text:
    MARIA DE LA SALUD OVIEDO YOUNGER, Appellant, v. MARY ANN DUFFIÉ, Respondent.

      Libel — when allegations in the complaint tending to show malice should not be stidaken out.

    The complaint in an action for libel alleged that the defendant, after having been sued in another court by" the plaintiff for slanderous charges similar to those to recover damages for which this action was brought, and after having in the said suit in open court retracted the same, did maliciously, purposely and wrongfully again utter the same false and defamatory matter. The court, upon the motion of the defendant, struck out from the complaint the allegations relating to the commencement oí the suit in another court and the retraction there made.

      Held, that the allegations were evidently inserted for the purpose of showing malice on the part of the defendant, which, if, the communication should be determined to be a privileged one, the plaintiff would be bound to prove upon the trial; that the defendant could not be aggrieved by the insertion of the matter in the complaint, and the court erred in striking it out.
    Appeal by tbe plaintiff from an order of the Special Term, whereby certain portions of her complaint were stricken out as irrelevant and scandalous.

      Emmet R. Oleott, for the appellant.

      F. R. Qoudert and Jno. N. Lewis, for the respondent.
   Brady, J.:

This action is brought to recover damages for an alleged libel. The complaint alleges that the defendant — after having been sued in another court by the plaintiff for similar alleged slanderous charges and after having in said suit in open court retracted the same, did maliciously, purposely and wrongfully, and, as the plaintiff is advised, without relevancy, materiality or pertinency utter, by means of writing, swear to, and substantially publish, and cause to be read in court and placed on the files of an office in the city of New York, open to all the public, the false and defamatory matter set up in the complaint.' On her appearance the defendant moved to strike out from the complaint the allegations mentioned in reference to the commencement of a suit in another court, and the retraction alleged. The motion was granted and from that order the plaintiff appeals.

If the publication complained of were included within the class of privileged communications, the plaintiff could not recover without extrinsic proof of malice. (Fry v. Bennett, 28 N. Y., 327; Hamilton v. Eno, 81 id., 124.)

The rule is stated thus: That where a communication .is made iona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty either public or private, legal, moral or social, such communication, if made to a person having a corresponding interest or duty, rebuts the inference of malice, and is privileged. When such is the case tlie onus of proving malice is thrown upon the plaintiff. (Moak’s Underhill on Torts, 146, and cases cited.)

In an action for libel an averment, that the words published are a libel is a sufficient allegation of falsehood and malice. (Hunt v. Bennett, 19 N. Y., 173.) And in an action for slander where the slanderous statement is presumptively privileged, there must be a sufficient averment of malice to sustain the action, and a general averment that -the words were spoken falsely and maliciously is a sufficient allegation of malice. (Viele v. Gray, 18 How. Pr. Rep., 550.)

The averment in the complaint which was stricken out on motion in the court below, was evidently inserted for the purpose of showing malice on the part of the defendant, and would be competent evidence on that subject upon the trial. If the communication should there be determined to be a privileged one, then it would be essential to the success of the plaintiff, as we have seen, that she should prove malice on the paid of the defendant, and that would be prima fade established by showing the facts stated in the averments stricken out, namely, that a similar charge was made, and the prosecution failing the charge was retracted. It would certainly be evidence bearing upon the subject, and would be admissi- , ble. It would relate to an issue, namely, the existence of malice.

By section 545 of the Code of Civil Procedure, redundant or scandalous matter may be stricken out upon the motion of a party aggrieved thereby. This provision is similar to section 160 under the Code of Procedure, and the rule in reference to motions made under its provisions was that it must appear, in support of the motion, that some injury would result to the moving party if the matter sought to be expunged was suffered to remain.' The moving party must be aggrieved by the retention of the redundant or irrelevant matter in the pleading. (See cases, 2 Wait’s Prac., 483.) And where there is a doubt as to the necessity of inserting the matter sought to be stricken out as irrelevant or redundant, the motion was invariably denied. (See cases collated on this subject, same volume, p. 484.)

In this case the allegation which was stricken out is in effect an allegation of malice, and the defendant being advised of this element in that form, although it may contain what might otherwise be regarded as evidence of malice, is not aggrieved by its presence in tbe complaint. It is a notification to her of a circumstance germain to the subject, which will be used against her on the trial. It would seem, therefore, to be advantageous, and not otherwise to the defendant to advise her that the circumstance mentioned in the averment would be resorted to in order to establish the ingredient of malice, which would be essential to the plaintiff’s case if the libel complained of should, on the trial, be declared to be a privileged communication.

There is no doubt of the propriety, for the reasons assigned, of making the charge of malice in the complaint, and as there may be doubt as to the propriety of putting it in the form in which it seems to have been made, that doubt is sufficient to save the expunged matter from being stricken out as irrelevant or redundant. The pleading is substantially this: That the defendant having on a former occasion alleged the slanderous charges complained of, on being prosecuted withdrew them, but subsequently repeated them, and, therefore, did it maliciously, because the first publication of them was retracted. If it were not that this allegation is so blended with the element of malice, necessary probably to the plaintiff’s case in one aspect of it, it might be stricken out perhaps with propriety.

Under all the circumstances therefore, and influenced by these rules of pleading, we think that the order below was erroneously made, and. should be reversed.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE EASTERN TRANSPORTATION LINE, Appellants, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK, Respondents. SAME v. THE BOARD OF ALDERMEN OF THE CITY OF NEW YORK, Respondents.

      The taxes imposed by chap. 542 of 1880 are only for State purposes — corporations are not relieved thereby from county or municipal taxes.

    The taxes imposed upon corporations by chapter 542 of 1880 are for the exclusive benefit of the State, and the act does not interfere with the power of the local authorities to impose further taxation upon the same corporations for municipal and county purposes.
    Appeal from an order made at a Special Term, confirming an assessment made npon a hearing npon the return to a writ of certiorari.

      Gray <& Dmenport, for the appellants.

      George P. Andrews, for the respondents.
   Daniels, J.:

The controlling point in this case has been determined by the decision made by the General Term of the second department in the case of the People ex rel. Westchester Fire Insurance Company v. Davenport amd others (25 Hun, 630). It was there held that chapter 542 of the Laws of 1880 included only taxes imposed for the exclusive benefit of the State, and that it did not interfere with the power of the local authorities to impose further taxation upon the same corporation for municipal and county purposes. The case is in no material respect distinguishable from the one presented by this appeal, although some of the facts may have differed in that controversy from the one now presented. For the point arising on them is precisely the same, and the enactment of chapter 332 of the Laws of 1881, declaratory of the effect of the preceding enactment, in no manner impairs or diminishes the effect of that decision. A proper degree of respect for the determination made by a co-ordinate tribunal upon the same controverted point requires that the decision so made shall be accepted and followed in this case. In no other way can a proper degree of judicial decorum and consistency be maintained. It is unnecessary, therefore," to follow the argument made in support of the appeal, for this decision must be regarded as entirely controlling upon this court.

Other authorities have been cited leading to the same practical result. But it is unnecessary to refer more particularly to them for the reason already stated.

The order in this case and in that of the same relator against the board of aldermen must therefore be affirmed.

Davis, P. J., and Brady, J., concurred.

Orders affirmed, with costs.


text:
    NICHOLAS LORENZO, Executor, etc., of PETER McNIFF, Deceased, Plaintiff, v. PATRICK DEERY and ELLIS W. DUDLEY, Executors, etc., of OWEN HEALY, Deceased, Defendants.

      Award — when dll the arbitrators must agree— Code of Oivil Procedure, secs. 2366, 2871, only applicable to submissions made as required by that act.

    Since the passage.of the Code of Civil Procedure there is no statute in force which empowers a majority of the arbitrators appointed by private persons to make a valid award, unless the submission is in writing, subscribed by the parties and duly acknowledged, or proved and certified as a deed is required to be for the purpose of being recorded.
    A lease provided positively for two renewals of twenty-one years each at a rent to be agreed upon by the parties. In case they could not agree each was to choose a person to determine the rent, and if they disagreed an umpire was to be chosen by them whose decision was to be final and conclusive. If the lessor refused to grant a third renewal he was to pay to the lessee the value of the buildings to be erected; “which valuation shall be ascertained by three disinterested persons on oath to be chosen as aforesaid.”
    The lease was not acknowledged or proved or certified as a deed is required to be for the purpose of being recorded.

      Held', that the three persons must agreé upon the valuation, and that the parties were not bound by an award made by two of them.

      Case submitted upon an agreed statement of facts without an action.
    The question submitted related to the validity of a valuation made by two out of three persons appointed by the parties in pursuance of the terms of a lease made in 1818. The appointment of the appraisers was in writing, signed by the parties to this action, but was not acknowledged, proved or certified in like manner as a deed entitled to be recorded. The lease provided, among other things, “ that at the expiration of the term aforesaid the said party of the first part, his executors, administrators or assigns, shall and will grant and execute unto the said party of the second part, his executors, administrators or assigns, a renewal of this lease for the further term of twenty-one years thence ensuing at such annual rent as shall be agreed upon by the said parties, their executors, administrators or assigns, respectively, in quarterly payments; but in the event of their not agreeing upon such rent each party shall choose a disinterested person to ascertain the same, and they shall, in making their award or determination in the said premises, be governed by the rents of other lots of land in the neighborhood most recently leased at that time.
    “If the arbitrators should differ they shall choose an umpire, whose decision shall be final and conclusive on all parties.
    * * * * *
    “And it is further mutually covenanted and agreed by and between the parties aforesaid that at the expiration of the term to be granted by the second renewal of this lease as aforesaid the said party of the first part, his executors, administrators or assigns, shall have the liberty either to grant a third renewal of this lease for the further term of twenty-one years, thence next ensuing, at such annual rent, payable quarterly, as shall be ascertained and determined in the manner aforesaid, or to pay unto the said party of the second part, his executors, administrators or assigns, the value of the said brick dwelling-house to be built and erected as aforesaid; which valuation shall be ascertained by three disinterested persons on oath, to be chosen as aforesaid.”

      John H. Ha/rnett, for the plaintiff.

      M. II. Cudlipp, for the defendants.
   Daniels, J.:

The controversy which has arisen between these parties relates to the construction which should be placed upon so much of a lease as provided for the valuation of and payment for a brick dwelling built by the tenant upon the leasehold premises.

The lease was made in the year 1818, and it provided positively for two renewals for .terms of twenty-one years each. At the expiration of the last renewal the lessor was at liberty either to grant a third for a similar period or to pay to the tenant, his executors, administrators or assigns, the value of the brick dwelling to be built and erected upon the premises. And this valuation it was agreed should be ascertained on oath by three disinterested persons to be chosen in the manner provided for in the lease. The owner of the property at the expiration of the second renewal elected not to giVe a third, but to pay to the tenant the value of the dwelling. To ascertain that value two persons were selected by the parties with authority to appoint a third, and they did appoint the third person to act with them. They each took the proper oath and appraised the property. . One of the persons selected by the parties, and the third selected by the other two, agreed upon a valuation of the building, while the other disagreed with their valuation, and valued the building himself at a much larger amount. The point presented by this portion of the controversy is, whether the appraisement of these two persons is binding upon the parties. The lease itself contains no express or clearly implied provision upon this subject. It did, however, provide that the rent for each period of renewal, if the parties themselves failed to agree upon it, should be ascertained by-two persons, one of whom should be chosen by each of the parties, and in case they should differ, that they themselves should chose an umpire whose decision should be final and conclusive as to the' amount. But in the phraseology selected for the expression of the intention of the parties, relating to the selection of the persons to value the building, this alternative provision was not included or applied, and the circumstance that they omitted it is an indication that they intended the valuation which should be binding upon them, to be one in which the three persons selected should agree upon its amount.

The language which they made use of imports such an intention on their part. For they in terms declared that the valuation should be ascertained by three disinterested persons, and made no reference whatever, to the preceding provisions of the lease, which in any manner might otherwise be invoked to qualify the effects of this phraseology. They did refer to those provisions, but only so far as to indicate how the three disinterested persons were to be chosen, and by force of that reference two were to be selected by themselves and the third by those two, as the selections were in fact actually made.

The terms of the submission which was in writing subscribed by the parties are of the same import. For it is provided in it that the third person to be selected should, with the two chosen by the parties, ascertain the value of the building as provided in the lease. As the parties had provided for the binding effect of an award made by two upon the amount of the rent for each of the periods of renewal, and entirely failed to make such a provision relative to the action of the persons selected to make the valuation of the building, the inference arises that they did not intend to be bound upon that subject unless the three persons agreed as to the amount. And this inference supports the construction which the terms employed in the lease appear to require for the purpose of ascertaining the design of the parties.

A proceeding and submission of this nature has been held to be an arbitration. ( Van Cortlandt v. Underhill, 17 John., 405.) And such undoubtedly is its legal character. When it relates, as- this did, to a matter exclusively of private interest, it has been further held that the persons to whose determination it may be submitted, must all unite in their award to render it legally binding, when no different disposition has been agreed upon by the parties. (Green v. Miller, 6 John., 39.)

Certainly no agreement was made by these parties binding them to accept a valuation made by only two of the three persons selected to ascertain the value of the building, and the fact that the three failed to agree, rendered the determination of the two invalid, under the effect of this authority.

As the submission in this case was in writing subscribed by the parties, the award of two of the three persons would have been obligatory upon the parties, under the provisions contained in the Revised Statutes, if tliey had been at the time in force, for the reason that the concurrence of all had not been expressly required in the submission. (3 R. -S. [6th ed.], 856, § 7; Bulson v. Lohnes, 29 N. Y., 291; Locke v. Filley, 14 Hun, 139.) But by the provisions of the Code of Civil Procedure which took effect on the 1st of September, 1880, this provision of the Revised Statutes underwent a material change, rendering it inapplicable to this proceeding. For while it was still provided that an award by a majority of the abitrators should be valid where the concurrence of all is not expressly required, that provision has been restricted to the action of arbitrators selected only as it was then provided they should be chosen. For that purpose a mere submission by a written agreement was no longer sufficient to invest a majority of the arbitrators with this authority. But the only legal mode in which it could be made with that effect, was by an instrument in writing duly acknowledged, or proved and certified, in like manner as a deed, entitled to be recorded. (Code of Civil Pro., §§ 2366, 2371.) The parties in this case failed to comply with this formality. For their agreement of submission was neither acknowledged, proved or certified, in the manner in which it was required it should be for the purpose of subjecting it to the provisions of the present Code. It was simply subscribed by the parties without being proved or certified in any manner whatever. And as it was made after these provisions of the Code went into effect, they are not applicable to the case, and consequently did not empower a majority of the arbitrators to make a binding award. That it was intended to restrict the provisions made upon this subject, to arbitrators selected in the manner prescribed in the title containing the • provision allowing a majority to make an award, is clearly expressed in the section itself, for it is only arbitrators selected in that manner whose conduct and proceedings are regulated by the provisions contained in the section. This is rendered still further evident from the general provision contained in section 2386 of this Code, by which it has been declared that the title containing the sections and provisions already referred to, does not affect a submission made otherwise than as prescribed therein.

The consequence of these changes in the law is, that there is no statutory provision now, empowering a majority of the arbitrators to make a valid award unless tbe submission itself is duly acknowledged or proved and certified as a deed is required to be for tbe purpose of being recorded, in addition to the fact that it shall be in writing and subscribed by the parties. And as this submission was not within the provisions made by the Code, because of the fact that it was neither acknowledged, proved or certified, the authority of the persons selected to act under it was governed entirely by the principle of the common law. And as that was defined in Green v. Miller {sv/pra), and the authorities referred to in the opinion, the three persons selected to act in this instance were required to concur in their conclusion to render their valuation binding upon the parties.

Another inquiry has been presented by the case agreed upon, but that relates entirely to the obligations of the tenants after a binding valuation of the building has been made, and as that failed because of the inability of the three appraisers to agree upon the amount, it cannot be necessary either to examine or determine this inquiry. The failure of the arbitration necessarily disposes of the case and requires further appraisers to be selected and a proper valuation to be made by them, before any additional consideration will be necessary to settle the dispute which has arisen between these parties. Judgment must therefore be awarded in favor of the defendants upon the case submitted to the court.

Davis, P. J., concurred.

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

Judgment ordered for defendants.


text:
    JAMES McHENRY, Respondent, v. HUGH J. JEWETT, Appellant.

      Pledgee — he cannot vote upon stock held by him— the pledgor may restrain him from • so doing.

    One Folding shares of corporate stock, by way of pledge or security for the repayment of money loaned, Fas no legal right to vote upon them without the express or implied assent of the pledgor.
    The fact that the pledgee has, without authority from the pledgor, caused the stock to he registered upon the company’s hooks in his name as trustee, does not authorize him to vote upon it.
    The right of the pledgor to determine and control the votes to he given upon his shares, entitles him to maintain an action to restrain the pledgee from voting upon them, it is not necessary for him to show that his rights would he injuriously affected by the votes which the piedgee might give.
    Appeal from an order made at a Special Term, continuing an injunction granted herein.

      W. W. McFarland, for tbe appellant.

      B. F. Dunning, for tbe respondent.
   Daniels, J.:

Tbe injunction restrained tbe defendant from voting upon 11,477 shares of tbe capital stock of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, registered in the books of tbe corporation in tbe name of tbe defendant as trustee. These shares were pledged by the plaintiff, their owner, in October, 1874, to tbe Erie Railway Company to secure a loan of money, and by means of certain foreclosure proceeding against that company they were transferred, subject to the plaintiff’s right of redemption, to the New York, Lake Erie and Western Railroad Company. The sale under this foreclosure was made in 1878, and since that time the defendant has held the shares nominally as trustee for the last named company. By what authority they were registered in his name as trustee has not been made to appear. Certainly that is not shown to have been done under the authority of the plaintiff in the action. Eor that reason the defendant must be regarded as holding the shares solely under the authority created by the pledge; and having no greater right to make use of or act upon them than the relation of a mere pledge would confer, as between himself and the plaintiff in the action, that continued to be the sole measure of his rights. He had previously voted upon the shares, but the fact that he may have done that heretofore is no evidence of his right to do that hereafter, unless something more than his own preceding act can be shown for the purpose of supporting it; and nothing beyond that was made to appear upon the hearing resulting in the order from which the appeal has been taken. As the defendant held the shares simply by way of pledge or security for the repayment of money which had been loaned upon them, he could hold them only for that purpose as long as the rights of the plaintiff to redeem them by the payment of the debt was not extinguished by a lawful sale. (Lawrence v. Maxwell, 53 N. Y., 19.) They are articles of property which under such an arrangement could not be otherwise lawfully used, and under the authorities the defendant had no legal right to vote upon them without the express or implied assent of the plaintiff, the pledgor. This point was considered in Scholfield v. Union Bank (2 Cranch C. C., 115); Vowell v. Thompson (3 id., 428); Ex parte Willcocks (7 Cown, 402). In the last case it was held, that until the pledge was enforced and the title made absolute in the pledgee and the name was changed on the books, the pledgor should be received to vote; that it was a question between him and the pledgee with which the corporation have nothing to do. (Id., 411.) These cases are direct and decided authorities against the right of the defendant to vote upon the shares, and the principle sustained by them has in no respect been impaired; by the Matter of Barker (6 Wend., 509) or the Mohawk and Hudson Railroad Company (19 id., 135), for the disputes which were there made the subject of adjudication did not arise between parties sustaining the relation existing between the plaintiff and the defendant to this action. It was simply made a question between a person offering to vote, who was registered as trustee of the shares in the first case and described as cashier in the second, and the corporation, whether such a registry of the stock authorized the person in whose name it had been made to vote upon it. hi o point was made in behalf of the party beneficially interested in the shares, and for that reason the cases are inapplicable to the present controversy, for here it has been shown that the defendant, in whose name the shares had been registered as trustee, has no greater or other right than that of a pledgee, which under the authorities determining the effect of that relation will not permit him to vote upon them against the objection of the plaintiff, who is still to that extent entitled to dictate and direct the use which may be made of them.

It was not indispensable that it should be made to appear that the plaintiff’s rights would be injuriously affected by the votes which the defendant might give upon the shares.

It was sufficient, for the purpose of entitling him to an injunction, that he was the party who was entitled to determine and control the votes which should be given upon the shares, if they were to be voted on at all. That is plainly the theory of one of the provisions made by the Code of Civil Procedure, defining a class of cases in which an injunction may be granted. (Id., § 604.) ■

To entitle the plaintiff under that provision to an injunction, it has only been required that he shall make it appear by affidavit that the defendant during the pendency of the action is threatening,- or about to do an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment which may be recovered ineffectual, and all that was made to appear upon the hearing of this application at the Special Term.

It is true that the statements made designate no time when any future elections of the company would be held. Put from the known usages and corporate obligations of railway companies it may consistently be presumed that an election in the company whose shares were held in this manner would take place as often as once every year. As much as that certainly may also be inferred from the affidavit of McDonough, for he states the fact to be that the defendant has voted upon the shares by proxy or otherwise at the several annual elections of the company since and including the year 1876. Even if the plaintiff’s papers were defective in this respect the defect was well supplied by this affidavit. A case was made out in his behalf which entitled him to the injunction and the order should be affirmed, with ten dollars costs besides disbursements.

Davis, P, J., and Beady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    STEPHEN VALENTINE, Respondent, v. MARGARET McCUE, Appellant.

      Foreclosure sale — when the publication of the notice is sufficient — power of the court to a/inend the judgment while the notice is running.

    Notice of a sale of real property in the city of New York under a decree of foreclosure, to take place on the 30th day of May, 1881, was published in two newspapers on April twenty-seventh (Wednesday) and thirtieth (Saturday), May fourth (Wednesday), seventh (Saturday), eleventh (Wednesday) and fourteenth (Saturday), and in one of them on May twentieth.
    It was objected that during the week, “immediately preceding the sale” there was hut one publication.

      Held, that the notice was sufficient.
    During the running of the notice of sale the judgment was amended by striking out so much of it as directed the referee to deduct out of the moneys arising from the sale of the mortgaged premises any lien or liens upon the property so soldior assessments or taxes or sales therefor, and by directing the referee to sell the mortgaged premises subject to all the^valid assessments or taxes thereon, and also subject to a prior mortgage of $1,800 and interest due thereon from May 1, 1875.

      Held, that the court had power to make the amendment, and that the validity of the sale was not affected thereby.
    Appeal from an order denying a motion to set aside a sale of property, made under a judgment of foreclosure entered herein.

      Thomas Nolan, for the appellant.

      S. F. Cannon, for the respondent.
   Beady, J.:

The application to set aside the sale of the property was made upon two grounds, namely, an alleged irregularity in the publication of the notice of sale and an amendment of the judgment after the commencement of such publication.

An examination of the papers shows that no Irregularity in the publication of the notice of sale occurred. The sale was advertised to take place on the twentieth of May. The publication began in two papers on the twenty-seventh of April, was repeated on the thirtieth of that month and on the fourth, seventh, eleventh and fourteenth of May, and in one of the papers again on the twentieth of May. It would thus appear that the first publication was on the twenty seventh of April, which was more than twenty days before the day of sale. It was published in one paper six times and in another seven times.

The statute (Code, § 1678) requires that the notice of must be given by publishing it at least twice in each week for three successive weeks immediately preceding the sale upon two days in each wreek, and the notice of sale was so published. It is certainly not necessary to cite any authority to establish the legal proposition that a week is a period of seven days of time, commencing at twelve o’clock on Saturday night and ending at the same hour on the following Saturday night. The first day is called Sunday and the seventh Saturday. (See 2 Bouv. Law Die., 647; Ronkendorff v. Taylor, 4 Pet., 361; see, also, Bunce v. Reed, 16 Barb., 347; Anon., 1 Wend., 90; Steinle v. Bell, 12 Abb. [N. S.], 171.) * The period of a week therefore is seven full days, and when a publication is directed to be made twice a week for three weeks it means that there shall be a period of twenty-one days before the sale, calculated by weeks, during each of which two publications shall be made, and this shall occur without regard to the day of the week when the publication was commenced.

• In analogy it was held that a notice of the sale of real estate upon an execution would be sufficient under the statute requiring that the time and place of sale should be publicly advertised for six weeks successively, if the notice is posted up as required by the statute forty-two days previous to the sale and a copy of the notice is published in six successive numbers of the weekly newspaper, although the first publication may be less than six weeks prior to the sale. (See cases collected in'4 Wait’s Pr., 672.) The publication having been made twice within the period of seven days,’'and extending over a period embracing twenty-one days, the statute has been complied with. It thus appears that the irregularity discussed is not sufficient to warrant any interference with the sale. The amendment complained of, which was allowed during the running of the notice of sale, was one which ordered that the judgment of foreclosure made and entered on the 22d of April, 1881, should be amended by striking out so much of the judgment as directed the referee to deduct out of the moneys arising from the sale of the mortgaged premises, any lien or liens upon the property so sold for assessments or taxes or sales therefor, and by directing the referee to sell the mortgaged premises subject to all the valid assessments or taxes thereon, and also subject to a prior mortgage of $1,300 and interest due thereon from May 1, 1875.

By reference to section 1678 it would appear that the terms of sale must be made known at the time of the sale, and if the property, or any party thereof, is sold subject to a right of dower, charge or lien, that fact must be declared at the time of the sale. The direction therefore that the referee should sell it subject to all valid assessments and taxes thereon, and subject to the prior mortgage, would seem to have been unnecessary under the provisions of the statute just mentioned, because by law it was necessary to state the incumbrances at the time of the sale.

The reason for the amendment in reference to the deduction from the moneys arising from the sale, of any lien, is not apparent. It-would seem to be a mere repetition of the direction itself, because if the premises were sold subject to the lien the lien would necessarily form a part of the consideration to be paid and must be withheld in order to protect the purchaser.

Such an amendment clearly did not affect the defendant’s rights, and was permissible within the authorities of the adjudged cases. It has been held, where upon a judgment of sale the sale was directed to be advertised three weeks instead of six as required by law, but in fact the advertisement was published six weeks, that the error might be corrected on motion and the purchaser be compelled to take title. (Alvord v. Beach, 5 Abb., 451; see, also, Gaskin v. Anderson, 55 Barb., 259; affirmed, 8 Abb. [N. S.], 312, sub nom. Gaskin v. Meek.)

It was also held that even in a sale in a partition suit the court would allow the judgment roll to be amended nunc pro tune, by filing nunc pro tunc a bond of a guardian ad litem for an infant defendant.' (Croghan v. Livingston, 25 Barb., 336; affirmed, 17 N. Y., 218; see, also, McMurray v. McMurray, 41 How., 41.)

The Code (§ 721) provides that a judgment. shall not be affected or impaired by any informality in entering the judgment or making up the judgment roll; and by section 723 the court may, upon the trial or at any other stage of the action before or after judgment, amend any process, pleading dr proceeding by correcting a mistake or inserting an allegation material to the case, or where the amendment does not change substantially the claim and defense by conforming the pleading or other proceeding to the facts proved j and in every stage of the action the court must disregard an error in the pleadings therein or other proceedings which does not affect the substantial rights of the adverse party. There was nothing in the amendment suggested that could in any way affect the rights of the defendant. It related to existing liens only, subject to which the property was to be sold.

It must be clear that if they were not inserted in the judgment under the statute it would have been necessary to have stated them at the time of the sale under the provisions of section 1678, to which reference has already been made. But if this be not so, the power of the court to amend under the authorities and under the statute cannot be questioned; and the amendment having been made before the sale took place, the objection resting upon its having been made has no vitality.

There is no reason, therefore, for interfering with the order made by the court below, and it must accordingly be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Dakiels, J.:

text:
    In the Matter of the Final Accounting of WILLIAM SIMPSON, Trustee, etc., of WALTER STEVENSON, Deceased, and of the Appointment of a Trustee in the place of WILLIAM SIMPSON, Deceased.

      Special proceedings — no allowances can be made in them,— Oocle of Oivil Procedure, sec. 3240 — what is a special pi-oceeding.

    Under section 3240 of tlie Code of Civil Procedure a court has no power to grant allowances in special proceedings; it can only award 'costs at the rates allowed for similar services in an action brought in the same court and in like manner.
    A. proceeding instituted to procure the settlement of the accounts of a deceased trustee and the appointment of a successor, which is neither commenced nor prosecuted by a summons or complaint, is a special proceeding and not an action.

      Appeal by Charlotte A. Hix from ail order denying a motion for the resettlement of the order made upon the accounting herein, so as to strike out the allowances made in behalf of the respective counsel appearing upon such accounting.

      Gondert Brothers, for the appellant.

      John A. Bryan, for D. Noble Rowan, respondent.
   Dakiels, J.:

As the object of the application was to correct the order made in the proceeding, the order itself 'must Tiave formed the basis of the hearing which took place. And as it was before the court in contemplation of law at least, at that time, it is a very proper document for the consideration of the court on the present hearing, so far as it affords the means of understanding the case itself.

By this order as well as the affidavits which were before the court it appears that the proceeding was instituted to obtain the appointment of a trustee to execute the trust created by the will of Walter Stevenson, deceased, and also to settle the accounts of the deceased trustee, as the sole surviving executor of those who had assumed the execution of the testator’s will. The proceeding resulted in a settlement of the accounts and a direction for the payment of the amount still on hand to the trustee appointed by the court. And after giving all necessary directions for that purpose the person appointed as trastee was directed to pay certain allowances to the respective counsel who had represented the parties interested in the proceeding.

The nature of this proceeding renders it clearly evident that it was not an action. It was neither commenced nor prosecuted by a summons or a complaint, but it was brought before the court upon an order made for that purpose as the substitute for a notice of motion. The proceeding, therefore, under the present Code as well as that which preceded it was what has been denominated a special proceeding as distinguished from an action. (Marvin v. Marvin, 78 N. Y., 541.) And as the authority over the subject of costs in such proceedings was regulated by chapter 270 of the Laws of 1854, they have been held not to be the subject of allowances. The extent of tbe authority created by that act included only the items properly designated as costs by the Code; and • that was held to exclude the power of making allowances. (Matter of Rensselaer, etc., R. R. Co. v. Davis, 55 N. Y., 145.)

The Code of Civil Procedure by its general provision upon this subject, and which includes a proceeding of this nature, has declared that costs in a special proceeding instituted in a court of record, where they are not otherwise specially regulated, may be awarded at the rates allowed for similar services in an action brought in the same court and in like manner. (Code of Civil Pro., § 3240.)

This enactment, so far as it affects the point now in controversy, is so nearly identical with that of the act of 1854 as to require that the same construction shall be given to it as that act had received, and under it consequently the power to' make allowances in proceedings of this nature does not exist.

The amount which has received the most attention upon- the argument of the appeal is that of the sum of $2,000 finally allowed to the respondent, as the counsel for the executors of the deceased trustee, upon the accounting. It is reasonably clear from the affidavits themselves, and also from the form and figures of this allowance in the order, that it was first entered either for the sum of $200 or $250, and it was afterwards extended by the authoi'ity of the learned judge presiding in the court in which the proceeding was pending increasing it to its present amount of $2,000. This increase was directed because the clerk had misapprehended the amount intended to be allowed. But when that was done no hearing of the parties was had before the court.

Por that reason, and to afford an opportunity to contest these allowances, an application was made for the resettlement of the order either reducing this allowance to its original amount or striking out all the allowances provided for by its terms. IJpon the hearing of this application all the counsel were again before the court and it resulted in a decision denying the application. From that determination the present appeal was taken, and it is sufficient under the circumstances to bring the propriety of these allowances all before the court. Neither the counsel nor the parties in whose behalf the other allowances have been made have appeared for.the purpose of maintaining them. And if they had done so it conl^ as the law has been settled, have produced no change in the disposition which should be made of the appeal.

The final allowance to the contesting respondent was made to him as the attorney and counsel of the executors. It was therefore not a sum awarded to them to relieve them from liability for the expenditures required to be made by them on the accounting. As to preceding ■services of that nature they themselves had been allowed the sum •of $2,050 to defray the expenses to which they had been subjected, and beyond that this Controverted allowance was made directly to their attorney and counsel. For that no legal authority existed, as the law stood upon the subject, either when the proceedings were pending or when they were completed by the denial of the application. The order which was made denying the application to strike out these allowances should, therefore, be reversed and an order directed allowing the several attorneys and counsel appearing in the proceedings to have their costs and disbursements adjusted according to the items of compensation provided for similar services in actions.

This may prove an inadequate compensation for the services in fact performed, but as the statutory provisions have been made .upon this subject it is all that the court can lawfully do.

No costs of this appeal should be awarded to either party.

Davis, P. J., concurred.

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

Order reversed, without costs.


text:
    ORLANDO M. BOGART and Others, Plaintiffs and Appellants, v. JOHN A. SWEZEY and JOSEPH DART, Dependants. DEERING, MILLIKEN & CO., Subsequent Attaching Creditors, Respondents.

      Attachment — pode of Oivil Procedure, see. 638 — The summons must be served personally or by publication within thirty days — a substituted service of it under section 435 of the Oode of Oivil Procedure is not sufficient.

    Substituted service of the summons, in pursuance of an order made under section 435 of the Code of Civil Procedure, is not a service of the summons within the'meaning of section 638 of the said Code requiring personal service of the summons to he made upon a defendant, against whose property a warrant of attachment has been granted, within thirty days from the granting thereof, or that before the expiration of the same time “service of the summons by publication must be commenced” and made complete by the continuance thereof.
    Appeal from an order, made at a Special Term upon the motion of subsequent lienors, vacating an attachment granted herein on the ground of a failure to personally serve or publish the summons as to one of the defendants as required by section 638 of the Code of Oivil Procedure.
    The plaintiffs produced proof of the substituted service of the summons made in due time, pursuant to an order for such service duly granted under section 435 of the Code of Civil Procedure, and contended that such service was equivalent to the publication of. the summons and fully satisfied the requirements of section 638.

      J. J. Adams, for the appellants.

      B. F. Blair, for the respondents.
   By the Court :

By section 638 of the Code it is provided that a warrant of attachment may be granted by a judge of the court or by any county judge to accompany the summons, or at any time after the commencement of the action and before final judgment. The section then declares that personal service of the summons must be made upon the defendant against whom the warrant is granted, within thirty days after the granting thereof, or else before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the State, pursuant to an order obtained therefor, and if publication has been or is thereafter commenced, the service must be made complete by the continuance thereof. In this case no order for service of summons by publication was obtained, but an order for substituted service was obtained under section 435 of the Code.

The only question is, whether the requirements of section 638 are satisfied by the order of substituted service, and service thereunder. The provisions of section 638 have been strictly construed by all the cases in which any question under them has arisen. (Blossom v. Estes, 22 Hun, 472; Donnell v. Williams, 21 Hun, 217; Mojarietta v. Saenz, 58 How., 505.)

The language of the section is very plain. It requires one of two modes of service, to wit, personal service or service by jiublication. It says nothing of substituted service. These three modes of service are equally well known to the Code. The express mention of two and the omission of all reference to the other, leads to the inference that the legislature intended to exclude the mode not named. Neither of these three modes of service is the precise equivalent of the other, although section 437 of the Code declares that on filing an affidavit showing service according to the order for substituted service, the summons is deemed served, and the same proceedings may be taken thereupon as if it had been served by publication. It was held in Orr v. McEwen (16 Hun, 625) that substituted'service is equivalent to personal service so far as it affects the right to enter judgment. But there is nothing in the section or in the case just citecj which goes so far as to hold that it is sufficient to satisfy the requirements of section 638, in order to-uphold the provisional remedy of attachment.

■ The proceedings to obtain the order for substituted service are not the same as those required for service by publication. In the former case the order must be made either by the court or a judge thereof, or the county judge of the county where the action is triable. In the latter the order can only be made by a judge of the court, or the county judge of the county where the action is triable. The court has no power to make the order. In the former case the order may be made, when a summons is issued in any court of record when it appears by the affidavit of a person, not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or if he is within the State that he avoids service so that personal service cannot be made. (Sec. 435 of the Code.) In the latter case the order must be founded upon the verified complaint, showing a sufficient cause of action against the defendant and proof by affidavit of the additional facts required by section 438, and other facts named in section 439. The orders prescribe different modes of service, and in the latter the publication must be continuous, at least once a week for six weeks in the newspapers designated by the judge, in addition to the service by mail at the place specified in the order.

These different modes of obtaining the order and of making service may perhaps have operated to prevent the legislature from regarding substituted service as sufficient to uphold the attachment.

But whatever may have been the operating reason, it is perfectly apparent that such service is not embraced in the language of section 638. It does not seem to us, therefore, that we have power to treat it as a compliance with the requirements of that section.

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

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

Order affirmed, with ten dollars costs besides disbursements.


text:
    JOHN PARROTT, Respondent, v. JOSEPH SAWYER, Appellant.

      Additional allowance — when a motiontherefor may be entertained after a judgment absolute has been ordered by the Court of Appeals.

    Upon a motion for a new trial, upon exceptions ordered to be beard in tbe .first instance at tbe General Term, after a verdict in favor of tbe plaintiff, directed by tbe court, the General Term sustained tbe exceptions and ordered a new trial. Upon an appeal taken to tbe Court of Appeals, that court affirmed tbe , judgment of tbe General Term and ordered judgment absolute against tbe plaintiff, upon bis stipulation, with costs.

      Meld, that tbe Special Term bad power, upen tbe remittitur, to entertain a motion made by tbe defendant for an additional allowance.
    Appeal from an order of the Special Term, denying a motion for an additional allowance.
    This action was brought against the defendant as a stockholder in the New York and Grass Valley Mining Company, for the recovery of a debt of that company to the plaintiff, to the amount of $20,000, on an alleged individual liability of the defendant for the debts of the company.
    The action was originally tried at the circuit. The court directed ' a verdict in favor of plaintiff for $20,000, gave the plaintiff an additional allowance of $500 and directed defendant’s exceptions to be heard in the first instance at the General Term.
    The General Term sustained the defendant’s exceptions and ordered a new trial, with costs to abide the event. Erom this determination plaintiff appealed to the Court of Appeals, giving the usual stipulation.
    The Court of Appeals affirmed the determination of the General Term, and ordered judgment absolute against the plaintiff upon his stipulation, with costs.
    Before entering this judgment upon the remittitur from the Court of Appeals, the defendant moved for an allowance of five per cent on the amount of the plaintiff’s claim in the action.
    The learned justice, in denying this motion, said: “ The decision of -the General Term of the Superior Court in Eldridge v. Sbrenz (39 Supr. Ct. R., 295), and of the Court of Appeals in McGregor v.
      Buel (1 Keyes, 153) are conclusive authorities, in my opinion, against the power of this court to grant the allowance asked for. Motion denied, but without costs.”

      W. 8. Wilson, for the appellant.

      J. II. Fan/, for the respondent.
   By the Court :

The order in this case is undoubtedly appealable to this court, and inasmuch as it is based solely upon the question of power in the Special Term to make the order, it is probably appealable to the Court of Appeals. On the appeal to the General Term from the judgment in this case upon exceptions, the judgment was reversed and a new trial granted, and on further appeal to the Court of Appeals the determination of this court was affirmed, and judgment absolute ordered against the plaintiff upon his stipulation, with costs.

The only question is whether the Special Term had power, upon the remittitur, to entertain a motion for an additional allowance. We are of opinion that the form of the remittitur from the Court of Appeals did not preclude such a motion, and that the defendant was at liberty to apply to the discretion of the Special Term for such allowance.

The application was denied on the ground that the granting of such allowance Would be adding to the judgment of the Court of Appeals, and for that reason solely, under the authority of Eldridge v. Strenz (39 Supr. Ct., 295), and of the Court of Appeals in McGregor v. Buel (1 Keyes, 153), the court held that no power existed to entertain the motion.

The question is an interesting one, important to the profession, and should be determined by the court of last resort. We do not consider the eases cited as determining the proposition involved in the motion.

Order reversed purely on the question of power, without costs to either party.

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

Order reversed, without costs.


author: Daniels, J.;

text:
    In the Matter of the Claim of JOHN SCHREYER, Executor, etc., Claimant and Appellant, v. MARY FRANCIS HOLBORROW and another, Administrators, etc., of HENRY S. HOLBORROW, Deceased, Respondents.

      Reference of claims against a deceased person’s estate — motion to set aside the report— when it should he made — Assignment—one holding a claim as an individual cannot assign it to himself as an executor.

    Appeal from an order denying a motion made upon a case, to set aside the report of a referee and for a new trial.
    The reference was made under the statute providing for the hearing and determining of claims against the estate of a deceased party. After hearing the evidence a report was made rejecting the claims, and judgment has since been entered upon such report.
    The court at General Term said : “It has been objected that the motion to set it aside, which was made after the judgment, was too late. But the practice as it now has become settled is against the validity of such an objection. Beyond that, the application was heard under the practical sanction of the General Term. For when the case was before it on a preceding occasion, the appeal on the application of the respondent was then dismissed because the motion had not been first heard at the Special Term, and without prejudice to the right still to make such a motion. It was to comply with the rule of practice requiring the motion to be first made there, in an application of this nature, that the motion was made which resulted in the order from which the appéal has been taken. And the court was not deprived of the power to hear it simply because a judgment had in form been entered.

      “ It has also been claimed that the case was not served in time, but as it was in fact settled and made the foundation of the motion before the Special Term, it is too late now for the respondent to derive any advantage from that objection. The case must consequently be regarded as regularly before this court for the determination of the merits of the controversy.
    “All the claims, except one, which were made the subject of investigation at the trial, were owing from Holborrow, the deceased intestate, to Schreyer individually. For the purpose of placing them in a condition in which they might be joined with another claim held by Schreyer, in his representative capacity, he executed a formal assignment of the individual claims to himself as executor. And upon the basis of that assignment he endeavored to enforce them against the estate of the deceased intestate in his favor as executor. The case of Scrantom v. Farmers', etc., Bank of Rochester (24 N. Y., 424) has been relied upon as an authority sustaining such an assignment. But no such legal effect can properly be attributed to it. The transaction there had resulted in an actual appropriation of the money derived from the claim to the estate, and for that reason it was sustained. It was held that the referee had not decided that the assignment by the plaintiff to himself as executor transferred the money secured by the policy to the estate, and that it was not necessary that he should have so decided
    “ This was the doctrine of the prevailing opinion, and it is evident from it that an assignment of this nature was not intended to be sustained by the decision. The dissenting opinion of Denio, J., was emphatic that the assignment was legally inoperative.
    “ Upon that subject he stated that the paper which the executor as an individual had made and signed and then kept in his own possession was of n‘o legal force. (Id., 429.) And that result seems to follow from the circumstances that the person executing such a paper and the individual receiving it are one and the same party, incapable of contracting with or transferring interests from himself as an individual to himself as an executor.
    “ Because of that inability no title was transferred to Schreyer, as executor, by the assignment which he himself executed individually, and the claims intended to be affected by it were therefore properly rejected by the referee.”

      Qonlan do MoCrea, for the appellant.

      J. W. Hawes, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., and Beady, J., concurred.

Order modified as directed in opinion, without costs.


text:
    CHARLES G. STEVENS and Another, Executors, etc., Respondents, v. ARTHUR MIDDLETON, ex parte CHARLES ELSTON, Appellant.

      Attachment — what the affidavits used on an application therefor must contain — what facts show an intent on the pa/rt of the debtor to dispose of his property and leave the State to defraud his creditors.

    Appeal by the appellant Elston from an order denying a motion, made in his behalf to set aside an attachment issued in favor of the plaintiffs against Middleton.
    The application was made in behalf of Elston, who was a judgment creditor, in whose favor an execution was issued against the property of Middleton six days after the issuing of the attachment. The position was taken in support of the motion that the attachment was irregular for the reason that it was not made to appear by the affidavits that the action had then been actually commenced or the summons in it issued.
    The court at General Term said: “ By the provisions contained in the Code of Civil Procedure (§ 636) it hás not been rendered necessary in support of an application for an attachment that the affidavits shall affirmatively show that the action has been commenced or a summons issued. All that has been required is that the cause of action shall be made to appear to be one of those in which an attachment may be issued, and that the amount claimed, where the action is upon a contract, shall be stated to be over and above all counter-claims known to the plaintiff; and in addition to that, that the party or corporation proceeded against has become liable to an attachment by reason of one or more of the circumstances mentioned in the second subdivision of the section.
    “ In no part of the section has it been rendered necessary to make any further or other statements than these to entitle the party to an attachment. In this respect the provision is the same as that which was contained in the preceding Code, under which it was held to be unnecessary to state the fact now considered, affirmatively in the affidavits. For all the purposes of the proceeding it was sufficient that an action had actually been commenced or the summons in fact had been issued. {Lawton v. Kiel, 51 Barb., 30.)

      “ The affidavit which was made by one of the plaintiffs did state that the amount due to the plaintiffs was the sum mentioned dn it over and above all counter-claims and deductions of every hind known to him, and that substantially conformed to what the Code had in this respect required to be set forth. For it is to be presumed if counter-claims existed in favor of the defendant that some knowledge of that fact would have been possessed by the plaintiff making this affidavit.
    “ The more important inquiry is that required for the disposition of the objection taken to the sufficiency of the affidavits. The attachment was issued because the defendant was about to depart from the State with the intent to hinder, delay and defraud his creditors, and to dispose of his property with the like intent. It was essential to support the proceedings that one, or both, of these facts should be established by the affidavits. The belief of the applicant in their existence was not of itself sufficient, but that must be shown by the circumstances substantiated in the case. These circumstances as they were presented, were that the defendant had failed to pay either the rent or the croton water tax which had become due under the" terms of the lease executed by him to the plaintiffs, and had also failed to pay a promissory note previously given to them by him, and which was then overdue; that he had sold and disposed of his interest in the lease and in the fixtures of the demised premises. That he had met requests for payment with evasive answers, and stated that within three days he was to leave the State and take his property to Connecticut; that he had been pressed for a settlement, and had refused to state when or how he would pay, and had always deferred payment to a future period of time.

      “ The case presented by these circumstances is a very close one, but still it may reasonably be inferred from them as the defendant declined to pay his debts, and had put off the requests for payment with evasive answers, and was about to take his property from the State and acquire a residence elsewhere, that he did not intend to pay the plaintiffs, and that it was a part of_his design to place his projierty beyond their reach.
    “ It is not always practicable to establish by proof the existence of a fraudulent intent on the part of the debtor, even when in reality it exists.
    “ Direct proof of the fact can rarely be obtained, and when it is established it must ordinarily be inferred from circumstances. The facts as they are disclosed in this case, in the absence of any explanation on the part of the debtor, justify the inference, that his movements were prompted by the intent alleged in the attachment. It is sufficient that such an inference was warranted by the circumstances, and as that was their effect the motion to discharge the attachment was properly denied by the court.”

      Samuel Greenbawn, for Charles Elston, a judgment creditor of defendant Arthur Middleton, appellant.

      G. Zabrishie, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

' Order affirmed, with ten dollars costs and disbursements.


text:
    George W. Millar and William D. May, Respondents, v. Enoch W. Page, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.

text:
    Watson C. Squire and Peter Bowe, Sheriff, etc., Appellants, v. Henry Villard, Respondent.
   Order modified as directed, and affirmed'as modified, without costs. Opinion by

Daniels, J.


text:
    Irvin H. McBride and Frank W. Palmer, Respondents, v. John Read and Henry Brien, Appellants, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Phoebe Fellows, Plaintiff, v. Trenor W. Park, Defendant.
   Motion to dismiss appeal denied. Order modified as stated in opinion, and affirmed as modified, without costs. Opinion by

Daniels, J.


text:
    Howard W. Coster and another, Executors, etc., Plaintiffs, v. Benjamin P. Fairchild and others, Defendants. Leopold Friedman, Purchaser.
   Order affirmed, without costs. Opinion by

Daniels, J.


text:
    Samuel Baron, Respondent, v. Jacob Cohen, Appellant, Impleaded, etc. Jacob Mack v. The Same.
   Orders reversed and motion granted, so far as the entries relate to proceedings in the case, with ten dollars costs and disbursements.


text:
    Jeanne F. Isaacs, Respondent, v. Solomon Isaacs, Appellant.
   Order modified as stated in opinion, and as modified affirmed, without costs. Opinion by

Daniels, J.


text:
    Nathan Folwell, Respondent, v. George A. Cambies, Appellant Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    The Mutual Life Insurance Company, Respondent, v. John L. Blake, as Executor, etc., of Lowell Holbrook, Deceased, Appellant, Impleaded, etc.
   Judgment affirmed.


author: Brady, J.

text:
    Caroline Bertschy, Respondent, v. Charles Bertschy, Appellant.
   Order modified by reversing same as to alimony and reducing counsel fee to fifty dollars, and affirmed as modified, without costs. Opinion by

Brady, J.


author: Davis, P. J.

text:
    Maria Lucrecia De Rivas and others, Appellants, v. Ana Rivas De Herques, Respondent.
   Order modified as directed in opinion, without costs of appeal. Opinion by

Davis, P. J.


text:
    In the Matter of Charlotte A. Pepoon.
   Decree affirmed, witb costs. Opinion by

Daniels, J.


text:
    Daniel J. Noyes, Executor, etc., Appellant, v. The New York Savings Bank and Lewis H. Bailey, as Executer, etc., Respondents.
   Order modified by adding thereto a direction that the money be paid into court by the savings bank to abide the further order of the court, without prejudice to the bond required by the order, and witb leave to tire savings bank to make such application as it shall be advised for relief from the action.


text:
    The Bowery Savings Bank, Plaintiff, v. John Keenan and others, Defendants.
   Order reversed, with ten dollars costs and disbursements; report of referee set aside and new hearing ordered before another referee. Opinion by

Daniels, J.


text:
    Charles H. Jordan, Respondent, v. Bernard Reilly, as Sheriff, etc., Appellant
   Judgment reversed, new trial'ordered, and costs to abide event. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. James Hunter v. The Board of Fire Commissioners of the Fire Department of the City of New York, Respondents.
   Proceedings reversed, with costs. Opinion by

Davis, P. J.


text:
    Alice Buckingham, as Executrix, etc., of James Horner, Appellant, v. Erastus Corning and another, Respondents.
   Judgment affirmed, with costs, on the opinion of Yan Yorst, J., in the court below.


author: Per Curia/m.

text:
    Frank P. Adams, Respondent, v. A. Clark Squier, Appellant, Impleaded, etc.
   Judgment vacated and demurrer stricken, out, without costs to either party. Opinion

Per Curia/m.


text:
    Ann K. Phillips, Appellant, v. Nathaniel Jarvis, Jr., as Committee, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Frank O’Donnell, Appellant, v. Louis Leubuscher, Respondent, Impleaded, etc.
   Appeal dismissed, with costs. Opinion by

Daniels, J.


author: Ready, J.

text:
    Julia Rahl, Respondent, v. Thomas Rahl, Appellant.
   Order affirmed, without costs. Opinion by

Ready, J.


text:
    The People of the State of New York ex rel. John W. Clark, Respondent, v. The Board of Police Commissioners of the City of New York, Appellant.
   Order reversed and motion denied, with ten dollars costs and disbursements.


text:
    In the Matter of the Metropolitan Railway Company.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Per Curiam.

text:
    Mechanics and Traders’ National Bank (Judgment Creditor), Respondent, v. Hugh R. Healy (Judgment Debtor), Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Eliza Bloom, Respondent, v. David S. Paige, as Executor, etc., Appellant.
   Order modified by striking out the additional allowance and the costs of opposing the motion, and as modified affirmed, without costs.


text:
    Louis E. Miller v. Benjamin Wright.
   Motion denied, with ten dollars costs.


text:
    James C. Jewett and others, Appellants, v. William C. Pickersgill Respondent.
   Motion for reargument denied, with ten dollars costs. Opinion by

Daniels, J.


text:
    Alexander W. Harris, Appellant, v. Jacob Van Wagener, Respondent.
   Order reversed ; order entered as directed in opinion, without costs. Opinion by

Brady, J.


text:
    The Manhattan Savings Institution, Respondent, v. Katherine W. Norton and others, Henry Allen, Purchaser, Appellant.
   Order affirmed, without costs. Opinion by

Brady, J.


text:
    Thomas Simpson, Jr., Appellant, v. Euphemia P. del Hoyo and others, Respondents.
   Judgment affirmed. Opinion by

Brady, J.


text:
    James B. Jermain, Appellant, v. The Lake Shore and Michigan Southern Railway Company, Respondent. William F. Drake and others, Appellants, v. The Same. Alexander Monroe, Appellant, v. The Same. Charles H. Raberg, Jr., as Executor, etc., Appellant, v. The Same.
   Judgments reversed, new trials ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Alonzo Clark, Appellant, v. The Lake Shore and Michigan Southern Railway Company, Respondent. C. William Loring, Appellant, v. The Same. Lucy A. Clark, Appellant, v. The Same. Sarah A. Whitman, Appellant, v. The Same.
   Judgments reversed, new trial granted, costs to abide event. Opinion by

Davis, P. J.


author: Per Ckvriam.

text:
    The People ex rel. Julia Shaw v. John McCarty.
   Motion . denied. Mem.,

Per Ckvriam.


text:
    In the Matter of Harriet A. Walter.
   Motion for reargument denied, without costs. Opinion by

Davis, P. J.


text:
    In the Matter of John Lowden.
   Oral reargument ordered, without costs. Opinion by

Davis, P. J.


text:
    Margaret Bennis, as Administratrix, etc., Respondent, v. James McMahon, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Annie E. Moore, Appellant, v. John E. Moore, Respondent.
   Order affirmed. Opinion by

Daniels, J.


text:
    Francis Blackburn, Respondent, v. Ferdinand Weisgerber, Appellant.
   Motion for reargument denied, with costs. Opinion hy

Daniels, J.


text:
    Frank Leslie, Appellant, v. William Leslie and others, Respondents.
   Decree"affirmed. Opinion by

Daniels, J.


author: Bbady, 3.

text:
    Caleb E. Whitaker, Respondent, v. Imperial Skirt Manufacturing Company, Appellant.
   Judgment affirmed. Opinion by

Bbady, 3.


author: Brady and Daniels, JJ.

text:
    Charles Davis, as Administrator, etc., of William Davis, Deceased, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondents.
   Order reversed, an<d judgment directed for plaintiff on verdict. Opinions by

Brady and Daniels, JJ.


author: Davis, P. J., and Daniels, J.

text:
    William G. Nicoll, as Receiver, etc., Respondent, v. George M. Boyd, Appellant.
   Order affirmed, with ten dollars costs and / disbursements. Opinions by

Davis, P. J., and Daniels, J.


text:
    David S. Paige, Appellant, v. William E. Waring, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. I Opinion by

Brady, J.


text:
    Laurence Ennis, Appellant, v. Edward P. Wilder, Respondent, Impleaded, etc.
   Order modified as directed in opinion, without costs to either party. Opinion by

Brady, J.


text:
    Henry W. Hubbell, Plaintiff, v. The Pacific Mutual Insurance Company, Defendant.
   Motion for a new trial denied; judgment ordered for defendant on verdict, witlx costs. Opinion by

Davis, P. J.


author: Per Q'ivriam.

text:
    Catharine H. Marx v. Edward McGlynn.
   Allowance of $2,000 granted. Opinion

Per Q'ivriam.


text:
    Isaac Lunney, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellants.
   Order reversed. Order entered as directed in opinion. Opinion by

Daniels, J.


text:
    In the Matter of Stephen P. Russell, Jr.
   Order to show cause granted.


text:
    In the Matter of William Doll
   Order to show cause granted.


author: Barnard, P. J.:

text:
    ELBERT O. FARRAR, as Trustee, etc., under the Will of ABRAM W. JACKSON, Plaintiff, v. ALEXANDER McCUE, Defendant.

      Will — construction of— when the executors take no estate in the lands devised, — when they cannot sell the same — Remainder — vesting and divesting of.

      A testator after making certain specific devises and. bequests gave, devised and bequeathed all the rest and residue of his estate, both real and personal, after the payment of the legacies, to his three youngest children, naming them. He directed his executors to invest the said residue either in real estate or bonds and mortgages, and to keep it so invested and apply the interest thereof to the support, maintenance and education of the three children until they should, respectively, arrive at the age of twenty-one years, and then to pay to each child the interest of his third of the said residue. The will then provided: “ It is my further will that the interest only and no part of the principal of said rest and residue of my estate shall be paid or distributed to my said children as long as any two of them shall survive, and that after the death of any two of my said children the principal and capital of said rest and residue of my estate shall be equally divided between the survivor and the heirs of the two deceased children, it being my intention hereby to devise and bequeath to each of my said three youngest children one equal third of the said rest and residue of my estate, and that upon the death of either one of them his or her heirs shall receive the share to which his or her ancestor was entitled.” Power was given to the executors to sell real estate to carry out the purposes of the will.

      Held, that the executors took no estate in the residuary estate devised to the children.

      That after the executors had paid all the debts and legacies and passed their accounts before the surrogate a sale by them would not be upheld. As no estate is given to them a power of sale cannot be sustained as an incident to an estate.
    That one of the three children holds an estate in fee in an equal undivided third of the residue; that the other two who shall die first each hold a like estate in fee, to be divested when it happens that they die, leaving a brother or sister living; that the share of the one so dying will go to his or her heirs.
    That the children of either or all of the three youngest children of the testator hold vested remainders in fee liable to be divested, as to the «hildren of the longest liver of the three, by the death of the other two children of the testator; that the children of the two first dying have, and will continue to have, a vested remainder in fee.
    Controversy submitted upon an agreed statement of facts.
    The defendant-refused to complete a contract for the purchase of real estate, claiming that the plaintiff could not convey a good title thereto.
    The plaintiff’s testator left a will which, after making certain specific bequests and devises, proceeded as follows:
    “ Sixth. I give, devise and bequeath all the rest and residue of my estate both real and personal (after the payment of the above legacies) to my three youngest childi’en, Abram W., Ida Amelia and Ernest, in fee. And it is my will, and I do hereby direct my executors to invest all the said rest and residue of my estate either in real estate or in bonds and mortgages, and to keep it so invested from time to time and apply the interest thereof to the support, maintenance and education of my said three children until they shall, respectively, arrive at the age of twenty-one years; and after they shall, respectively, arrive at the age of twenty-one years then it is my further will that my said executors do pay to each of them the interest of his or her respective one-third of said rest and residue, it being my intention to declare hereby that my executors shall pay the said interest to each of my said children as he or she shall arrive at the age of twenty-one years, and that before said time it shall be expended by said/ executors for the maintenance and education of said children as long as they remain, respectively, under the age of twenty-one years. It is my further will that the interest only and no part of the principal of said rest and residue of my estate shall be paid or distributed to my said children so - long as any two of them shall survive, and that after the death of any two of my said children the principal and capital of said rest and residue of my estate shall be equally divided between the survivor and the heirs of the two deceased children, it being my intention hereby to devise and bequeath to each of my said three youngest children one equal third of the said rest and residue of my estate, and that upon the death of each one of them his or her heirs shall receive the share to which his or her ancestor was entitled.
    “And I do hereby authorize and empower my said executors to sell and convey my real estate for such prices as they shall deem proper, and in fee simple or any less estate, and to invest the ' proceeds from time to time in bonds and mortgages, or in other productive real estate, for the purpose of carrying out the intentions of this will.”
    After all the debts and legacies had been paid and discharged, and the accounts of the executor had been passed by the surrogate, an application was made to the court at a Special Term by the surviving executor and others for, and which resulted in, the appointment of the plaintiff as executor and trustee in the place and stead of the surviving executor, with the same powers as he would have liad if he had been named in the will as executor by the testator.

      E. 11. Benn, for the plaintiff.

      A. Me Cue, in person.
   Barnard, P. J.:

By the will of Abram W. Jackson, his executors took no estate in the lands in question. After making certain bequests of money to various persons named, and devising one piece of his real estate to Mrs. Sanford, the testator gave “ all the rest and residue of my estate, both real and personal (after the payment of tire above legacies), to my three youngest children, Abram W., Ida Amelia and Ernest, in fee.”

The executors are directed to invest the rest and residue, and apply the interest to support these three children during their minority, and after they reach that age, each is to receive the interest of one-third. No part of the principal of the estate included in the rest and residue, is to be distributed to these three children as long as any two of them shall survive. After two die the estate so bequeathed was given equally to the survivor and the heirs of the two deceased children, “ it being my intention hereby to devise and bequeath to each of my said three youngest children one equal third of the rest and residue of my estate, and that upon the death of each one of them his or her heirs shall receive the share to which his or her ancestor was entitled.”

The testator owned the lands at his death. The ease does not show whether there are children of either of these three youngest children. The estate of the testator has been settled by his executors and all the legacies paid in full; power was given to the executors to sell real estate to carry out the purposes of the will. The power was not exercised as to the lands involved in this submission, and these lands entirely fall within the rest and residue clause and wholly belong to the donees under that clause. The will in terms gives an estate “ in fee ” to the children, which is subsequently reduced, but the words of the grant are entirely consistent with a legal estate, subject to a power of sale by “said executors.” The estate having been fully settled by these executors, there is no further need of a sale, and as no estate is given to them, a sale will not be upheld as incident to the estate. The children are all over the age of twenty-one, and were so when the plaintiff was appointed. My conclusion is that there is no further trust in the lands. That the rights of the parties are as follows: One of the children holds a fee in an equal undivided third. The two children who die first, hold a like fee each, to be divested when it happens that they die leaving a brother or sister living. In such case the share of the one so dying will go to her or his heirs. If there are children living of either or all of these three youngest children of testator, they have now a vested remainder in fee liable to be divested as to the children of the longest liver by the death of the two • others. As to the children who are or are to be of the others, there will be no divesting. They have now, and will continue to have, a vested remainder in fee. There is- an appearance as if the facts in this case were concealed from the court which appointed plaintiff trustee. The order was granted upon the petition of the executor to the will. The three youngest children of testator joined in it. These petitions are not given in the submitted case. Mrs. Pells also joined in the petition. She had no interest in these premises. The order recites that these four children of testator “ are the only-persons having an interest in said estate.” If there were grand children, why was not the fact mentioned, so that the court could have asked security for them. Why was not the will produced so ' that the court could ask security for those who might be born subsequently? If we are right in our conclusions, that there is no estate to go to a trustee, the appointment can work no harm. If there are infants, will they be bound by the appointment of a trustee obtained in such a mode. It may be that such an appointment cannot be attacked collaterally, but the case is one where 'a court should not impose upon a purchaser the burdens and danger of such a risk.

, There should be judgment for the defendant upon the submitted case, with costs.

Gilbert, J., concurred; Dykman, J.,- dissented.

Judgment for the defendant upon the submitted case, with costs.


author: Barnard,. P. J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of HERMAN STUTZER, Executor, etc., of AUGUSTUS JULIUS GEORGE SCHUTZ, Deceased.

      Will — coml/ruction of a clause granting an annuity.

    A testator gave to his widow “ an annuity, or yearly allowance of fifteen hundred dollars, United States currency (the United States currency to be calulated at the rate of one hundred and ten dollars currency for every one hundred dollars United States gold, if at the time when the above payments commence specie payments should have been resumed, and also"’if gold should have gone higher), payable to her order at the expiration of every three months.” At the time the will was executed gold was 114, and when the first amount was paid to the widow under the will specie payments had been resumed.

      Held, that the intention of the testator was to give his widow $1,500 currency per year ; that if gold was at par, then ten per cent was to be added to the gold price, payable in currency ; that if gold was above par ten per cent was to be added to the market price of gold, payable in currency, and the sum thus made was to be the $1,500 called for by the will.
    That gold being at par she was entitled to an annuity of $1,650 in currency.

      Appeal from a judgment, entered in the Surrogate’s Court of Brooklyn, upon the settlement of the accounts of an executor.
    The question in dispute involved the proper construction of the following clause of the testator’s will: ■
    “ Fourth. I give, devise and bequeath unto Elizabeth Partrich Schütz, nee Hutchins, of Concord, New Hampshire, my legal wife, all and every of my household furniture, linen, wearing apparel, books and plate; and I further devise to the same Elizabeth Partrick Schütz an annuity, or yearly allowance of ‘ fifteen hundred ’ dollars, United States currency (the United States currency to be.calculated at the rate of one hundred and ten dollars currency for every one hundred dollars United States gold, if at the time when the above payments commence, specie payments should have been resumed, and also if gold should have gone higher), payable to her order at the expiration of every three months. As soon as my oldest child reaches the age of fourteen years, the above mentioned annuity is to be increased by ‘ two hundred and fifty ’ dollars, thus making a total of ‘ seventeen hundred and fifty ’ dollars, United States currency per annum. As soon as my second child reaches the age of fourteen years, the last mentioned sum is to be further increased by ‘ two hundred and fifty ’ dollars, United States currency, thus making a total of two thousand dollai’s of the said cuiTency per annum. And if other legitimate children should be born to us, the same condition to be observed for each and evex-y one of them. With this annual allowance my wife is to defray, besides the necessai’y expense of maintaining the family, the cost of educating my children, their instniction in ’such branches as hereinafter mentioned, and to clothe them respectably axxd in keeping with their station in society. As soon as any of my children becomes of age, or if any of them should be taken away from this life before reaching the age of twenty-one yeax-s, for each and every one of them the sum of two hundred and fifty dollars, United States currency, is to be deducted from the above mentioned annuity, until it i'eackes the original sum of ‘fifteen hundred’ dollars, United States currency.”

      S. M. Parsons, for the appellants.

      George G. Putcher, for the respondents.
   Barnard,. P. J.:

The will does not in terms or by fair intendment provide for a reduction of the annuity to be paid to his widow, below $1,500 in United States currency. The meaning of the testator is very obscure. The clause out of which the question arose is as follows: “And I further devise to the same Elizabeth Partrich Schütz, an annuity or yearly allowance of ‘fifteen hundred’ dollars, United States currency (the United States currency to be calculated at the rate of one hundred and ten dollars currency for every one hundred dollars United States 'gold, if at the time when the above payment commence, specie payments should have been resumed, and also if gold should have gone higher), payable to her order at the expiration of every three months.”

At the time the will was executed gold was 114, and when the annuity was first paid, specie payments had been resumed. The learned surrogate holds that this was a gift of gold payable in currency, and when gold and currency became equivalent, that the ■widow was entitled to $1,363.64 in currency, because currency was at par with gold. If it was a gift of $1,363.64 in gold, under the plain words of the will the widow was to have currency, and at the rate of $110 currency to $100 gold, this would give the widow $1,500 yearly in currency, with a gold basis, as held by the surrogate. In so far therefore as the surrogate reduced the annuity below $1,500 in currency, I think the decree erroneous.

A graver question remains; whether the will and the facts of the case do not call for the sum of $1,650, payable in currency, to fulfill the intention of the testator, as expressed in the clause in question. He gave currency. He added $250 in currency when each of his two children an*ived at the age of fourteen. ' He also provided that this sum of $250 currency should cease /after the children arrived at age. He adds up in each case of increase the sums in currency to be paid to the widow as follows, in the case of the first increase, “ thus making a total of seventeen hundred and fifty dollars United States currency per annum,” and in the second ease in these words, thus making a total of $2,000 of the said currency por annum, and he provides for the reduction “until it reaches the original sum of fifteen hundred dollars United States currency.”

In the case of the annuity to the wife only, is any provision made for an increase of ten per cent ,in paper money over gold. This increase depends upon the contingency of the resumption of specie payments, and also upon the contingency that gold should rise higher, when the first payment* became the right of the widow. There is no plain mention of any rate ro which this word “higher” can be applied. Does the will require the happening of both contingencies, or either of them ? Is the widow to have an annuity of $1,500 in paper, with ten per cent added, whether "specie payments were resumed or not % The testator could not have intended the happening of both contingencies. If specie payments were resumed, gold and paper would be equal. In view of the amount of the estate, $82,447.11, and of the burden put upon the widow in respect to the maintenance and education of the children, the intent of the testator was this: A gift of $1,500 currency per year. If gold was at par, then ten per cent to be added to the gold price, payable in currency. If gold was above par, ten per cent was to be added to the market price of gold, payable in currency, and the sum thus made was to be the $1,500 called for by the will. That the word “ higher ” means above par.

My conclusion therefore is, that the widow is entitled to $1,650 annuity, in currency, to pay hei annuity.

The surrogate’s decree should be modified accordingly, costs of both parties out of the estate.

Dykman, J., concurred.

Gilbert, J., concurred in reversal, but only to the extent that the decree should be for annuity to the widow of $1,500 per year.

Part of decree appealed from reversed, and widow adjudged entitled to annuity of $1,650 per annum; costs to all parties out of the estate.


text:
    IDA LINDSAY, Respondent, v. JOHN MULQUEEN, Appellant.

      fraudulent representations —■ when an action based thereon is for a tort, and when on contract.

    Where an action is brought to recover the damages sustained by the purchaser of an article, which the seller warranted and represented to be of a certain quality when he knew that it was in fact of an inferior quality, the determination of the question whether the action is for a tort or upon a contract depends upon the presence or absence in the pleadings of an allegation that the false repre sentation was made with an intent to cheat or deceive the purchaser.
    Appeal from a judgment in favor of tlie plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The complaint alleged, among other things:

      “ Fi/rst. That at the city of Brooklyn, Kings county, on or about the 3d day of March, 1880, the defendant offered to sell the plaintiff for sixty-six dollars, to be paid to him by this plaintiff, sixty-six yards of carpet, which said carpet plaintiff warranted and fraudulently represented to be a first-class imported English body Brussels carpet and made of all wool.

      “ Second. That the plaintiff, relying on said warranty and representations and believing the same to be true, was induced thereby to purchase, and did purchase the same from the defendant and paid him therefor said sum of sixty-six dollars.
    “ Third. That in truth and in fact said carpet so sold as aforesaid was not a first-class imported English body Brussels carpet made of all wool, as by the defendant warranted and represented, but the same was of a mixed texture known as jute and was a greatly inferior article, all of which the defendant knew at the time he made the fraudulent warranty and representations aforesaid.”
    The court decided that the action was on contract, and allowed the plaintiff to recover without any proof of fraud on the part of the defendant.

      James Troy, for the appellant.

      J)cmiel B. Thommson, for the respondent.
   Barnard, P. J.:

The complaint lacks a vital averment to make it one for fraud or deceit. It avers a warranty of a carpet to be English body Brussels all-wool carpet; that it was not such an one, but was partly jute, and that defendant knew it to |>e partly jute at the time of the warranty. It should have averred that the false representation was made with the intent to deceive. (Stitt v. Little, 63 N. Y., 427.)

• Knowledge that a fact which is stated to be true upon a sale is false, will sustain a complaint in which it is averred that the falsehood was told with intent to cheat. Where there are two actions for the same breach, the pleader should leave no room for question.

The complaint as it stands is a complete one upon a breach of contract of warranty. The words false and fraudulent have no significance in a pleading of themselves. A breach of warranty is actionable as a breach of contract only, even if the representation and its falsehood is averred to have been false and fraudulent. Scienter or knowledge of the falsity of the representation does not destroy the action upon contract. The true test of a pleading, whether it is for tort or contract, in such cases, depends upon the averment of an intent to cheat or deceive by the representations alleged to be false to the knowledge of the party making them.

The complaint in this case lacks this averment and was properly held to be contract only.

The judgment should therefore be affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


author: ' Barnard, P. J.:

text:
    MARIA E. VOSE, Respondent, v. THOMAS WOODS and Others, Appellants.

      Trespassers — when the parties procw'ing several void attachments to issue are liable.

    When several attachments are void all the parties who have procured their issue, and directed a constable to levy upon the property of the defendant therein, are liable as trespassers to a third person whose property has been seized by the constable as being the property of the debtor;

      Appeal from an order overruling, a demurrer interposed to the complaint herein.
    This action was brought to recover damages for the wrongful detention of personal property.
    The plaintiff resided in the village of Mount Yernon and engaged the defendants Burr Davis and Franklin T. Davis to take her furniture to the city of New York. The defendants John,E. Marshall, Burtis Shaff, Ferdinand Decker and Kobert George took out four attachments against one J. E. Yose and- placed them in the hands of the defendant Woods, who was a constable, who at the direction of the said defendants took the plaintiff’s goods thereunder. The attachments were subsequently vacated as void, and the goods were ordered to be returned to plaintiff who demanded of the defendants Burr Davis and Franklin T. Davis, who kept the goods in their possession, that they should take them at once to their destination, which they refused to do and charged and extorted from the plaintiff moreover fifteen dollars in addition. The defendants jointly demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action; that causes of action had been improperly united ; that it charged Burr Davis and Franklin T. Davis with a breach of contract - and extortion; that it does not state facts sufficient to constitute a cause of action against the defendant Woods, and that inconsistent causes of action are joined.

      P. L. MoGlellan, for the appellants.
    IF. J. Marshall and R. D. Lent, for the respondent.
   ' Barnard, P. J.:

There is a good cause of action against all the defendants. The plaintiff’s property was seized by Woods. It was seized under color of separate attachments in favor of the defendants Marshall, Shaff, Decker and George. This attachment was not against the plaintiff, and was illegal and void against anyone.” The property was placed by Woods in the hands of the defendants Davis’ in storage, who refused to give it up except upon payment of twenty- - five dollars. If the attachments had been good against J. A. Y ose, the defendant therein, and the seizure of plaintiff’s property thereunder had not been directed or'assented to by the plaintiffs therein, the constable would only have been liable. The attachment being void and the constable having been directed to seize J. A. Yose’s property, and having in fact seized plaintiff’s, all were liable, because the seizure was illegal as to everyone, and it is no defense that, in attempting to trespass upon one person, a trespass was commit'ed upon another.

The defendants Davis’, by holding under this illegal seizure until they were paid a considerable sum of money to release it, became trespassers db initio. The statements that the plaintiff did deliver the goods in question to the defendants Davis’ for transportation for her before the levy was made, and that the levy was made while the goods were in Davis’.cart, might have been left out of the complaint. A good cause of action in trespass is set out without these averments. The place of levy, however, was immaterial; its statement does no harm.

The judgment should be affirmed] with costs, with leave to defendants to answer in twenty days on payment of costs.

Gilbert and Dykman, JJ~., concurred.

Order overruling demurrer to complaint affirmed, with costs, with leave for defendants to answer in twenty days on payment of • costs.