author: DykmaN, J. : Gilbeet, J. : •

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ISAAC S. CATLIN v. JOSEPH NEILSON, Chief Judge City Court of Brooklyn, Respondent.

      Habeas corpus — when, a relator is held wider a commitment after trial, the jurisdiction of the cowrt only considered— Commitment — what it must contain.

    ■Where a return to a writ of habeas corpus shows that the relator is held under a commitment issued "by a court of Special Sessions, after a trial and conviction by it, the only question presented is, whether or not such court had jurisdiction to try the relator and issue the commitment.
    it is not necessary that the commitment should contain the names of the witnesses or the testimony given by them; it is sufficient if it contain a brief statement of the offense charged and the conviction and judgment thereon.
    Certiorari to review a discharge granted to one Charles Schubert upon the return to a writ of habeas corpus.

      Isaac /S'. Gatlin (district attorney), for the relator.

      Robert Johnstone, for the respondent.
   DykmaN, J. :

A petition stating that Charles Schubert was confined in the Kings County Penitentiary, and asking that a writ of habeas corpus issue, directed to the warden of the Kings County Penitentiary, commanding him to produce the body of Schubert before him, was presented to the honorable G-eorge G. Reyrolds, one of the judges of the City Court of the city of Brooklyn. The writ was allowed by the judge in the usual form, commanding the keeper of the penitentiary to have the body of Schubert, with the time and cause of his imprisonment, before the judge at a time therein mentioned. The deputy warden made a return to the same judge that he retained the within named defendant, Charles Schaffer, by virtue of a commitment issued by Herman L. Guck, a justice of the peace of the city of Brooklyn, the original of which was annexed, and for no other reason, and that the facts stated in the commitment were true as believed. The warrant of commitment stated that Charles Schaffer was brought before the justice of the peace on a warrant of arrest issued by him upon complaint on oath, charging him with having committed assault and battery on Joseph Bertholler; that Schaffer requested to be tried by a court of Special Sessions, and was arraigned upon the said charge before the justice sitting as a court of Special Sessions, and the charge as stated in the warrant of arrest was distinctly read to him in open court, and he pleaded not guilty thereto ; that the defendant did not demand a trial by jury and declared himself ready for trial, and the justice proceeded to try him and examined such witnesses as were produced, both against and in behalf of the defendant, and such proceedings were had that the defendant was convicted of the offense charged, and the court did adjudge and determine that for such offense the said Charles Schaffer be imprisoned in the penitentiary in the county for the term of six months. The commitment was directed: “ To the sheriff or any constable of said county, or policeman of the city of Brooklyn,” and concluded in these words: “Now, therefore, in the name of the people of the State of New York, you are commanded forthwith to take the said Charles Schaffer and him convey to the said penitentiary of said county, the keeper whereof is hereby required to receive and detain him therein during the said term of six months, or until thence discharged according to law.” It will be noticed that the petition stated that Charles Schubert was confined, and the writ contained the same name, while the return states that Charles Schaffer was convicted. The discrepancy in the names is nowhere noticed in the proceedings or in the points submitted to us, and we will therefore assume that the same person is intended in all the papers. The defendant was brought before Judge REYNOLDS and the hearing adjourned to the twenty-ninth day of July, and on that day the defendant was discharged by Judge NeilsoN. How this came is not disclosed by the record, and no point is made of it before us. We will therefore examine the case on the merits. The writ of habeas corpus goes to bring up the body of persons detained, to the end that it may be ascertained whether they are deprived of their liberty without authority of law. Personal liberty is placed by our law on the same level with human life, and no person can be deprived of either without due process of law. The inquiry under this writ is into the cause of imprisonment, and when it appears that the imprisonment is under process valid on its face, and in no way impeached, the person must be remanded ; no matter what the error or irregularity or want of form may be, no inquiry into them can be instituted under this writ. It can never be made to do the duty and perform the functions of a writ of error. In this case the keeper of the prison returned to the writ that he held the defendant by virtue of a commitment upon a final judgment of a court of Special Sessions, by which the defendant was convicted of an assault and battery. The return was not traversed, and we must assume that its truth was admitted. Our statute provides that such persons shall not be entitled to prosecute the writ. (Section 22 of the Habeas Corpus Act, 2 E. S., 563.) Section forty-two of the same act provides that no court or officer, on the return of any habeas corpus or certiorari, issued under that article, shall have power to inquire into the legality or justice of any process, judgment, decree or execution specified in the twenty-second section, 2 Eevised Statutes,.568. Section forty of the same act provides that it shall be the duty of a court or officer forthwith to remand such party brought up, if it shall appear that he is detained in custody by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction. (2 E. S., 567.) The best modern exposition of these statutes is given by the late Judge AlleN, in his opinion in the case of Tweed v. Liscomb (60 N. Y., 570), in which he says: “ If the judgment is merely erroneous, the court having given a wrong judgment when it had jurisdiction, the party aggrieved can only have relief by writ of error, or other process of review. He cannot be released summarily by habeas corpusThe justice of the peace, whose commitment was returned by the prison-keeper as his justification for holding the defendant, had the legal and constitutional power, when sitting as a court of Special Sessions, to make the judgment he did, and to send forth the process he did to enforce it. In fact, no attempt was made to impeach or question it in any way. In the record before us, no ground is stated for the discharge, and we can find none. In the points it /is stated that the record of conviction was produced on the hearing aucl was void, and the prisoner was thereupon discharged. We think this must be a mistake, as there was no issue made on the return under which testimony could have been taken, and there was no way to get the record of conviction before the judge on the hearing. If, however, the question was before us, we should hold that whatever informality was disclosed by the record of conviction would furnish no ground for the discharge of the defendant by habeas corpus. The order discharging the prisoner must bo reversed.

Gilbeet, J. : •

The return to the writ of habeas corpus showed that the prisoner was held under a commitment for a criminal offense, of which he had been convicted by a court of Special Sessions. It is not claimed that that commitment is invalid by reason of anything which appears therein. Nor does the case show that the facts stated in the return were denied. In strictness, therefore, the proceedings should be deemed the same as if the prisoner had demurred to the return. (3 Hill, 658, Appendix note 28; Bennac v. The People, 4 Barb., 31; In re Da Costa, 1 Parker Cr., 129.) But a copy of the record of the conviction aforesaid forms a part of the case. It is but reasonable to infer, therefore, that it was admitted upon an allegation that the imprisonment was unlawful, pursuant to the forty-eighth section of the Habeas Corpus Act, 2 R. S., 569. The only question that arose upon that evidence, was whether the court of Special Sessions had jurisdiction to issue the commitment. If the prisoner failed to impeach the record for want of jurisdiction, it was the duty of the respondent to remand him to custody. Error, irregularity, or want of form, does not warrant his discharge. (3 Hill, 661, Appenix note 31; People v. Nevins, 1 id., 154; People v. Cassels, 5 id., 164; People v. Cavanagh, 2 Park., 650; People v. Shea, 3 id., 562; In re Lagrave, 45 How. Pr., 301.) The respondent had not power to re-examine on habeas corpus the proceeding before the court of Special Sessions. (2 R. S., 568, § 42.) The only legitimate inquiry was whether such court had jurisdiction of the person and of the offense. The record of conviction and the commitment both show that it had. That being so, no insufficiency of the record, in point of form, justified the discharge of the pris-oner. On the contrary, the statute expi’essly made it the duty of the respondent to remand the prisoner. (2 It. S., 568, § 43.) But we think the record is in all respects sufficient. It is not necessary that it shall contain the names of the witnesses, or the testimony given by them. The statute prescribes what it shall contain, namely: “A brief statement of the offense charged, and the conviction and judgment thereon.” (2 R. S., 717, § 38.) The cases cited by the respondent's counsel are applicable only when the record is brought up by writ of error or certiorari. The latter was the mode at common-law of reviewing summary convictions, and the judgments of courts of Special Sessions. The Revised Statutes also provided for a certiorari to remove into the Supreme Court convictions before such courts. (2 R. S., 717.) But that provision was amended in 1857 (ch. 769), so as to confer upon courts of sessions power to review, .in the first instance, every order, decision, sentence or judgment of any court of Special Sessions or Police Court, within their respective counties, and upon such hearing to affirm, reverse or modify the same as to the court shall seem just. That act also provides for an appeal to the court of sessions, from any conviction or sentence of a court of Special Sessions, and for bailing prisoners pending the appeal. These are appropriate remedies. But it was never the office of the writ of habeas corpus to perform the functions of a certiorari, or writ of error, and such use of it, as has been shown, is prohibited by statute. The case In re Travis, published in “ The Reporter,” vol. 6, 312, so far as it holds a contrary doctrine, cannot be sustained.

The order discharging the prisoner must be reversed.

BarNabd, P. J., concurred.

Order discharging prisoner reversed.


source: Caselaw Access Project

author: Gilbert, J.: DykmaN, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SAMUEL FAILE, Respondent, v. ELISHA P. FERRIS and GILBERT S. LYON, Appellants.

      Mandamus — when it should not be issued — Officer annually elected — when he holds over.

    On aad prior to April 28,1878, the defendant Ferris was a trustee and the president of the village of White Plains. On that day the Legislature amended the village charter by providing for an election of trustees on the second Tuesday, and an election by them, on the third Tuesday of May, 1878, of a president, not a member of the board. It also provided that the term of office of the then trustees should expire on said third Tuesday; the then village officers to hold office till their sue. cessors qualified; the president to pret ide at all meetings of the trustees. On the third Tuesday of May the trustees, elected under the act of 1878, held a meeting for the purpose of electing a president. Ferris, the former president, claimed the right as president of the village, to act as presiding officer, and by his casting vote the defendant Lyon was elected president. Ferris’ right to preside being contested, one of the trustees applied for and procured an order directing a mandamus to issue commanding Ferris not to preside at any of the meetings of said trustees, and not to vote on the election of any officer by the trustees, and commanding Lyon not to take the oath of office as president, and not to attempt to exercise any of the powers or duties devolving upon the president.

      Held, that the writ was improperly issued; that if there was a vacancy in the office of president, the remedy was to apply for an order requiring the trustees to meet and elect one, and that if there was an unlawful intrusion into the office, then the remedy was by an action in the nature of a quo warranto.

    The question as to whether or not, in the absence of express legislation, a village officer, to be annually elected, will hold over until his successor qualifies, considered by Gilbert, J.
    Appeal from an order directing a peremptory mandamus to issue, enjoining and restraining the defendant Ferris from presiding at any of the meetings of the trustees of the village of White Plains, and from voting on the election of any of such officers of said village, as by statute are made elective by said trustees, and enjoining and restraining the defendant Lyon from taking the oath of office as president of the said village, and from attempting to exercise any of the powers or duties devolving upon the president of said village.
    The defendant Ferris was president of the village of White Plains, on and prior to April 26, 1878, having been elected in 1877. On that day the Legislature passed an act amending the charter of such village, and among other things provided for dividing the village into three wards, and for the. election of two trustees for each ward (chap. 179 of 1878) ; also for the election of such trustees on the second Tuesday of May, 1878, and an election by them on the third Tuesday of May, 1878, of a president who should not be a member of the board. It contained a provision that the terms of the trustees should cease and determine on the third Tuesday of May, Í878, and also provided that the officers of the village should be a president, clerk, treasurer, police justice, collector of taxes and assessments, two trustees of each ward, and such other officers as the board of trustees should appoint, and then provided as follows : “ The present incumbents shall hold their office until their successors shall be duly elected or appointed and qualified as provided by this act.” It also provided that the president should “ preside, when present, at all meetings of the said board ” of trustees.
    Under the charter of the village as it existed at the time of the passage of this act, the president was required to be one of the trustees and elected by- them. An election of trustees was had as provided by the act in question, on the second Tuesday of May, 1878, and they met on the third Tuesday of May. Mr. Ferris was not elected a trustee at the election held on the second Tuesday of May, but was present at the meeting on the third Tuesday, and assumed to act as president. On a tie vote of the trustees for a president, he voted for the defendant Lyon as president, who was by the casting vote of Mr. Ferns declared elected as president. The relator, being one of such trustees, applied to this court at Special Term for an order restraining Mr. Ferris from acting as president of such village, and Mr. Lyon from taking the oath of office or doing any act as president under such election, and the court made the order appealed from.

      Q. Frost, for the appellants.

      Close (& Robertson, for the respondent.
   Gilbert, J.:

The office of the writ of mandamus is to compel the performance of a legal duty in the performance of which the relator has a legal interest, and for the enforcing of wbicb he has no other specific legal remedy. (People ex rel. Stevens v. Hayt, 66 N. Y., 606, 607.) The efi'ect of the writ in this case is merely to enjoin and restrain the respondents, Mr. Ferris, from exercising the functions of the office of president of the village of White Plains, in respect to which he is, in any point of view, functus officio, and Mr. Lyon from taking the oath and exercising any of the powers and duties of the same office, to which he claims to have been duly elected as the successor of Mr. Ferris. The writ does not command either of the respondents to do any act whatsoever. If Mr. Lyon was not elected to that office, the office is vacant, and the court may compel the trustees to proceed to a new election. (Tapping on Maud., 187; Matter of Gardner, 68 N. Y., 467-470.) No one else claims the office, and there is no pretence that any other person has been chosen to fill it. I do not perceive what interest the relator can possibly have, either personally or as one of the general public, in continuing a vacancy in the office ; for such vacancy merely serves the very questionable purpose of suspending, in a large degree, the operations of the village government. If this proceeding were one to determine disputed questions as to the title to the office, it would not be entertained. (People v. Stevens, 5 Hill, 616-627 ; People ex rel. Coleman v. Dikeman, 7 How., 124; People ex rel. Bradley v. Stevens, 2 Abb. [N. S.], 348; 68 N. Y., supra.) But that cannot be its object, for no one besides Mr. Lyon claims or has any colorable title to the office. The remedy provided by law for determining the title to an office is an action in the nature of quo warranto. (Code of Proc., § 432.) The necessity of resorting to that remedy cannot be evaded by disabling a citizen from entering upon an office to which he claims to have been elected by means of a writ of mandamus, and then claiming that because he has not made an actual entry into the office, the action of quo warranto will not ho. The answer is that mandamus will not lie for the purpose mentioned, and that whenthe writ is dismissed, no remedy against Mr. Lyon will be necessary if lie does not enter; and that if he does enter, the action of quo warranto may be brought.

I have searched diligently for a precedent for such a proceeding as that now before us, but I have not been able to find one. The nearest approach to one which I have found, is the case of The People ex rel. Lockwood v. Scrugham (20 Barb., 302). In that case the writ commanded the respondent to permit the relator to exercise the office of brigadier general without interruption or . intrusion from the respondent. But that order was reversed at General Term. (25 Barb., 216.) I think that, for the reasons stated, the writ should be quashed.

But if Mr. Lyon has color of title to the office, he should not, if the power to do so exists, be restrained in the assertion of his right to the profits, emoluments and advantages thereof. He has a legal right to have his claim to the office tried in legal form, and as an indispensable preliminary to the exercise of that right, he must take the oath of office. To compel him to refrain from taking the oath, therefore, is to partially disfranchise him. An act which cannot be tolerated. That Mr. Lyon has color of title to the office, I think, is reasonably clear.

When the trustees came together on the third Tuesday of May last, they performed the duty prescribed by title two, section five of the act of incorporation, as amended in 1878 (ch. 179). They met at the appointed time and at the place designated by said act. No other proceeding was necessary to “ form a board.” An assembly of public officers, duly convened, is ipso facto a board. By section six of said title, it is made the duty of the president of the village, among other duties, to preside, when present, at all meetings of the board of trustees, and to give the casting vote in case of a tie vote in said board. The important question on this subject, therefore, is whether Mr. Ferris was the president of the village, when he gave the casting vote by which Mr. Lyon was elected his successor. If he was, he had the right and it was his duty to preside at that meeting and to give such casting vote. The statute contains no exception depriving him of that right, or exempting him from that duty, because the proceeding was one to elect the president of the village. Its language is alike plain and comprehensive, and, as before stated, it requires him “to preside at all meetings of the board when he is present, and to give the casting vote in case of a tie vote in said board.”

Prior to the amendment in 1878 (Laws 1878, chap. 179), the act incorporating the village provided that the trustees, on the Tuesday succeeding eacb annual election, should form a board and elect, by a majority of votes, one of their number to be their presiding officer and the president of said village. (Laws 1867, eh. 518, p. 1415, § 5.) Mr. Ferris was duly appointed presiding officer and president of the village in May, 1877. The time fixed for the annual election was the second Tuesday of May, and the act of 1878 expressly terminated the offices of the trustees then in office on the third Tuesday of May, 1878. As the new board were required to meet and act on the last-mentioned day, it cannot be held that the term of office of the old board continued after the meeting of the new board. On the contrary, the Legislature evidently intended that the functions of the old board should cease, and those of the new board should begin simultaneously. Mr. Ferris’ functions under his appointment as presiding officer also ceased, for the reason that those functions had been taken away from that office and transferred to the president of the village. It is conceded that Mr. Ferris was the president of the village up to the third Tuesday of May, 1878, but it is contended, on behalf of the relator, that he held that office only by virtue of his other office of trustee, and that his functions of president of the village ceased upon the termination of his office of trustee. I am of a different opinion. The act of incorporation, as it stood when Mr. Ferris was elected, provided that the trustees, and such other officers as the trustees should legally appoint should be officers of the village.' As has been stated, power to appoint the president of the village was expressly granted to the trustees. They were also authorized to prescribe his duties. (Laws 1867, ch. 518, p. 1414, tit. 2, §§ 1, 5, 11.) On the third Tuesday of May Mr. Ferris legally held two independent offices in the corporation. He -was both trustee and president of the village. The provision that the president should be chosen from the trustees had been abrogated. His term of office as president of the village was not fixed otherwise than by the provision that the trustees should annually elect a president of the village. The right of officers to hold over until their successors should be qualified was not expressly given to him, but was confined to the trustees. Treating the act of incorporation as impliedly restricting his term of office as president of the village

to one year, (and it can have no greater effect on that subject), the question arises whether his powers and duties as such officer ceased at the expiration of that term. Ch. Kent says that that is a question not definitely settled. (2 Kent Com., 7th ed., 339.) In Phillips v. Wickham (1 Paige, 595), Ch. Walworth remarked that he was not aware of any general principle of the common

law which authorizes all civil or corporate officers to hold over after the time for which they were elected, until their places are supplied by others, and that the numerous statutes, both here and in England, giving such authority in express terms, seemed wholly inconsistent with any such common-law principle. But the case before him did not require a decision on the point. In Overseers of the Poor v. Sears (22 Pick., 130), Shaw, Ch. J., said: “The better opinion is that town officers thus annually chosen hold their offices until others are chosen and qualified in their place.” So in Connecticut and Maine, and many other States of the Union, an officer elected for the year ensuing is, in the absence of any other restrictive provision, entitled to hold beyond the year, and until he is superseded by the election of another person in his place. (McCall v. Byram Manf. Co., 6 Conn., 428; South Meadow Dam. Co. v. Gray, 30 Me., 547; See, also, Dill. Mun. Corp., ch. 9, § 158, and cases cited.) This doctrine was mentioned with approval in People v. Runkel (9 Johns. R., 158), on the authority of a case in 1 Strange (Foot v. Prosse [m. p.], 625), and another case (Queen v. Corporation of Durham,) in 10 Mod. (146), and in Olcott v. Tioga P. Co. (27 N. Y., 556), SeldeN, J., held that the president of a corporation (a railroad company), who was elected for one year, would hold over until another president was elected, without any special provision in the charter to that effect. While this position is not free from doubt, I think it is sustained by a preponderance of authority. It may also be inferred in this case that the Legislature intended by the act of 1878 to designate the president of the village, then in office, to preside at the meetings of the board of trustees until his successor should have been elected. They required that the president of the village should preside at all meetings of the board. No one but tiie president then in office could perform that duty at the first meeting, or at any subsequent meeting of the board, before his successor had been chosen. That requirement, therefore, could have no application at those meetings unless Mr. Ferris should hold over.

It is, therefore, at least a fair question whether Mr. Lyon was not duly elected president of the village. No other person claims a right to the office. The mandamus in this case was not sought for the purpose of maintaining the right of any person to the office.

I am of opinion that the writ should not issue in such a case, but that when only one person' claims an office, and has .color of title thereto, he should be permitted to qualify, and that the only proper remedy to try his title to the office is an action as before stated. (See People ex rel. Dolan v. Lane, 55 N. Y., 217.)

The order appealed from should be reversed, and the writ quashed, with costs and disbursements.

DykmaN, J.:

The office of a mandamus is to require some person, corporation, or inferior tribunal or body, to do some particular thing specified in the writ pertaining to their office or duty. (3 Black. Com., 110.) It issues as a favor and not as a right, in the exercise of discretion, where there is no adequate remedy. By it corporations, ministerial officers and inferior bodies may be compelled to exercise their functions according to law, but it goes to command the performance of a legal duty, and will only be allowed to give effect to a clear legal right. These are some of the familiar principles applicable to the remedy by mandamus, and are sufficient to show that the writ cannot be ordered in this case.

The order directs the mandamus to issue, not to command the performance of any duty, but to restrain Elisha P. Ferris from presiding at any meeting of the trustees of White Plains village, and from voting on the election of any village officer, and to restrain Gilbert S. Lyon from taking the oath of office as president of the village, and from exercising any of the powers of a president. It is thus made to do a prohibitory instead of a mandatory duty, and really to perform the office of an injunction.

Let it be assumed that Mr Lyon was not regularly elected president of the village. Yet he cannot be restrained from exercising the functions of his office by mandamus. With us his title to the office can. only be tried in a civil action. If he was elected president, then he has the right to the office, and cannot be restrained in its exercise by mandamus ; and if he was not elected, then there exists a vacancy. In either case nothing can be effected by mandamus. Neither he nor Mr. Ferris are commanded to do anything. Oh the contrary, Mr. Ferris has done what he considered his duty and proposes to do no more.

It is thus shown that the end sought cannot be attained by the remedy invoked, and that the order, for that reason, should be reversed.

Present — Gilbert and Dykman, JJ.; BARNARD, P. J., not sitting.

Order reversed.


author: DyKMAN, J.:

text:
    ELLA WADE, an Infant, by Her Guardian, Respondent, v. EDWARD MALLOY, Appellant.

      Tenant for life — liability of, for failure to pay interest on meembrances, and taxes.

    Where a tenant for life of certain land willfully neglects to pay the interest accruing' upon a mortgage thereon, to the end that the same may be foreclosed and the land sold, and such sale is accordingly had, an action lies against the tenant for life by the remainderman to recover the damages he has sustained by reason of such neglect.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought by the plaintiff to recover damages sustained by the failure of the defendant, a tenant by the curtesy of certain land, of which the plaintiff owned the estate in remainder, to keep down the interest on a mortgage existing thereon.
    The referee found, among other things, that Mary A. Malloy was, on the 18th day of July, 1867, the owner in fee of the premises described in the complaint; that she died July 18, 1867, intestate, leaving her surviving the defendant, Edward Malloy, her husband, and her father, William W. Wade, her only heir-at-law; that the said William W. Wade, on the 29th day of November, 1867, conveyed the said premises to the plaintiff; that at the time of the death of said Mary A. Malloy there was a building upon the said premises as described in the complaint, which still continued; that the defendant on the 18th day of July, 1867, entered into the possession of said premises as tenant by the cur-tesey, and continued in such possession, and received the rents, issues and profits thereof until the 20th day of December, 1877; that on the 20th day of December, 1877, the said premises were worth $4,000; the rental value of the said premises was $420 per annum; that at the time of the death of the said Mary A. Malloy there was a mortgage upon said premises given to secure the payment of $1,500, and interest, held by Calvin Burr; that the interest on the said mortgage was payable half yearly; that the said defendant neglected to pay said interest, as it accrued after May 2, 1868; and the annual taxes which accrued after that date, that his purpose in neglecting to pay said taxes and interest was to accumulate large incumbrances upon said premises, so that on a foreclosure and sale thereof, the amount of the principal and interest on the mortgage, with arrears of taxes, should be more than said premises should sell for, and the plaintiff would be deprived of her interest in said premises; that thereafter the said Calvin Burr commenced an action for the foreclosure of the said mortgage, and on the 20th day of November, 1876, obtained a judgment of foreclosure and sale of said premises; that on the 20th day of December, 1877, the said premises were sold to said Calvin Burr, who afterward, at the request of defendant, conveyed said premises to defendant’s present wife; that at the time of said sale there was due to said Calvin Burr, for principal and interest on said mortgage, $2,871.38, and there were unpaid taxes and assessments upon said premises, all of which accrued subsequent to the death of said Mary A. Malloy, $1,017.98; that after the death of said Mary A. Malloy there were assessments charged against said premises, and remaining unpaid at the date of sale aforesaid, amounting, with interest, to $142.85; that the proceeds of said sale did not amount to sufii-cient to pay the said mortgage debt and interest, and taxes thereon, whereby the plaintiff has entirely lost her interest in said property; and that said loss was owing to the aforesaid negligence of the defendant in not keeping down the aforesaid semi-annual interest and taxes.

      O. J. Wells, for the appellant.

      Morris & Pearsall, for the respondent.
    The defendant, as life-tenant of this property, was bound to keep down charges and preserve the estate from loss and forfeiture, by paying interest on mortgage, taxes, etc. (Gerard's Titles to Eeal Property, 153, 154, 155; 1 Story’s Eq. Jur., 517, § 488; 1 Washburn on Eeal Property, 94, § 25.) It is well settled, that where there is an estate for life and a remainder in fee, and there exists an incum-brance binding the whole estate in the lands, the tenant for life is bound to pay the interest and taxes accruing during the continuance of his estate. (.Mosely v. Marshall, 22 N. Y., 202; House v. House, 10 Paige, 158; 4 Kent’s Com., 74; Swaine v. Petrine, 5 Johns. Chy., 482; Stilwell v. Doherty, 2 Bradf., 311; Graham v. Dunnigan, 2 Bosw., 516; Fleet v. Dorland, 11 How., 489; Sheldon v. Ferris, 45 Barb., 124.)
   DyKMAN, J.:

The plaintiff was the owner in fee of certain land subject to the life estate of the defendant, who was in the occupation and enjoyment of it. There was a mortgage on the land upon which the defendant paid the interest for a number of years, but finally willfully neglected to pay it, to the end that the property might be sold under the mortgage, which was done. The plaintiff now brings this action to recover the damages she has sustained, and founds it upon the neglect of the defendant to keep down the interest on the mortgage, by reason of which the property is lost to her. It is a general rule of law applicable to this case, that where there is an incumbrance upon the whole land, and there is an estate in the land for life, and a remainder in fee, the life-tenant is bound to pay the interest on the incumbrance during the continuance of his estate. (4 Kent’s Com., 74.) In this case there were no equities existing between the parties preventing the application of this general rule of law, and it was a duty the defendant owed to the plaintiff to keep down the interest on the mortgage, as ho was under obligations to her to commit and permit no waste upon the premises. These duties were imposed upon him by operation of law in the relation he sustained towards the plaintiff. He was bound to see to it that he was not guilty of waste, either voluntary or permissive, and he was also bound to take proper care to prevent deterioration and decay. (Gerard’s Titles, 154, and cases cited.) If he was guilty of any of these forbidden acts, he rendered himself liable to respond in damages. Waste is the disherison of the remainderman or reversioner. (Livingston v. Reynolds, 26 Wend., 122.) Disherison is defined to be disinheriting, a depriving or putting out of an inheritance (Bumll’s Law Dictionary), and the old writ of waste called upon the tenant to appear and show cause why he had committed waste and destruction in the place named, to the disherison of the plaintiff. (3 Black. Com., 228.) It thus appears that any act or omission of the tenant which deprives the person in remainder or reversion of the inheritance is waste.

The instances of permissive waste, usually given in the books, relate to the permanent destruction of the substance of the property by neglect or wantonness, and the question is, whether the plaintiff can maintain this action for the wrongs of which he complains. The defendant has deprived the plaintiff of the inheritance of this property by intentionally omitting a duty which, as between him and her, the law had imposed upon him. The action of waste, as a technical one, is abolished with us, and wrongs heretofore remediable by that action are subjects of action as other wrongs. (Code of Procedure, § 450.) There can, therefore, be no objection to the form of this action. One thing is certain, the defendant by his neglect has caused the disherison of the plaintiff. True, he has not done so by any of the acts or omissions usually named in the books as instances of waste. But is that important? Is it material by what act or omission the destruction of the inheritance is brought about ? The result is what causes the injury and damage, and not the mode or manner of its accomplishment. The defendant has been guilty of a great wrong towards the plaintiff, much akin to permissive wasteland the result has been the entire loss of her interest in the property. She ought to have a remedy, and the fact that there may be no precise precedent for such an action as this should be no obstacle in her way, for it is one of the chief beauties of our system of jurisprudence that it is flexible, and opens to take in all meritorious cases and give a remedy. The complainant sets out the facts and asks for damages for the wrong. The proofs are before us, and we can see she ought to recover, and there is no obstacle in the way of the administration of justice in this case. The referee was right in permitting a recovery by the plaintiff', and the judgment must be affirmed, with costs.

Barnard, P, J., ijnd Gilbert, J., concurred.

Judgment affirmed, with costs.


text:
    JOHN JONES, Respondent, v. JESSE SELIGMAN and JOHN CROSBY BROWN, Acting as Trustees for the Bondholders of the New York, Boston & Montreal Railway Company, Appellants.

      Mortgage trustees taking possession of railroad — hound to maintain fences — may he compelled, to make farm crossings under its road — action to compel it lies hy land-owner.

    Where a railroad company acquires title to land, partially constructs the road, and subsequently the trustees under a mortgage thereon take possession thereof and operate the same, such trustees are bound to maintain fences and construct farm crossings as required by the statute.
    A land-owner may maintain an action to compel the company to construct and maintain fences when it neglects so to do, and is not confined to the action for damages prescribed by the statute.
    The court may compel the company to excavate under the track and to make a farm crossing- under its road.
    Appeal from a judgment iu favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      The action was brought to compel the defendants to fence so much of a railaoad as ran through the plaintiff's farm, and to compel them to excavate and make, under the track of the road, a passage for plaintiff's cattle, in order that they might obtain water from a neighboring stream.
    The New York, Boston & Montreal Bailway Company, a corporation duly organized, for the purposes of its incorporation, in the year 1873, acquired title to a strip of land theretofore forming a part of said farm, and in the same year- partially constructed a railroad thereon. On February 1, 1873, the company executed and delivered to Jesse Seligman, John Crosby Brown and William Watts Sherman a mortgage which conveyed the property in question, with other pr-operty, in trust to secure payment of certain bonds therein specified. Previous to April 1, 1877, appellants took possession of this property under the mortgage, completed the road on this property, and the road is now being used under license by them.

      John N. Whiting, for the appellants.
    The requirement of fencing railroads being a purely statutory one, is maintainable as a police regulation, for the protection of persons and property, and has been upheld on that ground. (Suydam v. Moore, 8 Barb., 358; Waldon v. Mens. & /Sar. R. JR., 8 id., 390; Thorpe v. Rut. & Bur. R. R. Co., 27 Vt., 140; 8 Ind., 217; 12 id., 3; 16 Iowa, 6; 27 Conn., 479.) The statute having provided a penalty for the neglect of the duty to fence, imposed by such statute, a party complaining of such neglect can only have the redress so given, and he cannot ask a court to intervene in his behalf to enforce the obligation to the general public. (Smith v. Loclcwood, 13 Barb., 209; JDudley v. Mayheiu, 3 N. Y., 15; Clarke v. Rochester, Lockport <& Niagara Falls R. R. do., 18 Barb., 350; Atkinson v. Newcastle, etc., Watenoorhs Oo., 36 Law Times [N. S.], 761; reported in the Begister of Nov. 30, 1877; consult, also, Talmadge v. Rens. & Sar. R. R. Oo., 13 Barb., 493; Brooks v. N. Y. & Erie R. R. Oo., 13 id., 594.)

      Herrick <& Losey, for the respondent.
    The appellants must erect fences, as asked for by the respondent herein. (Laws of 1854, chap. 282, § 8; Shepard v. Buffalo, New York & Brie R. B. Co., 35 N. Y., 641; People v. Saratoga & Schenectady R. R. Go., 2 Am. Law Jour., 158; Staats v. Hudson River R. R. Co., 3 Keyes, 196, see opinion at 198; Wademan v. Albany (& Susquehanna R. R. Go., 51 N. Y., 568.) An action in equity will lie. (People v. Mayor, etc., of New York, 10 Wend., 395; People y. Brennan, 39 Barb., 522 [see 537]; People v. Haws, 12 Abb., 204, 207; McCullough y. Mayor, etc., of Brooklyn, 23 Wend., 453; Buck v. City of Bockport, 6 Lans., 251; Cansón et al. v. City of Buffalo, 1 Keyes, 454; People y. Saratoga & Schenectady R. R. Co., supra; Wheeler v. Rochester & Syracuse R. R. Go., 12 Barb., 227; Clarke y. Rochester, Bockport & N. F. R. R. Co., 18 id., 350; Wadernan y. Albany <& Susquehanna R. R. Co., supra.)

   DyKMAN, J.:

The judge before whom this cause was tried has found that no fence has been built between the plaintiff’s land and the railroad, and that a crossing under the surface of the railroad of sufficient size to allow cattle and horses to pass freely to and from the creek to the west of the road, is necessary at the place where the railroad bed crosses the old faim road, and the testimony in the case fully sustains the finding.

It is also found as facts that the New York, Boston & Montreal Bailway Company obtained title to the lands described in the complaint for the purpose of constructing and operating a railroad thereon, and did partially construct the road ; that the company executed and delivered to the defendants and another a mortgage, whereby the land was conveyed to them as trustees for certain bond-holders; and that as trustees the defendants took possession of the land, completed the construction of the railroad, and have operated it since that time. This action is an equitaifie one, to compel the defendant to erect the fences and farm crossing, and the first question presented is, whether the defendants are within the law requiring railroad companies to erect and maintain fences and farm crossings; certain it is, they are not within the letter of the law, but the statute has an object beyond the mere regulations of division fences between adjoining land-owners, and was made in the interest of tbe public as well, to guard against the mischief which might result from the operation of a railroad without fences and cattle-guards, and the inconvenience arising from the want of proper and convenient crossings for farmers. The defendants are practically the owners and operators of this railroad, and are, therefore, within the spirit and intention of the statute, which must be held to include all operators of railroads, whether corporations or individuals. (Tracy v. Troy & Boston R. R. Co., 38 N. Y., 433.) We will hold, therefore, that the defendants are within the spirit of the law, and are bound by it. The principal complaint against the judgment has respect to the farm crossing. It seems to be thought dangerous to establish a precedent that a farmer is entitled to a farm crossing under the track of the railroad. In answer to this it may be said, in the first place, that there is no doubt about the right of the land-ovmer to maintain such an action as this. ( Wademan v. Albany & Susquehanna R. R. Co., 51 N. Y., 568.) That being so, it must be left to the court to determine the kind of crossing necessary and proper to be constructed, and the place where it shall be made; nay, more, it might bo said in favor of the plaintiff, that this is like a way from necessity, rendered so by the construction of the railroad, and the owner of the servient tenement may, in the first instance, locate the way. In the next place, it maybe said the farmer is entitled to such a crossing as, under all the circumstances, is the best; the rights and duties of both parties being fully considered; certainly there can be no objection to an uuder surface crossing as such. On the contrary, it is much to be regretted that all crossings of railroads, both public and private, are not either beneath or above the railroad track, and it is matter for grave consideration whether it is not the duty of the Legislature to make a law requiring all crossings to be either one or the other, and allow none to be made on the same grade. Such a law would prevent loss and accident, and save life on the one hand, and be an immense saving to the railroad companies on the other. We do not think, therefore, there is any danger in establishing a precedent for an underground crossing. The point is made that the party injured by the omission to make fences and farm crossings is confined to the action for damages, as prescribed by the statute; but we have already seen that, besides an action for damages, a land-owner may maintain an action to compel the railroad company to specifically perform the duty imposed by the statute. (Wademan v. Albany, etc., R. R. Co., 51 N. Y., 568.) This objection need not, therefore, be any further noticed.

Upon the whole, we think the judgment is right,'and must be affirmed, with costs.

Gilbert, J., concurred; BarNArd, P. J., not sitting.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALFRED BECAR, as Executor, etc., of DEBORAH C. BECAR, Deceased, Respondent, v. LOUIS STRULLER, Appellant.

      Bond given, by non-resident executor — action thereon, lies in the name of The People.

    Where a non-resident executor gives a bond to The People of the State of New York conditioned for the faithful discharge of the duties of his office, the people are trustees of an express trust, within the meaning of section 449 of the Code of Civil Procedure, and an action lies in their name to recover for a breach thereof.

      Baggott v. Boulger (2 Duer, 170), and BaytonY. Johnson (69 N. Y., 419) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      Wm. W. Badger, for the appellant.
    -The action being on a bond given to the people, and assigned to the creditor by order of the surrogate, must be in the name of that creditor, who is the only party in interest after such assignment. (Laws of 1837, ch. 460, § 65, 524; Code, § 113; see note at bottom of page 294 of
      The People v. Laws, 4 Abb. Pr., 294; 3 icT., 452; Reclfield’s Surrogate’s Practice, 427, 428, 430; Thayer v. Olarlc, 48 Barb, 243; affirmed in Court of Appeals in same case and note; 4 Abb. Court of Ap. Dec., 391; Baggotty. Boulger, 2 Duer, 160; Brewster v. Batch, 9 Jones & Sp., 67-69.)

      B. More, for the respondent.
   DyKMAN, J.:

Eberhard Flues was the executor nominated in the last will and testament of Charles Heeronimus, who departed this life while a resident of Kings county, New York. On his application for letters testamentary under the will, it appeared that he was not a resident of the State, and for the purpose of procuring such letters to be issued to him, he, with the defendant and one Urban, executed and filed with the surrogate of Kings county a joint and several bond to the people of the State of New York, in the penalty of $20,000, conditioned that Flues should faithfully execute the trust reposed in him as such executor, and obey all orders of the surrogate of Kings county touching the estate committed to his charge. ' After regular proceedings for that purpose, the surrogate of Kings county made a decree directing Flues to pay to the relator, as executor of Deborah C. Becar, $2,225.70. Upon the failure of Flues to render obedience to this decree of the surrogate, an order was made by him, before the commencement of this action, assigning the bond to the plaintiff for the purpose of prosecution. Now, this action is commenced for the recovery of the claim allowed to the plaintiff, as such executor, by the decree of the surrogate already mentioned. By a stipulation of the appellant the only question- presented for determination is whether the action is properly brought in the name of the people, or should have been brought in the name of the executor as owner of the claim, and the party in interest. On the trial the defendant’s counsel moved to dismiss the complaint, on the ground that the action was improperly brought in the name of the people, and should have been brought in the name of Alfred Becar as executor, and that no cause of action existed in the people after the assignment of the bond by the surrogate’s order. This motion was denied, and exceptions were taken. The objection was not taken, either by answer or demurrer, and the denial of the motion might well stand upon the ground that the objection was waived by not being pleaded. At the same time it is proper enough that an examination should be made of the questions involved. By section 111 of the Code of Procedure it was necessary to prosecute every action in the name of the real party in interest, except as provided in section 113, an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute might sue without joining with them the person for whose benefit the action was prosecuted. Then follows the clause in section 113: A trustee of an express trust, within the meaning of this section, shall be construed to include a' person writh whom or in whose name a contract is made for the benefit of another. These provisions are substantially re-enacted by section 449 of the Code of Civil Procedure.

Now, as these bonds are executed to. the people in the interest of persons who may have claims against the estate, the contract is made for their benefit, and the case is thus within the last clause of the statute, and there seems to be no reason why the action on such bonds should not be brought in the name of the people. The so-called assignment of the bond, by the surrogate’s order, was not intended to and could not divest the people of the State of the ownership of the bond. It was only intended thereby ta give a right to prosecute the bond. The case of Baggott v. Boulger (2 Duer, 170) was decided under the Code of 1849, and before the amendment of 1851 had added the last clause to section 113 above quoted, and is not an authority for a construction of the statute as it now stands. In The People v. Norton (9 N. Y., 176), the Court of Appeals held that an action on the bond of a trustee and his sureties to the people of the State of New York, for the benefit of those interested in the trust estate, was properly brought in the name of the people, they being trustees of an express trust within the meaning of section 113. This was after the amendment of 1851. In the case of The People v. Townsend (37 Barb., 521), it was held that such an action as this, on the bond of an administrator, should be brought in the name of the people. In the case of Dayton v. Johnson (69 N. Y., 449), the Court of Appeals held that a public administrator, who had succeeded to the rights of a special administrator, and to whom the bond of the latter had been assigned for prosecution, may bring an action as public administrator upon the bond. This case was not precisely like the one now under consideration, and as the opinion was prepared by the same judge who wrote the opinion of the Supreme Court in the case of People v. Townsend, above mentioned, and contains no reference to that case, it is not probable that it was intended to question the correctness of the decision in that case.

Upon the whole, we think the action was properly brought in the name of the people, and the judgment should be affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Judgment affirmed with costs.


author: DykmaN, J.:

text:
    CHARLES EDMUND FOUGERA, Respondent, v. FRANCIS J. MOISSEN, Assignee of CHARLES ZELLER, Impleaded with others, Appellants.

      Answer alleging title of mortgage in third person — not frivolous.

    In an action to foreclose a mortgage, the assignee for the benefit of the creditors of the mortgagor set up in his answer, that the plaintiff had previously assigned the bond and mortgage to one Surrin, who thereupon became the owner thereof.

      Held, that these facts constituted a defense, and that the answer should not be stricken out as frivolous.
    Appeal from an order overruling the answer of one of the defendants herein as frivolous, and ordering judgment for the plaintiff thereon, with ten dollars costs.

      F. J. Moissen, for the appellants.
    No pleading can be called frivolous which sets up matter which, if true, constitutes a defense to the action. (Richter v. McMurray, 15 Abb., 346; Davis v. Potter, 4 How., 155; Temple v. Murray, 6 id., 331; Metropolitan Bank v. Lord, 4 Duer, 630; Caswell v. Bushnell, 14 Barb., 393.) It is not the motive of putting in the answer which is in question on a motion to strike out as frivolous, but the frivolousness of the defense. If the defense is good, the motion should be denied. (Meeker v. Mitchell, 5 Abb., 455.) The answer was not frivolous. (Smith v. Mead, 14 Abb., 262.)

      Coudert Brothers, for the respondent.
   DykmaN, J.:

This is an action for the foreclosure of a mortgage, and a general assignee of the mortgagor for the benefit of creditors is made defendant. He interposed an answer, and set up that on or about the month of July, 1876, by an instrument in writing, duly executed under his hand and seal, the plaintiff sold, assigned and set over the bond and mortgage mentioned and described in the complaint in this action unto one John Surrin, who thereupon became the lawful owner and holder thereof. A motion was made to strike out this answer as frivolous, which was granted, and an appeal from that order brings the case here.

The fact set up constitutes a defense to this action, and if proven on the trial would prevent a judgment for the plaintiff. We think therefore the answer was not frivolous, and the order appealed from must be affirmed, with costs and disbursements.

BarNAED, P. J., concurred.

Present — BarNard, P. J., Gilbert and DyemaN, JJ.

Order affirmed, with costs and disbursements.


author: Dykman, J.:

text:
    GEORGE McKEAGE, Plaintiff, v. THE HANOVER FIRE INSURANCE COMPANY, Defendant.

      Fixtures — what not, as between mortgagor and mortgagee.

    The owner of a house had two pier and. two mantel mirrors made to order for his house, the pier mirrors resting on a casing at the bottom and attached to a hold-fast at the top, which was driven into the wall, the cornice being of the design of the mirror frame and connected with it. The mantel mirrors were hung on hooks driven into the wall. He also attached gas fixtures to the gas-pipes where they came out of the wall. He then sold the house to another, who thereafter gave a mortgage thereon, in the usual form of real estate moi'tgages, and not referring to those articles.

      Held, that the mirrors and gas fixtures continued personal property, and were not covered by the mortgage.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff directed by the court.
    The action was brought to recover damages for the conversion of certain mirrors and gas fixtures in a house in Brooklyn, which plaintiff claimed by virtue of a bill of sale from one of the former owners of the house; and defendant, under a mortgage upon the house, executed by a prior owner. The question presented was whether these articles were fixtures or personal property.

      Philip L. Wilson, for the plaintiff.

      C. M Tracy, for the defendant.
   Dykman, J.:

The facts in this case bring it close to the line dividing fixtures into personalty and realty. On which side of the line it belongs is the question to be determined. The action is brought to recover the value of two pier mirrors, two mantel mirrors, and a number of gas fixtures. The mirrors were made to order for the owner of the house — one for the front parlor and one for the back parlor. The pier mirrors rested on a casing at the bottom and were attached at the top to a hold-fast, which was driven into the wall. The mantel mirrors were bung on books, also driven into tbe wall. There was a cornice over each of the parlor windows, which was connected with the glasses at the top, and the frame of the pier glass and the cornice were of the same pattern or design. The gas fixtures were attached to the gas-pipes where they came out of the wall. After the owner had thus put in the mirrors and the fixtures he sold and conveyed the property to another, who gave a mortgage upon the house and lot to the defendant, in the usual form of real estate mortgages, without any particular mention of these articles. A subsequent owner of the fee of the premises subject to the defendant’s mortgage sold the mirrors and fixtures in question to the plaintiff’s assignor, and gave him a bill of sale therefor. The defendant’s mortgage has now been foreclosed, and the premises bought in by the defendant at the sale, and now the plaintiff brings this action to recover the value of the articles, the defendant setting up the claim that the articles are attached to the house, and passed under the conveyances and the mortgage as a part of the realty. Thus again is presented the perplexing question what articles are fixtures so as to pass with the land, and what retain their chai’acter as chattels. No general rule ever has or ever can be laid down for the determination of this class of cases. Here the question must be considered as arising between grantor and grantee, or mortgagor and mortgagee, and in each case the rule is the same. The articles in question were not put in the house when it was built, and the house was not erected to receive them, but, on the contrary, they were put up in the house to be used there as chattels. There was no permanent attachment of the things to the freehold, and there was no difficulty in removing them from this house and putting them up in another. These are some of the tests recognized in the law by which to determine whether a chattel retains its character of personal property, and as they are in favor of the latter position, we think the articles in question retained that character. There seems to be no reason for holding that a mirror hung up or set up for use in a house becomes a fixture any more than a carpet which is nailed to the floor; neither should the intention with which it is put up control to make it a fixture. It is true the case does not stand so clear with the fixtures, but wo are inclined to bold them as chattels. We do not refer to the decisions in this State on the subject, although they have been very numerous, for the reason that it is impossible to reconcile them, or to gather from them any. general rule. Each case must be determined upon its own facts-, and after much reflection we think the articles were personal property, and that the judge at the Circuit was right in directing a verdict for the plaintiff, and a judgment must be ordered upon the verdict in his favor, with costs.

Barnard, P. J., concurred, Gilbert, J., not sitting.

Exceptions overruled, and judgment for plaintiff upon the verdict.


text:
    JOHN J. CORBETT, Respondent, v. HORATIO G. GIBSON, Appellant.

      Order for examination of party before trial — powers of county judge.

    An order for the examination of a party before trial -was made by the county judge of Richmond county in an action in the Supreme Court pending in that county.
    On application made at a Special Term of the Supreme Court to vacate the same, held, that the application wag properly denied, as the county judge for the purposes of the order and examination possessed co-ordinate powers with the justice at Special Term.
    Appeal from an order made at a Special Term, denying a motion to vacate an order requiring the defendant to appear for examination before trial, made by the county judge of Richmond county in an action in the Supreme Court pending in said county.

      Qoudert Brothers, for the appellant.

      Wales Frank Severance, for the respondent.
   Dykman, J.:

This is an appeal from an order denying a motion to vacate an order for the examination of the defendant before trial.

The order for the examination was made by the county judge of Richmond county, and then an application was made to a judge of the Supreme Court at Special Term to vacate the order. This application was denied, for the reason that the county judge, for the purposes of the order and examination, possessed co-ordinate powers with the justices of the Supreme Court. This refusal was on good grounds, and the order must be affirmed.

The order appealed from must be affirmed, without costs and disbursements.

Present — Barnard, P. J., and Dykman, J. Gilbert, J., not sitting.

Order affirmed, without costs.


text:
    BERNARD KELLY and CORNELIUS A. BUNNER, Appellants, v. CHARLES CHRISTAL and WILLIAM B. MARSH, as Executors of ALEXANDER HOAG, Deceased, WILLIAM CHRISTAL, JOSEPH STRUTHERS and CHARLES E. CHRISTAL, Respondents.

      Undertaking — when not set aside became of fraud in procwing it — what nota mis-trial.

    An undertaking;, given to procure tke release of defendant’s property from an attachment, will not he set aside because the surety was induced to sign it through the fraud of the defendant, if the plaintiffs were in no way privy thereto.
    The trial of an action was commenced before Mr. Justice Pratt on October 7, 1877, and continued until January 26, 1878, testimony being taken at various intermediate dates. The term of office of Mr. Justice Pratt expired December 81, 1877, but having been re-elected he commenced a new term January 1, 1878. No objection was made to proceeding with the trial by any of the parties at any time.

      Held, that no objection to the regularity of the proceedings could be raised after judgment therein.

      Appeal from a judgment, in favor of the defendant, dismissing the complaint, entered upon the trial of this action by the court without a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried; and also from an order denying^ a motion to set aside the trial and decision as a mis-trial.
    The plaintiffs are sureties upon an undertaking given to discharge an attachment; and this action is brought to have the undertaking sui-rendered and canceled, upon the ground that it was obtained from them by a fraud; and also to have the judgment that was recovered in the action in wrhich the attachment was issued declared fraudulent as against them, upon the ground that it was recovered by collusion between the parties to the action, in pursuance of a conspiracy formed between them to collect a fictitious debt from the plaintiffs as sureties upon the undertaking.

      Benj. M. Stilwell, for the appellants.

      Edward 8. Clinch, for the executor’s respondents.

      Charles E. Croswell, for the respondent Charles E. Christal.
   DykmaN, J.:

Charles Christal and William B. Marsh, as executors of Alexander Hoag, deceased, commenced an action against William Christal and Joseph Struthers, in the Supreme Court, on a promissory note given to them by the defendants, in the firm-name of Christal & Struthers. An attachment was issued in the action on the ground of the non-residence of one of the defendants. For the purpose of procuring the discharge of the attachment, the plaintiff in this action gave the usual undertaking required by law, at the request of Mr. Struthers, one of the defendants. Judgment was recovered by the plaintiff in that action. Now the plaintiffs bring this suit to have the undertaking surrendered and canceled, on the ground that it was obtained by fraud and collusion, and also to have the judgment entered in the former action declared fraudulent and void as to them. The claim of the plaintiffs is, that the debt upon which the attachment suit was grounded was fictitious, and that the action was the result of a conspiracy to procure the undertaking from them, and then suffer a judgment to pass and collect the amount of it from the plaintiffs on their undertaking. This position of the plaintiffs is entirely unsupported by the testimony adduced on the trial. It was fully established that the promissory note upon which the attachment suit was commenced was given for money loaned to the defendants, and was an honest debt. It also appeared that the plaintiffs in that suit did nothing to induce the plaintiffs to make the undertaking. The answer of the defendants in the attachment suit was withdrawn, and the plaintiffs point to that as a circumstance in their favor; but without connecting the plaintiffs with it suspiciously, it cannot go. to aid them. It would not be a defense to an action at law on the undertaking, much less is it proof of a conspiracy. In fact when it appeared that the claim of the plaintiffs in the attachment suit'was an honest one, the foundation of the present action was gone. Without the element of fraud in that claim, the plaintiffs here could make no progress. Let it be conceded that the plaintiffs were' induced to make the undertaking by the false representation of Struthers, one of the defendants in the attachment shit. That certainly is no reason for setting it aside. The undertaking was given to procure the release of the property from the attachment, and for the security of the attaching creditors. Certainly such creditors must not be affected by any fraud of the defendants in inducing the making of the undertaking, so long as they are not privy to it. The judgment of the court below must be affirmed, with costs. The order denying the motion for a new trial must be affirmed, with costs and disbursements.

A motion was made to set aside the trial and decision of this action on the ground of a mis-trial based upon these facts. The trial was commenced on the 27th day of October, 1877, before Judge Pkatt, at the court-house in Brooklyn, and was continued until the 26th day of January, 1878, when it was completed. Testimony was taken on different days, both in the years 1877 and 1878. Judge Pkatt’s term of office as justice of the Supreme Court expired on the 81st day of December, 1877, but having been re-elected he commenced a new term on the first day of January, 1878. No objection was made to proceeding with the trial at any of the meetings. We can take judicial notice of the fact that the Special Term of the Supreme Court in Brooklyn is always open.

So far as the objection rests upon the expiration of the term of office of Judge Pratt, it has no validity. There was no time when he was not a judge, for his new term commenced immediately upon the expiration of his old one. Besides, the cause was always in court, and the court never lost control of it. In relation to the adjournment of the trial of the cause beyond the term of the court at which it was commenced, we do not think that it was a mistake. The powers of the court were not abridged by the adjournment, and the judge was competent. Besides all this, the element of consent is a sufficient answer to both of these points. All the adjournments were without objection, and the parties must now be held to have consented to them, and to the final submission of the case to the judge for his determination. That portion of the order appealed from must also be affirmed;

Present — BARNARD, P. J., Gilbert and DyicmaN, JJ.

Judgment, and order denying new trial as a mis-trial, and order denying new trial upon the minutes affirmed, with costs.


author: Dyicman, J.:

text:
    MAX DOCTOR and SIMON HATCH, Appellants, v. PAUL SMITH and others, Respondents.

      Action tofweclose a mortgage — right of a defendant holding a prior as well as a subsequent morigags.

    Where, in an action to foreclose a mortgage, one having a subsequent mortgage is made a party defendant, and such party is also the owner of mortgages prior to that of plaintiff, he may answer in the action and ask to have such prior mortgages paid out of the proceeds of sale before applying any portion thereof to the satisfaction of the plaintiff’s mortgages.
    Appeal from an order overruling a demurrer to a portion of the answer of the defendants herein, and from so much of the judgment entered herein as grants to such defendants the relief demanded in their answer.
    This action was brought by plaintiffs to foreclose a mortgage made by defendants Paul Smith and wife to the plaintiffs. The defendant Matthias held a fourth mortgage on the same premises subsequent to that of plaintiffs. The defendants Matthias and the mortgagor and his wife interposed a joint answer, in which they admitted all the allegations of the plaintiffs’ complaint, and set up that defendant Matthias was the owner of two certain mortgages, which were prior liens on said premises to that of the plaintiffs, and demand judgment that they be paid and discharged first out of the proceeds of sale. To this part of the answer the plaintiffs interposed a demurrer, on the ground that the facts stated in that portion of the answer did not constitute a defense or counter-claim to the claim of plaintiffs. Judgment was rendered overruling the demurrer, with costs and an allowance, and directing a sale of the premises as demanded m the answer.

      Theodore C. Vermilye, Jr., for the appellants.
    The answer contains no counter-claim, and is not as prescribed by section 501, of the Code of Civil Procedure. Nor do the facts set up in the answer constitute a cause of action against the plaintiffs. (Arthur v. Brooks, 14 Barb., 533; Hyde v. Conrad, 5 How., 112.) The plaintiffs in this action cannot be compelled to foreclose the prior mortgages on the property, although held by one of the defendants, as they do not, in their own complaint, claim to set them aside, or in any way interefere with them. (McReynolds V. Munns, 2 Keyes, 214.)

      8. F. Bawson, for the respondents.
    The demurrer was insufficient to raise any question of law under the Code of Civil Procedure, §§ 494, 495 and 496. The question of priority of lien was properly raised and determined in this action. (Brown v. Vollcenniny, 64 N. Y., 76.) A junior mortgagee may in his bill set up all prior liens and force the holder of them, by making him a party, to have them paid off. (Vanderkemp v. Sheldon, 11 Paige, 28; 5 Wait’s Pr., 194; Holcomb v. Holcomb, 2 Barb., 21; cited with approval in 30 N. Y., 382; Mutual Life

      Ins. Go. v. Bake, 1 Abb. New Cases, 381; Chamberlain v. Lyle, 3 Mich., 448; Simson v. Satterlee, 6 Hun, 305; 64 N. Y., 557.) And it has been held that a junior incumbrancer, when a prior lien was being foreclosed, might come in and demand that he be paid off. (jBeekman v Gibbs, 8 Paige, 511.) Though the better practice is probably otherwise. (Mee. and Tr. Sav. Inst. v. Roberts, 1 Abb. Pr., 381.) Unless all the parties interested (as is the case with us) are before the court. (Barnes v. Stmghtm, 10 Hun, 14; Livingston v. Meldrum, 19 N. Y., 440; Bache v.' Boche?', 67 id., 429; Tower v. White, 10 Paige, 395; 12 Hun, 289.)
   Dyicman, J.:

It is not customary, in an action for the foreclosure of a mortgage, to make prior incumbrancers parties, neither is it necessary; yet the plaintiff may make a person holding a prior mortgage a party defendant for the purpose of having the amount of the in-cumbrance liquidated and paid out of the proceeds of the sale. In this action Matthias was made a party, not as a prior but as a subsequent mortgagee, holding a mortgage on the same premises, which was a lien subsequent and subordinate to that of the plaintiff. It so happened, however, that he had two mortgages on the same premises prior to that of the plaintiff, and he answered in the action, setting them up and asking to have them paid in their order of priority, before any of the proceeds of the sale of the premises were applied to the payment of the plaintiffs’ mortgage. The mortgagor and his wife are made defendants, and they join in this prayer.

We do not see why the relief asked for should not be granted. Section 1204 of the Code of Civil Procedure is, that judgment may be given for or against one or more plaintiffs, and for or against one or more defendants. It may determine the ultimate rights of the parties on the same side as between .themselves, and it may grant to a defendant any affirmative relief to which he is entitled. It is against the policy of our law to require a multiplicity of actions, and it is in accordance with the reforms in the mode of judicial proceedings in our State to determine the rights of all the parties in the same action; especially is this true in equity actions such as this. There would seem to be no reason in refusing to allow the defendant to have his two prior mortgages paid out of the proceeds of the sale of the premises under the judgment in this action, and to have the amount ascertained and a provision inserted in the judgment to that end.

The judgment must be affirmed.

BaknaRD, P. J., concurred; Gilbert, J., not sitting.

Judgment affirmed.


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    GEORGE W. HARRIS, as Executor, etc., of WILLIAM D. HARRIS, Deceased, Appellant, v. CHARLES TODD, Jr., Respondent.

      Action — when upon contract, and not for tort.

    In an action by an executor tbe complaint set forth his official character, alleged that the defendant had obtained from the testator various sums of money, amounting to $8,305.67, that no part thereof had been paid, that they had been procured through false and fraudulent representations of the defendant, and demanded judgment for $8,305.67, with interest.

      Held, that the allegation as to the fraudulent representations was improperly inserted in the complaint; that the action was one upon contract, and should be treated as such.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    AT. Dana Wells, for the appellant.

      James W. Ridgway for the respondent.
   Dykman, J.:

This is an action for the recovery of money alleged to have been loaned to the defendant by the plaintiff’s testator. After alleging the official character of the plaintiff, the complaint states that the defendant obtained from the testator, in his life-time, various sums, amounting in the aggregate to $8,305.67; no part of which had been paid. It then contains statements of fraud, and false and fraudulent statements and representations of the defendant, made as inducements to the testator to advance the money to the defendant, and closes with a demand for judgment for the sum of $8,305.67, with interest. On the trial the plaintiff established an indebtedness from the defendant to the testator of $7,787.78, which was undisputed, and rested, and the court thereupon directed a verdict for the defendant, to which the plaintiff excepted. This direction was given on the ground that the action is for deceit. We think the trial court fell into an error. The action is for the recovery of money only. The complaint contains apt allegations to show a cause of action against the defendant, and closes with a demand for a money judgment only, and not for damages. The charges of fraud and misrepresentation, in contracting the debt and obtaining the money, are fit and proper in an affidavit to obtain an order of arrest against the defendant in the action, but were not proper to be inserted in the complaint. They were not issuable, and could not have been tried or determined on the trial. (Graves v. Waite, 59 N. Y., 159; Elwood v. Gardner, 45 id., 352.)

A new trial must be granted, with costs to abide the event.

BARNARD, P. J., and Gilbert, J., concurred.

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


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    WILLIAM DRINKWATER, Respondent, v. WILLIAM B. DINSMORE, Appellant.

      Action for injuries — measure of damages — that a third person continues to pay the injured person wages dvring Ms disability does not relieve the defendant.

    In an action to recover damages for injuries sustained by reason of an obstruction placed in the highway by defendant, plaintiff is entitled to recover the expenses incident to his illness, the value of his time lost thereby, a fair compensation for his physical and mental sufferings, and for any permanent reduction of his power to earn money.
    The fact that his employer paid him his wages regularly during his sickness, does not relieve the defendant from liability to compensate him for the loss of the time during which he was unable to work.
    Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury.
    The action was brought to recover damages claimed to have been occasioned by the upsetting of a wagon driven by plaintiff, whereby his leg was broken. The accident was caused by a pile of gravel placed on the side of the road by direction of defendant’s foreman.

      John E. Eurrill and Frederick A. Ward, for the appellant.

      W. E. Woodin, for the respondent.
   Dyicman, J.:

This action is for damages resulting to the plaintiff from a personal injury caused by the upsetting of a wagon by an obstruction in the highway, placed there by the defendants. The cause was tried at the Circuit, and the jury gave a verdict for the the plaintiff for $1,000. There was no exceptions to the direction given to the jury in the charge, and the charge is not contained in the case on appeal. There was no motion for a new trial, and the appeal is from the judgment only. There is certainly evidence to sustain the verdict, and we can do no more than examine questions of law which came up on the trial. Of these there are but two.

After the plaintiff had given some testimony in respect to his wages and the length of time he was detained from his work by reason of the injury he received, he was asked, on cross-examination, this question : “ During the time when you were sick with this broken leg, -were not your wages paid for by the Knickerbocker Ice Company ?” This was objected to by the plaintiff’s counsel, the objection was sustained, and the defendant excepted.

The object of this testimony was to show that the plaintiff had been paid his wages during his sickness, by the company in whose employ he was at the time of the injury, and thus reduce the amount of his recovery, and we must now assume that the plaintiff had been so paid. Was the testimony proper?

This is not a case for exemplary damages. They must be compensatory only. The plaintiff may recover the expenses of his cure, the value of his time lost during his disability, a fair compensation for his physical and mental suffering caused by the injury, and for any permanent reduction of his power to earn money. This seems to be the result of the authorities, and is the rule usually applied in similar cases.

The plaintiff is entitled, as a part of his damages, to the value of the time he lost. Can this be reduced by showing that he received this amount from some other hand? We think not. The law imposed this part of the plaintiff’s damages upon the defendant, as a consequence of the injury he caused him, and no mitigation of the amount can come to him from any more voluntary payment of a portion by a third party not in the interest of the defendant. The principle may be tested by supposing the company to have given the plaintiff $1,000, on receipt of the injury, for his maintenance until his recovery. Could it now be successfully contended that no recovery could be had for the injury, because the plaintiff had been fully compensated. The plaintiff must recover his loss and the defendant must pay it. He can take no benefit from the gratuity of others. He has caused an injury and consequent loss, and he must pay, no matter how benevolent others have been. In our view, thei’efore, the testimony was properly excluded.

The defendant was asked to state the agreement between him and the commissioners of highways, under which he worked out his road tax. This was objected to and excluded, and an exception taken. If there was anything wrong about this, the difficulty was all obviated in a moment afterwards when the ruling was made the other way, and the defendant detailed the whole arrangement.

We find no error, and the judgment must be affirmed, with costs.

Gilbert, J., concurred; BarNard P. J., not sitting.

Judgment affirmed, with costs.


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    PHŒBE HAIGHT, Respondent, v. ENOCH AVERY, Appellant, Impleaded with ENOCH B. AVERY.

      Statute of limitations — payment of interest by one of two makers — when it removes the bar of the statute as to the other.

    In an action upon a promissory note, made by a father and son, the father alone defended setting- up the statute of limitations. Payments of interest Had been made by the son, and some, it was claimed, by the father. The court charged that it was not necessary to charge the father ; that the payments should have been made by his own hand, or with his money; that it was suf-cient if the son acted by his direction; if he were a joint-actor with the son in making the payment. Held, that this was correct.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was upon a promissory note made by the defendant Enoch B. Avery, and signed also by the defendant Enoch Aveiy, his father — the son being the principal debtor. The father defended and set up the statute of limitations. The interest had been paid on the note for several years by the son, and the plaintiff claimed that some of these payments were made by the father himself, and others by the son, acting under his direction. With reference to this, the justice charged as follows: "You are to find, in order to make this old man liable, that he made this payment. Not with his own hand, that is not necessary. Did he send his son with the money ? If he did, that is his payment. Did he send the son to make the payment with his (the son’s) own money? Did he participate in the payment ? Did he direct it ? Did he claim a payment made by the son, and put it upon the paper when the payment was admitted ? Did he do anything by which he showed that he was a joint-actor in the payment ? If he did, he is liable, and that is the law that you are to enforce; and you are to see to it that the proof comes up to that point.” * * * “ If he said to his son, ‘ go and pay that interest,’ if he lent him the money to pay it; if he directed him to pay it, and in pursuance of that direction the son did pay it; if the son told him, ‘ I have paid one or two years’ interest, and they have not indorsed it,’ and he went with the son there to exact credit for the payment, and he put it on the note when it was admitted, then you are at liberty to say that this payment, if you believe it to have been made, was made with the concurrence, the participation, the connivance or direction of the father. If so, he is holdeu, and you will find a verdict for the plaintiff.” The Justice also charged that a payment where there are two makers only binds the man who makes the payment.

      Odie Close, for the appellant.

      Robert 8. Hart, for the respondent.
   DykmaN, J.:

This is an action on a promissory note made by two persons, who sustain the relation of father and son. The note was given for money loaned to the son, the father signing the note as surety. The father alone defended, and set up the statute of limitations. The note was payable on demand, and was dated on the 2d day of April, 1866, and the action was not commenced until the 19th day of June, 1876. The interest was paid on the note every year, and it was indorsed down to February, 1875; as more than six years had elapsed after the note became due before the action was commenced, the action was barred by the statute of limitations, unless it was taken out of tbe statute by the payments, and the great struggle on the trial was to show that the father had made some of the payments. There was testimony tending to show that the father had sent the son to pay interest on the note, and claimed a payment of interest which had not been indorsed on the note, and when the claim was allowed, made the indorsement of it on the note himself. This was the indorsement of May, 1874. The judge charged the jury as follows: “ You are to find, in order to make this old man liable, that he made this payment not with his own hand; that is not necessary. Did he send his son with the money? If he did, that is his payment. Did he send the son to make the payment with (his) the son’s money? Did he participate in the payment? Did he direct it? Did he claim a payment made by the son, and put it upon the paper when the payment was admitted? Did' he do anything by which he showed that he was a joint-actor in the payment? If he did, he is liable, and that is the law that you are to enforce, and you are to see to it that the proof comes up to that point.” He also charged that “a payment, when there are two makers, only binds the man who makes the payment.” The jury gave a verdict for the plaintiff, and must, therefore, have found that the father made the payment. The verdict is by no means unsupported by the testimony; on the contrary, there was testimony which supports it abundantly. If, therefore, the charge was right, the judgment and order appealed from must be affirmed. The effect of a payment to save a demand from the operation of the statute of limitations remains unaffected by legislation, and is equivalent to a new promise to pay the residue of the debt. This principle was not questioned in the case of Vankeuren v. Parmelee (2 Corns., 523) nor in any of the subsequent cases where that case has been mentioned. There has been some controversy about that case, respecting what it really does decide, and there will probably be more; but it does not stand in the way of this judgment at all, and, therefore, requires no special notice here. In 1859, there came before the Court of Appeals the case of Winchell v. Hicks (18 N. Y., 558). That was an action on a joint and several promissory note, made by four persons, which became due May 2, 1847. The action was commenced September 6, 1854. The interest on the note was paid by the principal, who had the money, annually, and indorsed on the note up to May 4, 1850, and at some time between the last date and May 3, 1852, the plaintiff called upon two of the sureties and requested payment of the principal or interest, and they, in substance, requested him to see the principal and get the money from him. The principal was informed of what they said and paid the interest. In that case the Court of Appeals held that, under the circumstances, the act of the principal in making the last payment was the act of these two sureties, and enured to their benefit, and attached to them all its consequences, and that the running of the statute was arrested thereby as against the two sureties.

That case supports the charge and the verdict in this, and the judgment and order appealed from must both be affirmed, with costs.

GilbeRT, J., concurred; BarNard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: DykMAN, J.:

text:
    GEORGE I. AMSDELL and THEODORE M. AMSDELL, Appellants, v. JAMES McCAFFREY, Respondent.

      Notice o f appeal from, a justice’s judgment — when the grounds thereof are not sufficiently stated.

    Upon an appeal ñ-om a judgment of a justice’s court the notice of appeal stated as the grounds thereof, that it was “ against law and evidence.”

      Held, that it was too vague and general to present any question for review. Held, further, that it was too defective to give the appellate court jurisdiction, even for the purpose of allowing it to he amended.
    Appeal from an order- of the County Court of Kings county, -dismissing an appeal from a judgment of a justice’s court, and from an order denying a motion for leave to amend the notice of appeal. The notice of appeal stated as the grounds thereof, “ that the amount of the claim for which judgment was demanded by the plaintiffs in their pleadings in this court exceeded fifty dollars, and a new trial is hereby demanded, according to the provisions of section 352 of the Code; that the judgment was against law and evidence. The appellants claim that the said judgment ought to have been in their favor for fifty-two dollars, with interest thereon from December 20th, 1876, with costs.”

      Qeorge E. King, for the appellants.

      Joseph Oarson, for the respondent.
   DykMAN, J.:

The statute providing for an appeal from courts of justices of the peace to the county courts requires the appellant to serve a notice of appeal, stating the grounds upon which the appeal is founded. (Code of Procedure, § 353.) If this requirement of the statute is to answer any good purpose, it is entirely obvious that it should be fully complied with, and that the grounds stated should be specific and explicit. To say in general terms that the judgment is against the testimony, and contrary to law, assigns no specific error, and states no ground for reversal. It is no more than saying the judgment is wrong, which is clearly insufficient. In this case the notice of appeal states that the. judgment was against law and evidence. This is too vague and general, and presents no point for review. Without noticing the other errors and irregularities, this is sufficient to justify the order of the County Court dismissing the appeal. There was a cross motion for leave to amend the notice of appeal; but such a motion could not be granted, for the reason that the original notice was entirely insufficient, and there was nothing to amend. The notice of appeal is the only thing giving jurisdiction to the appellate court, and that being so defective as not to accomplish its object, it cannot be amended.

The orders appealed from must be affirmed, with costs.

BarNard, P. J., and Gilbert, J., concurred.

Orders affirmed, with costs and disbursements.