text:
    ALFRED B. STONEY, Respondent, v. THE FARMERS’ TRANSPORTATION COMPANY, OF KEYPORT, NEW JERSEY, Appellant.

      Servant — duty of, to devote his entire time to Ms mastei’’s business — a custom releasing Mm from such duty, void— when a party is chargeable with notice of a custom.

    The defendant was engaged in running a-freight boat from Keyport to New York, receiving country produce from farmers, carrying it to New York and selling it, and returning the proceeds to the customers, after deducting freight and commissions. The plaintiff was hired by defendant to act as freight salesman on the boat for one year. After he had been employed for about two months he was dilcharged, because he had opened a business of the same kind on the boat, selling produce for customers and retaining the commissions for himself.
    On the trial of this action, brought to recover damages for breach of the contract, the plaintiff was allowed, against the defendant’s objection and exception, to give evidence to show that it was customary for persons so employed to have the privilege of buying and selling on their own account, provided they paid freight the same as other persons.

      Held, that this was error’.
    (1.) Because it was not shown that the defendant had actual notice of the existence of the custom, or that it was so general or notorious as to charge it with knowledge thereof.
    (2.) Because a custom attempting to release, an employee from the duty of giving his entire and exclusive attention to the business of his master, and allowing him to carry on business in competition with him, was unreasonable and void.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.
    The action was brought to recover damages for the breach of a contract, by which the defendant was alleged to have hired plaintiff for a year, at certain wages, and the breach alleged was that the defendant discharged him before the year expired. The case shows that the defendant was running a freight boat between Key-port and New York, the principal business of which was to receive country produce from the farmers, and carry it to the New York market and sell it, returning the proceeds to the customers, charging them freight and commissions for selling. On the 31st of August, 1866, the plaintiff was hired as freight salesman on the boat for a year, to commence September 1, 1866, at $1,200, payable monthly, $100 per month. His duties were to take charge of and sell all produce received on the boat to be sold, to collect the freight and pay it over to the clerk of the boat, discharge all the duties of clerk and salesman, and to give his entire time and service to the business. He went into the service, but was discharged on the seventeenth of November following, because it was found that he had opened a business of his own of the same kind on the boat, in competition with the boat, and was selling produce and receiving the commissions himself.

      Ten Brooch Van Orden <S Brastus Coolce, for the appellant.

      John Langtree, for the respondent.
   Daniels, J.:

The plaintiff’s claim in this case was for damages for the nonperformance of a contract, by which he was employed to act as freight salesman, for one year for $1,200, on board of the Holm Dell, running between Keyport and New York. It appeared by his own evidence .that after his employment in this service, he purchased and carried on the boat and sold produce on his own account, for which no liberty was given by the terms of the agreement under which he was employed; and ho was discharged from the service of the defendant on that account. In order to avoid the effect of the business carried on by him upon his own account, he was permitted to give evidence as to what was claimed to be customary in that employment. It- appeared that the business in which he was engaged was wholly limited to this boat and another engaged in the same trade.

Upon that subject, in the course of his own examination as a witness, he was asked, “is it customary for persons in such business as you are in to have the privilege of buying and selling on their own account, provided they pay freight the same as other persons ? ”

This was objected to as incompetent, improper and irrelevant. The court overruled the objection and the defendant excepted, and the witness answered, “ it is customary as long as the freight is paid.”

In the course of the examination of another witness a similar question was propounded to him, and the same objection was interposed to this evidence, and the witness answered, “ so far as I know it is.” He was then asked, “ you have such.a privilege ? ” And the same objection was taken to that question. His answer was, “yes, sir.” The question was then asked, “All who are similarly employed have enjoyed a similar privilege, so far as you know ? ” The same objection was taken to that, and the witness answered, “yes, sir.” It is apparent from these questions and answers, which was all the evidence that was given upon this subject, that it was not proposed to show that the defendant had any knowledge or notice of the existence of such a usage, or that it was so general or notorious as to lead to the conclusion that such knowledge or notice could be presumed to exist, and the consequence is, that the evidence was not, as it was offered, admissible for the purpose of abridging the defendant’s rights to the plaintiff’s services under this contract. In order to establish a usage, having the effect of enlarging, restraining or modifying the terms of a contract, it is necessary that the usage or custom shall be both reasonable in its character and known to the party wrho is proposed, to be affected by it.

This evidence was defective in both respects. It was not proposed to show by it that the custom was one that it was to be presumed the defendants had notice of, or to show that in point of fact such notice or knowledge existed on its part, and if that had been proposed or shown, a custom or usage controlling the terms of an employment by hiring, of the nature of this one, would be unreasonable in itself, for it would be inconsistent with the obligations that the plaintiff subjected himself to by the terms of the agreement entered into for the performance of his services. The contract which was made, according to his own evidence, imported that the defendant was entitled to the exclusive service of the plaintiff in the business in which he was employed, for its own advantage and benefit, and to allow him to engage m a similar business on his own account, and to bring his interests into competition with those of the defendant in which he was employed would be unreasonable and unjust.

That this evidence was defective, and not entitled to any consideration in the way of affecting the contract between the plaintiff and the defendant, necessarily follows from the authorities existing on this subject. (2 Parsons on Contracts [5th ed.], 544-546; Bradley v. Wheeler, 44 N. Y., 495-500; Dawson v. Kittle, 4 Hill, 107.)

Another defect in the evidence, which was given for the purpose of affecting this contract by proof of custom, was that it .was not proposed to show, and the evidence did not tend to show, that a person employed under such an agreement, as is shown to have existed in this case, was ever permitted by means of a custom, to engage in and carry on a business on his own account similar to that in which he was employed to render his services. The evidence given as to the custom or usage was wholly insufficient to excuse him from his obligation to give his entire and exclusive time and attention to the business of the defendants. And the consequence was, that engaging in this business on his own account, and carrying it on at the same time he was under the obligation to serve the defendant, was a breach of his contract that justified his discharge.

After the close of the evidence the defendant requested the court to charge, that engaging in speculation on his own account, and using the defendant’s boat and employees to enable him to carry ou such business and speculation, was a violation of his duty under the contract. This the court left to the jury as a- question of fact, and to that the defendant excepted.

The proposition embodied in this request was entirely'sound and proper. It was one which presented a legal question and it should have been decided by the court, and not submitted for decision to the jury. The court should have hold that engaging in such speculation by the plaintiff did violate his contract; and if that had been held, as it should have been by the court, the consequence would have followed that the plaintiff would not have been permitted to recover in the action.

For these reasons the judgment should be reversed and a new trial ordered, costs to abide the event.

Brady, P. J., and Ingalls, J., concurred.

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


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    GEORGE B. KELLUM AND THOMAS KIMBALL, Appellants, v. CHARLES KNECHDT, WILLIAM A. DURFOO, JACOB T. ALBURGER AND THOMAS C. HAND, Jr., Respondents.

      Wrongful act of one joint owner of a vessel— when an action at law lies against him, by another owne>\

    Where two or more of the joint owners of a vessel wrongfully seize it, thereby interrupting a voyage for which she is then under charter, one or moi-e of the other owners injured thereby may maintain an action at law against them to recover the damages occasioned by their wrongful act.
    Appeal from an order requiring the plaintiffs to amend their complaint.

      Brashes Cooke, for the appellants.

      Benedict, Taft & Benedict, for the respondents.
   Per Curiam:

This is an action on the case, charging the defendants with unlawfully, and with intent to injure the plaintiffs, seizing the barque Kacdar, in which the plaintiffs were half owners, and interrupting her voyage from Gibara (Cuba) to Valparaiso, for which she was then under charter, subjecting the plaintiffs to large losses. The case was brought to trial at the circuit, and the plaintiffs’ counsel having stated in his opening that the defendants were part owners, the judge held it to be an equitable action, triable without a jury, at Special Term, and seems to have made the order accordingly.

The case was then put upon the Special Term calendar, and moved for trial on the 5th of March, 1879, before Justice Yan Yorst, when the defendants’ counsel objected to the trial proceeding, on the ground that two other persons, Samuel Mack and Ephraim Bishop, who resided in Philadelphia, wore also part owners, and should be brought in as parties. Whereupon the court suspended the trial and ordered the plaintiffs to make Mack and Bishop parties, or to make such allegations as would furnish an excuse for not bringing them before the court, and also to amend their complaint by inserting the proper allegations to charge the defendants in an equitable action. From this order the plaintiffs appeal.

We entertain no doubt that this is an action brought at law, and not in equity, and one in which the plaintiffs have the right to a trial by jury. Although the plaintiffs and defendants are tenants in common, such an action as this can be maintained against tenants in common as wrong-doers, when it appears that, by their unjust acts, any destruction of the joint property or profits is accomplished. If the outstanding defendants who were ordered to be brought in did not participate in the wrong done, and are not, therefore, responsible, they would have also a right of action against the defendants to recover their aliquot part of the damages. We think that the following authorities establish the proposition just enunciated, that such an action as this can be maintained by one or more tenants in common against wrong-doers who are also tenants in common: (Wilson v. Reed, 3 Johns., 175; Heath v. Hubbard, 4 East, 121; Lawthorp v. Smith, 1 Hayward, 255; Chrisley v. Thompson, 3 N. H., 1; Guillet v. Dolgat, 4 Martin, 203; Abb. on Shipping [Story & Perkins ed.], 124; Story on Agency, § 40.)

The application of the rule of damages, even on the supposition that two outstanding owners are not tort feasors, will not be at all difficult, because, when the entire amount of damages is ascertained, the plaintiffs’ portion of it can be adjusted by the jury who are charged with the investigation and determination of the facts.

For this reason, we think the order appealed from should be reversed and the case restored to the circuit calendar.

Present — Brady, P. J., and Ingalls, J.

Order reversed. Case restored to circuit calendar.


text:
    EDWARD S. LOOP, Appellant, v. JAY GOULD, Respondent.

      Order requiring a party to .appear for examination, must be personally served.

    To punish a party for contempt, in failing to appear and be examined as a witness before trial, a copy of the order requiring him so to do must have been personally served upon him.
    Appeal from an order denying plaintiff’s motion to vacate an order requiring him to appear and be examined before trial, and directing that in default of his so doing his complaint be stricken out. The order and papers relating to the examination were served upon the attorneys for the plaintiff but not upon the plaintiff himself.

      Henry D. Hotchkiss, for the appellant.

      II. W. Bookstaver, for the respondent.
   Per Curiam:

The motion made by the plaintiff should have been granted, for the reason that there was no personal service upon the plaintiff of the order requiring him to appear. (See Tebo v. Baker, decided, by the Court of Appeals and reported in the Albany Law Journal, Saturday, May 17, 1879, vol. 19, p. 398.) To subject a party to any punishment in suc*h proceeding it is necessary, as Ave understand the decision referred to, that there should be a personal service upon the party of the process requiring him to appear and be examined.

For this reason, we think that the order should be reversed, with ten dollars costs and disbursements.

Present — Brady, P. J., Ingalls and Daniels, JJ.

Order reversed, with ten dollars costs and disbursements.


text:
    THE PLUME AND ATWOOD MANUFACTURING COMPANY, Respondent, v. JOSEPH STRAUSS, Appellant.

      JFailwre of an assignee for creditors to give a bond — does rwt avoid the assignment.

    The failure of an assignee for the'benefit of creditors to give the requisite bond does not, of itself, render the assignment void, and he cannot be compelled, by an order made in proceedings supplementary to execution, instituted on a judgment recovered against the assignor, to pay over to the judgment creditor money received by him as such assignee under the assignment.
    Appeal from an order directing Louis Frank to pay to the plaintiff’s attorney the sum of $1,028.78, to be applied in part satisfaction of the judgment recovered in this action against the defendant Strauss.
    On January 6, 1877, the defendant in this action made an assignment for the benefit of his creditors to one Louis Frank. Thereafter said assignee filed an inventory and schedules of the estate assigned to him, but was unable to procure and file the necessary bond with the sureties as required by one of the justices of the Court of Common Pleas. Thereafter, on or about the 6th day of August, 1877, the plaintiff in this action recovered a judgment against the defendant, and obtained an order in supplementary proceedings for the examination of Louis Frank, the assignee aforesaid, as a third party having property of the defendant judgment-debtor. Upon the examination it appeared that the assignee held moneys as such, to the amount of $1,028.87. This amount was directed by an order of his honor, Justice Charles DONOHUE, dated September 22, 1877, to be paid over to the plaintiff, from which order this appeal was taken.

      Ed. Lauterbach, for the appellant.

      A. JR. Dyett, for the respondent.
   Per Curiam:

It appears in this proceeding that Louis Frank was the assignee of the defendant; that the assignment was. made under the act of I860; that the assignee took possession of the property and filed an inventory, but failed to give any bond, and expressed his intention not to give any, because he had not the ability to furnish the sureties required by law. The omission to file the security does not necessarily render the assignment void. It has been held in a series of cases that, notwithstanding the omission, the title vests in the assignee, and that the trust can be enforced by a court of equity. (Thrasher v. Bentley, 59 N. Y., 649; Worthy v. Benham, 13 Hun, 176; Brennan v. Wilson, 71 N. Y., 502; Hardmann v. Bowen, 39 id., 196.)

The order made was for this reason unwai’ranted. The assignee held the property for the benefit of all the creditors, and no one of them would be entitled to such a preference as a proceeding of this kind would give him.

We judge, from the points on behalf of the respondent, that there was an omission by the assignor to acknowledge the assignment, as required by the statute, and an omission to record it. It may be that the order of the learned justice was predicated of that circumstance, but it does not appear, from the papers presented, whether the assignment was acknowledged or not, and, therefore, it is impossible for us to sustain the order, on the ground that the omission to acknowledge was fatal to the validity of the instrument.

It becomes our duty, under the circumstances, therefore, to reverse it, but without prejudice to the rights of the plaintiff to renew the application, if it be as asserted in the brief of the respondent, that the assignment was not acknowledged and recorded.

Ordered accordingly, Avithout costs of appeal to either party

Present — Brady, P. J.; Ingalls and DaNiels, JJ.

Order reversed, Avithout costs.


text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, v. EDWARD D. JAMES, Appellant.

      Answer — when it cannot be sbriekm out as false or sham.

    Where, in an action to recover penalties for a violation of certain laws, the complaint alleges that the defendant has failed to do certain things therein specified, and the answer denies, as to all the matters specified in the complaint, and in the same language used therein, that the defendant has failed to do the said things, such answer cannot be stricken out as false or sham on the ground that such denials are denials of conclusions of law.
    Appeal from an order striking out the defendant’s answer, in part because it was frivolous, and in part because it was sham and false.
    The action Avas brought to recover penalties under section 32, chapter 625 of the Laws of 1871, for a failure to comply with the requirements of section 32 of the said act.
    The complaint, after alleging that the defendant was the owner of certain premises therein described, alleged that he “on or about the 27th day of June, 1877, as such OAvner, lessee or agent, for tho owner or owners as aforesaid, violated, assisted in violating, or suffered to exist in violation of one of the provisions of the aforesaid act, in that he did then, and ever since has neglected, omitted, and refused to comply Avith the requirements of the superintendent of buildings, and Avith said law, by failing to provide said building with sufficient means of egress and escape in case of fire, by not placing therein a substantial stationary iron ladder, to lead from tbe top floor to the scuttle opening in the roof thereof.”
    The answer was as follows: “This defendant, answering the complaint in this action, denies that the plaintiffs are duly organized as a corporation under the laws of the State of New York, and further answering, he denies that he has violated any law or ordinance, as set forth in the complaint in this action ; or assisted in the violation thereof, or that he has failed or neglected to provide sufficient means of egress or escape from the premises mentioned in the complaint in this action, in case of fire, by not placing therein a substantial stationary ladder to lead from the top floor to the scuttle' opening in the roof thereof. And further answering, he denies that he is liable or indebted in any sum to the plaintiffs, or that he has incurred or forfeited any penalty for any alleged violation of any law, or the provisions of any act.”

      JE. H. Benn, for the appellant.

      Wm. Q. Whitney and J. A.. Foley, for the respondent.
   Per Curiam:

The order made by the court below, in reference to the allegation that the plaintiffs were duly organized as a corporation, was correctly made, and is sustained.

The remainder of the answer, stricken out as false, was in our judgment, however, erroneously disposed of. The denial is as broad as the allegations in the complaint, to which it relates, and that allegation is, that the defendant refused to comply with the requirements of the superintendent of buildings, and of said law, by failing to provide said building with sufficient means of egress and escape in case of fire, by not placing thereon a substantial iron ladder to lead from the top floor to the scuttle opening in the roof.

The answer is a denial that the defendant had violated any law or ordinance, as set forth in the complaint, or assisted in the violation thereof; or that he failed or neglected to provide sufficient means of egress or escape from the premises mentioned in the complaint in case of fire, by not placing thereon a substantial stationary ladder to lead from the top floor to the scuttle opening-in tbe roof thereof. It further denies that the defendant is liable or indebted in any sum to the plaintiffs, or that he has incurred or forfeited any penalty for any alleged violation of any law, or the provisions of any act.

In form these denials seem to be denials of conclusions of law, but if they are in the main subject to such an objection, the allegation in the complaint is also open to the same criticism. It will be perceived, from what has been recited from the complaint, that it is in form an allegation that the defendant failed to do certain things. If that be a sufficient averment of matters of fact, then the answer which denies it in the same language is the denial of an allegation of fact; and if it be a denial of a conclusion of law only, it is met with a response of the same character.

The plaintiff has no reason to complain, therefore, of the form of the defendant’s answer, and of the manner in which the issues to be tried are created. The pleader cannot exact from the defendant any greater detail than he has adopted in the statement of his own cause of action.

The order appealed from must therefore be affirmed, so far as it relates to the frivolousness of a part of the answer, and reversed as to the remainder, without costs to either party of this appeal.

Present — Bkady, P. J., INGAlls and DaNiels, JJ.

Ordered accordingly.


text:
    JAMES ROSS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Selling liquor to a minor — the fact that the minor is acting fm' an adult, immaterial.

    The plaintiff in error was convicted of selling liquor to a minor in violation of section 15 of chapter 628 of 1857, as amended by chapter 420 of 1877. The minor, a boy ten years old, testified that he was sent to purchase the liquor by an adult, one Martin, who lived in the house with him, and who furnished the money to buy it; that he brought the liquor to Martin without tasting it; that subsequently Martin gave him a drink, by reason of which he became intoxicated.

      Held, that the conviction was proper, and that the fact that the boy was acting as agent for an undisclosed principal did not relieve the accused from the penalties imposed by the statute.
    Cektiokari to the Court of Special Sessions, to review the conviction and sentence of the plaintiff in error of the offence of selling liquor to a minor.

      W. Lindsay, for the plaintiff in error.

      B. K. Phelps, for the defendant in error.
   Per Curiam:

The plaintiff in error was ai*rested and convicted on a charge of selling liquor to a minor. The complaint was made under the statute of 1877. (Chap. 420, Laws of 1877, p. 478.) Section 1 .of that act provided as follows :

Section 1. Section 15 of chapter 628 of the Laws of 1857, entitled “ an act to suppress intemperance and to regulate the sale of intoxicating liquors,” is hereby amended so as to read as follows:

“ § 15. No inn, tavern or hotel keéper, or any other person licensed to sell any strong or spirituous liquors or wines shall, either personally or by his wife, servant, employee or other agent, sell or give any such liquors or wines to any Indian or apprentice, knowing or having reason to believe him-to be such, or within the knowledge of such agent, without the consent of his master or mistress, nor to any minor under the age of eighteen years, without the consent of his father or mother or guardian. Whoever shall, either personally or by his wife, servant, employee or other agent, offend against either of these provisions shall forfeit ten dollars for each and every offence, to be recovered by the master of such apprentice or servant, or by the parent or guardian of such minor. And any person who shall, either personally or by his wife, servant, employee or other agent, sell or give away any strong or spirituous liquors, ale, beer or wine, to any Indian in this State, or shall sell any beer, ale, wine or any strong or spirituous liquor to any minor under the age of fourteen years, knowing or having reason to. believe such minor to be under such age, shall be deemed guilty of a misdemeanor, and on conviction shall be liable to afine of twenty-five dollars for each and every offence.”

It appears that the complainant, a minor about ten years of age, went to a distillery on Thirty-ninth street, near Ninth avenue, and purchased a quantity of whiskey. He testified that he was sent for the whiskey by one Martin, an adult, who resided in the same house with the boy, and that Martin gave him the money to make the purchase. He further testified that after purchasing the liquor ho carried it to Martin, without drinking any on the ivay, and that after Martin had received it he gave some of it to him to drink. It further appeared that complainant, after drinking it, went out and was found by a police officer in a state of intoxication.

The counsel for the plaintiff in error claims that the sale was to Martin and not to the boy, and that the latter was a mere agent and representative of Martin, and thinks for that reason that the complaint should have been dismissed. In this we think he was decidedly in error.

As properly observed by the learned district attorney, it is an attempt to apply a principal of commercial law to a criminal case. That as the boy was the agent of Martin, therefore, the sale was to Martin as principal. The transaction, however, was between the boy and the prisoner. The liquor was applied for by the boy; delivered to and paid for by him. There was no disclosure at the time of the purchase, that it was to be for any other person.

The object of the statute was to prevent the sale of liquors to minors indiscriminately. - There might be cases of great emergency in which a sale to a boy, at the suggestion of a physician and for medical purposes, would be justifiable, but the facts in this case show no such emergency. The sale was to a boy, and the consequences of that sale were just those which the statute was designed to prevent, namely, drunkenness.

It would be a plain perversion of the statute to hold that, under circumstances such as are disclosed by the evidence in this case, the seller should be relieved from the penalties imposed.

We think the judgment should be affirmed.

Present — Beady, P. J., Ingalls and Daniels, JJ.

Judgment affirmed.


text:
    UNION TRUST COMPANY OF NEW YORK, Respondent, v. AUGUSTUS S. WHITON, Appellant. SAME v. SAME.

      Costs, on appeal — not given to the party unsuccessful on such appeal, although he may recover judgment finally — only one extra allowance recoverable.

    On the first trial of this action the complaint was dismissed, and the exceptions were directed to be heard in the first instance at the General Term. The General Term ordered a new trial, “ with costs to abide the event.” On the second trial a verdict was rendered in favor of the defendant. Upon the taxation of the costs, held, that the defendant was not entitled to the costs of the review at the General Term.
    Upon the first trial an extra allowance of §1,000 was granted. Upon the second trial an extra allowance of §750 was granted. 3eld, that the defendant was only entitled to the allowance granted upon the second trial.
    Appeal from an order made at Special Term, directing that the taxation of the costs of appeal to the General Term be vacated and set aside, and that the clerk readjust the costs, and also from an order denying a motion of the defendant to set aside the taxation of costs of the clerk disallowing an extra allowance granted on the first trial of this action.
    The action was brought to recover $75,000 of defendant, alleged to have been loaned by the plaintiff to said defendant on the 16th day of June, 1871.
    This case was first tried in February, 1875, when the complaint was dismissed, judgment suspended, and the exceptions directed to be heard in the first instance at the General Term; an additional allowance of $1,000 was granted to defendant.
    At the General Term a new trial was ordered, costs to abide event.
    On the new trial in February, 1879, a verdict was rendered for defendant, upon which an additional allowance of $750 wag granted, and the costs were thereupon, on the 18th day of March, 1879, taxed by the clerk of the city and county of New York. The clerk allowed the General Term costs, to which the plaintiff objected, and refused to allow the $1,000 extra allowance given on the first trial, to which defendant objected.

      Robert F. Little, for the appellant.

      Daniel Seymour, for the respondent.
   Per Curiam:

Justice Barrett, in disposing of the motion from which these appeals were taken, decided that the costs of the General Term awarded to the appellant on a former appeal, could not be taxed in favor of the unsuccessful party upon such appeal, although he ultimately prevailed in the action, and this is in accordance with the settled rule in this department.

He also decided that there could be but one allowance, and this was founded upon the proposition that the allowance having been made upon a judgment, when the judgment was set aside all the incidents, of which the allowance was one, were also vacated and set aside, and, therefore, there was really but one allowance existing and taxable.

For these reasons we think that the orders respectively appealed from should be affirmed, with ten dollars costs and disbursements of both appeals.

Present — Beady, P. J., and Ingalls, J.

Orders affirmed, with ten dollars coste and disbursements of both appeals.


author: Per Curiam.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GUSTAVUS BUNGE v. THE BOARD OF TAX COMMISSIONERS OF THE CITY AND COUNTY OF NEW YORK. SAME ex rel. JOHN T. HANEMAN v. THE SAME. SAME ex rel. ERNEST PFARRUS v. THE SAME.

      Assessment for taxation — what property subject to — extent of the State authority — effect of non-residence of the party assessed.

    Writs of certiorari to review proceedings of the commissioners in assessing for taxation the respective relators personal estates.
    The relators claimed that the greater portion of the personal property for which they were assessed, consisted, at the time of the assessment and application to the assessors for a reduction of the amount assessed, of goods, the product of the United States, which had been and were then being exported from this to foreign countries.
    The court at General Term said : “We entertain no doubt that the questions presented by this proceeding are res adjudícala. They are covered and controlled by the case of The People ex rel. Haneman v. The Tax Commissioners (10 Hun, 255).
    “ There is this difference in the application of the relator Bunge, namely, that he is a non-resident. But we think this makes no difference. (See 1 R. S. [6th ed.], 91.)
    “The writs should be quashed, with costs.”

      H. Charles Ulman, for the relators. J. A. Beall, for the respondent.
   Opinion

Per Curiam.

Present — Brady, P. J., and Potter, J.

Writs quashed, with costs.


text:
    ANN E. RILEY, as Executrix, etc., of EDWARD T. RILEY, Deceased, Respondent, v. WILLIAM S. CORWIN, Appellant.

      Statute of limitations — constitutes a distinct new defence — it cannot be first set up during a trial before a referee.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The court at General Term said: “The plaintiff in this case was allowed, on the trial, by the referee, to add to his reply in answer to a counter-claim interposed; and in addition to his defences in the reply contained, to interpose the statute of limitations. This was error. On the trial a referee, under the Code of Procedure, has not such power. This seems to be settled by authority. It is a new defence. (Ford v. Ford, 53 Barb., 525; Sinclair v. Neill, 1 Hun, 80; Mitchell Bunn, 2 N. Y. [T. &. C.], Sup. Ct. Rep., 486 ; Josyln v. Josyln, 9 Hun, 388; Phillips v. Melville, 10 id., 211; Smith v. Bathbun, 13 id., 47; Boeder v. Sayre, 70 N. Y., 180.)
    “ The amount of the counter-claim having been ascertained and determined by the referee, however, a new trial may be avoided by deducting it from the judgment. Unless the plaintiff consent that this bo done a now trial is ordered, with costs to abide event. If done the judgment is affirmed for the balance, without costs to either party.”

      Henry B. Howland, for the appellant. George II. Starr, for the respondent.
   Opinion

Per Curiam.

Present — Brady, P. J., and Potter, J.

Judgment reversed, now trial ordered, costs to abide event; unless plaintiff consent to a deduction of the counter-claim from the judgment, in which event judgment affirmed, as so modified, without costs.


text:
    CATHERINE E. COLLINS, Respondent, v. CHARLES E. COLLINS, Appellant.

      Writ of ne exeat — was not abolished by the Code.

    Appeal from an order denying a motion to discharge a writ of ne exeat.

    The court at General Term said: “The remedy which was known in the practice which prevailed in the Court of Chancery as the writ of ne exeat was not abolished by the Code, as declared in two cases decided in the General Term of this department, namely, Breck v. Smith (54 Barb., 212); Viaderov. Viadero (7 Hun, 313). The same proposition was asserted in Forrest v. Forrest (10 Barb., 46); Neville v. Neville (22 How. Pr. Eep., 500); Bushnéll v. Bushnell (15 Barb., 399).
    “ It is true that in the Superior Court of this city the contrary view was expressed. (See Johnston v. Johnston, 1 Eobt., 642.) But we consider ourselves bound by the decisions of this court on this question.”

      Cephas Brainard. & James S. Stearns, for the appellant. A. Bell Malcolmson, Jr., for the respondent.
   Opinion

Per Curiam.

Present — Bbajdy, P. J., and Pottee, J.

Order affirmed, with ten dollars costs and disbursements.


author: Per Curium.

text:
    EPHRAIM D. BROWN, as President, etc., Respondent, v. AARON KAHN, as Administrator, etc., and others, Appellants.

      Costs of a motion, — 'payment thereof to a sheriff holding a precept against the party entitled thet'eto — is sufficient.

    Appeal from an order denying a motion to set aside an order of reference and an order reviving the action.
    The motion was made principally upon the ground that the costs of the motion to revive the action had not been paid to the defendant, as required by the order made thereon, and that thereby all proceedings were stayed by virtue of section 779 of the Code of Civil Procedure.
    The court at General Term said : “ The application to set aside the orders was predicated of the non-payment of the costs of the motion. The respondent answered this objection by a receipt showing the payment to the sheriff, on account of the defendant, of the sum of ten dollars.
    “ This payment was made, it appears, from the brief of the appel • lant, upon a precept issued in an action between the same parties, and in favor of the respondent for the sum of ten dollars costs, awarded to,him on a motion.
    “ The character of the process does not appear from the paper’s submitted and on which the motion was based ; but wo think that the appellant is bound by the admissions thus made in open court. The precept having been issued against the defendant, the payment of ten dollars on his behalf to the sheriff on that precept was in our judgment a payment justified by the provisions of section 293 of the Code. A precept is in effect an execution upon a judgment, because the costs having been awarded, and the statute allowing a precept to issue for their collection, the sheriff is justified in levying upon any property subject to execution under the rights acquired.”

      Henry L. Williams, for the appellants. Thomas J. McKee and M. Compton, for the respondent.
   Opinion

Per Curium.

Present — Brady, P. J., and Potter, J.

Order affirmed, with ten dollars costs and disbursements.


author: Ingalls, P. J. ;

text:
    JOHN M. DODD AND ALEXANDER M. ROSS, Respondents, v. EDWARD DREYFUS, Appellant.

      When a retiring partner becomes a mere surety for the firm debts— in such case he is released by an extension of the time of their payment by the creditor — e. g. ■ — • talcing notes payable in futuro.

    Appeal by the defendant Edward Dreyfus from a judgment in favor of the plaintiff, entered against him by direction of the judge at the circuit, for $2,312.66. The action was brought to recover rent due to the plaintiff.
    The court at General Term said: “ Although the articles of partnership were excluded, yet the evidence which was received, without objection, clearly shows that such partnership did exist between the defendant Edward Dreyfus and M. J. & S. M. Hyatt, for the manufacture of lime in the county of Ulster, and that the same was dissolved, and that the defendant Dreyfus retired from the business, which was continued by the Hyatts, who assumed the payment of the debts of the old firm, including the rent which was due to the plaintiffs. The evidence shows that the plaintiffs had knowledge of the foregoing facts. A new lease was executed by the plaintiffs to the Hyatts of the same premises, and the latter gave to the plaintiffs a note for $3,400, for the rent which had become due, which was indorsed by one Benedict Dreyfus, upon which note there was paid $1,400, and a new note taken by the plaintiffs for the balance $2,000, which was executed June 28, 1875,-payable one month after its date. We do not perceive, from the evidence, that the defendant, Edward Dreyfus, was at the time aware of the arrangement by which the notes were executed to secure the payment of the rent. The acceptanee of such notes, under the circumstances, had the effect to extend the time for the payment of the rent, and that too, it would seem, without the knowledge and consent of Edward Dreyfus. The dissolution of the partnership, and the retirement of Edward Dreyfus, and the assumption by the Hyatts of the debts of the old firm, constituted Edward Dreyfus merely a surety for the payment of such debts, including the rent in question, and the extension by the plaintiffs of the time for the payment of such rent, with a knowledge of all the circumstances, and without the consent of Edward Dreyfus, had the effect to discharge his liability for such rent. (Millerdv. Thorn, 56 N. Y., 402; 061-grove v. Tollman, 67 id., 95.)”

      Blumenstiel & Ascher, for the appellant. A. J. Vanderpoel, for the respondents.
   Opinion by

Ingalls, P. J. ;

Potter, J., concurred.

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


text:
    FRANCIS T. WALTON, Respondent, v. PHILIP DALY, Appellant. SAME v. SAME.

      One undertaking cannot be given to discharge two attachments, issued in different actions.

    Appeal from an order made at Special Term setting aside an undertaking given by the defendant to procure the discharge of two attachments, one of said attachments having been issued in each of the above entitled actions, on the ground that the plaintiff was entitled to a separate undertaking in each action.
    The court at General Term said : “We entertain no doubt that there is' no precedent, nor authority for accepting, as sufficient under the provisions of the Code, one undertaking in two actions for the purpose of discharging an attachment issued in each action. The undertaking is one provided by the Code, and is required to be given in each action, and to relate to each attachment. It was therefore without warrant to present an undertaking, embracing both actions and relating to both attachments, for the purpose of having the property discharged. This proposition is, we think, so plain that it is not necessary to say anything in extenso about it.”

      Childs (& Hull, for the appellant. J. A. 8houdy, for the respondent.
   Opinion

Per Curiam.

Present — Bbady, P. J., and Ingalls, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    HENRY A. STUDWELL and others, Appellants, v. THE CHARTER OAK LIFE INSURANCE COMPANY, Respondent.

      Action on a policy of insurance— answer setting up a false statement in the application therefor —particularity required in.

    Appeal from an order denying an application to make the answer more definite and certain.
    This action -was upon a policy of life insurance. The answer set up various violations of the conditions contained in the policy, and by the second defence alleged that the agreement was not correctly set forth, and asked that the policy might be reformed so as to give effect to the intention of both parties, as expressed in the said second answer.
    The answer contained among others the following averments:
    That the application referred to in said policy was the application of Lucretia A. Studwell, and was filed in the office of the defendant. That the following questions were contained in said application:
    “ 10. Have her parents, uncles or aunts (noting whether paternal or maternal), brothers or sisters boon afflicted with consumption, scrofula, rheumatism, gout, insanity, or any hereditary disease ? ” To which questions the said Lucretia A. Studweli answered “ no which answer defendant alleges it is informed and believes was false and made with the fraudulent intention of deceiving the defendant, and of obtaining the policy from it by fraud.
    The court at General Term said: “It will be seen that the answer gives no information to the plaintiffs of the particular violation complained of and leaves it all in doubt and uncertainty.
    “We see no reason why the answer should not be as particular, in respect of such violation,-as the complaint should be if similar violations were complained of in that form.
    “We think it is the duty of the pleader, in presenting such an answer, to state particularly the violation which is set up as a defence. For example, whether the parent was afflicted with consumption or scrofula, rheumatism, gout or insanity, or some hereditary disease, and not to class these all together, and therefore put the plaintiff to the necessity of preparing to show, by evidence, that no one of these numerous diseases existed in the family. Without any more detailed statement of our views upon this subject, it is necessary only to say, that we think that the motion should have been grauted, except as to the second defence, which should be permitted to stand.”

      W. C. Beecher, for the appellants. Charles B. Alexander, for the respondent.
   Opinion

Per Curiam.

Present — Brady, P. J., INGálls and DANIELS, JJ.

Order reversed as to all the answers except the second, and as to the second, affirmed without costs to either party.


author: Per Quriam.

text:
    WILLIAM L. McINTYRE AND WILLIAM M. GAWTRY, Appellants, v. CLARENCE OGDEN, PHILOMENA OGDEN AND WILLIAM N. BERRIAN, Respondents.

      Matter will nob be stricken out of an answer as irrelevant, when it is responsive to iml&oant matter in the complaint.

    Appeal from an order denying an application to strike out part of the answer of the defendant Ogden, as irrelevant and redundant.
    The court at General Term said: “ The disposition made of this motion by the court below, must, we think, prevail. The irrelevant and redundant matter contained in the answer, and of which the plaintiffs complain, was a response to irrelevant and redundant matter contained in the complaint. This, we think, is a sufficient answer to the appeal taken in this case. The plaintiff, having unnecessarily loaded his complaint with allegations not essential to his success, cannot complain if defendant answers them by responses which are proper in themselves, considered in relation to the matter which provokes them.”

      Henry H. Morange, for the appellants. George TV. Sandford, for the respondents.
   Opinion

Per Quriam.

Present — Brady, P. J., and Ingalls, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    WELCOME G. HITCHCOCK AND ELAM O. POTTER, Respondents, v. JULIUS BAERE AND LOUIS BAERE, Appellants.

      Amending a complaint in an action to recoven' for goods sold — by stnilAng out certain allegations as to fraudmlent representations made by the purchaser — does not change the cause of action.

    Appeal from an order denying a motion to stay the entry of a judgment herein.

      The plaintiffs, in the original complaint, alleged that tbey were induced to sell and deliver to the defendants merchandize to the amount of $279.60, by false and fraudulent representations, made by the latter, with intent to deceive and defraud the plaintiffs.
    Within the time allowed for that purpose the complaint was amended by striking out the allegations of fraud, so as to leave it in form an action for the recovery of a sum due for goods sold and delivered.
    The 'defendants’ attorneys returned the amended complaint, on the ground that the entire cause of action was sought to be changed by it, and because it set up an entirely different cause of action. They omitted to serve an answer to the amended complaint and judgment was taken against them.
    The court at General Term said: “The order made was not erroneous. The allegations of fraud were entirely unnecessary to maintain an action for goods sold and delivered; indeed, they were unnecessary for any purpose. If the plaintiffs desired to predicate of them the provisional remedy of arrest, it was not necessary that they should be stated in the complaint. They could be averred by affidavit; striking them out of the complaint, therefore, by amendment, was withdrawing from it redundant matter which was not at all necessary’ for their success.
    “ The defendants’ counsel were mistaken, therefore, in supposing that the cause of action was changed, or that a different cause of action was set out from that originally brought, and are equally mistaken in supposing that the appeal from the order made upon the state of facts suggested can be sustained.

      Blumenstiel & Hirsch, for the appellants. Thomas B. Oddi, for the respondents.
   Opinion

Per Curiam.

Present — Brady, P. J., and INGALLS, J.,

Order affirmed, with ten dollars costs and disbursements.


author: Baiínaed, P. J.:

text:
    BRIDGET E. McNULTY as Administratrix, etc., of JAMES McNULTY, Deceased, Respondent, v. LYMAN M. HURD, Appellant.

      Surety — released by an unauthorized extension of time given to the prindpcSh debtor — Effect of a judgment on a joint and seveml bond — when the estate of a surety is released by his death.

    One Tong, having been arrested under an execution, obtained the liberties of th® jail limits by giving a bond to the sheriff, signed by himself, and by McNulty, the plaintiff’s intestate, by Lynch and by Thompson, as sureties. Tong having escaped, the sheriff recovered a judgment upon the bond against the principal' and sureties thereto, which he subsequently assigned to the plaintiff in the exe-> eution, who thereafter assigned it to one Hurd. The latter agreed with Tong to take notes for the amount of the judgment, signed by him and all the sureties, payable at different times in a period extending over two years. Notes were accordingly given, signed by Tong and Lynch alone, some of which were paid and others were not. McNulty had no knowledge of the giving of the notes and did not assent thereto. Subsequently McNulty died, and this action was. brought by his administrator to prevent the collection of the residue of the. judgment from his estate.

      Held, that McNulty was released by the unauthorized extension of time given to* the principal debtor.

      Semble, that although the bond was joint and several, yet the recovery of a judgment, against the principal and sureties thereon, was an election on thé part of the creditor, to regard the obligation as a joint one, and that consequently the. estate of McNulty was released by his subsequent death.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action by the court, without a jury.

      The action was brought to restrain the defendant from enforcing against the plaintiff a judgment recovered against her intestate, James McNulty, and others, and from enforcing a decree of the surrogate of Kings county, requiring the plaintiff to pay the amount of the above mentioned judgment remaining unpaid.

      If. B. Sanborn, for the appellant.

      McGuire & Kuhn, for the respondent.
   Baiínaed, P. J.:

In 1858, one Remson, sheriff, held an execution against the person of one Tong. Under this execution Tong was arrested by the sheriff, and Tong obtained the liberties of the jail limits of Kings county upon a bond executed by Tong, and by James NcNulty, plaintiff’s intestate, and by William Lynch and William Thompson as sureties, that he, Tong, would remain a true and faithful prisoner of the sheriff, as provided by statute. (2 R. S., 434, sec. 42.) Tong escaped and the sheriff recovered a judgment against Tong and the three sureties for the amount of the execution, and assigned the judgment to the plaintiff in the execution in 1859. Williams, in the same year, assigned the judgment to Henry Hurd. While Henry Hurd owned the judgment he agreed with Tong to take notes made by Tong and all the sureties, payable at different dates, aggregating the face of the judgment, and the last note maturing about two and a-half years from its date. Three or four of the notes last payable were not paid. The notes were not, in fact, signed by all the sureties, but only by Tong and Lynch. McNulty was not present at the giving of the notes — was not proven to have assented to the transaction, and is now dead. The defendant is the present owner of the judgment, and seeks to enforce the payment of the entire amount remaining unpaid from the estate of McNulty. It is too well settled to need authority, that an extension of time to the principal, without the assent of the surety, discharges the surety. This relation continues after judgment, and the rights of the surety are to be protected in equity after judgment. (La Farge v. Herter, 9 N. Y., 241; Delaplaine v. Hitchcock, 4 Edw. Chy., 321.) The evidence and findings of the judge established that the holder of the judgment, Henry Hurd, did extend the time of payment of the judgment until default was made in the payment of the notes. The non-assent of McNulty was proven sufficiently. The transaction took place in his absence, and the declaration made by Tong that all the sureties assented to the arrangement and would make the notes is not proof of assent by McNulty. It is not proof of fraud even. After waiting for McNulty and Thompson, Hurd took the notes and gave the extension, upon the assertion by his lawyer that the notes were only collateral, and that the absent and non-assenting sureties would still be liable if the notes were not paid.

The plaintiff seems also to be entitled to the relief she asks for, upon the ground that her husband was surety, and that by the recovery of the judgment he became surety to a joint obligation, and by the death of his surety that his estate became released at law and in equity. There is no case applying this principle to a joint and several obligation. The bond for the jail limits was joint and several. In United States v. Price (9 How., 92) the Supreme Court of the United States held that a judgment recovered upon a joint and several obligation was an election to consider the obligation joint, and that the death of a surety after judgment released his estate from its payment. This case is cited approvingly by the Court of Appeals in Risley v. Brown (67 N. Y., 160) and in Hauck v. Craighead (id., 432). It is not necessary to determine this question upon this appeal, if the view we have taken of the effect of the extension of time is correct

Judgment affirmed, with costs.

Gilbekt and DyicmaN, JJ., concurred.

Judgment affirmed, with costs.


author: BaenaRD, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. AUGUSTUS F. WEEKS, Respondent, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Appellants.

      Borrowing money to lay out a road — chapter 323 of 1873 — trustees not required to act as a board— Power of the Legislature to authorize money to be boiTowed on the credit of a town.

    Chapter 323 of 1873 providing’ that, where a proposed road passes through an incorporated village, the consent of a majority of the trustees should he obtained, before the board of supervisors can authorize money to be borrowed on the | credit of the town to lay out or improve such road, does not require the trustees to act as a board and by vote, but it is sufficient if a majority of the trustees join in a written request to the board of supervisors, to authorize the loan to be made.
    The Legislature may authorize money to be borrowed upon the credit of a town which embraces several villages, to be used in laying out and improving roads, though they do not pass in whole or in part through any of such villages.
    Appeal from a judgment, upon the return to a writ of certiorari, setting aside certain proceedings had before the board of supervisors of Queens county, providing for a loan to be raised on the credit of the town of Flushing to improve a road therein, and from an order granting the said writ.

      Downing & 8tanbrough, for the appellants.1

      Geo. W. Van Siden, for the respondent.
   BaenaRD, P. J.:

The question presented by this appeal arises under chapter 855 of the Laws of 1869, and the amendments thereto. By section one of this chapter the Legislature extended the power of the boards of supervisors in all the counties of the State, except New York and Kings. Among other powers granted such boards of supervisors was the power to authorize towns to borrow money to build and repair roads and bridges. In 1872 an amendment was passed (chap. 285), adding section nine to the original act, authorizing the board of supervisors of Queens county to authorize the towns therein to borrow money upon the credit of the town “to build, widen, grade, macadamize or repair any road or roads, or to purchase for public use any plankroad, toll road or toll bridges in such town or towns, or to pay any existing debt incurred in good faith by or on behalf of such town for such purpose before the passage of this act.”

The authority to enable the boards of supervisors to act was provided in the act (sec. 9) to be upon “-written applications of the supervisor, town clerk, justices of the peace, and commissioners of highways, or a majority of them of such town, or if more than one town is affected thereby, then of said officers or a majority of them of each of such towns.” While this act provided for the contingency of a road extending into more than one town, it was silent as to roads in towns wherein there were incorporated villages in which the powers of the town commissioners of highways were taken away and given to the village trustees. There were such towns in Queens county, and apparently to meet the case the Legislature, by chapter 323, Laws of 1873, provided by amendment that whore the proposed road passed through an incorporated village, the consent of a majority of the trustees should also be obtained before the supervisors could grant the power to borrow money for such road. In the case under consideration, .the consent of the town officers was obtained. The consent of live out of seven trustees of the village of Flushing was obtained, but it does not appear that the trustees took a vote upon the question. We think that action by the boards of trustees was not required by this amendment. The words are, “majority óf the trustees” of the village. A majority of these trustees did sign a written request for authority to make the loan. The road for which the loan was made only passed through the village of Flushing. There are two other incorporated villages, Whitostone and College Point, also situated in and carved out of territory of the town of Flushing. Except for village purposes the territory embraced in the villages still forms part of the town of Flushing. It was within the power of the Legislature to authorize a loan upon a town which included villages, for the purpose of laying and improving a road or roads which did not pass in whole or in part through either of the villages.

The order should be reversed, with costs and disbursements.

DyicmaN, J., concurred; Gilbert, J., not sitting.

Judgment and order reversed, with costs and disbursements.


author: JBaiíNard, P. J.:

text:
    ELEANOR TERRETT, Appellant, v. THE BROOKLYN IMPROVEMENT COMPANY and others, Respondents.

      Mortgage — not covered, by the word “ conveyance” contained in an exception in a deed — A sale under a judgment is void when the judgment is in effect paid — Confession of judgment — what sufficient.

    A sheriff’s deed, given in pursuance of a sale under an execution, after deserib- ■ ing certain premises, proceeded: ‘ Excepting from and out of such sale such parts of Said premises (it any) as had been lawfully conveyed by said Cowen-hoven and others, by conveyances duly recorded in the registrar’s office of Kings county, prior to October 12, 1855.” Prior to the time mentioned the same premises, described in the deed, had been mortgaged by Cowenhoven.

      Held, that the mortgage was not a conveyance within the intention and meaning of such exception.
    Cowenhoven conveyed certain lands to one Cook, in payment of a judgment held by Cook against him, and agreed to discharge certain incumbrances thereon; Cook to hold the judgment until he Should do so. Subsequently, in an action by Cowenhoven to have the judgment satisfied, it was adjudged that Cook was entitled to enforce it as a security and indemnity against the liens and incum-brances referred to in the agreement, but for no other purpose, and a reference was ordered to ascertain the amount for which the judgment might be hold and enforced. Subsequently, and without aiiy proceedings having been had before the referee, land belonging to Cowenhoven was sold under the judgment, and a deed executed to the purchaser.

      Held, that the sale was void, as having been made, in effect, under a paid judgment.
    A confession of judgment in which the defendant states that the indebtedness “ is for a debt justly due from me to said plaintiff for moneys to that amount loaned and advanced to me by said plaintiff,” is sufficient as between tho parties and is only voidable, if at all, in a direct action or motion to vacate it by a junior judgment creditor or bona fide purchaser.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action by the court without a jury.
    The action was brought in the City Court of Brooklyn.
    The appeal could not be heard at the General Term of that court, owing to the incapacity of the judges thereof to hear it.
    The action was one of ejectment, brought to recover the possession of certain premises situated in the city of Brooklyn.

      B. P. Barnard, for the appellant.

      Henry O. Murphy, Jr., Winchester Britton, and JEdwin O. Litchfield, for the respondents.
   JBaiíNard, P. J.:

The plaintiff’s title is derived from the sheriff’s sale and deed under a judgment confessed by Cowenhoven (the source of title) to Gilbert R. Tcrrett on May 30, 1853. The only statement of the grounds of indebtedness, in the confession of judgment (after ■ stating the amount for which judgment is authorized to be entered), is as follows : This “ confession of judgment is for a debt justly due from me to said plaintiff for moneys to that amount loaned and advanced to me by said plaintiff.” . This statement ivas sufficient as between the parties to the judgment, and the judgment was only voidable, if at all, in a direct action or motion to vacate it by a junior judgment-creditor or bona fide purchaser. (Neusbaum v. Keim, 24 N. Y., 325; Harrison v. Gibbons, 71 id., 58.) It was not expressely proved that the premises, to recover which this action is brought, wore embraced in the description of property conveyed by the sheriff’s deed, but I think it was substantially conceded on the trial that they were so included.

After the plaintiff’s proofs had been taken a motion was made to dismiss the complaint upon the ground, among others, that the premises in question were covered by a certain mortgage executed by Cowenhoven to Lowrey, and as the sheriff’s deed excepted all property prior to a certain date conveyed by Cowenhoven, it was contended that the mortgage was a conveyance, and that, there fore, the property described in it was excepted from the sheriff’s deed. It is a fair inference that but, for the exception, the property in question would have been conveyed by such deed. The premises included in the mortgage are therein described by the same description as that embraced in the complaint in the present action. It was not alleged that Cowenhoven had conveyed the premises otherwise than by the mortgage. If the mortgage was not a conveyance of the land, within the meaning of the exception in the sheriff’s deed, it follows that such land was embraced in the property wnich that deed purported to convey. After the judge had denied the motion to dismiss, I think the question which he passed upon in his opinion there pronounced should have been treated as settled for all the purposes of the trial, otherwise the parties were liable to be misled. The sheriff’s deed, after describing the premises sold, contains the following exception: 11 Excepting from and. out of such sale such parts of said premises (if any) as had been lawfully conveyed by said Cowen-hovon to others by conveyances duly recorded in the register’s office, of Kings county, prior to October 12, 1855.”

I think the mortgage to Lowrey was not a conveyance within the intention and meaning of this .exception. The intention was to convey or sell by the sheriff’s deed all the estate the judgment-debtor had remaining in the property.

The mortgage did not divest him of the legal title, but left him still the owner of such an estate therein as could be sold under execution. A mortgage is only a lien, and the mortgagor continues both in law and equity to be the owner of the fee. (Trustees of Union College v. Wheeler, 61 N. Y., 118.)

The exception above stated did not render the sheriff’s deed void for uncertainty. It was not necessary that the excepted parts should be particularly described in the deed. The reference to the record in the register’s office furnished sufficient means of ascertaining the extent of the exception.

The defendants derive their title from a sheriff’s sale under executions upon judgments in favor of Purcell Cook against Cowen-hoven, prior to the judgment, which is the basis of the plaintiff’s title. It appeared in evidence that Cowenhoven sold and conveyed to Cook certain lands to pay such judgments; that the lands so conveyed were incumbered, and that it was agreed between them that Cook should hold the judgments until Cowenhoven should remove the incumbrances. Afterwards, Cowenhoven commenced a suit in equity against Cook to have the judgments canceled, and a decree therein was finally rendered, to the effect, that Cook was entitled to hold and enforce the judgments as “ security and indemnity against the liens and incumbrances referred to in the agreement between the parties,” but for no other purpose, and ordering a reference to ascertain the amount for which the judgments might be held and enforced. No proceedings were ever had before the referee, and, as I understand the evidence, it was not proved that Cook ever paid anything upon the liens and incumbrances against which these judgments were his security. The judgments were paid by the conveyance from Cowenhoven to Cook, unless Cook sustained damages by reason of thei incumbrances, and in that event the judgments were to be enforced for the amount of such damages only. By the decree above referred to Cook was required to establish before the referee the amount, if any, for which the judgments might be enforced, before he had any power to enforce them, by executions and sales under them. Having issued executions thereon without first ascertaining, in the manner directed by the decree, whether anything and how much was due to him thereon, and having sold the property in question under such executions such sales were illegal and void. They were, in effect, sales under paid judgments, and even bona fide purchasers could obtain no title at such sales. (Wood v. Colvin, 2 Hill, 566; Carpenter v. Stilwell, 11 N. Y., 71-76.) The facts found concerning the foreclosure suit of Hart (assignee of the Lowrey mortgage) against Cowenliovcn, in which the Cook judgments are admitted to be liens prior to the mortgage, and the findings concerning the judgment and execution sale in favor of Horatio G. Onderdonk, all relate to a period prior to the decree in the case of Cowenhoven v. Cook, and one of no importance in the determination of the present action.

The deeds to the defendants from the collector of taxes are ineffectual as a defence, because the facts and proceedings required by the statute to give the collector power to sell were not proven. Without such proof the deeds were not sufficient to protect the defendants in their possession. (Rathbone v. Hooney, 58 N. Y., 463; Marsh v. City of Brooklyn, 59 id., 280: Hilton v. Bender, 69 id., 75.)

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

DykmaN, J., concurred; Gilbert. J., dissented.

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


author: BARNARD, P. J. :

text:
    CHARLES Z. GILLETTE, Respondent, v. HOWELL D. SMITH and others, Appellants.
    Note— when avoided, by an alteration — debt secured by, still recoverable — action of foréelosm'e — pending action upon the note, not a bar to.

    In 1853 the defendant Smith being indebted to a firm composed of Jacob Smith and Reuben Edwards, for lumber purchased of it, and for interest thereon, gave them his note under seal, payable to their order, and also a mortgage on land to secure the payment of the amount due. Subsequently the firm was dissolved and the note and mortgage were transferred to Smith, unindorsed. Thereafter he, without authority, but not with a fraudulent intent, struck from the note the name of Edwards.
    In an action to foreclose the mortgage, held, that although the note was destroyed by this alteration, yet the debt which it was given to secure was still unpaid, and could be collected by foreclosing the mortgage.
    A mortgage given to secure the payment of a simple contract debt may be foreclosed at any time within twenty years.
    Before the commencement of this action, an action had been commenced upon the note, which was still pending. Held, that this was not a bar to the action of foreclosure.
    Appeal from a judgment of foreclosure and sale entered upon the trial of this action by the court without a jury.
    The action was brought to foreclose a mortgage. In addition to the matters of defence set forth in the following opinion, the answer contained the following counter-claim. This defendant, for a further answer and defence to the whole complaint, by way of counter-claim, says : That on the 22d day of October, 1860, the said Jacob Smith was (if the said note then had any vitality whatever) Lie owner and holder of said note, and so continued to own and hold it during all the time hereafter stated, and this defendant, on the said 22d day of October, I860, loaned to said Jacob Smith one hundred dollars in gold coin to wit: Five twenty dollar gold pieces ; which the said Jacob Smith promised to return to 'this defendant, in gold coin, when requested. That said Jacob Smith has not returned the same. That on or about the 1st of January, 1864, this defendant demanded of said Jacob Smith the return of said gold coin, but he refused to return the same. That said gold coin was then worth, in the market, two hundred and sixty dollars in current bills. That said Jacob Smith, about the same time, paid this defendant one hundred dollars in bank bills, which this dciendant agreed to receive, and did receive, on account of said two hundred and sixty dollars, but demanded the said gold or the then value, which the said Jacob Smith refused to pay, and has not paid or delivered the same to this defendant; and there is and ivas, at the time of the alleged assignment of said note to the plaintiif, due to this defendant on account thereof, one hundred and sixty dollars, with interest from January 1, 1864, which this defendant counter-claims against the plaintiff's claims herein, to the extent of said claim.

      J. Lawrence Smith, for the appellants.

      Timothy M. Griffing, for the respondent.
   BARNARD, P. J. :

The facts in this case are simple and entirely uncontradicted. In 1852, Howell D. Smith, one of the defendants, became indebted to Jacob Smith and Reuben. Edwards, as partners, in the sum of $167, for lumber bought by him of that firm. In October of that year, Howell D. Smith executed a scaled note to Smith & Edwards, and also at the same time executed to them a mortgage on lands as collateral thereto. In 1853, the firm became dissatisfied with the mortgage security, and the note of 1852, with the accompanying mortgage, were given up and canceled, and a new note, with accrued interest added, also sealed, accompanied by a mortgage on other property was substituted in the place of those canceled. The now note and mortgage was for $173.45. Within two or three yoasrs thereafter the firm of Smith & Edwards was dissolved, and on the settlement between the partners, this last note, which was payable by its terms to Jacob Smith and Reuben Edwards, was to go to Jacob Smith. Edwards did not indorse the note to Smith, and made no other transfer beyond a delivery thereof to liis partner. Jacob Smith, without the consent of his late partner, erased the name of Reuben Edwards as one of the payees, which erasure left the note payable to Jacob Smith alone. There is no ground for a belief that this erasure was made for any evil purpose. Jacob Smith ignorantly supposed that he owned the note, and could make it so express. He did own it, and there was no possible gain by the erasure to him. He did make the erasure, however, and he probably thereby destroyed the note as such. This action is to foreclose the mortgage. The mortgage is as much a security for $173.45, as was the note ; both were given to secure the lumber bill. That lumber bill followed the transfer by Edwards to Smith, and through their assignment to plaintiff. (Gerwig v. Sitterly, 56 N. Y., 214.)

The effect of the erasure was to make the note insufficient alone to prove the debt, and it was upon that ground, I presume, the case was sent back before. The erasure did not operate to pay the debt. The mortgage recites the note payable to Smith & Edwards, but it is given to secure the debt upon which the note was founded. The proof of the debt is now abundant and undisputed. If this is the laiv applicable to the case, there is no question of the statute of limitation. A simple contract debt, barred in six years, secured by a sealed mortgage, may be enforced by foreclosure within twenty years. (Pratt v. Huggins, 29 Barb., 277; Heyer v. Pruyn, 7 Paige, 465.)

There is an additional point made, that there is a former suit pending for the same cause of action. In 1866, Jacob Smith sued the note in question; an answer was put in, and the same has never been tried. While it was pending, and before this action Was commenced, Smith & Edwards formally transferred note and mortgage to the plaintiff. Could Jacob Smith sue the note, and after ho commenced such action, and before judgment, could he bring an action to foreclose the mortgage ? I can find no authority against such an action. Under the statute regulating the power of the Court of Chancery, no action could be brought without leave of the Court of Chancery after foreclosure actions commenced. (2 R. S., 191, § 153.) Such action at law, if commenced before foreclosure action, could not be proceeded with after the foreclosure action was commenced. The action at law was not a bar to the foreclosure action. (Suydam v. Bartle, 9 Paige Ch., 294; Williamson v. Champlin, 8 Paige, 70.) Unless restricted by statute, independent actions may be commenced adapted to different remedies based upon securities collateral to the debt. (Gambling v. Haight, 59 N. Y., 354.) In October, 1860, Howell D. Smith loaned Jacob Smith $100, payable in gold.

In the fall of 1863 gold was worth 260. Jacob Smith then paid $100 in currency, and refused to pay more. The question is now unimportant, except that Jacob Smith not only had the gold and paid no premium, but has paid no interest in currency. Three years interest on $100 being twenty-one dollars, with interest on this sum from October, 1868, should be deducted from the amount found due at Special Term, and in other respects the judgment should be affirmed, without costs of this appeal.

DyKMAN, J.. concurred; Gilbert, J., not sitting.

Judgment modified, by striking out from judgment twenty-one dollars and interest thereon from October, 1868, and affirmed as to residue, without costs to either party on appeal.


author: BaeNAkd, P. J. :

text:
    PHEBE MARIA CLARK AND HENRY L. CLARK her Husband, Respondents, v. THOMAS McCANN, Appellant, Impleaded with others.

      Statute of limitations — exemption of married woman from — taken away by chap. 741 of 1870.
    Phebe M. Clark, ike plaintiff in ejectment, owned in 1850, in her own right, the premises described in the complaint. She was then, ever since has been and still is, a married woman. In 1850, defendants’ grantor wrongfully entered into possession of the premises and occupied and continued to occupy the same adversely to her. This action was commenced in 1877, to recover possession thereof.

      Held, that although her disability to bring an action to recover the land was removed by chapter 90 of 1860, yet, as the provision in section 88 of the Code of 1849, preventing the running of the statute as against married women during coverture, was not repealed until the passage of chapter 741 of 1870, that the plaintiff had ten years from the passage of the latter act within which to bring an action.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action by the court without a jury.

      Tbe action was brought to recover possession of certain land alleged to belong to tbe plaiutilT Phebe M. Clark.
    The defendants claimed title thereto under conveyances from one Warren Beeman, who entered into possession thereof in 1850.

      JB. F. Tracy, for the appellant.

      I). jP. Barnard, for the respondents.
   BaeNAkd, P. J. :

Phebe Clark, in 1850, owned in her own right, the premises described in the complaint. She was then, and has ever since been and still is, a married woman. In 1850, one Warren Ben-ner entered wrongfully into the possession thereof and occupied the same adversely to the owner. The defendants wrongfully withheld possession of the premises unless the cause of action is barred by the statute. This action was commenced in 1877. As the statute stood in 1850 the twenty year limitation did not run against a married woman. (Sec. 88, Code of 1849.) She had ten years after the disability ceased. In 1860, the Legislature removed all disabilities upon the part of married women to bring actions to recover lands. (Chap. 90, Laws of 1860.) The section of the Code which prevented the operation of the statute against married women continued still the same until May 6, 1870. By chapter 741 of Laws of 1870, the Legislature struck out “married woman” from among the classes of persons against whom the time for the limitation of actions did not run. (Laws of 1870, p. 1833, sec. 5.) It is thus seen that the statute of 1849 is based upon the disability of married women to sue. In 1860 the disability is removed, but the statute which exempted married women from the operation of the statute, and gave ten years after the disability ceases in which to bring actions, was continued. In 1870 the change of the statute in reference to the limitation of actions against married women is made to conform to the law of 1860, which removed the disability. It cannot be contended that the Legislature intended to deprive married women of the ten years granted married women to bring actions after disability ceased. Whether married women could sue or not after 1860 the fact of being a married woman carried with it the right to that class of persons not to sue, and to have ten years after the marriage relations ceased in which to bring the action. So far as afleots the statute of limitations married women must be considered under disability until 1870, when they were put on the same footing as their husbands in respect to bringing actions within twenty years or being barred by lapse of time. By section 73 of the Code, as amended by the act of May, 1870, the title, in regard to the limitation of actions did not apply to cases whore the right of action had already accrued. (Sec. 73, Code, § 15, ch. 741 of 1870.) The construction claimed, that by reason of a failure to sue in ten years after 1860, the plaintiff’s right of action was destroyed, would be a very cruel construction. She relied upon a statute which extended the time of bringing actions to married women until ten years after the marriage relation ceased; by striking out the words “married woman” from the Code of 1849, by the amendment of 1870, her right of action is destroyed instantly. I think the plaintiff had ten years after May 6, 1870, before she was barred by the statute of limitations. The case of Ball v. Bullard (52 Barb., 141) does not seem to be based upon the correct construction of the two statutes. The act of 1860 does not, I think, destroy the express statute that married women shall not be included among those against whom the statute of limitation runs, although thei'c was, in fact, no disability arising from the marriage relation. If she is not barred standing alone she is not by the joinder of her husband as co-plaintiff with her.

There is no objection made as to non-joinder of parties, and the recovery is had entirely upon her title. The husband avers that he has an estate for life as tenant by the curtesy, which is neither proven nor disproven. If he had such an estate he could, by joinder with his wife, unite the two titles. If he has not such an estate he is a merely nominal and needless party not objected to by answer.

Judgment affirmed, with costs.

I) y KM AN J., concurred ; Gilbert, J., not sitting.

Judgment affirmed, with costs.


author: Gilbeet, J.:

text:
    BENJAMIN COX as Executor, etc., of SAMUEL LEGGETT, Deceased, Appellant, v. WILLIAM H. SCHERMERHORN, Executor, etc., of SAMUEL LEGGETT, Deceased, and REBECCA F. WILLETTS, Respondents.

      Appeal by an executor from the decree of a surrogate ■— ñght of respondents to object to items in the account — Commissions of an executor, where land has been sold subject to mortgages.

    Where an executor appeals from a decree of the surrogate, entered upon the final settlement of his accounts, and the petition of appeal contains a specification of but one item, the respondent may set forth such other items of the account as he may claim to be erroneous, as against him and in favor of the appellant though the error be one which is prejudicial to the respondent, only in common with all the other beneficiaries, none of whom have appealed or applied to be made respondents.

      Moss v. Moss (6 Hun, 80), overruled.
    Where an executor sells real estate, subject to mortgages, he is entitled to commissions on the whole purchase-price, including the amount secured to be paid by the mortgages, and is not limited to commissions on what remains after deducting the amount of the mortgages therefrom.
    Appeal from a decree of tbe surrogate of Queens county, made on the final accounting of the executors of the last will and testament of Samuel Leggett, deceased.
    The appellant objected to that part of the decree which adjudged that ho and his co-executor, William H. Schermerhorn, should pay to the estate a sum of $6,254.82 (viz.: $11,254.82, less $5,000 which had been returned), which had been lost. The appeal was not from that part of the decree which hold the executors liable for the amount, but it asked that the decree should be so modified as to make the executor Schermerhorn primarily liable; and if the amount, or any portion thereof, should be paid by or collected from the appellant, that the said Schermerhorn should refund the same to him.
    The decree was made January 14, 1877. The petition of appeal was verified and the order to answer was made May 24, 1877. On the 27th of Juno, 1877, more than one month after the appeal was taken, and after her time to appeal, had expired, Rebecca E. Willetts, one of the beneficiaries under the will, made and verified a petition, asking that the petition of appeal should be amended by inserting her name as a respondent, and an order to that effect was made by the Supreme Court, tbe same being opposed by the appellant. The said Rebecca F. Willetts thereupon answered the petition, and specified several errors which she claimed had been committed in the settlement of the accounts, which tended to decrease the amount to be divided among the beneficiaries.

      Win. H. OnderdonJc, for the appellant.

      Benjamin W. Doioning, for the respondent, Willetts.
   Gilbeet, J.:

This is an appeal from the decree of the surrogate pf Queens county for the final settlement of the account of the executors of Samuel Leggett, deceased. Such an appeal is authorized by statute. (2 R. S., 610, § 105), and the same statute provides that the Supreme Court shall prescribe by rule the course of practice thereon, and on appeals from surrogates ” in other cases specified. (Id., 611, § 120.) Rule 42 of this court was adopted in the fulfillment of that requirement. The appeal before us, therefore, must be governed by that rule. That rule provides that “ if the appellant wishes to review the decision as to the allowance or rejection of any particular items of the account, such items shall be specified in the notice of appeal, or the allowance or disallowance of any such items shall not be considered a sufficient ground for reversing or modifying the sentence or decree appealed from. The rule also provides that the respondent, in his answer to the petition of appeal in such case, may also specify any items in the account as to which he supposes the sentence or decree is erroneous, as against him and in favor of the appellant. The petition of appeal contains a specification of one item, and prays for a reversal of the decree as well as a modification of it in another particular’. Although the appellant does not now desire a correction of that item of the account, that fact cannot affect the rights of the respondent. Her answer, therefore, properly sets forth items of the account which she claims to be erroneous, and as Mr. Cox’s co-executor did not appeal, I think the errors should be treated as errors in favor of the actual appellant-. For the same reason ' the errors should be treated as errors against Mrs. Willetts, alone inasmuch as no other party who could be prejudiced thereby has appealed from the decree, or applied to be made respondent in this appeal. It would, as it seems to me, be a narrow and unwarrantable construction of the rule to hold that because the errors specified in the answer of Mrs. Willetts are against all the beneficiaries, they are not against herself who is one of them. The greater includes the less. Whatever affects the entire estate affects each person interested therein. That maxim, I think, should be applied in a matter of practice, whenever the rejection of it would annul or impair a substantial right. Certainly the objection’ referred to would not have been a good one to a petition of appeal of Mrs. Willetts. If it were, the sole right of appeal given to her would be frustrated. I see no reason why such objection should have any greater force because the errors complained of are specified in an answer instead of a petition. The fact that she could not appeal without giving security, whereas the rule affords her the same remedy without security, upon an appeal by an executor, seems to me to have no bearing upon the construction of the rule. So far as the case of Ross v. Ross (6 Hun, 80) conflicts with these views, I cannot concur in the decision.

But I am of opinion that no error in the disposition made by the surrogate of the account .has been shown. As to the item of $2,310 received by the appellant’s co-executor Mr. Schermorhorn for rent of four lots on Twenty-second and Twenty-third streets, in the city of New York, the surrogate has found the fact that he expended for taxes, insurance and interest, on account of the property, a larger sum than he received. The statement in the case that he paid no taxes is not inconsistent with the finding in respect to the payment of insurance and interest. As the whole evidence is not before us we have no means of reviewing the decision of the surrogate on this question of fact.

The case does not show any error in the allowance of interest upon the item of $11,254.82-100, for it must be presumed that the executors were charged with interest upon all sums received by them during the period interest was chargeable thereon, as the case does not show that they were not so charged. It appears that the sum mentioned was credited to the executors as a payment by them in 1871, and that the executors were required to refund that sum, and were charged with interest from that time.

The award of the arbitrators had no binding effect on the executors, for the reason that they were not parties to it. Nor would it have been proper for the surrogate to modify the accounting in accordance therewith, for he had no jurisdiction to try the justice or validity of an award. Putting the award aside, we think the decision of the surrogate in respect to the question of the advances to the daughters of the testator and of commissions was correct.

The rate allowed for commissions seems to be in accordance with the statute, and I think the allowance of commissions on the price of the real estate, sold subject to mortgages, instead of such price reduced by the amount of the mortgages, was proper. The executors were liable for the price for which the property was sold. The allowing the mortgages to remain, instead of paying them off, was equivalent to a payment by the purchaser of so much of the price sub modo, and was the same in effect as if the executors had paid off the mortgages and received new ones from the purchaser. (In re De Peyster, 4 Sand. Ch., 511.)

It follows that the decree should be affirmed, as to the respondent Willetts, with costs.

Barnard, P. J., and DvicmaN, JJ., concurred.

Order of surrogate affirmed, with costs.


author: Gilbert, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT C. BANCROFT, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF ORANGE, Appellant.

      Charter of Newburgh— § 9, titled, chap. 541 of1865 — to what fees applicable— Conveyance of prisoner's to the penitentiary and to the house of refuge, a county charge.

    Section 9 of title 4 of chapter 541 of 1865, the charter of the city of Newburgh, providing that “ the marshalshallpossess the powers and authority of a constable at common law,” and that “ he shall also perform such duties as shall be prescribed by the common council,” and further, that “ he shall receive no fee for any services, but shall be allowed a compensation to be fixed by the council,” only prevents his receiving fees for services which are a charge against the city, and not for those which are county charges.
    Under chapter 108 of 1876 and chapter 254 of 1859 the expenses and fees of constables for conveying prisoners to the Albany Penitentiary and juvenile delinquents to the House of Kefugo are county charges.
    Appeal from an order made at Special Term, awarding a peremptory writ of mandamus, requiring tbe appellants to pay certain claims of the relator.
    The controversy arose principally in respect to the proper construction of section 9, title 4 of chapter 541 of the Laws of 1865, which reads as follows: “ The marshal shall possess the power and authority of a constable at common law, and under the statutes of the State, except that he shall not have power to serve any civil process issued by any justice of the peace. He shall also perform such duties as shall be prescribed by the common council for the preservation of the public peace, the care of the public property, and the maintenance of the police regulations and the municipal ordinances of said city. He shall receive no fee for any services, but shall be allowed a compensation to be fixed by the council.” 1

      Geo. W. Greene, for the appellant.

      M. II. Ilirscliberg, for the respondent.
   Gilbert, J. :

The relator was marshal of the city of Newburgh and ex officio police constable of that city in the years 1877 and 1878. The important question presented is, whether he is entitled to be paid for conveying prisoners to the Albany penitentiary, and juvenile delinquents to the house of refuge, and whether compensation for such services is a county charge. 1

"With respect to the first question I am of opinion that a proper construction of section 9, title 4 of the charter of the city of New-burgh (chap. 541 of 1865) requires that the clause which disentitles the marshal to a fee for any services must be limited to fees for services which otherwise would have become a charge against the city. That section requires him to perform such duties as shall be prescribed by the common council, in respect to several matters specified, and then follows the provision that he shall receive no fee for any services, but shall receive a compensation to be fixed by the council. Obviously the Legislature intended to prescribe what services he should perform as a city officer, and to provide a fixed compensation, instead of fees, therefor. Nothing more ; for the charter vests him with the powers of a police constable. lie is, therefore, to perform other services which, by express provisions of law, are made chargeable against the county, and for which specific compensation has been provided. By no rule of construction can the charter be regarded as a repeal of 'those provisions.

As to the second question, it seems to me that the services in question are a county charge. In the enumeration of county charges in the Revised Statutes is the compensation of constables and other officers, for the expenses and services in conveying prisoners to jails. (1 R. S. [6th eel.], 927, § 3; 3 id., 1048, § 3; 1054, § 29.) If the claim of the relator had been for conveying prisoners to jail, therefore, there could’ have been no question that a valid claim for such services would constitute a county iharge. It was the duty of the relator, however, to convey them • lireetly to the penitentiary, and for those services he is entitled, by express provision of law, to bo paid such fees and expenses as ihe boai-d of supervisors shall prescribe and allow. (Laws 1876, chap. 108.) The respondents fixed such compensation by resolution, passed December 17, 1877, and the claim of the relator seems to bo in accordance therewith.

It is contended that by chapter 123, Laws 1849, the expense of conveying prisoners to the house of refuge is a State charge. That act is, by its terms, limited to the compensations of sheriffs. When the conviction is by a court of Special Sessions, and the sentence of the court is carried into effect by a marshal or constable, it would seem that statute does not apply. By chapter 254 of the Laws of 1859, express authority was conferred upon boards of supervisors, and it was made their duty annually to fix and determine the compensation to be allowed and paid to officers, for the conveyance of juvenile delinquents to the houses of refuge. The respondents having performed the duty so enjoined upon them, I think the relator, by a fair construction of the act of 1859, taken in connection with the provisions of the Revised Statutes cited, is entitled to compensation for the services performed by him. Any other construction would leave him without any compensation therefor. Indeed it would require no great stretch of words to hold that a house of refuge is a jail, within the intent of the Revised Statutes. Each is a place of confinement of persons held in custody, and compensation, I think, was intended to be given for conveying to such a place prisoners, pursuant to convictions for criminal offences by courts of Special Sessions. The relator is one of the officers designated by statute to execute the judgment of such courts. (3 R. S. [6th ed.], 1011, § 43.)

The order' and judgment should be affirmed, with costs and disbursements.

Dyicman, J., concurred ; Barnard, P. J., not sitting.

Order granting mandamus affirmed, with costs and disbursements.