text:
    ROZELL W. OWENS, Respondent, v. MANLY LOOMIS AND WILLIAM BARDEAU, Appellants.

      Second action for the same cause — when a former one is not pending, so as to prevent the-prosecution of the second action.

    3n September, 1876, the plaintiff attempted to commence an action against the defendants herein, but by mistake omitted to state the proper name of one of the defendants in the summons and complaint served. Subsequently, on motion of the attorney for the other defendant, an order was made setting aside the complaint, with ten dollars costs, directing the summons to be amended by adding the name of the defendant improperly named and allowing the plaintiff to serve an amended complaint and a copy of the amended summons within ten days, upon payment of ten dollars costs. The plaintiff did not pay the ten dollars costs, or serve the amended summons and complaint, though more than ten days elapsed since he was served with notice of the entry of the order.
    '.This action was brought against the same defendants for the same cause of action stated in the former complaint. Held, that the former action was not pending at the time of the commencement of the second action so as to prevent the prosecution of the latter. ,
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was commenced January 29, 1877.
    The complaint alleged that the defendants wrongfully took and converted the plaintiff’s buggy, and that the value thereof was $150. The taking and conversion and the value of the "buggy were admitted on the trial, and found by the referee to be as stated in the complaint.
    The answer contained no denial of the allegations of the complaint, but alleged “that, at the time of the commencement of this action, there was and still is another "action pending and undetermined in the Supreme Court, in and for the county of Jerfersonin this State, between the same parties as this action, and for the same cause as that set forth in the complaint herein.”
    It appeared by the evidence that in September, 1876, the plaintiff caused a summons and complaint to be issued in Jefferson county, against “ Manly Loomis and -Ladeau,” defendants, and sent them to Erwin, with instructions to serve them after filling in the proper name of the constable, he being the defendant referred to by the name of Ladeau. The proper name of this •defendant was William Bardeau.
    There was a mistake made and the proper name of this defendant was not stated in the copy summons- and complaint served on the defendant Loomis.
    The attorney of defendant Loomis made a motion to strike out the complaint because of the variance.
    The motion was brought on at a Special Term, in Oneida county, •October 31, 1876, and counsel heard, and the court ordered that the complaint be and the same was set aside, with ten dollars -costs ; also ordered, that the summons be and it was amended by -adding the name of another defendant, and that plaintiff have leave to serve an amended complaint with a copy of said summons -so amended, •“ by addition of the name of the additional- defendant,” on A. E. Ivilbey, Esq., attorney for defendants, “ m ten days .from the date on payment of ten dollars costs.” The order was entered and notice of it was given to plaintiff November 4, 1876.
    It did not appear that the complaint was amended or reserved, .-or the summons served on Kilbey as the order allowed.

      .8. Ii. Pratt, for the appellants.

      Whiting & Moore, for the respondent.
   Hardin, J.:

The single question brought up by the appeal in this case is, whether there was a former suit pending for the same cause of action between the same parties, at the time this action was commenced, and therefore it was claimed that the plea in abatement was established and was a defence.

Formerly such a plea could not be joined with a defence upon the merits. But since the Code of 1848 it has been settled that , such a defence may be joined with one upon the merits. (Sweet v. Tuttle, 4 Kern., 465; Gardner v. Clark, 21 N. Y., 399.)

The effect of the order of the Special Term of October 31, 1876, was to set aside the complaint in that action, and render it necessary for the continuance of the action that an amended complaint be served within ten days; the omission to amend and serve left the order effectual so far as it set aside the complaint. Again, the effect of the order was to declare the original summons defective, and to amend it so that it would contain the name of one of the defendants named in this action. It, in effect, declared that he was named as a defendant in the original papers so as to make him a defendant in that action. Though the order in terms declared the summons amended, nevertheless it imposed, a condition upon the plaintiff to serve a copy of the summons, as. amended, upon Mr. Kilbey, within ton days. The omission to do so put the plaintiff in a situation where he cotdd not avail himself of the benefit of the order, allowing a continuance of the action with a corrected summons, and a complaint in accordance with the summons. The omission of the plaintiff to avail himself of the permission within the prescribed time had the effect to render effectual the order setting aside the complaint.

The proofs, therefore, given upon the trial before the referee failed to establish that the plaintiff, at the time of the commencement of this action, had pending against these defendants a suit for the same identical cause of action stated in the complaint in this action, and for which the recovery was had. (Gardner v. Clark, 21 N. Y., 403.)

An order was standing in full force setting aside the plaintiff’s complaint, with costs, and they remained unpaid at the time this action was commenced.

The referee correctly found that “ at the time of the commencement of this action there was no other action pending between the plaintiff and the said defendants herein.” (Porter v. Kingsbury, 13 Hun, 33.)

We must, therefore, affirm the judgment entered upon the referee’s report.

Talcott, P. J., and Smith, J., concurred.

Judgment affii'med.


source: Caselaw Access Project

author: Hardin, J. :

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HIRAM M. YALE, Respondent, v. SOMERS ECKLER, sole Trustee of School District No. 3 of the Town of Pittsford, Appellant.

      Superintendent of public instruction — when appeal lies to — decision of, concVw-. si.ve —1864, chap. 555, title 12, § 1 — as to whether it deprives a party of the right of trial by jury — waiver of right— Constitution, art. 1, § 2.
    Upon the trial of an issue raised by a return to an alternative mandamus requiring the respondent to show cause why he should not pay to the relator the amount alleged to be due to him as wages, for services rendered as a teacher, the respondent, the sole trustee of the school district, offered to prove that the contract .of hiring was procured by the relator by a corrupt and illegal agreement made with a former .trustee, and that false representations were made by the relator as to his certificate and as to other facts. It appeared that the relator had been engaged to teach for twenty weeks, but had been discharged before the expiration of that time; that he had sued a predecessor of the respondent in the county court, and been nonsuited; that thereafter he had appealed from the refusal of the trustee to pay him his wages to the superintendent of public instruction, who had reversed the decision of the trustee and directed -him to pay the relator the amount he had claimed to be due for wages.

      Held, that the nonsuit in'the county court did not bar further proceedings.
    That the refusal of the trustee to pay the relator his wages was a “ decision ” within section 1 of title 12 of chapter 555 of 1864, and that the relator was entitled to appeal therefrom to the superintendent of public instruction.
    That the decision of the superintendent in favor of the relator was final and conclusive.
    That the' trustee waived any right he might have to a trial of the question by a . jury, by answering the appeal and submitting'the case without objection to the superintendent.

      Quaere, as to whether the act authorizing an appeal to the superintendent of public instruction is unconstitutional, as depriving the school district of the right to have the questions involved tried by a jury.
    The superintendent of public instruction may, on deciding on an appeal in favor of the claimant, direct the trustee of the’school district, if he has not sufficient money on hand to pay the claim, to issue a tax-list and a warrant to collect an amount sufficient so to do.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed at the circuit.
    An alternative mandamus was issued requiring the defendant to pay $250 upon a contract made with the relator by James W. Stiles, who was the trustee of the school district No. 3. of the town of Pittsford, October 11, 1876, where the said contract for the services of the relator as a teacher was made.
    After the return by the defendant, a.nd the plea or reply of the relator thereto, the issues were brought to a trial at a circuit in Monroe county, and at the close of the evidence the court directed a verdict for the plaintiff, and from the judgment entered on such verdict in favor of the plaintiff the defendant brought this appeal.
    The respondent alleged in his return that, on the ,11th day of October, 1876, the relator, Hiram M. Yale, made a corrupt and illegal bargain with one James W. Stiles, that he would elect said Stiles as trustee of the district, if said Stiles would hire him to teach the school. That in pursuance of that unlawful agreement, the said Yale did procure the said Stiles to be elected trustee, and that Stiles subsequently made a contract hiring the relator as a teacher for twenty weeks.
    That in point of moral character and mental education the relator was not fit to teach that or any other school. That subsequently Stiles refused to allow the relator to teach the school.
    That in April, 1877, Yale brought an action against John Huschor, the then trustee, for a breach of that contract, in the Monroe County Court, which resulted in a judgment for the defendant; -which judgment was set up as a bar to this action.
    The original l’ecord from the county court was brought before the court on the argument, and an inspection of it showed a non-suit.
    Afterwards the relator applied to the trustee for his pay, and not getting it appealed to the superintendent of public instruction, who reversed the decision of the trustee and directed him to pay the relator the amount ho had claimed.
    Upon the trial the defendant offered evidence for the purpose of establishing : (1.) That the contract of hiring the relator was illegal and corrupt, and was procured as a consideration for services in promoting the election of Stiles as trustpe. (2.) That it was a fraudulent and void contract. (3.) That there was false representations made by the relator as to the character of his certificate, and such other facts as were stated in the return.

      “ The court excluded any proof on the part of the respondent '(defendant), except proof that the superintendent did not pass upon the question submitted do him and decide it;” held the exemplification of the papers. and decision in the appeal from the department of public instruction to be proof of all the facts contained in it, and that the only question in the case was whether .or not the superintendent had made the decision claimed.”
    The defendant excepted to the ruling.

      John Van Voorlris, for the appellant.

      'll. A. McMcith, for the respondent.
   Hardin, J. :

By section 1 of title 12 of the “act to revise and consolidate the general acts relating to Public Instruction, passed in 1864 (chap. 555, p. 1281), it was provided that appeals might be taken, to the superintendent of public institutions.

We quote from the section, viz. : “ Section 1. Any person conceiving himself aggrieved in consequence of any decision made * * * ‘ by the trustees of any district in paying of' Refusinig to pay any teacher ’ * * * . by any other official .act or decision concerning any other matter under this act or any other act pertaining to common schools, may appeal to the superintendent of public instruction, who is hereby authorized and required to examine and decide the same. 'And his decision rshall be final and conclusive,.and not subject to question or review-fin any place or court whatever.”

When Stiles refused to pay the relator the wages due him under the contract, the teacher had a right to appeal if his case came within the terms of the act.

(1.) He was a “ person considering himself aggrieved in consequence ” of the decision made by the trustee not to pay. The trustee was acting officially, and his conclusion not to pay was within the words “ decision made,” as used in the statute.

(2.) The relator was a teacher, and he had taught in the district, and demanded his pay ; and when the trustee refused to pay he made a “decision” byrefusing to pay a teacher, and thus came within the express terms of subdivision 4 of section 1 referred to supra.

But it is insisted that because he had not taught the whole-time, that the whole of his claim' could not be called ‘1 teacher’s wages.” ' For the purpose of availing of the provision in respect to appeals, we think it would be sufficient that he had a claim to some extent for teacher’s wages.

However, for the present, let us look at the relator’s case, so far as it is necessary to dispose of the objection raised, as to whether it was within the provision quoted. Assuming for the moment that-he was hired, as the written contract states, 'for twenty weeks, and that he had the proper certificates, the trustee could not discharge him except for cause or with his consent. (Finch v. Cleveland, 10 Barb., 297.) If he was thus dismissed he could, upon, making reasonable effort to find employment elsewhere and holding himself in readiness to perform, at the expiration of the twenty weeks justly claim that the contract on his part had been kept, and that he therefore was entitled to wages for the whole term of his employment.

His claim, therefore, which the trustee refused to pay was for “ teachers wages,”- and the statute as to appeals in terms applied. (Sec. 1, title 12, sub. 4, chap. 555, p. 1284 of Laws of 1864; Laws of 1830, chap. 320, sub. 2 of sec. 7, amending sec. 110 of title 2, chap. 15, part 1 of the Revised Statutes (1 R. S., p. 487).

We come now to consider the effect of the appeal and the decision thereon.

The record brought into this case” from the superintendent’s office (and filed also with the clerk of the school district), shows that' the trustee made answer to the appeal and set up various matters upon the merits, which matters were offered to be proven also at the circuit. It also appears that evidence was submitted to the superintendent, and that, thereupon, he made his decision' on the 7th day of October, 1878. The appellant insists that the decision is not valid and conclusive, “ because the trustees had a right to a trial by jury of the relator’s claim.” He refers us to section 2 of article 1 of the Constitution of 1846, which provides, that “ the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever,” but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.”

If the defendant had raised the question timely, it might have been necessary to consider and determine whether the statute under consideration could be so construed as to compel a party to submit to the decision of the' superintendent; and, secondly, 'whether that officer would be authorized to overrule a demand .for a jury trial, though such right of appeal, review and decision have been exercised ever since the Constitution of 1821, in one form and another, under various statutes, and been assumed to be valid. (Storm v. Odell, 2 Wend., 287; Easton v. Calender, 11 Wend., 95 [Nelson, J.] ; Ex parte Bennett, 3 Denio, 175; Clarke v. Tunnicliff, 38 N. Y., 58; Willey v. Shaver, 1 Thomp. & Cook, 324; Rawson v. Van Riper, id., 370; Baird v. Mayor, 74 N. Y., 386.)

Whether the act is in any aspect or in any case unconstitutional need not be considered in this case, and should not be as it is not necessarily involved. (Frees v. Ford, 2 Seld., 176; People v. Supervisors N. Y., 34 How., 383.)

But, in fhe case before us, we have the appearance and' answer to the appeal, and the voluntary submission of the question Embraced in the appeal to the superintendent and his decision thereon after such submission. In the People v. Murray (5 Hill, 468), it was held a party might waive his right to have damages .assessed by a jury, and be bound by a certificate of a magistrate. It ‘is well understood that a party may waive the right to trial by jury in all civil proceedings, as well as other constitutional or statutory provisions designed for his protection. (Embury v. Conner, 3 Comst., 511; Greason v. Keteltas, 17 N. Y., 498; Barlow v. Scott, 24 id., 40, 46; West Point Iron Co. v. Reymert, 45 id., 703; People v. A. and S. R. R. Co., 57 id., 174.) And the latest case in the Court of Appeals is to the effect that such waiver may be inferred from the silence, act or conduct of a party. (Baird v. Mayor, 74 N. Y., 386.)

It is held in the case last cited that when a party had omitted to appeal from an order of reference improperly made, and when •the party proceeded before the referee and' evidence was given .and the case submitted and a decision made, that it was too'late to raise the question of constitutional right to a trial by jury. See also People ex rel. Murray v. Justices (74 N. Y., 406), where it is stated that the right to a trial by jury in certain criminal, cases may be waived. Non constat, but that an objection to a. trial upon the appeal before the superintendent of public instruction would have been availing and saved the right of trial by jury to the defendant’s district, if it was entitled to it.

But the district acquiesced in the jurisdiction of the superintendent claimed by the party appealing, and submitted its case-to him for decision, and that is fatal to the objection now taken. The statute declares his decision shall be final and conclusive.

' So far as we can see by the record before us the defendant’s-district had a full opportunity to be and-was heard upon the-merits, and we must give effect to the decision by following the-statute, which not only declares that “ decision shall be final and conclusive,” but adds that the decision shall not be “ subject to question or review in anyplace or court whatever.” We must, obey the statute and refuse to review upon the merits the decision made by the superintendent. (Sub. 7 of sec. 1 of title 12, supra.)

The decision of the superintendent was, viz.: “ Ordered to pay, without unnecessary delay, to the appellant, from any money-applicable to the payment of teachers’ wages belonging to said district and remaining in the supervisors hands, the sum claimed in this appeal ($250), and if the amount so remaining is insufficient, then to issue a tax-list and warrant for an amount sufficient - to pay,” etc. (McCullough v. Mayor, 23 Wend., 459; People v. Suprs. Chenango, 1 Kern., 573.)

Section 13, subdivision 11 and subdivision 14 of the Laws of' 1867, (chap. 406) the act amending the act of 1864, seem to contain, provisions which authorize the trustee to comply with the order-made by the superintendent, and we see no reason why the school. district should not comply with the decision of the superintendent,, which we conclude is “ final and conclusive.” (Finch v. Cleveland, 10 Barb., 294.)

We must affirm the judgment, with costs.

If the defendant shall obtain a certificate under sectiqn 6 of title 13 of chap. 555, Laws of 1864 (p. 1286), the award of costs will be unavailing to the plaintiff. (Ex parte Bennett, 3 Denio. 175; Willey v. Shaver, 1 Sup. Ct. Rep. [T. & C.], 324; Rawson v. Van Riper, id., 370; Clarke v. Tunnicliff, 38 N. Y., 61.)

Talcott, P. J., and Smith,. J., concurred.

Judgment affirmed, with costs.


author: Hardin, J.:

text:
    GEORGE W. ROSS and others, as Executors, etc., of JAMES P. ROSS, Deceased, Respondents, v. CHARLES S. CAMPBELL, Appellant.
    , Sheriff— liability of, for money received by his deputy on an exeaution held after the sixty days, and after the sheriff’s term of office has expired.

    On December 3,1875, the plaintiff delivered an execution to one Paine, a deputy of the defendant. The defendant was then sheriff of Monroe county, his term of office expiring oh the last of that month. The execution not being paid within sixty days, it was held by Paine, with the knowledge and consent of the plaintiff and the sheriff, in the expectation that the debtor would pay it later. 71’hereafter the debtor paid the amount thereof to Paine, who returned the execution as satisfied, in the name of the defendant, as late sheriff, but did not ’ pay over the money so received to either the plaintiff or the sheriff.
    In an action against the sheriff to recover the amount so received by his deputy, held, that the plaintiff was entitled to recover.
    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict rendered in the Monroe County Court, and also from an order denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.
    Plaintiffs’ testator recovered a judgment against one Thomas Sfconey, in a justice’s court, and after having it docketed in the County Court of Monroe county, he issued an execution thereon to . the defendant, the sheriff of said county. The execution was put into the hands of a deputy by the name of Paine, December-3, 1875. The term of office of the defendant expired December 31, 1875.
    The execution was not paid during the sixty days it had to run. The plaintiffs’ testator, who was aware of that fact, informed the deputy that he thought the debtor would pay it later. According to the testimony of the deputy the sheriff, upon being informed of the fact, consented that the execution be held over to see if the debtor would not pay it.
    In April, 1876, the debtor paid to the deputy eighty dollars to apply on the execution.
    May 6, 1876,'the debtor paid the deputy twenty-two dollars in full of the amount due on the execution, and in each instance took a receipt signed in the sheriff’s name by Paine, the deputy.
    Subsequently, a return was indorsed on the execution, to wit: “I certify that the within execution is satisfied,' C. S. Campbell, late sheriff, by D. R. Paine, late deputy.” The deputy never paid over the money to the plaintiff in the execution or to the sheriff.
    The sheriff never paid the money to the plaintiff in the execution or his representative. There was some evidence that he promised so to do after he became aware that his deputy had received it. There was evidence tending to establish that the sheriff consented that the execution be held by the deputy, and the question in respect thereto was fully submitted to the jury. The court charged, among other things, viz. : “ In case you do not find from the evidence that the defendant knew it, and consented to Mr. Paine’s holding the execution as he has testified, then your verdict will be for the defendant.
    The jury returned a verdict for the plaintiffs for the amount due and received by the deputy upon the execution.

      J, S. Qoslock, for the appellant.

      George E. Epson, for the respondent. '
   Hardin, J.:

It is well settled that the return of the sheriff, though made by a deputy, concludes the sheriff, and cannot be impeached by him. (Sheldon v. Payne, Sheriff, 7 N. Y., 453; S. C., 10 id., 398.)

It is insisted, in behalf of the appellant that, because the execution was held beyond the return day, with the knowledge and consent of the plaintiff, though with the knowledge and consent of the 'sheriff, that the payment, by the debtor, of the money to Paine, the deputy, and his retention of it, did not establish a liability for the money.

We think that when the sheriff consented that the execution be retained by his deputy that he stood in the same attitude as though he had himself consented to hold the execution in his hands, and to receive the money thereon. Payment of money to him upon the execution would have given rise to a duty to pay it over to the plaintiff' in the execution or his representatives. (Colvin v. Holbrook, 3 Barb., 477, affirmed 2 N. Y., 126.) Had the defendant in the execution failed to pay the money after the return day, the request of the plaintiff that it be held beyond the return day would, doubtless, have been an answer to any claim of the plaintiff against the sheriff. But when the sheriff consented that his deputy retain the execution beyond the return day, and receive payment therefor from the debtor, he continued his liability to account for, and pay over the moneys so received by his deputy to the plaintiff in the execution or his representatives.

We are referred to Gorham v. Gale (7 Cow., 739). In that case, the departure from the ordinary course, by reason of special instructions by the plaintiff’s attorney to the deputy, was not known' and consented to by the sheriff. It is distinguishable from the case before us.

It is well settled by authority that the sheriff could not levy after the return day upon the property of the debtor, so as to affect the rights of bona fide purchasers or incumbrancers. (Vail v. Lewis, 4 Johns., 450; Slingerland v. Swart, 13 id., 255; Shelton v. Westervelt, 1 Duer, 109.)

In the case before us the money was voluntarily paid by the 'debtor upon the execution to the deputy sheriff, and he made a return in the name of the sheriff; and, as we have before seen, that return under the circumstance already averted to, binds the sheriff

The exception taken to the introduction of the exemplified copy of the judgment before the justice, and the docket thereof in the county clerk’s office, is unavailing. The objection was that the evidence was incompetent. It did not point out any defect in the form of the certificate and exemplification. (Williams v. Sargeant, 46 N. Y., 481; Tooley v. Bacon, 70 N. Y. 34.)

The admissions of the defendant in conversation's with Paine, his deputy, about the execution and the money received on it,: were properly received as evidence against the defendant. (Williams v. Sargeant, 46 N. Y., 481.)

We do not find any error in the charge, or in the refusal to charge, calling for an interference with the verdict of the jury.

, They were allowed to pass upon the conflict in the evidence in. respect to the knowledge of the sheriff that the execution was to-be held by the deputy, and upon the question as to whether the-sheriff authorized and consented to its retention beyond the return day by the deputy.

Their findings are adverse to the defendant, and the judgment entered upon their verdict must be sustained, and the order refusing a new trial should be affirmed.

Talcott, P. J., and Smith, J., concui .

Judgment and order affirmed.


text:
    WILLIAM BUCHER, Respondent, v. REUBEN CARROLL AND JOHN FERTIG, Appellants.

      Ejectment — what constitutes an action of, so as to entitle a party to a new trial on payment of the costs — 2 R. 8., 309, § 37.
    The complaint alleged that the defendants were in possession of certain lands: which were owned by the plaintiff, and that they wrongfully withheld the possession thereof from him. It then alleged that the lands were valuable as. oil land; that the defendants had put down an oil well, and taken up and sold large quantities of oil therefrom; that they were about to put down other-wells from which they intended to take oil and to sell the same, and by so. doing they would render the lands valueless as oil lands. It concluded with the usual prayer in ejectment, and with a prayer for an accounting as to the-value of the oil taken, for the appointment of a receiver, and a temporary injunction against the defendant.
    The answer alleged possession under a lease from the plaintiff, and a waiver of a breach of certain of the conditions therein. The plaintiff replied, alleging that the lease was void by reason of a breach of condition.
    The action was tried before the court without a jury, and the complaint dismissed upon the merits.

      Meld, that the action was one in ejectment, and that its nature was not altered, by the addition of allegations tending to show the nature or amount of the damages to be assessed for the wrongful withholding of possession.
    That under 2 R. S., 309, § 37, the plaintiff was entitled to a new trial as a matter of right upon payment of costs.
    Appeal from an order made at the Cattaraugus Special Term,, awarding a new trial to the plaintiff on payment of the costs,, under the statute in respect to new trials in ejectment.
    The complaint contained all the essential averments to support an action of- ejectment: (1.) It averred that the plaintiff was.
    the owner in fee of the lands described. (2.) That the defendants were in possession and unlawfully withheld possession thereof, and (3.) That plaintiff was entitled to the immediate possession, thereof.
    The complaint then contained further averments to' the effect r (1.) That the lands were valuable oil lands. (2.) That the defendants had put down an’oil well and were.taking large quantities, of oil therefrom and would do so in the future, and that the oil. was and would be of great value. (3.) That defendants intended, to sell and convert the oil, and had sold and converted some into, money; that the oil would be exhausted and the well rendered useless, to the damage of plaintiff. (4.) That defendants were, about to engage in putting down more wells. (5.) That should, said oil wells be put down and the oil taken therefrom, the lands, would become valueless ns oil lands and be otherwise reduced in value to the damage of plaintiff.
    Then followed the ordinary prayer in ejectment.
    And, secondly, also a prayer that the defendants account for-all oil taken and the value thereof, and that a receiver be appointed, of ‘said oil,’ well and property, and that the defendants be: restrained, etc.
    To the complaint the defendants put in an answer in which they denied the complaint and each and every allegation therein contained, except as thereinafter expressly alleged and set forth..
    Then followed a statement of their defence, to wit: that the: plaintiff gave a lease of the lands to the defendant Fertig, which lease was stated in-detail, and that Fertig assigned one-half of the lease to defendant Carroll; that in August, 1877, the defendants. -entered into possession of the premises and commenced sinking wells thereon and expended large sums of money, and the plaintiff assented thereto and stated that certain conditions in the lease were waived, and an extension of time given in respect to the first well by the plaintiff, and they further averred that they were not in default.
    To the answer the plaintiff replied, that there was a breach of 'the condition of the lease, and that notice thereof, and that the lease was at an end and void, was given to defendants.
    The cause was tried before the court without a jury, and the ■decision ivas in favor of the defendants, and the complaint ivas dismissed upon its merits.
    The plaintiff paid the costs, and asked for an order awarding a new trial, which the defendants opposed ; it was granted, and .from it the defendants appealed.

      Gary, Jewel & Rwmsey, for the appellants.

      Q. II. Phelps, for the respondent.
   Hardin, J. :

The amendment of the Revised Statutes in 1862 (chap. 485), provided for cases tried before the court without a jury, and before referees; and, therefore, the original statute as thus amended applies to a case like this tried by the court without a jury, if the judgment vacated was a “judgment in the action of ejectment rendered upon * * * a decision of a single judge upon the facts.” (2 N. Y. Stat. [Edwards], § 36, 317.

By section 43 of the Revised Statutes cited supra, the plaintiff upon recovering judgment in ejectment * * * shall also Toe entitled to recover damages against the defendant for the rents .and profits of the premises recovered.

As the complaint contained all the elements essential to the statement of a good cause of action in ejectment, the statute Referred to supra applies, unless the insertion of the other allegations takes the case out of the statute.

It was held before the Code that the statute applied to legal actions exclusively in ejectment, and it was never applied to equitable actions. Shumway v. Shumway, 42 N. Y., 145, op. of Foster, J.) That case is an authority for holding that the rule is the same since the Code.

That was a case where an action was brought to set aside the deed of the ancestor as having been obtained by undue influence, and because the grantor had not capacity to make it. At the trial it was held and decided that the grantor had not capacity, and that it was obtained by fraud, and the deed was sot aside, and the court adjudged that the title was in the heirs-at-law and that the plaintiffs were entitled to possession. Thus it appears that the action was in the nature of a bill in equity to strike down the deed, and to have such relief as the parties were entitled to, with the deed canceled.

But in the case in hand the complaint avers title in the plaintiff, that the defendants are in possession and wrongfully withhold the possession, and states additional facts in respect to questions, which might arise in assessing the damages for wrongfully withholding the premises, and upon which an application for a. receiver might be based.

But we do not see that the facts stated in addition to the.ordinary averments in ejectment change the cause of action from ejectment to one in equity for equitable relief only. (Hudson v. Caryl, 44 N. Y., 553.) We think the complaint must determine the character of the action. (Olendorf v. Cook, 1 Lans., 37.)

“ The only consequence of joining with such a cause of action, other equitable causes which are well founded is, that all must be tried with a jury ” (opinion of Johnson, C., in People v. A., and S. R. R. Co., 57 N. Y., 174; and Davis v. Morris, 36 id., 569; Bradley v. Aldrich, 40 id., 511).

When the defendants set up the lease and averred that they were holding under it, and that there had been no breach of it, it was proper for the plaintiff to reply that there was a breach of the conditions in the lease, and therefore that it was not any defence to the legal action of ejectment stated in plaintiff’s complaint. (Phillips v. Gorham, 17 N. Y., 270; Cuff v. Dorland, 55 Barb., 496; Carpenter v. Ottley, 2 Lans., 455.)

The plaintiff sought to recover possession of his lands upon. his legal title, and the other averments were mere incidental facts-which did not change the character of the action.

Being for the strict legal right to the lands and for damages for withholding, we think it was properly held at the Special Term that the Revised Statutes applied, and entitled the plaintiff to a .new trial as a matter of right upon payment of the costs of the . action.

The order is right and is affirmed, with ten dollars costs and disbursements.

Present — Talcott,<P. J., and Smith, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: 'Hardin, J.:

text:
    JOHN TYLER, Assignee, etc., of CHARLES J. WING, Respondent, v. NEIL McCOLLUM AND ARCHIBALD McCOLLUM, Appellants.

      Action by an assignee to recoser a debt paid, by the bankrupt within four months of filing his petition — The Súfreme Court hots jurisdiction of.

      ' The Supreme Court of this State has jurisdiction of an action, brought therein by an assignee in bankruptcy, to recover a debt paid to the defendant by the bankrupt within four months of the filing of the petition in bankruptcy.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The plaintiff, as assignee in bankruptcy, brought this action to recover of th'e defendants money which they had received from the bankrupt, in payment of his debt to them, within four months of the filing of the petition in bankruptcy.
    Evidence was given tending to establish that when the payment was made and received, the defendants had reasonable cause to believe, and that the defendants knew that Wing was insolvent, and so indebted as to be unable to pay his debts in full; and that such payment was made with a view to give preference to the said defendants over the other creditors of said Wing in the payment of his debts, and that the moneys were demanded by the plaintiff, as assignee, and that the defendants refused to pay them ■over to the plaintiff as assignee, and that this action was commenced in the month of May, 1876, in the Supreme Court of this-State.
    At the close of the evidence “the defendants moved for a non-suit, and that the case be dismissed, on the ground that a court of the State of New York had no jurisdiction to entertain, try, or determine the cause of action stated in the complaint and which the evidence tended to establish, and that no cause of .action of which said Supreme Court of the State of New York .had jurisdiction was stated in the complaint or sustained by the evidence.” The court denied the motion and the defendants excepted.
    The case was submitted to the jury, and a verdict found for the plaintiff for $2,701.50, and from the judgment entered thereon this appeal was taken.

      Levjis <& Gurney, for the appellants.

      J. F. Parhhurst, for the respondent.
   'Hardin, J.:

We have not been furnished with any points or argument in behalf of the appellants.

In 1872, upon a demurrer to a complaint like the one before ps, I examined the question of the jurisdiction of this court and came to the conclusion that a State court had jurisdiction and gave judgment for the plaintiff. (Gilbert v. Crawford, 46 How., 222.)

In June, 1873, a similar question was presented to this court in Gilbert v. Priest (65 Barb., 444); and this General Term came to the conclusion that a State court had not jurisdiction. The opinion was delivered by Mullen, P. J., and concurred in by Talcott and E. D. Smith, JJ.

In November, 1873, a similar question was presented in Cook v. Whipple (55 N. Y., 150), and decided by the Court of Appeals in favor of the jurisdiction.

In March, 1877, in Olcott, Assignee, v. MacLean et al. (10 Hun, 277), the General Term of the First Department decided, upon a construction of the act of Congress'of 1874, that jurisdiction was given to the United States District Court exclusively, and that jurisdiction was withdrawn from State courts, and the judgment appealed from was reversed and the complaint dismissed, without costs. The opinion of Daniels, J., was concurred in by Davis, P. J., and Brady, J. (10 Hun, 277), and see 11 id., 396, where the ground of the decision of Olcott v. MacLean (supra), is stated by Davis, P. J.

In October, 1877, Wente v. Young (12 Hun, 220) was decided upholding the jurisdiction of State courts.

In January, 1878, in Kidder v. Horrooin et al. (72 N. Y., 159), the Court of Appeals held that, notwithstanding the act of Congress of 1874, “ a State court has jurisdiction of an action by an assignee in bankruptcy to recover a debt due the bankrupt,” and that ‘ ‘ an intention to deprive State courts of jurisdiction will not be inferred from doubtful language, nor will the words of a statute be extended beyond their strict meaning- to accomplish this result,” (Opinion by Andrews. J.. concurred in by all the other judges, 72 N. Y., 160.)

In April, 1878, Olcott v. MacLean, cited supra from 10 Hun, 277, was decided by the Court of Appeals, and reversed upon the authority of Kidder v. Horrobin, supra, as appears by the Per Curiam opinion in 73 N. Y., 226. And it is there stated that the question of jurisdiction is “not an open question in that court.”

That being the latest authority, and apparently conclusive upon the question now before us, we should hold that we are not at liberty to re-examine the question of jurisdiction, raised in this action at the circuit and passed upon adversely to the defendants.

We, therefore, affirm the judgment appealed from.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed.


author: Talcott, P. J.

text:
    GEORGE W. MOSHER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK Defendants in Error.

      Accomplice — testimony of, may be corroborated though he has not been impeached.

    Writ of Error to the Court of Sessions of Cayuga county to-' review the conviction of the plaintiff in error as an accessory, before: the fact, to the crime of grand larceny. The larceny charged in the indictment was the stealing of a span of horses on the 20th day of August, 1877. On the trial of the plaintiff in error the Peopie availed themselves of the testimony of one David Elmer, an accomplice in the commission of the felony; in the course of his examination in behalf of the prosecution, Elmer had testified as follows: “ George asked me if I wanted to go into somethimgto make money at; I said, yes, if to make it honest; he asked me-if I wanted to go in in taking horses ; I said, no, I’ll be catched. at that; he said he would risk that; ’ he never was catched yet;, he said all he was afraid of was Pete Scott might come out on him; he had made the offer to him ; he said he calculated to-take Fox’s team ; that he would not dare to take that now; he-. would have to take another one'; he said he and Chester would have to look around; he said Mr. French had a pretty good' team ; he had seen him drive it.”
    The Pete Scott referred to was also examined as a witness for the prosecution, and was asked if he had any conversation with., George Mosher a short time previous to the taking of French’s-horses. This was objected to as incompetent. The objection wass overruled, and the witness stated that he had had such a conversation about July the twentieth. He was then asked to repeat that conversation.

      The defendant’s counsel objected to the question as irrelevant, incompetent and immaterial; secondly, as an attempt to prove another crime than that charged in the indictment; thirdly, on the ground that the conversation had taken place in Wayne county, and not within the jurisdiction of the court.
    The district attorney thereupon declared that he offered this to corroborate the witness Elmer, and for no other purpose. Defendant objected to this, on the ground that until Elmer was impeached it was not competent.
    The court overruled the objection, and the witness went on to detail the conversation, and stated amongst other things, in substance, that the prisoner had made a proposition to him (the witness) to join him, George and his brother Chester Mosher in stealing Fox’s horses.
    The court, at General Term, said: “The only point made by the plaintiff in error is, that the admission of this evidence was -error because -it tended to convict the prisoner of another crime ■than that charged in the indictment. We do not see that it Had any such tendency. It did not appear that any crime ■resulted from the proposition made by the prisoner to Scott. It was not shown nor was it claimed that Fox’s horses had been in fact stolen. Besides which the evidence was admissible as tend-. ing to corroborate the testimony of Elmer. It is always competent to introduce evidence, on the part of the prosecution, relying upon the evidence of an accomplice, to corroborate the testimony which has been given by the accomplice, although the •accomplice has, not been otherwise impeached than by the mere fact that he was an accomplice in the crime.
    “ The evidence, entirely irrespective of the testimony objected to, clearly established the guilt of the defendant. (People v. •Gonzalez, 35 N. Y., 49-59.) ”

      Anson s. Woodr for the plaintiff in error.

      R. S. Drummond, district attorney, and 8. D. Payne, for the People.
   Opinion by

Talcott, P. J.

Present — Talcott, P. J.,’Smith and Hardin, JJ.

Conviction and judgment affirmed.


author: Hardin, J. ;

text:
    CELINDA R. JACKSON AND SAMUEL C. KNAPP, Apellants, v. JASON G. ATWATER as Administrator, etc., of GILBERT LOCKWOOD, Deceased, Respondent.

      Jjife estate— charges upon — when a legacy is to he paid from the interest of ilier estate and not from the principal.

    Appeal from tho decree of the surrogate of Cayuga county, made in the matter of the final accounting of Hannah Lockwood, administratrix of Gilbert Lookwood, deceased. Since the-•accounting Hannah has died, and tho respondent has been .appointed administrator, etc., in her place.
    April 10, 1874, Gilbert Lockwood' made his will and died, leaving his widow him surviving.
    He owned real estate, and had some personal property. His-will contained this provision, viz. : “I give and bequeath to my wife, Hannah Lockwood, all my estate, both real and personal, to her solo use and benefit during her natural life, and to her legal heirs at her death, she to provide home and suitable maintenance to Eleanor A. Bradt, and to give her the interest on -$4,000 each year during the . life of said Eleanor Amanda iBradt.”
    The widow, Hannah Lockwood, as administratrix with the will -annexed, filed her account with the surrogate August 28, 1878. ‘The surrogate charged her $7,758.75, and allowed her $5,678,22, leaving a balance in her hands of $2,080.53 ; among other credits the surrogate allowed her four several payments to Eleanor A. .Bradt of $280, each called annuity, amounting in all to $1,120.
    With reference to this the court, at General Term, said: “ We come now to consider the will of the deceased in two aspects. The essential words brought in review are as follows, viz.: ‘I give and bequeath to my wife, Hannah Lockwood, all my estate, both real and personal, for her sole use and benefit during her natural life, and to her legal heirs at her death, she to provide home and suitable maintenance to Eleanor A. Bradt, and to give her the interest on $4,000 each year during the life of said Eleanor

      Amanda Bradt/ It most clearly earned to the widow a life-estate in the realty and the .use of the personalty, subject, however, to the charge for a ‘ home and suitable maintenance' to E... A. Bradt during the life of the widow.
    Apparently it was intended she should continue to share the- ■' home and maintenance ’ out of the property. It also provided for the payment of the interest on $4,000 to Miss Bradt..
    “ The words are apt and appropriate to carry the interest or income on $4,000, and do not provide for an annuity. (Booth v. Ammernian, 4 Bradf., 129.) As long as the widow continued to-live she was to‘ give ” or pay over the interest or income on $4,000 of the property embraced in the testator’s bequest of a life estate.
    “ The language in terms does not authorize breaking into the principal to pay the interest or income ‘ on $4,000/ Nor do the circumstances disclosed by the case authorize us to impute to the testator any intention to have the capital or body of his estate broken into for the purpose of paying ‘ the interest on $4,000/
    “ The language seems to provide that the interest should be paid to Miss B. on the $4,000 each year during her natural life. But as that question is not necessarily involved here, we express, no opinion conclusively upon it.
    “We must, however, decide that the will does not allow the interest to be paid out of the principal of the fund left by the testator, and because such would be the effect of allowing the credit of $1,120 to the administratrix, for four several years of interest, we must declare that the surrogate fell into an error in allowing the items for payment of interest ‘ on $4,000’ to Miss Bradt. (Swaine v. Ferine, 5 Johns. Chy., 491; Olason v. Lawrence, 3 Edw. Chy., 48.)
    “ There is nothing in the language of the will or the surrounding circumstances which authorizes us to infer that the bequest to Miss Bradt was intended to be in satisfaction for services for which the testator had agreed to pay. We might speculate and surmise upon that subject, but the will does not declaro any such intention. Nor do the circumstances surrounding the parties naturally and conclusively lead to such an inference and deduction. (Williams v. Qrary, 8 Cow., 246; 8. C., 4 Wend., 443; Bough-ton et al. v. Flint, 74 N. Y., 482.)

      Henry A. Maynard, for ,the . appellants. W. E. Hughitt, for 'the respondent.
   Opinion by

Hardin, J. ;

Talcott, P. J., and Smith, J., con-curred.

So much of the decree of the surrogate as credits the administratrix with the sum of $1,120 paid Eleanor A. Bradt reversed, ■and proceedings remitted to the surrogate of Cayuga county, with instructions to amend his decree accordingly, and as so amended, lis decree is affirmed ; the costs of both parties on this appeal to be paid out of the fund.


author: Hardin J.;

text:
    THOMAS HALLETT, Appellant, v. ALBERT J. CARTER, Respondent.

      Action for conversion —when a demand need not he made before suit brought.

    Appeal by the plaintiff from judgment of the County Court of Steuben county, affirming a justice's judgment in favor of the •defendant.
    The action was for the wrongful taking and conversion of stone belonging to the plaintiff. The defendant was notified that :the stone belonged to plaintiff before he took them and put them into his wall. There was no evidence of a demaiid and refusal before the summons was issued, though the constable made a •demand before he served, but after he received the summons.
    The justice rendered judgment against the plaintiff as he states, “ oh the ground that no demand was made by plaintiff for the •stone in question previous to the commencement of this action.’'
    The court, at General Term, said : “As the defendant was notified that the stone belonged to the plaintiff before he caused them to be taken and laid in his wall, no demand was necessary, .if at the time the notification was given and stone taken by defendant they were the property of the plaintiff. (Cobb v. .Dows, 9 Barb., 282 ; S. C. affirmed, 10 N. Y., 335; Boyce v. JBrockway, 31N. Y.,490; Stormy.Livingstone, 6 Johns., 45; Pierce
      Y. Van Dyke, 6 Hill, 613; White v. Brown, 5 Lans., 78; Twinam Y. Swart, 4 Lans., 263; Rawleyv. Brown, 8 Weekly Digest, 532.)
    The ground upon which the justice decided against the plaintiff was erroneous.”

      Burrell & JIallett, for the appellant.

      Eli Saule, for the respondent.
   Opinion by

Hardin J.;

Tadcott, P. J., and Smith, J., concurred.

Judgment of county court and that of the justice reversed.


author: Hardin, J.,

text:
    ELIZA DACK, Appellant, v. JAMES DACK, Respondent.

      Will — what evidence as to execution of, sufficient to authorize its admission tcrprdbate.

    Appeal from a decision of the surrogate of Monroe county,, refusing to admit to probate a codicil to the will of James Dack,. deceased.
    The testator’s will, dated December 15, 1871 was admitted te probate. The codicil is dated March 8, 1876.
    The surrogate decided that the testator was competent to make a will, and that the will was executed in due form, and that-neither the will nor codocil was procured by undue influence; that the evidence failed to show a proper execution of the codicilr and he, therefore, admitted the will to probate and rejected the codicil. The appeal is from that part of the decree which rejects-the codicil.
    The attestation clause to the codicil was in the usual form, and was signed by three witnesses.
    The codicil was drawn by one of the witnesses at the request-of the testator, after proper instructions, as to what disposition he desired to make of his property, had been given. The codicil was drawn at the residence of the draughtsman and there executed.
    The testator visited the draughtsman in February, 1876, and took the will to him and left it.

      ■ Again he visited him on the 8th of March, 1876, and made a request that the codicil should be prepared in obedience to his instructions, and it was then prepared in the testator’s presence, and the draughtsman says the next thing that occurred was “ the signing it.”
    The draughtsman says,he called his son and William Rossiter, and they both came into the room where the draughtsman and the testator were. There was a cross made by the testator to the codicil to the -will before the two last named witnesses entered the room. After they came into the room, the draughtsman asked the testator if that was his signature in the presence of those who signed, and he said it was.
    The case then states that the draughtsman was asked this question, viz. : “ Do you recollect whether you' asked him if that was his last will or codicil ? A. I don’t remember just how I worded it.”
    Q. Can you give the substance of the language you used ? A. I don’t recollect Iaslced him any more than “ if that was Ms signature in their presence at the time.”
    Q. After that occurred did you sign ? A. ■“ My signature was first.”
    Q. Did you See the other parties ? A. “ I did.”
    Q. That is your writing where the mark is made ? “ James Dack, Ms mark,” is in your handwriting ? A. Yes, sir.
    Lewis B. Carpenter, son of the draughtsman, and one of the witnesses to the codicil was called as a witness and testified, among other things, viz. : That he witnessed the codicil at Ms father’s residence ; that his father called him to sign his name as a witness, and that he was in another room when called to the presence of the testator and witness’ father.
    And also, viz.:
    Q. Do you recollect just what was said ? A. He asked Mr. Dack if that was his signature, and he said it was.
    Q. I mean when your father spoke to you ? A. I don’t remember.
    Q. Give the substance ? A. “ He wanted me to come in and sign the paper ; I cannot tell what he said.”'
    Q. He said it loud enough so I heard it in the next room ? A. Yes, sir.

      Q. Did you see your father sign his name there ? A. I don’t .recollect.
    Q. Did you see Mr. Rossiter ? A. lie was there when I ¡signed my name ; I saw him sit down to the table and take the pen.
    Q. And your father asked Dack if - that was his signature ? A. “ Yes, sir.”
    Q. Do you recollect of hearing any portion of the will read over ? A. I may have some ; I don’t recollect.
    The witness Rossiter was called and testified that he signed his s name to the attestation clause of the codooil at the draughtsman’s residence, and that he was in the woodshed when requested to go into the room where the testator and draughtsman were.-
    Tie further testified, viz. :
    ¡Q. How come you to go into the room where they were ? A. Mr. Carpenter asked me to come in there, that Mr. Dack requested me.
    Q. You was invited to go in, and after you went in you say Mr. Carpenter was present. A. Yes, sir.
    Q. And the two Mr. Carpenters and yourself? A. Yes, sir.
    Q. Was this paper (codicil shown) there also ? A. Yes.
    Q. Whether you recollect of seeing Mr. Dack make his mark ;-on the paper ? A. I saw Mr. Carpenter -hand Dack a pen, ¡and heard him say if he acknowledged this will; he said, yes ; whether at that he made- his mark or not I cannot tell; Dack ■ ■took the pen and said, yes; and I went forward towards Carpenter.
    Q. “ After that occurred, after Dack had gone forward towards ■Carpenter, was it before or after you put your name here ? A. Before.”
    Q. How came you to put your name down there ? A. “Mr. •Carpenter said Mr. Dack requested me to sign the will.”
    Q. That was in the presence of Mr. Dack ? A. “ Yes, sir.”
    Q. Did you see or did you not see the gentlemen put their mames there ? A. I saw Mr. Carpenter put his name down; the other name was Mr. John H. Carpenter; I did not see him put it there, it was there when I put my name down ; the other ■name. ; I saw him put his down ; was not in the room over five ■or six minutes. * * * * a Mr. Carpenter asked Mr. Dack if he wanted me to sign the will, Mr. Dack said, yes ”

    The court, at General Term, said: “We think the evidence establishes that the testator understood the character of the instrument when he subscribed his name thereto. It is likewise clear that each of the witnesses had information of the testamentary character of the instrument, which they severally attested •at the time they respectively placed their signatures thereto in the presence of the testator.
    Taking the attestation clause.with the affirmative oral evidence, we must also conclude that the testator declared the instrument to be his codicil to the witnesses, and requested them to become subscribing witnesses thereto, and that in compliance with his request they did in his presence subscribe their names to the codicil. (Willis v. Mott, 36 N. Y., 486.)
    The positive evidence given bearing upon the essentials to the due execution of the codicil is not overcome, shaken or disturbed by the mere want of memory of some of the incidents to the due execution by either of the two Carpenters. (Field v. -Field, 19 Alb. Law Jour., 457; Court of Appeals, Jauncey v. Thorne, 2 Barb. Ch., 40; Gilbert v. Knox et al, 52 N. Y., 125; Keiohov.se v. Godwin, 17 Barb., 236; Thompson v. Stevens, 62 N. Y., 634.)
    It is a sufficient request, if the draughtsman in the presence of the testator requested the witnesses to witness the codicil and they thereupon signed it. (Peck v. Gary, 27 N. Y., 9; approved Gilbert v. Knox, 52 id., 129.)

      J. & Q. Van Voorhis, for the appellant.

      Harvey & White, for the respondent.
   Opinion by

Hardin, J.,

Talcott, P. J., and Smith, J., concurred.

Decree of surrogate of Mouroe county refusing probate of the codicil reversed, with costs of the appeal payable out of the estate, and proceedings remitted to the surrogate with directions -to admit the codicil to probate.


text:
    JOHN F. HOLMES and others, Plaintiffs, v. HENRY E. RICHMOND, Sheriff, etc., Defendant.

      ¡Sheriff’s sale under execution against two defendants — time given to purchaser within which to pay — right of one debtor in the meantime to redeem — estoppel.

    Motion for a new trial on exceptions ordered to be heard in: the first instance at the General Term, after a nonsuit directed at. the circuit.
    The action was brought against the defendant, the sheriff of' Monroe county, for a false return of nulla bona to an execution in favor of the plaintiffs against one James A. Barhydt. The-facts are substantially as follows :
    The plaintiffs had recovered before a justice of the peace in Monroe county two judgments, on the 7th day of January, 1876 ; one against James A. Barhydt for $157, and the other against the said James A. Barhydt and Edwin Barhydt, his father, for $155: The transcripts of both were filed, and the judgments docketed in the Monroe county clerk’s office as judgments of the county court, and on the same day executions were issued on both judgments, and delivered to the defendant, as sheriff, for collection. The deputy sheriff levied the executions and a third junior execution on certain personal property in a printing office in. Rochester, of which James A. Barhydt had the apparent possession, but in which Edwin Barhydt claimed some interest, and advertised the same for sale on the three executions ; on the day of sale-the sheriff offered the property for sale on the three executions,, and it ivas struck off to one SAvinburne & Co., who said they were-not ready to pay then, but would pay the bid in the morning when the banks were opened, and the sheriff assented to giving them the time until the next morning at ten o’clock, but without the express assent of the plaintiffs or defendants in the execution. The bid of Swinburne & Co., on which the property was struck off, was $275.
    The next morning before Swinburne & Co. appeared to pay their bid, EdAvin Barhydt appeared at the sheriff’s office and. offered to pay the amount of the execution in which he was named as a defendant, and the sheriff received the money in satisfaction of that execution; afterwards Swinburne & Co., by their agent, appeared at the office and offered to pay their bid, but the sheriff refused to receive it, and the sale was not completed. The plaintiffs received the money paid by Edwin Barhydt on the execution against- him. Afterwards the sheriff again advertised the-same property for sale under the execution against James Barhydt, and exposed for sale the interest he had in the property. The> plaintifls were notified of the sale but neglected to attend, and. the property, after reasonable delay, was put up and sold for the-sum of $1.10, which the sheriff appropriated to the expenses of the sale, and immediately returned the execution against James.. A. Barhydt unsatisfied. There was no evidence given that there was any other property of James Barhydt, or in which he had. any interest except that sold on the execution as aforesaid.
    The plaintifls were nonsuited.at the circuit. The proceedings were stayed, and the exceptions sent to the General Term in the-first instance. The plaintiffs now move for a new trial.
    The court, at General Term, said : “We think the nonsuit was. entirely correct. The first sale-was not completed, but the sheriff gave the bidder time to pay the money bid, which he had no. authority for .doing. He could not make a valid sale except for cash, and the sale was not complete until the payment of the-money bid.
    “ In the meantime, and before the completion of the sale by the-payment of the bid, he was bound to receive from Edwin Barhydt the amount of the execution against him, and his payment of that, execution avoided the inchoate sale, because the purchaser would, not get the interest which Edwin had in the property exposed for-sale on the executions. The plaintiffs accepted the money paid by Edwin Barhydt on the execution with a full knowledge of all the facts, and receipted the money on that execution. There is no proof of any negligence or misconduct of the sheriff in regard to the second sale.
    “ The plaintiffs, beside the advertised notice, were personally notified thereof, and if the interest of James A. Barhydt in the. property was worth more than it brought at the second sale, and if the plaintiffs did not choose to attend the sale, but allowed ■that interest to be sold for less than its value, the fact is to be attributed to their own negligence, and not to the fault of the sheriff. The questions which the plaintiffs’ counsel proposed to have submitted to the jury were wholly immaterial to a proper -disposition of the case.”

      Rowley & Johnston, for the plaintiffs.

      J. and Q. Van Voorhis, for the defendant.
   Opinion by

Talcott, P. J.

Present — Talcott, P. J.; Smith and Hardin, JJ.

New trial denied, and judgment ordered for defendant on the .nonsuit.


author: Davis, P. J.:

text:
    CHRISTIAN F. FUNCH AND HENRY W. O. EDYE, Respondents, v. MAX ABENHEIM, Appellant.

      Contract — right of a ‘party to refuse to perform it, on the ground that it was entered into under a mutual mistake of fact — when such mistake may he shown — Charter party— when an oume7‘ is bound to use reasonable diligence in bringing his vessel to port.

    This action was brought upon a charter party, made between the plaintiffs, as agents for the owners of the vessel, and the defendant. It was dated June fourth, and executed on June fifth. The defendant offered to prove that when the contract was brought to him on June fourth, he stated to One Edye, one of the plaintiffs, that the charter was desired for a shipment to be made in June, and that the time of the vessel’s sailing from London was material; that Edye said he would telegraph to find out when she would sail; that he returned the next day, said he had telegraphed and showed what he said was an answer, stating that the vessel sailed June fifth; that upon the statement that the vessel sailed on June fifth, the defendant executed the contract; that in fact the vessel did not sail until June twenty-third, and that Edye was mistaken in stating that he had telegraphed to London, and in stating that he had received an answer stating that the vessel would sail June fifth.
    The defendant did not impute any fraud to Edye, but offered to prove these facts in order to show that the contract was entered into under a mutual mistake as to a material fact, and claimed that such mistake justified him in refusing to carry out his contract. The court refused to allow this proof to be given.
    Held, that this was error; that it should have been received, and that if such mutual mistake was established By it, the defendant was justified in refusing to carry out the contract.

      The charter party dated June fourth, but not signed until June fifth, recited that the vessel was “ now lying- discharging in the harbor of London,” and near its close stated: “It is understood that the vessel shall proceed from London in ballast, direct to New York.”

      Held, that the proof oifered by the defendant did not tend to contradict the terms of the contract.

      Held, further, that it was incumbent upon the plaintiffs to show that reasonable diligence had been used in bringing the ship to the port of New York.
    That it was error for the court to refuse to allow the defendant to show that the length of time occupied in discharging the cargo in London was unreasonable and unnecessary.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon tbe verdict of a jury and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before wbom tbe action was tried.

      Robert I). Benedict and Frank D. Sturyes, for tbe appellant.
    Tbe evidence offered was proper, as showing that tbe contract was made under a mutual mistake of a material act, and tliat consequently it could not be enforced. (Kerr on Fraud and Mistake, 430; Gillespie v. Moon, 2 Johns. Ch., 596; Snell v. Ins. Go., 98 U. S. [8 Otto], 89, 90; Roseveltv. Fulton, 2Cow., 129; 1 Parsons on Con., 416; Story’s Eq. Jur., 140-141-142-143, 153, 155, 156; Belknap v. Sealey, 14 N. Y., 143; Roberts v. Fisher, 43 id;, 159; Welles v. Yates, 44 id., 529; Story v. Conger, 36 id., 673; Nevius v. Dunlap, 33 id.', 676; De Peyster v. Hasbrouck, 1 Kern., 582; Barlow v. Scott, 24 N. Y., 40; Rider v. Powell, 28 id., 310;! Calkins v. Griswold, 11 Hun, 210; Wilson v, Randall, 67 N. Y.,¡ ' 338.) Tbe evidence was competent to establish a misrepresentation as to a material fact, which would avoid tbe contract, although innocently made. (Kerr on Fraud and Mistake, 60-61, 74-75; Phillips v. Conklin, 58 N. Y., 682; Doggett v. 'Emerson, 3 Story, 700; Taylor v. Fleet, 1 Barb., 471; Smith v. Countryman, 30 N. Y., 655; Hutcheon v. Johnson, 33 Barb., 392; Gillespie v. Moon, 2 Johns. Ch., 596; Johnson v. Main, 14 - Wend., 195.) It was competent to show tbe purpose for which tbe contract was made, and the circumstances surrounding tbe making of tbe same. (Brick v. Brick, 98 U. S. [8 Otto], 514; Cocker v. Franklin H. and F. Manuf. Co., 3 Sumner, 530-533; Ellis v. Thompson, 3 Mees. & Welsh., 445; Hutchins v. Hebbard, 34 N. Y., 24; Truscott v. King, 2 Selden, 147-161; Chester v. Bank of Kingston, 16 N. Y., 336-343; Messmm'e v. K. Y. Shot Co., 40 id., 427; HinnemannY. Rosenback, 39 id., 98.) It was competent to show tbe negotiations and understanding between tbe parties, as to tbe time of tbe vessel's departure from London, tbat being a substantial part of the arrangement between them, and being left undefined by tbe charter. (Mowatt y. Lord Londesborough, 3 Ellis & B., 307; McCulloch y. Girard, 4 Wash. C. C., 289; BenardY. Sampson, 12 N. Y., 567; Barker y. Bradley, 42 id., 316; AlmgrenY. Dutiih, 1 Selden, 28; HinnemannY. Rosenback, 39 N. Y., 98; Robinson v. United Stales, 13 Wall., 363; Horn v. Keteltas, 46 N. Y., 605.) Tbe law is perfectly well settled, tbat it was not only tbe right but tbe duty of tbe plaintiffs, as soon as they received tbe notice of tbe twenty-sixth of June, by which tbe defendant refused to carry out tbe contract, to seek other business for tbe vessel. (Molloy, B., 22, chap. 4, § 3, p. 366; Klein v. Catara, 2 Gal., 61; Clarke v. Crabtree, 2 Curtis, 92; Baetger v. Bors, 2 Bon., 294; Willis v. Simmonds, 8 Hun, 204; Skinner v. Tucker, 34 Barb., 335; Billon v. Andrews, 43 N. Y., 237; Hall v. Hurlbut, Taney, 598; Bnrtis v. Thompson, 42 N. Y., 246.) To entitle tbe plaintiffs to recover, they must show tbat up to tbe time of tbe defendant’s refusal to perform, they bad kept tbe agreement on their part; otherwise tbe defendant would 'be excused for bis refusal. {Howard v. Daly, 61 N. Y.,.citing 2 Win. Saunders, 352 et seq., note to Reeters v. Opie.) Time was of tbe essence of tbe contract and agreement contained in tbe charter party, tbat tbe vessel then discharging in London should “proceed from London in ballast direct to New York,” is an undertaking tbat tbe vessel shall sail from London with all diligence, and is a condition precedent to plaintiffs’ right to recover. (Clipsham v. Vertue, 5 Q. B., 265; SwayNe, J., in Lowber v. Bangs, 2 Wall., 736; Hall v. Hurlburt, Taney, 589-594; Weiss-ner v. Maitland, 3 Sand., 318; McAndrew v. Adams, 1 Bing. [N. C.], 29; Qlaholm v. Hays, 2 Man. & Gr., 257; Crockewit v. Fletcher, 1 H. &. N., 893; 1 Parson’s Mar. Law, 271, note 3; Mount v. Larkins, 8 Bing., 108; Behn v. Burness, 113 E. C. L. B., 751; Olive v. Booker, 1 Exch., 416; Oliver v. Fielden, 4 id., 135; 12 Moore P. C., 199; Renard v. Sampson, 12 N, Y., 561;
      Fearing v. Gheeseman, 3 Clifford, 91; The Schooner Onrust, 1 Ben., 431 — 447; S. O., 7 Blatch., 533; Folhergill v. Walton, 8 Tann., 576; Freeman y. Taylor, 8 Bing., 124; Tarrahochia v. Hiclde, 1 H. & N., 183; ¿¿imi v. Usbone, 18 C. B., 144.)

      William Allen Butler, for tbe respondents.
    The action was properly brought in the name of the plaintiffs. (Code of Procedure, § 113; Gonsiderant v. Brisbane, 22 N. Y., 389; Hubbell v. Medbury, 53 id., 98; Stryker v. Mercantile Ins. Go., 44 How. Pr. B., 351.) The court properly excluded the evidence offered by the defendant. The oral declarations offered were in order to add to the written contract some statement or warranty as to the time when the vessel would finish discharging in London, or would sail from London, or would reach New York. This evidence was clearly inadmissible. (Greenleaf on Evidence, § 275; La Fargev. Bichevt, 5 Wend., 187; Renard v. Sampson, 2 Duer, 285; Mott'sr. Richtmyer, 57 N. Y., 49; Mumford v. McPherson, 1 Johns., 414; Reed v. Van Ostrand, 1 Wend., 424; Pollen v. Le Roy, 30 N. Y., 549, 559.)
   Davis, P. J.:

This action was brought on a charter party bearing date on the 4th of June, 1874 made between the plaintiffs, as agents for the owners of the steamship “ Boyal Standard,” and the defendant. That the action was properly brought in the name of the plaintiffs as trustees of an express trust under the provisions of the Code (§§ 111, 113) is settled by Considerant v. Brisbane (22 N. Y., 389).

The charter party was brought to the defendant on the fourth day of June, which is the day it bears date, by Mr. Edye one of the plaintiffs; and the defendant offered in substance to show that Mr. Edye was told.at that time that the charter was desired for a shipment in June, and that the time when the vessel would sail from London was material; that Mr. Edye then said he would telegraph to London to find out when she sailed; that the next day he came to defendant and stated that he had so telegraphed to London, and exhibited a telegram which he said was an answer to such inquiry; that the telegram was understood by both of them as stating that the vessel sailed on June fifth, and that Mr. Edye verbally stated also, “this vessel sails to-day, the fifth;” that thereupon the charter was executed by the defendant; that on the twenty-fifth of June, in answer to an inquiry from the defendant, the plaintiffs wrote him that the vessel had sailed on the fifth ; that Mr. Edye was mistaken at the time he made his statement as to the fact of his sending a telegram to learn the date of the sailing of the steamship and receiving an answer, and that in fact he had not so telegraphed ; that he was mistaken in stating that the dispatch which he exhibited was an answer to such telegraph ; that it was not in fact such an answer ; that he was mistaken in saying that the vessel sailed on the fifth of June ; that in fact she did not sail until the twenty-third of June ; and that both parties acted in making the contract under a mutual mistake as to the fact that a telegram had been sent over to ascertain when she sailed, and a reply received to the effect that she had sailed on that day, the fifth of June.

It was not offered to show that the statements of Mr. Edye were fraudulent representations, but that he was mistaken in respect to the facts asserted by him, and that the defendant acting thereupon was also mistaken as to such facts. It was also offered to show that on the twenty-sixth of June the defendant first learned by notice from the plaintiffs that the vessel did not sail until the twenty-third of June, and that he thereupon immediately notified the plaintiffs that he did not consider himself bound by the charter party and would not load the ship.

The whole of this evidence was excluded by the court upon plaintiffs objection, and the defendant duly excepted.

The offer was made expressly for the purpose of showing that the contract was entered into under a mutual mistake of material facts. It seems very plain that neither morality in business, nor the morality of business, would justify the enforcement of a contract made under such circumstances ; and the question is whether there is any inexorable rule of law that precludes the defendant from showing the facts.

The contract speaks as of its date in all that it says in respect to where the vessel then was. That is to be found in the first clause of the charter party, which is in these words :

“ This charter party, made and concluded upon in the city of Now York, the fourth day of June, in the year of our Lord onci thousand eight hundred and seventy-four, between Funch, Edyc & Co., agents for owners of the S. S. Eoyal Standard, of North Shields, classed A 1, and of the burthen of 850 tons, or thereabouts net Register measurement now lying discharging in the harbor of London, of the first part, and Max Abenheim, Esq., merchant of New York, of the second.part.”

The only other allusion to her locality is found in the clause near the close of the contract, in these words : “ It is understood that the vessel shall proceed from London in ballast direct to New York.”

There is nothing, therefore, in the proposed offer which necessarily contradicts any portion of the contract, because if the statement, “ now lying discharging in the harbor of London,” contained in the descriptive clause, is intended to be a part of the contract, itself, as it of course speaks as of the date of the contract (the-fourth day of Juno) it is not at all inconsistent with the assertion made by the plaintiffs that she had sailed on the fifth of June, before the contract was signed.- Nor is there anything in the provision that the vessel shall proceed from London in ballast direct to Now York at all in conflict with’such assertion.

But there was no attempt made on the part of the defendant to contradict the instrument. It was simply an effort to establish as matter of fact that the contract was entered into under a mutual mistake of facts material to the .transaction and inducing or influencing the agreement, believed by both to be then existing,■ but in which belief both were honestly mistaken. In Kerr on Fraud and Mistake, at page 416, the author, speaking with reference to mistakes such as will avoid an agreement, says : “ Mistake may be common to both parties to a transaction, and may consist either in the expression of their agreement in some matter inducing or influencing the agreement, or in some matter to which the agreement is to be applied.” And he defines the mistake in fact to be one consisting in the belief in the present existence of a thing material to the transaction, which does not .exist.”

In Gillespie v. Moon (2 Johns. Ch., 596), Chancellor KENT says : “It has been the constant language of the courts of equity that parties can have relief in a contract founded in mistake, as well as in fraud. The rule in the courts of law is that the written instrument does in contemplation of law contain the true agreement of the parties, and that the writing furnishes better evidence of the sense of the parties than any that can be supplied by parol. But equity has a broader jurisdiction and will open the written contract to let in an equity arising from facts perfectly distinct from the sense and construction of the instrument itself. # * * I have looked into most, if not all, the cases on this branch of equity jurisdiction, and it appears to me to bo established, and on great aud essential grounds of justice, that relief can be had against any deed or contract in writing, founded in mistake or fraud. The mistake may be shown by parol proof, and the relief granted to the injured party, whether he sets up the mistake affirmatively by bill, or as a defence.”

Whatever defence of that nature could be made formerly in equity can now be interposed in actions at law. • Where contracts have been reduced to writing the courts are vigilant and rigorous in excluding all antecedent and contemporaneous oral agreements tending to vary the terms of such contracts.

And, perhaps, no case has gone further in that direction than the late case of Wilson v. Deen (74 N. Y., 531). In that case both parties were well advised as to. the existing condition of facts, and there was no ground to allege mistake or fraud, but in the view the Court of Appeals took of the case the plaintiff, in executing a written lease under seal, relied upon a contemporaneous oral agreement in respect of important matters to be subsequently performed touching the property demised. That case, we think, is not at all in conflict with the principle that permits parties to establish a mutual mistake as to a material and supposed to be existing fact inducing the contract, or materially affecting its subject-matter.

In this case it seems apparent that the defendant desired the vessel for the purpose of shipping grain in June. For that purpose it was material for him to know at what time the vessel sailed, or would sail from London. That fact was communicated to the plaintiffs, and they undertook to ascertain the time of lier departure. They supposed they bad ascertained that time by telegraphing to London,, and had received an answer. In this it seems they were mistaken; but they represented, as a fact, that they had so telegraphed, and produced a telegram which both understood to state that the vessel would leave on that day, the fifth of June ; Mr. Edye also stated that she sailed on that day. He was guilty of no intentional fraud in making the statement, or in producing the telegram, as the defendant admits, but by some misapprehension on his part had fallen innocently into an error.

The defendant fully believed, and had both reason and right to believe, that the facts in respect to the telegraphing and receiving a reply and as to the sailing of the vessel were precisely as stated by him, and they made the contract in that belief. It turns out that both were mistaken as to those material facts, and that the vessel did not sail for nearly three weeks afterwards.

These facts were not “prior or contemporaneous negotiations” which merged in the contract, and they were in no just sense facts or statements in conflict with express or implied provisions of the contract. The statement of plaintiffs that they had telegraphed to London and received the telegram produced in answer was an assertion of a supposed existing fact quite independent and in no sense contradictory of the contract. It was an inducement to, but no part of the contract, and being a most material fact the assertion that it existed, whether fraudulent or mistaken, justified the defendant in accepting the fact as true and acting upon it, without requiring it to be inserted in the instrument.

It would be a reproach upon the equitable powers of the court if they could not be exercised to relieve a party from a contract entered into under such circumstances, and the numerous cases cited by the learned counsel for the appellant establish, we think, his right to refuse, as he did, to go on when he learned the real state of facts in respect to the sailing of- the vessel. (Snell v. Ins. Co., 98 U. S. [8 Otto], 89, 90 ; Rosevelt v. Fulton, 2 Cow., 129 ; 1 Parsons on Con., 416 ; Story’s Eq. Juris., 140-143, 153, 155, 156 ; Belknap v. Sealey, 14, N. Y., 143 ; Roberts v. Fisher, 43 id., 159 ; Welles v. Yates, 44 id., 529 ; Story v. Conger, 36 id., 673 ; Nevius v. Dunlap, 33 id., 676 ; De Peyster v. Hasbrouck, 1 Kern., 582 ; Barlow v. Scott, 24 N. Y., 40; Rider v. Powell, 28 id., 310 ; Calkins v. Griswold, 11 Hun, 210 ; Wilson v. Randall, 67 N. Y., 388 ; Mowatt v. Lord Londesborough, 3 Ellis & B., 307 ; McCullock v. Girard, 4 Wash. C. C., 289, cited in Renard v. Sampson, 12 N. Y., 567 ; Barker v. Bradley, 42 id., 316 ; Almgren v. Dutilh, 1 Seld., 28; Hinnemann v. Rosenback, 39 N. Y., 98 ; Robinson v. United States, 13 Wall., 363 ; Horn v. Keteltas, 46 N. Y., 605 ; Brick v. Brick, 98 U. S. [8 Otto], 514 ; Cocker v. Franklin H. and F. Mfg. Co., 3 Sum., 530-533 ; Ellis v. Thompson, 3 Mees. & Welsb., 445; Hutchins v. Hebbard, 34 N. Y., 24 ; Truscott v. King, 2 Seld., 147-161 ; Chester v. Bank of Kingston, 16 N. Y., 336-343 ; Messmore v. N. Y. Shot Co., 40 N. Y., 427. And it seems'to us, in tbe language of Story, J., in Doggett v. Emerson (3 Story, 700), tbat it is “ immaterial whether the representation be willfully and designedly false or ignorantly and negligently untrue.”

We think the learned court was in error in excluding proof of the mistake, because proof that the plaintiffs made the assertion, but had not telegraphed and had not received any answer, would not contradict any provision of the contract, expressed or implied.

We are also of opinion that the court was in error in holding that it was not incumbent upon the plaintiffs to show that reasonable diligence had been used by them in bringing the ship to the port of New York. If all evidence in respect to the mistake of fact as to her time of sailing were to be excluded from the case, then it would seem necessarily to follow that plaintiffs were bound to show that she did in fact sail with all reasonable diligence. The evidence shows that she occupied nine days after the fourth of June in discharging her cargo in London, and that it was nine days after the discharge was completed before she sailed from. London. The law required that she should proceed with reasonable diligence. (Renard v. Samson, 12 N. Y., 561.) The motion of the defendant’s counsel was improperly overruled, for the court could not, as matter of law, hold that a delay of eighteen days was a reasonable one.

Again, the court erred in not permitting the defendant to show that the length of time occupied in discharging the cargo in London was unreasonable and unnecessary. The master of the vessel bad testified that sbe was discharged as soon as vessels ordinarily are in London. -The defendant called another ship-master who had been such for twenty years, and been' also master of British sailing vessels, and- had seen steamers loaded and unloaded in London, and asked him what would have been the usual time of discharging 7,200 quarters of grain with ordinary dispatch. This was objected to and excluded, and the defendant duly excepted.

Defendant's counsel then offered to show that the parties “ did not exercise due diligence in the discharge of the cargo of the Royal Standard in June, 1874, whereby she was delayed in her arrival here.” The court excluded the offer, and an exception was duly taken. We think this was error.

There are numerous rulings and exceptions in respect to the evidence bearing upon the question of the ability of the plaintiffs to have procured freight for the steamer after the breach of the contract. The contract was broken by the notice given by the defendant to the plaintiffs on the twenty-sixth of June that they would not perform it. (Burtis v. Thompson, 42 N. Y., 246; Dillon v. Anderson, 43 id., 231, 237.) In the last cited case the court say : “It was the duty of the plaintiff, as soon as due notice was given, to have so acted as to save the defendant from further damage, so far as it was in his power, and the performance of this duty called for affirmative action on his part.” (Hamilton v. McPherson, 28 N. Y., 72; Clark v. Marsiglia, 1 Denio, 317; Goodwin v. Kirker, 2 Hilton, 401.) The evidence tended to establish that no effort was made by the plaintiffs to secure a charter party for the vessel to arrive; and numerous rulings were made by the court excluding evidence tending to show the prices of freight, and its abundance during that and other periods, for sailing vessels as well as steamers, and for vessels chartered as this was, and for general cargoes.

It is not worth while, as there must be a new trial on other grounds, to enter into details as to these rulings and exceptions. A portion of them, we think, were clearly wrong ; and, although the court in its charge probably laid down the correct rule as,to the measure of .damages, it seems to us quite apparent that the defendant was not permitted to lay all the evidence before the jury bearing upon that question which would have been proper for their consideration.

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

INGALLS, J., concurred.

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

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


author: Barrett, J. :

text:
    LA FAYETTE RANNEY, Respondent, v. SIEGMUND M. PEYSER and others, Appellants.

      Foreclosure of a junior mortgage on a leasehold estate — appointment of a receiver of the rents and profits — when a pricn' incmrdn'ancer can compel him, to pay ground rent from such rents and profits— Counsel fee.

    In an action of foreclosure brought by the plaintiff, the holder of a second mortgage upon a leasehold estate he was, with the consent of the mortgagors, appointed a receiver and directed to collect the rents of the premises, and “ out of the same to keep said buildings insured against loss or damage by fire, and in repair, and to pay the ground rent and taxes.” Subsequently one Maas, the owner of the first mortgage, commenced an action for its foreclosure, to which the plaintiff herein was made a defendant, and upon a sale had under a judgment recovered therein Maas purchased the premises for less than tbe amount due on his mortgage, upon the passage of the accounts of the plaintiff as receiver, it appeared that he had refused to pay the ground rent and taxes due and accruing upon the premises while he was collecting the rents, and claimed to be entitled to apply them upon his own mortgage.

      Held, that he was bound to apply the rents received by him in paying such ground rent and taxes, and that as Maas had been compelled to pay the same, to save the property, the receiver should be ordered to pay over any balance in his hands to Maas to apply thereon.
    ’When a receiver will not be allowed to charge against the fund fees paid to counsel, considered.
    Appeal from an order made at Special Term, overruling exceptions to tbe report of a referee.
    On or about October 3, 1877, tbe plaintiff commenced this action to foreclose a mortgage executed to him by the defendants, Peyser and wife, upon their leasehold interest in two lots of land in the city of New York, known as Nos. 718 and 720 Tenth, avenue.
    On the 26th day of December, 1877, upon the consent in writing of the defendant Peyser and his attorney, the plaintiff entered an order appointing himself receiver of the rents, issues and profits of the mortgaged premises (without giving any bond as security for the faithful discharge of his duties), which order contained the following provision, viz. : “ That as such receiver, he (plaintiff) have power, which is hereby given to him, to rent and manage said buildings and premises, and to rent the same or any part thereof from time to time for terms not exceeding one year, to collect and receive the rents thereof, and out of the same to keep said buildings insured against loss or damage by fire and in repair, and to pay the ground rent and taxes.”
    In pursuance of this order the plaintiff collected the rents of the premises monthly from January to October, 1878, amounting to the sum of $1,764. November 18, 1878, upon plaintiff’s application, an order was made at Special Term, referring it to a referee to take and pass the accounts of the plaintiff as receiver, reserving the question as to - the disposition of the money in his hands, until the coming in of the referee’s report.
    The plaintiff, as receiver, accounted before the referee and his account was passed and allowed, showing a balance in the hands of the plaintiff of $589.05. Exceptions were duly taken to the referee’s report, and the plaintiff made a motion to confirm the report, noticed for the 17th of February, 1879, and for an order permitting the plaintiff to apply the balance of the moneys in his hands to the payment of the amount due him upon his bond and mortgage.
    The motion was opposed by the defendants, Peyser and wife, by counsel, and by Adolphus H. Maas, the owner of two mortgages, one upon each of the said lots, prior to that of the plaintiff? Maas presented to the court a petition and a notice of motion, asking that the plaintiff be required to pay the balance of -the moneys in his hands as receiver to the petitioner Maas, for and on account of moneys which he, Maas, had been compelled to expend for the preservation of the leasehold estate, in payment of ground rent and- taxes.
    On the 1st day of March, 1878, Maas had commenced his action to foreclose each of his said mortgages, making the mortgagors, Peyser and wife and Ranney, parties defendant. October 31st, 1878, Maas became the purchaser of the premises at a referee's sale under and by virtue of decrees therein, at a sum less than the amount due to him, and took the referee’s deed..
    At that time it appears that the ground rent for the quarter ending October 31st, 1878, amounting to the sum of $105, and the taxes for the year 1876 ($448), and the taxes for the year 1877 ($.424), and the taxes for the year 1878 ($408), had not, nor had either of them, been paid by Ranney or any other person, and the same remained duo and payable. Maas applied to Ranney, requesting him to apply the moneys in his hands as receiver towards the payment of said ground rent and taxes, winch Ranney refused to do.
    The order appealed from directed the receiver to pay the balance in his hands to plaintiff, Ranney, to apply upon his mortgage.

      M. L. Townsend, for the appellant.

      Randolph Quggenheimer, for the respondent.
   Barrett, J. :

Ranney commenced this action to foreclose a mortgage upon certain leasehold premises. He obtained an order therein, with the defendant’s consent, appointing him receiver of the rents and profits. We have examined this order attentively and are of opinion that it not merely empowered but required the receiver to pay ground rent and taxes.

The case is distinguishable from the Washington Life Ins. Co. v. Fleisehauer (10 Hun, 117), and the ‘cases there cited, in that Ranney did not obtain the receivership for his own benefit, but for that of all concerned. If there had been a surplus over and above insurance, repairs, ground rent and taxes, such surplus might have enured to his exclusive benefit. But in the collection of the rents and the payments therefrom, which he was ordered to make, bo was acting for the conservation of the estate. Instead of obeying the order under which he was appointed, he declined to pay ground rent and taxes and applied the rents upon his mortgage debt.

It appears that one Maas held a prior mortgage upon the same premises. He was not made a party to the Ranney suit. While that action was pending Maas commenced an independent suit to foreclose his mortgage, making Ranney a party defendant. Maas' suit went- to judgment, thus cutting off Ranney, and upon the sale thereunder Maas himself became the purchaser. We think Maas had a perfect right to rely upon the application of the moneys collected by Ranney, as receiver in his own suit, to the payment of taxes and ground rent.' It is said that Mass bought subject to these taxes, etc. This is not a correct view of the matter. In equity and good conscience he bought subject to whatever remained after the due application by Ranney of the funds in his hands. It must be observed that Ranney hold these moneys as an officer of the court under specific instructions. Any one interested in the estate had a right to demand the performance of his official duty, and in case of refusal to apply against him by petition. This is precisely what happened. Maas having completed his purchase, in reliance upon the order, demanded of the receiver payment of the taxes and ground rent. This was refused, and thereupon, .to preserve his property, Mass was himself compelled to pay them. Can there be a doubt as to what the court ought to do under these circumstances ? Should it permit Ranney to profit by his contempt of the order appointing him ? It seems very clear to us that the rents must be applied to the purpose originally directed. Treat the case as though there was an independent receiver in Ranney's place and the solution is easy. Maas would then be applying against such receiver to compel him in substance to do what he should have done before. Ranney would in effect be applying to compel a continuance and completion of the receiver's disobedience by payment to him. We think that Mass was entitled to have the prayer of his petition granted.

We think too that the exception filed by the defendants to the allowance of a counsel fee should have been sustained. It was an extraordinary piece of advice which was given to Ranney. He was substantially counseled to violate his duty as receiver for his own personal benefit. That advice was certainly personal and be should pay for it out of bis own pocket.

Tbe order must be reversed, with ten dollars costs and clisburse-ments, and an order made disallowing commissions for counsel fee in the accounting, and requiring Ranney to pay the taxes of the year 1877, applying to that purpose the $100 charged in the account for the counsel fee above disallowed, together with such part of the $589.05 found by the referee to be in his hands as may be necessary, and that the balance of the latter sum, after paying the referee, be paid over to Maas.

Davis, P. J., and Bradt, J., concurred.

Order reversed, with ten dollars costs and disbursements, and order directed to be entered as directed in opinion.