author: Rarrett, J.:

text:
    JAMES TALCOTT, Respondent, v. ISIDOR ROSENTHAL, Appellant.

      :jPreferential assignment — when it cannot he treated as a fraudulent disposition of the debtor's property.

      A. preferential assignment cannot be treated as a fraudulent disposition of the debtor’s property, merely because, shortly before its execution, he purchased goods upon a credit which had not expired at the time of the assignment, for which goods he. had no reasonable hope of being able to pay.
    Appeal from an order made at Special Term, denying the defendant’s motion to vacate an attachment granted herein.

      A. Qa/rdozo, for the appellant.

      H. F. Hatch, for the respondent.
   Rarrett, J.:

Stripping the plaintiff’s affidavits of the charges and conclusions -with which they abound, also of mere hearsay, we find the following facts : Between the 28th of last July and the 1st of the following September, the defendant purchased goods from the plaintiff to the amount of $2,265.79, upon a credit of sixty days. Nine days niter the last purchase, the defendant made a preferential assignment. The preferences aggregated $43,157.38. The day after the assignment was made, Mr. Trowbridge, a gentleman in the plaintiff’s employment, went to the defendant’s store. There he found -the assignee. The defendant was not present, and the assignee .stated that he did not know where he was. Mr. Trowbridge discovered but one case of the goods which had been purchased from -the plaintiff. The stock in the assignee’s hands was slight — not, in Mr. Trowbridge’s opinion, exceeding $20,000 in value. On the .same day the plaintiff’s bookkeeper applied to the assignee for permission to inspect the books, but this was refused, and the assignee •declined to give him any information.

These facts do not furnish sufficient evidence of a fraudulent disposition of property. The assignment is attacked, but the genuineness of the preferences is not impugned. There is hardly enough to go to a jury upon the question of fraud in obtaining the goods. But even if the goods were purchased with intent not to pay for them, it does not necessarily follow that the assignment was made with the design of defrauding creditors. Fraud in the purchase would undoubtedly color the subsequent acts. The connection might even be so close and well defined as to indicate a fraudulent purpose throughout; in effect, that the disposition was but the culmination of the scheme which originated in the purchase. But we can lay down no such general rule as that every preferential assignment is to be treated as a fraudulent disposition of the debtor’s property, merely because, shortly before its execution, he purchased goods for which he had no reasonable hope of paying. That is this case upon the evidence now before the court. It follows that the order should be reversed, with $10 costs, and the disbursements of the appeal, and the attachment vacated.

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

Order reversed, with $10 costs, and disbursements.


source: Caselaw Access Project

author: Pee Cubiam :

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALBERT HAMBRECHT, v. TIMOTHY J. CAMPBELL, Justice, &c., Respondent.

      Summary proceedings — jurisdiction of a justice of a District Court in New York, over premises not in his district — Chapter 187 of 1877 — Chapter 101 of 1879.
    A justice of one of the District Courts of the city of New York cannot entertain summary proceedings to remove a tenant, under the provisions of the Revised Statutes, when the premises which are the subject of tbe controversy are not situated within the district in and for which he was elected.
    Section 1 of chapter 187 of 1877, prohibiting such justice-from exercising such jurisdiction unless the premises are situated within his judicial district, was not repealed or abrogated by chapter 101 of 1879. The latter act only enlarged the jurisdiction'of justices of the peace in such proceedings.
    Certiorari to review summary proceedings had before the respondent, by which the relator was removed from the possession of certain premises in the city of New York.
    The respondent is justice of the District Court in the city of New York for the fifth district. On an affidavit presented to him, he issued his summons in the usual form in summary proceedings, rer quiring Hambrecht, as tenant — the relator herein — to remove from the premises No. 319 Bowery, in the seventeenth ward of the city of New York, or show cause why the possession of the premises should not be delivered to the landlord. On the return day the defendant appeared by counsel and objected, that the justice had no jurisdiction, as the premises were not situated within the fifth judicial district.
    Section 1 of chapter 187 of the Law of 1877, reads as follows:
    “No justice of the District Courts in the city of New York shall hereafter have jurisdiction under the statutes relative to summary proceedings to recover the possession of land for non-payment of rent and for holding over after expiration of term, unless the premises, the possession of which is sought to be recovered, are located in the judicial district in and for which said justice was elected.” The act contains the usual repealing clause, repealing all acts and parts of acts inconsistent with its provisions.
    During the session of the Legislature of 1879 a bill, chapter 101 of 1879, was passed to amend section 28 of article 2 of title 10 of chapter 8 of part 3 of the Revised Statutes, relating to summary proceedings to recover possession of land. The following is the section of the Revised Statutes as passed, the amendment being italicized:
    “ Section 28. Any tenant or lessee at will, or at sufferance, or for any part of a year, or for one or more years, of any houses, land or tenements, and the assigns, under-tenants or legal representatives of such tenant or lessee, may be removed from such premises by any judge of the County Courts of the county, or by cmy justice of the peace of the town adjoining the town where such premises cure situated, ha/oing an office in a village, the corporate limits of which include a portion of booh of said towns, or by any mayor or recorder of the city where such premises are situated, or in the city of New York by the mayor, recorder, any justice of the Marine Court, or any one of the justices of the District Courts of the city of New York, in the manner hereinafter prescribed in the following cases.” .
    This bill has no repealing clause.

      Edward F. Sassey, for the relator.

      8. Idbenthal and B. JD. Penfield, for the respondent.
   Pee Cubiam :

The question presented in this case is whether the justice of one •of the District Courts of this city can entertain' summary proceedings to remove a tenant, under the provisions of the- Revised Statutes, where the premises which are the subject of the controversy are not situated within the district in which he was elected. It is .supposed by the respondent that the act of 1879 (chapter 101 of the Laws of that year), enlarges the jurisdiction of the justices named, and authorizes them to entertain such an application, if the premises be situated in any part of the city of New York. We think ■this view is erroneous. The amendment of section 28 of the Revised Statutes, accomplished by the act of 1879 {supra), was designed to and did enlarge the jurisdiction in such proceedings of the justices of the peace, and the amendment seems exclusively to relate to that subject. There are no words in the act repealing laws in•consistent therewith, and the legislature has not, therefore, by anything in the amendment contained, authorized the conclusion that it was designed to repeal the act of 1877, restricting the jurisdiction of justices of the District Courts to cases in which the premises were situated within their respective districts.

It becomes our duty, therefore, to declare that of the proceedings which this writ has brought up for review, the justice had no jurisdiction.

The writ should be sustained, and the proceedings reversed.

Present — Davis, P. J., Beady and Barrett, JL

Writ sustained, and proceedings reversed.


author: Per Curiam :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. WILLIAM H. MACY and WARREN ROSEVELT, Appellants.

      Chapter 249 of 1875 — the license required by it, must be in writing.

    Section 1 of chapter 249 of 1875 provides that it shall be lawful forthe owner or lessee of a pier or bulkhead in the city of New York to erect and maintain sheds upon it, “provided they shall have obtained from the department of docks, in said city, -a license or authority to erect or maintain the same, and subject to the conditions and restrictions contained in such license or authority.”

      Meld, that the license or authority required by the act must be in writing.
    Appeal from an order made at Special Term, continuing a temporary injunction granted in this action.
    The action was brought to restrain the defendants from erecting n shed upon Pier No. 45, in the East River. The defendants •claimed that they had an oral permit from the department of docks ■to erect the same.
    Section 1 of chapter 249 of 1875 provides, “ Whenever any person, company or corporation, engaged in the business of steam transportation, shall be the owner or lessee of any pier or bulkhead in the city of New York, and shall use and employ the same for 'the purpose of regularly receiving and ' discharging cargo thereat, it shall be lawful-for such owner or for such lessee, with the consent of the lessor, to erect and maintain upon such pier or bulkhead sheds for the protection of property so received or discharged; provided they shall have obtained from the department of docks, in said city, a license or authority to erect or maintain the same, •and subject .to the conditions and restrictions. contained, in such license or authority. ...”

      Willard Bartlett, for the appellants. .
    The oral license was sufficient, and the defendants,, by obtaining it, have fully complied with the requirements of the law in that respect. (Morgam, v. United States, 14 Ct. of Cl., 319; 1 Washburn on Real Property, 543; Cooley on Torts, 307, note, and cases there cited ; 3 Kent Comm.,
      452; Selclm v. Del. <& Hud. Ocmal Co., 29 N. Y., on p. 639; Duce v. Carley, 24 Wend., 453 ; Owen v. Field, 12 Allen, 457; Rericlc v. Kern, 14 Serg. & It., 267; Freema/n v. Headley, 33 N. J. L., 253; Druse v. Wheeler, 26' Mich., 189; Hall v. JBoyd, 14 Ga., 1; Hodgson v. Jeffries, 52 Ind., 334.) An oral license as well as one in writing may involve conditions to be performed by the licensee. {Russell v. Hubbard, 59 111., 335 ;. McLarney v. PetUgrew, 3 E. D. Smith, 111.)

      W. W. ■ Goodrich, for the respondent.
   Per Curiam :

There can be no doubt that the license referred to in the act (L. 1875, ch. 249, § 1) is a written license. The legislature could not possibly have intendéd that sucli an important fact should be left to mere recollection. And how could the department of docks grant an oral license ? — a'license embodied in no written resolution and not' even entered upon the minutes. It might as well be said that the aldermen, as a board, could grant an oral permit. It would be strange, indeed, were such a question of fact to depend for its solution upon a conflict of evidence between the board and the alleged grantee. Besides, the wordssubject to the conditions and restrictions contained in such license or authority ” plainly import a writing. Such writing would seem to be as necessary to the protection of the licensee as to the orderly administration of the. affairs of the department.

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

Present — Davis, P. J., Brady and Barrett, NT.

Order affirmed, with $10 costs, and disbursements.


author: Barrett, J.:

text:
    EDWARD G. TINKER, Respondent, v. SAMUEL J. CROOKS, Appellant.

      Supplementary proceedings — what must be shown to authorise the punishment of a pa/rty for contempt, fop refusing to pay over money as ordered.

    Upon the appearance of a debtor before a judge, in pursuance of an order for his examination in proceedings supplementary, to execution, he admitted that he had in his possession money and property sufficient to satisfy the judgment, and requested a postponement to enable him to apply the same upon the judgment. The judge'thereupon made an order reciting the facts, and granting him until a day named to pay the judgment with interest, and the costs, and providing in default thereof that he be adjudged guilty of a willful contempt; it further ordered and directed that, in that case, he pay to the sheriff afine of $884, and be imprisoned until the payment thereof, and that a commitment issue lo carry this judgment into effect.
    Held, that the defendant could only be convicted of contempt upon the return of an attachment, or an order to show cause, and that the court could not thus summarily declare the consequences of a disobedience to its order.
    To authorize the court to- punish-a party for contempt in proceedings supplementary to execution in refusing_to pay over money or property in pursuance of its order, it must appear that the specific property or sum of money -was, at the time of the service of the order for his examination, in his possession or under his control.
    Appeal by the defendant from an order made by a justice of the Supreme Court in .supplementary proceedings, granting him until a day named to pay the judgment, and adjudging him guilty of a contempt unless the judgment be paid on or before said day. The order was as follows :

      “ The defendant appearing before me, pursuant to order made by me on the 27th inst., and returnable this day at 2 p. m., and stating and admitting at the last above time and place that he has sufficient money and property to satisfy the judgment herein, and the said defendant requesting a further postponement to enable him so to apply the same, after' hearing Mr. Henry H. Morange, attorney for plaintiff,

      “ Ordered, that the said defendant have until May 6,1880, at 10 o’clock, a. m., to pay the amount of the judgment herein to said plaintiff’s attorney, with the áccrued interest, and $30 costs, which are hereby awarded to the: plaintiff or his said attorney, and in default thereof the said defendant be adjudged guilty of a willful conVempt of court, for a disobedience of tbe order made herein on March 3, 1880, and of this order, by failing to comply therewith, and that such misconduct tended to defeat and impair the rights and remedies of the plaintiff herein.
    “ And also in ease of the default of the defendant to comply with the conditions of this order, I do hereby further order and direct that the said defendant pay to the sheriff of the city and county of New York, a fine of $384 for indemnity and use of the plaintiff herein. And I likewise order on said default that he be imprisoned in the common jail of said county until he pay the said fine as aforesaid, and that a commitment issue to carry this judgment into effect.”

      K J. Crooks, for the appellant.

      H. H. Morcmge, for the- respondent.
   Barrett, J.:

The defendant appeared before a justice of the court, pursuant to an order for his examination in proceedings supplementary to execution. Without submitting to such examination, he at once admitted the possession of “ money and property sufficient to satisfy the judgment,” and requested a postponement to enable him to apply ” such money and property. The justice thereupon made an order reciting these facts and granting him until a day named to pay the judgment, with interest and costs. So far the order was unobjectionable. It was substantially what the defendant himself had requested. The difficulty is as to what follows. In default of payment the order adjudges the defendant guilty of a willful contempt, fines him a specific sum of money, and commits him to the common jail until the fine is paid. This part of the order we think was unauthorized. The consequences of disobedience could not be thus summarily declared. The defendant could only be convicted of contempt in the manner pointed out by law, that is, by regular and orderly proceedings under an attachment or an order to show cause. lie was entitled to an independent hearing in these proceedings. He might therein furnish a perfect excuse for non-compliance with the order. His money and property might in the interim have been lost or stolen. Banks or bankers might have failed. Property might have been consumed by fire or have depreciated 'from nátural causes. At all events, he was entitled before conviction to his day in court upon the specific charge of disobedience.

But further, we think that contempt proceedings could not have been successfully predicated of non-payment within the period prescribed by this order. The justice, of course, had no general power to order the payment of the judgment. His authority was statutory. ■ It was thereby limited to directing the application of property, discovered by the examination in the defendant’s (or other person’s) hands, at the time of the service of the order. "Whether, at this time, the defendant was in possession of any money' or property does not appear. His admission referred to a subse-' quent period. Nor did the admission amount to the discovery contemplated by statute. There was no detailed disclosure. No particular property was brought to light. There was little more than a confession of ability to pay. Now, as a foundation for contempt proceedings, it should have appeared from the defendant’s examination or its equivalent — his admission — that at the time of the sei-vice of the order he had in his possession or under his control some specific property of sum of money. The due application of such specific property or sum of money, or both, towards the satisfaction of the judgment could then have been lawfully directed; and enforced by proceedings properly inaugurated by attachment or order to show cause. W e are, therefore, unable to sustain that part of the order to which reference has been made.

All of such order after the words “in default thereof,” must be reversed. All previous thereto may be affirmed without prejudice to such further proceedings as the plaintiff may be advised to institute. No costs of this appeal.

Davis, P. J., concurred.

Present — Davis, P. J., and Barrett, J.

Order modified, as directed in opinion, without costs.


text:
    JANE P. EMMONS, Respondent, v. ALLAN CAMPBELL, Appellant.

      When the cowt will not restrain the enforcement of a judgment, during the pend-ency of an ’appeal therefrom.

    This action was brought by the plaintiff to restrain the defendant, the commissioner of public works of the city of New York, from taking down and removing, as a public nuisance, a building erected by the plaintiff, partly upon land belonging to her and partly upon a portion of the street in front thereof. Upon atrial, had before the court, without a jury, the complaint was dismissed with costs. Thereafter, upon the plaintiff’s application, an order was made restraining the defendant from interfering with the plaintiff’s building, pending an appeal taken by her from the judgment rendered against her.

      Held, that it was error to grant the order, and that the same should be reversed.
    Appeal from an order made at Special Term, staying proceedings on the part of the defendant, pending an appeal by the plaintiff from a judgment rendered in favor of the defendant, dismissing the complaint, and for costs.
    The plaintiff was the owner of a narrow strip of land on the west side of Church street, in this city, between Cortlandt and Liberty streets, about eighty-five feet six inches in length, and about two feet eleven and three-quarter inches wide at one end, and about five inches in width at the other end. In pursuance of a resolution of the common council, authorizing her to erect a pie and coffee stand on the westerly side of Church street, between Cortlandt and Liberty streets, she erected a building of iron and glass, about eighty-five feet six inches in length, nine feet eleven inches in depth at one end, and about seven feet ton ■ inches' in depth at the other. A small portion of this building was placed upon such narrow sti’ip of land, and the rest of the building was placed on that portion of New Church street lying immediately in front of the said strip. The defendant, who is the commissioner of public works, being authorized and required by the charter to remove encroachments upon and obstructions of public streets, notified the plaintiff to remove that portion of the building which stood in the street, and, upon her failure to do so, gave notice to her that he would cause the same to be removed. The plaintiff thereupon brought an action, in which the relief sought was that the defendant should be perpetually restrained from removing the said building. With the .summons and complaint was also served an order of the court, temporarily restraining the defendant from removing the building, which order was subsequently continued, pendente lite. An answer was served on behalf of the defendant, and the action was tried at -special term, in the month of December, 1879. On January 19, 1880, a decision was rendered dismissing the complaint. Findings •of fact and law were signed on June 21, 1880, and on June 24, 1880, judgment was entered dismissing the complaint upon the merits, vacating the temporary injunction, and for costs in favor of the defendant, amounting to $135.24. From this judgment the plaintiff appealed, and gave security for costs in $500. On July 7, 1880, the plaintiff obtained and served an order requiring the defendant to show cause why he should not be restrained from taking down the building pending the appeal from said judgment, and with said order was a temporary stay of the defendant’s proceedings. On the return of the order to show cause, the application for a, stay was opposed, but such application was granted, and an order was made, on July 30, 1880, that upon the filing, on behalf of the ■plaintiff, of a bond in $2,500, conditioned for the payment to the defendant of all damages which might be incurred by him by reason of a stay of proceedings, he be restrained from removing said building pending the appeal from said judgment. Such a bond was subsequently executed, and the defendant appeals from the order granting the stay.

      George P. Andrews, for the appellant.
    There was no authority of law for making the order appealed from. (Fellows v. Ileermans, 13 Abb. Pr., N. S., 1; Speers v. Matthews, 66 N. Y., 127.)

      J. A. Stoutenbiurgh, for the respondent.
   Per Curiam :

It was error, upon the facts of this case, to grant an injunction pending the appeal from the judgment dismissing the plaintiff’s complaint. The court, upon the trial, after full consideration, found tliat so much of the plaintiff’s building as stood upon Church street was a public nuisance. The effect of the order appealed from is to restrain a public officer from performing the duty imposed upon him by law, of removing obstructions to, or encroachments upon,, the streets of the city.

There may be cases where the court can properly suspend the-operation of its judgment.

That question we need not consider. But this was not such a case. ■ It was hardly a case where an injunction pendente lite could properly be granted. Certainly no such injunction would have been granted if the court could have known that, upon the trial, the complaint would be dismissed upon the merits.

The order should be reversed, with $10 costs, and disbursements-of the appeal, and the injunction and stay vacated.

Present — Davis, P. «L, Brady and Barrett, JJ.

Order reversed, and injunction and stay vacated.


author: Davis, P, J.: Uarbett, J.:

text:
    LAWRENCE ENNIS, Appellant, v. LAWRENCE A. CURRY, ABNER C. THOMAS and EDWARD P. WILDER, Respondents.

      IAen, of an attorney under section 66 of the Oode of Oivil Procedure, as amended; in 1879.

      Semble, that under section 66 of the Oode of Oivil Procedure, as amended in 1879, the attorney for a defendant, in whose favor a judgment for costs-has been entered upon the dismissal of the complaint, acquires a lien 'thereon for his compensation, which is superior to the right of the plaintiff to set off a prior judgment in his favor, whether he seek to enforce such right upon a motion or by an action.
    Appeal from an order made at Special Term, denying a motion to restrain the defendants during the pendency of this action, .from. taking any steps towards collecting a judgment, for costs, recovered by them in another action, brought against them by the plaintiff. ■ .. . .

      S. B. B'imnell, for the appellant.

      M P.. Wilder, for the respondents.
   Davis, P, J.:

This is an action to compel the set-off of a judgment recovered by the plaintiff against the defendant, Lawrence A. Curry,- o 10 1877, against a judgment recovered, by said defendant aga-msi. said plaintiff on -November 14, 1879. The latter judgment, was recovered wholly for costs awarded on the dismissal of' the complaint, in an action brought by the above-named plaintiff against the above-named defendant. The first judgment, with interest, is large enough to extinguish the .second. The defendant Curry is wholly insolvent. The motion is resisted by the respondents, Thomas and Wilder, who were attorneys for the defendant in the-action, on the ground that they have a lien for their costs and services, the amount of which has been established, by proceedings on a reference to ascertain the same, taken in the Court of Common Pleas, where the judgment was recovered, to be nearly the full amount of the judgment.

The appellant made his motion in the court below for an order-restraining the collection of the judgment against him, until the determination of the rights of the parties in the action. The court' denied the motion.

The right of set-off of judgments was given by part 8, chapter 6, title 2, section 18 of the Revised Statutes.

It seems to have been well settled, under that statute, that whenever the right of set-off is sought to be enforced by action brought for that purpose, the lien of the attorney must yield to the statutory right, the courts holding in substance that such right of set-off was superior to the attorney’s lien, and making a plain distinction between motions and actions brought for the purpose of set-off. (Nicoll v. Nicoll, 16 Wend., 446; Smith v. Lowden, 1 Sandf., 696; Gihon v. Fryatt, 2 Id., 638; Martin v. Kanouse, 17 How. Pr., 149; Brooks v. Hanford, 15 Abb. Pr., 345; Prouty v. Swift, 10 Hun, 232.) There is no question in this case but that the attorneys have a lien to the amount established by them in the Court of Common Pleas; but according to the authorities above cited, that lien in an action of this character must give way to the statutory right of the plaintiff. The attorneys had no assignment of the. judgment before the right of set-off, and for that reason did not come within the exceptional cases. (Perry v. Chester, 53 N. Y., 240; Prouty v. Swift, supra.)

The provision's relating- to counter-claims (sections- 500 to 509 inclusive, of the Code of Civil Procedure) were apparently intended as a substitute for the provisions of the Revised Statutes above referred tó; and Mr. Throop, in his notes to section 502, says: “ It will be noticed that this section contemplates the abolition of - the word ‘set-off’ as-a description of a legal remedy, and the substitution of the word ‘ counter-claim ’ in all cases where the defendant interposes a cross demand, whether it accrued originally against the plaintiff or against the person whom he represents.” With the exception of the name “counter-claim” instead of “set-off,” the provisions of the Code above cited, and of the statute, are substantially to the same effect. The authorities applicable to the statute would apply with equal force to the several sections of the Code.

But there is another section of the Code of Civil Procedure which seems to have an important bearing upon the question. Section 66, as amended in 1879, provides as follows: “The compensation of an attorney or counselor for his services is governed 'by agreement, express or implied, which is not restrained by law. Prom i he commencement of an action or the service of an answer ■containing a counter-claim, the attorney who appears for a. party has a lien upon his client’s- cause of action or counter-claim which attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof, in whosesoever hands they may -come, and cannot be affected by any settlement between the parties before or after judgment.”

The effect of this section is, we think, to establish the lien of an attorney, in all cases coming within its language, to a verdict, report or decision in his client’s favor as well as to the judgment that may be subsequently entered; and the result of that provision must necessarily be that the lien becomes superior to the right to set-off a prior judgment in favor of the opposite party, by whatever remedy the right may be sought to'be enforced. A strict construction of the language of the section would, however, limit the lien to his client’s cause of action, if he were for the plaintiff, or to the counter-claim if he were for the defendant, and would attach it to a verdict, report, decision, or judgment in his client’s favor recovered either upon such cause of action, or upon such counter-claim. In this case the complaint was dismissed. No counter-claim was established, and no recovery was had .upon any counter-claim, but a judgment for costs only was ordered in favor of the defendant. "What has been sometimes called the equity of a statute, ought, it seems to us, to extend the provisions of this section of the Code to a recovery merely of costs upon the dismissal of a complaint, in which case the attorney not only has a lien, under the well-settled rules of the court, but is not bound to give notice of his lien for thé purpose of protecting his rights. This question will be far better determined, however, in the trial' of the action in this case, and it ought not, perhaps, to be prejudged by our decision upon this motion. It would have been better, we think, for the court to have restrained the collection of the judgment for costs pending the action, upon the plaintiffs giving proper security for their payment in case the right were decided adversely to them ; and we think the better disposition of this appeal is to reverse the order of the court below, and to grant tbe order restraining the collection, upon filing a bond with sufficient surety, and to direct that the costs of the motion below and of this appeal, besides disbursements, abide the event of the action, to be allowed to the successful party therein.

Uarbett, J.:

. I express no opinion as to whether the dismissal of a complaint is within the equity of section 66 of the Code of Civil Procedure. Otherwise I concur.

Present — Davis, P. J., and Barrett, J.

Order reversed, and order to be entered as directed in opinion.


author: Brady, J.:

text:
    CHARLES P. BURDETT and SAMUEL G. POND, Respondents, v. EDWARD R. LOWE and THOMAS E. BISHOP, Appellants.
    ' Sureties to an. undertaking given, on an appeal to the Oourt of Appeals — when they are liable for all the costs of the action — Code of Civil Procedure, §§ 191, 194.
    Where, upon an appeal to the Court of Appeals from an order granting a new-trial, the court affirms the order, and renders a judgment absolute in favor of the respondents, in pursuance of section 194 of the Code of Civil Procedure, the sureties upon the undertaking, given by the appellants, are liable for all the costs in the action, and not simply for those incurred by the appeal to the Court of Appeals.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon the verdict of tbe jury. The action was brought upon an undertaking given on an appeal to tbe Court of Appeals, from an order granting a new trial. Tbe judgment was for tbe costs incurred generally on the order, and was not limited to those on tbe appeal to tbe Court of Appeals.

      E. D. McCarthy, for tbe appellants.

      J. E. Bwrrill, for tbe respondents.
   Brady, J.:

It appears in this case that John Harris and L. W. Jones sued tbe respondents in the Superior Court, and obtained a verdict in their favor. It further appears that a motion for a new trial having been made and denied, Burdett and Pond, tbe respondents, took an appeal to tbe General Term of'that court, and that it resulted in a reversal of the judgment, and in the granting of a new trial. It also appears that Harris and Jones, without proceeding to a new trial, appealed to the Court of Appeals, and gave the stipular lion required by section 11 of the Code of Procedure, which was then in force, to the effect that in case the order so appealed from ■should be affirmed, judgment absolute should be rendered against them in that action, and they gave, in connection with their appeal, the undertaking required by law, which provided that the defendants herein, who were the sureties, should pay all costs and damages which might be awarded against the- appellants, not exceeding $500. It further appears that the Court of Appeals, in the. proceedings thus mentioned, ordered and adjudged that the judgment •of the General Term should be affirmed, and judgment absolute was ordered for the defendants (the respondents), on the stipulations already mentioned. Section 191 of the Code of Civil Procedure contains a provision similar to that mentioned as part of section 11 of the Code of Procedure, declaring that an appeal cannot be taken from an order granting a new trial, unless the notice of appeal contains an assent on the part of the appellant that, if the •order is affirmed, judgment absolute shall be rendered against him. This section was in force at the time the judgment of the Court of Appeals was rendered.

Section 194 of the Code of Civil Procedure also provides that, if ■upon an appeal from an order granting a new trial, the Court of Appeals determines that no error was committed in granting a new-trial, it must render judgment absolute upon the right of the appellant ; and after its judgment has been remitted to the court below, an assessment of damages or any other proceeding requisite to render the judgment effectual, may be had in the latter court. Under these circumstances, and in view of the sections of the Code detailed, the question arises whether the defendants, upon the ,undertaking, are liable for the costs in the cause generally, to the •extent of their undertaking, or are liable only for the costs incurred upon the appeal to the Court of Appeals.

Inasmuch as it appears that the undertaking was to pay all costs which might be awarded against them on the appeal, and it became the duty of the court, having arrived at the conclusion that the appeal was not well taken, to render judgment absolute, and having rendered such a judgment, it follows that the judgment applies to all the costs in the action. ■ •

The provision is peculiar, relating as it does to appeals from, judgments granting new trials and calling for an absolute judgment of the court of last resort, which is to be remitted, as we have seen, to the comf below, for the adoption of any proceedings requisite to render the judgment effectual. The form of the judgment of the Court of Appeals being “ with costs ” and not “ with costs of the appeal,” there can be little doubt, from the absolute character of the judgment itself, and from the provision of the statute requiring it to be remitted, as already suggested, to make the judgment effectual, that it embraces all the costs in the action, and that they can be recovered from the sureties if not in excess of the amount of the undertaking.

The question is one of interpretation, and that which is thus declared is one which is regarded as in harmony with the design of the legislature in adopting the peculiar provisions recited, and reflection does not suggest any good reason why this view should not be carried out. It is a part of the penalty imposed upon the appellant who shall decline to proceed with a new trial in accordance with the judgment of an intermediate court, rendered on appeal to its powers of review.

For these reasons, we think the. judgment in this case should be affirmed.

Davis, P. J., concurred.

Present — Davis, P. J., and Brady, J.

Judgment affirmed.


author: Brady, J.;

text:
    JOHN H. HECKMAN, Appellant, v. THE MAYOR, ALDERMEN and COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Assessment — no action or suit to vacate it will lie in New Torio — 1858, ch. 388 —1874, ch. 312.
    Since the passage of section 2 of chapter 312 of 1874, no suit or action, in the nature of a bill in equity or otherwise, can be brought for the vacation of an assessment; the remedy of a party aggrieved by an illegal assessment is an application under chapter 338 of 1838, as amended by the act of 1874.
    Appeal from a judgment in favor of the defendant, entered upon an order sustaining a demurrer to the complaint.
    The plaintiff alleged that he was the owner of a lot on the northwest comer of Avenue A and Seventy-seventh street, which was known as lot No. 22, in block 101, on the map of the city, and was assessed $525.86, for regulating, &c., Seventy-seventh street from First avenue to the East River, under an ordinance of the common council, passed December 21,1868, confirmed by the board of revision and correction of assessments, December 29, 1876, and which assessment has since been entered in the office of the clerk of arrears, and constitutes a lien on his said lot. He alleged that the assessment was illegal and void in this respect, that the assessors were required by law to assess all the property intended to be benefited by the improvement. That they did not do so, but omitted from the assessment a space of ground one hundred feet wide on each side of Seventy-seventh street, between First avenue and the East River, and in front of which work was done.

      George O. Genet, for the appellant.

      Devoid J. Deem, for the respondent.
   Brady, J.;

The object of this action was to remove a cloud upon the plaintiff’s title, created by an illegal assessment. The defendant’s demurrer was sustained upon the ground that the court had no jurisdiction to grant the relief demanded, in consequence of the provision of the act of 1871, contained in section 2 of that act. (See Laws, ch. 312.) The opinion of Justice Yan Brunt, filed at the time the demurrer was decided, contains a succinct statement of the law by which this appeal is to be governed. The act (supra) having declared that no suit or action, in nature of a bill in equity or otherwise, shall be commenced for the vacation of any assessment in this city, or to remove a cloud upon the title, and that the owners of property should thereafter be confined in such cases to proceedings initiated by the act chapter 338 of 1858, as suggested by the learned judge presiding at the Special Term; the plaintiff was confined to his application for relief under the act of 1858, and the amendments thereto. The legislature had a right to determine the form in which his remedy should be sought and accomplished. (Lennon v. Mayor, 55 N. Y., 361.)

The plaintiff seems to regard it as settled' by the court of last resort, that in a case like this he would have no relief under the provisions of the act of 1858, just mentioned. No case has been •discovered sustaining this view. The act of 1874, chapter 312, being an amendment of the act of 1858 (supra), includes a substantial error (Matter of New York Protestant Episcopal Public School, Court of Appeals, MSS. Op.), and the cause of action sot out, assuming the facts stated to be true, rests necessarily upon a substantial error committed by the assessor in levying the assessment.

“VVe think, therefore, that the judgment appealed from must be affirmed, with costs.

Davis, P. J., and Baerett, J., concurred.

Judgment affirmed, with costs.


author: Barrett, J.

text:
    JOHN F. SMYTH, Superintendent of the Insurance Department of the State of New York, Plaintiff, v. JOHN McCOOL and others, Defendants. WILLIAM F. LEE, Purchaser.

      Description of a lot — what defects in it will relieve a purchaser at a judicial sale, from his bid — he will not be compelled to accept a doubtful title — when fixed and •visible monuments will not control measurements.

    Appeal of Mr. Lee from an order made at Special Term, requiring him to complete his purchase on a sale in foreclosure.
    Mr. Lee purchased the premises known as 679 Madison avenue, under a judicial sale in this action. The terms of sale described the premises as follows: “ All that certain lot, piece or parcel of land, with the buildings thereon erected, situate, lying and being in the said city of ^ New Yqhk,,«hounded and described as follows: Beginning at a point on the easterly line of Madison avenue, dis-' tant sixty-three (63) feet northerly from the corner formed by the intersection of the northerly line of Sixty-first street, with the easterly line of Madison avenue; thence running northerly along the easterly line of Madison Avenue, sixteen (16) feet; thence easterly, parallel with Sixty-first street, and part of the distance through the center of a party wall erected partly on the land hereby conveyed, and partly on the land adjoining thereto on the north, eighty-five feet; thence southerly and parallel with Madison avenue, sixteen (16) feet; and thence westerly parallel with Sixty-first street, and part of the distance through the center of a party wall erected partly on the land hereby conveyed, and partly on the land adjoining thereto on the squth, eighty-five (85) feet to the easterly side of Madison avenue, at the point or place of beginning.” This description was taken from the judgment, following the mortgage under foreclosure. It appeared, however, from a survey of the premises made for the purchaser that the point of beginning is in reality distant but sixty-two feet, seven inches northerly from the corner of Sixty-first street and Madison avenue.
    The court at General Term said: “ Mr. Lee’s contention is, that consequently the house which he intended to purchase, stands, to the extent of five inches; upon the land of an adjoining owner. The plaintiff, on the other hand, claimed that the misdescrition is of no real moment, for the reason that the premises were mortgaged as visibly located and fixed, and further, because in the deeds and mortgages the premises are described as bounded on the north and south by party walls. Upon this he invokes the doctrine, enunciated in a certain class of cases, that visible location and fixed monuments control course and distance. One difficulty with this position is, that the defect was not visible. The survey was required to discover it. As to the party wall, the plaintiff is mistaken in saying that the premises are described as bowided, on the north and, south thereby. The description is by course and distance, and is precise and definite. After specifying the sixty-three feet as we have indicated, it continues, ‘ thence running northerly along the easterly lirio of Madison avenue sixteen feet ’ — not sixteen feet to the center of a party wall. The opposite or eastern boundary is indicated in precisely the same terms. Both the northern and southern boundaries run from the precise points where the western and eastern boundaries respectively commence and terminate. .From these points they run parallel with Sixty-first street, eighty-five feet — part of the latter distance, adds the description, ‘through the center of a party wall.’ This is the only reference at all in the instrument to a party wall. It is, to say the least, extremely doubtful whether such an incidental expression can control a clear and unambiguous description, furnished by a few short, simple and distinct courses and distances. (Higinbotham v. Stodda/rd, 72 N. Y., 94.) At aE events there is no such fair and snbstantial title to the center of the party waE, as the purchaser had a right to expect. It is weE settled that a purchaser at a judicial sale will not be conipeEed to accept a doubtful title. {Jordan v. Poillon, 77 N. Y., 518.) Nor should he be compeEed to accept anything less than he bargained for. Here he bid for a house which was to give him his equal share of both a northern and southern party wall. If compeEed to complete, he will only get a house (according to the courses and distances), with one inch of one waE and eleven inches of the other. This was a material defect {Stokes v. Johnson, 57 N. Y., 673), which, if known, would undoubtedly have affected the bidding. Whether the pecuEar reference to the party wall can overrule the clearly expressed courses and distances, is a question which, if not answered at once in the negative (upon the authority of the cases above cited), is at least involved in such uncertainty as to justify the purchaser in Iris refusal to take.”

      Walter Edwards, Jr., for William F. Lee, purchaser, appeEant.

      Rastus T. Ransom, for the plaintiff, respondent.
   Opinion by

Barrett, J.

P. J., concurred.

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

Order reversed, with $10 costs and disbursements, and motion denied.


author: Per Curiam.

text:
    SPENCER ERVIN and others, Respondents, v. THE OREGON STEAM NAVIGATION COMPANY, Impleaded, &c., Appellant.

      Service of a summons upon a foreign corporation by serving its president — right of its president to resign to a/ooid service — what resolution does not so dissolve a corporation as to render it impossible for its officers to thereafter resign.

    Appeal from an order made at Special Term, denying the motion of the Oregon Steam Navigation Company to set aside the alleged service of the summons and complaint, herein upon it.
    The court at General Term said: “ On this appeal it appears that the summons and complaint was served by delivering a copy thereof to Mr. Villard, as president of the company, on June 21, 1880. Mr. Villard had been the president and one of the directors of the company up to June 15. On that day his resignation was presented, both as president and director, to the board of directors, at a meeting of such board, and the same was then and there accepted by resolution of the board.
    “ It is claimed, however, on the part of the plaintiff, that the resignation and its acceptance were made with a view to prevent the service of a summons and complaint upon Mr. Villard as president. This, we think, cannot be a material question, if, in fact, the resolution was actually made and accepted, so that he ceased to be president, and of that fact there seems to be no doubt upon the affidavits contained in- the moving papers. The resignation was complete and effective on its acceptance by the board of directors, and Mr. Villard ceased to be president, unless the views expressed in the opinion of the court below be correct, that he had become incapable of making the resignation, and the board had become incapable of accepting it, for the reason therein stated. The reason given, is that the corporation had dissolved on March 31, 1880, by resolution adopted under the laws of Oregon, by the board of directors on that day. That resolution was in the following form: ‘ Resolved, that this company, the Oregon Steam Navigation Company, incorporated October 18, 1862, be and the same is hereby dissolved, to take effect upon the sale and transfer of its property, the settling of its business and the division of its capital stock.’
    “ The conditions of dissolution expressed in the resolution do not seem to have been completed. The president and secretary of the company were authorized by resolution of the board to proceed with all practicable dispatch to collect all the outstanding accounts and demands due the'company, and to settle and pay its debts and liabilities. What progress they had made in this direction is not shown. It seems very clear that the corporation cannot be considered as dissolved to such an extent that its officers could not be ■changed by their resignation and the appointment of others, or in any other lawful manner. The only effect of the resolution of ■dissolution would be, it seems to us, to deprive the corporation of the power of engaging in new businéss, and to leave it clothed with full power, so far as necessary to close up all its affairs, pay off its debts, and distribute its property, and that for that purpose, the board of directors continued to exist; and it would seem to follow as a necessary consequence, continued to have authority to fill any vacancy occasioned by death, resignation, or otherwise.
    ■“ What Mr. Villard’s private motives or purposes in resigning were, is not material, because they do not affect the rights of the •corporation itself, which is alone interested in the manner in which it may be sued. It is claimed by the .respondent, that 'the president and directors of the company occupied the relation of trustees upon the adoption of the resolution of dissolution, and had no-power by their own act to escape from the responsibilities of that relation. Assuming this position to be well taken, it does not follow that the • corporation can be sued by service upon one of ■ such trustees, although the trustees and each of their number’ might be liable to an action for' any abuse of his powers and duties. But there was, in fact, no dissolution, because the conditions upon which it was to take effect had. not been performed;
    “We are constrained to the opinion, that the service of.the summons and complaint were not regular, and that the motion should have been granted by the court below.”- >

      Jl. H. Holmes, for the appellant.

      Thomas H. JTuhba^d, for the respondents.
   Opinion

Per Curiam.

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

Order reversed, and motion granted, with $10 costs and disbursements.


text:
    CHARLES E. JENKINS, Respondent, v. RUSSELL W. ADAMS and others, Respondents.

      Code of Civil Procedure, § 66, as amended in 1879 — when ah attorney must have' given notice of the assignment of a pan't of the recovery to him in order to justify/ his moving to. set aside a settlement entes'ed into detween the parties.

    Appeal from an order denying the motion of Messrs. Townsend and Dyett, plaintiff’s attorneys, to set aside a settlement of the case between the parties, and to be permitted to proceed therewith in their own interest.
    The court at General Term said: “This action was lawfully and properly settled between the parties, without the. intervention of the plaintiff’s attorneys. There was no intention upon the part of the defendants to cheat these attorneys out of their costs. On the contrary; the''defendants had paid them, prior to the settlement,, and as a condition of pleading a discharge in bankruptcy, the entire costs of'the cause. The attorneys, however, claim that in addition to the costs they were entitled to one-half of the recovery. This, under a special agreement with the plaintiff. But of this agreement the defendants had no notice until after the settlement was made and the discontinuance entered. It is contended that under section 66 of the Code of Civil Procedure, the law gave the notice. It- is true that this section gives the attorney a lien upon his client’s cause of action. But the..act is silent as to its extent or character. Doubtless it was intended to confer upon the attorney the same rights, with regard to the cause of action-,.as he-had previously possessed with regard to the judgment. Now, it was always the rule that a special interest in. the claim and .judgment could only be protected by notice. This rule is equally applicable to tbe new lien upon the cause of action, created by the section in question.”

      A. JR. Dyett, for Townsend & Dyett, appellants.

      JEdmund Wetmore, for defendants, Adams & Rogers, respondents.

      David Tomlinson, for plaintiff, respondent.
   Opinion

Per Curiam.

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

. Order affirmed, with $10 costs and disbursements.


author: Pee Curiam.

text:
    FREDERICK C. LINDE and others, Appellants, v. JOSEPH McJ. BENSEL and others, Respondents.

      Complaint in an action to restrain the me of a trade-ma/rk — when it states facte sufficient to constitute a cause of action.

    Appeal from a judgment entered at Special Term, dismissing the complaint herein upon the pleadings and the opening of counsel ; and also from an order granting an additional allowance.
    The court at Special Term said : “ There is ho finding of facts, or conclusions of law, by the court below in this case. No part of the opening of counsel is given. The dismissal of the complaint must, therefore, be regarded as made upon the ground that the complaint does not state facts sufficient to constitute a cause of action, because we must assume that the counsel, in his opening, stated substantially the same facts alleged in the complaint. On carefully examining the complaint,-we are of the opinion that this ground cannot be sustained. The complaint alleges that the defendants wrongfully printed and used, and continued -to- use tobáceo sample tickets in imitation of the plaintiffs’ tobacco sample tickets, with intent to defraud and deceive the public and buyers and dealers in tobacco ; and that said false tobacco sample ticket is calculated to'deceive producers and dealers in tobacco, and actually has, and still does mislead many of. them to buy tobacco sampled by the defendants, as tobacco sampled by the plaintiffs, greatly to the damage and prejudice of the plaintiffs.
    “ If these allegations, taken in connection with the allegation of ownership of the sample ticket in the plaintiffs, and of the wrongful use of the similitude or imitation thereof by. the defendants, had been proved on the trial, they would, if unanswered in any form, have entitled the plaintiffs to a recovery of some damages, or to some relief. , It is not necessary for us to determine whether the plaintiffs would or would not probably have succeeded in their action upon the trial; They were entitled to put- in .their evidence tending to establish these various facts; and, if they had shown evidence fully sustaining the allegations of their complaint, they would have made at least a prima facie cause of action that called for the consideration of the court, and for some answer or defense on the part of' the defendants. ' '
    “We think'the court below erred in' its summary disposition of the case upon either of the grounds suggested by the learned counsel, and for that reason we must reverse the judgment and order a new trial, with costs to abide the event.”

      Edward S. Clinch, for the appellants.

      W. W. Goodrich, for the respondents.
   Opinion

Pee Curiam.

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

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


text:
    In the Matter of the Petition of JOHN B. CONLEY to vacate Assessment.

      Assessment — <me who purchases the property subject to it, and who agrees to pap it, cannot apply to home it vacated.

    Appeal from an order made at Special Term, vacating an assessment.
    The court, at General Term, said: “ It appears that the assessment which the petitioner sought to vacate was confirmed on February 3, 1876, and that he purchased the property in June, 1880, subject to all taxes and assessments, which he covenanted and agreed to pay. It does not appear, as was said in the Matter of Moore (8 Hun, 514), from the mere fact of ownership acquired subsequent to the confirmation of an assessment that the owner is aggrieved. The presumption is, he would be indemnified, and that must control until there is evidence to the contrary. If it formed a part of the consideration, the presumption is, if any wrong was done, that the prior owner is the one aggrieved, because he has made an allowance to cover it in the transfer of the property. The application is bald on this subject.”

      JE. H. Laeombe, for the city of New York, appellant.

      Alexcunder B. Johnson, for the petitioner, respondent.
   Opinion by

Brady, J.;

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

Order reversed.


author: Per Ouriam.

text:
    FRANCIS L. NORTON, Respondent, v. JAMES GORDON BENNETT, Appellant.

      Non-resident — who will he regarded as one, and required to give security for costs.
    Appeal from an order denying tlie defendant’s motion, to compel the plaintiff to give security for costs.
    The action was brought to recover' damages for an alleged libel, published by the defendant in his paper, on June 5, 1875.
    The court, at General Term, said : “We think that after the commencement of this suit the plaintiff became a non-resident, within the meaning of that term as used in those provisions of the Revised Statutes which have regard to security for costs. His. business is of a somewhat transient character, consisting of the introduction into ships, hospitals, &c., of a patent automatic ventilator. For the last two years he has had no abiding place within this State. Nor has he had any property, interests, nor even place of business here. To all practical intents and purposes, he has entirely severed his connection with this locality. It is not pretended' that he could vote here, nor that he is liable to jury duty, nor that, he is assessable for personal tax. Then, as to his immediate family, his wife has been with him since the summer of 1878. They have lived in the cities of Baltimore, Md., Washington, D. 0., and Chelsea, Mass., and their home has been in the latter city since about the month of April, 1879. .
    “ The deduction from these facts cannot be affected by the plaintiff’s mere assertion of continued residence in this city, nor by the expression of an intention to retain such residence; his intention must be gathered from his' acts, considered with reference to his habits, occupation and surroundings. The case is clearly within the object and intent of the statute. As to the amount, we think that a bond in $500 would be reasonable.”

      John Townshend, for the appellant.

      Dennis MoMahon, for the respondent.
   Opinion

Per Ouriam.

Present — Davis, P. J., Brady and-Barrett, JJ.

Order reversed, with $10 costs, and disbursements ; security for -costs in the usual form.


author: Davis, P. J.;

text:
    HENRIETTA ABRAHAMS, Respondent, v. CHARLES B. BENSEN, Appellant.

      •Change of the place of trial — when, cyrdered for the convenience of witnesses — the ., court will consider the state of the calendars in the two places, in passing vpon the application.

    Appeal from an order made at Special Term, denying a motion made by the defendant to change the place of trial.
    This action was brought in Rockland county, where the plaintiff and the surviving defendant, the sheriff of that county, resided. The action was brought to recover the possession of certain goods seized by the defendant under an attachment sued out by one Hyman, who was a co-defendant. It seems that Hyman undertook the -defense of the action ami that the sheriff in effect intrusted the defense to him. Hyman moved in the second district, to change the place of trial from Rockland county to New York, for the convenience of witnesses. The plaintiff resisted the motion, but it was granted. The sheriff claims that this motion was made and granted without his assent or knowledge. He afterwards moved to vacate the order, which was done; but on appeal the General Term of the second department reversed the order of the Special Term, on the ground that the sheriff had acquiesced in the change of place of trial, and was therefore too late in his motion. The case has been twice tried in the city of New York, the first trial occupying ten days, and the second nine days, and each resulting in a disagreement -of the jury.
    The court, at General Term, said: “ The original motion to ■change the place of trial from Rockland to New York obviously ought not to have been granted, but it seems equally clear that the General Term was right in holding that acquiesence had cured the error. We cannot, therefore, grant this motion on the ground that the place of trial ought to have been retained in Rockland county. The only question is whether, under the peculiar circumstances now existing, the change ought not to be made. Both of the present, parties reside in Rockland county. The defendant is prosecuted for acts done in his official character as sheriff. His co-defendant is dead, and is shown to have died insolvent. The cause of action arose wholly in Rockland county. A large number, if not the most of the witnesses on both sides, reside in that county. Two trials have already been had in New York, both of which have resulted in the disagreement of the jury. Nearly three weeks of the time of our courts have already been taken up with the trials. The defendant swears that it will be almost if not quite impracticable to procure the attendance of his witnesses in the city of New Y ork again. It is obvious, we think, that it will be more conve nient for the witnesses on both sides to attend a re-trial of the action in Rockland county; and our knowledge of the condition of the calendars in the two counties satisfies us that less delay will attend a trial in Rockland of an issue so old as this, than must attend its trial in this city. Besides, we think it our duty to consider the state of business in the Circuits of New York, and the great length of time already lost by the courts of New York in the trials that have already been had.
    “ On full consideration we think that the private interests of the parties and the ends of justice as between them will be fully as well served by a trial in Rockland as in New York, and that the public interests will be better served if. the change be made. We think, therefore, that the order of the court below should be reversed, and an order entered changing the place of trial to Rock-land county, without costs to either party of the motion or of this appeal.”

      George F. Icmgbien, for the appellant.

      George II, Forster, for the.respondent.
   Opinion by

Davis, P. J.;

Barrett, J., concurred.

Present — Davis, P. J., and Barrett, J.

Order reversed, without costs.


author: Per Curiam : Per Curiam.

text:
    In the Matter of MARGARET DENNIS, to vacate an Assessment, &c.

      Assessment — what errors or omissions in, will not authorise the coivrt to vacate it.

    Appeal by the Mayor, Aldermen and Commonalty of the city of New York from an order made at Special Term, vacating an assessment for a sewer.
    The contract for the sewer was let, after advertisement for proposals, to Robert McChristie, who was the lowest bidder, on November 3, 1870.
    All of the expenses were certified to the assessors by the commissioner of public works. The assessment was laid by the board of assessors appointed pursuant to chapter 302 of the Laws of 1859. They appear not to have taken an oath to make the assessment in question “fairly and impartially,” as required by law, but did take an oath, upon their several appointments, to faithfully discharge the duties of an assessor and a member of the board of assessors. The contract was certified as free from fraud by the commissioners, appointed in and by chapter 580 of the Laws of 1872, two of whom took an oath of office, to support the Constitution of the United States, and the Constitution of the State of New York, and to “faithfully discharge the duties of the office of commissioner mentioned in such chapter 580 of the Laws of 1872, according to the best of my ability.” The third took the same oath, except that, instead of the words “ according to the best of my ability,” he swore to “ justly and fairly hear and consider the matter submitted, for the purposes mentioned in such act, and will make a just and true decision thereof.” The petitioner alleged, that the assessment should be vacated: Because there is included therein the cost of work for which no- bids were made or solicited. Because items of expense aré included which were not certified by the commissioner of public works, and are chargeable, if at all, only to the contractor. Because there is included the sum of $1,149 for surveyor’s or engineer’s fees, which was not properly chargeable to said assessment. Because the expense of the work was not properly certified to the board of assessors. Because the board of assessors were without jurisdiction, never having taken the requisite oath before making the assessment.
   Per Curiam :

The objection presented by the alleged omission of the assessors to take the oath required by law is valueless, under the provisions of section 7 of the Act of 1872, chapter 580, which expressly declares that “ no assessment shall be vacated or set aside, . . . for or by reason of the omission of any officer to perform any duty imposed upon him, or for or by reason of any defect in the authority of any department or officer, upon whose action the assessment shall be in any manner, or to any extent, depend.” The further objection, that the commissioners appointed for the purposes of the act, swpra, did not take the oath prescribed, in the language of the provision relating to it, is also valueless, because the oath which was taken by them was in effect the same, and was a substantial compliance with the requirements of the statute. In regard to the certificate given by these commissioners, under the provisions of section 7, supra, we refer to the opinion in the Matter of Andrews, by which we have declared the certificate operative, re-affirming In re Marsh, 21 Hun, 582.

Entertaining these views, we think it was the duty of the court below to have sustained the assessment, except, perhaps, as to one -or two items, and which form part of the objections interposed. As to these items, surveyors’ and engineers’ fees, we think the proceeding should be remitted to the Special Term for further consideration ; and the order appealed from must, therefore, be modified in accordance with these suggestions.

J. A. Beall, for the Mayor, &c., of New Tort, appellant.

John G. Shaw, for the petitioner, the respondent.

Opinion

Per Curiam.

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

Order modified as indicated in opinion.

       The following is the opinion in Mutter of Andrews, decided at this term.
      “This being a case neither of fraud nor repavement, the decision in In re Marsh is applicable. We have again examined the case of Burmeister (76 N. Y., 174), and are of opinion that there is nothing in that adjudication which requires a re-examination of the case of Marsh. We are also satisfied that the petitioner was not ‘aggrieved’ within the act of 1858, the facts not showing that she was prejudiced by the defects complained of. It is apparent that, the attention of the court below was not called to the case of In re Marsh.

      “Order reversed, and rhotion denied.”


text:
    ACALUS L. PALMER, Respondent, v. ERWIN A. HUSSEY, Appellant.
   Order reversed, with $10 costs ; motion remitted to Special Term for hearing on the merits.

Opinion

Per Curiam.


text:
    In the Matter of the Application of the AMERICAN EXPRESS COMPANY for leave to sue ASHBEL H. BARNEY, as Receiver of WELLS, FARGO & COMPANY.
   Order reversed, and leave to sue granted, with costs to be paid cut of the fund in case of final success in the action.

Opinion

Per Curiam.


text:
    JOHN S. STUBBS and RICHARD S. JONES, Respondents, v. JANE STUBBS, Appellant.
   Order affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    JOHN S. STUBBS and RICHARD S. JONES, Respondents, v. JANE STUBBS, Appellant.
   Motion to dismiss appeal denied, without costs.

Opinion

Per Curiam.


author: Westbrook, J

text:
    MARY E. TAPPIN, Appellant, v. JOSEPH H. GODWIN, Respondent, and others. JOSEPH H. GODWIN, Respondent, v. JAMES McLEAN and others. MARY E. TAPPIN, Impleaded, &c., Appellant.
   Order affirmed, on the opinion of

Westbrook, J


text:
    PETER E. LE FEVRE, Sole Executor, &c., Respondent, v. ELIZA P. TOOLE, Appellant, Impleaded, &c., and others, Respondents.
   Judgment affirmed, with costs payable out of the estate.

Opinion

Per Curiam.


text:
    ABRAHAM BLUMLIEN, Respondent, v. EDWARD FEE, Appellant.
   Order reversed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    JOSEPH DIXON, Respondent, v. ALFRED E. BEACH and others, Appellants.
   Order affirmed, so far as it denied motion to make certain allegations of the complaint more definite and certain. Order modified, so far as it refused to strike out certain parts of the complaint as irrelevant and redundant, and such parts of said complaint as are indicated in the margin thereof filed with the clerk, stricken out as irrelevant and redundant, without costs.


text:
    MARY SHERIDAN and JAMES E. McLARNEY, as Administrator and Administratrix of JAMES SHERIDAN, Deceased, Appellants, v. FERDINAND T. HOPKINS, Respondent.
   Judgment reversed, and new trial ordered, costs to abide event.

Opinion

Per Curiam.


text:
    ANDREW A. SMITH, Appellant, v. WARREN A. RANSOM and others, as Executors and Trustees, &c., of JONATHAN H. RANSOM, Respondents.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


text:
    JAMES F. WOODHOUSE, as Administrator, &c., of CHARITY WOODHOUSE, Deceased, Appellant, v. CLARIBORNE O. WOODHOUSE, Respondent.
   Judgment reversed; new trial ordered; costs to abide event.

Opinion

Per Curiam.


author: Per Ohrtam.

text:
    SALT I. MAYER and others, Appellants, v. GARRETT L. HARDY, Respondent.
   Order reversed, with. $10 costs, and disbursements-; cause remitted to Special Term, for hearing on the merits.

Opinion

Per Ohrtam.


text:
    CHARLES E. KNOWLTON, Respondent, v. MARY ANN TRIMBLE, Appellant.
   Order affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    EDWIN H. WEATHERBEE, Respondent, v. EMILY ST. JOHN and others, Appellants.
   Order reversed, with $10 costs, and disbursements, and motion denied.

Opinion

Per Curiam.


text:
    JOHN PARROTT, Plaintiff, v. JOSEPH SAWYER, Defendant.
   Exceptions sustained; new trial ordered; costs to abide the event.

Opinion

Per Curiam.


text:
    CHARLES F. SANFORD v. WILLIAM G. McCORMACK and others.
   Order reversed, without costs of appeal to either party; order entered as directed in opinion.

Opinion

Per Curiam.


text:
    PETER J. VANDERBILT, Respondent, v. JOHN SCHREYER, Appellant.
   Order affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    THE PRESIDENT AND FELLOWS OF YALE COLLEGE in New Haven, Respondents, v. HANNAH KENNEDY and others, Appellants.
   Order affirmed, with $10. costs, and disbursements.

Opinion

Per Curiam.


author: Pee Cubiam.

text:
    PETER J. VANDERBILT, Respondent, v. JOHN SCHREYER, Appellant.
   Order modified as directed in opinion, without costs to either party.

Opinion

Pee Cubiam.


text:
    THE PEOPLE OE THE STATE OF NEW YORK ex rel. THE CENTRAL CROSSTOWN RAILROAD COMPANY OF NEW YORK v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS FOR THE CITY AND COUNTY OF NEW YORK, Respondents.
   Writ quashed, and proceedings affirmed, with costs.

Opinion

Pee Cubiam.


text:
    H. O. BERNARD and others, Respondents, v. AMELIA BAGLIN, Appellant, Impleaded, &c.
   Appeal from order directing attachment to issue dismissed, with $10 costs. ' _


text:
    H. O. BERNARD and others, Respondents, v. AMELIA BAGLIN, Appellant, Impleaded, &c.

   •. Appeal from order directing interrogatories to be filed, dismissed, with $10 costs.


text:
    H. O. BERNARD and others, Respondents, v. AMELIA BAGLIN, Appellant, Impleaded, &c. SAME v. SAME.
   Orders convicting the-defendant Amelia Baglin of contempt, reversed, without costs; order .made directing a continuance of the investigation, upon the motion to punish her, before a referee to be appointed by the Special Term, .to take the cross-examination ■ of the defendants, and of Evarts, and the further proofs indicated in the opinion and to report with his opinion to the Special Term, when the motion to punish can be again brought up for final disposition.

Opinion

Per Curiam.


text:
    ERNEST G. STEDMAN, Appellant, v. HERBERT J. DAVIS and others, Respondents.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


text:
    JAMES E. BRETT and others, Respondents, v. FRANCIS SKIDDY and others, Appellants.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion

Per Curiam.


text:
    EUGENE N. ELIOT v. WILLIAM H. KING.
   Order resettled.

Opinion

Per Curiam.


author: Potter, J.

text:
    JONATHAN O. FOWLER, Appellant, v. HARRIET A. WALTER, Executrix and Trustee, &c., and others, Respondents.
   Order affirmed, with $10 costs, and disbursements, on opinion of

Potter, J.


text:
    STRATFORD P. DAVIDSON and another, &c., Respondents, v. THE UNION NATIONAL BANK, Appellant.
   Order affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    ELIZA GUGGENHEIMER, Appellant, v. JOHN GEIZLER, as Administrator, &c., and others, Respondents.
   Order reversed, with $10 costs, and disbursements, .and motion denied.

Opinion

Per Curiam.


text:
    In the Matter of GENEVIEVE B. ANDREWS, to Vacate an Assessment, &c.
   Order reversed, with $10 costs, and disbursements, and application denied.

Opinion

Per Curiam.


text:
    In the Matter of THOMAS O’REILLY, sole Executor, &c., of JAMES O’REILLY, Deceased, to Vacate an Assessment, &c.
   Order reversed, and proceedings remitted to the Special Term.

Opinion

Per Curiam.


text:
    In the Matter of SAMUEL R. SYMS.
   Order reversed, and proceedings remitted to the Special Term. (See opinion in Matter of O'Reilly.)


text:
    In the Matter of JOHN C. VANDENHEUVEL and others, to Vacate an Assessment, &c.
   Order affirmed, with $10 costs, and disbursements, on opinion In re Mahan,* and In re Merriam.


text:
    In the Matter of PATRICK MALONE, to Vacate an Assessment, &c.
   Order affirmed, with $10 costs, and disbursements; the court being unable to distinguish this case in principle from In re Merriam.


text:
    In the Matter of JOHNSTON LIVINGSTON, to Vacate an Assessment, &c.
   Order reversed, with $10 costs, and disbursements, and application granted.

Opinion

Per Curiam.


text:
    In the Matter of GUY R. PELTON, to Vacate an Assessment, &c.
   Order affirmed, with $10 costs, and disbursements.


text:
    In the Matter of CHARLES A. DEVLIN.
   Order affirmed, with $10 costs, and disbursements.


text:
    In the Matter of ERASTUS H. MUNSON.
   Order affirmed, with $10 costs, and disbursements.


text:
    In the Matter of LEVI L. GANS, to Vacate an Assessment, &c.
   Order affirmed, with $10 costs, and disbursements, on opinion In re Mahan,* and In re Merriam.


text:
    In the Matter of JULIA HOWE STOCKWELL, to Vacate an Assessment, &c.
   Ordér affirmed, with $10 costs, and disbursements, on opinion In re Mahan, and In re Merriam.

         20 Hun, 301.


text:
    In the Matter of PATRICK FOLEY and BERNARD GALLIGAN, to Vacate an Assessment, &c.
   Order affirmed, with $10 costs, and disbursements, on opinion In re Mahan,* and In re Merriam.


text:
    In the Matter of DANIEL R. KENDALL, to Vacate an Assessment, &c.
   Order reversed, and proceedings remitted to tbe Special Term. “(See opinion In re O'Reilly.)


text:
    In the Matter of GUSTAV RAMSPERGER, to Vacate an Assessment, &c.
   Order affirmed, witb $10 costs, and disbursements, on tbe opinions In re Mahan* and In re Merriam.


text:
    In the Matter of ROBERT CHAPMAN, to Vacate an Assessment, &c.
   . Order reversed, and proceedings remitted to Special Term. (See opinion In re O’Reilly.)


text:
    In the Matter of FREDERIC STEINLE and FREDERIC BOHDE, to Vacate an Assessment, &c.
   Order affirmed', witb $10 costs, and disbursements, on the -opinions In re Mahan,* and In re Merriam.


text:
    In the Matter of GEORGE N. LAWRENCE, to Vacate an Assessment, &c.
   Order affirmed, witb $10 costs, .and disbursements, on tbe opinions In re Mahan,* and In re Merriam.


text:
    In the Matter of ANNA MARIA DEAN, to Vacate an Assessment, &c.
   Order affirmed, witb $10 costs, and disbursements, on tbe opinions In re Mahan* and In re Merriam.


text:
    In the Matter of FREDERICK E. GILBERT, to Vacate an Assessment, &c.
   Order affirmed, witb $10 costs,, and disbursements, on opinions In re Mahan, and In re Merriam.

       20 Hun, 301.


author: Barrett, J.,

text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent, v. PHILIP LEVY, Appellant, Impleaded with others.
   Order affirmed, with $10 costs, and disbursements, on the-opinion of

Barrett, J.,

in Knickerbocker Life Ins. Co. v. Clark (reported cante, p. 506).


text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent, v. GEORGE W. NELSON and GEORGE W. RODERICK and others, Appellants.
   Order affirmed, with $10 costs, and disbursements, on the-opinion of

Barrett, J.,

in Knickerbocker Life Ins. Co. v. Clark (reported cante, p. 506).


author: Yan Brunt, J.

text:
    ANNA D. ANTHONY, Appellant, v. HENRY DAY and another, Respondents.
   Judgment affirmed, with costs, on the opinion of

Yan Brunt, J.


text:
    In the Matter of MICHAEL H. CASHMAN, to Vacate an Assessment, &c.
   Order affirmed, with $10 costs, and disbursements, on consideration of the evidence.


text:
    JOHN H. BROWN v. ERNEST STEIGER.
   • Motion for re-argument denied) without costs.


text:
    MICHAEL MOLOUGHNEY, Jr., Respondent, v. JOHN C. KAVANAGH, Appellant.
   Order reversed, with $10 costs, and disbursements of appeal, and motion granted, with $10 costs, on the usual stipulation not to sue.

Opinion

Per Curiam.


text:
    GUSTAVE SHIFF, Respondent, v. EXPERIENCE W. FREEMAN and others, Appellants.
   Order reversed, with $10 costs, and disbursements; motion to-continue injunction denied, and temporary injunction dissolved.'

Opinion by

Barrett, J.


text:
    ELIZABETH OHLY, Respondent, v. LOUIS M. OHLY, sued as LOUIS OHLY, Appellant.
   Order reversed, and motion granted, without costs.

Opinion by

Barrett, J.


author: Barrett, J. .

text:
    JAMES J. HIGGINSON, Appellant, v. THE FARMERS’ LOAN AND TRUST COMPANY, Respondent.
   Order affirmed, with $10 costs, and disbursements of the appeal.

Opinion by

Barrett, J. .


text:
    SPENCER ERVIN and others, Respondents, v. THE OREGON RAILWAY AND NAVIGATION COMPANY, Appellant, Impleaded with others.
   Order allowing commission affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


author: Daniels, J.

text:
    THE RECTOR, CHURCHWARDENS AND VESTRYMEN OF THE CHURCH OF THE REDEMPTION, Respondent, v. THE RECTOR, CHURCHWARDENS AND VESTRYMEN OF GRACE CHURCH, Appellants.
   Judgment affirmed.

Opinion by

Daniels, J.


text:
    SARAH L. S. LEE and FREDERICK G. LEE, her Husband, Respondents, v. ELIZABETH A. LE ROY and others, Executors, &c., or Herman C. Le Roy, Deceased, Appellants, Impleaded with ALEXANDER S. WEBB, and others.
   Judgment affirmed.

Opinion

Per Curiam.


author: Davis, P. J.

text:
    SPENCER C. THOMSON, Respondent, v. WILLIAM N. GRISWOLD, Appellant, Impleaded, &c.
   Order reversed, with $10 costs, and disbursements; and motion denied, with $10 costs. . ^ • ¡

Opinion by

Davis, P. J.


text:
    DAVID H. SHERMAN and MORILLO H. GILLETT, Respondents, v. THE INMAN STEAMSHIP COMPANY (limited), Appellant.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Daniels, J.


author: Bradt, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HERBERT ESTES v. THE WARDEN OF THE CITY PRISON, &c.
   Writ dismissed.

Opinion by

Bradt, J.


text:
    FARRELL FOUNDRY AND MACHINE COMPANY, Appellants, v. ANVIL HORSE SHOE AND NAIL COMPANY, Respondents.
   Order affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    CHARLES F. SANFORD, Respondent, v. WILLIAM G. McCORMACK and others, Appellants.
   Order affirmed, without costs, on the ground that the motion should not have been made, pending appeal from the order refusing permission-to plead the bankruptcy.


text:
    IDA E. AFFLECK, Respondent, v. STEPHEN D. AFFLECK, Appellant.
   Order affirmed.

Opinion

Per Curiam.


text:
    VIRGINIA W. SPENCER, Respondent, v. GEORGE R. BALDWIN, Appellant.
   Order affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    FRANCIS H. SALTUS, Appellant, v. ELLIOT F. SHEPARD and others, Respondents.
   Reargument granted and motion denied, without costs, and without prejudice to a renewal upon proper notice.

Opinion per

Daniels, J.


author: Martin, J.

text:
    DEMON C. TUTHILL, Respondent, v. JEFFREY J. ROBERTS, Appellant.

      Parol agreement to pay a larger sum, for a deed, of land which purports to comey the land for one dolla/r — valid.
    Appeal from a judgment in favor of the plaintiff for $567.35, entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the trial was had.
    The action was brought to recover the amount which it was alleged that the defendant had agreed to pay to the plaintiff for an equal undivided one-seventh part of a farm in Orange county. It was claimed by the plaintiff that the defendant had promised to pay the plaintiff, as a consideration for his conveyance, all that the said one-seventh part would bring on a sale in proceedings for a partition of the said premises. Said premises were sold, on May 30, 1873, at public auction, under and by virtue of a judgment in partition, for $3,350. The costs and disbursements of the action and all expenses of sale were deducted, to the amount of $788.76, and the sum of $2,561.24 was distributed to the owners of the said premises, and the defendant received from the referee, for the one-seventh part conveyed to him by the plaintiff, the sum of $365.89. The deed executed by the plaintiff to the defendant purported to be in consideration of $1.
    The court, at General Term, said: “Was this agreement within the statute of frauds ? We think not. The plaintiff sought by his action simply to recover of the defendant the agreed price for real estate sold and transferred to him. The plaintiff had fully performed the agreement upon his part by executing and delivering to the defendant a deed of his interest ■ in the premises, and the 'defendant had had the full benefit of such title. This contract between the parties was fully executed, except that the defendant had not paid the plaintiff the price agreed upon between them, as he had promised to do. This promise was not within the statute of frauds, and was not required to be in writing. (Bowen v. Bell, 20 Johns., 340; Thomas v. Bieldnson, 12 N. Y., 364; Bennett v. Abrams, 41 Barb., 619 ; Johnson v. Nathorn, 2 Keyes, 476; Ely ■V. McNight, 30 How., 97; Murray v. Smith, 1 Duer, 413.)
    “ It follows, therefore, that there was no error on the trial of this action for which the judgment herein should be reversed, and the judgment and order appealed from should be affirmed, with costs.”

      E. A. Vam SicMe, for the appellant.

      G. A. Qla/rh, for the respondent.
   Opinion by

Martin, J.

Present — Learned, P. J., Bockes and Martin, JJ. .

Judgment and order affirmed, with costs.