protecting it against hostile lines in process of construction, and after reciting that the Tonawanda Company may require assistance from the Erie Company in the completion of its railroad, and in its successful establishment, operation and maintenance, it was, in consideration of the premises, agreed as follows; The Tonawanda Company agrees, first, that it will at all times deliver to the said Erie Company for transportation, all the freight and passengers thaf.it can. lawfully control or influence, destined to points that can be reached by way of the railroad of the Erie Company, or its connections, and will use its influence to promote the interests and the business of the Erie Company, so far as it can with proper regard to its own interests; second, that for the protection of the Erie- Company in rendering assistance to the Tonawanda Company, under this contract, it will cause to be deposited with the Erie Company a majority of the capital stock of the Tonawanda Company in such manner as shall be required, upon which, so long as the management of the Tonawanda Company shall be satisfactory to it, the Erie Company will give or cause to be given to such representative of the Tona-wanda Company as shall be designated by it, the right to vote upon the stock so deposited. The Erie Company agrees, first, that so far as it can with proper regard for its own interests, it will use its influence and exercise its control to promote the interests and the business of the Tonawanda Company.; second, that upon the condition that the corporate control of the Tonawanda Company shall become and remain vested in the Erie Company, as above provided, the Erie Company will make good any deficiencies in the net earnings of the Tonawanda Company to meet the interest upon its present bonded indebtedness, from time to time, as the same becomes due and payable, and for any and all advances so made by it, with interest thereon, as well as for any and all advances so made to said Tonawanda Company by the Erie Company for other purposes, with interest thereon, the Erie Company shall have and is hereby granted a first lien upon the railroad iranchises and property of the Tonawanda Company next after its bonded indebtedness aforesaid, and a first charge upon its surplus earnings next after the payment of the accruing interest upon its said bonded indebtedness. This contract shall continue during the corporate existence of the companies parties hereto.
    The complaint further alleged performance of such agreement on the part of the Tonawanda Company, a default in the payment of the interest due on its bonds; that the Erie Company failed tc make good the deficiencies in the net earnings of the Tonawanda Company, to meet the interest on its bonded indebtedness ; that in making such agreement it was understood and intended between the companies that the provision in the agreement, “that the Erie Company will make good any deficiencies in the net earn ings of the Tonawanda Company to meet the interest on its bonded indebtedness, should enure to the benefit and protection of the bondholders of the Tonawanda Company; ” and that the breaches thereof by said Erie Company passed and enured to the plaintiff as trustee, and as against the Erie Company the plaintiff demanded judgment that it be charged with the deficiency. The referee directed judgment for the foreclosure of the mortgage and sale of the mortgaged property, and determined that the complaint did not state facts sufficient to constitute a cause of action against the New York, Lake Erie and "Western .Railroad Company, and judgment was entered accordingly.

      Oliver P. Buel, for the appellant,

      E. O. Sprague, for the respondent.

        Tonawanda Railroad Company v. New York, Lake Erie and Western Railroad Company (42 Hun, 496).

   Bradley, J.:

The questions presented are, first, whether the agreement of March 12, 1883, between the New York, Lake Erie and Western Railroad Company and the Tonawanda Talley and Cuba Company was valid, and if it was, second, whether the plaintiff in this action is entitled to relief against the former company for the benefit of the holders of the bonds of the latter company. The first question, if treated as res nova, would require some consideration, but that was before this court, in the first department, in Tonawanda Rail road Company v. New York, Lake Erie and Western Railroad Company (42 Hun, 496), and there decided in the affirmative, and further, that if the agreement was ult/ra vires, the defendant was not in a condition to avail itself of that defense. For the purposes of this review, we treat that decision as disposing of this question, and, therefore, do not consider it; and in that view the respondent may be treated as a lienor and a proper party defendant for that reason. But it is assumed here, and will be so treated for the purposes of this review, that the determination by the referee in favor of the defendant was only upon the issue presenting the question of its liability to the plaintiff.

In respect to the inquiry whether a right of action upon the agreement enured to the plaintiff as the representative of the bondholders, and for their benefit, it is contended by the counsel for the plaintiff : 1. That the undertaking of the New York, Lake Erie & Western Railroad Company contained in it is embraced in the property covered by the mortgage, and as such the right to enforce it is vested in the plaintiff. 2. That such company took possession of the Tonawanda road and assumed the payment of the interest upon the bonds and took the Status of a grantee in fee, assuming the payment of existing liens and is, therefore, liable to the plaintiff as such trustee. 3. That the agreement to pay the interest was made to the Tonawanda Company for the benefit of its bondholders, and that a right of action enured to them, or for their benefit, which is available to the plaintiff in this action as their trustee. While choses in action are property, the promise furnished by such agreement was not within that which the mortgage, by its terms or purpose, did or was intended to embrace. The character of the mortgaged property is deseribed in general terms, and included in it is all that which may relate to the operation of the railroad and applied to its uses. And on default, all of its income, earnings and profits are charged. The after-acquired property referred to includes every acquisition by the mortgagor of property in character like that specified or within the terms expressed in the mortgage, which are to be construed in view of the purposes contemplated to which its use is to be applied.

A mere valid promise or undertaking, taken by the company to give it support financially by enabling it to escape default for the non-payment of interest, evidently is not the property which the mortgagee took by force of this indenture, although it was obtained by the mortgagor for its financial relief and support, and its performance would have had the effect to enable it to operate its road. Philadelphia, W. and B. Railroad Company v. Woelpper (64 Penn. St., 366), goes no further than that. If, ¡however, the New York, Lake Erie and "Western Railroad Company may be treated as having in effect the relation like that of a grantee in fee under an agreement by which it assumed the payment of the bonds secured by the mortgage, or so much of it as the net income of the road was insufficient to meet, it may be seen that such company was chargeable to that extent for any deficiency which may arise on the sale in foreclosure, because as between the Erie and the Tonawanda Companies the primary liability would be that of the former and'the latter would have the relation of surety But that does not seem to be the situation of the parties to the agreement as presented by its terms. The property of the Tonawanda Company was not conveyed or transferred to the Erie Company by lease or otherwise, nor was the operation of the road taken from the Tonawanda Company by the agreement. It was contemplated that the latter company would operate the i oad and that both roads would, so far as their respective interests permitted, be operated for the benefit of each other, but to require the performance of the agreement on the part of the Tonawanda Company the Erie Company took the deposit of a majority of its stock with the right to control the direction of the company represented by it in the event only, that the management was not satisfactory, which meant that this could be done in the event only, that the Tonawanda Company failed to perform the contract on its part. This was a mere remedy provided for protection against its breach. This agreement was, by its terms, to be effectual during the corporate existence of the companies, and was to operate on one no less than on the other of them. The promise of the Erie Company was to advance money in the event and for the purpose mentioned, and it was contemplated that it might make other advances to enable the Tonawanda Company to provide for and operate its road. For all which advances the Erie Company was to have a lien upon the property of the other company subsequent only to that of its bonded indebtedness. The agreement, therefore, does not treat these advances to make good the deficiency in the net earnings to meet the interest on such indebtedness as payment by the Erie Company of its own debt, but as an advancement of money pursuant to a promise for which, as security, the property of the other company is charged with such lien.

We have not overlooked the provision of the agreement expressing the condition, which makes the performance of the promise of the Erie Company to make good the deficiencies in the net earnings to meet the interest on the bonded indebtedness, dependent upon the fact that the corporate control of the Tonawanda Company should become and remain vested in the Erie Company as therein provided, which by construction and in legal effect was that the Erie Company should retain the means given by the deposit with it of a majority of such stock to require the performance by the Tonawanda Company of the contract on its part. This was in the nature of security furnished by the one company to the other for such performance. The agreement was executory on both sides. The Erie Company having such security for its performance, agrees to make advances in certain events, and such advances go in protection of the property of the Tonawanda Company against the foreclosure of the lien of its mortgage; and not to discharge any debt of the Erie Company, or any debt on account of which it had any property or fund in trust for any such purpose. In this respect the case comes within the doctrine of Garnsey v. Rogers (47 N. Y., 233); Pardee v. Treat (82 id. 385); Root v. Wright (84 id. 72). The case cited of Woodruff v. Erie Railway Company (93 N. Y., 609), does not support the contention of the plaintiff’s counsel in view of the facts here. There the Erie Railway Company had taken conveyance or lease from Woodruff (the original lessee), of the entire estate of the Erie and Genesee Yalley Railroad Company, and assumed the payment of the interest as it became due, and the principal when it matured, of the bonded indebtedness of the original lessor company, which had made a similar grant or lease to Woodruff. The Erie Railway Company in that case had practically the relation of assignee of the lease of the Erie and Genesee Yalley Railroad Company to Woodruff, with its personal covenant added for its performance. (Stewart v. Long I and Railroad Company, 102 N. Y., 601.) There is, therefore, in the case at bar no right of action m the plaintiff as against the respondent company, resting in subrogation or-to charge it with the-relation of principal debtor, to any extent, of the interest moneys of the bonds secured by the mortgage. Nor is the company in the situation of guarantor of the collection or payment of any of the moneys so secured.

The remaining question is, whether the holders of the bonds of the Tonawanda Com pany are beneficiaries of the promise of the respondent company in such sense as to enable the plaintiff to charge it by action in their behalf. ¥e assume that the plaintiff so represents those beneficially interested that it may, in this action to foreclose the mortgage, assert any right of action that has accrued to them in that respect against the New York, Lake Erie and Western Railroad Company, To support this proposition it must appear that the promise of such company was made to the Tonawanda Company for the benefit of its bondholders. It is not sufficient that the performance of the undertaking to pay may necessarily result in benefit to the third party, but to support an action by him upon it such beneficial purpose must be within the terms of the promise. (Merrill v. Green, 55 N. Y., 270); Simson v. Brown, 68 id., 355.) And when the promise is made to pay the debt of the promisor to or for the benefit of a third person who is in privity with the promisee, such person may maintain an action upon the promise. Such was the case of Lawrence v. Fox (20 N. Y., 268), and Arnold v. Nichols (64 id., 117). In the case at har the promise was to make good any deficiencies in the net earnings of the promisee company to meet the interest on its bonded indebtedness. The bondholders were in privity with the promisee, and assuming that the promise may be treated as one to pay the amount of such deficiencies to the parties entitled to the interest, the further question arises whether the promise comes within the principle requisite to support an action by the bondholders or their trustees. It has already been suggested that the Erie Company owed no debt to the Tonawanda Company, and held no fund in trust for the payment of the money it had agreed to advance, but that the rights of the contracting parties rested in executory agreement merely, and the one Company held the deposited stock of the other, and the rights it afforded under the agreement, as collateral security for its performance with the addi. tional security which a lien upon the property of the latter company would furnish for advances made.

It is difficult to see bow this promise can be brought within the doctrine of Lawrence v. Fox, as defined and limited by subsequent cases. In that case the promisee lent to the promisor a sum of money, the amount of which the latter promised to pay to the plaintiff. The action there had for its support the promise of the defendant to pay his own debt to the plaintiff; and such debt was created by the advance to him of the money, pursuant to the same agreement of which the promise formed a part. Here there was no debt of the New York, Lake Erie and Western Railroad Company, created as such by the transfer of property to it, or otherwise. That company, by its contract with the Tonawanda Company, executory in its character on both sides, undertook to perform certain stipulations, amongst which was that before mentioned. And this, within the principle of the cases as declared by 'the courts of this State, must be deemed to have been for the benefit and protection of the Tonawanda Company. Such was the decision of the court in Garnsey v. Rogers, where, by a provision in a mortgage, the mortgagee assumed and agreed to pay a prior incumbrance on the mortgaged premises. It was held that the prior lienor, although he had the personal liability of the mortgagor, could not maintain an action upon the covenant of the mortgagee. The courts do not extend the doctrine of Lawrence v. Fox, but limit it to the relation like, in character and legal effect between the parties, to that which the facts in that case produced. That is substantially the proposition announced in the Garnsey case, and repeated in Pardee v. Treat and Root v. Wright. After a careful consideration of the argument of the learned counsel for the plaintiff, and all the cases to which our attention has been called, we think, within the rule of the cases following Lawrence v. Fox, the stipulation referred to of the New York, Lake Erie and Western Railroad Company, in the agreement of March 12, 1883, must be deemed to have been made for the benefit and protection of the Tonawanda Company, and no right of action was conferred by it upon the plaintiff; and that no allegation of the complaint gives support to this action upon such agreement as against the respondent company.

The judgment should be affirmed.

Smith, P. J., and Haight, J., concurred.

Judgment affirmed, with costs.