author: Hardin, P.. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN NAVAGH and JAMES A. MILNE, Respondents, v. WILLIAM A. FRINK and ROBERT McNAUGHT, Appellants. THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. JOHN NAVAGH and JAMES A. MILNE, Respondents.

      Warrant of arrest against persons unlawfully confining a child — when the prisoners must be brought before the justice issuing the warrant— Code of Civil Procedure, secs. 2054, 2057 — when notice must be given to the district attorney — Code of Civil Procedure, sec. 2088.
    Appeal from an order, made by a justice of the Supreme Court in the city of Oswego, upon the return to a writ of habeas corpus issued by him, admitting to bail John Navagh and James A. Milne, and directing their discharge from the custody of William A. Frink and Robert McNaught, by whom they were held in virtue of a warrant issued by a justice of the Supreme Court, who resided in the city of New York, commanding Frink and McNaught, municipal police officers of the city of New York, named in the warrant, to arrest the said Navagh and Milne and bring them before the justice who issued the warrant to be dealt with according to law.
    From the papers and warrant under which the relators had been arrested, it appeared that a child under the age of twelve years was unlawfully held in confinement by the relators in tbe city of Oswego, the warrant reciting facts sufficient to constitute the offense of kidnapping as defined in section 211 of the Penal Code; and further reciting that there was good reason to believe that the child would be carried out of the State, or would suffer irreparable injury at the hands of the relators before it could be relieved by the issuing of a habeas corpus or certiorari, and also that it satisfactorily appeared to the officer issuing the warrant that the said child was held in unlawful confinement and custody by the said relators.

      Held, that the facts stated justified the issuing of the warrant under the provisions of section 2054 of the Code of Civil Procedure.
    That it was the duty of the persons named in the warrant to arrest the prisoners and carry them before the justice who issued it, to the end that they might be examined and committed, bailed or discharged, as in other criminal cases, as provided by section 2057 of the said Code.
    That as the offense with which the prisoners were charged was a felony the justice who issued the warrant had exclusive, jurisdiction (except in case of his absence or inability to act), and that the justice in Oswego had no power to make the order appealed from.
    That the failure to give notice, of the time when and the place where the writ of habeas corpus was returnable, to the district attorney of the county of Oswego, as required by section 2038 of the Code of Civil Procedure, rendered the granting of the order irregular.
    Appeals from an order made December 22, 1885, by a justice of this court, in tlie city of Oswego, admitting to bail John Navagli and James A. Milne, and directing their discharge from the custody of William E. Frink and Robert McNaught, by whom they were held by virtue of a warrant issued by a justice of the Supreme Court, who resided in the city of New York, commanding Frink and McNaught, municipal police officers of the city of New York, named in said warrant, to “arrest the said John Navagh and the said J. A. Milne, and bring them and each of them before” the justice who issued said warrant, to be dealt with according to law.
    After the police officers had arrested Navagh and Milne, and had them in custody in virtue of the warrant, a justice of this court, residing in and being in the city of Oswego, where the arrest was made, granted a writ of habeas corpus on the petition of Milne and Navagli, requiring Frink and McNaught to have “ the body of John Navagh and James A. Milne,” before the said justice at chambers, in the city of Oswego, to do and receive what shall then and there be considered concerning the said John Navagh and James A. Milne, and each of them.

      The writ of habeas corpus was allowed the 22d of December, 1885. A return was made thereto by Frinlc and McNaught, viz.: “ First. That at the time such writ was served on them, the 22d of December, 1885, we had in our custody John Navagh and James A. Milne, for whose relief the writ was issued. Second. That they so had said Navagh and Milne in custody under and by virtue of a writ or warrant of which a copy is hereto annexed, a copy of which is also annexed to the petition for this writ, and that they have the original ready to be produced as the court may clirsct)»
    WILLIAM E. FEINK.
    EOBEET MoNAUGHT.”
    Appended to the return is an affidavit purporting to be signed by Frink and McNaught, ,to the effect that the return was true. That affidavit purports to have been sworn to on the 22d day of December, 1885, although there is no signature of an officer before whom it was taken.
    The papers upon this appeal do not show that any question was made upon the return of the writ in respect to whether it was sworn to before an officer or not. After the return was made the justice of this court, wrho issued the writ of habeas corpus, indorsed upon the writ the following order, viz.: “ The within named John Navagh and James A. Milne having been brought before me by virtue of the within -writ, and the said parties having been admitted to bail for the offense charged in the sum of $1,000, it is ordered that said Navagh and Milne be and they are hereby discharged from custody. Dated Oswego, December 22, 1885.” The order was signed by the justice who issued the writ of habeas corpus.

    From that, order two appeals were taken, which were heard together. One by the district attorney of Oswego county, in behalf of the people, and the other by Frink and McNaught. The appeals came on to be heard and were heard together on the same papers by consent of counsel. The certificate of the clerk of Oswego county is to the effect that the papers furnished on this appeal are copies of the warrant, application, writ, order, return, notices of appeal and indorsements thereon filed in his office.

      S- B. Mead, district attorney of Oswego comity, and ETbridge T. Gerry, for the appellants.

      W. A. Poueher and WilLidm Tiffany, for the respondents.
   Hardin, P.. J.:

From the papers before ns it would appear that Eugenia Meehan was alleged “ to be held in unlawful confinement and custody by one John Navagh and one J. A. Milne, in the city of Oswego, * * * of which child ” the New York Society for the Prevention of Cruelty to Children is the “ lawful guardian, duly appointed such by the Supreme Court of this State by order thereof duly made and entered.”

It also appears that the child was under twelve years of age, to wit, three years and five months, and that Navagh and Milne “are not, nor is either the lawful guardian of such child or entitled to its custody, care or control, and that said child was seized and taken possession of by them on the death of its mother without any warrant or authority of law, and that they refused to deliver said child to said society.”

It also appears that Navagh, with the counsel and assistance of Milne, “ unlawfully, feloniously and willfully did seize, confine, inveigle and kidnap the said child with intent to cause her, without the authority of law, to be secretly confined within this State, and did then and there unlawfully, feloniously and willfully lead, take, entice away and detain the said child, * * * with intent then and there to keep and conceal said child from the persons having the lawful care and control thereof, in violation of the provisions of section 211 of the Penal Code of the State of New York.”

And it appears also upon the papers before us that it was alleged that said child, viz.: “ Is now by the said John Navagh and the said J. A. Milne secretly confined, kept and concealed as aforesaid in violation of the legal rights of said society as the lawful guardian of said child.”

It appears also that it was stated in the warrant so issued by a justice of this court, viz.: “ That there is good reason to believe that the said child will be carried out of the State by, or will suffer irreparable injury at, the hands of the said John Navagh and the said J. A. Milne, before said child can be relieved by the issuing of a habeas corpus or certiorari.” It was also recited in tbe warrant, viz.: It satisfactorily appears to tbe officer issuing tbe warrant “ that tbe said child Eugenia is held in unlawful confinement and custody by the said John Navagh and the said J. A. Milne.”

According to the tenor of the warrant and the return made to the writ of habeas corpus, it would seem that the warrant was issued in pursuance of section 2054 of the Code of Civil Procedure. That section authorized the issuance of the warrant and the arrest of Navagh and Milne. That section provides for a warrant of the character of the one now before us. It also authorized the direction of such a warrant to a “person specially designated therein,” and commanding him to take and forthwith bring before the court or judge the prisoner, to be dealt with according to law. Proceedings under that statute are criminal in their nature. (People v. Gilmore, 26 Hun, 1; S. C. affirmed, 88 N. Y., 626.)

In section 211 of the Penal Code, defining the crime of kidnapping, it is provided that a person who willfully leads, takes, entices away or detains a child under the age of twelve years, with intent to beep or conceal it from its parent, guardian or other person having lawful care or control thereof, * * * is guilty of kidnapping, and is punishable by imprisonment for not more than fifteen years.

We are of the opinion that the warrant before us charged a felony against Navagh and Milne under the section from which we have quoted, and that all the facts and allegations requisite to bring the case within section 2054 of the Code of Civil Procedure, which authorizes a warrant, are found in the warrant under which Navagh and Milne were arrested. It was the duty of the persons who received the warrant for execution to take the prisoners therein named before the judge issuing the warrant. (Code of Civil Pro., § 2056.)

It is provided in that section that wherever it appears that the “person detaining the prisoner” is'thus taken before a judge in virtue of such a warrant, that the person “mu-st make a return in like manner, and the like proceedings must be taken as if a writ of habeas corpus had been issued in the first instance.” It is further ■provided by section 2057 that the person thus arrested “ is entitled to be examined, and must be committed, bailed or discharged by the court or judge as in any other criminal case of the same nature.”

We are of the opinion that it was the duty of the officer or officers receiving the warrant to carry the prisoners before the magistrate who issued it to the end that such proceedings as are authorized by the section to which we have alluded might be had, and to the end that they might be “ examined, * * * committed, bailed or discharged by * * * the judge as in other criminal cases of the same nature.” The grade of the crime charged in the warrant was that of felony. It was within the province of the judge who issued the warrant to deal with the' prisoner’s offense named in the warrant. We think this sufficiently appears from the tenor of sections 2054, 2055, 2056, 2057 of the Code of Civil Procedure.

Section 2057 clearly authorized the persons charged under the previous sections, which we have just quoted, to be dealt with in the same manner as “ in any other criminal case of the same nature.” As stated the nature and grade of the offense charged was that of a felony. By section 158 of the Code of Criminal Procedure it is provided, viz.: If the crime charged in the warrant be a felony the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 164.

Section 164 of the Code of Criminal Procedure seems to contemplate the taking of such prisoners before the magistrate who issued the warrant, as it provides that if the magistrate who issued the warrant “ be absent or unable to act,” then, in that case, the prisoner is to be taken before the nearest or most accessible magistrate in the same county. (People ex rel. Sichel v. Chapman, 30 How., 202; People v. Clews, 77 N. Y., 39.)

If the prisoners had been arrested for a misdemeanor it seems that it would have been competent for a magistrate, residing in the county in which the arrest was made, to have let the prisoners to bail. (People v. Chapman ; People v. Clews, supra)

We are of the opinion that the magistrate,-who issued the warrant, had exclusive jurisdiction (except in case of his absence or inability to act), and that a contrary construction would frustrate and defeat the object and intent of the legislature in enacting the exceptional provisions found in section 2054 of the Code of Civil Procedure.

It seems no notice was given to the attorney, whose name was indorsed upon the warrant, nor to the district attorney of the county where the habeas corpus was issued. Section 2038 of the Code of Civil Procedure forbids a discharge of a person on a writ of habeas corpus^ where he is held by virtue of a mandate “ until notice of the time wlieft and the place where the writ is returnable, or to which the hearing has been adjourned, as the case may be, has been either personally served eight days previously or given in such other manner and for such previous length of time as the court or judge prescribes.”

“"Where the mandate was issued or made in a civil action or .special proceeding to the person who has an interest in continuing the imprisonment or his attorney. In evetj other case to the district attorney of the county within which the prisoner was detained at the time when the writ was served.”

Inasmuch as the writ of habeas corpus in this case was not issued jn a civil action or a special proceeding, but rather in a • criminal action (People v. Gilmore, 88 N. Y., 628), and as section 2057 provides that the discharge or bailing or committal shall be “ as in any other criminal case of the same nature,” it would seem that the discharge of the prisoners, without notice to the district attorney of .the county of Oswego, was irregular. (Code of Civil Pro., §§ 2038, 2057; People ex rel. N. Y. Soc., etc., v. Gilmore, 88 N. Y., 628.)

There is nothing before us in the appeal book to show that any question was made before the justice who granted the discharge as to the genuineness of the warrant, and we think it is too late to raise the question upon this appeal, as it appears bjr the clerk’s certificate forming a part of the appeal papers herein, that he has compared the copy of warrant certified to us with the original on file in his office, and that copy appears to be issued by a justice of this ..court, residing in the city of New York, clothed with all the powers given by section 2054 of the Code of Civil Procedure. Whether or not .the persons named in the warrant charged with a felony should be admitted to bail rested in judicial discretion, and our views already expressed lead us to the conclusion that the exercise of that judicial discretion should have been by the magistrate issuing the warrant. From note 38 in People v. McLeod (3 Hill., 663), as somewhat appropriate to the question involved here, we quote, viz.: “ It is therefore believed that .the rules of the common law, under which one Superior Court rarely allowed itself to interfere with the process of another, still hold their full sway, and should, indeed, be allowed a peculiar force when the power of a single magistrate is invoked.”

Again, it was said in note 45 to the same case, at page 673, viz.: “Yalid process alone, both in criminal and in civil cases, prima facie renders it obligatory on the court or officer to remand. It lies with the parties suing out the writ to show affirmatively that it is insufficient to authorize his detention. * * * The people are, therefore, under no obligation to produce evidence even in cases where this may be looked into. The accused who appeals by habeas corpus must, at his peril, show that he has been committed upon insufficient evidence.”

"VYe find nothing inconsistent with this in section 553 of the Code of Criminal Procedure, nor does section 190 of the Code of Criminal Procedure contain any provision inconsistent with the views already expressed. Under that section had the prisoners been taken before the magistrate who issued the warrant, they might have -waived an examination and at once elected to give bail. (Code of Crim. Pro., §§ 188, 189, 190 and 210.)

We are of the opinion that the recital of the facts found in the warrant is insufficient, and that it ought not to be said upon this appeal that the same was issued without proper proofs to confer jurisdiction upon the officer issuing the same. We are of the opinion that the order appealed from should be reversed.

BoardmaN and Follett, JJ., concurred.

Order appealed from reversed. No costs. (See 88 N. Y., 628.)


source: Caselaw Access Project

author: HaRdin P. J.:

license: Public Domain

text:
    JAMES DUELL v. FRANCIS ALVORD. SILAS DUELL, as Assignee, etc., of JAMES DUELL, RESPONDENT, v. CHARLES G. ALVORD, as Administrator, etc., and Others, Appellants.

      Issue of execution against the estate of a deceased judgment debtor — it cannot be allowed xintü after three years haroe elapsed since the issuing of letters testamentary or of administration— Code of Qiml Procedure, sec. 1380.
    An order or decree granting leave to issue an execution upon a judgment recovered against a person who has died since the time of its recovery, cannot, under section 1380 of the Oo’de of Civil Procedure, he made by the court from which it is to he issued, nor by the Surrogate’s Court, which has granted letters testamentary or of administration upon the estate of the deceased judgment debtor, until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent.

      Kerr v. Kreuder (28 Hun, 452) distinguished and not followed.
    Appeals from an order of the Onondaga Special Term, granted January eleventh, and from a decree of the surrogate of Onondaga county granted on the 16th day of January, 1886, “ allowing an execution to issue upon the judgment heretofore docketed in this action in favor of the plaintiff and against the defendant, in the Onondaga county clerk’s office, to the sheriff of the county of Onondaga as provided by section 1380 of the Code of Civil Procedure of the State of New York.
    Note.— The following opinion was delivered upon the appeal from the decree of the surrogate, In the Matter of the Petition of Silas Duett, etc., as in title above:
    Hardin, P. J. — According to the construction given to section 1380 of the Code of Civil Procedure, in Duett v. AVoord, decided at this term-of the court in the opinion of Hardin, P. .T , the order of the surrogate was premature, three years not having elapsed from the time of granting letters of administration before the decree of the surrogate authorizing an execution on the judgment.
    The surrogate had no power to grant the decree. That section prescribes, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the deceased, (See opinion in Duett v. AVoord, supra.)

    Decree reversed, with ten dollars costs and disbursements.
    Boardman and Follett, JJ., concurred.

      James Duell recovered a judgment against Francis Alvord, in the Supreme Court, for tlie sum of $1,362.83 damages and costs, which judgment was entered in Onondaga county on the 7th day of May, 1877, and on the 4th of June, 1884, James Duell assigned and transferred to Silas Duell the judgment, and he became the owner and holder of the same. On the 10th day of February, 1884, Francis Alvord died, leaving him then surviving Caroline Gr. Alvord, his widow, and Charles Gr. Alvord and M. Frances Learned, his only next of kin and heirs-at-law.
    On the 13th day of May, 1884, by the surrogate of Onondaga county, letters of administration were issued to Charles G-. Alvord on the estate of Francis Alvord. The moving affidavits alleged that on the 24th day of April, 1877, “ and while the indebtedness for which the said judgment was recovered still subsisted, the said Francis Alvord, in his lifetime, was possessed of certain real estate,” situated in Onondaga county as given. The moving affidavit contains the following statement, viz.: “And that the debtor on said 24th day of April, 1877, fraudulently transferred the same to one Orson C. Gleason, his brother-in-law, who afterwards transferred the same to the wife of said Francis Alvord, the said Caroline G. Alvord, with intent thereby to hinder, delay and defraud the creditors of the said Francis Alvord, and especially the said James Duell,” and Silas Duell, the assignee of the judgment; and the assignee, Silas Duell, states further in his affidavit that he is “ desirous of having the said transfer adjudged fraudulent and void as against the creditors of the said Francis Alvord, especially the said James Duell and this deponent, and to have the same set aside and the said judgment above set forth adjudged a lien upon the premises herein-before described. That said judgment did not become a lien upon said real estate under section 1251 of the Code of Civil Procedure, except as above stated. And it is stated that the personal estate of Francis Alvord will not exceed the sum of $100. The affidavit also states “ that said judgment is wholly unsatisfied and unpaid, and that no execution has ever been issued thereon.”
    To oppose the motion the affidavit of Orson C. Gleason was read, denying “ that the said conveyances to him by Francis Alvord and by him to said Caroline G. Alvord were, or either of them was, with intent to hinder, delay or defraud the creditors of said Francis Alvord, and especially tlie said James Duell or Silas Duell, or either of them. And this deponent avers that said conveyances were made in good faith and for valuable considerations,” and numerous facts and circumstances are detailed to show the good faith of the transfers. Also, an affidavit of Caroline G. Alvord corroborating the affidavit of Gleason in the matters already referred to.

      Hiscocli, Gifford <& Noheney, for the appellants.

      Goodelle <& Nottingham, for the respondent.
   HaRdin P. J.:

We are of the opinion that there is no force in the criticism made to the certificate of the sheriff with respect to the service of the papers, wherein he refers to them as “ the within summons and complaint.”

First. No such objection appears by the record to have been taken at Special Term. Had the objection been taken there it might have been obviated. It is too late to raise it for the first time upon appeal, besides the order recites “ on the reading of the affidavits and notice of motion, and considering the affidavits and the order and the appearances, it is obvious that Mr. Gifford has appeared as counsel for the parties opposing the motion, and that when the order recites “ that he was counsel for the defendant in opposition thereto,” it indicates that he appeared generally in opposition to the motion. We think the order ought not to be disturbed, because of the defect in the sheriff’s certificate of service.

Second. We are of the opinion that the affidavit to the effect “ that the judgment remains wholly or partly unsatisfied,” answers the requirement of section 1381 of the Code of Civil Procedure. The section does not expressly require’ the affidavit to be made by a party to the judgment record. It was made by the assignee, who states positively, viz.: “ That said judgment is wholly unsatisfied and unpaid,” besides it does not appear that the affidavit was objected to as insufficient on that ground at the Special Term. The section from which we have quoted expressly authorizes the use of an affidavit to satisfy the court that the judgment remains unpaid. (Wadley v. Navis, 30 Hun, 570.) Again, in the opposing affidavits it is not alleged that the judgment has been paid. We think under tbo circumstances the moving affidavit should be held sufficient in that regard.

Third,. If the property of the judgment debtor was fraudulently conveyed with intent to hinder, delay and defraud the judgment creditor, such fraudulent conveyance would not prevent the judgment from being a lien upon the real estate. (Chautauque Bank v. Risley, 19 N. Y., 369.)

Fourth. Section 1251 of the Code of Civil Procedure declares a judgment to be a lien upon the debtor’s property “ which is docketed in a county clerk’s office as prescribed,” and declares that such judgment “ binds, and is a charge upon for ten years after filing the judgment-roll and no longer, the real property and chattels real, in that county which the judgment debtor has at the time of so docketing it, or which he acquires at any time afterwards and within ten years.”

That section' is the same in substance as "the provisions of the Revised Statutes. (2 R. S., 359, § 3 ; 3 R. S. [5th ed.], 637, § 4; and’ the Code of Pro., § 282.) The provision found in section 1380 of the Code of Civil Procedure in the language, viz.: “ Where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one of this act,” we think refers to the manner of obtaining the lien, and not necessarily to the fact that the lien was obtained after the passage of section 1251, or under its provisions.

We are inclined to the opinion that the limitation found in section 1380 of the Code of Civil Procedure, and incorporated therein by virtue of chapter 542 of the Laws of 1879, declaring that “neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent,” applies to the, case in hand. The earlier part of the section provides that the execution shall not be issued unless an order granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the same effect is procured from the Surrogate’s Court of the State which has duly granted letters of administration or letters testamentary upon the estate of the deceased judgment debtor,” which language prohibits the issuance of an execution without the order and decree, the order of the court in which the judgment is recovered, and the decree of the surrogate having jurisdiction of the estate of the deceased judgment debtor. Effect may be given to the limitation contained in the earlier provision of the section by assuming that it deals with executions already issued in the hands of the sheriff at the time of the death of the judgment debtor. However it is not necessary, for the purpose of the case in hand, to pass upon the force and effect of the earlier part of the section.

We are of the opinion that the limitation found in that part of the section which comes from the amendment of 1879 must be obeyed, and that “neither the order or the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent.” Our attention is directed to Kerr v. Kreuder (28 Hun, 452). The question here involved was not necessarily involved in the decision of that case. The judgment debtor died on the 15th of February, 1878, and it does not appear by the reported case that the attention of the court in pronouncing its decision of December, 1882, was called to the amendment of section 1380 found in the Laws of 1879. The language of BarNAed, P. J., would seem to- indicate that he dealt only with the provisions of section 1380 as they stood prior to the amendment of 1879, and it clearly appears that he did not consider the question now before us.

Prior to the adoption of the Code if the judgment debtor died before execution sued out, an execution could only be had either against the personal representatives, or against heirs or terre-tenants upon scire facias. The writ of scire facias was abolished by the Code, and a provision was inserted in the Code that in case of the death of the judgment debtor after judgment, the heirs, devisees or legatees of the judgment debtors or tenants of real property owned by him, affected by the judgment, might, after the expiration of three years from the time of granting administration, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands. It was provided that the personal representatives might be summoned anytime within a year after their appointment. (Old Code, § 376.)

In chapter 295 of the Laws of 1850 (found in 4 Edmund’s Statutes, 634), it was provided that notwithstanding the death of the judgment debtor after judgment, execution might be issued against any real property “ upon which such judgment shall be a lien either at law or in equity,” in the same manner and with the same effect as if he were living, “except that such execution cannot be issued within a year after the death of the defendant, nor in any case unless upon permission granted by the surrogate of the county who has jurisdiction to grant administration or letters testamentary on the estate of the deceased judgment debtor,” and such surrogate was authorized to make an order granting permission to issue such execution as aforesaid.”

It was held in Marine Bank of Chicago v. Van Brunt (49 N.Y., 163) that the act of 1850 was not in conflict with the provisions of the Code, or inconsistent with the remedy given by it, and that it was accumulative, adding “ another restraint to those already existing.” Such was the condition of the law when section 1380 of the Code of Civil Procedure was adopted, and that section, as it appears by the note to it written by Mr. Throop, was modeled after the law of 1850.

In Roe v. Swezey (10 Barb., 247), decided in December, 1850, it was held that a suit to charge the debts of the ancestor upon property received by heirs-at-law could not be brought within three years after granting letters testamentary or of administration upon the estate of the ancestor, and that in such a suit it was essential to establish, among other things, “ that three years have elapsed after the granting of such letters and before the commencement of the suit.” That decision was based upon a construction of section 53, Revised Statutes (2 R. S., 109).

In June, 1885 (chap. 514), section 1380 of the Code of Civil Procedure was again amended by adding a provision that in case letters of administration “ have not been granted within three years after his death by the Surrogate Court of the county in which decedent resided at the time of his death, or if the decedent resided out of the State at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the Surrogate Court of the county in which the property, upon which the judgment is a lien is situated, such court may grant the decree where it appears that the decedent did not leave any personal property within the State upon which to administer. In such case the lien of the judgment existing at the decedent’s death continues for three years and six months as aforesaid.”

From a consideration of the law antecedent to the passage of- the amendment in 1879, and from a consideration of the section as it now stands, we are of the opinion that the Special Term was not authorized to direct an execution against the real estate of the judgment debtor in the case before us, as the letters of administration were granted on the 13th of May, 1884, and three years had not elapsed prior to the granting of the order brought before us for reviewal.

It may be observed that section 1251 of the Code of Civil Procedure went into effect May 1, 1877, and remained in effect unt.il May twenty-second of that year, when, by chapter 318 of the Laws of 1877, it was suspended until September 1,1877. The section -was, therefore, in force May 7, 1877, when the judgment against the deceased debtor was recovered, and it may properly be said that the judgment takes force and effect under and in pursuance of section 1251 of the Code of Civil Procedure.

Our attention was called by the respondent to the case of Lichtenberg v. Herdtfelder (5 Civil Pro. R., 426), with the suggestion that a construction of section 13S0, which we have given, might in some cases prevent the prosecution of a creditor’s action until the statute of limitations had run against it. Case cited follows section 1871 of the Code of Civil Procedure, which declares that an execution must be returned unsatisfied in whole or in part to enable a judgment creditor to maintain an action to compel the discovery of any thing, in an action.

It was also held in Adsit v. Butler (87 N. Y., 585) that in an action by a judgment creditor to set aside on the ground of fraud a conveyance of real estate by the debtor, the plaintiff must allege the issuing of an execution upon a judgment, and that the return on the execution unsatisfied is essential to give a court jurisdiction, or the action must be brought in aid of the execution outstanding. It was also held in that case that an allegation that the debtor is dead, and from the time of the rendition of the judgment until his death was wholly insolvent, are not sufficient to dispense with the necessity of the issuing of an execution.

The answer to the position of the respondent is found in the circumstance that section 1380 contains the provision extending the lien of the judgment existing at the decedent’s death for three years and six mouths thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment-roll.” It may be also observed that the creditor of an estate, who seeks to have property applied in payment of his debt, which has been fraudulently transferred by the intestate, has certain rights and remedies provided by chapter 314 of the Laws of 1858. The fact that a conveyance which is fraudulent was made prior to the recovery of the judgment, if the claim existed pi’eviously, does not defeat the remedy of the judgment creditor to have such conveyance stricken down and it removed as an obstruction. (Bank of Rondout v. Dreyfus, 14 Weekly Dig., 160.)

We are of the opinion that the order of the Special Term was premature and should be reversed, with ten dollars costs and disbursements.

Boardman and Follett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Follett, J.: Hardin, P. J.:

text:
    In the Matter of the Probate of the Alleged Last Will and Testament of HARRIET CHASE and Codicil Thereto.

      Evidence — testimony of a draughtsman of a will not inadmissible because he is an attorney and named as a trustee therein — Oode of Civil Procedure, sea. 835 — a donee of a power, entitled to compensation for services, is not disqualified from, testifying as to personal transactions.

    Upon the hearing of an application for the probate of a will the proponents offered to prove by the draughtsman of the will, who was an attorney and a trustee under it, the instructions received by him, and that they were carried out by the will. The testimony was rejected on the ground that it was incompetent under section 835 of the Code of Civil Procedure.

      Held, error.
    The will directed that one liearup and Helen, his daughter, should have the power to care for the person of an invalid son of the testatrix, and to employ assistants to take care of him, and that her executors should pay to them such reasonable sums as they might fairly expend in the care and maintenance of the son, “and such reasonable compensation as they should, respectively, receive for their services or care. ”

      Held, that the daughter, Helen, was not beueficially interested so as to be disqualified from testifying as to personal transactions with the testatrix under section 819 of the Code of Civil Procedure.
    Appeal by the executors and certain of the legatees from a decree of the surrogate of Jefferson county, denying an application for the probate of an alleged will of one Harriet Chase, deceased.
    The will directed that David Bearup and Helen A. Bearup, his daughter, should have power to superintend the care of the person of the testatrix’s invalid son so long as he should live, and directed the executors to pay to them such sums as might be reasonably necessary and proper for his maintenance, and that they should pay to them “ such reasonable sums from time to time as they, or either of them, may fairly expend for the purposes aforesaid, and such reasonable compensation as they should, respectively, receive for their services or care.”

      Lansing <& Rogers, for the executor, legatees and others, appellants.

      O. W. Thompson and Hannibal Smith, for the contestant.
   Follett, J.:

Appeal from a decree of the surrogate of Jefferson county, refusing to admit to probate the will and codicil of Harriet Chase, deceased.

The draughtsman of a will, though he is an attorney, is not incompetent under section 835, Code Civil Procedure, to testify in support of the will, to the instructions received from the testator in respect to the provisions to be incorporated in the will. (Sheridan v. Houghton, 6 Abb. N. C., 234; S. C., 16 Hun, 628; affirmed, 84 N. Y., 643; Matter of Chapman, 27 Hun, 573; Whelpley v. Loder, 1 Dem., 368; Hebbard v. Haughian, 70 N. Y., 54.) A trustee under a will, who is entitled to a reasonable compensation for his services, is not incompetent under section 829 of the Code of Civil Procedure, to testify in support of the will. (Code of Civil Pro., § 2544; Rugg v. Rugg, 83 N. Y., 592; In re Will of Huestis, 23 N. Y. Weekly Dig., 224.) Proponent’s offer to prove, by the draughtsman of the will (who is an attorney and also a trustee under the will), the instructions received, and that they were carried out by the will, was erroneously rejected. The ruling that Helen A. Bearup is incompetent, under section 829, Code Civil Procedure, to testify to personal transactions with the testator, was error. She is not a legatee or devisee, and falls within the rule applicable to executors.

It was error to permit the contestant to prove, over proponent’s objection and exception, by Munson Cook, the statements of the draughtsman ; and it was also error to permit the contestant to prove like statements by Emma Lawton. The declarations of the draughtsman in respect to the mental condition of the testatrix were incompetent. It was incompetent for the contestants to show by these witnesses that the draughtsman made statements indicating that, in his opinion, the testatrix was incompetent to transact business. Had he testified he might have been contradicted, but his evidence was excluded by the surrogate. These errors are not such as may be disregarded under section 2545, Code Civil Procedure, because they bear directly upon the issue of fact upon which the decree rests.

The decree of the surrogate is reversed and a new trial is ordered before a jury upon the issues to be settled, with costs to abide the event.

Boardman, J., concurred.

Hardin, P. J.:

Because Helen A. Bearup was the donee of a power, with compensation for services and care,” it does not follow that she was beneficially interested, or disqualified from testifying to the execution of the will. (McDonough v. Loughlin, 20 Barb., 238; Pruyn v. Brinkerhoff, 57 id., 176; S. C., 7 Abb. [N. S.], 400; Children's Aid Society v. Loveridge, 70 N. Y., 387; Rugg v. Rugg, 21 Hun, 383; affirmed, 83 N. Y., 592; Code Civ. Pro., § 2544.)

I concur in brother Follett’s opinion, and agree that the erroneous rulings by the surrogate call for a reversal.

Decree of the surrogate of Jefferson county reversed, and a new trial ordered of issues of fact, before a jury .in the Circuit Court in Jefferson county. Order to be settled by Justice Follett. Costs of this appeal to abide the final direction of the surrogate.


author: Follett, J.:

text:
    CHAUNCEY S. BUTLER and GEORGE H. BUTLER, Appellants, v. JULIA A. JOHNSON, as Executrix, etc., of WILLIAM P. JOHNSON, Deceased, and Individually, Respondent.

      Statute of limitations — right of an heir or devisee to set it up in proceedings for the sale of real estate under the decree of a surrogate — in case of the voluntary exercise of a pomes’of sale by an executor — right of a purchaser from the devisee to avail himself of the statute — when the lien of a legacy charged on real estate ceases.

    One Johnson died on June 21,1871, leaving a will, which was duly proved, by which he bequeathed to one Darrow a legacy of $1,500, and to the defendant, his widow and executrix, an annuity of $1,000; the rest and residue of his estate he devised and bequeathed to George TunniclifE and three daughters named Butler, Carey and Blake. A power to mortgage or sell real estate, if necessary to pay debts, was contained in the will. The personal estate left by the testator was insufficient to discharge his debts, but the value of the real and personal property exceeded the amount of the debts by about $110,000. On March 28, 1882, the residuary legatees divided the estate between them, the defendant receiving a mortgage upon a part of the real estate, in consideration of which she released her claim upon the estate for her annuity. Tunnicliif, Carey and Blake were insolvent.
    In 1881 Darrow presented a petition to the Surrogate’s Court for an order compelling the payment of her legacy, in which one Bloomfield, who owned three judgments recovered against the executrix of Johnson upon debts due from him at the time of his death, joined, asking that the said debts and certain others contracted by the executrix should be paid. The surrogate having decreed that all the debts of the testator and the legacy should be paid by the executrix out of the assets, the defendant thereafter advertised to sell at public auction the premises described in the complaint in this action to satisfy the debts as provided in the said decree.
    The plaintiffs, who had acquired title to real estate, conveyed to the residuary devisee, Butler, not as pux-chasers in good faith, but with knowledge of the situation of the estate, broxxght this action for a perpetual injunction restraining the sale of the premises.

      Held, that, so far as the devisees were concerned, as more than ten year's had elapsed between the probate of the will and the date of the advertisement under which the defendant was to sell, the statute of limitations had run, as against these claims, notwithstanding the fact that judgments had been recovered upon them against the executx-ix.
    That the power of the executrix to sell, if any such existed, was derived from the will alone.
    That as the executrix did not take the fee, and as there was no equitable conversion of the real estate into personalty, but merely a power in trust, the statute of limitations ran against the execution thereof and might be interposed in favor of an heir or devisee.
    That as the plaintiffs in this action were in possession of the land, claiming to own it, and the defendant had commenced a proceeding which, if concluded, would at least cast a cloud upon the plaintiffs’ title, the plaintiffs were entitled to avail themselves of the statute and to maintain the action.
    That the statute of limitations commenced to run, as against the right of Darrow to her legacy, one year after the issuing of letters testamentary, and that her claim thereto was barred thereby.
    That as section 1819 of the Code of Civil Procedure, providing that the statute shall not begin to run until the executors’ account is judicially settled, did not take effect until September 1, 1880, it was not applicable to this case.

      Shannon v. Howell (36 Hun, 47) distinguished.
    Appeal from parts of a judgment, entered upon the trial of this action by the court at the Otsego Special Term.
    The action was brought to restrain the defendant, one of the executrices of the will of William P. Johnson, from exercising a power to sell the real estate of the deceased for the payment of certain debts and legacies.
    At the testator’s death (June 21, 1871) he was indebted to Amasa Abbott in the sum of $500, to Harriet Oonkling in the sum of $400 and to Nicholas Yroman in the sum of $600. In January, 1872, a notice for the presentation of claims was published pursuant to an order, and the three claims above mentioned were, pursuant to the notice, presented to and accepted by the executrix. February 6, 1876, Harriet Oonkling recovered a judgment in the Supreme Court upon her claim against the executrix and assigned it to Allen Bloomfield. November 1, 1877, Nicholas Yroman recovered a judgment in the Supreme Court against the executrix upon his claim and assigned it to Allen Bloomfield. November 13, 1877, Allen Bloomfield, as executor of Amasa Abbott, recovered a judgment in the Supreme Court against the executrix upon the Abbott claim. The above-mentioned claims are the only ones against the estate which are unpaid, and for the payment of which and the legacy hereinafter mentioned due Emma J. Darrow, the defendant attempted to sell the land, the sale of which this action is brought to restrain.
    By the testator’s will and the third codicil, Emma J. Darrow was bequeathed a legacy of $1,500, the defendant (his widow) an annuity of $1,000. One-eighth of the residue of the estate was bequeathed and devised to George Tunnicliff and seven-eighths to the testator’s three daughters, Mary J. Butler, Harriet H. Carey and Louisa A. Blake, to be equally divided between them. The second subdivision of the will became inoperative by reason of the arrival of the youngest daughter at full age before the testator’s death. (Butler v. Bloomfield,, MS. opinion, Gen. Term, Third Dept., May, 1882, Appeal Book, page 96.) At the testator’s death his personal estate amounted to $15,531.17, and his debts, exclusive of those secured by mortgage, amounted to $55,000, leaving a deficiency of personal assets for the payment of debts of $9,166.17. The testator left real estate worth $150,000, encumbered for $30,000. The real and personal estate of the testator at his death, over and above debts, amounted to about $110,000.
    March 28, 1882, the residuary legatees and devisees divided the estate between them. Tunnicliff, Carey and Blake conveyed to Mary J. Butler the lands described in the complaint and other lands, which she accepted as her share. On the same day Mary J. Butler conveyed to Tunnicliff, Carey and Blake the remainder of the estate, they agreeing to pay all of the liabilities of the estate. The defendant received from Tunnicliff, Carey and Blake a mortgage, in consideration of which she released her claim upon the estate for her annuity, and by which mortgage the mortgagors agreed to pay Mary J. Butler $4,166.66 at the death of the defendant. Part of the real estate deeded to Tunnicliff, Carey and Blake has been sold under mortgages given to secure the testator’s debts, and the remainder under mortgages given by the testator in his lifetime. Tunnicliff, Carey and Blake are insolvent.
    The plaintiffs in this action have acquired title to the real estate described in the complaint by conveyances from Mary J. Butler and her grantees, and purchased with knowledge of the situation of the estate, and are not purchasers in good faith. The defendant’s accounts have not been settled before the surrogate. In 1881 Emma J. Darrow filed a petition in the Surrogate’s Court for an order compelling the payment of her legacy. Allen Bloomfield, who held three judgments recovered on debts owing by the testator, joined in the petition, and asked that the above and certain other debts, contracted by the executrix in the management of the estate, be paid. The surrogate decreed that all of the debts and the legacy should be paid by Julia A. Johnson and Mary J. Butler out of the assets in tlieir hands. Mary J. Butler appealed to the Supreme Court, where the surrogate’s decree was reversed as to her, but remained in full force as to the defendant, she not having appealed. (.Butler v. Bloomfield, sujora.)

    February 21, 18S3, the defendant advertised to sell, at public auction, the premises described in the complaint (acquired by the plaintiffs from Mary J. Butler), to satisfy the debts of her testator and the aforesaid decree of the surrogate. The plaintiffs began this action for a perpetual injunction restraining the sale of the premises. The court held that the legacy of Mary J. Darrow and the debts of the testator were a lien and charge upon the real estate, and that it could be sold under the power of sale contained in the will, but restrained the sale until the accounts of the defendant should be judicially settled by the surrogate. The court further held that the debts contracted by the defendant as executrix were not a lien upon the real estate, and that it could not be sold for their payment. No costs were given. The plaintiffs appeal from that part of the judgment, providing that defendants may sell their real estate for the payment of Mary J. Darrow’s legacy and the testator’s debts above enumerated.

      F. G. Fmdke, for the appellants.

      James A. Lynes, for the respondent.
   Follett, J.:

The defendant acquired no power to sell the land under the surrogate’s decree; her power to sell is derived solely from the will. Ten years seven months and twenty-three days elapsed between the probation of the will and the date of advertisement under which she attempted to sell. As against the devisees, the statute of limitations had run as. against these claims, notwithstanding the fact that judgment had been recovered upon them against the executrix. (Sharp v. Freeman, 2 Lans., 171; affirmed, 45 N. Y., 802; Raynor v. Gordon, 23 Hun, 264.) The statute (2 R. S., 101, 102, § 10) permits a devisee, as well as an heir, to plead the statute of limitations against claims for the payment of which land is sought to be sold by proceedings under the statutes. Such also is the rule under the Code of Civil Procedure (§ 2755). It is clear that in the face of the statute of limitations the land could not, after this lapse of time, have been sold under the statute authorizing the sale of land for the payment of debts.

It was held in Butler v. Bloomfield (MS. op., Gen. Term, Third Dept., May, 1882, Appeal Book, p. 96) that the executrix did not take the .fee under the will, but that the fee passed directly to the residuary devisees, subject to the execution of the power in trust to pay debts and the legacy, if the legacy is a charge, and that there was no equitable conversion of the real estate into personalty. The statute of limitations runs against the execution of a mere power in trust, and may be interposed in favor of an heir or devisee. (Dickinson v. Teasdale, 31 Beav., 511; affirmed, 1 De Gex, J. & S., 52; Coope v. Cresswell, Law Rep., 2 Ch. App. Ca., 112.)

The more serious question is, whether the defendant could, as against the devisees, voluntarily execute the power of sale for the payment of claims which creditors could not enforce by reason of •the lapse of time. The learned justice, who decided this case at .Special Term, held that the plaintiffs were not entitled to a decree restraining the sale, because the statute was designed as a shield and ■could not be invoked in aid of affirmative relief. Without questioning the correctness of the general rule laid down, we think it was misapplied in this case. The plaintiffs were in possession of the land, claiming to own it. The defendant had begun a proceeding which, if concluded, would at least cast a cloud upon plaintiffs’ title. This action is prosecuted strictly in defense of the plaintiffs’ title, seeking no affirmative relief as such against the defendant, .except to prevent her from clouding their title. Suppose a statutory foreclosure of a mortgage be commenced, all rights of action upon which are barred by the statute, would the owner of the fee be ■compelled to lie by and permit his title to be clouded by a sale and .defend an action of ejectment brought by the purchaser % We think not. The statute of limitations may be used defensively by a plaintiff when, as in this case, he is without an adequate legal remedy.

Emma Jane Darrow’s right to recover her legacy accrued June ■28, 1872, one year after issuing letters testamentary (2 R. S., 114, § 9), at which date the statute of limitations began to run upon her right to recover the legacy by an action at law, or by a proceeding in the Surrogate’s Court; and when defendant advertised the land for sale, February 21, 1883, the statute had been running ten years, seven months and twenty-three days, and her right to recover the legacy was barred. (McCartee v. Camel, 1 Barb. Ch., 455; Smith v. Remington, 42 Barb., 75; American Bible Society v. Hebard, 51 id., 552; affirmed, 41 N. Y., 619, note; Clark v. Ford, 1 Abb. Ct. App. Dec., 359; S. C., 3 Keyes, 370; S. C., 34 How., 478; Loder v. Hatfield, 71 N. Y., 92.) Section 1819 of the Code of Civil Procedure, providing that the statute shall not begin to run until the executor’s account is judicially settled, did not take effect until September 1, 1880, more than two years after the right to recover the legacy had been barred, and it is not applicable to this case. (Code Civ. Pro., § 3352.)

The question arising over this legacy is not governed by Shannon v. Howell (36 Hun, 47), for the reason that the legatee had the right to compel the payment of the legacy at any time within one year after the letters were issued; while in the case cited, no person had become liable to pay the legacies when the assignee of the legatees sought to sell the land upon which the legacies were expressly charged. In that case the legatees had not concurrent remedies.

Any person interested in an estate as heir, devisee, legatee or creditor may, without the concurrence of the executor, interpose the statute of limitations as a defense to a. claim brought against the estate. (Partridge v. Mitchell, 3 Edw. Ch., 180; Sherwen v. Vanderhorst, 1 Russell & Mylne, 347; Kendrick's Estate, 15 Abb. N. C., 189; S. C., 3 Dem., 301; Warren v. Paff, 4 Bradf., 260; Sharp v. Freeman, supra.)

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

Hardin, P. J., and Boardhan, J., concurred.

Judgment so far as appealed from reversed, and a new trial ordered, with costs to abide event.


text:
    DANIEL L. COUCH, as Assignee in Bankruptcy of ROBERT MILLARD and Others, Appellant, v. GEORGE W. MILLARD and EDGAR B. TAYLOR, Respondents.

      Costs — discretion rested in the court as to awarding costs in equitable actions — it may be reviewed by the General Term — limitations upon its exercise — when the costs cannot be awa/rded to an unsuccessful defendant.

    This action was brought by the assignee in bankruptcy of the firm, of Millard, Underwood & Co. to recover the avails of certain chattels seized and sold by the defendants, upon the ground that a portion of the said chattels, consisting of moldings, were seized and sold without color of authority, and that the chattel mortgage under which the residue of the chattels were seized and sold was fraudulent and void. The defendants denied that they had any money or property belonging to the plaintiff, and averred that the debt, interest and expenses exceeded by a large amount the sum realized by them from the sale of the property.
    The referee found that the defendants had wrongfully seized the moldings, which were worth $3,611.37; that the mortgage was valid, but that the defendants received on the sale of the mortgaged chattels $1,893.98 over and above their claims and directed that a judgment be entered in favor of the plaintiff for these two amounts with interest; that each party be allowed costs out of the recovery. Thereafter an extra allowance was granted to the defendants.
    Upon an appeal from a judgment adjudging that the plaintiff was entitled to recover the amount found due by the referee with interest, that the costs of both parties he paid from the recovery, the defendants’ costs being set off against the amount of the plaintiff’s recovery;

      Held, that even if it was assumed that the action was an equitable one in which costs might, under section 3330 of the Code of Civil Procedure, he awarded or withheld, yet the discretion exercised by the trial court in awarding them was rcviewable by the General Term upon an appeal from the judgment.
    That this discretion must be exercised in accordance with the rules and well settled principles applicable to the subject, and could not be awarded or withheld as might suit the caprice 'of the trial court.
    That a creditor who recovers a debt in an equitable action recovers costs also, unless special and strong reasons to the contrary prevent.
    That there is no authority, statutory or judicial, which authorizes au award of costs to au unsuccessful defendant, payable out of plaintiff’s recovery in an action in which the plaintiff recovered as damages a sum of money which a defendant claimed to hold as his own.
    That as the defendants were not entitled to costs the order granting them an additional allowance necessarily failed.
    That the judgment should be modified by striking therefrom the clause award ■ing costs to the defendants.

      Appeal from so much of a judgment, entered upon the report of a referee, as awarded costs to the defendants.
    The notice of appeal stated that the appellant intended to bring up for review on said appeal the order giving an extra allowance of costs in said action to the defendants.

      George W. Parkhv/rst, for the appellant.

      D. W. Guernsey, for the respondents.
   Follett, J.:

December 1, 1875, Millard, Underwood & Go. executed a chattel mortgage to defendants which covered a large quantity of lumber, and two or more mills and the machinery in them. June 27, 1876, Millard, Underwood & Co. filed a voluntary petition in bankruptcy, upon which they were adjudged bankrupts December 26, 1876, and March 12,1877, the plaintiff was appointed assignee in bankruptcy. April 29, 1876, the defendants began the foreclosure of their mortgage by taking possession of the chattels, and sold them at public auction and at private sale to various purchasers and on various occasions, prior to June 1,1877. Defendants purchased many of the chattels. Defendants also seized and sold a quantity of moldings owned by saidbankruptfinn upon which defendants had no valid claim.

- This action was brought to recover the avails or value (it is difficult to say which) of the chattels seized and sold by defendants, upon the ground that the moldings were seized and sold without color of authority, and that the mortgage under which the other chattels were sold was fraudulent and void. The referee found that defendants wrongfully seized and sold the moldings without authority, and that they were worth $2,611.37. He also found that the mortgage was valid, but found that defendants had in their hands $1,892.98, derived from the sale of the mortgaged chattels, over and above all of their claims arising under said mortgage.

The items of recovery are as follows:

Moldings sold.................................... $2>611 37

Surplus on sale of mortgaged chattels............... 1,892 98

Total in defendants’ hands..................... $4>504 35

Interest......................................... 2 >304 62

Total recovery............................... $6) 80S 97

A judgment was ordered for the plaintiff for $6,808.97, with costs to both parties, paj'able out of the recovery.

The plaintiff’s costs and disbursements were taxed at... $390 45

The defendants’ costs and disbursements were taxed at, $767 70

Additional allowance granted December 12, 1885 ..... 780 00

$1,547 70

February 2, 1886, judgment was entered adjudging that the plaintiff recover the amount found due by the referee and interest; that the costs of both parties be paid from the recovery, the defendants’ to be set off against the amount of plaintiff’s recovery, and that the plaintiff have execution for the remainder. The plaintiff excepted to that part of the referee’s report allowing defendants’ costs, and appealed from that part of the judgment allowing defendants’ costs and from the order granting additional allowance.

The discretion of a trial court in awarding costs in an equitable action may be reviewed by the General Term upon an appeal from the judgment. (Stevens v. Veriane, 2 Lans., 90, 93; Law v. McDonald, 9 Hun, 23; Woodford v. Bucklin, 14 id., 444; McLean v. Stewart, 14 id., 472; Rosa v. Jenkins, 31 id., 384.) Such was the rule before the Codes. (Winslow v. Collins, 3 Paige, 88; Buloid v. Miller, 4 id., 473.)

The question arising upon this appeal is discussed by both sides upon the theory that the action is an equitable one, and that costs may be awarded or withheld, pursuant to section 3230 of the Code of Civil Procedure. Assuming this to be so, we do not think it is a case in which both sides can be awarded costs. This is not an action arising out of a trust or common fund, but is simply an action between two hostile parties to determine their rights to certain property taken by the defendants, who In their answer denied having any money or property belonging to plaintiff, and averred that the debt, interest and expenses exceeded, by a large amount, the sum realized by defendants from the sale of the property. While the section of the Code provides that costs in equitable actions are within the discretion of the court, still this discretion must be exercised in accordance with the rules and well settled principles applicable to the subject, and they cannot be awarded or withheld as suits the caprice of the trial court. (Law v. McDonald, supra, 23, 26; Brooks v. Byam, 2 Story C. C., 553; 2 Barb. Ch. Pr., 322, 323; Id. [2d ed.], 858.) The general rule is that the successful party, although he may be denied costs, never pays them. (2 Dan. Ch. Pr. [3d Am. ed.], 1483; 2 Barb. Ch. Pr., 323; Id. [2d ed.], 859.) When a creditor recovers a debt in an equitable action, he recovers costs also, unless special and strong reasons to the contrary prevent. (Hunn v. Norton, Hopk., 344; May v. Biggenden, 24 Beav., 207; Jeffryes v. Agra, etc., Bank, Law R., 2 Eq., 674; Hill v. South Staffordshire Ry. Co., Law R., 18 Eq., 154; 2 Barb. Ch. Pr., 322; Id. [2d ed.], 857.) When the action is not solely for the recovery of a debt, and both .parties claim more than they ai’e entitled to, each succeeding in part, neither is entitled to costs against the other. (Crippen v. Heermance, 9 Paige, 211; Caldwell v. Leiber, 7 id., 483; Righter v. Stall, 3 Sandf. Ch., 608; Saunders v. Frost, 5 Pick., 259; Fairchild v. Hunt, 14 N. J. Eq. [1 McCarter], 367; Cullingworth v. Loyd, 2 Beav., 385; Law v. McDonald, supra.)

Two issues are raised by the pleadings and were contested before the referee: First, the plaintiff’s right to recover for the property described in and sold under the mortgage; second, for the conversion of property not described in the mortgage. Upon the first issue the plaintiff succeeded in part and wholly succeeded on the second, which brings the case within the rule laid down in Law v. McDonald (supra).

We know of no authority, statutory or judicial, authorizing an award of costs to an unsuccessful defendant payable out of plaintiff’s recovery in an action in which the plaintiff recovered, as damages, a sum of money which a defendant claimed to hold as his own.

It was the rule of the civil law that vietus victori in expensis condemnatus est, and this is the general rule adopted in the Court of Chancery, as well as in courts of law, at least to the extent of throwing it upon the failing party to -show the existence of circumstances to displace the prima facie claim to costs given by success to the party who prevails.” (2 Dan. Ch. Pr. [3 Am. ed.], 1461; 2 Barb. Ch. Pr., 322; Id. [2d ed.], 857; Saunders v. Frost, 5 Pick., 259; Clark v. Reed, 11 id., 446.) We fail to find any circumstances in this case justifying an award of costs to the defendants payable out of a sum of money which they are adjudged to owe the plaintiff, and which they refused to pay, denying all liability.

The learned judge, who granted the order for an additional allowance, held that the Special Term had no authority to review the decision of the referee as to the question of costs, and granted the additional allowance upon the theory that it was a proper case, provided defendants were entitled to costs, which question ho could not and did not consider. The defendants not being entitled to costs, the order granting them an additional allowance necessarily falls.

The order granting an additional allowance is reversed, and the judgment modified by striking therefrom the clause awarding costs to defendants.

Boardman, J., concurred; Hardin, P. J., not sitting.

Judgment modified by striking therefrom the clause awarding costs, and the order granting an extra allowance set aside, without costs to either party.


text:
    HARVEY M. SMITH, Respondent, v. ELISHA A. MATTESON, Appellant.

      Negligence — right to drive a cow in a highway.

    While the defendant’s servant, a boy between fourteen and fifteen years of age, was leading one of the defendant’s cows along a country highway, accompanied and assisted by another boy between sixteen and seventeen years of age, the plaintiff, who was riding in a buggy drawn by one horse, overtook and attempted to pass them. The buggy and cow collided and the plaintiff was injured, and he brought this action to recover the damages thereby sustained, upon the theory that it was actionable negligence to permit a boy of that age to lead a cow along a country highway.

      Held, that it was error for the court to deny a motion for a nonsuit, and that a verdict recovered by the plaintiff should be set aside.
    Appeal from a judgment in favor of the plaintiff, entered upon ’ the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Thomas F. Kearns, for the appellant.

      T. II. (& N. F. Breen, for the respondent.
   Follett, J.:

October 11, 1881, a cow owned by defendant was being led by defendant’s servant, a boy between fourteen and fifteen years of age, along a country highway. This boy was accompanied and assisted by another boy between sixteen and seventeen years of age. The plaintiff, while riding in a buggy drawn by one horse, overtook and, in attempting to pass the cow, the buggy and cow collided and the plaintiff was injured.

This action was brought to recover the damages sustained by the injury, upon the theory that it was actionable negligence to permit a boy of this age to lead a cow along a country highway. Upon this theory the action was tried, and upon this theory the verdict rests.

The defendant had the same right to use the highway for the purpose of driving his cow that the plaintiff had to use it for riding. N o contractual relations existed between the parties, neither owing any duty to the other except to use proper care in the use of the public highway. "Whether the defendant was negligent in permitting this boy to lead this cow is to be determined by the events occurring and facts existing before the accident. The undisputed evidence is that the cow, previous to the occurrence, was gentle. There is no evidence that the cow was vicious or difficult to lead on the occasion in question, or even after the accident. There is no evidence that the boy employed was careless in the discharge of his duties, or in anywise incompetent to perform such service; and I am unable to discover any evidence that the defendant was negligent in the selection of his servant. There is no evidence that the boys did, or omitted an act which caused the accident; nor is there evidence from which it can be inferred that two mature men could have done more or less than was done by the boys. No fact showing a lack of skill or judgment on the part of the boys appears in the case.

It is easy to be wise after an event; but whether the defendant wTas negligent must, as before stated, be determined by what happened before the accident; and I doubt if the most prudent farmer would have, before the accident, thought or suggested that it was negligent to trust two boys, working on a farm, to lead this cow along a country highway in the manner described. It seems to me that the judgment in this case extends the doctrine of liability for non-con tractual actionable negligence far beyond the doctrine of any reported case, and, if sustained, persons may be held liable for accidents which could not be foreseen and guarded against by the most prudent.

The trial court erred in refusing to nonsuit, and the judgment should be reversed and a new trial granted, with costs to abide the event.

Hardin, P. J., and Boardman, J., concurred.

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