author: Davis, P. J.: Barrett, J.,

text:
    JAMES VAN SCHOONHOVEN, Appellant, v. EDMUND J. CURLEY and WILLIAM A. BRYCE, Respondents.

      Warehouse receipt — duty of one purchasing it — when the purchaser is charged with notice that the article must hare been removed from the warehouse.

    Between the 9th ¡pid 13th of March, 1875, the defendants deposited fifty barrels of whiskey in a United States bonded warehouse, belonging to them, in Kentucky. Thereafter they issued a warehouse receipt, dated January 25, 1876, stating that the whiskey was made in March, 1875, and that it was received into the warehouse to be held by the defendants — ‘‘on storage and for account of and subject to the order of Messrs. James Grill & Co., New Yqrk, and deliverable only after payment in cash of short price, and of the U. S. government tax and storage on said whiskey, and the written order of the holder of this receipt on the return of this receipt to us.”
    On the back of the receipt was printed a law of the State of Kentucky providing that all warehouse receipts should be negotiable and transferable by indorsement, with like liability as bills of exchange, and forbidding any warehouseman from selling, incumbering, shipping, transferring or in any manner removing beyond his immediate control, any property for which a receipt had been given, “without the written consent .of the person or persons holding such receipt, and the production of the receipt.”
    Thereafter, the defendants paid the tax upon the whiskey, withdrew it from the warehouse, and shipped it, on or about April 15, 1876, to Gill & Co., who received it about the 1st of May following, and refunded to the defendants the tax paid by them. On June 21, 187C-, James Gill, one of the said firm, transferred the 'said warehouse receipt to the plaintiff, who received it in good faith and paid full value therefor, receiving at the same time from Gill & Co. a bill of sale of the whiskey and an order directing the defendants to deliver the same to him.
    In this action,' brought by the plaintiff against (lie defendants, upon the said receipt, Held, that as the United States Revised Statutes require that within one year from the date of its deposit, the duties upon all whiskey deposited in a bonded warehouse must be paid, and the whiskey immediately removed, under penalty of its forfeiture, the plaintiff had notice, from the receipt itself, that at the time he took it the whiskey must have been removed from the warehouse or forfeited to the government.
    That he was guilty of negligence in purchasing the receipt from Gill & Co., without making inquiry of the defendants as to the present condition of the whiskey.
    That he was not entitled to recover. (Barrett, J., dissented.)
    Appeal from a judgment in favor of the defendants, entered upon an order dismissing'tlte complaint made at a Circuit.

      S. JB. Brownell, for tbe appellant.

      W. A. Beaoh, for tbe respondent.
   Davis, P. J.:

The fifty barrels of whiskey, for which the receipt, upon which this action is based, was given, were manufactured by the respondent in March, 1875. Between March 9 and 13, they were removed into the distillery bonded warehouse of the respondent,, in the seventh district of Kentucky, and on or about April 1, following, they were entered for deposit in said distillery warehouse, in the manner and form required by section 3293 of the United States Revised Statutes. While they remained in that condition, the respondents issued their warehouse receipt, dated January 25, 1876, by the terms of which fifty barrels blue grass Bourbon whiskey, made in the month of March, 1875, containing two hundred and sixty-eight and six-tenths proof gallons, were stated to be received in the distillery bonded warehouse of E. J. Curley & Co., No. 3, Seventh District of Kentucky, to be held by the respondents, “ On storage, and for account of and subject to the order of Messrs. James G-ill & Co., New York, and deliverable only after payment in cash of short price, and of the United States government tax and storage on said whiskey, and on the written order of the holder of this receipt on the return of this receipt to’ us.”

Upon this receipt was indorsed an act of the State of Kentucky in relation to warehouse receipts; section 3 of which act provides that:

“ All receipts issued by any warehouseman, as provided by this act, shall be negotiable and transferable by indorsement in blank, or by special indorsement, and with like liability as bills of exchange now are, and with like remedy thereon.”

Section 7 of the same act provides:

“ That no warehouseman or other person shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control any goods,'wares, merchandise, produce, commodity, property or chattel, for which a receipt or voucher shall have been given, without the written consent of the person or persons holding such receipt, and the production of the receipt.”

And section 8 provides severe penalties, by indictment and civil remedies,-against any person issuing sucb receipt, wbo shall violate any one or any part of the provisions of the act.

It appeared, in proof, that the whiskey was withdrawn from the distillery bonded warehouse by the respondents, and the internal revenue tax thereon, amounting to $2,038.50, was’ paid by them, and tbe same was refunded to them by Gill & Co., on April 24, 1876, with exchange and withdrawal fee amounting to $2,044.60.

On or about April 15, said fifty barrels of whiskey were shipped by the respondents from Camp Nelson to James Gill & Co. at New York, and were received by them about May 1,1876. Afterwards, and on June 21, 1876, the appellant received from James Gill, one of the firm of James Gill & Co., the said warehouse receipt, and paid full value therefor by his cheek, and by the surrender of an acceptance which he held against Gill & Co. At the same time Gill & Co. delivered to him an order directed to the respondents, to deliver to the appellant the said fifty barrels of whiskey, and a bill of sale of the whiskey, describing it, and acknowledging payment therefor. In September following, the appellant demanded the whiskey from one of the respondents, who answered that he could not deliver it, as he had already delivered it to Gill & Co. Upon which state of facts the court below dismissed the appellant’s complaint, holding that the respondents were not liable to him upon the said receipt.

An examination of the provisions of the United States Revised Statutes relating to whiskey deposited in distillery bonded warehouses shows that such whiskey must be withdrawn and duties paid thereon within one year of the date of the bond given upon the.entry on deposit, and that upon the payment of the taxes accrued according to the condition of the bond; the whiskey must be immediately removed under penalty of the forfeiture of the same. . (U. S. Rev. Stat., §§ 3271, 32S7, 3288, 3293.)

The receipt on its face showed that the whiskey in question was' made in March, 1875, and was entered for deposit in April following, and was subject to the provisions of the internal revenue laws of the United States applicable to such property when entered for deposit in distillery bonded warehouses. It'is claimed that it was therefore notice to the appellant that the whiskey described in the receipt must be removed on or before April 6, 1876 ; and that at the time the receipt was transferred to him the whiskey must either have been removed from the warehouse or forfeited to the government ; and that this notice put him upon such inquiry that he is not entitled to fall back upon the provisions of the statute of Kentucky in respect to warehouse receipts, above referred to, and hold the respondents to the liabilities. therein imposed. It was upon this view of the rights of the appellant, that the court below dismissed the complaint.

It is an established rule of law that where a purchaser of negotiable paper, even for full value, has notice of facts which put him upon inquiry, he is bound to make such inquiry; or, failing to do so, his rights are subject to the effect of such facts as inquiry would have developed. Applying this principle to the case in hand, in connection with the notice which the provisions of the 77. S. Revised Statutes must be held to have given to the appellant, to wit, that the whiskey had either been withdrawn on payment of taxes, or must have been forfeited to the government, we can hardly fail to see that the appellant was guilty of negligence in purchasing the receipt of Gill & Co., without making inquiry of the respondents as to the then present condition of the whiskey. He must, in other words, be held to have known that the whiskey was not remaining, and could not be remaining, in the bonded warehouse named in the receipt, as the property of the respondents, or of Gill & Co., but that some other disposition must have been made to have prevented its forfeiture. To this fact we think he had no right to shut his eyes, and rely upon the provisions of the statute of Kentucky, which, as is conceded by both parties, would be the law of the case, if not affected by the laws of the United States. Undoubtedly, were it not for the provisions of the laws of the United States, which must be held piro lanio to modify the statute of Kentucky, the appellant would be entitled to enforce the liabilities imposed by the last named statute.

Upon the facts as they appear, a gross fraud was perpetrated upon the appellant, by James Gill & Co., and it is insisted on his part that the respondents, by their negligence in not requiring the surrender of the warehouse receipts at the time of shipping the goods to James Gill & Co., liad armed that firm with power to perpetrate such fraud upon an innocent purchaser, and therefore should be held responsible for the consequences. There would be great force in this position, if it were not for the fact that the receipt boars upon its face a condition of things which necessarily put a purchaser upon inquiry as above suggested, and inquiry of the defendants would have disclosed that the receipt had been exhausted by the actual delivery of the whiskey to Gill & Co. It'cannot, therefore, be said that the respondents ought legally to be held liablo for the fraud of Gill & Co., inasmuch as the injury-caused hv that fraud is chargeable to the neglect of the appellant in not making inquiry as to the then place of deposit, or whereabouts of the whiskey, before purchasing. The maxim volenti non fit injuria seems to us to be applicable to the case; and it would follow that the court below was correct in dismissing the complaint.

The judgment must therefore be affirmed.

Brady, J., concurred.

Barrett, J.,

dissenting:

I feel constrained to differ with my brethren in this case. In my judgment, there was nothing upon the face of the warehouse receipt to put the plaintiffs upon inquiry. It is true that such receipt, read, and properly so, in connection with the United States statute, was notice that the tax must be paid, and the whiskey removed within the year. "With such notice the plaintiffs were properly chargeable, but what was its effect ? Not that, the tax had been paid, and the whiskey removed by Gill & Go., for they were in possession of the receipt. Necessarily, in view of the latter fact, the notice was either that the whiskey had been forfeited — as to which it may be said plaintiffs took their risk — or that it had been withdrawn by the defendants. This is what any prudent business man would have supposed under the circumstances. Surely the plaintiffs were not put upon inquiry as to whether the defendants, after paying the tax and withdrawing the whiskey, had converted the latter to their own use, or thrown it away. They bad a right to rely upon the Kentucky statute, in subordination, of course, to that of the United States, but as governing after compliance with the latter. There was really nothing, in this view, to inquire of the defendants about. Their receipt covered the case. It said quite plainly to the innocent vendee, “ we still hold the whiskey, not in our bonded warehouses (because of the United States statute), but elsewhere, in our lawful possession (because of the Kentucky statute and our duty under,this receipt). We so hold it as warehousemen, subject to our lien for storage, &c., and deliverable onfo/ upon the return of this receipt to us after payment in cash of such storage, as well as of the tax which we have' paid, and short price.” I think there should be a new trial.

. Judgment affirmed.


source: Caselaw Access Project

author: Beady, J. : BaRkett, J.:

license: Public Domain

text:
    WILLIAM ALLEN BUTLER, Respondent, v. EUGENE FINCK, Appelllannt.

      Partnership — where the question as to whether or not one existed should be left with the jury — liability of one partner for the tortious acts of his copartner.

    About January 1, 1878, the defendant entered into an agreement with his brother-in-law, William A. Bushnell, to the effect that he should conduct certain stock speculations for Bushnell’s benefit, collecting information of such a character as to justify the purchase of stocks, and giving his time and attention to the purchase and sale thereof; for these services^he was to receive one-third of the net profits; the margin to carry the account being-furnished by Bushnell. The defendant knew that Bushnell was a bookkeeper in the employment of the plaintiff, and had no means outside of his • sálary. On April 08, 1879, the defendant, claiming that his share of the profits amounted to $6,818.48, received from Bushnell an order upon his broker for that sum, which was paid by the drawee.
    On June 8, bonds from the plaintiff, and pledged them to secure his account with the broker, by whom some had been sold and others pledged. It appeared that the sum received by the defendant.was iu fact one-third of the profits actually made by him while conducting the account, and also that Bushnell had, without his knowledge, speculated on his own account, both before and after the times referred to. It was not shown that the defendant knew that Bushnell had stolen the bonds until after he had absconded. The defendant having refused to account to the plaintiff for the amounts received by him, this action was brought to recover damages for the eonversion of the bonds, and upon the trial thereof the .court directed a verdict for the plaintiff, for the entire amount lost by the abstraction of the bonds, on the theory that the defendant and Bushnell were copartners in the transaction, and that the former was therefore liable for the acts of the latter.
    error, question as to whether or not a partnership existed between Bushnell and the defendant, should have been submitted to the jury.
    was for the amount actually received by him from Bushnell.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict' directed at the Circuit.

      A. S. Sullivan, for the appellant.

      T. II IhiUbard, for the respondent.
   Beady, J. :

The defendant was charged with the conversion of certain railroad bonds that had been stolen from the plaintiff. When the testimony was given on either side, the court, on application, directed a verdict in favor of the plaintiff for $28,894.83, and judgment was thereupon entered.

■ It. appéared in evidence that about January 1, 1878, the defendant made an agreement with Ids brother-in-law, William A. Bushnell, at the request of -the latter, to conduct certain stock speculations, for which he was to receive, as payment for his services, one-third of the profits. The defendant knew that Bushnell was a bookkeeper in the plaintiff’s employment, and that he had no independent means, but lived upon a salary winch he drew from the employment mentioned. The agreement made between the defendant and Bushnell, in substance was, that the former should get information, which, by its character, would justify the purchase of stocks, and that lie was to give his attention to the purchase and sale thereof, thus agreeing to manage the stock account for his benefit and that of Bushnell, the latter furnishing the margin; this agreement was carried out by both parties until April 23, 1879, when the defendant claimed, as his share of the profits, and received from Bushnell, through his broker, the sum of $6,818.48; the margins furnished by Bushnell under the agreement mentioned were bonds wbicb be abstracted from tbe safe or place where they were deposited in the office in which he was employed, but of that the defendant does not seem to have been advised until June 8, and after Bushnell had absconded. On June 28, the defendant was met by the plaintiff, and the latter, ref erring to the fact that Bushnell had taken his bonds and used them as a margin, asked the defendant to account for the moneys he had received. The defendant refused to do this, but asserted that the money was his share of the profits on the stock transactions; and he kept this money, and declined to talk with the plaintiff about it, but referred the plaintiff to his attorney. It also appears that when the $6,818.48 was paid to the defendant, he did not ask what it came out of, and did not know how much there was in the account he had been managing. It further appears, however, that this sum was one-third of the ' profits actually made in the transactions which he alone conducted, and was agreed upon between himself and Bushnell after the latter’s examination of the accounts. - It also appears that Bushnell was also dealing in stocks upon his individual account, without reference to the joint account, the management of which was left to the defendant, and for which he was to receive the -compensation mentioned. The defendant swears positively that the sum received by him ' was one-third of the profits made by his services when he ceased to ' manage the joint.account. And this is not contradicted. Thus it appears that so far as the use of the margin is concerned, it resulted in a profit, and it could not have been necessary, therefore, to have drawn upon the principal employed in the operations which he conducted.

The learned justice in the court below, directed a verdict for the jfiaintiff, on the assumption that they were copartners in the transaction, and that the defendant was responsible under the case of the Manhattan Brass Manufacturing Company v. Sears (45 N. Y., 797), not only for the amount that he received, but for the entire ' amount which was lost by the abstraction of the bonds, the plaintiff having been obliged to defray large sums of money to recover pos- ' session of them. The decision just mentioned seems to establish the ’ doctrine that a joint proceeding in which one or more of the parties is to receive a portion of the profits constitutes-a partnership, not ■only mter sese but as to strangers, and establishes the habihty of each of the persons united together, for the debts which are incurred in the prosecution of the joint enterprise. But of the cases rehed upon to sustain this doctrine it may be said that there has been no question as to the existence of the copartnership, and the result of the unlawful acts has been brought into and used by the firm; and it generally appears that the assets of the firm were not sufficient to reach the claims of its various creditors.

In this case it is not asserted affirmatively, whatever circumstances may exist tending to show it, that the defendant knew of the manner in which Bushnell obtained the margin. He swears positively that he did not know it; and if there were any reason for beheving otherwise, a question of fact was presented for the determination of the jury. It may very well be that, considering his relations to Bushnell, who was his brother-in-law, and the nature of his employment, comparatively humble as it was, that he ought to have made inquiry as to the mode in which he obtained .the margin, and not to have accepted BushnelTs statement on that subject as entirely satisfactory. But whether he was put upon inquiry was a circumstance bearing upon the issue just suggested, namely, whether he knew or had reason to believe that Bushnell could not have honestly acquired the margin which he was using.

This was a very important element in the case, for the reason that the defendant swore positively that his transactions were all profitable and that the money which he had received was his interest in the profits actually made. As the joint transactions were prosperous, there would seem to have been no claim upon him for anything more than tile sum which was paid to Mm out of the property of the plaintiff, namely $6,818.48, with interest; because the balance claimed by the plaintiff was the result of ■ individual operations by Bushnell for his benefit alone, having no connection with the joint transaction. It is very clear that, assuming the copartnership to have existed in all respects, the defendant was not liable for the individual acts, or debts, or frauds of Bushnell, perpetrated or incurred for his own benefit. The rule in that resjject is too well settled to require any citation of authorities. "While the interest of a partner in the assets of a firm may be reached by a process against Mm to recover debts contracted by Mm individually, the members of the copartnership are not responsible unless they have in some way ratified Ms act, or assumed the indebtedness which he has incurred. Assuming, therefore, that the bonds of the plaintiff were stolen; that they were used for the joint benefit of Bushnell and the defendant, and the individual benefit of Bushnell, and that the joint transactions were not only-not attended with loss, but in the aggregate were decidedly successful, it is impossible to understand, on any sustainable theory that tliis case presents, why the defendant should be called upon to pay the loss resulting to the. plaintiff from the abstraction of the bonds. If the statement of the defendant was true, and it was right to have that considered by the jury, then his connection with Bushnell, and their joint relations to the bonds, was of no prejudice whatever to the plaintiff, for the reason that his operations on joint account were successful and resulted in a large profit.

It is impossible for us to conjecture what testimony would be given upon a new trial. But we do not entertain any doubt that, under the circumstances disclosed, the defendant would be bound to restore to the plaintiff the money received by him, and which was paid out of the property of the plaintiff. That it was paid out of that property, there does not seem to exist any doubt, inasmuch as it is quite clear that Bushnell, by Ms individual, operations, had exhausted the funds in the hands of the broker by a very great extent.

All the circumstances being considered, and the relations of the parties to each other kept in view., we do. not see how it is possible to avoid a new trial in this case. .

The judgment must be reversed, and a bow trial ordered, with costs to abide the event. . -

BaRkett, J.:

I concur in the opinion that there should be a new trial in this case. The verdict was directed upon the mistaken assumption that a partnership between Bushnell and the defendant was conclusively established. In my judgment, there was, to say the least, a question of fact upon that head to be submitted to the jury with appropriate instructions. The defendant had no interest whatever in, the capital of the adventure. He contributed nothing thereto but his services, for which, he says, Bushnell stipulated to pay bim one-third of • whatever profits might be made. If the defendant’s testimony be true, there would seem to have, been no joint .ownership of the shares which were bought and sold. . The jury might have concluded, upon the whole case, that there was.no partnership, but simply an agency. . The case, in the j>articulars indicated, is distinguishable from Manhattan Brass & Manufacturing Co. v. Sears (45 N. Y., 797), where there was not only a sharing in the profits as such, but a common interest in the stock of the company. It is more analogous to that class of cases where quasi partnership interests are given to superior clerics and valuable agents. There the principal (whether a firm or an individual) agrees to pay such clerk or agent for his services a certain proportion of the net profits, or a sum equivalent thereto. It is well settled that such an agreement does not constitute the clerk or agent a partner either inter sese, or as to creditors.

By the direction of the verdict, the defendant was held to the strictest partnership liability. That is, he was mulcted solely for Bushnell’s tort, without regard to his own innocence or guilt, knowledge or want of knowledge, or the existence of circumstances putting him upon inquiry. It follows, that if the partnership or joint adventure was not conclusively established there should.be a new trial. Nor can the direction be upheld upon the agency basis. The defendant exercised no control over the plaintiff's property. Bushnell placed the stolen bonds in the broker’s hands, as security against depreciation or appreciation, as the case" might be. "With this, the defendant had nothing to- do. He did not even know of what the security consisted. All he did was to give 'the brokers orders to buy and to sell. Such orders involved no intermeddling on his part with the collaterals. "Whether- there was any, and, if so, what margin, was a matter entirely" between the broker and Bushnell. The defendant simply operated upon the basis that the broker was willing (in. consequence of some arrangement with Bushnell) to execute his, defendant's, orders, on Bushnell’s account.

- There is one point as to which I prefer to -reserve my deliberate judgment until the question is directly presented. That is, as to the plaintiffs right, at all events, to recover wbat was actually received by the defendant for his one-third of the profits. I cannot think that this question is so entirely free from doubt as it seems to be to my brother Beady.

There was a sum of money due to the defendant by Bnshnell, which the latter paid by an order on his broker. At least, that is one view of it. It is, in my judgment, questionable whether the defendant, if innocent, chargeable with no notice, or not otherwise, put upon inquiry, is responsible for the means resorted to by the broker to raise the money wherewith to honor the order. That may well be roserved until all the facts are before the court upon a new trial.

Davis, P. J., concurred.

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


author: Beady, J.: Barrett, J.:

text:
    EZEKIEL J. DONNELL, Respondent, v. GEORGE W. WILLIAMS AND WILLIAM BIRNIE, Appellants. ROBERT H. ROUNTREE, and others, Respondents, v. GEORGE W. WILLIAMS and WILLIAM BIRNIE, Appellants.

      Attachment against firm, properly — ceases to be a lien vpon it, if all tl'.e partners are not served — what, an affidavit for an attachment must state — Code of Civil Procedure, § 636.
    Where, in an action brought against a firm, consisting of two members, an attachment is issued, and thereafter one of the partners is personally served with the summons, but the other is not, nor are proceedings to serve him therewith by publication commenced within the thirty days required by the statute, the attachment ceases to be a lien upon the firm property.
    The failure to state, in an affidavit, upon which an application for an attachment is made, that the plaintiff is entitled to recover the sum specified therein, over and above all counter-claims'known to him, as required by section 636 of the Code of Civil Procedure, renders the attachment void ab initio.

      Appeal from an order denying a motion to vacate an attachment issued in tbe first of tbe above entitled actions.
    The respondent, Donnell, commenced his action against the defendants, Williams & Birnie, as copartners, to recover a debt due from them, by the service of a summons personally on the defendant Birnie. Thereafter he procured a warrant of attachment against the property of the defendants as non-residents, under which copartnership funds belonging to the defendants were attached by the sheriff. The summons was never served upon the defendant Williams, either personally or by publication.
    The appellant, Bountree, afterwards procured an attachment against the defendants as non-residents.
    Judgment was thereafter duly entered in the first action in favor of Donnell against the defendants, Williams & Birnie, and an execution against their copartnership property was issued.
    Thereupon the appellant moved to vacate Donnell’s attachment, and from the order denying this motion this appeal was talren.

      J. A. Bhoudy, for the appellant.

      F. J. Dujpignao, for the respondent.
   Beady, J.:

The plaintiff Donnell procured an attachment upon an affidavit which omitted to state that the amount which he claimed was due over and above all counter-claims known to him; and the error, though inferentially, was not directly corrected by any positive averment subsequently made. Both of the defendants were nonresidents. The one upon whom personal service in the action was made appeared, but interposed no defense; the other was not personally served with process, and publication 'was not made within the thirty days required by the statute. The attachment issued at the suit of Bountree was also against both defendants, one of whom appeared but interposed no defense, and the other, Williams, was duly proceeded against by advertisement according to law.

The application to discharge the attachment granted at the instance of Donnell was founded therefore upon the invalidity of the attachment, and chiefly upon the ground of the omission already stated. The effect of the non-publication required as to Williams in the attachment obtained by Donnell left that process effective only against the defendant Birnie ; and without passing upon the question whether, even as to him, it was not invalid by reason of the omission mentioned, and assuming the contrary, it reached only his individual interest in the copartnership property, and the firm having been insolvent at the time the attachment was issued, that interest amounted to nothing. This result has been distinctly declared, in the case of Staats v. Bristow (73 N. Y., 264).

The learned justice in deciding this motion in the court below was under the impression that the case quoted was one brought against one member of a copartnership for his individual debt, but this was erroneous. It was brought against the firm of which the.person proceeded against by attachment was a member. Applying the rule stated, the attachment issued on behalf of Donnell did not affect the partnership property, and none of the partnership assets therefore wore covered by it; and its application to that property was not secured by virtue of any lien acquired by the attachment issued. It is not so, however, with the attachment issued by the plaintiff Rountree and others, because it was perfected as to both defendants, and therefore was effectual as a lien upon their property jointly, because the individual rights of each as to the partnership assets were affected by it. The result of these considerations is, that the attachment issued upon the application of Donnell should be discharged because no lien had been acquired by it, so that full force and effect should bo given to the attachment obtained by Rountree and others, and an apparent obstacle to their lien removed.

The order appealed from should be reversed.

Barrett, J.:

I concur in the result, but upon other grounds than those stated by Mr. Justice Brady. I agree with him that the effect of non-publication was to destroy the attachment as to Williams, and that the cause proceeded thenceforward precisely as though the attachment bad originally issued against Birnie alone. That brought the case distinctly within Staats v. Bristow (73 N. Y., 264), namely, a suit pending against the firm with an attachment therein against but one of its members.

But, were the case free from other difficulties, the plaintiff, Donnell, would be entitled to retain his attachment as to Burnie for whatever it was worth, and we could not discharge it absolutely merely because no lien upon the firm property had been thereby acquired.. "We might set it aside as against Williams, and leave the law to tahe its course.

But I think Donnell’s attachment was bad ah , because of the failure to comply with section 636'of the Code of Civil Procedure, in omitting to state that the plaintiff was entitled to recover the sum specified over and above all counter-claims known to him. This provision was new, and was undoubtedly intended as a safeguard against the wrongful and oppressive use of this remedy, in cases where the plaintiff, though having a cause of action against the defendants, knows very well that the latter has a counter-claim equal to the demand or some part of it. This was a matter of substance, and could not be disregarded. It was a pre-requisite to the granting of the attachment.

Upon this ground, I think the order shóuld be reversed and the Donnell attachment vacated.

Davis, P. J., concurred with Babeett, J.

Order reversed.


author: Baebett, J.: Beady, J.,

text:
    JOHN H. BONN, Plaintiff, v. ERNEST STEIGER, Defendant.

      Action for an accounting in equity — when the court will allow damages for a failure of the defendant to perform the contract to be recovered on — when the findings of the court should follow the allegations of the complaint.

    On December 31, 1871, the plaintiff and the defendant entered into a written agreement, by which the latter was made the sole general agent for the sale of an encyclopedia, then being published by the plaintiff, upon the terms therein specified, the defendant agreeing that, after its completion he would “ take on an average at least one thousand copies of the entire work annually until the expiration of this agreement.” Subsequently, a verbal agreement was made by which the defendant agreed to print the work, the plaintiff simply furnishing the manuscript on plates, ready for the press. .
    This action was brought by the plaintiff to compel the defendant to account for the books printed and sold by him under the contract, the -plaintiff alleging that the number of tile books so printed and sold was unknown to him, and also to compel him to pay the agreed price for at least one thousand copies a year, though the number actually sold might have been less than that number.
    The court directed an interlocutory judgment for an accounting to be entered, but refused to allow the plaintiff to recover in this action for a failure of the defendant to take the number of copies specified in the agreement.

      Held, that this was error; that the plaintiff was entitled, as an incident to the accounting, to charge the defendant in this action with the number of copies he had agreed to take. (Beady, J., dissenting.)
    When an action is tried before the court without a jury, upon an admission that the allegations of the complaint are true, and no evidence is given by either party, the findings of the court should not deviate from the allegations of the complaint, either affirmatively or negatively.
    MotioN for a new trial, by tbo plaintiff, after the entry of an interlocutory judgment lierein.
    This was an equitable action for an accounting, and for other relief connected therewith, growing out of a written agreement entered into between the plaintiff and the defendant on December, 21, 1871, and a subsequent oral agreement concerning the printing, agency and sale of a German-American Cyclopedia called “ Deutsch-Americanisches Conversations Lexicon,” which was then being published in numbers by the plaintiff.
    By the written agreement the defendant was made the sole general agent for the sale of the Lexicon; the selling price of each number and volume and the amount to be paid to the plaintiff being fixed thereby. It contained among others the following clause :
    “E. Steiger to take at least five thousand copies altogether of each number of the work, published in the year 1872 (provided that from accurate and complete lists of subscribers, agents, canvassers and other purchasers of the work, which lists J. H. Bonn agrees to furnish, it appears that no less than five thousand and five hundred copies are being Iona fide sold at present, that is, of the fifth volume), and to take at least six thousand copies of each number of tbe wort, published after tbe first of January, 1813, until its completion, and thereafter to take on an average at least one thousand copies of the entire work annually until the expiration of this agreement.” It further provided, among other things, that the defendant should pay on the 5th and 20th days of each month for all stock ordered-and-received since the preceding settlement, and should pay for all advertising and other expenses incurred by him for furthering the sale of the work; that the plaintiff should furnish to the defendant the supply needed of the edition in numbers at or before the regular publication days, to wit, the 1st and 15th days of every month; that the defendant should have the control of every matter pertaining to the sale of the work, and that ho or his successors in business should retain the sole general agency under the conditions therein mentioned until the first day of January, 1882; that the agency should not be transferable during the lifetime of the defendant, except with the consent of the owner or owners of the work, and that the list of subscribers should be the property of the owner or owners of the work.
    In pursuance of this written agreement the plaintiff, on December 30, 1811, delivered to the defendant an accurate and complete list of subscribers and purchasers of the said work, whereby it appeared that more than four thousand five hundred copies were then being Iona fide sold. At the same time the defendant proposed to the plaintiff that lie would himself take charge of the getting up of the mechanical part of the said work, leaving to tbe plaintiff only the furnishing of the manuscript on plates ready to be printed from, and that he, the defendant, would himself furnish the necessary stock or cojiies, of the said work at rates not to exceed 5®f0 cents for each separate number, and 4^ cents for each number bound in volumes. The plaintiff accepted this proposition, and the defendant thereupon took charge of the getting up of the said work, except that the plaintiff furnished him the necessary manuscript of the same, as aforesaid, and the defendant made and printed the necessary stock of the said work, or as many copies thereof as he deemed necessary. The defendant, on December 30, 1871, entered upon his duties as agent under the said agreement, and has since then been, and at the commencement of this action was, acting as such, sole agent of the plaintiff for the sale of the work, rendering to the plaintiff ’accounts of his doings, and charging him with the cost of making and printing the said work from time to time, until it was completed on July 1, 1874.
    On July 1, 1874, the defendant had on hand a number of copies of the said work and of parts thereof, and has since then further made and printed a large, number of copies of the said work, and has also sold, since then, a considerable number of copies thereof, the quantities of which are unknown to the plaintiff. On account of the copies sold by the defendant since July 1, 1874, he had only paid the plaintiff $2,259.27. The complaint states that the defendant had not paid over to the plaintiff all the money .due to him under the said contract for the copies of the said work actually sold by the defendant since July 1, 1874, and that the defendant had neglected to render an account to the plaintiff of the copies sold by him since July 1, 1874, and had refused to pay the plaintiff any further sum of money, although often requested so to do.
    The defendant set up several defenses in his answer*, which it is unnecessary to consider, as upon the trial he admitted that all the allegations of the complaint were true. No evidence was given, upon the trial, by either party.
    The judge found the facts as stated in the complaint, and also that “ the plaintiff did not, at any time since the 1st day of July, 1874, require the defendant to print or cause to be printed any copies of said work, nor did he take or offer to pay-for any such copies, nor did he demand that the defendant take at the rate of one thousand copies, or any other number, per year.”
    lie ordered that an account be taken of the copies actually sold, &c., but held and decided that the plaintiff was entitled to recover only for the copies of the said work actually sold by the defendant since July 1, 1874, until the commencement of this action, and was not entitled to recover anything in this action under that clause of the said contract by which the defendant was to take on the average at least one thousand copies of the entire work annually from its completion. An interlocutory judgment was rendered accordingly. The judge refused to find and rule that his decision' and the said judgment be without prejudice to the rights of the plaintiff to sue for damages under the said clause of the said agreement.

      JSdw. Salomon, for the plaintiff.

      J. A. Gross, for the defendant.
   Baebett, J.:

I am unable to concur will) my brother Beady. The plaintiff, .it is conceded, has a right to an accounting. If such accounting shows that the defendant has sold, in each year, more than one thousand copies of the wprk, there wTill, of course, be no difficulty. • But if less, there seems to me to be no good reason why the controversy should not be ended at once by charging the defendant with the full one thousand copies which he has agreed to take. By the oral agreement, he became, not only the sole agent, but the printer. It was his business to supply the market. He was to print all that was necessary, but, at all events, to take on an average at least one thousand copies annually. It is not a'question of damages for the breach of the contract, but of the right to charge the defendant with the full one thousand copies as an incident to the accounting.

This, it seeihs to mo, was the plaintiffis clear right, flowing from the contract. lie was not required to request the defendant to print the one thousand copies, nor was lie bound to make any demand or tender. The contract was plain .both in letter and spirit. The defendant thereby said in substance : “I will (no matter how few volumes may actually be disposed of after the completion of the work) charge myself with one thousand copies annually, and account to you as though that number had actually been sold.” There is no practical difficulty in here applying these conclusions. The court has full jurisdiction of the subject and can give complete relief. This was always the rule in courts of equity. To illustrate. If A. agrees to give B. five per cent, of the profits of his business, guaranteeing, however, $1,000 per annum, and B. sues A. for an accounting, will it be said that a court of equity, on finding that the five per cent, amounted to but $900, cannot grant B. the guaranteed $1,000? Hero, the ease is stronger, because the defendant is only responsible for an average of one thousand copies annually. Suppose one year tlie sales exceeded one thousand copies, another year amounted to just that number, and a third year, to less. Can it be possible that a court of equity will limit the accounting to the actual sales, and drive the plaintiff to a common .law action to recover for the average one thousand copies, less those accounted for in the equity suit ? Such a course would not have been adopted under the chancery system. Still less should it be where law and equity are blended. For these reasons, I thinlc there should be a new trial. I think, too, that there was error in the findings, in not strictly and literally, following the complaint. No testimony was introduced, and the case was tried solely upon an admission that the allegations of the amended complaint were true. There should, therefore, have been no deviation from these allegations, either affirmatively or negatively.

The motion for a new trial should be granted, with costs.

Davis, P. J., concurred in the views of Bareett, J.

Beady, J.,

dissenting:

This is an action in equity for an accounting, and other relief growing out of a written agreement between the parties, and a subsequent oral agreement in relation thereto. By the written agreement, the defendant, as the plaintiffs agent, agreed to take an average of one thousand copies of the work-to which it referred each year after its completion, great financial disturbances, and national calamities excepted. The entire work consisted of eleven volumes of eight hundred pages each. The oral contract changed the terms of the written contract, and by it the defendant became the printer of the work, and was to furnish the stock necessary at variable rates, the plaintiff being required onty to furnish the manuscript, and plates ready to be printed from.

The complaint, which is somewhat m extenso, contained all the necessary allegations to warrant an accounting for the period for which it was demanded. The defendant had become the printer of the work, and the plaintiff was not advised of the number of copies of the work on hand, that is, printed, or the number of copies sold, to which he was clearly entitled, and in reference to which the judgment at special term is in his favor. The plaintiff demanded, however, by the prayer of his complaint, that if the copies of the work sold exceeded one thousand annually since July 1,1874, or if the copies sold wei’e less than one thousand annually, that the defendant be adjudged to pay the plaintiff for one thousand copies annually, at the rate agreed upon. As suggested, the Special Term determined that the plaintiff was entitled to the accounting from July 1, 1874, which was the limit of the plaintiff’s claim on that subject, but declined to make any award for any other claim arising upon the contract for any non-performance of it on the part of the defendant.

The decision of the Special Term in reference to them is as follows: That the plaintiff is entitled to recover in this action only for copies of said work actually sold by said defendant since July 1, 1874, until the commencement of this action, and that he is not entitled to recover anything in this action, under that clause of the contract by which he was to take 'on an average at least one thousand copies of the entire work annually.”

The plaintiff complains of this view, however, and insists that the court having acquired jurisdiction of the whole subject, should investigate the damages in this action, and that such a course should have been adopted by the court, in disposing of his rights; and that if that view is incorrect, the judgment should be so far modified as to declare that the remedy granted in this action should be without prejudice to an action at law for any damages sustained by him in consequence of the failure of the defendant to discharge his obligations thereunder. The case appears to have been treated as one for an accounting, not only by the learned justice who presided at the trial, but by Mr. Justice Yan Yorst when it was considered under the original complaint on a demurrer interposed by the defendant. As such an action it must be regarded as affecting the defendant’s responsibility under the contracts, only for the money due for the copies taken or sold by him since July 1874, which is the precise relief granted by the interlocutory judgment.

As an action at law involving the question of damages, to which a court of equity might continue its jurisdiction, the complaint is imperfect, because it does not appear from any allegation in it that the defendant has not taken the number of copies which, under the terms of the contract, he was compelled to accept: and without showing by positive averment that he had refused to take the required number of copies, the plaintiff would be in no condition to insist upon any relief in that respect. That this is so, is apparent from the allegation in the complaint that the plaintiff did not know the exact number of copies held by the defendant, nor the number of copies made and printed, nor the actual number sold by him. His right of action must therefore necessarily depend upon the result of the accounting, by which the number of copies taken by the defendant will be demonstrated, and it will then appear whether he has performed the contract on his part or not. The result of the accounting may show that the plaintiff has a prima facie cause of action against the defendant for a failure to perform the contract in the respect suggested. And if an action should be brought, the question of liability arising from any and all causes, and the defenses, if any, can be properly considered.

I think that the learned judge in the court below entertained this view, from the language of the finding referred to, which declared that the plaintiff was not entitled to recover m tMs action for the violation considered.

Entertaining these views, it follows as a necessary legal sequence that this action was in its form and proofs one for an accounting purely, and did not involve any question of damages arising from non-performance, and therefore that the plaintiff’s right to recover for any such violation is not in any way affected or interfered with by the interlocutory judgment entered herein.

I think the motion should be denied, with $10 costs and dis bursements.

Motion for a new trial granted'with costs.


author: Davis, P. J.;

text:
    HANNAH M. CAULFIELD, v. ALGERNON S. SULLIVAN, Public Administrator, &c.

      Will — when the acceptance ofabequest in it, discharges a debt due from theiestator to the legatee — when the court can procure a foreign will to be translated for it, or can itself translate it.

    Appear from a judgment in favor of the defendant, entered on the report of a referee, to whom a claim of the plaintiff against the estate of one Henry Yelverton, deceased, had been referred under the statute. The claim was for money lent by the plaintiff to the testator.
    The testator, Henry Yelverton, lived abroad from 1861 until the time of his decease, and the appellant, Hannah Maria Caulfield, lived abroad with him during the same time. Their residence was at a country seat near the city of Paris. By his last will and testament, Mr. Yelverton disposed of his property in these words : “ I appoint Miss Hannah Maria Caulfield, living with me, to be my universal legatee. Consequently, I leave .to her the whole of the real and personal property which shall belong to me on the day of my decease, and which shall compose my succession, on condition that she execute the disposition hereinafter contained, and any others which I may make hereafter. I bequeath to my two brothers; 1st, Mr. Robert Yelverton, of New York; 2d, and Mr. Charles Yelverton, of San Francisco, to be divided between them in moieties, all the real and personal estate which shall belong to me in America, on the day of my decease, without exception.”

      By liis codicil, subsequently executed, he confirmed the devise and bequest to his brothers, and, said, “ in order to facilitate the realization of my property situated on the continent of America, I do hereby appoint my said brother, Robert, executor as to such property.” And with this change he proceeded to ratify and to confirm his will. This instrument was in the French language, and a translation thereof into English, forms a part of the documents produced from the Surrogate’s Court.
    The court at General Term said: “ A point is made that this translation was not proved to have been correct. We think this point is of no importance, because the court, having the instrument before it, is at liberty to make, or to have made, a correct translation. There is no reason to doubt that the translation produced is correct in every material respect.
    “Evidence was given tending to show that after the decease of the testator, the appellant accepted the provisions of the will by taking possession of his property abroad, consisting of both personal and real estate, and that she declared that she accepted the condition of the will of the testator, and took his property in France in lieu of all claims against his estate. The respondent is administrator of that portion of the testator’s estate which was then in America, and this proceeding is an attempt to collect, on the part of the appellant, an alleged indebtedness owing to her by the testator, out of that part of the estate then in America.
    “ The principal question, and the only one, so far as the merits are concerned, passed upon by the learned referee, is whether the appellant can enforce her claim against the American property, after having accepted the condition of the will. Of course the indebtedness of the testator to the appellant coaid as properly have been paid out of the estate which he left in France, and devised and bequeathed to her, as out of the American portion of the estate. It is manifest that it was the intention of the testator that his brothers should receive all the real and personal estate which belonged to him in America, on the day of his decease, without exception, for that is the exact language of the will. And it is upon the condition that they shall be permitted to do so, that all his estate abroad is given to the appellant. The necessary effect, as we think, of her acceptance of the provisions of the mil, and her taking possession of the real and personal property abroad under it, and her acceptance of the condition under which that property was given to her, is to relieve the American property altogether from any claim which she otherwise had or could make against it or any portion of it. The will not only imposes upon her the condition, but also the duty to execute and carry out the disposition of the American property contained in the will, intending, so far as the testator had power, to require her by affirmative action on her part, as “ universal legatee,” to see to it that his brothers named in the will should receive and enjoy the property -in America. It is impossible to find any other intention in the will. And if it imposed on her this affirmative action, it certainly restrains her from any attempt to enforce any claim of hers against the estate in such- form as should take away the whole, or any part of the property devised and bequeathed to his brothers.”

      John E. Bwrrill, for the appellant.

      L. II. Arnold, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Barrett, JJ., concurred.

Judgment affirmed.


author: Brady, J.

text:
    IN THE MATTER OF AARON RAYMOND.

      Assessmmt — what fraud in the letting of the contract will require the court to vacate it.

    Appeal from an order of a Special Term vacating an assessment for constructing five sewers in Sixth, Seventh and St. Nicholas avenues in the city of New York.
    The court at General Term said: “ The contracts for the sewers are five in number, all bearing date April 22, 1813. They were made without public competition, and are claimed by the corporation to have been signed on the day of their date. The circumstances under which they were executed are somewhat hovel. It seems that the city charter of 1873 passed both branches of the legislature on April 17, five days before the date of these contracts, and was immediately sent to the governor for signature. It became a law on April 30, 1873. The commissioner of public works was aware of the passage of the charter referred to, and knew that the new mode of making contracts which would be established by its provisions would prevent the making of contracts by his authority alone. He therefore issued notices requiring the attendance of certain persons supposed to be contractors, that he might make with them such contracts as he desired.

      “ The persons thus addressed having made bids in form, contracts were awarded to them. It was understood, however, that the contracts were not to be regarded as perfected in case the act of the legislature mentioned had become a law at the time of their execution. And for the purpose of securing that result the contracts were deposited in a safe in the office of the Commissioner of Public Works and there kept until it was ascertained that they were deliverable under the arrangement first suggested.

      “ This incident, taken in connection with others resting in the facts found by Mr. Justice Barrett, is quite sufficient to warrant this court in holding that the matter is affected by fraud within the provisions of the act of 1858 and its amendments ; and therefore that the order of the court below made a proper disposition of the petition* presented to it.
    “ The order appealed from should therefore be affirmed, with $10 costs and disbursements.”

      WilUam O. WTvUmey, for the appellant.

      O. E. Miller, for the respondent.
   Opinion by

Brady, J.

Present — Davis, P. J., Brady and Ingalls, JJ.

Order affirmed, with $10 costs and disbursements.


author: Davis, P. J.

text:
    CHARLES PARDEE, Respondent, v. DAVID TILTON and JOHN TILTON, Appellants, Impleaded, etc.
   Order affirmed, with $10 costs and disbursements.

Opinion by

Davis, P. J.


author: Barrett, J.

text:
    WILLIAM B. SCOTT, Respondent, v. THE MIDDLETOWN, UNIONVILLE, and WATER GAP RAILROAD COMPANY, Appellants.
   Judgment and order affirmed, with, costs.

Opinion by

Barrett, J.


author: Davis, P. J.,

text:
    THE UNIVERSAL LIFE INSURANCE COMPANY, Respondent, v. SUSAN A. VAN DYKE, Appellant, Impleaded, &c. SAME v. SAME. SAME v. SAME.
    No. 2.
    No. 3.
   Judgment affirmed, without costs of appeal to either party.

Opinion by

Davis, P. J.,

Brady, J., dissenting.


text:
    WILLIAM H. JACKSON, Respondent, v. ISAAC BINNS, Appellant.
   Judgment affirmed.

Opinion by

Barrett, J.


text:
    WILLIAM H. JACKSON, Respondent, v. ISAAC BINNS, Appellant.
   Judgment affirmed with costs. .

Opinion by

Barrett, J.


text:
    In the Matter of GODFREY HOCK, to Vacate Assessment, etc.
   Order modified as directed in opinion, and affirmed as modified, without costs.

Opinion by

Barrett, J.


author: Davis, P. J

text:
    OSCAR B. LUDERS, Appellant, v. WILLIAM RASMUS and GEORGE LUSIGNOLO, Respondents.
   Judgment affirmed.

Opinion by

Davis, P. J


author: Barrett, J.,

text:
    OLIVE A. DILLEBER, Respondent, v. HOME LIFE INSURANCE COMPANY, Appellant.
   Judgment and order affirmed, with costs.

Opinions by

Barrett, J.,

Davis, P. J., dissenting.


text:
    JOHN C. FULLER and JAMES R. McKAY, Appellants, v. WILLIAM A. ROBINSON, Respondent.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    ANNIE E. IRWIN, Respondent, v. JOHN D. CRAWFORD and WILLIAM A. CRAWFORD, Appellants.
   Order affirmed, with $10 costs and disbursements.

Opinion by

Brady, J.


author: Brady, J.,

text:
    JAMES K. O. SHERWOOD, Appellant, v. DAVID VERPLANCK.
   Order affirmed, with $10 costs and disbursements, to abide the event.

Opinion by

Brady, J.,

Barrett, J., dissenting.


text:
    MAHALIA C. SHERWOOD, Respondent, v. JAMES M. SHERWOOD, Appellant.
   Judgment modified as directed in opinion, and affirmed as modified, without costs.

Opinion by

Brady, J.


author: Per Curiam.

text:
    ANNA RIVAS De HERQUES, Appellant, v. CARLOS MARTI, as Executor, etc., Respondent.
   Judgment and order affirmed, with costs.

Opinion

Per Curiam.


text:
    LAWRENCE BOWE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
   Judgment affirmed.

Opinion by

Barrett, J.


text:
    ROBERT L. CUTTING, Jr., as Receiver of the Bankers’ and Brokers’ Association, Plaintiff, v. W. G. DAMEREL, Defendant.
   Re-argument ordered.

Mem.

Per Curiam.


text:
    EDWARD COPPERS and others, Respondent, v. THE TRUSTEES OF ST. PATRICK’S CATHEDRAL IN THE CITY OF NEW YORK, Appellants.
   Order reversed, with $10 costs and disbursements, and injunction dissolved.

Opinion by

Barrett, J.


text:
    GEORGE E. PALMER, as Executor, etc., Respondent, v. THE PHŒNIX MUTUAL LIFE INSURANCE COMPANY, Appellant.
   Judgment affirmed, witb costs.

Opinion by

Brady, J.


text:
    WILLIAM S. LIVINGSTON, Jr., and another, as Executors, &c., of Ernest L. McCrackan, Deceased, Respondents, v. ST. JOSEPH’S HOME FOR THE AGED, etc., and WILLIAM GORDON, Appellants, impleaded with THE SOCIETY FOR THE RELIEF OF THE DESTITUTE BLIND, etc., and another, Respondents.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


text:
    MALCOLM KERR, Respondent, v. EDITH KERR, Appellant.
   Judgment reversed, with costs of tbe appeal; judgment directed dismissing complaint without cost’s in tbe court below.

Opinion by

Davis, P. J.


text:
    JOSEPH MORSE, Jr., Respondent, v. ALPHA MORSE, Appellant, Impleaded, etc.
   Order modified as directed in opinion, and as modified affirmed without costs.

Opinion by

Barrett, J.


text:
    JAMES R. THOMPSON, Appellant, v. DANIEL E. SICKLES, Respondent.
   Judgment reversed.

Opinion

Per Curiam.


text:
    LOUIS G. BRANDA, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondents.
   Judgment modified.

Opinion by

Brady, J.


text:
    In the Matter of JOHN W. QUINCY, Executor, etc., deceased, to vacate University Place Paving.
   Order affirmed.

Opinion

Per Curiam.


author: Barnard, P. J.:

text:
    ELIZA A. BOONE, as Administratrix, etc., Respondent, v. THE CITIZENS’ SAVINGS BANK OF THE CITY OF NEW YORK, Appellant.

      Deposit made in a savings bank, by one in trust for another — the title to it vests immediately in the donee — the personal representative of the donor cannot collect it from the bank.

    On March, 23, 1866, one Susan Boone deposited $500 in a savings bank, “in trust for Christopher Boone.” On March 29, 1867, one year’s interest on the deposit was drawn out by the said Susan Boone, but to what use she applied the same does not appear. Susan Boone died on April 3, 1875, and thereafter, on October 26, 1876, the bank, upon the presentation of the pass-book, paid the amount due on account of the said deposit to her administrator.
    In an action by the plaintiff, the administratrix of Christopher Boone, who died in 1872, against the said bank to recover the amount of the said deposit,

      Held, that the title to the deposit vested in the cestui que trust, at the time it was made.
    That after the death of the donor and trustee, the power, of collecting the deposit existed solely in the donee and his personal representative.
    That the payment made to the administrator of Susan Boone was no defense to this action.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      The action was brought to recover money deposited with the defendant, by one Susan Boone.
    It appeared, from the facts, agreed upon by the' parties hereto that on March 23,1866, Susan Boone deposited in the Citizens’ Savings Bank, the defendant, a sum of $500, and received in acknowledgment therefor a pass-book containing the following entry:
    “Book No. 14,613. — The Citizens’ Savings Bank in account with Susan Boone in trust for Christopher Boone, March 23, 1866, $500.00.”
    At the time of making such deposit Susan Boone declared that she wanted the account to be in trust for Christopher Boone, and in pursuance of her request it was so deposited and entered, and the aforementioned pass-book was issued. On March 29, 1867, Susan Boone made a draft on the said account of $22.71, being the interest that had accrued on the amount so deposited. To what use the money so drawn was applied does not appear. Aside from such draft, the said account, in the lifetime of Susan Boone, was neither diminished or added to except by the accumulation of interest allowed by the bank.
    The rules of the bank were printed in the pass-book delivered to Mrs. Boone at the time the said deposit was made. These rules provided, among other things, that all “ deposits and all withdrawals shall be entered at the time they are made in the books of the bank, and also in a pass-book to be given the depositor at the time the first deposit is made. The pass-book shall be the voucher of the depositor, and evidence of his property in the institution, and the presentation of the pass-book, shall be sufficient authority to the bank to make any payment to the bearer thereof. The officers of the bank will endeavor to prevent fraud upon its depositors; but all payments to persons producing the pass-books issued by the bank shall be valid payments to discharge the bank. On the decease of any depositor the amount standing to the credit of the deceased may be paid to his or her legal representatives when legally demanded.” The custom of the bank was to pay no moneys, either principal or interest, on account of deposits, except on the production of the bank books.
    Christopher Boone died intestate, on or about the 26th day of November, 1872. And. tbe plaintiff, Eliza A. Boone, was, on tbe 15th day of April, 1878, before the bringing of this action, appointed his administratrix.
    Susan Boone died, intestate, on or about the 3d day of April, 1875, and one Edward Funk was during the same year duly appointed her administrator. After the death of Susan Boone, the pass-book aforesaid passed into the possession of Edward Eunk, her administrator.
    On December 23,1875, a suit was brought in this court, in the city and county of New York, by one Abby S. Martin, as the assignee of two cestui que trusts mentioned in like books issued by the said bank to. the said Susan Boone on the said 23d March, 1866, against the said Funk as administrator and against this defendant, to recover possession of the said two pass-books, no claim being therein made against this defendant. The defendant appeared in the said suit but did not answer. On the 2d day of May, 1876, the suit was tried, and the signature clerk of the defendant was examined as a witness respecting the deposits -aforesaid; judgment was recovered by the plaintiff therein on the 21st day of October, 1876, and a copy thereof was served on the attorney of the bank on tbe 23d October, 1876.
    On or about October 26, 1876, the said Edward Eunk presented to the defendant the aforesaid pass-book, No. 11,613, and also satisfactory evidence of his appointment as administrator of the said Susan Boone; and demanded payment of the amount due on the said pass-book of this defendant; and the defendant thereupon paid to the said Edward Eunk, as administrator of the said Susan Boone, deceased, the whole amount then remaining unpaid on account o± the said deposit, and the said Eunk as such administrator thereupon surrendered the said pass-book to the defendant.

      John W. Pwsson, and James E. Wheeler, for the appellant.

      EfJ/wvn, G. Da/ois, for the respondent.
   Barnard, P. J.:

It is now definitely settled that a deposit in a savings bank, made by a person in his or her name as trustee for another, is a complete and valid transfer of the title to the fund. (Martin v. Funk, 75 N. Y. 134.)

After the death of the person who made the deposit, in this case, her administrator collected the same from the bank, and the question presented is whether the payment is good. It is a general rule that trusts in personal property at the death of the trustee devolve upon the administrator of the deceased trustee. In this case the trust was an executed trust when the deposit was made. There was nothing to be done by the administrator in reference to it. There seems to be no reason why an administrator of such a trust should possess himself of the fund. It would not be subject to the payment of debts of his intestate. There was no valid or legal unexecuted trust which his intestate herself was bound to carry into effect. If she believed that she could recall the gift in her lifetime, the gift was none the less executed, and she would have been legally bound to pay it to the donee if she had collected it. The deposit not having been drawn out by the donor and the gift having been completely executed, no duty could have been, by the beneficiary, cast upon the administrator to collect the same and pay it to him. My conclusion, therefore, is that after the death of the donor the power of collection of the deposit in this case existed solely in the donee. The judgment should therefore be affirmed, with costs.

Gilbert, J., concurred; Pratt, J., not sitting.

Judgment affirmed, with costs.


text:
    HENRY B. PHILBROOK, Appellant, v. WALTER P. KELLOGG, Respondent.

      Execution against the p&rson — when it maybe issued, upon a judgment for costs recovered in an action for a tort.

    In an action to recover damages for a conversion of personal property, the costs exceeded the verdict recovered by the plaintiff, and a judgment for such excess was entered in favor of the defendant.

      Held, that as the judgment was recovered in an action for a tort, the plaintiff could be imprisoned under an execution against his person, issued thereon.
    Appeal from an order made at a Special Term, denying a motion to set aside an execution issued against the person of the plaintiff.

      H. B. BMlbroolc, appellant, in person.

      Estes .<& Ba/rna/rd, for the respondent.
   Barnard, P. J.:

The plaintiff brought an action against the defendant for the conversion of personal property, and had a verdict in his favor for $45. The costs exceeded the verdict, and the judgment has been entered for the excess of the costs above the verdict in favor of the defendant against the plaintiff. The question presented is whether the plaintiff can be imprisoned under an execution issued upon this judgment. I think he can. Previous to the act to abolish imprisonment for debt, passed in 1831 (ch. 300), executions issued against the person in all cases, as well in actions upon contract as in actions for torts. By this act it was made unlawful to issue executions against the person 'in actions upon contract, express or implied. (4 Edm. R. S., 465.) By section 1487 of the Code of Civil Procedure an execution against the. person is permitted where the plaintiff’s right to arrest the defendant depends upon the nature of the action. This was such an action, being one strictly for a tort which was set out in the complaint. The non-imprisonment act does not free the plaintiff from arrest, because the action is not upon a contract. The Code gives a right of arrest in actions of tort against a defendant. In ease of failure to maintain the action, it has been repeatedly held that an execution against the person of the plaintiff was proper for the costs. Here there, was a recovery, but not of sufficient amount to carry costs in favor of the plaintiff. The plaintiff was therefore bound to pay costs. The fact of the recovery of $45 does not affect the question.

The defendant’s right to his costs is by law absolute for the excess, and the action is one for tort.

Gilbert, J., concurred ; Pratt, J., not sitting.

Order affirmed, with costs and disbursements.


author: Barnard,* P. J.:

text:
    GEORGE M. CLAPP, Respondent, v. WILLIAM WRIGHT, Appellant.

      Gounte/r-cla/kn — when, striclcen out because not based upon a contract — the liability of a trustee for the debts of a company, occasioned by his failure to flea report, is not based on a contract — Code of Civil Procedure, § 501.
    In an action by the plaintiff to recover for services rendered to the defendant, the latter set up, as a counter-claim, that the plaintiff was a trustee oí a manufacturing corporation, and that, by reason of his failure to file the annual report required by law, he had become personally liable for the debts of the company, some of which were held by the defendant at the time of his default, which debts he sought to set off against the plaintiff’s claim herein.

      Meld, that the counter-claim was not based upon a contract, as required by section 501 of the Code of Civil Procedure, and that it should, be stricken out.
    Appeal from an order made at a Special Term striking from the defendant’s answer tbe second counter-claim therein set forth.

      JR. W. JBJcmleesworth, for the appellant.

      JE. O. Place, for the respondent.
   Barnard,* P. J.:

The counter-claim set forth in the answer was properly stricken out. The plaintiff seeks to recover for services rendered by him to the defendant. He sets up as a counter-claim, that the plaintiff was a trustee of a manufacturing corporation, and had, by reason of a failure to file the yearly report of the company, according to the provisions of the General Manufacturing Act of 1848 (ch. 40), made himself liable for the payment of its debts, and that the defendant held debts of the company, at the time of the default, which he would prove against plaintiff’s claim.

The counter-claim is not based upon a contract, existing at the time of the commencement of the action, as required by section 501 of the Code of Civil Procedure. The claim against plaintiff, as trustee, is not a claim upon contract. The plaintiff is neither a principal debtor nor a surety for the debts of the corporation. (Miller v. White, 50 N. Y., 13.) The liability against the plaintiff is a penalty imposed upon him for neglect of duty. (Merchants’ Bank of New Haven v. Bliss, 35 N. Y., 412; Chambers v. Lewis, 28 Id., 454.)

The order appealed from should be affirmed, with costs and disbursements.

Pkatt, J., concurred; Gilbert, J.; not sitting.

Order striking out answer affirmed, with costs and disburse ments.


text:
    JOHN F. SMYTH, as Superintendent of the Insurance Department of the State of New York, Respondent, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Appellant, Impleaded with SUSAN W. BEECHER and others.

      Mortgagor — when he is estopped from interposing a defense, by haring giren a certificate to an assignee of the mortgagee — the record of an assignment of a mortgage is notice to subsequent purchasers that the mortgagee cannot release the property from the lien of it.

    On October 27, 1871, a bond and mortgage executed by one Hall, to the Mutual Protection Life Assurance Society, was, by the said company, assigned to the Superintendent of the Insurance Department, 'the assignment being
    ' accompanied by a certificate signed by Hall, by which he consented to the transfer of the mortgage, and agreed that there was no legal or equitable defense thereto. The assignment was duly recorded on November 10, 1871.
    February 13, 1872, Hall conveyed the premises covered by the mortgage to one Marsh, who on April 10, conveyed a portion thereof to one McCord, who, on April 11. mortgaged the same to an insurance company. On April 13, the mortgagee, having in the meantime changed its name, executed and delivered a release of the premises conveyed to McCord, from the lien of the mortgage given to it by Hall, and which was then held by the plaintiff.
    In an action to foreclose the Hall mortgage, Held, that both the company and Hall were estopped, as against the plaintiff, from setting up a parol agreement entered into between them at the time of the execution of the mortgage, by which the company were to release portions of the premises in case certain buildings were erected thereon, by Hall.
    That the recording of the assignment was constructive notice to the grantees of Hall, that the mortgagee could no longer deal with the mortgaged premises.
    That the release was invalid as against the plaintiff.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to foreclose a bond and mortgage executed and delivered by William N. Tiall to the Mutual Protection Life Assurance Society, on June 29, 1871, and recorded in Kings county, July 8, 1871. On October 27, 1871, the mortgagee assigned the said bond and mortgage to George W. Miller, as Superintendent of the Insurance Department, to be held by him to secure policy-holders in the company, the mortgagor consenting to the assignment, and covenanting that there was no legal or equitable defense or offset thereto. This assignment was recorded in Kings county, November 10, 1871.
    On Febrnrary 13, 1872, the mortgagor, William N. Hall and wife, conveyed the premises covered by the said mortgage to Curtis L. North. On April 10, 1872, North and wife conveyed to Agnes McCord that portion of the said premises which is covered by the mortgage to the defendant, the Knickerbocker Life Insurance Company, and upon which it claims a lien prior to that of the plaintiff. On April 11,1872, the next day after she acquired the title to said premises, the said Agnes McCord mortgaged the same to the defendant, the Knickerbocker Life Insurance Company, the mortgage being recorded in Kings county, on April 12, 1872. The next day, April 13; the mortgagee, its name having been changed in the meantime to the Reserve Mutual Life Insurance Company, executed and delivered a release to Curtis L. North, discharging from the lien and operation of the said first mortgage that portion of the ¡premises mortgaged by the said McCord to the defendant, the Knickerbocker Life Insurance Company. The defendant claimed that this release was made in pursuance of an agreement by which the mortgagee had agreed with Hall to release the said portion of the premises, when Hall should have completed the erection of certain buildings thereon. The referee held that the release was invalid as against the lien of the plaintiff’s mortgage.

      Horace E. Homing, for the appellant.
    The record of an assignment of a mortgage is constructive notice only to subsequent purchasers of the same mortgage. (James v. Morey, 2 Cow., 296;
      Cam/pbell v. Védeler, 3 Keyes, 178; Purdy v. Huntington, 42 N. Y., 348; Trustees of Union College v. Wheeler, 61 N. Y., 88; Greene v. Wcvrniak, 64 N. Y., 227; Creme v.’ Turner, 67 N. Y., 440.)
    It was not incumbent on the appellant or its mortgagor to search for assignments of the mortgage. (James v. Morey, 2 Cow., 296; Reid v. Mcvrlüe, 10 Paige, 413 ; Mew York Life Insurance Com-fa/rvy v. Smith, 2 Barb. Ch., 84; cited and approved in Van Kewren- v. Corhins, 66 N. Y., 80.)

      Waldo & Grover, for the respondent.
    The assignment to the Department having been- recorded long before the defendant, the Knickerbocker Life Insurance Company, acquired any lien or right in the said premises, and before the release was executed under which it claims a prior lien, the record was notice to all parties that the original mortgagee had parted with all right to release any portion of the said premises from the mortgage. (Mut. Life Ins. Co. v. Wilcox, 55 How., 43 ; St. John v. $j>cmlding, 1 T. & C., 483; Belden v. Meeker, 2 Lans., 470; affi’d47 N. Y., 308.)
   Barnard, P. J.:

The plaintiff, as head of the Insurance Department, holds the bond and mortgage in question free from any parol equity growing out of any agreement with Hall, the mortgagor. Hall executed the mortgage to the Mutual Protection Life Insurance Company in 1871. In the same year that company assigned the mortgage to the Insurance Department in trust as security for policy-holders, as provided by law. The assignment covenanted that there was no legal or equitable defense to the mortgage; and attached to the mortgage was a consent of Hall to the assignment and an agreement upon his part that there was no legal or equitable defense to the mortgage. This assignment was recorded in the Register’s office in Brooklyn in November, 1871. Assuming an agreement by parol between the Mutual Protection Life Insurance Company and Hall that a part of the mortgages should be released upon the erection of certain houses ; as to the plaintiff both Hall and the Company were estopped from setting this up by the legal effect of the assignment and tbe consent of Hall. The Insurance Department took the mortgage free from any agreement not communicated to it when it was delivered over. The release of part of the mortgaged premises by the mortgagee under its changed name of the Reserve Mutual Life Insurance Company was inoperative and void as to the Insurance Department. It was given subsequent to the assignment to the Insurance Department, and subsequent to the recording of the assignment. ¥e think the recording of the assignment constructive notice to Hall’s grantee, North, that the mortgagee could no longer deal with the mortgaged premises. (Belden v. Meeker, 47 N. Y., 308.)

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Present — Barnard, P. J., Gilbert and Pratt, JJ.

Parts of judgment appealed from affirmed, with costs.


text:
    THE BOARD OF COMMISSIONERS OF EXCISE, OF, IN AND FOR THE CITY OF YONKERS, Appellant, v. DAVID GLENNON, Respondent.

      Violations of the excise law in the city of TonJcers — by whom actions to recover the penalties incurred by, are to be brought.

    Actions to recover penalties incurred by a violation of the excise law within the city of Yonkers, must, under chapter 109 of 1878, be brought by the Commissioner of Charities thereof, and not by the Board of Commissioners of Excise.
    Appeal from an order of the City Court of Yonkers, setting aside the verdict of a jury and granting a new trial.
    The action was brought by the Board of Excise of the city of Yonkers, to recover the penalty incurred by the defendant in selling liquor without a license.

      Salph F. Prime, for the appellant.

      James F. P. Cra/ne, for the respondent.
   Barnard, P. J.:

The Legislature, in 1873 (Laws of 1873, ch. 35), remodeled and amended the charter of the city of Yonkers. By title 11 of this act, section 3, it was provided that there should be a Commissioner of Charities appointed, and that “ all laws now in force, not inconsistent with the provisions of this act, applicable to overseers of the poor in towns, shall apply to the Commissioner of Charities appointed pursuant to this title.” In 1875 (Laws of 1875, ch. 578), the Legislature amended this section by adding to it the following words: “And such Commissioner of Charities shall have and possess all powers which overseers of the poor of towns now have, or which may be hereafter conferred upon them by law.” In 1878 (Laws of 1878, ch. 109), the Legislature enacted that actions for certain penalties incurred under the excise laws should be sued for by and in the name of the overseer of the town or city in which the alleged penalty was incurred, “ except in such towns or cities as have no overseers of the poor, in which case said penalties shall be sued for, and recovered* by and in the name of the Board of Commissioners of Excise of the town or city aforesaid, and paid over to the treasury of the county for the support of the poor of the town or city in which such penalty was incurred; except that in counties where there is no distinction between1 town and county poor, then for the poor of such county. . . .” By Laws of 1878, chapter 119, amending the act of 1873, incorporating the city of Yonkers, “ all. penalties ... in favor of the city or any of its officers, departments, or boards of commissioners . . . when collected, shall be paid into the city treasury.”

‘ Must the Commissioner of Charities sue for the penalty in question, or the Board of Excise ? The letter of the law is in favor of the Commissioners of Excise. There is'no overseer of the poor in Yonkers by that name. There is an officer who has all his powers, and is subject to all his duties. The penalty belongs to the city treasury. This is very clear, because the Legislature gave it after tbe passage of the law directing its payment in tbe case of other towns and cities to the county treasury. The Commissioner of Charities seems to be an overseer of the poor of Yonkers, within the spirit of chapter 109, Laws of 1878. ' The judgment should therefore be affirmed, with costs.

Pratt, J., concurred; Gilbert, J., dissented.

Order granting new trial affirmed, with costs.


author: Gilbert, J.: Barnard, P. J.:

text:
    FRANKLIN COLES, Respondent, v. DAVID BURNS, Appellant.

      Application to sell animals for Vrespassing on lands of the applicant — requisites of the complaint — what amendments should not be allowed — chapter 459 of 1862, and chapter 814 of 1867 — meaning of the term “running atiarge ” as used in.

    In order to give a justice of the peace jurisdiction of an application to sell animals, seized, under chapter 459 of 1862, as amended by chapter 814 of 1867, while trespassing upon the lands of the applicant, the complaint must allege that the animals escaped upon the land from the highway.
    It is improper to allow the complaint to be amended by the insertion of this allegation after the defendant has answered, and the case has been called for trial.
    The term “running at large,” as used in section 1 of the said act, implies permission or assent, or at least some fault or neglect on the part of the owner of the animals.
    Where animals escape from their owner’s premises, after due precautions to . secure them have been taken, and without any default or neglect on his part, and he thereafter makes immediate and suitable efforts to secure and recover them, they cannot be said to be “running at large,” within the meaning of the said act.
    Appeal from a judgment of the county judge of Queens county, reversing the verdict of a jury in a statutory proceeding taken before a justice of the peace, under the acts to prevent animals from running at large in the public highway. (Oh. 459 of 1862, as amended by ch. 814 of 1867.)
    The parties are owners of farms in Queens county, situated on the opposite sides -of a public highway. On the morning of May 24, 1879, a mare belonging to the appellant slipped her halter, and ran across the appellant’s farm into and upon the highway. She was followed by -her foal. The animals ran upon the highway, passing the farm of the respondent, and, then, suddenly turning homewards, went.along the highway opposite the respondent’s farm, and turned into a lane opening from the highway, which divided the farm of the respondent from the .adjoining farm of his brother, and which was not guarded from the approach of estrays by a gate or other barrier. From this lane the appellant’s cattle went upon the-respondent’s farm.
    Soon after the escape of the mare and foal from the appellant’s premises, his servant pursued the animals, in order to bring them home. lie lost sight of them as they ran upon the highway past the respondent’s premises; subsequently perceiving that they had returned, he retraced his steps, until,' coming to the lane between the respondent’s farm and the farm of respondent’s brother, he perceived the tracks of the mare and foal in this lane; and, following those tracks, found that they had entered upon the respondent’s premises. The servant of the appellant asked to have the animals restored to him, but this was refused unless the sum of two dollars was paid. Upon the hearing the plaintiff was allowed, against the defendant’s objection, to amend his complaint by inserting the words, “ that said animals came upon said premises from the public highway.”
    The respondent, on issue being joined, demanded a jury, which was duly impaneled, and, after hearing all the testimony, found a verdict for the appellant. From this verdict an appeal was taken by the respondent here. The appeal was heard by the county judge, who reversed the judgment and finding of the jury. From this judgment of reversal the owner takes this appeal to the General Term.

      Richard Busteed and Edward Gromwell, for the appellant.

      Edward Eficoll, for the respondent.
   Gilbert, J.:

Technically, the animals in question were trespassing on the plaintiff’s premises. . The trespass, however, was wholly involuntary. Perhaps the plaintiff; might have maintained an action for such trespass, though that is by no means clear, for the reason that it appears that the gate of his lane, through which the animals went on his premises, had been left open. If it was his duty to keep the gate shut, then, his neglect to do so would defeat his action, for a man cannot recover for an injury occasioned, in any degree, by his own default. And, in such a case, it was lawful for the defendant to go upon the plaintiff’s land after the animals, and chase them back into his own land. (Addison on Torts, ch. 6, § 1.)

The question, however, before us is, not whether a trespass was committed by the defendant’s animals, but it is, whether the plaintiff had the right to seize them summarily, and detain them until payment by the defendant of the sum of $2, arbitrarily and unlawfully demanded by the plaintiff. The statute which authorizes the summary seizure, by private individuals, of animals belonging to their neighbors, is entitled “An act to prevent animals from running at large in the public highways.” (Laws of 1862, ch. 549, as amended by Laws of 1867, ch. 841.) The second section thereof provides that, “ it shall be lawful for any person to seize and take into his custody, and retain till disposed of, as required by law, any animal which may be in any public highway, and opposite to land owned or occupied by him, contrary to the provisions of the foregoing section; or of any animal which may be trespassing upon premises owned or occupied by him.” As the statute is in derogation of the common law for the protection of private rights, it must be construed strictly, and limited by such construction to the object which the Legislature intended to accomplish. Such object seems, to us, to be perfectly plain. It was, as declared by the title of the statute, to prevent • animals from running at large in the highways. We think, also, that the authority to seize animals which are trespassing, is limited to animals running at large, and that the phrase “ contrary to the provisions of the foregoing section,” in section 2 of the said act, was intended to qualify the whole section, and should be transposed accordingly. For it would be unreasonable to suppose that the Legislature intended to confer upon private persons the power of redressing injuries to themselves, occasioned by trespasses on their-lands, disconnected from the prohibition contained in the first section of the statute. Indeed, an enactment having that effect would be, at least, of doubtful constitutionality.

The first section of the act makes it unlawful for any cattle, horses, &c., to run at large in any piiblic highway, &c. Were the animals of the defendant running at large, within the meaning- of the statute, when they entered the plaintiff’s premises ? We think not. The statute is a penal one, yet it was not intended to punish misfortune. The phrase “running at large,” implies permission or assent, or, at least, some fault on the part of the owner. When animals escape from their owner, after due precaution to secure them has been taken, and without fault or negligence on his part, and he makes immediate and suitable efforts to recover them, they cannot be said to be running at large. Statutes must have a sensible construction, with reference to the evil to be remedied by them. Pór example, animals may be running at large, although, when seized,' they were walking or lying down. A horse that has thrown its rider in the highway and escaped, a cow turned out of a pasture at evening and going home, droves of sheep, hogs, or other cattle being chiven to market, though for the moment unattended by the drover, can hardly be said to be running at large, within the meaning of the statute. Nor, in our judgment, were the plaintiff’s horses running at large when the trespass complained of was committed. The defendant’s horses escaped from his premises, without his knowledge, and, as far as it appears, without any fault or negligence, on his part. Immediately after their escape, he sent a servant in pursuit of them, when they were found, within a very short time, upon the defendant’s premises. The escape was a mere accident. Such a case cannot reasonably be brought within the statute cited.

We think, therefore, that the verdict of the jury was right and that the County Court erred, and the judgment appealed from must be reversed, with costs.

Pratt, J., concurred.

Barnard, P. J.:

The Court of Appeals in Jones v. Sheldon, 50 N. Y., 477, held that chapter 811 of Laws of 1867, had no reference to animals which were taken under its provisions, unless the same escaped upon the owner’s premises from the highway.

It was the duty of the plaintiff to make a complaint under oath, that the animals which he applied to sell under this act were seized under its provisions. The affidavit did not state that the animals in question escaped from the highway. The jurisdiction of the justice to issue the summons depended upon this fact. It was improper to amend the complaint by inserting this allegation at the time the owner answered; he was there to answer the complaint upon which the proceedings had been taken, and he objected to the amendment; he was then entitled to have the proceedings dismissed. (2 Wait Law & Practice, 759, 150, 98.)

Judgment of County Court reversed and that of justice affirmed, with costs.


text:
    In the Matter of the Application of THE NEW YORK, WOODHAVEN and ROCKAWAY RAILROAD, to acquire lands of JOHN W. SOMARINDYCK.

      Application by a railroad company to acquire title to land — measwre of damages, how computed.

    A railroad company applied to acquire title to a strip of land forming part of an old race-course, which had not been much used for many years; the strip, 'which contained about one and one-sixth acres, cut the track into two nearly equal parts. The evidence tended to show that the whole piece' of land was worth, as a public race-course, about $25,000 ; as a training track, about $7,000 ; and that, as agricultural land, the strip taken was worth about $500. The commission awarded the owner $2,500 for the strip. Held, that the award was moderate and just, and should be affirmed.
    . Appeal from an award made by two of the three commissioners appointed to ascertain the compensation to be made to the respondent, John W. Somarindyck, for about one and one-sixth acres t)f land, taken by the appellant for railroad purposes.

      George If. Sanders and Lewis Sanders, for the Company.

      Wakemwn & lotting, for the respondent, Somarindyck.
   Barnard, P. J.:

The award in this case seems to be moderate and just. The land taken belongs to Somarindyck. It is a strip throngh a race-course, known as the Old Centreville Track. The railroad cuts the track in two nearly equal parts. It entirely destroys the track or course as such. The track is a mile track, and has not been much used as a track for many years. The evidence' tends to show that as a public race-course it is worth some $25,000, as a training track some $7,000, and as agricultural land the piece taken is worth about $500. The award is $2,500. The property taken was the land to.be used for a roadway, and the injury done to the remaining portion of the owner’s land by its severance, at the place and in the manner it was to be made. If the land taken took a part of a house or barn, the compensation would he the injury caused by the taking what was taken, and also the- injury to the portion of the building not taken, but really destroyed. Tbe appeal papers do not show that the commissioners violated this rule. The award simply states the sum awarded for a just compensation for the land taken. The evidence sustains the finding.

The order should he affirmed, with costs.

Gilbert, J., dissented.

Present — Barnard, P. J., Gilbert and Pratt, JJ.

Order affirmed, with costs.