text:
    Jacob H. Tallman, Resp’t, v. Daniel J. Sprague, App’lt.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    1. Usury—Presumption.
    The mere fact that a note was renewed at maturity by one for a greater amount does not necessarily involve usury, especially where the form of the statement on the suoject intimates that there are other facts not stated, which would be relevant.
    2. Default—Payment.
    A judgment by default will not be opened on the ground of partial payment upon an affidavit showing the giving of a note for one-half of that m suit. If given, this would not have been a payment.
    Appeal by defendant from order denying his motion to open a judgment taken for want of answer.

      J. Noble Hayes, for app’lt; Michael Jacobs, for resp’t.
   Per Curiam.

The defendant asked that the default be opened that he might mgke the defense of usury. The affidavits were-too vague and uncertain on this subject to permit it to be held that usury was shown. The mere facts of. giving a note and then,, at its maturity, another note for a greater amount does not necessarily involve usury,' especially when the form of the statement-on the subject intimates that there are other facts not stated which would be relevant and should be considered before holding that there was usury.

The defendant also maintained that he had a defense of payment or partial payment. As to the first the affidavits did not .support it. The second was said to be the giving of the defendant’s note for about thfe half of the amount of the note in action. If given, this would not have been a payment. The defendant’s affidavits left it doubtful as to whether it was ever given to plaintiff. The affidavits of the plaintiff are to the effect that it never was.

The court would have been justified in denying the motion .absolutely.

Order affirmed, with ten dollars costs.

Sedgwick, Ch. J.; G-ildersleeve and Dugro, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John Murphy, by Guardian, Resp’t, v. The Manhattan Brass Co., App’lt.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Security for costs—Infants.
    Where the plaintiff is an infant whose guardian ad litem has not given security for costs and he has not obtained leave to sue as a poor person, the defendant has a right to require security to be given.
    Appeal from order denying defendant’s motion that plaintiff file security for costs.

      William Q. Lathrop, Yr., for app’lt; Adam Finch, for resp’t.
   Per Curiam.

The defendant’s right to security for costs depended upon § 3268, Code Civil Procedure, as amended by chapter 170, Laws of 1891. It says that a defendant may require security for costs to be given where the plaintiff is, when the action was commenced; subd. 5, an infant whose guardian' ad, litem had not given such security, excepting as otherwise provided in §§ 459' .and 469 of the act. These sections refer to the right of an infant to obtain leave to prosecute as a poor person.

As in this case it did not appear that the guardian ad litem had filed security for costs or that the plaintiff had obtained leave to sue as a poor person, the defendant’s motion should have been .granted.

The order appealed from is reversed and defendant’s motion below granted, with ten dollars costs.

Sedgwick, Ch. J., Dugro and Gildersleeve, JJ., concur.


text:
    Florence V. Haigh et al., Resp’ts, v. Christine H. Crocker et al., Appl’ts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    1. Usury—Injunction.
    The court is not absolutely bound to believe affidavits read in opposition to the continuance of an injunction.
    S. Same.
    The fact that the business was done by agents who claim that their principal did not authorize or know of or benefit by the usury taken, is not conclusive on the question of the principal’s liability, as notwithstanding these facts there may have been complicity between them.

      Appeal by defendants from order continuing injunction.

      1). A. Stephens, for app’lts; Foster & Stephens, for resp’ts.
   Per Curiam.

One of the questions, and indeed the only one was, whether the appellant was implicated in the taking of usury upon certain notes and a mortgage to secure them made by the respondents upon personal property. The business was done by agents of the appellant who claim that she did not authorize, or know of or benefit by the usury that no doubt was taken. The learned judge was not absolutely bound to believe the affidavits read for defendant. Indeed they might literally be true- and yet there be such a relation between the appellants and agents-in this matter, as would evince a complicity between them.

Order affirmed, with ten dollar’s costs to abide the event

Sedgwick, Oh. J., Dugro and Gildersleeve. JJ., concur.


author: Gildersleeve, J.

text:
    John H. Gould, Resp’t, v. Frank E. Walbridge, App’lt.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Manufacturing companies—Statement—Treasurer.
    In an action to recover the penalty for not furnishing a statement of the-affairs of a manufacturing company on request of a stockholder, there was-no question as to the failure to comply with the request; the only controversy being as to whether defendant was treasurer of the company. The-court submitted to the jury the questions whether defendant was elected treasurer and whether the election was by ballot. Held, that the finding of the jury on these questions on conflicting evidence was final and conclusive.
    Appeal from a judgment in favor of the plaintiff entered on. the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      FI. L. Collier, for app’lt; Beattys & Low, for resp’t
   Gildersleeve, J.

This action was brought by the plaintiff to-recover a penalty of $340, under § 27 of the manufacturing corporation act of 1848, and acts amendatory thereof and supplemental thereto, from the defendant, as treasurer of the John H. Gould Company, for not rendering to the plaintiff a statement of the affairs of said company, when requested by plaintiff so to do. It is fully established by the pleadings and the evidence that the plaintiff was entitled to serve a notice to render a statement of the affairs of said company, and that he did duly serve such a notice-on the defendant, as treasurer of the company, on July 2, 1890, and that defendant neglected to render such statement up to the 20th day of August, 1890, the day of the commencement of this-action.

The language of the statute is as follows: “ Whenever any person or persons owning five per cent, of the capital stock of any company not exceeding one hundred thousand dollars, or any person or persons owning three per cent, of the capital stock of any company exceeding one hundred thousand dollars, formed! under the provisions of this act, shall present a written request to the treasurer thereof that they desire a statement of the affairs of such company, it shall be the duty of such treasurer to make a. •statement of the affairs of said company under oath, embracing a particular account of all its assets and. liabilities in minute detail, and to deliver such statement to the person who presented the ..said written request to said treasurer within twenty days after •such presentation, and shall also at the same time place and keep •on file in his office for six months thereafter a copy of such statement, which shall at all times during business hours be exhibited to any stockholder of said company demanding an examination thereof ; such treasurer, however, shall not be required to deliver such' statement in the manner aforesaid oftener than once in any •six months. If such treasurer shall neglect or refuse to comply with any of the provisions of this act, he shall forfeit and pay to the person presenting said written request the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter until such statement shall be furnished, to be .sued for and recovered in any court having cognizance thereof.”

The only questions in the case are purely questions of fact, and were correctly submitted to the jury by the learned trial judge in the following language: “ Counsel have agreed that there are but two propositions in the case for you to consider ; the first is, was the defendant treasurer of the company at the time when the notice was served upon him ? Of course if he was, he is liable, because the answer admits that he never gave the information desired until the books were handed to the president, which was about the 20th of August.

“If he was not treasurer, of course he was not liable. With respect to that, you can consider two questions: first, was he •elected treasurer? second, was the election by ballot? With respect to that the evidence is conflicting. You have heard the testimony of Mr. Balestier and the plaintiff with respect to the method of election, and you have heard the testimony of the defendant and his secretary ; you must determine from it whether ■or no this defendant was elected by ballot as treasurer of that •company. If he was, then he became its treasurer, and continued ■so up to the time he was served with this notice, unless in the interval he resigned.”

The jury, by their verdict, on all the evidence, found that the ■defendant was duly elected treasurer, and that he continued to be such up to the time of the serving of the notice. This finding is •conclusive.

There are no exceptions to the admission or exclusion of evidence that are of sufficient importance to require discussion.

The judgment and order appealed from are affirmed, with ■costs.

Sedgwick, Oh. J., concurs.


text:
    In the Matter of John Delahunty.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    .¡Lunatics—-Action against—Injunction.
    Pending an action in the’ city court the defendant was adjudged a lunatic, and her committee was substituted as a party and answered setting up as a defense that no leave to sue him had been granted. Held, that he had a right to rely on such defense and the city court had no right to proceed in the action, and that this court was justified in restraining the enforcement of the judgment rendered by that court, and in refusing, under the circumstances, leave to sue the committee nunc pro tune.

    Appeal from order restraining the enforcement of a judgment •obtained in the city court, and also from an order denying motion to allow the plaintiff therein, to institute and maintain said .action in the city court.

      A. Kling, for app’lt; Donohue, Newcombe & Cardoza, for resp’t.
   Per Curiam.

It appears that on the 1st of March, 1890, an action was instituted in the city court by one David Rosenbaum, ns plaintiff, against Felicia Denison to recover upon three promissory notes. By proceedings subsequently instituted in the supreme court said Felieia Denison was declared to be a lunatic, .and a committee of her estate was appointed by this court. 'Thereafter a motion was made by the plaintiff to substitute the •committee as defendant in that action, which motion was granted, and thereafter a supplemental complaint having been served an .answer was interposed, in which the defense was relied upon that the action could not be maintained, for the reason that no permission had been granted to sue the committee - of the lunatic. Notwithstanding this objection the city court proceeded and judgment was entered against the committee, and upon a motion being made in this court proceedings upon such judgment were permanently stayed, and from such order this appeal is taken.

We think that the committee had the right to rely upon the •defense set forth in the answer that no leave to sue had been .granted, and that in consequence of such defense the city court had no right to proceed in the action; and that, therefore, the •order restraining the enforcement of the judgment was properly .granted.

It has been expressly held in a number of cases that the supreme •court has authority to restrain the enforcement of asserted claims against a lunatic’s estate, and to compel the claimant to establish his demand as it may prescribe.. In re Otis, 101 N. Y., 582; In re Beckwith, 87 id., 503; Carter v. Beckwith, 128 id., 312-16; 40 St. Rep., 343; Code Civ. Pro., §§ 2320, 2321, 2322, 2339.

The court having the power, was justified under the facts shown "in making the order appealed from and it should be affirmed, with ten dollars costs and disbursements.

With respect to the second order appealed from, denying the .application for leave to sue the committee nunc pro tune, this also, we think, should be affirmed.

Upon the facts appearing the learned court very properly said that the proper procedure in a case of this kind would be to institute an independent action by leave of the court against the lunatic and against the committee, and the whole merits of Rosenbaum’s case might be determined in such an action. This course •can result in no injustice to Rosenbaum; he having proceeded in the action against the lunatic without the permission of the court which was essential to its maintenance, should now be required to-do what was necessary to enforce his claim against the lunatic.

We think, therefore, that this order also should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    The Apollinaris Co., Limited, App’lt, v. George W. Venables et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Injunction—Damages—Determination as to right to.
    Where the gravamen of the action is the plaintiff’s right to an injunction, a judgment dissolving a preliminary injunction and dismissing the complaint is an adjudication that no Tight to the preliminary injunction ever existed, and entitles the defendant to a reference to ascertain the damages sustained thereby.
    Appeal from order appointing a referee to ascertain and assess-the damages sustained by the respondent by reason of the preliminary injunction issued herein.

      H. Melville, for app’l-t; I. A. Fnglehari, for resp’
   Per Curiam.

The appellant, a foreign corporation, brought this action to restrain the respondents from using certain labels which the complaint alleged infringed upon its trade mark rights. On motion of the plaintiff a preliminary injunction was issued and subsequently an order was made dissolving the injunction and dismissing the complaint, and a final judgment was entered dissolving such injunction and adjudging that the complaint be dismissed, with costs. Thereupon this motion was made and granted.

It is urged that the court had no power to grant this motion, because there had been no decision as to the plaintiff’s rights at the time the injunction was granted, and our attention is called to the cases of Palmer v. Foley, 71 N. Y., 106; Musgrave v. Sherwood, 76 id., 194; Benedict v. Benedict, id., 600; Johnson v. Elwood, 82 id., 365; and Delafield v. Commercial Tel. Co., 22 Abb. N. C., 450. But it will be observed, upon an examination of those cases, that they have no application to the state of facts presented by the record upon this appeal.

It appears that the gravamen of the action was the plaintiff's; right to an injunction, and that the preliminary injunction was-granted upon the theory that the plaintiff had a good cause of action for a permanent injunction as against the defendants. It. was not auxiliary to the cause of action declared upon in the complaint, but, as already stated, was the cause of action.

The action was instituted for the purpose of obtaining this permanent injunction. When, therefore, by the judgment of the-court the preliminary injunction was dissolved and the complaint: dismissed, it was an adjudication by the court that the plaintiff had no right to maintain this action for an injunction. And it. was therefore an adjudication that as the preliminary injunction •depended upon the right to maintain the action for a permanent injunction, no right to the preliminary injunction ever existed.

It would seem, therefore, that the order was properly made and .should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Van Brunt, P. J.

text:
    In the Matter of Ida A. Batterson, Resp’t, v. Sidney Osborne, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Attorneys—Summary proceedings to compel payment of money COLLECTED.
    The mere fact that the moneys in question were collected on the settlement of an action brought in another state will not deprive the court of power to compel an attorney by summary proceedings to pay the same over to his client.
    3. Same—Counsel fees.
    Where the attorney has agreed that his client is to receive a specified sum, and the settlement was based upon such agreement, he cannot be heard to say that more money is required to pay counsel fees and disbursements.
    Appeal from order directing attorney to pay moneys collected by him.
    The appellant was employed by respondent in an action for divorce in Hew Hampshire, which was settled, and the sum of ¡|>3,500 received by him thereon. The settlement was agreed to by respondent on the theory that she should receive $2,500, exclusive of costs and expenses: but appellant refused to pay over -that amount, claiming that more money was needed for counsel fees and disbursements.

      II. A. Sperry, for app’lt; G. A. IJeshon, for resp’t.
   Van Brunt, P. J.

There does not seem to be any reason ■shown upon these papers for a disturbance of the order made in .the court below.

The only grave question which seems to be presented upon this ¡appeal is as to whether the relation of attorney and client existed between the respondent and the appellant. That such relation did exist, however, has been abundantly established by the .papers, and the mere fact that the action which had been commenced was brought in another state does not relieve the appellant from the obligations resting upon him as an attorney and ■counsellor of this court. He was employed by the respondent because he was an attorney and' as an attorney; and it was as such attorney that the services, whatever they were, were rendered to the respondent; and it was because of his being an attorney •that he was called upon to render such services. Therefore, he came within the power of the court by summary proceedings to ■compel the performance of the duties which he had taken upon himself.

It clearly appears from the papers contained in this record that the only authority for the appellant to make the settlement which was made was upon the theory that the respondent should receive the $2,500 without any costs or counsel fees being deducted therefrom. It is true that a stipulation was signed by which she agreed to take the sum of $3,500. But this in no way conflicts with her claim, as the additional sum over the $2,500' may very well have been supposed by her to be applicable to the payment of the counsel fees and expenses.

The claim that the appellant was in no sense the agent of the respondent respecting these deductions, but the agent of the husband and bound by his instructions, cannot be sustained. The-money was undoubtedly paid to him as representing the respondent The instructions to pay counsel and disbursements were general, and in view of the fact that this appellant had agreed that his client should receive $2,500, and that the settlement was based upon this agreement, he cannot now be heard to say that, more money is required to pay the counsel fees and disbursements.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien and Patterson, JJ., concur.


text:
    In the Matter of the Petition of Michael Duffy to Vacate Assessment.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Municipal corporations — Assessments — Laws 1858, chap. 338 —Continuance.
    In 1873 petitioner served a petition under Laws 1858, chap. 338, alleging fraud or irregularity in an assessment proceeding, and gave notice that it would he presented to the special term on a day specified and proofs taken in support of its allegations. On the day specified petitioner did not. appear, but in 1890, after payment of the assessment, another notice was-, served by which he sought to continue the proceeding. Held, that the mere service of the notice, not followed by any proceeding under it, was ineffectual to commence any special proceeding under the statute, and that the application should have been denied.
    Appeal from an order denying a motion to dismiss an applies tian for a reduction or vacation of an assessment.

      George L. Sterling, for app’lt; Elliott Sandford, for resp’t.
   Per Curiam.

By § 1 of chapter 338 of the Laws of 1858, the-act under which this proceeding was instituted, it is provided that. “If in the proceedings relative to any assessment or assessments for local improvement, in the city of New York, or in the proceedings to collect the same, any fraud or legal irregularity shall be alleged to have been committed, the party aggrieved thereby may apply to a judge of the supreme court in special term, or in vacation,, who shall thereupon, upon due notice to the counsel of the corporation of the city in which the land so assessed is situated, proceed! forthwith to hear the proofs and allegations of the parties.’’

In pursuance of this provision of the statute, the petitioner served upon the counsel to the corporation a petition, alleging fraud or legal irregularity, in proceedings relative to an assessment specified in the petition, and gave notice to the counsel to-the corporation of the city of New York that the petition would be presented, at the special term, of the supreme court, to thé justice holding the same at the chambers of said court, in the court house, in the city of New York, on the 24th day of October, 1872, and proofs taken in support of the allegations therein contained, and a motion made thereon that the prayer of the said petition be granted ; and endorsed upon that petition and notice was an admission of service thereof, and a consent that the proofs be taken forthwith, such endorsement being dated October 22, 1872. No further proceedings were taken, no application made to the court or a justice thereof at the time specified, and no proofs at any time taken.

On or about November 12, 1890, a notice was served upon the counsel to the corporation, whereby notice was given that the petitioner would apply to a judge of the supreme court, on the 20th of November, 1890, by which the petitioner sought to continue the proceeding. On the return of this notice, the counsel for the corporation moved to dismiss the application, which application was denied, and from that order denying the motion to dismiss, this appeal is taken.

These additional facts also appear; -that the assessment sought to be vacated was confirmed in January, 1872, and was paid in 1876 and 1878.

The act of 1858 contemplated the taking of proof before the court, or a justice thereof, and upon that proof an application to the court or a justice to vacate the assessment,!and the notice that was required was a notice'that the party aggrieved would, at the time and place specified, offer such proof, and make such application. The admission of the corporation counsel of the receipt of the notice, and bis consent that the proof be taken forthwith, ■dated in October, 1872, was nothing more than a consent that on the day named in the" notice the petitioner could present his petition to the court, and could then offer such proof to be taken by the court as he should be advised. It did not authorize or ■consent that the proceeding should be commenced or should ■continue until such time as the petitioner saw fit to revive it; .and the corporation counsel, so far as appears, might have attended in court on the return day of the notice, ready to proceed, but upon the failure of the petitioner to appear concluded that the proceedings had been abandoned. It was the application to the court, who was thereupon to take the testimony in pursuance of the notice, that commenced the proceeding, and the notice was merely such as was required, in such cases, to notify the corporation counsel that, 'at the day named, the petitioner would initiate the proceeding. The essential difference between such a .proceeding as this and an action is that by the service of a-sum-mans the action is commenced and then continues until finally dismissed or discontinued; but here the commencement of the proceeding was the taking of the testimony, before the court, in pursuance of the notice given, and the mere service of the notice, not followed up by any proceeding under it, was ineffectual to commence any special proceeding under the provision of this statute. The proceeding therefore not having been in fact initiated, we think the court below should have denied the petitioner’s application for leave to take proof. The question here, presented was not passed upon by the court of appeals in the Matter of Rosenbaum, 119 N. Y., 24; 28 St. Rep., 607, for there it appeared that the proof had been taken, and the proceeding thus actually initiated, and the court there held, that the mere fact that the petitioner had not continued the proceedings, after they were once initiated, was not a reason for denying him the relief to which the proof showed he was entitled. The order appealed from should therefore be reversed, with ten dollars costs- and disbursements, and the notice to dismiss the application granted.

Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    In the Matter of the Will of John Patterson, Deceased.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)
    1. Will—Probate—New trial cannot be granted by surrogate after. TRIAL OF ISSUES DIRECTED ON REVERSAL OF DECREE.
    The surrogate of the county of New York has no jurisdiction, after trial of issues on a contested probate in the court of common pleas before, a jury, to entertain an application for a new trial of the same.

      2. Same.
    In probate cases, where there has been an appeal to the supreme court, the verdict must be certified to and further proceedings had in that court, whether the trial of issues framed by the supreme court has been had at a; circuit court or in the court of common pleas.
    Appeal from order of the surrogate, denying motion for new trial made before the surrogate after a trial of the issues in the court of common pleas before a jury, upon the ground that the-surrogate had no power or jurisdiction to grant the same.

      W. H. Hamilton, for app’lt; Henry Hoyt, for resp’t.
   Per Curiam.

The will of the deceased was presented to the. surrogate for probate and after a contest was admitted by him to, probate. An appeal was taken from the decree of the surrogate, admitting such will to probate, to the supreme court. Upon the hearing of such appeal by the general term, the decree of the surrogate was reversed; and issues of fact were framed and directed to be tried in the court of common pleas before a jury. Such trial having taken place, and a verdict having been rendered upon the issues so framed, which verdict appears to have been certified by the clerk of said court of common pleas, and filed by the appellant herein in the office of said .surrogate, thereupon an application was made to the surrogate for a new trial upon the exceptions taken at the trial, and because the verdict, was rendered upon insufficient evidence and against the weight of evidence, and as otherwise contrary to the evidence and contrary to law, which motion was denied by the surrogate upon the ground that he had no power or jurisdiction to entertain the same and from the order thereupon entered this appeal is taken.

In this disposition of the motion we think the learned surrogate was clearly right, as there is no authority by any provision ■of the Code conferring upon the surrogate the power to entertain the motion for a new trial in a case like the present.

It is claimed by the counsel for the appellant that such power is conferred by §| 2588 and 2548 of the Code. An examination of those sections, however, we think, will demonstrate the fact that they are not susceptible of the construction claimed by the appellant Sections 2547 and 2548 primarily relate entirely to controverted questions of fact arising in a special proceeding for the disposition of real property by a decedent, and have no application to proceedings for the probate or to revoke the probate of a will.

Section 2588 relates to the practice which shall be followed upon a reversal or modification of a decree of the surrogate by the supreme court upon a question of fact in a probate proceeding. It is provided that the court must in such a case, direct a trial by a jury of the material questions of fact arising upon the issues between the parties; and that it must direct the trial to take place •either at a circuit court specified in the order, or in the county ■court of the county of the surrogate, or, in the city of New York, in the court of common pleas.

In the case at bar the supreme court having reversed the decree of the surrogate upon questions of fact, an order was made directing certain specified issues to be tried in the court of common pleas.

The question is now presented as to how after such a trial the results of that trial are to be reviewed. -And it is provided for •explicitly by the last clause of § 2588, which provides that a new trial may be granted as prescribed in § 2548. And it is upon the construction which is to be placed upon this clause that the question here presented, as to the proper practice, must be determined.

In determining this question it is necessary in the first place to bear in mind the effect of an appeal to the supreme court from the surrogate's court. A probate proceeding by such appeal is removed into the supreme court. The supreme court becomes a court of original jurisdiction and has the same power to decide questions of fact which the surrogate had; and may, in its discretion, receive further or documentary evidence and appoint a referee. § 2586.

By § 2587 the supreme court may reverse, affirm or modify the decree or order appealed from and each intermediate order specified in the notice of appeal, which it is authorized by law to review as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing. And by § 2585 it is provided that the judgment roll containing the judgment of the appellate court shall be filed in the office of the clerk of the county of the surrogate from whom the appeal is taken. And the sole ■authority which the surrogate has for his subsequent action in the case is derived from the judgment roll so filed. It is thus apparent that when- once an appeal of this kind is taken, the whole proceeding becomes a proceeding in the supreme court, and remains in such court qntil formally remitted back to the surrogate, and until it is so remitted the orders and decrees in the proceeding must be orders and decrees of the supreme court. We-think, therefore, that the only portion of § 2548 which was intended to be referred to in § 2588 were the cases in which a new trial might be granted, and not the tribunal which should entertain the application therefor, the particular practice relating to-such motions being governed by the other provisions of the Code in reference to actions or proceedings pending in the supreme court. And this view is supported by the fact that § 2548, where it speaks of the tribunals which are to entertain the motion, expressly refers to the cases provided for in § 2547.

In those cases, the proceedings are all in the surrogate’s court, and the direction for the trial of the issues proceeds from the surrogate’s court, and even where they are sent to a circuit court, the motion for a new trial may be made before the surrogate, or in the supreme court; in the supreme court because the circuit court has no power to entertain motions for new trials, except upon the judge’s minutes; and such motions are not appropriate-in a case where issues have been framed in another court and sent, by such court to a circuit court for trial. In a probate case where-issues have been framed by the supreme court and sent to a circuit court for trial, it never has been claimed that the surrogate had any further jurisdiction of the case, except to proceed in accordance with the final judgment in the case.

It would be an anomaly which it cannot be supposed the-legislature intended, that in the case of issues sent from the supreme court to the court of common pleas for trial, the surrogate having lost all jurisdiction of the proceedings to probate by the-appeal to the supreme court, that a motion for a new trial might, be entertained by the surrogate, while in the case of issues sent, under precisely similar circumstances to a circuit court, the supreme court only could entertain such a motion; the authority for-sending the issues for trial being derived from the same section of the Code, viz., § 2588, and exercised under precisely the same-circumstances.

In the cases mentioned in § 2548, where the power to grant new trials is conferred upon the surrogate, the surrogate retains-jurisdiction of the proceedings; and, as has already been stated,, the direction for the trial of the issues proceeds from the surrogate’s court, the clerk of the court where the trial is had being required to certify the verdict to the surrogate's court for further-proceedings thereon, whether such trial be had in a county court or a circuit court. It is, therefore, apparent that it was the intention of the legislature in the enactment of the last clause of § 2588 only to specify the circumstances under which motions, for new trials should be entertained in a case mentioned in that, section. In probate cases where there has been an appeal to the-supreme court, therefore, the further proceedings must be had in that court, and the verdict certified to that court for further proceedings thereon, whether the trial of the issues framed by the supreme court be had at a circuit court or in the court of common pleas.

The surrogate, therefore, had no jurisdiction to entertain the motion, and the order appealed from should be affirmed, with tern dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Van Brunt, P. J. Ingraham, J.

text:
    Deborah Scragg, Resp’t, v. George H. Scragg, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Divorce—Jurisdiction.
    Where the plaintiff is a resident of this state and was a resident when the offense was committed and the action commenced, and the marriage was solemnized in this state, the courts of this state have jurisdiction of an action for divorce, irrespective of the residence of the defendant or the-service of process upon him in this state. Service by publication when he is a non-resident is sufficient.
    3. Same—Alimony.
    Where the defendant admits that he is receiving twenty-five dollars per week, an allowance of ten dollars per week for the support of his wife, and three children is not excessive.
    Appeal from order directing the defendant to pay counsel fee-, and alimony in an action for divorce.

      L. L. Tenney, for app’lt; L. Cohen, for resp’t.
   Van Brunt, P. J.

This action was commenced in July, 1891,, by the issuance of a summons and complaint herein, and was. brought for an absolute divorce upon the ground of the adultery of the defendant.

In August, 1891, in consequence of the absence of the defendant from the state, he being a non-resident, an order was made directing the summons to be served by publication and it was so-served.

The defendant appeared specially to raise -the question of jurisdiction and interposed a verified answer setting up the want of jurisdiction of the court over his person, and as a separate defense denying every charge of adultery alleged in the complaint

It appears that the plaintiff is a resident of this state, was a resident of this state when the offence was committed, and when the action was commenced, and that the marriage was solemnized within this state.

It is urged upon the part of the appellant that alimony will not-be granted where it clearly appears that the plaintiff cannot succeed in the action, and that no valid judgment of divorce can be rendered against the defendant because the court has obtained no jurisdiction over his person; and we are referred as authorities-for this proposition to’ the cases of People v. Baker, 76 N. Y., 78; O'Dea v. O'Dea, 101 id., 23; Jones v. Jones, 108 id., 415; 13 St. Rep., 838; and Cross v. Cross, 108 N. Y., 628; 13 St. Rep., 470. These cases by no means establish the claim made upon the part of the defendant

The facts alleged in the complaint by the express provisions of the Code gave jurisdiction to the courts of this state to entertain the action, and the principal grounds upon which the decrees in the cases of The People v. Baker and O'Dea v. O'Dea were held not to be binding in this state was because the divorce had been granted in the state of Ohio upon grounds not recognized by the laws of this state, and against the public policy of this state upon that subject. And in the case of Cross v. Cross, one of the elements which entered into the consideration of the court was the fact that the defendant never had any notice of the proceeding.

It will be seen, therefore, that the cases cited in no way conflict -with the jurisdiction of this court to entertain the action upon the grounds specified in the complaint.

It is further urged that no facts are presented which tend to prove the defendant’s adultery or to justify the bringing of the .action. In respect to this point it seems to be sufficient to say that the defendant himself admits having committed adultery with one of the persons charged in the complaint, and the only •defense offered was that it had been condoned and was prior to the date alleged in the complaint. But there is evidence before the court showing that the person with whom this adultery was admitted to have been committed remained a member of his household until after the date at which it is alleged in the complaint that adultery with her was committed.

In respect to the amount of the alimony the affidavit of the defendant throws but little light upon the amount of his income or his ability to pay. He merely negatives certain assertions made in the plaintiff’s affidavit, by alleging that he earns sums less than tliose which are stated in this affidavit. It is true that he states that he is now receiving twenty-five dollars a week; and even if this be the limit of his income, the allowance of ten dollars per week for the support of his wife and the three children does not seem to be in any degree excessive.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs.

Ingraham, J.

I concur with the presiding justice that the order appealed from should be affirmed. The legislature has given this court jurisdiction to decree a divorce where the plaintiff was a resident of the state when the offense was committed, and is a resident thereof when the action was commenced, or where the parties were married within this state, irrespective of the residence of the defendant, or the service of process on him within this state. Whether or not other states or foreign countries will recognize a decree granted where the defendant is not personally served within this state, or does not appear in the action, cannot affect the jurisdiction of this court, or the validity of the decree within this state. It is enough for us that by express provision of law this court is given jurisdiction to entertain this action, and to make a decree which will be valid in this state, and in an action brought for a divorce the court is by express1 provision of.the Code given power to grant alimony and counsel fee. The fact that this court has refused to recognize judgments rendered in courts of other states where such courts have not obtained jurisdiction over the person of the defendant by service of process upon him within the state in which the divorce is granted is no reason why the courts of this state should refuse to exercise the jurisdiction expressly given to them by law.

I also concur with the presiding justice that the amount awarded by the order appealed from was under the circumstances' reasonable.

Order affirmed, with ten dollars costs and disbursements.


author: Landon, J.

text:
    Antoinette Macauley, App’lt, v. Robert H. Smith et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed May 3, 1892.)

    1. Deed—When intended as a mortgage.
    T. being the owner of certain premises, in 1871 conveyed them by deed, and took back an agreement stating that the conveyance was to be made as a security for a loan for a term not exceeding one year; ihat if the loan was repaid within the year the grantees would reconvey; if not, the deed was to be absolute, which agreement was never recorded. The loan was-not repaid,.and at the end of the year the grantor surrendered the premises, and the same were afterwards sold to defendant. In an action by judgment creditors of T., Held, that the deeds were intended as mortgages, and the trial court erred in refusing plaintiff’s request to so find, and that, the title did not pass to the grantees, but remained in T.
    2. Same—Bona fide purchaser.
    This defendant, in order to maintain the defense that it is a bona ftde purchaser without notice of plaintiff’s rights, must have paid all the purchase money, but is entitled to protection to the extent of the payment made.
    Appeal from a judgment of the general term of the fifth department,- affirming a judgment of the Monroe equity term dismissing plaintiff’s complaint on the merits.
    The action was brought to have certain conveyances of real estate by warranty deeds declared to be mortgages, and to have the real estate adjudged to be subject to the lien of a certain judgment recovered by the plaintiff against the grantor in such deeds, and an execution issued thereon. The action in which the judgment was entered was for the recovery of money only, and was commenced in August, 1879, by this plaintiff against Lucilia Tracy by publication of a summons against the defendant therein as a non-resident, and an attachment was at the same time issued against her property, which was in form levied upon the real estate in question. Judgment by default was entered in that action in July, 1883, and an'execution issued thereon to the sheriff of the county where the property was situated, which execution has since been held by the sheriff.
    On and prior to the 6th day of July, 1871, Lucilia Tracy was the owner and in possession of two parcels of real estate on Alexander street, in the city of Eochester, upon one of which parcels there were two mortgages of $5,000 and $2,000, respectively. On the 5th day of July, 1871, she entered into an agreement in writing with the defendants, Eobert H. Smith and Calvin Tracy, and one Slocum Howland, since deceased (who is represeated in this action by the defendants, William and Emily How-land, as his executors), whereby, in consideration of and for the purpose of securing a loan of $8,240, she agreed to execute and deliver to them a good and sufficient warranty deed of both parcels of land above mentioned, and the agreement proceeds as follows: “And the said Howland, Smith and Tracy, in con-
    sideration of, and before the execution and delivery of, said deed, hereby agree to advance the said sum of $8,240 (in a manner •specified) to the said Lucilia Tracy. It is also hereby agreed by and between the parties hereto that the said deed is. to be and is a security for said loan for a term not exceeding one year from the date of said deed, which is to be hereafter executed; ;and that upon the repayment of said sum of $8,240, with interest, within or at the expiration of said one year, by the said Lucilia 'Tracy, her heirs, executors, administrators or assigns, the said Howland, Smith and Tracy, their and each of their heirs, executors, administrators or assigns, are to re-convey said premises so ■conveyed to said Lucilia Tracy, her heirs, executors, administrators and assigns, free from all incumbrances or liens thereon, •except such as exist and are liens or incumbrances upon said premises at the time of the conveyance thereof as aforesaid by the said Lucilia Tracy."’ “And in case the said sum of $8,240 shall not be repaid during or at the expiration of one year, as .aforesaid, then it is understood and agreed that the said deed, so as aforesaid to be executed by the said Lucilia Tracy, is to become and be a deed absolute, and the said Howland, Smith and 'Tracy, or their heirs or assigns, are to become and be the owners thereof in fee simple absolute.”
    Accordingly on the following day Miss Tracy executed and delivered to the other parties to the agreement deeds of the two parcels of land, containing the usual covenants of warranty, which were on the same day duly recorded in the clerk’s office of Monroe county, in and by one of which deeds the grantees, as part ■consideration of the conveyance, assumed the payment of the ■two mortgages above mentioned, but did not covenant to pay them. The loan was not repaid, and in December, 1872, the :grantor, having remained in possession of the premises for about two years after the date of the deeds, quit and surrendered possession of the premises- to the grantees, who .remained in possession thereof, by tenants or otherwise, until the 1st of January, 1875, when they sold and conveyed the same to the defendant, the New York-Baptist Union for Ministerial Education, which has ever ■since been in possession of the premises claiming title thereto.
    The debts for which plaintiff obtained judgment against Lucilia Tracy were contracted prior to January 1, 1872. The agreement ■of July 5, 1871, was never recorded, and the defendant, the Baptist Union, had no notice thereof at the time of its purchase of the property.
    It is conceded on the part of the plaintiff that her j udgment against the grantor in the deeds above mentioned is of no force ■or effect for the purposes of this action unless as a judgment in

      rem by virtue of a levy of the attachment upon the property in question. Code of Civil Procedure, § 707.

      John Van Voorhis, for app’lt; Rollin Tracy, for resp’ts.

       Reversing 32 St. Rep., 745.

   Landon, J.

The agreement, which antedated the deeds by one day and expressed their intent and purpose, should be read in connection with them. Thus read, the deeds are shown to have been given by Lucilia Tracy to Howland, Smith and Tracy “ for the purpose of securing and in consideration of said loan of $8,240 made by the grantees to the grantor, and “ that the said deed * '5i * is a security for said loan for a term not exceeding one year from the date of said deed * * * and that upon the repayment of said sum of $8,240, with interest within or at the expiration of one year by the said Lucilia * * * the said Howland, Smith and Tracy are to re-convey said premises to said Lucilia, * * * and in case said sum of $8,240 shall not be repaid during or at the expiration of one year as aforesaid, then it is understood and agreed that the said deed * * * is to become and be a deed absolute, and the said Howland, Smith and Tracy are to become and be the owners in fee simple absolute.”

The deeds are thus clearly shown to have been intended as mortgages. This conclusion is also inferable from the facts. The premises at the date of the deeds were worth $30,000. The judgments against .the premises were by the terms of the agreement to be paid from the money loaned, and presumably were either paid ■or their amount retained by the grantees from the $8,240. The amount of the outstanding mortgages against the premises was :$7,000. It is not presumable that Lucilia Tracy intended to sell property worth $30,000 for $15,240. The grantor remained in possession of the premises for about two years after the delivery of the deeds. She was embarrassed and straitened for money. Stress is laid by the defendants upon the fact that the grantor did not expressly covenant to repay the money. The cases are to the effect that this is one óf several circumstances to be considered, Horn v. Keteltas, 46 N. Y., 605; Morris v. Budlong, 78 id., 552; Brown v. Dewey, 1 Sand. Ch, 57, and here it is to be considered in connection with the repeated statement that the money to be advanced by the grantees is a loan and that “said deed is a security for said loan, for a term of not exceeding one year ” and that upon re-payment the grantees should re-convey to the -grantor. It is plain that re-payment of the loan was contemplated ; nothing is said of the re-payment of purchase money, and there is nothing in the agreement indicating that the money advanced by the grantees was purchase money, except that in case said sum of $8,240 (previously termed a loan) should not be repaid at the expiration of one year, “ then it is understood and agreed that the said deed is to become and be a deed absolute ;” thus clearly indicating that at the date of the transaction said sum was not purchase money and said deed was not a deed absolute, but was to become so in case of non-payment of the loan. Clearly upon the undisputed facts the deeds were a mortgage to-secure the money loaned, and the trial court erred in refusing the-plaintiff’s request so to find. The agreement that the non-payment of the loan within the time specified should convert the mortgage into an absolute deed did not have that effect.

The agreement to turn a mortgage into an absolute deed in case of default is one that finds no favor in equity. The maxim “oncea mortgage always a mortgage ” governs the case. Horn v. Keteltas, supra; Murray v. Walker, 31 N. Y., 400; Carr v. Carr, 52 id., 251; Remsen v. Hay, 2 Edw. Ch., 535; Clark v. Henry, 2 Cow., 324; Morris v. Ex’r of Nixon, 1 How. U. S., 118; Villa v. Rodriguez, 12 Wall., 323; 4 Kent’s Com., 143. Since the deeds were a mortgage the title did not pass to the grantees, but remained in Lucilia Tracy. Barry v. Hamburg-B. Fire Insurance Co., 110 N. Y., 1; 16 St. Rep., 634; Thorn v. Sutherland, 123 N. Y., 236; 33 St. Rep., 408; Shattuck v. Bascom, 105 N. Y., 46; 6 St. Rep., 775.

The levy under the plaintiff’s attachment was, therefore, upon Mrs. Tracy’s land, to which she had the legal title. It was not. merely an attempted levy upon her equitable right to obtain title. As against Howland, Smith and Tracy the levy was valid, and the judgment and execution which followed the attachment became a specific lien upon the land itself, and the land could be sold upon execution.

Howland, Smith and Tracy conveyed the premises before the attachment was issued to the defendant, the New York Baptist Union for Ministerial Education. This defendant, by its answer, admits that $3,000 of the purchase mone.y, with interest from January 1, 1883, remains unpaid, and that $1,550 of the principal of one of the mortgages upon the premises given by Mrs. Tracy also remains unpaid. This defendant, in order to maintain the defense that it is a bona fide purchaser without notice of plaintiff’s rights, must have paid all the purchase money. Sargent v. Eureka B. A. Co., 46 Hun, 19; 11 St. Rep., 68; Harris v. Norton, 16 Barb., 264; Jewett v. Palmer, 7 Johns. Ch., 65; Jackson v. Cadwell, 1 Cow., 622; Boone v. Chiles, 10 Peters, 179; Patten v. Moore, 32 N. H., 382.

In equity it has not completed its purchase, but to the extent, of its payments innocently made before notice of plaintiff’s claim is entitled to protection. It may, therefore, retire from the transaction without actual loss, and without impairing "the rights of the plaintiff.

The action is in aid of plaintiff's execution. Its object is not. to reach any equitable assets of Mrs. Tracy, but to strip from her legal title to the premises in question the obstructions created by the deeds by which such title apparently, but not in fact, passed from her to Howland, Smith and Tracy, and from them to the Baptist Union, and thus to show that the lien acquired by plaintiff’s attachment of the premises, and perfected by her judgment and execution, was valid, and therefore • may now be enforced free from the obstructions which seemed to defeat it. Such, an action is within the equitable jurisdiction of the court. Beck v. Burdett, 1 Paige, 305: Heye v. Bolles, 33 How. Pr., 266; Rinchey v. Stryker, 28 N. Y., 45; Frost v. Mott, 34 id., 253. Thurber v. Blank, 50 id., 80, does not hold otherwise, but does hold that the attachment to be effective must operate upon legal rights; the precise position of the plaintiff here.

The judgment should be reversed, and a new trial granted; -costs to abide event.

All concur.


text:
    Henry Oberlies, App’lt, v. Balthasar Bullinger, Resp’t.

      (Court of Appeals, Second Division,

      Filed May 3, 1892.)

    -Contract—Performance.
    A building contract provided that the ridge of the roof of a rear addition should be eleven feet above the floor of the attic. By an error in construction it was five inches lower. The error was not discovered by either party or the architect until after the house was completed. The architect employed testified that with this exception, and some minor details which the contractor remedied, the work was satisfactory. All the witnesses testified that this did not affect the exterior appearance of the house, which was in every respect as useful and valuable as though the deviation had not been made. Held, that the court erred in nonsuiting the plaintiff, and holding that as a matter of law the contract had'not been substantially performed.
    Appeal from a judgment of the general term of the supreme ■court, in the fifth judicial department, entered upon an order sustaining a nonsuit and overruling exceptions ordered • to be heard at general term in the first instance.
    June 2, 1887, the parties to this action entered into a written -contract, by which the plaintiff agreed to build for $3,050 a •dwelling for the defendant and complete it on or about November 1st of that year. The defendant paid $1,900 on the contract, and •this action was brought to recover $1,150, the remainder of the contract price, and $73.75 for extra work claimed to have been done. The action was defended on the ground that the building was not constructed in accordance with the plans, and specifications. At the close of the plaintiff’s case the defendant moved for a nonsuit, oh the ground “ that the plaintiff has not shown facts sufficient to constitute a cause of action, and especially he has not shown performance of the contract.” The motion was .granted, and the plaintiff duly excepted. The plaintiff asked to go to the jury upon the question of substantial performance, which was denied, and exception taken. The plaintiff also asked to be permitted to go to the jury upon his right to recover the value of the extra work claimed to have been done in changing the front ■stairway, for which he claimed forty-eight dollars. This request was denied, and an exception taken. These exceptions were ordered to be heard in the first instance at general term, where they were overruled,- and a judgment ordered for the defendant, with costs, upon the order of the circuit.
    The plaintiff appeals to this court.

      Abraham, Benedict, for app’lt; Walter S. Hubbell, for resp’t.

         Reversing 33 St. Rep., 443.

   Per Curiam.

The. contract contains this provision:

Fourth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall; be decided by Oscar Knebel, architect, employed by party of the-second part (defendant) to superintend the construction of the said building, with a view to the due execution of the work on the-part of the party of the first part (plaintiff), and his decision shall be final and conclusive; but should any dispute arise as to the-true value of the alterations, deviations, additions or omissions in the work or materials hereby contracted for, the value in dispute shall be determined by two competent persons, one employed by the party of the first part and the other by the party of the-second part, and they shall have power to name an umpire, whose-decision shall be binding on all parties.”

The defendant seeks to uphold the non-suit on the ground that-an arbitration to settle the amount due under the contract was a, condition precedent to the plaintiff’s right to recover, and that having failed to show that an arbitration has beep had, or that he has offered to arbitrate, he was not entitled to recover. The answer to this position is that this question was not raised on the trial. The contest at circuit was whether there was a deviation from the plan, and whether the work and materials were of the kind and quality called for by the contract. Ho other questions-are suggested by the record, and had the defendant raised this-objection, the plaintiff might have shown that the defendant had refused to arbitrate, or that an arbitration had been waived. Having regard to the course of the trial we do not think the defendant’s motion for a non-suit raised this question.

. The plan, which was a part of the contract, required that the-ridge of the roof to the portion of the house known as the back or rear addition should be eleven feet above the floor of-the attic. By an error in construction it was but ten feet and seven inches-above the floor, five inches lower than called for by the plan.. The undisputed evidence shows that this was caused by a mistake-in measurement and was not discovered by either party, or by the-architect, until after the house had been completed. The architect employed by the defendant was called as a witness by the-plaintiff, and he testified that after the plaintiff claimed that the-contract was performed, he made two personal inspections of the-building. He said: “ The general work of the house was satisfactory to me; the character was in keeping with the specifications and the contract in every respect, with the exception of some minor details which I pointed out to the contractor, and had him remedy them. I went there the third time after that was remedied, and gave him that certificate (the one in evidence), which I consider informal

“ Q. Do you know whether Mr. Oberlies remedied all the-defects which you pointed out and wanted corrected ? A. He-did at the time, with the exception of the roof. I saw they were-all remedied; in regard to the back roof I found it lower than the drawings showed; about five inches; that is, of course, as it stands, and not five inches on the plans; five inches in reality ; it shows-the rear portion of the roof five inches lower; it lowers the interior of the attic five inches * * * I don’t know of any use to which an attic five inches higher than this one could be put which is prevented by this deficiency in height.

“ Q. What effect, if any, would this deficiency have in height, or this roof as it now stands, upon the appearance of the building ; in other words, what is the appearance of the building as it stands to-day? A. This roof has not detracted * * * the house looked finished in every respect outside * * * it was built symmetrically; I consider it as symmetrical; I think it was as symmetrical then as it would have been if that roof had been five inches higher; I don’t think this roof is any weaker in any respect than it would be if it were five inches higher.”

All of the witnesses testified that this deviation in the plan did not affect the exterior appearance of the house, which was in every respect as useful and valuable as though the deviation had not been made. Upon this question there was no conflict in the evidence and this was the ■ principal defect in the construction alleged as a total defense to this action. It was alleged that there were some other minor defects in the construction, but the evidence given on the part of the plaintiff did not show that they were so material that the court was authorized to hold as a matter of law that the contract had not been substantially performed. It may well be that when the evidence of the defendant shall be produced that it will appear that this contract was not substantially performed, but as the evidence stood we think the court erred in non-suiting the plaintiff and that for this error the judgment must be reversed and a new trial granted, with costs to abide the event.

All concur.


author: Vann, J. Parker, J. Bradley, J.

text:
    Gavin J. Moffatt, App’lt, v. Robert Fulton, Impl’d, Resp’t.

      (Court of Appeals, Second Division,

      Filed May 3, 1892.)

    1. Pleading—Execution against the person—Code Civ- Pro., § 549.
    Where the plaintiff intends to arrest the defendant it is sufficient to set forth in the complaint the facts showing that money was received in a fiduciary capacity, without copying the words of the statute.
    8. Same.
    Where a complaint sets forth facts showing that defendant as agent received the proceeds of two notes in a fiduciary capacity and converted them to his own use, it is sufficient, without characterizing those facts or repeating the language of the statute.
    (Parker and Bradley, JJ., dissent.)
    Appeal from a judgment of- the general term of the supreme court in the first judicial department, modifying and affirming as modified a judgment entered on a verdict directed at circuit.
    This was an action to recover the proceeds of two promissory notes, belonging to the plaintiff, claimed to have been received by the defendants in a fiduciary capacity and converted to their own use.

      In the first count of the complaint it is alleged that on the 15th of November, 1886, the plaintiff, a manufacturer of New Haven, Conn., gave to the defendants, who were engaged in business in the city of New York, his promissory, note for $908.75, payable three months thereafter, in consideration of goods sold and delivered. On the 15th of February, 1887, shortly before said note became due, the plaintiff made another note dated that day, but in all other respects a duplicate of the first, and sent it by his agent, one McDowell, to the defendants with the request that they should endorse it “ and have it discounted for cash and remit the funds, less any reasonable charges for commissions and discount, to plaintiff immediately, so that he might pay the said note of November 15th, about to' become due, and to use the proceeds of said note for no other purpose whatsoever. The defendants thereupon informed the said McDowell that they could not have the said note discounted, but if the plaintiff would send them in its place his note for a less amount, paying a portion of the indebtedness represented by the said note of November 15, 1886, they would immediately have the. same discounted and remit the proceeds for the purpose above described. Said defendants requested the said McDowell to leave with them said note dated February 15, 1887, and stated that they would enclose the same on that day to the plaintiff in a personal letter explaining the facts, * * * and use said note for no other purpose. Trusting solely to the honesty and integrity of said defendants, said McDowell left said note with them for the purpose of having it returned immediately to the plaintiff and for no other purpose.” The defendants never returned the note, but procured the same to be sold or discounted through a broker to an innocent holder and on the 21st of February, 1887, received the proceeds of said note, less twenty-one dollars and nineteen cents, deducted for commission and discount, “ in trust to pay the same to the plaintiff forthwith.” They used said proceeds in their own business and refused to pay any part thereof to the plaintiff, to his damage “ in the sum of $887.60, with interest thereon from the 21st day of February, 1887:”
    The plaintiff alleged in the second count of his complaint, that on the 17th of February, 1887, he made his promissory note, bearing the date of February 8, 1887, for $750.60, payable to the defendants, three months after date. “ That thereupon the defendants requested the said plaintiff to deliver said note to the defendants to take the place of the note of February 15, 1887, referred to ” in the first count of the complaint, “ and for the purpose therein more fully set forth, agreeing to endorse said note, have the same discounted or sold, and return the proceeds thereof to the plaintiff forthwith, less the discount and a reasonable commission.” In accordance with said request, and relying on said agreement, the plaintiff “ thereupon * * * delivered said note to the defendants * * * in trust, to endorse and discount or sell the same for cash, and forthwith to pay the proceeds thereof to the plaintiff, less the discount and commission, as aforesaid, and for no other purpose whatever.” The defendants endorsed the note and procured a bank to discount it, and on the fourth of March, 1887, the proceeds, less $8.57 charged for discount and commission, were paid to them, and they used the same for their own purposes, refusing upon due demand to pay any part thereof to the plaintiff, to his damage in the sum of $742.09.
    The summons and complaint were served only on the defendant Fulton, who appeared and answered, pleading, in substance, a general denial, and also a counterclaim, which was successfully demurred to by the plaintiff, on the ground that it alleged “ facts constituting a cause of action arising on contract, while the cause of action arising out of the facts alleged in the complaint is in tort and not on contract.”
    Upon the trial the allegations of the complaint were substantially proved, and the defendant introduced no evidence. It appeared that the plaintiff paid all of said notes at maturity, and that when McDowell left the first note with the defendants they said they would try to have it discounted, and if they succeeded would send the proceeds to the plaintiff, but otherwise they would return the note to him that night, with a letter of' explanation. When the plaintiff left the second note with them they said that there was some doubt whether they could get the other discounted and hence they asked for the smaller one.
    At the close of the evidence the defendant moved to dismiss, the complaint “ on the ground that the facts proved do not constitute either a tort, an actionable conversion, or the fiduciary relation in respect to either cause of action.” The motion was denied, and he thereupon moved that a verdict be directed in his favor on the same grounds. That motion was also denied and a verdict was directed in favor of the plaintiff for $1,789.07, being the net proceeds of the two notes with interest, upon the ground “that the money was received in a fiduciary capacity.” The trial judge also held that the facts alleged were “ sufficient to maintain a cause of action for a conversion." Judgment was entered accordingly, and at the end of the 'postea was this provision: “But this judgment can be enforced only against the joint property of the defendants herein and the separate property of the said defendant Robert Fulton, who was served as aforesaid, and against the person of the said defendant, Robert Fulton.” The defendant Fulton appealed from the entire judgment, and the general term modified it by striking out the words “ and against the person of the said defendant, Robert Fulton,” but affirmed it in all other respects. The plaintiff appealed to this court from that part of the judgment of affirmance which modified the judgment of the trial court.

      Henry W. Taft, for app’lt; Arthur R. Robertson, for resp’t.

       Reversing 31 St. Rep., 154.

   Vann, J.

The Code provides that a defendant may be arrested in certain actions, and, among others, in an action brought to recover damages for “a personal injury, an injury to property, including the wrongful taking, detention or conversion of personal property ; a breach of promise to marry ; misconduct or neglect in office or in professional employment; fraud or deceit; or to recover a chattel, where it is alleged in the complaint that the chattel has been concealed ” in a certain manner and with a certain intent; “ or to recover for money received, or to recover property, or damages for the conversion or misapplication of property, when it is alleged in the complaint that the money was received or the property was embezzled, or fraudulently misapplied by a * * * factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action.” Code Civ. Pro., § 549.

The general term based its judgment of reversal upon the ground that there was no express averment in the complaint that the money in question was received by the defendants in a fiduciary capacity, although one of the learned judges dissented from that .conclusion. Moffatt v. Fulton, 56 Hun, 337; 31 St. Rep., 154. No such point, however, was taken at the circuit. The sufficiency of the complaint was not questioned upon the trial, except by a motion to dismiss, made before any evidence was given, upon the ground that the first count did “not contain facts sufficient to constitute a cause of action, and particularly that it did not set forth facts constituting an action in tortthat the' second count did “ not set forth facts constituting a cause of' action either in tort or on contract,” and that the complaint united “ an alleged cause of action, proceeding upon the theory of tort, with one proceeding on the theory of contract.” The motion at the close of the evidence was not based upon the facts alleged, but on “ the facts proved.” Even, therefore, if it was necessary to specifically allege that the money was received by the defendants as agents, in a fiduciary capacity, advantage could not be taken of the omission for the first time upon appeal, Lounsbury v. Purdy, 18 N. Y., 515; Cowing v. Altman, 79 id., 167; Knapp v. Simon, 96 id., 284. If the point had been raised, a formal amendment might have been allowed.

But, assuming that the question was properly raised, we do not think that it called for a reversal of the judgment rendered by the trial court, because it is sufficient to set forth the facts showing that the money was received in a fiduciary capacity, without copying the words of the statute, which would be pleading a mere conclusion of law. It was clearly the intention of the legislature by its last amendment of § 549 to require a plaintiff, intending to arrest the defendant, to predicate his action upon some ground of wrongdoing mentioned in the statute, as a substantive part of the cause of action, so that he could defend himself before a jury and recover costs if such defense was successful. Laws 1886, chap. 672; Code Civ. Pro., § 549. The statute does not direct the ■plaintiff to state in his complaint that he claims the right to arrest the defendant. Such a statement in order to be effective as a notice would have to appear in the summons rather than the complaint, as the former must, while the latter need not be, personally served. No change was made where the right to arrest depended on the nature of the action, as in the case of fraud, deceit, conversion and injuries to person or property. The right of arrest, however, as it had previously existed, in so far as it depended upon extrinsic facts, that is, upon facts not appearing in the complaint, was changed, except as provided in § 550, which is a subtitule for the old writ of neexeat, not by abolishing the right of arrest, but by requiring the facts, which theretofore had been stated in part outside of the complaint, to be stated in it as a part of the cause of action. The practice was thus made uniform so that the complaint must now set forth the facts upon which the right to arrest depends in all cases, with the single exception aforesaid, just as formerly it was required in a majority of cases. The amendment, as we construe it, introduced no new rule of pleading into the Code. It did not authorize the pleader to allege a conclusion of law instead of the “ plain and concise statement of facts ” required by § 481.

It changed the nature of certain causes of action somewhat, by requiring facts to be alleged and proved in addition to those previously required to be alleged or proved, in order to recover. If, therefore, the complaint under consideration sets forth facts showing that the defendant, as agent, received the proceeds of the two notes in a fiduciary capacity, and converted them to his own use, it is sufficient, without characterizing those facts or repeating the language of the statute. The facts, as alleged, were in substance that the plaintiff entrusted his two notes to the defendants, as his agents, to return one with certain explanations and to procure the other to be discounted and forthwith remit the net proceeds to him. Exceeding their authority as to one note, they procured both to be discounted, received the proceeds, refused to pay them over on demand and converted them to their own use. The facts as proved were substantially the same, except that the defendants were authorized to procure the discount of either note and to return the other, with the net proceeds of the one discounted. The notes belonged to the plaintiff and when they were discounted the proceeds belonged to him. The defendants had no right to either, except as the agents of the.plaintiff. Agency is a fiduciary relation. It exists by virtue of the fiducia, or faith reposed, as where one man, confiding in another, entrusts his property to him for a particular purpose and in the belief that he will in good faith use it for no other purpose. Property thus received is received in a fiduciary capacity, and when the property is turned into money that is also received in a fiduciary capacity. It does" not belong to the agent, who can lawfully exercise no power or authority over it, except for the benefit of his principal and only as authorized by him. If the agent uses it for his own purposes, or fails to pay it over upon a seasonable demand duly made, it is a conversion of that which does not belong to him* The capacity in which the defendants received the notes was fiduciary in character, because it depended upon trust and confidence reposed in them by the plaintiff, as his agents. Goodrich v. Dunbar, 17 Barb., 644, 646; Republic of Mexico v. De Arangoiz, 5 Duer, 640; Wolfe v. Brouwer, 5 Robt., 601.

He trusted them to handle his property as he directed, and they agreed. ■ After they had received the money on .the notes, they had no right to keep it, or even to pay it out on his account, but it was their duty to at once pay it over to him. They received it in trust for him, and the refusal to pay it over was not a refusal to pay a debt, but to deliver that which belonged to him. Under the circumstances this was not a mere “act of omission,” but- “an act of misfeasance.” The transaction was isolated and independent of any custom or course of dealing.

•The complaint alleges that the proceeds of the first note “ were received by him in trust to pay the same to the plaintiff forthwith," and that the second note was delivered to him “ in trust to. endorse and discount or sell the same for cash, .and forthwith to pay the proceeds thereof to the plaintiff.” When it is a necessary inference from the facts alleged that the money was received in a fiduciary capacity, the statute does not require that they should be labelled with that name.

Since there was no agreement as to the method of transmitting the proceeds, the expectation of the plaintiff that the defendants would deposit them in their bank account, and remit by check,' is not important. They did not attempt to remit in any way.

While some parts of the judgment as rendered by the trial court may be subject to criticism, -we have not alluded to them, because only the part that was stricken out on appeal is before us for review.

After examining the exceptions to which our attention has been called, we think that the judgment of the general term, in so far as it modified the judgment of the circuit, should be reversed, with costs.

Parker, J.

(dissenting.)—An examination of the question presented leads me to adopt the view entertained by the majority of the court at general term. Moffat v. Fulton, 31 St. Rep., 154.

The question has been before that court, and with the same result, on other occasions. Hillis v. Bleckert, 53 Hun, 499; 25 St. Rep., 553; Bartlett v. Sutorius, id., 629; Harland v. Howard, 32 id., 872.

The judgment of the trial court awarded to the plaintiff $1,789.07 and costs, and authorized its enforcement out of the joint property of the defendants, the separate property of the defendant Fulton, and against the person of Fulton.

The general term modified the judgment by striking therefrom the words “and against the person of the said defendant Robert Fulton,” on the ground that the complaint does not specifically allege that Fulton received the money in a fiduciary capacity.

The appellant insists that the requirements of the Code are met when the facts alleged warrant the conclusion that the money was received in a fiduciary capacity.

A portion of subdivision 2, § 549 of the Code of Civil Procedure forms the basis of the different views contended for.

The section so far as pertinent to the present discussion provides that “ a defendant may be arrested'in an action as provided in this title, where the action is brought for either of the following causes : (1) To recover a fine or penalty; (2) To recover damages for a personal injury; an injury to property, including the wrongful taking, detention or conversion of personal property; breach of a promise to marry ; misconduct or neglect in office, or in professional employment; fraud or deceit; or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, -removed or disposed of so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof ; or to recover for money received, or to recover property or damages for the conversion or misapplication of property, where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action; 'and a judgment for the defendant is not a bar to the new action to recover the money or chattel.”

It will be observed that it is plainly provided that in order to bring a case within the scope of that section it must be alleged in the complaint that the money was received in a fiduciary capacity, and in determining whether it should receive a technical construction, requiring such an allegation in terms, in addition to the plain and concise statement of facts provided for by § 481 of the Code of Civil Procedure, or simply a statement of the facts, we may inquire as to the probable intent of the legislature.

Prior to the enactment of chapter 672 of the laws of 1886, § 549 provided for cases where the arrest depended exclusively on the nature of the action, and § 550 to those where the right to arrest depended, in part at least, on facts extrinsic to the cause of action. Sub-division three of the latter section provided for a case of money received in a fiduciary capacity and misapplied. The cause of action was ex contractu, the right of arrest extrinsic, and if an allegation of conversion was also made it was treated as surplusage and not issuable. Segelken v. Meyer, 94 N. Y„ 473-484; Donovan v. Cornell, 8 Civil Pro., 283; Greentree v. Rosenstock, 61 N. Y., 583-590.

The order of arrest could only be granted on the pleadings and affidavits, the right to it was not an issuable fact but contestable only on affidavits, and if not granted before judgment rendered, an execution against the person could not issue. Wood v. Henry, 40 N. Y., 124.

In 1886 § 550 of the Code was amended among other respects by striking out the provisions relating' to actions for money in a fiduciary capacity and misapplied, and § 549 was amended by its incorporation into sub-division 2, but with an important change in its phraseology, in that it required that an allegation to that effect should be made in the complaint, and proved on the trial, if made and not proved plaintiff to fail of recovery.

The effect of this amendment was not to change the cause of action from contract to one of tort, but to change the remedy.' As we have observed, prior to such amendment the right to issue an execution against the person in actions of this character was made to depend on an application by the plaintiff for an order of arrest based on appropriate affidavits before the entry of judgment. The defendant had a right to contest such application by means of opposing affidavits - and the judge determined from such papers and the pleadings whether a proper case was presented for an order of arrest. If granted, and not subsequently' vacated, execution issued against the person .in the event of plaintiff’s recovery. The jury were thus prevented from considering whether the circumstances entitled a plaintiff to a remedy against the person as well as the property of the defendant. Their duty was fully performed when they had determined what sum, if any, was due the plaintiff. The court having already decided if applied to, and on other papers in part, whether the plaintiff was entitled to the additional remedy which the issuing of an order of arrest gave.

It may tend to show the purpose of the legislature, if in this connection we briefly examine chap. 672 of the Laws of 1886. The first and second sections amend §§ 549 and 550 of the Code of Civil Procedure in the respects already sufficiently alluded to for our present purpose. Section 8 amends § 551 of the Code, so ás to conform the practice in granting and serving orders of arrest to §§ 549 and 550, as by such act amended.

Section 4 amends § 558 of the Code so as to provide, among other things, that when the order of arrest is applied for, after the filing or service of the complaint, the court may before granting the same direct the service of an amended complaint so as to conform to the allegations required in subdivisions 2 and 4 of § 549. It may be remarked in this connection that only subdivisions 2 and 4 of § 549 provide for- allegations in the complaint. in addition to those requisite to establish a cause of action, and that a judgment may be recovered if they are omitted, but the remedy against the person does not in such case flow from it.

Section 5 amends or substitutes for § 111 of the Code a section limiting the term of imprisonment in. jail under an execution against the person; limiting the period'which a person maybe imprisoned within the jail liberties of any jail; prohibiting further imprisonment in the same action, and making it the duty of the sheriff to discharge a person imprisoned at the expiration of the periods provided for without any further application therefor.

Section 6 amends § 572 of the Code so as to provide for the discharge of the debtor from custody in certain cases of unwarrantable delays, the plain object of the section being to relieve the debtor from continued and extended imprisonment, whether by virtue of separate mandates in the same or different actions.

Section 7 provides that the act shall apply to all imprisoned debtors under any mandate against the person heretofore issued, and commands the sheriffs of the several counties to discharge, within five days from the passagé of the act, all persons entitled to discharge by the provisions of § 111 of the Code of Civil Procedure, as amended.

It is apparent therefore that the purpose of the legislature in amending the several sections of the Code of Civil Procedure in the manner provided by chapter 672 of the Laws of 1886 was in the direction of personal liberty.

Before the amendment, a person who misapplied moneys obtained in a fiduciary capacity was subject to arrest on an order granted before judgment, and to be taken in execution against the person after.

The creditor still has the same remedy, but the procedure is changed. Formerly he only had to state in his pleading a plain ■and concise statement of the facts, and on the trial need prove nothing more. Whether he was entitled to an order of arrest, carrying with it a right to an execution against the person of his -debtor, depended on the affidavits presented to the judge, and his view of their sufficiency.

But now, as I interpret the section under consideration in the light of the apparent intent of the legislature, as manifested by the other provisions of the act creating the amendment, an order of arrest cannot be obtained unless the complaint alleges in addition to a plain statement of the facts that the money misapplied was obtained in a fiduciary capacity.

The plaintiff makes the allegation at his peril, for if he fails to prove it to the satisfaction of the jury, judgment must go against him in a case when but for such allegation the jury would be required to find an indebtedness to the plaintiff on the part of the defendant.

The object of the amendment seems to have been to give a defendant charged with misappropriating moneys received in a fiduciary capacity (1) specific notice that the plaintiff seeks a remedy .against his person; (2) the benefit of an Ordinary trial by jury, witli the privilege of adducing oral testimony, and of cross-examination of adverse witnesses upon the facts involving the right of arrest; (3) such advantage as may accrue because of the plaintiff’s knowledge that if he fail to satisfy the jury that the facts entitle him to a remedy against the person of the defendant, judgment for costs will be rendered against the plaintiff.

It is not contended by those differing with the construction heretofore given by the courts to § 549, that it was not framed with a view to insure to a defendant apprisal by the complaint that a remedy against his person is sought. But it is urged that he may be said to be so apprised if the allegations of the complaint warrant the conclusion which the Code says must be alleged. Some of the reasons have already been given which have led me to the conclusion that the legislature intended to, and did, provide for an allegation so specific as to give the defendant ample notice that he must be prepared to contest with the plaintiff the facts involving the right of arrest as well as the alleged indebtedness, and it may not be amiss to call attention to the argument, which the situation of this case presents, in support of the wisdom of the legislature in providing for an allegation which insures to the defendant actual notice that a remedy beyond a judgment for money is sought.

It is now about to be' held in effect, if not in terms, that the causes of action averred in the complaint are not in tort, but ear contractu, because for money had and received in a fiduciary capacity, Segelken v. Meyer, 94 N. Y., 474-484, and that the complaint being susceptible of such a construction the defendant must be deemed to have been notified by it that a remedy against his person was sought. Yet in this very case the defendant pleaded a counterclaim to which the plaintiff interposed a demurrer in which he assigned, among other grounds of demurrer, “that it appears on the face of said counterclaim that it is not of the character specified in § 501 of the Code of Civil Procedure, in that it alleges facts constituting a cause of action arising on contract, while the cause of action arising out of the facts alleged in the: complaint is in tort and not on contract”

After argument the demurrer was sustained and judgment thereon rendered in favor of the plaintiff.

Now, can it be that a complaint which the plaintiff by his demurrer asserted was in tort, an assertion which the court after-argument made sustained by its judgment, may be said to have apprised the defendant that on the trial he should be prepared to meet the charge that a recovery was claimed for money received in a fiduciary capacity ? It seems to me not, and that it, was to provide against just such cases that induced the legislature in part at least to require that in addition to the statement of facts there should be a specific allegation which should with certainty inform a defendant of the extent of the remedy sought against him.

Other instances might be cited tending to show that the evident purpose of the legislature will not be effectuated if the section of the Code under consideration be so construed as to render it. unnecessary to aver in the complaint the allegation declared to-be essential in case a remedy against the person is sought.

But it will serve no useful purpose to.multiply them. The legislature clearly intended to take a further step in the direction of personal liberty; and to that end deemed it essential that a defendant should have explicit notice that other than a money judgment is claimed; that he should have the right to contest the charge of breach of trust before a jury, and to prevent the charge from being lightly made and on insufficient grounds it imposed as a penalty for failure to substantiate the allegations required to be pleaded that the plaintiff should fail of recovery.

The judgment should be affirmed.

Bradley, J.

(dissenting).—I think to justify execution against the person of a defendant it is sufficient that the inference from the allegations of the complaint is necessarily in support of a cause of action authorizing it. It is otherwise if there is opportunity for other or contrary contention. In my view such a cause of action is not necessarily the effect of the allegations of the second count And the fact that those of the first count "would alone be sufficient for it, does not warrant such final process. Miller v. Scherder, 2 N. Y., 262.

The judgment therefore should be affirmed.

Judgment of general term in so far as it modified the judgment of the circuit, reversed with costs.

All concur, except Bradley and Parker, JJ., dissenting.