author: Gilbert, J.;

text:
    THOMAS R. DAWLEY, Appellant, v. DANIEL ALSDORF, Respondent.
    ‘ ‘Delivered for distribution ’’ — meaning of.

    Appeal from a judgment in favor of the defendant for eighty-two dollars and fifty-one cents (the jfiaintifi having recovered one dollar and the defendant, eighty-three dollars and fifty-one cents costs), at the Eoekland County Circuit.
    On the 5th day of December, 1879, one Frank A. Cotharin, contemplating the publication of an edition of sheet-music, to be known as the “ Musical Album,” with spaces for advertisements, applied to the defendent, a merchant of Newburgh, N. Y., and received from him the following paper:
    Newburgh, N. Y., Deo. 5, 1879.
    F. A. Cotharin.
    You are hereby authorized to insert my advertisement in the “ Musical Album,” to occupy space of not less than (8) eight square inches, for and in consideration of which I agree to pay to you, or order, on presentation of this contract, and certificate from printer as to number printed, at the rate of twenty dollars ($20) for each and every thousand copies of the total number printed and delivered for distribution. Fifty copies to be delivered to me for free distribution, which number I agree to distribute free, for the mutual benefit of the advertisers. Your responsibility to extend no further than the printing, tender or delivery of the Musical Album. The edition not to exceed 10,000 copies. In case I do not furnish copy for above edition within five days from above date, space may be charged for at the same rates as though copy had been furnished.
    DANIEL ALSDOEF.

      Three days after receiving this paper, Ootharin indorsed it over to the plaintiff.
    The court at General Term said: “ The agreement of the defendant was to pay for each and every thousand copies of the total number of the Musical Album printed and delivered for distribution. -We think that the only meaning which can be fairly attributed to the phrase “ delivered for distribution ” is a delivery for the purpose of supplying subscribers or purchasers of the paper. The term distribution, as applied to a publication like a newspaper, or a periodical, imports a delivery to persons who have bought or otherwise became entitled to the same.
    There is no evidence in this case of any distribution of the Musical Album in that sense, except the delivery of fifty copies to the plaintiff, and for those copies the plaintiff -was allowed to recover.
    The act of leaving the Album in each and every one of the houses in the principal streets of Newburgh was not, in any sense, a distribution thereof within the meaning of the contract.
    Judgment should be affirmed, with costs.

      Ohmdes Strauss, for the appellant.

      Scott <& Hirscliberg, for the respondent.
   Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    George C. Glacier, Respondent, v. Elizabeth Fogel and others, Appellants.

   Order of surrogate affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Barbarer M. Fancher v. Oliver Brewster.
   Judgment affirmed, with costs, and appeal dismissed for non-submission of papers.


author: Dykman, J.;

text:
    Edward L. Howard and Abraham F. Howard, Respondents, v. Samuel Townsend and others, Appellants.

   -Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    The People of the State of New York ex rel. Michael McGinnis v. The Commissioners of the Department of Fire in Brooklyn.
   Order reversed, with ten dollars costs.


text:
    The People of the State of New York ex rel. James McCormick v. The Same.
   Order reversed, with ten dollars costs^


text:
    The People of the State of New York ex rel. Patrick Hennessy v. The Same
   Order reversed, with ten dollars costs.


text:
    The People of the State of New York ex rel. Daniel McGrath v. The Same.
   Order reversed, with ten dollars costs.


text:
    The People of the State of New York ex rel. Lizuchs v. The Same.
   Order reversed, with ten dollars costs.


text:
    Hermon L. Thieme, Administrator, etc., Respondent v. Charles Bethon, Appellant, Impleaded, etc.

   Order affirmed, with tea dollars costs and disbursements. Opinion by

Gilbert, J.;

Barnard, P. J., dissenting.


author: Barnard, P. J.;

text:
    Caroline J. Liegeois, Respondent, v. John McCrackan, Appellant

   Order denying final judgment affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Gilbert J., not sitting.


author: Gilbert J.;

text:
    George H. Smith and William H. Carr, Respondents, v. Sarah A. L. Palmer, Appellant.

   Order continuing injunction affirmed, with costs and disbursements. Opinion by

Gilbert J.;

Dykman, J., not sitting.


text:
    Mary Schlichting, Administratrix, etc., Appellant, v. Levi Wintjen, Respondent.

   Papers not submitted.


text:
    In the Matter of the Application of the Trustees of Common Lands of the Town of Gravesend to Lease Lots on Coney Island.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Barnard, P. J.


author: Gilbert, J.

text:
    In the Matter of the Application of Andrew Wissel and others, Appellants, v. The Board of Health in the City of Brooklyn and James Crank, the Commissioner of said Board of Health, Respondents.

   Order denying mandamus affirmed, with ten dollars costs and disbursements. Opinion by

Gilbert, J.


text:
    Patrick McKetrick, Appellant, v. George Jewell, Respondent.
   Judgment of County Court reversed, and judgment of justice affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Francis B. Wallace, Respondent, v. Robert H. Berdell, Appellant. Ambrose S. Murray, Respondent, v. Robert H. Berdell, Appellant.
   Ordered, that the case be corrected, and motion for re-argument denied, and orders to be settled by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    James R. Wiltsie, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   'Conviction affirmed. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    Jane A. Smith, Administratrix, etc., Appellant, v. Perry Loucks, Respondent.

   Judgment reversed, and new trial granted, costs to abide event. Order of reference vacated. Opinion by

Barnard, P. J.


text:
    Charles J. Quimby, Respondent, v. Horace B. Claflin and others, Appellants.

   Judgment reversed, and new trial granted, costs to abide event. Order of reference vacated. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


text:
    Andrew Hood and Henry Hood, Respondents, v. Frederick Hood and others, Appellants.

   Judgment affirmed, with costs.


text:
    Anna T. Sinclaire, Respondent, v. John Wood, Appellant.
   Judgment reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Hugh Stapleton, Respondent, v. John F. Meyer, Appellant.

   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Gilbert, J.


text:
    The People of the State of New York ex rel. Joshua B. Bunce v. J. Buell Randall and others, as Commissioners of Highways, etc., and others.
   Order of commissioners reversed, with costs. Opinion by

Barnard, P. J.


text:
    Stephen Chisholm, Administrator, etc., Appellant, v. James Hogan and John Hogan, Respondents.
   Judgment and order denying

new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    George W. Moore, Respondent, v. John J. Betz, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    Nicholas C. Gregoor, Respondent, v. Eugene Borda, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Gilbert, J.


text:
    William H. H. Childs, Respondent, v. Warren Chemical and Manufacturing Company, Appellants.

   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Elbert A. Farrar, Plaintiff, v. Alexander McCue, Defendant.
   Judgment for defendant upon submitted case, with costs. Opinion by

Barnard, P. J.


text:
    Martha Curran, Administratrix, and another, Appellants, v. John McGinn and another, Respondents.

   Judgment reversed, and new trial granted, costs to abide event. Reference vacated. < ipinion by

Dykman, J.


text:
    Margaret J. Kenney, as Administratrix, etc., Appellant, v. The New York and Manhattan Beach Railway Company, Respondent.

   Exceptions overruled and judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Benjamin T. Robbins, Respondent, v. Jesse Carll, Appellant.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.


text:
    William A. Breed, Respondent, v. Martin H. Birge and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Laura A. Hooper, Appellant, v. Alice Hawkins, as Executrix,, etc., Respondent, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Louise Sweet, Appellant, v. Andrew C. Warren, as Administrator, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    The Ansonia Clock Company, Appellant, v. John W. Metcalf, Respondent.
   Order vacating order of arrest reversed, with costs. Opinion by

Gilbert, J.


text:
    The People of the State of New York ex rel. Edward Fitzsimmons v. James Jourdan, as Police Commissioner of the City of Brooklyn.
   Order dismissing relator reversed, with costs. Opinion by

Barnard, P. J.


text:
    Mary J. Badger, Appellant, v. Alfred C. Badger and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    George L. Wells, Appellant, v. Richard H. Benjamin, Respondent
   Judgment of County Court affirmed, with costs. Opinion by

Barnard, P. J.


text:
    James M. Quinby and others, Respondents, v. Joseph H. Strauss, Appellant, Impleaded, etc.
   Judgment and order denying new trial, affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., dissenting.


text:
    Clinton Raynor, Respondent, v. Harrison Gordon, Appellant, Impleaded, etc.

   Order overruling demurrer to complaint, and judgment thereon, affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Edward J. Woolsey, Respondent, v. John R. Morris and William H. Morris, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    John Clare, Respondent, v. The Brooklyn City Railroad Company, Appellants.

   Judgment and order denying new trialreversed, and new trial granted, costs to abide event. Opinionby

Dykman, J.


text:
    Margaret Neely, Respondent, v. Allen Taylor, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Order denying new trial upon the ground of newly discovered evidence reversed. Opinion by

Barnard, P. J.


author: Barnard, P. J

text:
    Frank Crooke, Appellant, v. Francis Anderson, Respondent.

   Judgment and order denying motion to set aside verdict and denying new trial affirmed, with costs. Opinion by

Barnard, P. J


text:
    John F. Schlosser, as Receiver, etc., Respondent, v. Emil Stern and Frederick Lewis, Appellants.

   Judgment reversed and new trial granted, costs to abide event. ' Opinion by

Gilbert, J.


text:
    Mary E. Berner, Respondent, v. Hugh J. Jewett, as Receiver of the Erie Railway Company, Appellant.

   —Judgment and order denying new trial affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Emily P. Woolsey, Appellant, v. Long Island City and others.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P.. J., not sitting.


text:
    De Witt C. Littlejohn and others, Appellants, v. Henry Y. Attrill and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    Michael M. Costello, Appellant, v. William B. Curtis, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Charles W. Brundage and others, Respondents, v. Eliza S. Graves and others, Appellants.

   Judgment of County Court modified, without costs. Opinion by

Gilbert, J.


text:
    Dunscomb v. The New York Housatonic and Northern Railroad Co.
   Papers not submitted.


text:
    Hiram Finch, Respondent, v. Jonathan P. Carpenter, Appellant.

   Order overruling verdict reversed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Hiram Finch, Respondent, v. Jonathan P. Carpenter, Appellant.

   Judgment reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    The Chemung Railroad Company, Respondent, v. The Erie Railway Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Gilbert, J.


text:
    John McNab, Respondent, v. Catharine Judson and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    James C. Skidmore, Respondent, v. Jesse Seligman and others, Trustees, etc., Appellants.

   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting


text:
    Peter A. Skidmore, Respondent, v. Jesse Seligman and others, Trustees, etc., Appellants.

   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Peter Mitchell, Appellant v. Julius Hammerslough, Respondent.

   Order granting new trial reversed, with costs. Gpinion by

Dykman, J.


text:
    William B. Forrest, Respondent, v. The Edwin Forrest Home, Appellant, Impleaded, etc.

   Order granting new trial reversed, with costs. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


text:
    William Deyermand, Executor, etc., Appellant, v. Henry Chamberlain, Respondent.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    Patrick Devine, Appellant, v. The Tarrytown, etc., Gas Light Company.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Jacob Polhemus v. William Voorhees.
   Motion denied, with costs.


text:
    Otis N. Cutler, Respondent, v. John Satterlee, Appellant, Impleaded, etc.

   Motion denied, without costs.


author: Smith, J.:

text:
    NATHANIEL SMITH, Appellant, v. BENJAMIN SIXBURY, Respondent.

      Trade-mark — what words may be used as.

    A ay words selected arbitrarily, not expressive of the quality or character of the article, and not previously appropriated by any other person to designate a similar commodity, may be used as a trade-mark for such article.
    The plaintiff had been engaged during the last twenty-five or thirty years in compounding, manufacturing and selling a liquid medicine which he called “Barker & Smith’s Magnetic Balm.” Prior to that time one Barker, a physician, had been engaged in manufacturing- and selling a medicine which he ' called “Magnetic Balm.” The plaintiff had purchased from him his interest in and the recipe for the said medicine. The medicine contained no magnetism or electricity.

      Held, that the plaintiff was entitled to be protected in the use of the words “ Magnetic Balm,” as against any person subsequently attempting to use the same.
    Appeal from a judgment, entered upon the report of a referee, dismissing the complaint, with costs.

      Butterfield & Phillips, for the appellant.

      Lmxsing <& Rogers, for the respondent.
   Smith, J.:

The plaintiff has been engaged during the last twenty-five or thirty years in compounding and manufacturing at the city of Syracuse and selling in certain counties in the northern part of this State, and in other parts of the United States, a liquid medicine which ho has designated by the name of Barker & Smith’s Magnetic Balm. One William Barker, a practicing physician, was engaged some thirty years ago in manufacturing and selling at Syracuse a medicine which he called Magnetic Balm,” and his recipe and interest in the medicine were purchased by the plaintiff. The plaintiff claims to have adopted the words Magnetic Balm ” as a trade-mark to be placed on the glass bottles in which the medicine manufactured by him is usually put up for sale. He has also been accustomed for several years to inclose each bottle of medicine in a paper wrapper on which is printed a label headed with the .words Barker & Smith’s Magnetic Balm” containing a description of the properties of the medicine and directions for its use, and having on the side inclosed in brackets the words Trade-mark, Magnetic Balm.” The plaintiff alleges that the defendant, who is engaged in manufacturing and selling a like medicine at the city of Watertown, has wrongfully used the plaintiff’s said alleged trade-mark and imitated his label, and is still doing the same. This action is brought to restrain the defendant from using said trade-mark and imitating said label, and to recover damages.

The referee found substantially, among other things, the facts above stated; but he found also, as matter of law, that the words Magnetic Balm,” as used by the plaintiff, do not constitute a trademark, and on that ground, as is to be inferred from his report, lie ordered the complaint to be dismissed.

In this we think the referee erred. He had found, as a fact, that the medicine compounded by the plaintiff contained no magnetism or electricity. That being the case, the word “ magnetic,” as applied to the compound, was an arbitrary word not descriptive of the article, and one which the plaintiff could lawfully appropriate as a trademark. The view which the referee probably took of the matter is suggested by the finding of fact contained in his report, that the word magiietic, when not used in its strict scientific signification, denotes something wonderful, quick or attractive.” We are at loss to discover upon what evidence that finding is based. There is none warranting it in the printed case, which purports to contain all the evidence. And we know of no authority in lexicography for holding that the word “ magnetic,” as applied to a liquid compound, such as the plaintiff’s medicine is shown to be, has any such meaning as is given to it by the referee, or is descriptive of any quality of such compound.

The rule is, that any word, selected arbitrarily, not expressive of the quality or character of the article, and not previously appropriated by any other person to designate a similar commodity, may be used as a trade-mark'for such article. (Gillott v. Esterbrook, 48 N. Y., 374; Newman v. Alvord, 51 id., 189; Hier v. Abrahams, 82 N. Y., 519.)

There is no evidence that any other person had adopted the words “Magnetic Balm” to designate a similiar article, before they were used by the plaintiff and his assignor, Barker.

There are several other questions in the case upon which it is unnecessary to comment.

For the error above pointed out the judgment should be reversed, and a new trial ordered before another referee, costs to abide the event.

Talcott, P. J., and IIardin, J., concurred.

Ordered accordingly.


author: Smith, P. J.:

text:
    ADELINE M. PERRIGO, Appellant, v. CATHERINE DOWDALL, Respondent.

      Trespass — when the lessor, who defends in the name of the tenant, is liable fop the costs of the action.

    In this action for a trespass upon the plaintiff’s land the defendant set up, as one of her defenses, that the land was owned by her lessor, who was entitled to the possession thereof, and that the acts constituting the alleged trespass were done by his direction. The lessor, without having caused himself to be made a party to the action, conducted the defense unsuccessfully in the name of his tenant, but on his own account.

      Held, that he was liable for the costs of the action, if they could not be collected from the defendant.

      Held, further, that the only legal evidence of the inability of the plaintiff to collect the costs from the defendant was the return unsatisfied of an execution issued upon the judgment.

      Appeal from a.n order made at the Onondaga Special Term, denying the plaintiff’s motion to charge Thomas Dowdall with the costs of this action.

      F. T. Evans, for the appellant. Waylancl F. Ford, of counsel.

      H. F. Morse, for the defendant and Thomas Dowdall.
   Smith, P. J.:

The evidence is convincing that Thomas Dowdall conducted the defense of this action on his own account, the defendant on the record being his mother and his tenant. The action was for trespass on the plaintiff’s land, and one of the defenses set up was that the locus in quo was owned by Thomas Dowdall and he was entitled to the possession of it, and the acts constituting the alleged trespass were done by his direction. It is understood that the motion to charge Dowdall with the costs of the defense was denied on the ground that such a practice prevails only in actions of ejectment, when the suit being against the tenant, his landlord undertakes the defense. Such was once the law; but the reason for it was that there was a statute then in existence which gave the landlord in such case an opportunity to come in and defend his title, on being notified by the tenant, and the opportunity thus given was confined to landlords whose title was involved in actions of ejectment. (1 R. L., 443; Jackson v. Van Antwerp, 1 Wend., 295 ; The Farmers’ Loan and Trust Company v. Kursch, 5 N. Y., 558.) A change of the statute gave the rule a broader application. The Revised Statutes provided that “no imparlance, voucher, aid, prayer or receipt shall be allowed ; but whenever any action shall be brought against any tenant to recover the land held by him, or the possession of such land, the landlord of such tenant, and any person having any privity of estate or interest with such tenant, or with such landlord, in the premises in question, or in any part thereof, may be made defendant with such tenant in case he shall appear, or may at his election appear, without such tenant.” Under that statute it was held in the case of The Farmers’ Loan and Trust Company v. Kursch (supra) that a person who was not the landlord of the defendant in ejectment but was his grantor-with warranty, and who, without causing himself to be made a party, had defended the suit unsuccessfully in the name of the original defendant, should pay the costs of the plaintiff after execution against the defendant on the record had been returned unsatisfied. The opinion of Chief Justice Ruggj,es in that case reviews the prior cases and asserts the doctrine, as we understand it, that where a person not a defendant on the record, to whom the statute gives the opportunity of defending, avails himself of the opportunity by defending in the name of the party sued, lie is liable for costs in case of failure, no matter what the form or nature of the action may be, provided the costs cannot be collected of the defendant on the record. If he avails himself of the opportunity of defending given by the statute, he is chargeable with costs if he fails. By the application of that rule Dowdall is liable if the costs cannot be collected of the defendant. The last clause of •section 452 of the Code of Civil Procedure, which had taken effect prior to the commencement of this action, provides that “ where a person^ not a party to the action has an interest in the subject thereof or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to. be made a party, it must direct him to he brought in by the proper amendment.” Here, by the pleadings, the title to land claimed by Dowdall was put in issue. The defendant was his tenant, and she set up his title. It was a case in which, by the statute, he had a right to come in and defend. Having defended unsuccessfully in the name of his tenant, without asking to be made a party, he is liable for costs under the rule above stated.

There is, however, one defect in the case of the moving party'. There is no legal evidence that the costs cannot be collected from the defendant. The only legal evidence of that fact is the return of an execution unsatisfied.

It is suggested hy the appellant’s counsel that if the court is not prepared to reverse the order we should modify it, so as to permit the plaintiff to apply'- for leave to open the judgment and move for an order of arrest, with a view to issuing an execution against the person of the defendant. We see no occasion for that course. The return of an execution against property unsatisfied will be sufficient evidence of inability to collect the costs from the defendant.

The result is that the order appealed from should be affirmed, with ten dollars costs and disbursements, on the ground that the motion was premature, without prejudice, however, to the right of the plaintiff to renew the motion on the return of an execution against the property of the defendant unsatisfied.

Hardin and Haight, JJ., concurred.

So ordered.


text:
    GEORGE KINCAID, Respondent, v. JAMES B. RICHARDSON, Appellant.

      County court — an order of, granting lecrne to issue an execution upon a justice's judgment, is not appealable— Code of Civil Procedure, §§ 376, 382, sub. 7, relate to remedy by action only.

    No appeal lies to the General Term from an order of a County Court, granting leave to issue an execution upon a judgment recovered in a Justices’ Court, where a transcript thereof was filed and judgment thereon docketed in the clerk’s office of the county in 1866.
    The sections of the Code of Civil Procedure (§§ 376, 382, sub. 7) prescribing the times within which actions upon judgments must be brought, relate only to the remedy by action and do not affect the remedy by execution.!
    Appeal from an order of the Oneida County Court, granting leave to issue an execution upon a judgment recovered in a Justices’ Court, for ninety-two dollars and sixty-six cents, a transcript of which judgment was filed and judgment thereon docketed in the clerk’s office of said county on 29th January, 1866.

      Richardson, Adams da Ma/rm and E. J. Richardson, for the appellant.

      lindsley da Danmore, for the respondent.
   Smith, P. J.:

A question of some gravity is presented by the objection taken by the respondent that the order of the County Court is not appeal-able, for the reason that an appeal does not lie to this court from an order made by a Comity Court in an action originally brought in a Justices’ Court. Under section 1342 of the new Code, as originally framed, it has been held that an appeal will not lie to this court from an order of a County Court made in an action commenced in a Justices’ Court and brought into the County Court by appeal. (Andrews v. Long, 79 N. Y., 573; Fish v. Thrasher, 21 Hun, 15.) The section was amended at the last session so as to give an appeal in such a case. (Laws 1881, chap. 135.) As the amendment was adopted after the appeal herein was taken, it is not applicable to the present case ; and if it were, it would not aid the appellant as this ■action was not taken to the County Court by appeal. No appeal lies in this case under section 1342, unless the action can be treated ■as one brought in the County Court. Section 63 of the old Code, which was in force when the transcript was filed and the judgment was docketed in the county clerk’s office, declared the judgment to be from that time a judgment of the County Court.” And by the language of section 3017 of the new Code, “ thenceforth the judgment is deemed a judgment of the County Court * * * and must be enforced accordingly.” But, notwithstanding these provisions, the action is not one originated in the County Court; it was brought in a Justices’ Court, and therefore section 1342 does not apply.

The circumstance that the order appealed from was made after judgment in the County Court is of no moment. It is the same, so far as the right of appeal given by section 1342 is concerned, as if the order had been made before judgment.

The appellant’s counsel suggests that a right of appeal is secured to his client by section 3352 of the present Code, which declares the ■effect of the Code on previous proceedings taken or rights accrued. The answer is that the appeal had not been taken, nor had the right of appeal accrued when the Code went into effect.

Section 1357 is also invoked in support of the appeal; but that gives an appeal from orders made in special proceedings only. The ■order in this case was made in an action.

We are inclined to the opinion that the statute does not confer upon this court the power to review the order appealed from, and are forced to the conclusion that the appeal must be dismissed.

But as the question is new and perhaps not free from doubt, we have examined the case on its merits. The only question of any moment is whether the remedy by execution is barred by the statute of limitations. We think it is not. Whether the remedy by action on the judgment is barred by the statute is a question that need not. now be discussed. That question turns upon the point whether the judgment is to be regarded as a judgment of the County Court, and so within the twenty years’ limitation (Code of Civil Pro., § 3Y6), or as a judgment of the Justices’ Court, which is barred in six years. (Sec. 382, sub. Y.) Statutes of limitation relate only to the remedy, and the particular statutes referred to relate only to the remedy by action. The remedy by execution is not affected by them. (Johnson v. The Albany and Susquehanna R. R. Co., 54 N. Y., 416; Waltermire v. Westover, 14 N. Y., 16.)

For the reasons above stated the appeal should be dismissed, with ten dollars costs and disbursements.

Hardin and Haight, JJ., concurred.

So ordered.


author: Smith, J".:

text:
    SPENCER COLEMAN, Appellant, v. ISAAC C. BURR, ELLEN A. BURR and FRANKLIN P. SMITH, Respondents.

      Husband and wife — right of the former to the househwld sen'rices of the latt&r — when an agreement to pay her therefor is void as against his areditoi's.

    In 1869 the defendant Burr entered into an agreement with his wife by which he agreed to pay her five dollars a week for services to be rendered by her in; nursing and taking care of his mother, who was then aged, paralytic and helpless, and who resided in his house under an agreement by which he had undertaken to support her during her life in consideration of her having conveyed certain land to him. At the timé of the mother’s death there was due to the wife for such services the sum of $2,175, in payment of which the husband conveyed to her through the intervention of a third person certain real estate, including that received from his mother. At the time of making the conveyance Burr was, to his own knowledge, insolvent and his creditors were pressing him for payment. The agreement between Burr was fairly and honestly made, with little expectation that the life of the mother would be so greatly prolonged, and the sum agreed upon was no more than a fair and reasonable compensation for her services.

      This action was brought by a judgment creditor of thi? husband, after the return of an execution unsatisfied, to set aside the conveyance to the wife as fraudulent and void.

      Held, that the services so rendered by the wife belonged to her husband, jure mariti, and that, as against his creditors, they constituted no valid consideration for the conveyance, and that the same should be set aside.
    Appeal from a judgment in favor of tlie defendants, entered on the report of a referee.

      Isaac S. Signor, for the appellant.

      H. D. Tucker, for the respondents.
   Smith, J".:

The plaintiff is a judgment creditor of the defendant Isaac 0-Burr, and he brings this action to set aside a conveyance of about sixty-two acres of land made by Burr to his wife, through the intervention of a third person, on the ground that such conveyance was without consideration, and was executed with intent to defraud Burr’s creditors. The ,deeds by which the transfer of title from Burr to his wife was effected expressed the nominal consideration of one dollar, and the referee found that the intent and object of' making them was to transfer the premises to Mrs. Burr in payment and satisfaction of a claim which she then had against her husband, for labor aud services rendered by her in nursing and taking care of' his mother, who was aged, paralytic and helpless, under an agreement by the husband to pay his wife for such services at the rate-of five dollars a week. The mother lived in Burr’s house, and the services were performed there, Burr having previously engaged to-support his mother in consideration of the conveyance by her to him of twenty-six acres of the land above mentioned. The agreement with the wife was made in 1869, and the mother lived eight years and four months thereafter. The referee found that the wife-was entitled to the sum of $2,115 for her services thus rendered. At the time of the conveyance to his wife, Burr was insolvent and his creditors were- pressing him for pay. The referee found that the agreement between Burr and his wife was fair and honest, and made with little expectation that the life of the mother would be-so greatly prolonged, considering lier advanced age, disease and helpless condition; and that the sum agreed upon was no more than a fair and reasonable compensation for such services.

The referee held, as matter of law, that the agreement on the part of the husband to pay his wife for such services was an abandonment of his marital right to claim such services, and created a valid contract in law and constituted the amount due to the wife for such services a valid debt against her husband, which was a sufficient consideration in law and equity for the said conveyance; and he held the deeds valid and ordered that the complaint be dismissed, with costs.

It appears from the findings of the learned referee that the services of the wife, which formed the consideration of the conveyance, were of an unusually onerous and disagreeable character. But they were performed within her husband’s house for a member of his household whom he was bound to support. Not only had he agreed to maintain his aged mother in consideration of her conveying to him that which, for aught that appears, was all the property she possessed, but he was liable by statute to support her, in case she had had no means of her own. If the services rendered by the wife in this instance differed in any respect from those falling within the range of ordinary domestic duties devolving upon every wife, who is the mistress of a household, the difference is in degree only, and not in kind. If a good consideration exists in this case, it is difficult to see why the result would not have been the same if the nursing of the invalid had not required the performance of burdensome and disgusting offices, or had not been prolonged beyond the expectation of the parties, or if the wife’s services had consisted in nursing her husband or one of his children, being a member of his family.

The question seems to be, therefore, whether an agreement by a husband to pay his wife for domestic services to be rendered in his house, in and about the care of his family, constitutes such a consideration as, against creditors, as will support a conveyance made by the husband to his wife. That such an agreement was void at common law is a familiar doctrine. It lacked consideration, since the services and earnings of a married woman belonged to her husband. Equally familiar is it that equity would not interfere to sustain a deed void at law, which was wholly without consideration. (White v. Wager, 32 Barb., 250, and cases there cited by Mason, J., 257; S. C., affirmed 25 N. Y., 328, per Denio, J., 334; cases cited by Kent, Ch., in Shepard v. Shepard, 7 Johns. Ch., 57, 60.) A conveyance founded on an agreement of that character, being purely voluntary, was void as against creditors at law and in equity.

But it was held by the learned referee, -and is now contended by the respondent’s counsel, that modern legislation in this State has so far changed the common law as that the agreement in this case was valid and the wife’s services under it constituted a good consideration for the conveyance to her, at law and in equity, even as against her husband’s creditors. That result is supposed to have been effected by the act of 1860 “ concerning the rights and liabilities of husband and wife,” and notably by the provision that a married woman may carry on any trade or business and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services shall be her sole and separate property and may be used or invested by her in her own name.” (Laws 1860, chap. 90, § 2.) The act, of which that provision is a part, and other acts in pari materia, have been the subject of judicial interpretation in many reported cases, but none of them go far enough to uphold the decision now under review. On the contrary, it was held by the Court of Appeals in Filer’s case that, notwithstanding the statutes referred to, the services and earnings of a married woman not engaged in trade, business or labor on her own account belong to her husband, and on that ground the court decided, in an action brought by a married woman to recover for personal injuries caused by the wrongful act .of another, that it was error to charge the jury that her inability to labor caused by the injury constituted one of the items of damage. (Filer v. The N. Y. Central R. R. Co., 49 N. Y., 47.) In Brooks v. Schwerin (54 N. Y., 343) the Commission of Appeals held that under those statutes the services of the wife in the household still belong to her husband, and so far as an injury to her disables her from performing such services the loss is his, and he and not she can recover therefor. But when she labors for another her services and earnings no longer belong to her husband but to herself, and so far as she is disabled from performing such service she can recover for the loss. In that case the plaintiff, a married woman, before the injury, took charge of her family, and she also worked out by the day earning one dollar and twenty-five -cents per day. It was held that the refusal of the judge to charge as requested that she could not recover for her time and services was not error, the request having proceeded upon the idea that all her time and services belonged to her husband, but that if the defendant had requested a charge that she could not recover for the loss of services to her husband in the discharge of her domestic duties the request could not properly have been refused. Reynolds v. Robinson (64 N. Y., 589) was an action to recover the value of services rendered by the plaintiff and his wife in caring for the defendant’s testator, James Hill. The plaintiff’s wife, several years before her marriage, had been adopted by Hill as his daughter. Hill, during several of the last years of his life, lived with the plaintiff paying for his board. For eight years he was afflicted with a cancer, and by reason thereof required a great deal of care, nursing, bathing and washing of linen and clothing. Plaintiff’s wife during that time, save for a short period when a nurse was employed, rendered those services which were performed at the request of Hill who promised to pay what they were worth, and as the evidence tended to show, to compensate for them by making a provision for plaintiff’s wife in his will. He bequeathed to her $1,500. The services were found by the referee to be worth $4,342. The court held that as the plaintiff’s wife was in charge of his household and, as part of her household duties, rendered the services to a person in her husband’s house by contract with him, she was then working for her husband and not for herself or on her separate account. Certain remarks in the opinions delivered in the two cases last cited, to the effect that in certain cases, supposed by way of illustration, the wife, by special agreement with her husband, would be entitled to recover for her services rendered in taking care of third persons within his house, are relied upon by the learned referee. There is nothing in the remarks themselves or in the facts of the cases in which they were made, to warrant the supposition that they were intended to apply to a case affecting the rights of the husband’s creditors. The question to be decided in each of those cases was whether the husband or his wife could, maintain the action. Doubtless, as between themselves, a husband may relinquish to his wife his right to her earnings, even in his household, and she may hold them to her separate use. Such was always the rule in equity when there was no reason to suspect fraud and the gift amounted to no more than a reasonable provision for the wife. (2 Story’s Eq. Jur., 1375, and cases cited in note 4.) But in such case the gift was good only as against the husband and not as against his creditors. (Id.) Nor was a grant of all the husband’s estate to the wife operative even in equity (2 Story’s Eq. Jur., § 1374), as it could in no just sense be deemed a reasonable provision for her. Here it is to be presumed that Burr transferred to his wife all his property liable to the payment of his debts. The referee, on being requested to find that at the time the conveyances of the land wrere made Burr also transferred to his wife all his unincumbered personal property liable to execution, reported that he presumed the fact to be substantially so, but that he thought it was not distinctly proved. However that may be, the fact is found that shortly after the deeds were executed, executions were issued on the plaintiff’s judgments against Burr, and were duly returned unsatisfied. This, taken in connection with the fact that he was insolvent to his knowledge when he executed the deed, and that his creditors were then crowding him for pay, furnishes presumptive evidence that the transfer to his wife covered all his property liable to execution. The cases already referred to certainly do not, by adjudication or diotrnn, sustain this transaction, and it may be safely asserted that the judgment appealed from is without precedent. Indeed the learned referee in his opinion concedes that it is so.

The construction of the statute is then an open question. Upon a reasonable interpretation of it, can the conveyance from Burr to his wife be upheld as against his creditors ? "With due respect for the opinion of the learned referee by whom the case was tried, I am of the opinion that the statute does not justify it.

All lawyers know that the rule of the common law that the services and earnings of a married woman belonged to her husband was but one of the many outgrowths of the doctrine that, by marriage, the husband and wife became one person in law. The extent to which that doctrine has been modified by legislation in this State is, that a married woman may now acquire, hold, manage and control a separate estate, may carry on business on her own account, may appropriate to herself her earnings the same as if she were sole, and may sue and be sued in reference to all matters relating to her separate property; but she is still a wife, and, I apprehend, she owes duties to her husband, as he continues to owe duties to her. As he is still bound to support her and the children of their marriage, notwithstanding she may have an estate of .her own, so it cannot be doubted that she is still bound to live with him and to care for the domestic affairs of his house. 'Whatever may be the effect of the legislation referred to, I suppose it was not designed to break up the institution of the family or to weaken its ties. If it was not so intended, it would seem that the right of the wife to engage in business on her own account must be subordinate to the exercise, in a reasonable degree at least, of the duties she still owes to her husband as the overseer and manager of his household. Can she lawfully abandon those duties or seriously neglect them, to the discomfort and detriment of her husband and his family, in order to devote her whole time and attention to her separate trade or occupation % Can she lawfully insist upon being paid as a condition of performing domestic services for her husband or his family in his house ? Either the statute has given her that right as to all ordinary domestic services, or it has given it as to none, however disagreeable or arduous they may be. The statute makes no distinction on account of the peculiar character of the services as to the right of the wife to compensation, and the law, as it stood before the statute, made no such distinction. ( Whitaker v. Whitaker, 52 N. Y., 368, per Peckham, J., 371.) But Mrs. Burr had no separate estate, and was carrying on no separate business which required her attention. Her husband’s mother lived in his house, ate at his table, was supported by him and must be regarded as having been a member of his family. The wife’s services in nursing and taking care of her were performed in connection with her other household duties, and they were performed for her husband and at his request, and not for or on account of any third person.

I am of the opinion that the services thus rendered by her belonged to her husband, jure mariti, and that, as against his creditors, they constituted no valid consideration for the conveyances in question.

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

Talcott, P. J., and Hardin, J., concurred.

So ordered.


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    LAUREN C. WOODRUFF, Respondent, v. THE ERIE RAILWAY COMPANY, HUGH J. JEWETT, Receiver, etc., and Others, Appellants.

      Railroad corporation — it cannot lease its road to an individual — when a lessee is estopped from setting up the invalidity of his lease — by whom an action upon a covenant must be brought.

    A railroad corporation has no power, under the laws of this State, to lease to an individual its entire road, properties and franchises for the full unexpired term of its charter.

      It seems, however, that when such a lease has been in fact executed and the lessee has, with the consent of the lessor, entered into and had possession of the railroad, he is estopped from setting up the invalidity of the lease as a defense to a claim by the lessor for compensation for the use of the road.
    The plaintiff, upon the execution to him of such a lease by the Erie and Genesee Valley Railroad Company, agreed with it to pay or provide for the renewal of certain bonds issued by it, and secured by a mortgage executed to three trustees, and also to pay the interest coupons on the said bonds as they matured at a bank in New York city. Thereafter the plaintiff transferred the said lease to the Erie Railway Company, which entered into the possession of and ran the said road. In an action by the plaintiff against the said Erie Railway Company and its receiver to compel the payment of the coupons due and to become due on said bonds:

      Held, that as the lease to the plaintiff was void, and as his covenant to pay the bonds and the coupons to become due thereon was invalid, the defendant was not estopped as against him in this action from setting up the invalidity of the lease.
    That even if the lease was valid the plaintiff could not maintain the action without showing that he had paid the bonds or the coupons, or some of them. In the absence of such payments an action could only be maintained by the holders of the bonds or the trustees of the mortgage.
    Appeal from an interlocutory judgment, entered upon tlie trial-of this action by the court at Special Term.

      Sprague, Milb'imi i& Spragxie, for the appellants. E. O. Sprague, of counsel.

      J. A. Vanderlip, for the respondent.
   Smith, J.:

This is an appeal taken by the defendants, The Erie Railway Company and Hugh J. Jewett, receiver of the said company, from an interlocutory judgment, rendered at the Erie Special Term, ordering the defendant Jewett, as such receiver, to pay the interest due and to become due upon certain mortgage bonds of the Erie and Genesee Yalley Railroad Company, from any funds in his hands applicable to the payment thereof, to be ascertained upon an accounting before a referee as ordered by said judgment.

The case is this: On the 1st day of November, 1871,-the officers of the Erie and Genesee Yalley Railroad Company, a corporation organized under the laws of this State (with the subsequent assent of the stockholders .of said company) executed a writing purporting to be a lease to the plaintiff of the railroad of the said company, and all the rights, easements, powers and privileges pertaining thereto, for the full unexpired term of the charter of the said company, and the plaintiff, in consideration thereof, agreed to pay certain bonds (or provide for their renewal) theretofore issued by the said company, for the sum of $120,000, payable in July,- 1886, secured by a mortgage or trust deed executed to three trustees, of whom the plaintiff was one, and also to pay the interest coupons on said bonds as they matured, on the first day of January and July in each year, at the Metropolitan Bank in the city of New York, and also within two years to extend and complete the said railroad from Dansville to a' connection with the Erie Railway or one of its branches. On the 8th of November, 1871, the plaintiff, by an agreement in writing, transferred all his interest in the said Erie and Genesee Yalley Railroad to the Erie Railway Company, a corporation duly organized under the laws of this State, which latter company assumed to perform the covenants of the plaintiff with the Erie and Genesee Yalley Railroad Company. Immediately upon the execution of the contract between the plaintiff and the Erie and Genesee Yalley Railroad Company, the plaintiff took possession of the road and all the property of that company, and immediately on the execution of the contract between the plaintiff and the Erie Railway Company, the latter company took possession of said road under and in pursuance of said contract, and operated it and paid the interest on said bonds, by way of rent, up to and including the coupons maturing in January, 1875. On the 26th of May, 1875, the defendant, Jewett, was appointed ' receiver of the Erie Railway Company by an order of this court, in a suit commenced against it by the people of the State of New York, and on the same day he took possession of the property of said Erie Railway Company, including the road of the said Erie and Genesee Yalley Railroad Company, and operated it, as such receiver, until the 24th of April, 1878; and on the 15th of June, 1875, the said Jewett was also appointed receiver of the said Erie Railway Company in two several actions in which the Farmers’ Loan and Trust1 Company and J. C. Bancroft Davis, defendants herein, were • plaintiffs, respectively, as trustees under several mortgages or trust deeds executed by the said Erie Railway Company. On the 24th of April, 1878, the property and franchises of the Erie Railway Company were sold under the foreclosure of the mortgage held by the Farmers’ Loan and Trust Company, which sale has been confirmed by this court. After the appointment of the receiver, no different agreement was made between the plaintiff and said receiver in relation to occupying and operating the Erie and Genesee Yalley railroad.' The Erie and Genesee Yalley railroad has not been completed to a connection with the Erie railway or any of its branches. The claim for a decree for the specific performance of that part of the contract, or damages for its non-performance, has been waived by the plaintiff on account of the insolvency and dissolution of the Erie Railway Company. The said receiver has refused and neglected to pay the interest accruing on the said bonds since the 1st day of January, 1875, although the plaintiff has demanded payment thereof. On the 1st day of May, 1876, the said receiver was advised by counsel that the Erie and Genesee Yalley Railroad Company had no power to malee said lease to the plaintiff, and that the plaintiff was not capable of receiving the same or the property and franchises therein mentioned, and that he could not transfer the same to the Erie Railway Company; and on or about the same day the receiver communicated the said opinion to the plaintiff, and from that time insisted that he, Jewett, was not liable under said contract.

The trial court held as matter of law that the action was properly-brought by the plaintiff to protect himself against his liability upon his contract with the Erie and Genesee Yalley Railroad Company; that the last mentioned contract, and also that between the plaintiff and the Erie Railway Company, were valid and obligatory upon the parties; that it was the duty of the receiver of the Erie Railway Company, under the several orders appointing him such receiver, to pay the interest upon the said bonds of the Erie and Genesee Yalley Railroad Company by way of rent for the use of the road of said company, as such interest accrued, from any money coming into his hands applicable to the payment of rents under said orders; that if the contract between the plaintiff an 1 the Erie and Genesee Yalley Railroad Company were invalid by reason of the want of powrer in said company to make such contract, yet it having been fully executed by said company, the plaintiff is estopped from asserting such want of power; and he having fully performed his contract with the Erie Railway Company the defendants in this action are estopped from setting up such want of power as a defense to this action, and that the plaintiff is entitled to the judgment herein above stated.

We are of the opinion that the lease from the Erie and Genesee Yalley Railroad Company to Woodruff was void for want of power. It was an attempt by a railroad corporation to transfer to an individual its entire road, properties and franchises for the full unexpired term of its charter. There is no statute in this State authorizing such a transfer. The extent to which the legislature has gone in that direction is to permit one railroad corporation to lease its road to another railroad corporation. That power was given by chapter 218 of the Laws of 1839. The statute referred to, although passed when railroad companies were chartered by special act only, is doubtless applicable to corporations formed under the general acts of 1848 and 1850. It is so recognized by several later enactments. (See Laws 1855, chap. 302; Laws 1864, chap. 582; Laws 1867, chap. 254; Laws 1869, chaps. 237 and 844.) But none of those acts enlarge the power, either expressly or by necessary implication, so as to permit a railroad corporation to lease its road to an individual. The second section of chapter 582 of the Laws of 1861 contains language from which the respondents contend that the power to lease to individuals is to be implied. It provides that “when the railroad of any railroad corporation shall be leased to any other railroad company, or to any person or persons, such lessees shall maintain fences,” etc. It has been held recently by the Court of Appeals that the clause in question does not confer power to lease, but applies only when such power has been conferred. (Abbott v. R. R. Co., 80 N. Y., 21.) And the same case distinctly holds that a railroad corporation organized under the general railroad act has no authority, without the consent of the legislature, to lease its road to an individual. ■

The lease from the Erie and Genesee Valley Railroad Company to Woodruff therefore being ultra vires, it follows that the lease from him to the Erie Railway Company was void, he having no interest in the railroad which he could transfer, and the covenants of the Erie Railway Company therein contained were void for want of consideration, and so far as the contract remains unexecuted neither party can enforce it against the other.

But it has been executed in part, and the Erie Railway Company and the receiver having had possession of the railroad of the Erie and Genesee Valley Railroad Company, with the consent of the latter company, would be estopped from setting up the invalidity of the lease as a defense to a claim by the latter company for compensation for the use of the road. (The Whitney Arms Company v. Barlow and others, 63 N. Y., 62, and cases there cited by Allen, J.)

But it is difficult to see upon what ground the plaintiff Woodruff can invoke such estoppel. The defendants have not had the use of his property. He has parted with nothing thus far, and if he fails in this action he will suffer no wrong at the hands of the defendants. The lease to him being void, his covenant to pay the bonds of the Erie and Genesee Valley Railroad Company is of no binding force. At the most he is only liable to pay for the use of the road during the few days while he had possession of it.

Even if the leases were valid the plaintiff could not maintain this action to compel the Erie Railway Company and its receiver to pay the mortgage bonds or the interest on them. Such action could be maintained only by the holders of the bonds or the trustees of the mortgage. As between the plaintiff and the Erie Railway Company (had the leases been valid) the latter would have become the principal debtor and the plaintiff its surety, and in case of payment by the plaintiff of the debt so assumed, he would have been entitled to subrogation to the rights of the bondholders or of the mortgagees, and for the amount paid he could have maintained an action against his principal. (Marsh v. Pike, 10 Paige, 595 ; Ayers v. Dixon, 78 N. Y., 318.) But the plaintiff has paid nothing. He does not ask even that anything be paid to him, but only that the appellants be required to pay into the Metropolitan National Bank a sum sufficient to meet the interest, for the use of the holders of the bonds, a species of relief to which he is not entitled, and which the holders of the bonds or the mortgage trustees alone can enforce.

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

Talcott, P. J., and Hardin, J., concurred.

So ordered.


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    ADDISON L. JOHNSON, as Administrator, etc., of JOHN F. GUERBER, Deceased, Respondent, v. THE AGRICULTURAL INSURANCE COMPANY, Appellant.

      Evidence — in a civil action, a crwne set up as a defense need not be proved beyond all reasonable doubt.

    Where, in an action upon a policy of insurance against fire, the defense is that the fire was set by the fraudulent act or procurement of the insured, the defendant is not required to adduce evidence of the same quality and degree as would be required to sustain an indictment for arson; it is sufficient if the charge be supported by a preponderance of the evidence, even though such evidence be insufficient to exclude all reasonable doubt.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      Bradley Winslow and J. O. Winslow, for the appellant.

      Huger, Jenney, Brooks c& French, for the respondent.
   Smith, P. J.:

Action upon a policy of insurance upon certain buildings and other property against loss or damage by fire. Of the several defenses set up in the answer, the only one material to notice is that the fire was a fraudulent one. Much evidence was given on the part of the defendant with a view of establishing that defense. Upon that branch of the case the referee found the following facts : “■ The origin of the fire was not proven before me. I find that the fire was not an accidental one, and must have been by the act of some person or persons with the purpose and design of destroying the dwelling-house and barn and other property. It is claimed by the defendant that the fire was a fraudulent one, and that "Wagner, the insured, by his own act or procurement, fired the buildings and burned, by his own hands, the property insured. When the location of the buildings and the circumstances of the fire, as disclosed by the evidence, are considered, serious suspicions are thrown upon the case, and it cannot be said that Wagner ” (the assignor of the plaintiffs intestate) “ is entirely without suspicion. The evidence does not, in my opinion, show beyond a reasonable doubt that Wagner fired the buildings or caused or procured the destruction of the property, and I, therefore, find, as a question of fact, that the fire occurred without the fault of Wagner, or by his procurement, or by the plaintiffs testator.” The referee also held, as matter of law, that to make out and establish the defense of arson set up in the answer, the defendants were bound to produce the same evidence that would be required to convict the insured of arson under an indictment for such offense. I hold that the evidence does not show beyond a reasonable doubt that such a crime was committed by the insured.” These findings were duly excepted to.

Taking the findings together, the conclusion to be drawn from them is that the referee found for the plaintiff upon the ground that the alleged fraudulent burning was not proved beyond a reasonable doubt, even although the evidence may have preponderated in favor of the defense. The question is therefore presented, whether in a civil action where the commission of a crime is set up as a cause of action or a defense, it is incumbent on the party alleging the crime to adduce evidence, not only of the same constituent facts but also of the same quality or degree as would be required to sustain an indictment for tlie same ofíense. In other words, whether the proof must exclude all reasonable doubt, or whether a preponderance of evidence in support of the charge is enough.

In Aeby v. Rapelye (1 Hill, 9), where the defense of usury was interposed to an action on a promissory note, it was said by Judge Cowen that to say that usury must be proved beyond reasonable doubt is substantially the same as saying that the proof must be such as to satisfy the jury of the faetP It can hardly be supposed that the learned judge intended to assert that there is no distinction between civil and criminal trials as to the quantum of evidence required. The distinction is well established. Greenleaf states it thus: “ A distinction is to be noted between civil and criminal cases in respect to the degree of quantity of evidence necessary to justify the jury in finding their verdict for the government. In civil cases their duty is to weigh the evidence carefully and to find for the party in whose favor the evidence preponderates, although it be not free from reasonable doubt. But in criminal trials the party accused is entitled to the benefit of the legal pillkimption in favor of innocence, which, in doubtful cases, is always sufficient to turn the scale in his favor. It is, therefore, a rule of criminal law that the guilt of the accused must be fully proved. Neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt.” (3 Greenl. Ev., § 29.)

We are not aware of any case in which the question has been considered by the court of last resort in this State. The cases of Woodbeck v. Keller (6 Cow., 118); Clark v. Dibble (16 Wend., 601), and Hopkins v. Smith (3 Barb., 599), decided by the Supreme Court, are cited by the respondent’s counsel as sustaining the ruling now under review, but they will be found on examination to fall short of it. Each was an action of slander, for accusing the plaintiff of perjury, and the defendant attempted to justify. In Woodbeek’s case, the question arose whether one witness alone was sufficient to sustain the justification, and it was held that in civil as in criminal cases one witness was not enough, but his testimony must at least be corroborated by independent circumstances. The ruling was followed in the other two cases, and that is the extent of those decisions.

The current of authority in the States where the question has been adjudged is adverse to the ruling of the referee. The cases are numerous and are referred to in Abbott’s Trial Evidence, 495, note 1. It is unnecessary to refer to them more particularly. In the absence of any controlling adjudication upon the subject in this State, we are content to follow.them until the court of last resort •shall lay down a different rule.

For the error above pointed out, the judgment should be reversed and a new trial ordered, costs to abide the event. As suggested on the argument, the new trial may be had before the same referee.

Haedin and Haight, JJ., concurred.

So ordered.


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    THOMAS LARKIN, Appellant, v. SAMUEL C. STEELE, Respondent.

      Taxation of costs by the clerh — his power is spent upon the first application — Order to show cause returnable in less than eight days at a Special Term — cannot be made by a county judge.

    An order having been made at a circuit putting off the trial of the action and requiring the defendant to pay costs, the parties, upon a notice served by the plaintiff, appeared before the clerk who refused to tax the costs claimed by the plaintiff on the ground that his affidavits were defective. Thereafter the plaintiff upon new affidavits and upon notice to the defendant again applied to the clerk for a taxation of his costs.

      Held, that the power of the clerk was exhausted on the first application, and that he had no power to entertain the second application without a special o'rder of the court.
    Under section 780 of the Code of Civil Procedure a county judge cannot make an order, requiring a party to show cause why an application should not be granted, which is returnable in less than eight days at a Special Term of the Supreme Court. An order shortening the term of service can only ,be made by the court before which the order is returnable or a judge thereof, ¡
    Appeal from an order of the Monroe Special Term setting aside the taxation, by the clerk, of the plaintiff's costs, which the defendant was required to pay by the terms of an order made at the circuit, as a condition of putting off the trial of the cause on his application. The order provided “that said cause go over the term, and that the defendant, as a condition, pay to the plaintiff the costs of the term, including his -witnesses fees and disbursements .for this term; and it is ordered that the same be taxed by the clerk upon the usual notice.”

      J. D. Decker, for the appellant.

      Thomas Raines, for the respondent, submits without argument or points.
   Smith, P. J.:

The Special Term held the taxation void on the ground that the clerk had exhausted his power under the order. It appeared that the parties had appeared before the clerk in pursuance of a previous notice served by the plaintiff, for the purpose of attending the taxation of the costs, but on that occasion the plaintiff’s affidavit in 'support of the items for witnesses fees was held by the clerk to be defective and insufficient, by reason of a clerical error in substituting the word “ distances ” for “ residences,” and on that ground he refused to tax the costs. The plaintiff acquiesced in the decision and brought the matter before the clerk by the service of another notice of taxation, and on that occasion the defendant’s attorney objected that the clerk had exhausted his power on the first application, but the clerk overruled the objection and taxed the costs, the plaintiff having then presented a sufficient affidavit. We think the Special Term held correctly that the clerk’s power was spent, and that he could not entertain a second application to tax the costs without a special order of the court. If the plaintiff could harass the defendant with a second application he could continue the process as often as his papers were found defective. The Special Term, in granting the defendant’s motion, very properly authorized the clerk to tax the costs on another application to be made by the plaintiff on notice.

There is another question in the case raised by a preliminary objection taken by the plaintiff. The motion to set aside the taxation was brought on at Special Term upon an ex joarte order to show cause, etc., within less than eight days after the service of the papers, which order was granted by the county judge of Monroe. The plaintiff objected preliminarily that the county judge had no power to make the order, and the objection was overruled. We are inclined to think the objection good. Under section 780 of the Code of Civil Procedure a notice of motion must, in general, be served at least eight days before the time appointed for the hearing, unless “ the court or a judge thereof ” makes an order to show cause, etc., shortening the time. If that section controls, the power is confined to the court in which the action is pending, or a judge of that court. It is understood from the revisers’ notes that that section was intended to have just that effect. (Throop’s Notes of the Revisers’ of the Statutes; Code of Remedial Justice, chaps. 1-13, § 780.) By section 402 of the old Code, the order might be made by “ the court or judge,” and under that section the power was exercised by county judges in actions pending in this court.

It may be suggested that sections 241 and 772 of the new Code give the power in question to county judges. Doubtless, if there were no other provisions on the subject, those sections would have that effect. But we think the true construction is, that those sections, being general in their scope, are controlled by the special provisions of section 780 in respect to orders to show cause. The practice of shortening, by order, the time for serving a notice of motion was introduced.by the Code, as amended in 1851. Before that time it was not known. Under the practice that existed before the Code, motions were required to be noticed for the first day of term by a notice of at least eight days. A shorter notice was not provided for, but notice might be given for a later day in the term, on sufficient cause shown in the affidavits served. (Supreme Court Rules, July, 1847, Rule 56.) As the practice is a creature of the Code, there is the more reason for supposing that it was intended to be regulated by the only section of the Code which specially relates to it, and that if that section apparently conflicts with the general provisions in the preceding sections already referred to, the special enactment is to control. Technically, therefore, the preliminary objection ought to have been sustained ; but it would have been competent for the Special Term while doing so to have retained the motion, as the parties were before it, on such. term? as might have been thought proper.

We think a like disposition of the matter may well be made now, and we reverse so much of the order appealed from as overruled the preliminary objection that the order to show cause was void, and as imposed costs of the motion upon the plaintiff, and affirm the residue of said order, without costs of this appeal to either party, the result being that the taxation appealed from is set aside, and the plaintiff is at liberty to apply to the clerk to tax his costs de novo.

Hardin and Haight, JJ., concurred.

So ordered.


text:
    ALEXANDER M. LOWRY, Appellant, v. WILLIAM H. TEW, Respondent.

      Undertaking given on an appeal from a justice’s judgment — token the condition of it refers to the final determination of the appeal, i. e., the judgment recovered on a new trial.

    The plaintiff having recovered a judgment by default for $150 and costs in a Justices’ Court against one Ross, the latter appealed to the County Court, stating in his notice of appeal that he would move, for a new trial before the same justice, upon affidavits showing that manifest injustice had been done and excusing his default. In order to stay the issue of an execution upon the judgment he procured the defendant to give an undertaking conditioned “that if judgment be rendered against the appellant on said appeal, and execution be returned unsatisfied in whole or in part,” he would pay the amount unsatisfied.
    Upon a new trial ordered by the County Court the plaintiff again recovered a judgment for $148 and costs, which was, upon an appeal taken by Ross, affirmed by the County Court.
    This action was brought upon the undertaking, by the plaintiff, after an execution issued upon the judgment had been returned unsatisfied, and after ten days’ notice had been given to Ross.

      Held, that the defendant’s liability was not terminated by the granting of the new trial, but that the condition of the undertaking referred to the final determination of the appeal and that the plaintiff was entitled to recover.
    Appeal from a judgment, entered upon a decision dismissing the complaint, rendered at the Chautauqua Circuit, on a trial by the court without a jury.

      A. HazelUne, for the appellant.

      II. O. Lakin, for the respondent.
   Smith, P. J.:

The plaintiff herein recovered a judgment for $150 besides costs, in a Justices’ Court, against one Ross, who made default and did not appear before the justice. Ross appealed to the County Court, and in his notice of appeal stated that he would move for a new trial, before the same justice, upon affidavits to be served, showing that manifest injustice had been done and excusing his default. Por the purpose of staying execution, Ross procured the present defendant, Tew, to give an undertaking conditioned that if judgment be rendered against the appellant on said appeal, and execution be returned unsatisfied, in whole or in part,” he would pay the amount unsatisfied. On the hearing of the appeal in the County pourt a new trial was ordered before the same justice, which was thereafter had, and judgment was rendered by the justice against Ross for $148 and costs. Ross appealed from that judgment to the County Court, and it was affirmed, with costs. An execution was issued on the judgment of affirmance and returned unsatisfied, and after ten days’ notice to Ross this action was commenced on the undertaking.

The ground taken by the respondent, and on which it is understood the case was disposed of at the circuit, is- that as the judgment appealed from was not affirmed, but a new trial was granted, the obligation of the undertaking was at an end, and did not extend to the judgment recovered upon the new trial.

That construction we think does not accord with the spirit or letter of the undertaking. The object of the appellant in bringing the appeal was to obtain a new trial before the same justice. The granting of a new trial did not discharge the surety, for until the new trial was had the result of the appeal was undetermined. The judgment recovered upon the new trial, and subsequently affirmed by the County Court, was the judgment rendered on said appeal. In other words, the condition of the undertaking refers to the final determination of the appeal. {Humerton v. Hay, 65 N. Y., 380; Richardson v. Kropf, 47 How. Pr., 286; S. C. affirmed, 60 N. Y., 634; Robinson v. Plimpton, 25 N. Y., 484; Letson v. Dodge, 61 Barb., 125, and cases cited by Johnson, J., p. 128.)

The undertaking was executed in pursuance of the requirement of section 356 of the Code of Procedure. The circumstance that the words on said appeal,” which are not found in the statute, were inserted in the undertaking does not affect its construction. It was said of the like words in Doolittle v. Dininny (31 N. Y., 350, per Davies, J., 353) that “ they in no sense add to or take from the force and effect of the undertaking.” (See, also, Gardner v. Barney, 24 How. Pr., 467.)

The respondent’s counsel cites and relies upon the case of Poppenhusen v. Seeley (41 Barb., 450 ; affirmed, 3 Keyes, 150). That case is clearly distinguishable from this. There the condition of the undertaking was to pay, etc., if the judgment appealed from shoubi he affirmed. The appeal was to the General Term on demurrer, and that court on the hearing ordered that the judgment be affirmed except that the appellant have leave to answer, etc. It was held that the affirmance was not absolute, and that until there was an absolute affirmance the undertaking could not be enforced.

Hinckley v. Kreitz (58 N. Y., 583) is also unlike this case. There an undertaking on appeal to the General Term was conditioned that the appellant will pay “ all costs and damages which may be awarded against him on said appeal.” The General Term having affirmed the judgment appealed from it was held that the liability of the sureties did not extend to the costs of an appeal subsequently taken by their principal to the Court of Appeals. That was a new appeal not covered by the undertaking.

We are of the opinion that the judgment should be reversed and a new trial ordered, costs to abide event.

Hakdin, J., concurred; Haight, J., not sitting.

So ordered.


text:
    SAMUEL B. LUDLOW, Respondent, v. THE CITY OF OSWEGO and JAMES NAVAGH, Appellants.

      Ohapter 311 of 1861 — applies to roads dedicated by the owners, as well as those laid out — it is generad in its operation.

    Chapter 311 of 1861 providing that “ every public highway and private road already laid out and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being so laid out * * * shall cease to be a road for any purpose whatever,” applies to highways or roads dedicated to the public use by the owner of the soil, as well as those laid out by proceedings in invitum.

    The act is general in its operation, and repeals or modifies such provisions of charters of municipal corporations theretofore gx-anted as ai'e inconsistent with it.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      ATbertus Perry, for the appellants.

      Rhodes & Richardson, for the respondent.
   Smith, P. J.:

The action was brought to restrain the defendants from opening and working a public street across the lands of the plaintiff, which street, the defendants alleged, had been dedicated to the public use and accepted by the public authorities. The referee found, as matter of law, that “ as the public authorities neglected to open or work the said street across the plaintiff’s land for more than six years after the enactment of chapter 311 of the Laws of 1861, the locus in qxto became abandoned for the purpose of a street and the authorities lost the right to open or appropriate the same in virtue of such dedication.” The question principally argued is,-whether the act referred to applies to highways or roads dedicated to the public use by the owner of the soil as well as to those laid out by proceedings in invitum, The question is not free from doubt, but we incline to the opinion that the statute does so apply. Before the passage^ of the act of 1861, the statute applied to “laid out” roads exclusively. (1 D. S., 520, § 99.) By the act of 1861, it was amended so as to read “ every public highway and private road already laid out and dedicated to the use of the public that shall not have been opened,” etc. The appellants’ counsel is understood to contend that the amendment makes the statute applicable exclusively to highways laid out by virtue of legal proceedings and dedicated, i. e., “ appropriated ” or “ set apart ” by the public authorities to the public use. But that construction renders useless the words “ and dedicated to the use of the public,” since every public highway is, of necessity, appropriated to the public use. We think the clause is to be interpreted as if it read, “ every highway laid out and every highway dedicated,” etc. The same result is obtained by giving to “ and ” the meaning of “ or,” which may be done in statutes as well as in wills or deeds to carry out the intention. These considerations apply to the second section of the act also, and make it applicable to “dedicated” roads as well as to those “laid out.”

The statute thus amended is general in its operation and Operates as a repeal or modification of the charter of the city of Oswego, so far as it is inconsistent therewith. (See Laws of 1860, chap. 463, tit. 10, § 8.)

Thus far it has been assumed, for the purposes of discussion, that the locus in quo had been dedicated to the use of the public as a sti’eet, and accepted as such by the public authorities. But the findings of the referee, as we understand them, do not wrarrant that assumption. Before the year 1850 a street had been dedicated and mapped by the owner of the land now belonging to the plaintiff, and had been accepted by the public authorities; but that street was forty feet west of the one in dispute and did not include the locus in quo. In 1854 a new map was made of the same lands (by whose direction does not appear) on which the street in dispute is shown. The referee found that the map last mentioned was never adopted by the common council of the city, but has been kept in the office of the city clerk. He also found that the plaintiff, by certain acts, has recognized the map of 1854 as the true map of the locality. Those findings are all there are on the subject, and they are far short of establishing either a dedication or an acceptance of the street as marked on the map of 1854.

The judgment should be affirmed, with costs.

Hardin and Haight, JJ., concurred. .

Judgment affirmed, with costs.


author: Smith, P. J. :

text:
    ALICE DOUGLAS, Plaintiff, v. JOSEPH HABERSTRO, Defendant.
    Sheriff— action to enforce his liability as bail— what irregularities in the executions issued against the debtor he cannot taice advantage of— what affirmative defense cannot be <¡yroved under the general issue.

    The defendant, a sheriff, became liable as bail for one Warren, whom he had arrested, by reason of the failure of Warren’s sureties to justify after they had been excepted to. The plaintiff thereafter recovered a judgment against Warren, and issued executions thereon against his property and body, both of which were returned unsatisfied by a deputy of the defendant. In this action, brought to enforce the defendant’s liability, he set up as a defense that neither of the executions were tested, and that the body execution did not specify the time when it was returnable.

      Held, that these omissions were mere amendable irregularities, and that as the party against whom the executions were issued had not availed himself of them, the sheriff could not now take advantage of them.

      Semble, that as the sheriff had, by his deputy, treated the executions as regular, and acted under and made returns to them, he could not now question their validity.
    Upon the trial the defendant’s counsel offered to prove that the executions were returned by the direction of the plaintiff’s attorney, in order that the service thereof might be prevented. The court excluded the evidence on the ground that the facts so offered to be proved were not set up in the answer.

      Held, that this was proper.
    That sections 14 and 15 of 2 Revised Statutes, 353, permitting a public officer, when sued for an official act, to give special matter in evidence uxxder the general issue is no longer in force.

      Held, further, that the fact that the deputy had returned the executions, at the request and by the direction of the plaintiff’s attorney, before the return days thereof, constituted no defense to the sheriff, in the absence of evidence that the deputy had colluded with the plaintiff’s attorney to defraud him.
    Motion by the defendant for a new trial, on exceptions taken at the Erie Circuit, and ordered to be heard at the General Term in the first instance.

      John Campbell Subbell, for the plaintiff.

      Osgoodby, Titus c& Moot, for the defendant.
   Smith, P. J. :

The plaintiff herein sued one Warren, in tort, and caused him to be arrested. The order of arrest was served by the defendant herein, as sheriff. Warren put in bail, who were excepted to and neglected to justify, and the defendant thereby became liable as bail. The plaintiff recovered judgment against Warren, and issued a property and body execution thereon successively, which were returned by a deputy of the defendant. Nothing was collected, and Warren was not found. The plaintiff then commenced this action against the sheriff to enforce his liability as bail.

It was objected by the defendant’s counsel at the trial, and the point is urged here that the plaintiff failed-to establish the liability of the defendant as bail, for the reason that neither of the executions were tested, and the body execution did not specify the time when it was returnable. The direction in the latter execution, in that regard, was to return the same “ as required by law.” The point is not well taken. Doubtless the executions, to have been regular, should have been tested (Code of Civil Pro., § 23), and the body execution should have been made returnable within sixty days after its receipt by the sheriff (Code Civil Pro., §§ 23, 1366), but the omissions were mere irregularities, which did not render the executions void. It is questionable whether the omission of the test made them even voidable (Code Civil Pro., § 24, last clause), but however that- may be, the irregularities are such as might have been amended (Code Civil Pro., § 723; The Benedict & Burnham Manufacturing Co. v. Thayer, 20 Hun, 547; 21 id., 615), and the party against whom the executions were issued not having availed himself of such defects, the sheriff cannot take advantage of them. (Forsyth v. Campbell, 15 Hun, 235 ; Dunford v. Weaver, 21 id., 349.) Besides, the defendant, as sheriff, having by his deputy treated the executions as regular, and acted under and made returns to them, cannot now be heard to question their validity. {James v. Curley, 48 N. Y., 163.)

The only other question which need be discussed is, whether the court erred in rejecting certain evidence offered by the defendant. The defendant’s counsel offered to prove that the executions -were ■ returned by the direction of the plaintiff’s attorney, in order that' the service thereof might be prevented. The plaintiff’s counsel objected that the proof was not admissible under the answer, and the court so held. When that ruling was made, the answer, as we understand the case, contained no averment of the matters so offered to be proved, and the only question was whether they were admissible under a specific or general denial. That they were not admissible is clear. They constituted or tended to constitute an affirmative defense, which could not be proved unless pleaded. The provision of the Revised Statutes, permitting a public officer, when sued for an official act, to give special matter in evidence under the general issue (2 R. S., 353, §§ 14, 15), is. no longer in force. Mr. Justice Grover said, in Richtmeyer v. Remsen (38 N. Y., 206, 208), that it was repealed by the Code of Procedure. If that Code left it in force for any purpose, it was expressly repealed in 1877, before this action was commenced. (Laws 1877, chap. 417, § 1, part 3, subd. 5.)

After the ruling above stated had been made, the court permitted the defendant to amend his answer, as we read the case, by adding to it a defense in these words : The defendant alleges that each of the alleged executions set forth in the complaint was returned by the under-sheriff and deputies of the sheriff of Erie county having the same in charge, at the request and by the direction of the attorney of the plaintiff in said executions and this action, without the knowledge, privity or consent of defendant, and defendant denies that said executions were duly issued or duly returned as set forth in said complaint. And this defendant alleges, upon information and belief, that said plaintiff’s attorney in the executions and this action requested and directed said executions to be so returned that he might commence this action against defendant, and that, in form, the law might seem to be complied with, and that said returns were made at the request and by the direction of said plaintiff’s attorney in said executions and this action, as herein stated, and not otherwise.” After the answer was so amended the defendant’s counsel made several offers of evidence, none of which need be considered, except the offer to prove the facts alleged in such answer. Although that particular offer does not appear to have been acted upon in any way at the trial, we gather from the case, and especially from that part of it which immediately precedes the offer, that the trial judge ruled that the third or amended answer did not constitute a defense. Was that ruling error ?

It is provided by section 599 of the Code of Civil Procedure that, in an action against bail, it is a defense that a direction was given, or other fraudulent or collusive means were used by the plaintiff or his attorney to prevent the service of an execution against the property or against the person of the defendant in the original action. The amended answer was evidently drawn with a view of presenting a defense under that section, but it failed to do so. The gist of the defense described in the section is the fraud practiced by the plaintiff in the execution upon the bail. But no fraud upon the sheriff is alleged in the answer, nor could there have been any in view of the facts alleged, since he was a party to the transaction, by his under-sheriff or deputy, whose official act was his own. If the deputy had colluded with the plaintiff or his attorney to defraud the sheriff, a different case would have been presented, but that is not averred. The return of the execution by the deputy or under-sheriff, before the return day, was the act of the sheriff, and was entirely voluntary on his part, for aught that is alleged in the answer, and it constitutes no defense either under the statute or independently of it. The offer was properly excluded.

All the other offers, to which reference has been made, either fell short of the allegations in the amended answer or exceeded them, and, in either case, were inadmissible,

The motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict.

Hardin and Haight, JJ., concurred.

So ordered.


author: Hardin, J.:

text:
    PHILIP LEVIN, Appellant, v. JACOB L. HAAS and JOHN W. KLEIN, Respondents. PHILIP LEVIN, Appellant, v. JOSEPH L. HABERSTRO, Respondent.

      Severance of action— when hut one hill of costs can he taxed.

    In an action brought against the indorser and makers of a promissory note, the latter, having omitted to answer, the plaintiff caused the entry of an order by the clerk severing the action, and entered a judgment against the makers. Subsequently the makers were allowed to answer, the judgment to stand, as security until the final determination of the action. Thereafter both the makers and the indorser withdrew, by stipulation, their answers, and a judgment was entered against them.

      Held, that the plaintiff could tax but one hill of costs.
    Appeal by the plaintiff from an order made at the Erie Special Term, upon an appeal from a taxation of costs in each of the above entitled actions. The plaintiff brought an action against the makers and indorser upon a promissory note, by a summons served personally upon all the defendants except Cohen.
    Haherstro, the indorser of the note in suit, put in an answer. Haas and Klein, the makers, omitted to put in an answer, and judgment wás entered against them September 11, 1878. After Haberstro had answered, an application was made by Haas and Klein for leave to answer, and it was granted upon terms which directed that the judgment stand as security until the final determination of the action. "When the original judgment against the makers was entered, an order was- entered allowing the action to proceed against the other defendant, and for that purpose the action was severed.
    In January, 1881, the answer of Haas and Klein was, by stipulation, withdrawn, and judgment entered ; and a like stipulation for judgment was given by Ilaberstro. It does not appear that the stipulations determined whether there should be one or two bills of costs taxed, “ the parties differing as to whether the plaintiff was entitled to ” two bills of costs.

      The clerk allowed two bills, and the Special Term, set aside the taxation, and allowed one bill of costs to be taxed and all disbursements.

      Osgoodby cfc Moot, for the appellant.

      J. H. Kennedy, for Haas and Klein, respondents.

      B. O. Titus, for Haberstro, respondent.
   Hardin, J.:

Action against the makers and indorser was proper, and it was allowable to join such parties. (Code of Civil Pro., § 454.) Section 456 provides that when any such parties make default the plaintiffs may “ take judgment against one or more of them, where he would be entitled to judgment, if the action was against him or them alone.”

Then follows a provision for a continuance of the action against the “ other defendants.” An order is to be entered by the clerk “upon the plaintiff’s application.”

Such an order we understand was entered in this case while the defendants Haas and Klein were in default, and when judgment was taken against them. "When their default was opened and they allowed to defend the efficacy of such order was taken away. The action then became one provided for by section 454, and to all intents and purposes was such an action as the plaintiff by that section was authorized to bring against all persons liable upon the instrument in suit. (Freiot v. Adams, 3 How., 138; Pratt v. Allen, 19 How., 450.)

Being such an action, so provided for by section 454, the prohibition of section 3231 applies, and costs other than disbursements cannot be recovered upon the final judgment by the plaintiff in more than one action.

Nor does this case come within section 499 of the Code of Civil Procedure; nor within section 511 of the Code of Civil Procedure ; nor within the provisions of section 1220 of the Code of Civil Procedure.

"We are of the opinion that the Special Term properly decided the question presented, and must therefore affirm its order, with ten dollars costs and disbursements.

Smith, P. J., concurred; IIaigi-it, J., not sitting.

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