text:
    Rector, Church Wardens and Vestrymen of St. James’ Church et al., App’lts, v. Frederic D. Huntington, as Bishop, etc., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1894.)

    Religious corporations—Government.
    ■ An order of the bishop, made in accordance with the rules and canons-of the church and forbidding a clergyman from officiating as rector of an ' Episcopal church, will not be interfered with by the civil courts.
    Appeal from a judgment dismissing the complaint.

      Lyman, Hitchcock & Lyman and Joseph Mason, for app’lts; A. H. sawyer, for resp’t.
   Merwin, J.

When a complaint is dismissed on the opening o counsel, the facts stated in the complaint are to be considered, and also such further facts as in the opening are offered to be proved, unless objection to such proof is made on the specific ground that it is not admissible under the pleadings Clews v. Bank of N. Y. Nat. B. Assn., 105 N. Y. 398; 7 St. Rep. 368. The question, then, in this case, is whether, upon the facts stated in the complaint, and such other facts as were stated in the opening without objection as to their not being pleaded, the plaintiffs are entitled to any relief.

In the complaint it is alleged: That the plaintiff, the rector, church wardens, and vestrymen of St. James’ Church, Syracuse, is a religious corporation, duly organized and incorporated under the laws of this state on August 14, 1848, and located at the city of Syracuse. That its vestry consists of two church wardens, eight vestrymen, and its rector, except during such periods, if any, as it was without a rector; and under the laws of the state the vestry are the trustees of the church or congregation, and as such have the charge of the property and temporal interests of the corporation, and are bound to manage and care for the same, in the interests of the corporation and the congregation connected therewith. That the church wardens and vestrymen have, under the laws of the state, the right and authority as trustees to call and induct a rector to the church or congregation as often as there shall be a vacancy, and to fix his salary or compensation. That at the time of the incorporation of the plaintiff corporation there was, and ever since has been in the United States, a religious body or denomination known as the “ Protestant Episcopal Church in the United States of America,” according to the polity of which the state of Hew York is divided into five parts or dioceses, one of which is called the “Diocese of Central Hew York,” and another is called the “ Diocese of Western Hew York.” That said church, for the regulation, care, and furtherance of its internal affairs, spiritual and temporal interests and economy, has certain rules and regulations known as “ canons,” which must be observed by the bishops, rectors, and other officers of the church, unless in ■conflict with the law of the state. That the plaintiff corporation, ever since its organization, has had, and now has, a church edifice at Syracuse known as “ St. Janies’ Church,” in which religious services have always been conducted in accordance with the rules and ritual of the Episcopal Church ; and the plaintiff corporation always has been, and now is, ecclesiastically connected with and a part of the Protestant Episcopal Church in the United States, and is ecclesiastically connected with and a part of the diocese of Central New York. That the defendant is bishop of the diocese of Central New York, and has been for the past five years. That the plaintiff Brock way is a duly ordained clergyman in said church, and has been for five years and upward, and for three years immediately prior to December 1, 1892, be was, according to the provisions of the canons of the church, a resident of the diocese of Western New York, and was a clergyman in regular canonical standing in said diocese. That on the 25th November, 1892, the rectorship of the plaintiff corporation being about to become vacant by resignation of the rector, the vestry of the. corporation unanimously elected the plaintiff Brockway rector at an annual salary of $1,200, payable in monthly installments, the rectorship to commence December 1, 1892. That on the 28th November, 1892, Mr. Brock way accepted, in writing, the rectorship, and on the same day a notice in writing of such election and acceptance was given by the clerk of the vestry to the defendant, as required by the canons of the church. .That t,he canons of the Episcopal Church require that a minister of that church removing into the jurisdiction of any bfshop, and remaining there for the space of six months, shall, in order to gain canonical residence, within the same, present to its bishop a testimonial from the bishop of the diocese in which he last resided, which shall set forth his true standing and character. That the plaintiff Brock way obtained from the bishop of the diocese of Western New York the required testimonial, or “letter dismissory,” so called, which is dated December 1, 1892, and certifies that Mr. Brockway “is a presbyter of this diocese in regular standing, and has not, so far as I know or believe, been justly liable to evil report for error in religion or viciousness in life for 'three years last past.” That this letter was delivered to the defendant on December 2, 1892, pursuant to the provisions of the canons of the church, which require a minister removing into another diocese, who has been called to take charge of a parish therein, to present to the bishop such a letter. That by the provisions of the canons it became the duty of the defendant to accept the said letter witin six months after its presentation to him, and give notice thereof to the plaintiff Brockway and the bishop of the diocese of Western New York, unless he (the defendant) “ had heard rumors, which he believed to be well founded, against the character of the plaintiff Brockway, which would form a proper ground of canonical inquiry and presentment,” in which case it became the duty of the defendant to communicate the same to the bishop of the diocese of Western New York, and in that event no duty was imposed upon the defendant to accept such letter unless and until the plaintiff Brockway was exculpated from such charges. That the canons of the Episcopal Church provide that no minister removing from one diocese to another shall officiate as the rector of any parish or congregation of the diocese to which he removes until he shall have obtained, from the ecclesiastical authority of the diocese into which he has removed, a certificate in the words following: “ I hereby certify that the Rev. A. B. has been canonically transferred to my jurisdiction, and is a minister in regular standing.” That under the provisions of the canons it was the duty of the defendant to give to the plaintiff Brockway such a certificate within six months after the delivery to him .of the letter dimissory, unless he refused to accept it because of having heard rumors as above stated. That defendant did not, within such period of six months, or at any time, hear rumors which he believed to be well founded, against the character of the plaintiff Brockway, which would form a proper ground for canonical inquiry and presentment, and did not communicate any such to the bishop of the diocese of Western New York; but he refused to give to the plaintiff Brockway the certificate of transfer, though the same was requested on the 2d June, 1892, and on the 10th May, 1892, the defendant returned the letter dimissory to the bishop who issued it. That the plaintiff Brockway continued to officiate as rector of St. James’ Church, and performed all the services and duties of his said position, until the 20th- September, 1893, when the defendant issued and caused to be served on him the following order of inhibition:

“Diocese of Central New York, Sept 8, 1893.
“ To the Rev. A. A. Brockway—Dear Brother: Pending any proceedings in your case in the diocese to which you belong, and having corresponded with Bishop Coxe, it becomes my duty to apply the provision and direction given in title 1, canon 3, of the Digest, and I hereby admonish and forbid you to officiate in the diocese of Central New York. I need not now say with what regret this prohibition, made necessary by your continued violation of the law, with aggravating incidents, and due to the order and authority of the church, is issued.
“ Sincerely your friend,
“ F. D. Huntington,
Bishop of the Diocese of Central New York."

That upon the service of this order the plaintiff Brockway ceased to officiate as rector, and has not so officiated since. That there were no proceedings pending against the plaintiff Brockway, or in which he was interested, in the diocese where he belonged, or in any diocese, at the time of the writing or receipt of said order. That the canon referred to in the order, and upon the authority of which the defendant claims to act, is as follows : “ If a clergyman shall come temporarily into any diocese under the imputation of having elsewhere been guilty of any crime or misdemeanor, by violation of the canons or otherwise or if any clergyman, while sojourning in any diocese, shall misbehave in any of these respects, the bishop, upon probable cause, may admonish such clergyman and forbid him to officiate in said diocese ; and if, after such prohibition, the said clergyman so officiate, the bishop shall give notice to all the clergy and congregations in said diocese that the officiating of the said clergyman is, under any and all circumstances, prohibited, and like notice shall be given to the bishop, or, if there be no bishop, to the standing committee of the diocese to which the said clergyman belongs; and such prohibition shall continue in force until the bishop of the first-named diocese be satisfied.of the innocence of the said clergyman, or until he be acquitted on trial.”

That for over five years last past it has been the custom in the diocese of Central Hew York to permit rectors not belonging to that diocese, and not canonically residents thereof, to officiate as rectors of Protestant Episcopal churches in that diocese without obtaining the certificate of transfer or a license from the bishop of such diocese, and that this custom was known to the plaintiffs and the defendant. That the plaintiff Brockway had license and authority from the defendant to officiate in said St. James’ Church during the time he did so officiate, before, on and. after the 1st December, 1892. That the canons of the said church provide, among other things, that every minister and rector of that church shall be liable to presentment and trial by and before the proper ecclesiastical body or authority of that denomination for “conduct unbecoming a clergyman of said church,” and, if found guilty, he shall be admonished, suspended or degraded, according to the canons of the diocese in which the trial takes place. That, when ordained as a minister, the plaintiff Brockway, as is required by the rules of the church of every minister when ordained, promised and vowed canonical obedience to the bishop of the diocese where he resides or belongs.

The opening did not materially vary the case. It, however, was stated that prior to the election of Brock way there was some negotiation between the vestry and the defendant, in which the defendant objected to the election of Mr. Brockway, and there was, prior to the order of inhibition, correspondence between the defendant and Brockway concerning his right to officiate. There were also in the complaint general allegations that the acts and conduct of. the defendant were unlawful and wrongful; that the canons as to certificate of transfer, and as to the right to issue the order of inhibition, were null and void, as in conflict with the laws of the state ; that the right of the plaintiffs to enter into a contract had been improperly interfered with, to their great damage. The relief asked was substantially that the defendant 5be compelled to give a certificate of transfer, that the order of ' inhibition be set aside as null and void and that the defendant be restrained from interfering with the carrying out of the contract between the plaintiffs. In the answer, most of the material allegations of the complaint are denied, and, in substance, it is alleged that the acts and conduct of defendant have been in entire conformity and in accordance with the rules and canons of the church.

The plaintiff corporation was incorporated under chapter 60 of the Revised Laws of 1813 (2 Rev. Laws 1813, p. 212). By § 1 of that act the churchwardens and vestrymen are given power “to call the induct a rector to such church or congregation as often as there shall be a vacancy therein." This was amended by chapter 803 of the Laws of 1868, § 1, subd. 14, by adding thereto the words, “and to fix his salary or compensation.” One of the theories of the complaint is that these statutes gave the church wardens and vestrymen so absolute a power to call and induct a rector that the canon which required a certificate of transfer before the plaintiff Brockway could officiate, and the canon which authorized the defendant to prohibit his officiating, were, as to the plaintiffs, null and void as being in conflict with the statutes above referred to. I do not understand that this position is now claimed by the plaintiffs to be correct. On the contrary, it is asserted that the affairs of St. James’ Church must be administered in accordance with the rules, usages, and customs of the denomination to which the corporation belongs (see § 1, c. 176, Laws 1876; People ex rel. Peck v. Conley, 42 Hun, 98; 3 St. Rep. 372, and cases cited); and the plaintiffs claim that the defendant should be compelled to give a certificate-of transfer in accordance with the canon on the subject, and that the order of inhibition should be set aside as not justified by the canonical provision; so that, in effect, the action is to compel the observance by defendant of the canons of the church, so far as they may affect the right or power of the plaintiff Brockway to carry out his contract with the other plaintiffs. , The right of civil courts to interfere in ecclesiastial matters is considerably limited. The general rule is that such right exists only where there are conflicting claims to church property or funds, or the use of them, or where civil rights are involved. The question here is whether the right of the plaintiff Brockway to officiate as a clergyman in the diocese of Central New York is such a civil right as to give him a stánding in the civil courts. In most of the cases that are cited in the elaborate brief of the learned counsel for the appellants, the question arose between rival claimants to church property or its use, or to the use of trust funds, or in cases brought for a recovery of salary. There are several, however, cited, which come nearer to the present case, and should be here referred to. In Walker v. Wainwright, 16 Barb. 486, a motion was made by plaintiff for an injunction to restrain the defendant from prosecuting a certain sentence of an ecclesiastical tribunal against the plaintiff by judgment of displacement from the ministry. In the opinion it is said: “The only ground on which this court can exercise any jurisdiction in this case is that the threatened action of the defendant may affect the civil rights of the plaintiff, for the protection of which he has a proper recourse to the civil courts. The rights which are here invoked for that purpose are his exemption from taxation and the performance of certain civil duties. Conceding (though without expressly ruling the point) that there is ground enough for the action of this court, it becomes material to say that the only cognizance which the court will take of the case is to inquire whether there, is want of jurisdiction in the defendant to do the act which is sought to be restrained. I cannot consent to review the exercise of any discretion on his part, or at all inquire whether his judgment or that of the subordinate ecclesiastical tribunal can be justified by the truth of the case. I cannot draw to myself the duty of revising their action, or of canvassing its manner or foundation, any further than to inquire whether, according to the law of the association to which both of the parties belong, they had authority to act at all. In other words, I can inquire only whether the defendant has the power to act, and not whether he is acting rightly.”

The question was then considered on that basis, and the motion was denied.

In O'Hara v. Stack, 90 Pa. St. 477, the plaintiff, Stack, was a priest in the ministry of the Catholic Church, and had been for several years pastor of a church at Williamsport. This was in the diocese of Scranton, of which the defendant, O’Hara, was bishop. O'Hara undertook to remove Stack from the pastorship, and forbade his exercising any priestly functions in Williamsport. Stack thereupon brought an action in equity to restrain the bishop from removing him as pastor of the church, or prohibiting him from exercising priestly functions, and also for a restoration. A decree was made, declaring that the removal and prohibition were unlawful, but refusing restoration. The bishop appealed, as a portion of the costs were charged upon him. The court say that the appellant has no just cause to complain of the decree; that the profession of a priest is his property, and a prohibition of the exercise of that profession by his bishop without accusation or hearing is contrary to the law of the land; that a right of a bishop to the revenues of his church derived from pew rents and voluntary offerings, though uncertain in amount, and there is no specified salary, is a right of property which the law will recognize. Reference is made in the opinion to a statute which expressly gave the court of common pleas, in which the decree was made, the supervision and control of unincorporated societies or associations. In Runkel v. Winemiller, 4 Har. & M. 429, it was held that a mandamus was proper to restore to his pulpit a pastor of the Dutch Reformed Church who had been wrongfully dispossessed by a portion of his congregation, it appearing that there were attached to the office temporal rights or emoluments. In Union Church v. Sanders, 1 Houst. 100, a mandamus was refused, there being no fees or emoluments attached to the-office other than voluntary contributions; and it was said that mandamus lies for enforcement of legal rights only, and not for those of a purely equitable character, nor for those of a mere spiritual or ecclesiastical nature, and that the right to the office and its functions, being derived from ecclesiastical authority, cannot under any aspect be viewed as temporal rights.

On the part of the respondent our attention is particularly called to the case of Connitt v. Dutch Church, 4 Lans. 339; affirmed, 54 N. Y. 551, and Chase v. Cheney, 58 Ill. 527. The latter case was an action in equity brought by Chertey, the plaintiff in the court below, to restrain defendants therein from proceeding as an ecclesiastical court with the trial of Cheney for alleged, offenses and misconduct as a presbyter of the diocese of Illinois and rector of a church in Chicago. The chief reason alleged for the interposition of the civil court was the want of authority in the spiritual court to try him, and a misconstruction of the canons. It was held that the civil courts will interfere with churches and religious associations where rights of property or civil rights are involved, but will not revise the decisions of such associations upon ecclesiastical matters, merely to ascertain their jurisdiction, and that the decisions of ecclesiastical courts are final as to what constitutes an offense against the discipline of the church; that a rector of the Protestant Episcopal Church has not such a vested right in his office, such a property in the right to preach and in the salary and emoluments pertaining thereto, as will authorize the civil courts to interfere, upon that ground, to restrain an ecclesiastical court in his trial for an alleged offense against the canons and discipline of the church, and that the contract of employment and for his salary must be construed and enforced by reference to the canons which form a part of it, and, if the minister be suspended and deposed for any ecclesiastical offense, his right to the salary and emoluments is gone; and it was said that: “ The minister, in a legal point of view, is a voluntary member of the association to which he belongs. The position is not forced upon him; he seeks it. He accepts it with all its burdens and consequences, with all the rules and laws and canons then subsisting, or to be made by competent authority, and can at pleasure and with impunity abandon it.”

In the Connitt Case, one of the questions was whether the plaintiff was entitled to his salary as pastor, although the pastoral relation had been dissolved by an ecclesiastical court of the denomination to which the church of the plaintiff belonged. The church over which the -plaintiff was pastor was attached to -the religious denomination known as the “ Reformed Church in America,” and was under tbe ecclesiastical order and government of that church. In the churches of that denomination the trustees or consistory call the minister, subject, however, to the approval of an ecclesiastical body called the “ Classis,” and this body, in a proper case, had the power of dissolving the pastoral relation. It was held that the relation of pastor and people was purely ecclesiastical, and that ecclesiastical tribunals alone have cognizance of it; that the contract between the particular church and its pastor was conditional, and dependent upon ecclesiastical relationship, and, being so, the salary could not be recovered after the dissolution of the pastoral relation by an authorized church tribunal. It was said: “ The secular courts have no jurisdiction over the ecclesiastical rights of either pastor or people. Neither can resort to those courts for the protection or enforcement of such rights. The fact that the civil contract is subsistorv to this relation does not serve to bring this within the jurisdiction of the civil authorities. Nothing in the case of Austin v. Searing, 16 N. Y. 112, relied on by the plaintiff,<> warrants the conclusion that it does. The doctrine of that case is that the civil courts will not recognize the adjudications of voluntary associations upon the property rights of the members of such associations. How inasmuch as the relation in question is not a civil one, dependent upon municipal law, but wholly ecclesiastical, and wholly dependent upon ecclesiastical rule, and its administration by the church judicatories, it is not for this court to review the decisions and judgments of such judicatories. Over them, and the administration of their rules and usages, we have no jurisdiction. No civil right is infringed by them in dissolving the pastoral relation. Mr. Gonnitt has no right to the continuance of such relation, cognizable in the civil courts, and consequently any wrong done him by the church courts in its dissolution is not one cognizable by the civil courts either in an original or appellate proceeding. The right to salary, etc., it is true, is by contract made dependent upon the continuance of the pastoral relation. But this does not bring such continuance within the cognizance of the civil courts. They can inquire only into the fact of the continuance. The relation is nevertheless controlled by the ecclesiastical authorities, and the fact of their dissolution of it is conclusive.”

Upon the affirmance of this case in the court of appeals it was held that, when ecclesiastical judicatories have jurisdiction, civil courts cannot inquire whether they have proceeded according to the laws and usages of their church, or whether they have decided correctly; but their decisions are final, and binding upon the parties and courts. It was said that the decision of such tribunals as to their own jurisdiction in ecclesiastical matters, where there is not clearly an absence of jurisdiction, should receive great weight in civil courts. In Attorney- General v. Geerlings, 55 Mich. 562, it was held that the court would not inquire into the validity of the election of a deacon; that the office was ecclesiastical, not statutory, and is controlled by the unincorporated membership of a religious association, the decision of whose tribunals upon the election is final; and that the fact that the deacons are authorized by statute to be ex-officio trustees of the corporation does not put the religious body and its elections under the control of the temporal courts. In McGuire v. St. Patrick’s Cathedral, 54 Hun, 207; 27 St. Rep. 192, it was held that the question whether a person who was a member of a Roman Catholic Church, died in communion with that church, and so became entitled to burial in his lot in a Catholic cemetery, was, under the usages and discipline of that church, to be determined by the ordinary or bishop, and that the decision of that officer adverse to that right was conclusive in an action by the representatives of the .deceased to obtain such burial, although by the rules of the church no provision was made for a hearing, and none took place, and the decision was based on information informally acquired. . Judge Van Brunt, in his opinion, says: “ Under our form of government we do not think that courts can be called upon to compel churches to administer religious rights to persons claiming to be its members, or perform an act in any way impressed with that character.”

The controversy in this case is not over the right of the plaintiff Brockway to recover his salary or the possession of his rector-ship under some contract he has made. The theory of the action is that the plaintiffs need something more than they now have, in order to make and consummate a complete and operative contract. In the complaint they seek either to nullify or to have the benefit of the canon as to the transfer of Brockway to the diocese of Central New York. No good reason, however, op-' pears for treating it as a nullity. So, the plaintiffs say, it should be enforced by this court for their benefit; that we should compel the defendant to so qualify the plaintiff Brockway that he might be able to consummate his conditional arrangement. The right of Brockway to be transferred to the diocese of Central New York was simply an ecclesiastical right, based on no contract but on the canons of the church. Have we any right to order the specific performance of the canon, or supervisé the action of the proper officer under it? The weight of authority is, I think, against it. But, assuming that the plaintiffs have a civil right that may be considered here, the order of inhibition is in their way. This order was issued by the officer, who, under the canon applicable thereto, had the right and power to issue such an order. He had, as bishop, jurisdiction of the subject-matter, and Brockway, the person to whom it was directed, was within his diocese, seeking from him recognition. Broclcway had submitted to him his “letter dimissory,’’ and this had been returned to the bishop who gave it, and the defendant had refused to give a certificate of transfer. Still Brockway continued to officiate as a rector, although the canon forbade it until he had received a certificate of transfer in a specific form. In form, Brock-way was violating the canon, although, as he alleges, he followed a custom prevalent in that diocese, and -had license and authority from the defendant to officiate in St. James’ Church during the time he did so officiate. He did not have the certificate required by the canon. The circumstances under which Brockway acted might materially mitigate his offense, but would not take away the right and duty of the defendant to enforce the canon. The plaintiffs allege that the order was wrongfully and unlawfully issued, but no facts are stated other than those that have been referred to. It is alleged to be in conflict wdtli the law of the state, in that it interfered with the pending contract between the plaintiffs; but this ground is not now pressed. No good reason is apparent for treating the canon as unreasonable, or in conflict with the law of the state. The order was temporary in its character, having in view the provisions of the .canon under which it was stated to be issued. It is not claimed that Brockway was entitled to previous notice. The canon does not require it. Besides, it is evident from the statements in the opening that Broclcway had notice of the objections that defendant had against him. There was correspondence between them, and the order was the culmination of the matter. It seems to me very clear that the defendant had jurisdiction to make the order, and, if so, under the law as laid down in the Connitt and the Walker Cases, we have no right to consider the merits, and determine whether there was just cause for the order. It being valid and binding on the parties, and not reviewable here, the plaintiffs are not in a position here to ask the court for relief. They cannot ask this court to aid them in completing their contract when one of the parties to it is not qualified to enter into it, according to canons and rules that bind both parties. The plaintiff Brockway voluntarily entered the ministry of the Episcopal Church, and thereby became subject to the rules and canons of that church. In case of any dissatisfaction with the manner in which the ecclesiastical affairs of the church were administered, he took the benefit or burden of whatever remedies were provided for within the church. He has not alleged that he has exhausted the remedies within the organization,—an allegation which has in some cases been held to be necessary ; nor is it alleged that he has not a complete remedy within the church for any injustice the defendant may have done. But the plaintiffs say that they have a complete cause of action, in which this court has jurisdiction, in the following allegations: “ That by reason of the aforesaid wrongful and unlawful conduct and acts of the defendant, and because of his said wrongful and unlawful refusal to give the plaintiff Albert A. Broclcway said certificate of transfer, and because, of his said wrongful and unlawful act in issuing said order of inhibition or prohibitory letter, the plaintiffs are wrongfully and unlawfully prevented from performing and fulfilling, upon their respective parts, the aforesaid agreement and contract made by them for the services of the plaintiff Albert A. Brock way as rector of St. James’ Church.”

These are rather conclusions from the other facts stated, and are not to be deemed admitted. Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 337; Coffin v. Grand Rapids Hydraulic Co., 46 St. Rep. 851; 18 N. Y. Supp. 782, and cases cited; Schroeder v. Becker, 22 Wk. Dig. 261; Moak, Van Santv. Pl. (3d ed.) 184. If by these allegations the defendant is sought to be made personally liable for a wrongful act, that is not within the scope of the action. It cannot in this way be turned into an action at law for damages.

The foregoing considerations lead to the conclusion that a case is not presented by the plaintiffs which entitles them in this court to any relief, and that therefore the judgment of the special term is correct.

All concur. Judgment affirmed, with costs.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    John D. Higgins, App’lt, v. Georgianna M. Kingsley, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1894.)

    Fences—Division line.
    A fence is not on the division line between adjoining lots, where the wire netting is attached to rails set into the same sides of the posts, whose centers are on such line.
    Appeal from a judgment dismissing the complaint.

      D. B. Wager, for app’lt; J. S. Baker, for resp’t.
   Merwin, J.

The parties to this action own adjoining lots in the city of Rome. The defendant undertook to build her portion of the division fence, and claims that she has placed it along the line equally-on the lands of each owner. The plaintiff claims— First, that the defendant had no right to place any part of it on his land; and, second, that, if she had such right, she has not placed it equally on the land of each, but has by it improperly taken into her own possession the strip here sought to be recovered.

The first position of plaintiff is based upon a judgment between the same parties, entered shortly before the fence was built. The defendant owned a strip of land 22 feet wide, adjoining to easterly side of plaintiff’s lot. There was a dispute between them as to where the division line was, and the defendant was about to build a fence westerly of the line as claimed by plaintiff, and on his (the plaintiff’s) land as he claimed it. Thereupon the plaintiff brought an action against the defendant and her husband to restrain, them from placing any fence or obstructions on plaintiffs land, and west of the line,as plaintiff claimed it. Thereafter, in pursuance of an offer made by the. defendant, a judgment was entered, fixing the location of the division line, and perpetually restraining the defendant “from placing any.fence or obstruction on, or cutting trees from lot 14, in block 12, in the city of Rome, N. Y., westerly of the strip of 22 feet, as above located and described, and to remove any such fences or obstructions, if any, placed thereon.” The question as to how a division fence should be built, or whether one should be built at all, was not in valved in the action. The defendant was in the attitude of taking more than she was entitled to, as the plaintiff claimed, and the plaintiff sought to stop her. The question in that case was as to, where the dividing line in fact should be located. The judgment should not, I think, be construed to prevent the defendant from building, on the true line, a proper division fence. Shaw v. Broadbent, 129 N. Y. 114; 41 St. Rep. 499. The parties evidently contemplated that a division fence would be built, and had agreed upon the part that each shoul build. A division fence, when properly built, is said to be, in contemplation of law, upon the line between the adjoining lots. Ferris v. Van Buskirk, 18 Barb. 397.

Was the fence properly built? Posts about four inches in diameter were set about fifteen, feet apart along the line. The posts-were connected with rails which were set into the' westerly or plaintiff’s'side of the posts, and flush with that side. Then upon the westerly side of the posts and rails a wire netting about a quarter of an inch thick, and about five feet high, was placed along the whole distance. The posts, with the wire netting on, were four inches thick; two inches of the" post being on defendant’s land, and the balance of the posts, together with the netting and rails, being on plaintiff’s land. The netting operated to exclude from the possession of plaintiff, and include upon the defendant’s side of the fence, two inches in width of plaintiff’s land the whole distance, except as occupied by the posts. This is the space that plaintiff seeks to recover. There is no doubt of the role that a division fence should be made equally upon the lands of each. Warren v. Sabin, 1 Lans. 79; Ferris v. Van Buskirk, supra; Carpenter v. Halsey, 60 Barb. 47; Newell v. Hill, 2 Metc. (Mass.) 180; Pettigrew v. Lancy, 48 Mo. 380. If more than half is built upon the land of one party without his consent, he is entitled to relief. Sparhawk v. Twichell, 1 Allen, 450; Leprell v. Kleinschmidt, 112 N. Y. 364; 21 St. Rep. 30. In this case the trial court has held that the fence was built equally on the lands of each. There is no evidence of any custom to build a division fence in the manner .this was built. The plaintiff objected to it. in time. Clearly, the fence is not equally on each. The defendant has in effect appropriated to her own use a certain portion of plaintiff's lot, small, it is true, but the plaintiff has a right to assert his ownership. Countryman v. Lighthill, 24 Hun, 407, and cases cited. There is no evidence that a proper division fence cannot there be made, that will be equally on each party. We think the court erred in holding that the fence was built equally on lands of each party, and for that reason the judgment should be reversed,

All concur.

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


author: M erwin, J.

text:
    Alexander R. Gebbie et al., Resp’t, v. Lovitt E. Stitt, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1894.)

    Trade-mark—Geographical name.
    A manufacturer will be protected in the use of a geographical name as. against, another manufacturer, who uses the same name to designate a, similar article for the fraudulent purpose of deceiving purchasers.
    Appeal from an order denying a motion to dissolve a preliminary injunction.

      H. C. Cook, for app’lt; Frank Bowman, for resp’t.
   M erwin, J.

“Deer River” is the name of a village and post-office in the town of Denmark, in the county of Lewis. Prior to 1891, the plaintiff Gebbie had for many years been engaged at that place in the. manufacture and sale of a certain kind of plow, having stamped upon the top of the beam the name “ Deer River ” as a trade-mark, and it was known generally to the public as the “ Deer River Plow.” An extensive and lucrative business had been established, and the name “ Deer River,” as applied to that particular kind of plow as a trade-mark, had become of great value, and relied on by the public as a guaranty of a good article. Early in 189Í the plaintiffs became the owners of the manufacturing plant, the good will in said plow, together with the tools and fixtures and patterns used in its manufacture, and removed the plant to Lowville, in the same county, where they have since, under the name of the “ Lowville Iron Works," been engaged in the manufacture and sale of the said plow and the use thereon of the trade-mark “ Deer River.” In 1893, the plaintiff Gebbie sold to the defendant the plow-factory building at Deer River, upon the representation of the defendant that he purposed to make the same into a blacksmith and general' repair shop. Instead of doing that, he began in or about March, 1894, the manufacture of plows in imitation of the plaintiffs’ plow. The defendant was a former employe of the plaintiffs, and "had aided them in preparing their plow for the trade. Tt is alleged in the complaint, and not denied by defendant, that in a way unknown to the plaintiffs, and without their knowledge or consent, he had obtained duplicates of the patterns used by plaintiffs in manufacturing the plow, and that thereupon he began,, at the village of Deer River, the manufacture of plows in imitation of plaintiffs’ plow for the general trade from, the duplicate patterns, and bearing the name “ Deer River.” The defendant in his affidavit states that in May, 1893, he purchased of Debbie the foundry and building, shops, and fixtures known as the Deer River plow foundry, or factory, and that at that time there was on the top of the factory building, and bolted on the same, a plow on which was plainly marked the words “Deer River,” which passed with the building; that the foundry or factory there has been known for many years as the Deer River foundry or factory, and that defendant now is, and has been since May, 1893, engaged there in the manufacture of plows, but not of the same plow which is manufactured by plaintiffs at Lowville, or was formerly manufactured by them, or either of them, at Deer River; that the name which he uses in connection with the plow was not used as a trademark, but simply as an advertisement for the public as a geographical name of the place where the plow was manufactured. He does not deny that he purchased the premises of Debbie for the purpose of making the same into a’ blacksmith and general repair shop. He alleges that the plaintiffs, after moving to Lowyille, abandoned the use of the words “Deer River,” but this is fully met by the plaintiffs’ opposing affidavits. . The plows manufactured by defendant have on top of the beam the words “Deer River,” ancl on the side of the beam the words “ Lovitt E. Stitt, Manufacturer, Deer River, N. Y.” The plows manufactured by plaintiffs have on the top of the beam the words “ Deer River," .and on the side, in one pattern, the words “Lowville Iron Works 'Co., Lowville, N. Y.,” and, in another pattern, the words “ Low-ville, N. Y.,” In the plaintiffs' opposing affidavits it was shown that the defendant or his agents were advertising his plow as the •“ genuine old original Deer River plows,” and represented that it was identical with the plow manufactured by the plaintiffs and their predecessors.

In Newman v. Alvord, 51 N. Y. 189, it was held that the name ■of a place may be adopted and used as a trade-mark. The right •of protection against an infringement upon such use is not necessarily dependent upon a proprietary right in it, or the exclusive right to its use, but when another resorts to the use of its fraudulently, as an artifice or contrivance to represent his goods or business as that of the person so previously using it, and to induce the public to só believe, the court may, as against him, afford relief to the party injured. Bradley, J., in Koehler v. Sanders, 122 N. Y 74; 33 St. Rep. 267; Meneely v. Meneely, 62 N. Y. 427.

In Wotherspoon v. Currie, L. R. 5 H. L. 508, it was held that the name of a place may become a trade denomination, and, as such, the property of a particular person who first gives it to a particular article of manufacture, and the employment of the name by another person for the purpose of describing an imitation of that article is an invasion of the right of the original manufacturer, who is entitled to protection by injunction. Of this case Judge Earl, in the Newman Case, says: “ In that case the plaintiffs, and those to whom they succeeded, had formerly carried on the business of starch makers at Glenfield, near Paisley, and their starch had become known in market, and was sold, as 1 Glenfield Starch.’ After the plaintiffs’ starch had become thus known, they removed their starch works from Glenfield to another small place near Paisley, and there continued to manufacture their starch, which continued to be known and Sold as ‘ Glenfield Starch.’ The defendant afterwards commenced to manufacture starch at Glen-field, and placed on the labels upon his packages of starch the word ‘ Glenfield,’ and sold his starch as ‘ Glenfield Starch.’ He claimed the right to do this because his starch was made at Glen-field, and the plaintiffs’ was not. But it appeared that he used the word Glenfield ’ for a fraudulent purpose,—to increase his sales at the expense of the plaintiffs by inducing the public to purchase his starch under the belief that it was the starch made by the plaintiffs,—and it was held that the plaintiffs were entitled to be protected in the use of the word as their trade-mark. The defendant could truthfully apply the word 1 Glenfield ’ to his starch, but he was restrained because he applied it with a fraudulent and dishonest purpose.”

In High on Injunctions (section 1069) it'is said: “The protection afforded by courts of equity against the infringement of trade-marks is not dependent upon any exclusive right to a particular name or to a precise form of words. The right to relief is rather' dependent upon the necessity of extending protection against the commission of fraud, and this fraud may consist in the use of a name to which defendant is entitled, if such use be coupled with other circumstances rendering it an infringement of complainant’s rights.”

In Lee v. Haley, 5 Ch. App. 161, it is said that: “ The principle upon which the cases on this subject proceed is not that there is property in the word, but that it is a fraud on a person who has established a trade, and carries it on under a given name, that some other person should assume the same name, or the same name with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name.”

In Lea v. Wolf, 46 How. Pr. 159, it it said : “ When words or names are in common use, no one person can claim a special appropriation of them to his peculiar use; but where words, and the allocation of words, have, by long use, become known as designating the article of a particular manufacturer, he acquires a right to them, as a trade-mark, which competing dealers cannot fraudulently invade. The essence of the wrong is the false representation and deceit. When the improper design is apparent, an injunction should be issued. . In such cases,'injunctions have been sustained though the name of a place, or of a celebrated person, were within the trade-mark protected by the injunction.” ' '

In Evan v. Von Laer, 32 Fed. 153, it was held that the plaintiff would be protected in the use of a geographical name in cas there was fraud on the part of defendant, and the case of Mill Co. v. Alcorn, 150 U. S. 460, does not lay down a contrary rule.

In the present case, the special term, from the papers before it, had a right to assume that the defendant was not in good faith using the name “Deer River" as indicating the place of manufacture; that he did not obtain on his purchase from the plaintiff Grebbie the good will of the business, but bought the property for another purpose, as he represented when he bought it; that' he surreptitiously obtained the patterns of the plaintiffs, or duplicates, and made his plows therefrom, and was in the attitude of committing or attempting to commit upon the plaintiffs a fraud by inducing persons to deal with him under the belief that they were dealing with the person, or the true representatives of the person, who had given reputation to the name; and that he in substance falsely represented to the public and to plaintiffs’ customers that he owned the good will of the business. In this view of the case, and in the light of the authorities referred to, it should not be said that the special term erred in declining to vacate the injunction. The discretion of the special term in the matter (Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 121 N. Y. 397; 31 St. Rep. 524), should not be interfered with.

All concur. Order affirmed, with $10 costs and (disbursements.


author: Dykman, J.

text:
    Mary A. Peckham et al., Resp’ts, v. The Dutchess County Railroad Company, Def’t. James K. O. Sherwood, Receiver, etc., App’lt.

      (Supreme Court, General Term, Second Depa/rtment,

      Filed October 26, 1894.)
    Railroads—Farm Crossings—Receivers.
    A judgment requiring a railroad company to construct a farm crossing will be enforced against a subsequently appointed receiver of the lessee of such company. .
    Appeal from an order directing the receiver to comply with the requirements of the judgment in the above entitled action.

      James Armstrong, (Milton A. Fowler, of counsel), for app’lt; Herrick & Losey, for resp’ts.
   Dykman, J.

We deem it unnecessary in this action to do more than to state our conclusions, which are these: The judgment in the action against the Dutchess County Railroad Company recited in the papers was in the nature of a judgment in rem. _ The only right of that company to maintain a railroad is to maintain it in compliance with the statutory provisions, which compel the company to furnish suitable farm crossings. The judgment in the case was that the particular work intended to be done was necessary to comply with the statute which gives such farm crossings. The judgment was recovered before the lease of the Reading Railroad Company, and bound the latter, or any other person or corporation who acquired an interest in the Dutchess County Railroad subsequently to the date of its recovery. The receiver, Sherwood, has simply acquired the rights of the Reading Railroad Company, and, as against the plaintiff, cannot claim any greater immunity from compliance with the judgment of the court than any other party or company that might succeed to its rights. It is true that the order is broad enough in its terms to compel the receiver to pay, out of any fund of the Reading Road, the expense of constructing the farm .crossings, but the receiver must do one of two things: Either comply with the judgment of the court as to the manner in which the Dutchess Railroad shall be constructed, or abandon the property. In case of such abandonment, the plaintiff can then proceed against theDutchess & Columbia Railroad Company, but the receiver can only hold that railroad subject to the same liabilities as any other tenant. If he has failed to comply with the terms of the lease, the Dutchess & Columbia Railroad Company can compel him, receiver though he is, to either pay the rent or quit, and he must do the same to this judgment.

The order should be affirmed, with $10 costs and disbursements.


author: McAdam, J.

text:
    The People ex rel. John Simpson, Pl’ff, v. The Board of Police Commissioners of the City of New York, Def’t.

      (New York Superior Court, Special Term,

      Filed October, 1894.)

    Election of officers—Nominations.
    The courts will recognize a nomination first made, where the convention, after making such nomination, reassembled and nominated another person for the same office, though the county committee had not declared the first nomination irregular and ordered a new nomination.
    Application for a writ of mandamus to the board of police commissioners of the city of New York.

      C. 0. Johnson, for relator; William H. Ciarle and T. Connoly, for res’pt police commissioners; Coleman & Donohue, for J. T. Campbell.
   McAdam, J.

This is an application for a mandamus directing the commissioners of police to receive the certificate of nomination of the relator as the Republican nominee for congress in the Ninth congressional district, and print his name on the official ballot of the Republican party as such candidate. It seems that the police board, by a divided vote, declined to print the relator’s name upon the official ballot, on the ground that one Timothy J. Campbell claimed to have been nominated by the same convention for the same office, and the board was divided as to whether the name of Simpson or Campbell should go upon the ticket. This makes it necessary to examine the claims of the rival nominees. It appears that the convention for the Ninth congressional •district was required to, and did, meet on October 2, 1894, in the Lincoln Club rooms; that by a unanimous vote John J. Collins was elected chairman, and Israel Ellis secretary; and that the convention was thereafter adjourned, subject to the call of the chair. The chairman directed the secretary to reassemble the convention on the evening of October 13,1894, at the same place, and to notify the delegates accordingly. Ellis, the secretary, did not notify them, but one Ralph Nathan, by the authority of Ellis, did so. When the convention met on October 13th, the meeting was called to order by the chairman, and, the secretary having declined to act, another person was substituted for him. The convention proceeded to nominations, and John Simpson, the relator, was the unanimous choice. A certificate was made out in the form prescribed by Laws 1890, chap. 262, § 3, and all the requirements thereof were observed. It appears that subsequently Ellis, the deposed secretary,-of his own volition, and without the sanction of the chairman, summoned the delegates of the convention to reassemble on October 16th, on which occasion a number of them attended, and Timothy J. Campbell was nominated by them for the same place for which Simpson had been previously nominated. It is not clear how many delegates attended the meeting which nominated Simpson, nor how many were present at that which nominated Campbell, and, so far as the papers disclose, the nomination of Simpson was in this regard as regular as that of his rival. But the controlling feature of the case is that Simpson was nominated first, and the power to nominate was exhausted ; and the further fact that, the meeting at which Campbell was named not having been called by the chair according to the adjournment, was unauthorized. Nominations are under-party control, and, if this district nomination of Simpson was for any reason irregular, the central body should have so declared it, and ordered a new nomination. The districts are but branches of the central organization, the county committee the controlling body, much as it is with grand and subordinate lodges. Party differences, like family or religious disputes, should be settled within the home organization, or by its dominating authority. The Republican organization, as a party, has taken no steps in this internal strife. It has not repudiated the nomination of Simpson, nor has it ordered a new election, or in any authoritative manner recognized the nomination of Campbell. Having made one nomination, the party could not, while that remained in force, make another. If it were otherwise, it might keep on until it had as many candidates as voters. No law should countenance such a course. Part of a convention cannot secede from a regular meeting of the nominating body, and make nominations on its own account, nominations must be act of the party, not of a clique. Matter of Redmond, 5 Misc. Rep. 369; 55 St. Rep. 150. As the party that nominated Mr. Simpson has not in any legal form declared its preference for Mr. Campbell, the court cannot do so, but must direct the police commissioners to place upon the official ballot of the Republican party the name of John Simpson as its candidate for congress from the Ninth congressional district; and a mandamus to that effect is directed accordingly

Mandamus granted.


author: Hatch, J.

text:
    The People, Pl’ff, v. John K. Hubbard, Def't.

      (Buffalo Superior Court, Criminal Term,

      Tiled November, 1894.)

    Criminal law—Indictment—Usury.
    An indictment for usury, under § 378 of the Penal Code, must charge the usurious agreement, specifying its terms and the particular facts relied, upon to bring it within the prohibitive clause of this section.
    Demurrer to an indictment for usury.

      Daniel J. Keneficlc, dist. atty., for People; Marcy,& Close, for deft.
   Hatch, J.

The charging clause in the indictment alleges that defendant, at a time and of a person specified, “wrongfully and unlawfully did exact, take and receive * * * $3.50 in-money, as interest, discount and consideration upon the loan and forbearance * * * of $33.00 in money for the period of one month, being a greater sum for the use of the money than the statute allowed.” The ground of demurrer, among others, is that the facts alleged do not constitute a crime. I think the indictment is defective in this regard. The section of the Code (Pen. Code, § 378) does not attempt to define what opts constitute usury; it simply provides that a person taking usury shall be guilty of a misdemeanor. The language is, in all essential parts, the same as the prohibitive clause of the Revised Statutes respecting rates of interest. 4 Rev. St (8th Ed.) 2512, § 2. In order, therefore, tó constitute a good plea of taking usury under this section, the allegations of the indictment must charge the usurious agreement, specifying its terms, and the particular facts relied upon to bring it within the prohibitive clause of the section. Manning v. Tyler, 21 N. Y. 567; Western Trans. & Coal Co. v. Kilderhouse, 87 N. Y. 435. The receiving or exacting a greater rate of interest than is authorized by statute may or may not constitute usury, dependent upon the circumstances, for, in order to constitute usury, it must appear that the exaction and reception of the additional interest was in pursuance of a mutual agreement between the parties, Morton v. Thurber, 85 N. Y. 551; People v. Wheeler, 47 Hun, 484; 14 St. Rep. 422; and this agreement must be alleged and proved. People v. Albow, 140 N. Y. 134; 55 St. Rep. 253.

The demurrer to the indictment is, therefore, allowed, and the case is directed to be resubmitted to another grand jury.


author: Smith, J.

text:
    The People, Pl’ff, v. Samuel K. Hawkins, Def’t.

      {Supreme Court, Delaware Oyer and Terminer,

      Filed October 1894.)

    Constitutional law—Convict made goods.
    Chap. 698 of 1894, requiring convict made goods to be labeled as such when exposed for sale, is unconstitutional.
    Demurrer to an indictment for violation of chap. 698 of 1894.

      W. F. White, dist. atty., for People; Beynolds, Stanchfield & Collin, for deft.
   Smith, J.

This defendant was indicted by a grand jury of Delaware county for a violation of chapter 698 of the Laws of 1894. That statute provides, in substance as follows :

“ Section 1. All goods, wares and merchandise made by convict labor in any penitentiary, prison, reformatory or other establishment in which convict labor is employed in any state, except the state of New York * . * shall, before being exposed for sale, be branded, labeled or marked as hereinafter provided, and shall not be exposed for sale in any place within this state without such brand, label or mark. °
“ Sec. 2. The brand, lable or mark hereby required shall contain at the head or top thereof the words ‘ Convict made,' followed by the year and name of the penitentiary, prison, reformatory or other establishment in which it was made, in plain English lettering, of the style and size known as great primer roman condensed capitals. The brand or mark shall, in all cases where the nature of the article will permit, be placed upon the same, and only where such branding or marking is impossible shall a label be used, and where a label is used it shall be in the form of a paper tag, which shall be attached by wire to each article where the nature of the article will permit, and placed securely upon the box, crate or other covering in which such goods, wares or merchandise may be packed, shipped or exposed for sale. Said brand, mark or label shall be placed upon the outside of and upon the most conspicuous part of the finished article and its box, crate or covering.”
“Sec. 5. Section three hundred and eighty-four-b of the Penal Code is hereby amended to read as follows :
“ Sec. 384b. Penalty for dealing in convict made goods of other ■states without labeling. A person having in his possession for the purpose of sale, or offering for sale, any convict made goods, wares or merchandise, manufactured in any other state, without the brand, mark or label required by law, or who removes or defaces such brand, mark or label, is guilty of a misdemeanor, punishable by a fine not exceeding ten hundred dollars, nor less than one hundred dollars, or imprisonment for a term not exceeding one year nor less than ten days, or both.”

The defendant has demurred to this indictment as not alleging facts sufficient to constitute a crime. The contention made upon the argument of the demurrer is that the act is unconstitutional and, therefore, void. This contention is based upon two grounds: (1) ‘That inasmuch as the act operates upon the property owned at the time it took effect, as well as upon property thereafter owned, it constitutes an unlawful interference with vested rights. (2) That the act makes such a discrimination between goods manufactured in foreign states and those manufactured in New York state as is repugnant to that clause in the United States Constitution, which places the control of interstate commerce in the hands of congress alone.

Upon the first ground of contention it hardly seems to admit of controversy that the effect of the act is to restrict the sale of the. articles specified. That restriction is not trifling or incidental, but is material, and is evidently the object which the statute seeks to accomplish. In Forster v. Scott, 136 N. Y. 577; 49 St. Rep. 699, it is held: “ Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of Ins property within the meaning of the Constitution ; and, although the police and other powers of government may sometimes incidentally affect property rights, these powers can only be exercised to promote the public good, and are always subject to judicial scrutiny.”

The brand required to be stamped conspicuously upon the .goods is such a brand as would bring the dealer who should traffic in them into obloquy with all the laboring classes of the state. Of necessity, then, it would restrict the sale, and would operate as a practical exclusion of such goods from the market. Such a restriction of sale would seem to be, within the principle of the case cited, the deprivation of the owner of such goods of his property without process of law and without compensation. Whether the police power of a state could lawfully be exercised to thus impair the value of property acquired after the act takes effect, it is not necessary here to determine. The effect of the act is not limited to property subsequently acquired. It affects, as well, property which was owned at the time that the act took effect. As to such property, it is clearly an invasion of vested rights. In Wynehamer v. People, 13 N. Y. 378, it was held: “(1) That the provisions of the act to prevent intemperance (Laws 1855, p. 340) substantially destroy the property in intoxicating liquors owned and possessed by persons within the state when the act took effect. (2) In its application to such liquors so owned and possessed, the act violates the provision of the state Constitution which declares that no person shall be deprived of life, liberty, or property without due process of law. (3) But as no discrimination is made by its provisions between liquor owned when-it took effect and that which might ■afterwards be manufactured or imported, and they are made operative on both, the act is unconstitutional and void."

I am unable to distinguish the case under consideration from the case there decided. It is true that the destruction of property may not be so effectual under the act of 1894 as under the act there under consideration; but the principal is the same, and, inasmuch as vested rights which existed at the time when the act went into effect are not saved from the operation of the act, within that decision the act is void, both as to property then owned and as to that subsequently acquired.

But the defendant’s second ground of contention appears to be supported by authority. In Welton v. State of Missouri, 91 U. S. 275, it is held: “ (1) A license tax required for the sale of goods is in effect a tax upon the goods themselves. (2) A statute of Missouri which requires the payment of a license tax from persons who deal in the sale of goods, wares, and merchandise which are not the growth, produce, or manufacture of the state,- by going from place to place to sell them in the state, and requires no such license tax from the persons selling in a similar way goods-which are the growth, produce, or manufacture of the state, is in conflict with the power vested in congress to regulate commerce with foreign nations and among the several states. (3) That power was vested in congress to insure uniformity of commercial regulation against discriminating state legislation. It covers property which is transported as an article of commerce from foreign countries, or among the states, from hostile or interfering state legislation until it has mingled with and become a part of the general property of the. country, and protects it, even after it has entered a state, from any burdens imposed by reason of its foreign origin. (4) The non-exercise by cognress of its power to regulate commerce among the several states is equivalent too declaration by that body that such commerce shall be free from any restrictions.”

In Webber v. Virginia, 103 U. S. 344, a statute of Virginia required that an agent for the sale of articles manufactured in other states must first obtain a license, for which he was required to pay a specific tax, for each county in which he sells, or offers to sell, them, while an agent for the sale of articles manufactured i.n that state, if acting for the manufacturer, was not required to obtain a license or pay any license tax. Held, that the statute is in conflict with the commerce clause of the Constitution of the United States, and void. Further held, that commerce among the states is not free whenever a commodity is, by reason of its foreign growth or manufacture, subjected by state legislation to discriminating regulations or burdens.

In Voight v. Wright, 141 U. S. 62, it was held : That an act of Virginia of March, 1867, * * * providing that all flour brought into the state, and offered for sale therein, shall be reviewed, and have the Virginia inspection marked thereon, and imposing a penalty for offering such flour for sale without such review or inspection, is repugnant to the commerce clause of the constitution, because it is a discriminating law, requiring the inspection of flour brought from other states when it is not required for flour manufactured in Virginia.”

It is not necessary to cite further authorities to the proposition . that a state has not the right to impose upon property of foreign manufacture a burden which is not imposed upon property manufactured within the state. If I am right in the conclusion that the brand required by the act in question to be stamped upon property of foreign manufacture constitutes such a burden, it follows, then, that the statute in question is void as repugnant to the commerce clause of the United States Constitution.

I have examined with great care the able brief of the counsel for the people in this case, but I can find no authority cited therein which in any way conflicts with well-regulated rules of law which must govern the interpretation of this statute. Under those rules the statute must be adjudged to be an invalid exercise of legislative power, and its infraction constitutes no crime. The demurrer must, therefore, be sustained. Demurrer sustained.


author: Daly, C. J.

text:
    Catharine Mooney, App’lt, v. James Mooney, Resp’t.
    (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    1. Divorce—Alimony—Order—Construction .
    An order for alimony, which directs the payment of the sum of $20 per week, in sums of $40 semi-monthly, means that it is payable at the rate of $80 per month.
    2. Same.
    Where a construction of such order has been adopted by the parties for more than six years, the court will not give it a different construction at the instance of one of the parties.
    Appeal from an order fixing the payment of arrears of alimony.

      Henry ¡Schmitt, for app’lt; Charles W. Coleman, for resp’t.
   Daly, C. J.

A decree of separation was granted on March 19, 1887, to the plaintiff, and the defendant was directed to pay her “ the sum of twenty dollars per week * * * in the following manner; that is to say, in sums of forty dollars semimonthly on the first and third Mondays of each month.” Twenty dollars per week amounted annually to $1,040, $40 semimonthly to $960. Defendant paid the latter Sum for over six years, up to September, 1893, and it does not appear that any other demand was made upon him during that period. In June and July, 1894, having been irregular in his payments of $80 per month, for several months, and being in arrears therefor, the plaintiff made a demand upon him for arrears of alimony at the rate of $1,040 per annum, for the whole period from the date of the decree up to that time; and, payment not having been made, she instituted proceedings to punish him for contempt. The court granted the motion in so far as it enforced unpaid alimony at the rate of $80 per month, but declined to adopt the plaintiff’s view that the decree compelled the payment of any greater sum. In this view we agree. There seems to be a contradiction in the terms of the decree, which provides for the payment of $20 per week by payments of $40 semimonthly. This doubtless arose from the familiar habit of reckoning four weeks to the month, and clearly indicates that that method of computation was in the minds of the parties and counsel when weekly payments of $20 were specified, and that 52 payments per annum of $20 each were not contemplated. As the decree was drawn by plaintiff’s counsel, it might with propriety be urged that it is to be construed most strongly against her; but it certainly has been construed in one way by both parties, as shown by the regular payment and receipt of $40 semimonthly for over six years, without any proceedings having been taken during that time to enforce the payment of any greater sum. The construction now claimed by defendant, having, therefore, been adopted by both parties, must, under the circumstances, be accepted by the court as their intention.

All concur.

Order affirmed, with costs and disbursements.


author: Pryor, J.

text:
    Walter Myers, Resp’t, v. Robert J. Dean, App'lt.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    Brokers—Commissions.
    A broker is entitled to commissions for procuring a lease, if he brings the parties together under such circumstances as result in its execution.
    Motion for reargument.

      P. Q. JEckerson, for motion; Boothby & Warren, opposed.
   Pryor, J.

This motion for a reargument might be denied on the ground that, as appears in the moving papers, the decision of the court of appeals claimed to be inconsistent with our determination was called to our attention. Rule 16. Of scarcely greater moment is it to do justice than, if possible, to satisfy suitors that justice has been done. Lord Kenyon ‘‘held it to be the great duty of every court to administer justice as well as they could between litigating parties. Another, and not less material duty, was to satisfy those parties that the whole case has been examined and considered.” 1 Townsend’s Lives of Twelve Eminent Judges, 99, 100. Counsel for the respondent thinks we overlooked the opinion of the court of appeals in the case upon a former appeal. He is mistaken. The opinion was carefully considered ; but we concluded, as- contended by the defendant, that the evidence as to the agency of the plaintiff in bringing the defendant and the comptroller together (132 N. Y. 71; 43 St. Rep. 391) was less on the latter than on the former trial; and so counsel insists, in opposition to the present motion. We find, on the contrary, after scrutiny of the two records, that the evidence upon the point is identical in both. Myers testified on the first trial, as on the second, that the defendant said, sua sponte, “ I will come up and see the comptroller.” So, also, that he “ introduced Mr. Dean to the comptroller.” Indeed, the plaintiff now testifies, for the first time, that defendant told the comptroller that the plaintiff sent him, and handed the comptroller plaintiff’s card. In opposition to the motion, attention is directed to the testimony of Wills, not introduced on the former trial, and to the admission of plaintiff for the first time, on the second trial, to the point that the plaintiff did not first suggest to the defendant the leasing of the property. But the court of appeals say that the bringing the defendant and the comptroller together, in connection with other facts not now in controversy, was a sufficient service to entitle to the commission. Our own opinion of the merit of the case is unaltered ; but, while conviction is the effect of argument, submission is the duty of the inferior tribunal. The higher court may reconsider its determination, but unreversed it is obligatory on us.

Motion granted. No costs.

All concur.


text:
    Bradley-Currier Company, Limited, App’lt, v. James J. Lally, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    Reargument—After entry of judgment.
    After judgment has been entered on the remittitur and paid, a motion for a reargument cannot he entertained.
    Motion for a reargument.

      George F. Alexander, for motion; Theo. FT. Friend, opposed.
   Pryor, J.

The remittitur has been filedyn the court below, the judgment of this court has been made the judgment of that, and the appellant has acquiesced in the decision of the appeal by payment of the judgment. It is therefore an insuperable obstacle to the motion that we no longer have jurisdiction of the cause. Jones v. Anderson, 71 N. Y. 599; People v. Village of Nelliston, 79 N. Y. 638. The reason urged for the motion, namely, that since our decision the court of appeals has enunciated the principle for which the plaintiff contends, if accepted as ground for a reargument, would be equally valid at any period, however remote from the determination of the appeal. It had been understood to be the law of this state that a secret advantage secured by a creditor nullifies a composition agreement as to him; but in June, 1894, the court of appeals established the contrary doctrine. May the countless creditors who in the past have lost by operation of the superseded principle now reassert their rights under the new adjudication ? “ Fxpedit reipublicae ut sit finis litiumA retrospective statute affecting vested rights is void (1 Kent. Comm. 455), and of no more efficacy is a retroactive adjudication. Gelpcke v. City of Dubuque, 1 Wall. 175.

Motion denied, with costs.

All concur.


author: Bischoff, J.

text:
    Alwin Eisert, Resp’t, v. William H. Brandt, App’lt.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    1. Pleadings—General denial.
    In an action on contract, the defendant may, under a general denial, prove an abandonment of the contract by the plaintiff.
    2. Appeal—First instance—The exclusion.
    The exclusion of evidence as inadmissible under the pleadings cannot be sustained on a ground, not taken in the court below.
    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff.

      William W. Bryan, for app’lt; if. F. Duffy, for resp’t.
   Bischoff, J.

The action was to recover the compensation fixed under a special agreement for the performance of work, labor, and services, and the supply of materials. The complaint alleged, ex necessitate, that the plaintiff had duly performed the agreement on his part, and the defense was a general denial. On the trial, the plaintiff gave testimony to the fact of such performance; yet when the defendant, called as a witness in his own behalf, was asked, “Did Mr. Bisert abandon the job?” the plaintiff's counsel objected to the introduction of the evidence upon the specific ground, and none other, that it was inadmissible because the plaintiff’s abandonment of the work was not pleaded in defense; and the court sustained the objection, to which the defendant’s counsel excepted. The evidence excluded was not thereafter admitted. That the ruling was error is clear beyond the need of argument. The plaintiff’s abandonment of the work refuted his claim of performance, and evidence of such abandonment tended directly to disprove the cause of action. It was therefore competent, relevant, and material to the issues created by the pleadings. “ tinder our system of practice, and under every rational, logical system of pleading, the defendant must, under a general denial, be permitted to controvert by evidence everything which the plaintiff is bound, in the first instance, to prove to make out his cause of action. Griffin v. L. I. R. R. Co., 101 N. Y. 348, 354. “ Under such an answer the defendant may introduce evidence to disprove, wholly or in part, any fact which the plaintiff must establish to show a cause of action.” O'Brien v. McCann, 58 N. Y. 373, 376. If we assume, agreeably to the contention of the plaintiff’s counsel, that the question excluded was objectionable as calling for the witness’ conclusion, the objection is not available to the plaintiff on appeal, since it was not made on the trial. “ When evidence is excluded upon a mere general objection, the ruling will be upheld, if any ground existed for the exclusion. 'It will be assumed, in the absence of any request by the opposing party or the court to make the objection definite, that it was understood, and that the ruling was placed upon the right ground. If, in such a case, a ground of objection be specified, the ruling must be sustained upon that ground, unless the evidence excluded was in no aspect of the case competent, or could not be made so; but where there is a general objection to evidence, and it is overruled, and the evidence is received, the ruling will not be held erroneous unless there be some ground which could not have been obviated if it had been specified, or unless the evidence in its essential nature be incompetent." Tooley v. Bacon, 70 N. Y. 34, 37. “ The reason of the rule requiring the grounds of an objection to be particularly stated is that the party offering the evidence may be distinctly informed of the grounds, in order that he may remove or obviate them.” Filio v. Jones, 4 Keyes, 328, 334. So, here, if the plaintiff’s counsel had objected to the question excluded upon the ground now urged in support of the ruling, the objection could have been obviated. ■

Other errors are apparent from the record. It is needless, however, to discuss them. The error pointed out, in effect, prevented every attempted defense, and a reversal of the judgments of the general and trial terms of the court below is thérefore imperative.

Judgments of the general.and trial terms of the court below reversed, and new trial ordered, with costs to the appellant to abide the event.

All concur.


author: Daly, Ch. J.

text:
    Abram French Company, Resp’t, v. Philip Marx, App’lt.

      (New York Common Pleas, General Term,

      Piled December 3, 1894.)

    Appeal—Discretion.
    The refusal of the city court to vacate a judgment is not reviewable on appeal to the common pleas.
    Appeal from a judgment of the general term of the city court, reversing an order of the special term vacating a judgment in favor of plaintiff.

      Samuel Mullen, for app’lt; Daniel P. Hays, for resp’t.
   Daly, Ch. J.

The complaint shows that this action was commenced by a foreign corporation to recover for goods sold and delivered to defendant between October 21,1893, and December 20, 1893. Judgment was entered for default of answer on January 11, 1894, upon proof of personal service of the summons and complaint on the defendant. In March, 1894, defendant moved to vacate the judgment upon an affidavit and certificate that plaintiff had not filed in the office of the secretary of state the certificate required by chapter 687, §§ 14, 15, Laws 1892, as a condition precedent to the transaction of business and the maintenance of actions by foreign corporations. The motion was granted at special term, and an order made vacating the judgment, with leave to defendant to come in and defend. This order was reversed at the general term, and from such reversal this appeal is taken.

We have no power to disturb the disposition which the city court has made of the case. It was discretionary with that court to refuse to set aside a judgment regularly entered. Mo party has a substantial right to have a regular j udgment set aside on motion. He may be left to his right to show that the judgment is void, in a proper action. Foote v. Lathrop, 41 N. Y. 358. It is in the discretion of the court in which the judgment is entered to set it aside, or to leave the party to set up its invalidity when an attempt is made to enforce it. People ex rel. Brush v. Brown, 103 N. Y. 684; 4 St. Rep. 271. These cases hold that an order in such a case is not reviewable in the court of appeals, and, as our jurisdiction on appeals from the city court is equally limited, we cannot review the order now before us. In the authorities cited, it is suggested that the appellants in those cases’ were not remediless, because, notwithstanding the refusal of the court to set aside the judgment or order complained of, the aggrieved party might show the invalidity of such judgment or order when any attempt to enforce them was made. Those cases differ, however, from the •one at bar. In the first action the summons was not served ujDon the defendant, and the appearance for her was unauthorized; hence, the court had no jurisdiction, and the defendant was not bound by the judgment. In the next case the court had no jurisdiction to make the order complained of, and that was apparent •on the record. But in the case before us the want of jurisdiction •does not appear on the record, and the defendant, having been personally served with the summons, had an opportunity to defend, of which he neglected to avail himself. He could have set up by answer the disability of the plaintiff to enter into the contract, or to maintain the action, for want of filing of the certificate required by the act; but, having failed to do so, he must be held to have waived such defense as he might have had under the statute. Even had he appeared and answered, and failed to plead the statute as a bar to recovery, it would not have availed him. Boswell v. Welshoefer, 9 Daly, 196. I do not, therefore, wish to be understood as suggesting that the judgment entered „in the city court is not binding on defendant in all proceedings and in all courts. On the contrary, I think that it is. This affirmance is placed upon the ground that the discretion of the city court, in refusing to open his default and allow him to come in and set up the statute in question as a bar to recovery, is not reviewable in this court.

The order appealed from must be affirmed, with costs and disbursements. All concur.


text:
    Israel O. Blake, Resp’t, v. Herman Bolte, App’lt.

      (New York Common Fleas, General Term,

      Filed December 3, 1894.)

    1. Supplementary proceedings—Salary op public officers.
    The salary of a public officer in bis possession may be reached on supplementary proceedings.
    3. Same—Contempt.
    In such proceeding, the debtor cannot be committed for contempt, unless the order contains an adjudication that he is in contempt and there is proof that the right or remedy of the creditor has been impaired.
    Appeal from an order of the general term of the city court, affirming an order in supplementary proceedings, directing the defendant to pay the judgment out of his salary, and, in default thereof, that a precept of commitment issue.

      James P. Niemann, for app’lt; Philip Carpenter, for resp’t.
   Pryor, J.

On the 31st March, 1894, in a supplementary proceeding in the city court, an order was served upon the appellant, citing him to attend and make discovery concerning his property, and enjoining him from making meanwhile any transfer or disposition of his property. The appellant is a justice of a district court in this city, and as such is entitled to a salary of $6,000 a year, payable in equal installments on the last day of each month. Upon his examination it was disclosed that on the 31st'of March or on the 2d of April he received $500, the installment of salary for the month of March; and that be had disposed of $40 or $50. Thereupon an order issued requiring him to show cause why he should not be punished for his misconduct in so disposing of the property in violation of the injunction,,and why a receiver should not be appointed of his property and effects, and why respondent should not have other and further relief. Upon cause shown an order was entered directing appellant “ to pay to the sheriff the amount of the judgment against him, and in default thereof that a precept of commitment issue.’’ From an affirmance of the order by the general term of the court below an appeal is prosecuted in this court.

So much of the order as awards a precept of commitment is clearly invalid. The order contains no adjudication that the appellant was in contempt; not even recites the fact of his contempt, nor adjudges injury to respondent’s right or remedy. Code, § 2281; Fischer v. Raab, 81 N. Y. 235; Wolf v. Buttnert 6 Misc. Rep. 119; 57 St. Rep. 861. Indeed, it is apparent on the papers that the respondent was not damnified by the disposition of appellant’s property. The judgment was for $73.90, and of the $500 received the appellant had disposed of but $50. Moffat v. Herman, 116 N. Y. 131; 26 St. Rep. 328.

The question remains whether the direction in the order that the appellant pay to the sheriff the amount of the judgment, with interest, costs and fees, to be a correct adjudication. Appellant’s contention is that the money, although actually received and appropriated by him, is still inaccessible to the claims of creditors, because his salary as a public officer. It is readily conceded that were the money still in the city treasury, it would not be amenable to process in behalf of appellant’s creditors. Rammey v. Gedney, 57 How. Pr. 217; Institute v. Cregan, 11 Civ. Pro. R. 87. But no court has held, and it would be a reproach to the administration of justice should a court ever hold, that, after payment of a salary to a public officer, it is still inviolable by legal process for the satisfaction of creditors. The extent to which as yet the decisions have gone is that the disbursing agents of° the government are not to be harrassed by efforts of creditors to reach unpaid salary (cases supra), and that a salary unearned, and not yet payable, is neither assignable nor accessible by creditors. Bowery Nat. Bank v. Wilson. 122 N. Y. 478; 34 St. Rep. 43; Bliss v. Lawrence, 58 N. Y. 442; Billings v. O'Brien, 14 Abb. Pr. (N. S.) 238; Schwenck v. Wyckoff, 46 N. J. Eq. 500; Beal v. McVicker, 8 Mo. App. 205; Bangs v. Dunn, 66 Cal. 72. On the other hand, pension money, though in some sort a sacred fund, and shielded by a strict statutory exemption, is open to creditors when in the possession of the pensioner. Cranz v. White, 41 Am. Rep. 408, note 411. Counsel for appellant argues that the principle of policy which forbids assignment of the future salary of a public officer is equally applicable to protect salary in his pocket against the claims of creditors. But the ground on which the decisions go is that, if the officer, by assignment, has deprived himself of the hope of future salary, he has lost the incentive to a diligent discharge of his duties,—a consideration inoperative with appellant in the enjoyment of his salary.

Appellant’s objection that the order is invalid because the witnesses in the proceeding were sworn by a commissioner of deeds is frivolous. Code, § 842, expressly designates that officer as competent to take the affidavit, and no other provision requires the oath to be authenticated by the judge or the referee. Section 2445. So much of the order as authorizes commitment reversed; so much of the order as directs payment to sheriff affirmed; no costs to either party.


text:
    John T. Farrington, App’lt, v. Edwin B. Root et al., Resp’ts.

      (New York Common Pleas, General Term,

      Mled December 3, 1894.)

    1. Attachment—Affidavit.
    An attachment on an affidavit, which complies in form with the statute, is not irregular.
    2. Same—When protection.
    Where the statement in the affidavit as to the indebtedness is such as to call for a judicial determination whether, apparently, the amount is in excess of counterclaims, the attachment, though erroneous and rightly-vacated, affords a protection to all parties acting under it.
    3. Process—Distinction.
    Distinction between erroneous, irregular and void process, and the effect of each in justification of a trespass, stated.
    Appeal from a judgment dismissing the complaint.

      Samuel C. Mount, for app’lt; Charles De Hart Brower and Henry C. Willcox, for resp’ts.
   Pryor, J.

Under an attachment, the defendants, it is alleged, toóle, or were concerned in taking, the plaintiff’s goods. Pursuant to a motion upon the papers on which the attachment issued, it was^ vacated, but it is not apparent in the order that the supersedeas proceeded on the ground that the process was either void or irregular. The action in which the attachment issued was upon a promissory note, and against maker and indorser. It was the indorser’s goods that were taken, and it is he who sues in the present action.

The attachment is challenged as void or irregular because the affidavit fails to show that the plaintiffs are entitled to recover the sum stated, over and above all counterclaims known to the plaintiffs. Code, § 635. The affidavit, properly by a third person, alleged,-on information and belief, that “the plaintiffs are entitled to recover from the defendants the sum of about $1,416.70, with interest, over and above all counterclaims known to the plaintiffs,” and that “ the source of deponent’s information and the grounds of his belief are that his firm has possession of the ■notes mentioned in the complaint, and of the' notarial certificates of demand and notice of dishonor, copies of which are annexed." At the close of the case the complaint was dismissed.

The cause has been argued with commendable research and ■ability, but, after all, the question upon which the appeal depends is of obvious and easy solution. The action is for trespass to property. But the chattels were taken under attachment, and, although set aside, the process, unless irregular or void, is a per-' feet protection to all the defendants. Marks v. Townsend, 97 N. Y. 590, 597; Day v. Bach, 87 id. 56, 61; Fischer v. Langbein, 103 id. 84, 93; 2 St. Rep. 768. Process may be erroneous only, for which, being the fault of the court, the party is not responsible; ol’ it may be simply irregular, and so valid until vacated, but when vacated it is no protection, because the fault of the party ; or, again, it may be void, and, being an absolute nullity from the begining, it is no justification, even before supersedeas. Woodcock v. Bennet, 1 Cow. 711, 735; Day v. Bach, 87 N. Y. 56, 61; Chapman v. Dyett, 11 Wend. 31. “An irregularity in practice may be defined to be the want of adherence to some prescribed rule or proceeding. And it consists in omitting to do something that is necessary for the due and orderly conducting of a suit, or ordering it in an unreasonable time or improper manner.” Tidd, Pr. 512; Bowman v. Tallman, 3 Rob. (N. Y.) 632, 634. In the case before us, the affidavit upon which the attachment issued complies, in form, with all the requirements of the Code, and the only vice imputed to it is that it did not furnish sufficient evidence to the court of the absence of conterclaims against the debt. This, plainly, was no irregularity. Nor was the attachment void. The court had jurisdiction, and the evidence before it presented “a colorable case," and called for a judicial determination whether, apparently, the amount of the indebtedness was in excess of counterclaims. Fischer v. Langbein, supra; Globe Yarn Mills v. Bilbrough, 49 St. Rep. 702; 21 N. Y. Supp. 2. The decision was erroneous, and was rightly reversed ; but even so, the process was still a protection to all parties. Cases supra; and Wessels v. Boettcher, 142 N. Y. 212; 58 St. Rep. 653 (where observe an instance of the prevalent ambiguity in the use of the word “irregular”). An order founded on an insufficient affidavit is not void, but has vitality enough to support a proceeding for contempt,— Fleming v. Tourgee, 40 St. Rep. 705; 16 N. Y. Supp. 2; a fortiori, to justify an alleged trespass.

Other points presented by counsel need no consideration. The plaintiff is not without redress, but has only misconceivd his remedy. Upon proper allegations and proof, he may maintain an action in the nature of malicious prosecution. Burton v. Knapp, 81 Am. Dec. 476, note.

Judgment affirmed, with costs.


text:
    Maria L. Winterson, Resp't, v. Hector M. Hitchings et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    Appeal—Restitution.
    An assignee of a judgment, purchasing land on an execution sale thereunder, must make restitution on reversal of such judgment, and cannot hold the land as security for a judgment recovered on a second trial of the action.
    Appeal from an interlocutory judgment, overruling a demurrer to the compláint.
    This was an action in equity to obtain restitution of property sold under execution upon a judgment which was reversed. The appellant, Hitchings, was the purchaser at the sheriff’s sale, and was also the assignee of the judgment and the attorney for the plaintiff therein.. No deed has yet been delivered to him by the sheriff. The judgment obtained by his client, Louise Carlson,, against this plaintiff, Maria L. Winterson, was for $637.15, entered June 15, 1892. It was assigned to Mr. Hitchings on or before-July 26, 1892. The sale took place September 1, 1892, and the judgment was afterwards reversed by this court, and a new trial ordered before this action was brought. A new trial was had,, resulting again in a verdict for the plaintiff, Mrs. Carlson, against this plaintiff, Mrs. Winterson.

      Heater M. Hitchings, in pro. per; H. F & H. G. Bullard, for resp’t.
   Daly, C. J.

The demurrer of the purchaser and assignee questions the right of the plaintiff to recover in any event, or to recover without a tender or offer to pay the amount due upon the-second judgment. The demurrer was overruled at special term, and from such decision this appeal is taken. As assignee of the-judgment, the purchaser stands in the same position as the judgment creditor would be. McJilton v. Love, 54 Am. Dec. 449; Reynolds v. Harris, 14 Cal. 667; Black, Judgm. § 955. If the purchaser had been a stranger to the record, his title would not be affected by the reversal of the judgment. Wood v. Jackson, 8 Wend. 9, 36; Breese v. Bange, 2 E. D. Smith, 474, 493. If,, being the attorney who procured the judgment, but not the assignee of it, he had purchased at the sheriff’s sale, he would be compelled to make restitution (Simonds v. Catlin, 2 Caines, 61; Galpin v. Page, 18 Wall. 350, 373), although had he, as such purchaser, paid the amount of his bid to the sheriff, he would undoubtedly be entitled to repayment before restitution would be compelled, and tender of repayment would be a prerequisite to an action against him. But, as assignee of the judgment, he became a party to the record, and, as such, chargeable with all defects in it, and liable upon its reversal to proceedings for the-restoration of all he received under it. The right of action against him accrued immediately upon the reversal of his judgment, and there was nothing to tender him as a condition to bringing it. When the judgment was reversed, the defendant therein was entitled at common law to be restored to all he had lost by the execution of the judgment of the court. 21 Am. & Eng. Enc. Law, 293. He held the property purchased under the execution, subject to any order or judgment the court might make for its restitution. The recovery of a second judgment for the same claim gave him no lien on the property which the judgment debtor must offer to satisfy before claiming restitution. Such subsequent judgment only afforded a ground or claim, for equitable consideration when the rights of the parties were submitted to the court for adjudication. The legal right to retain anything obtained by virtue of the reversed judgment is gone, and the property acquired under it cannot be held as security for the subsequent judgment, so as to entilled him to retain it as a matter of legal right until his claim was satisfied.

The demurrer was therefore properly overruled, and the judgment must be affirmed.