text:
    In the Matter of the ATTORNEY-GENERAL OF THE STATE OF NEW YORK v. THE CONTINENTAL LIFE INSURANCE COMPANY.

      Receiver of insolvent life insurance company — intervening creditors — allowances to their counsel, and costs cannot he charged upon the fund.

    Where certain of the creditors of an insolvent life insurance company have been allowed to intervene in the proceedings instituted by the receiver, and to have notice of and liberty, to oppose the same and move therein, .the .court should not grant to the counsel of such intervening creditors any allowances payable out of the fund in the hand of the receiver, whether such allowances be claimed under the provisions of the Code or whether they are claimed as reasonable counsel fees earned by them. Nor should the court charge the taxable costs of such intervening creditors upon the said fund.
    Appeal from an order made at a Special Term appointing a referee to take proof and report to tbe court, with his recommendation, whether any allowances should be made out of the fund in the hands of the receiver to counsel for intervening claimants’ and if so the amounts thereof and when the samé should be alloyed, and also from an order deifying a motion to vacate or resettle the same.

      JyMen T. Davies, for certain policyholders, appellant.
    . Leslie W. Russell, attorney-general.

      Raphael J. Moses, Jr., and Ducius Mg Adam, for certain intervening policyholders, respondent.

      George W. Wmgate, for John P. O’Neill, receiver.
   Learned, P. J.:

The Code provides that a party may recover certain definite sums which it calls costs. It also provides that certain allowances, in ratable proportion to the recovery, may, in the discretion of the court, be added to • these costs. Such allowances, when granted, constitute a part of the costs.

This permission' to add allowances to the costs and the practice thereunder have probably given rise to the idea that the courts possess a general and arbitrary power to give to any party such an amount as they might think would compensate him for his trouble and expense in prosecuting or defending the litigation But no such power exists.

The only recovery of this kind which can be had is regulated by the bill of costs, with the discretionary increase of a ratable allowance under the pro visions, of the Code. Such recovery of costs is usually in favor of one party against the other. In some special actions in equity it might be, and still may be, payable out of a fund.

There is another case which is quite distinct, although liable to be confounded with the recovery of costs. When a receiver properly employs counsel, he is to pay such counsel, as he is to pay any other necessary expense. Such payment, if proper and reasonable, would be allowed him, like any other necessary expense in the settlement of his accounts. Blit as the amount payable to counsel is not a liquidated sum, and as there might be a doubt as to the proper amount, a receiver may well apply to the court to determine that amount in order that he may be justified in paying it. This is merely the determining of the amount payable by client to counsel. And especially as the receiver is the officer of the court, it is proper that the court should determine how much should be paid.

A similar principle applies in the case of necessary counsel employed by an executor. An executor may desire the sanction of the surrogate before paying counsel, lest the amount paid should not be allowed on an accounting.

Now such cases as these, it will be seen, arise when a certain fund is in the custody of some officer or quasi trustee; and that officer or quasi trustee has occasion to employ counsel as he might incur any other expense in behalf of the fund. And the officer or quasi trustee desires the approval of the court, before which he must eventually account, so that he may safely make the payment.

The numerous suits and proceedings which have lately arisen in regard to insurance companies have given occasion for some new questions of practice. And it is very possible that, in dealing with them, the principles above stated have sometimes been overlooked. Where there are many attorneys employed for different parties, it is natural that each should be willing that all should be paid, when such payment can be made out of a fund. Each escapes the unpleasant task of charging his own client a large fee; and all can throw upon the court any complaint of extortionate charges, which their clients may make. It is, therefore, not strange under these circumstances, when all the attorneys agree and none oppose, that courts may have been too ready to order payments to counsel, in cases where the right to do so did not, on sound principles, exist.

Now in the present case, as above pointed out, the proper and reasonable counsel fees of the receiver must, like other expenses, be paid from the fund in his hands, subject, however, to the approval of the court. '

But the other parties, that is, the intervening creditors as they are called, are simply creditors of the defunct corporation. Each creditor of the corporation has his own separate interest. Some have thought it necessary to employ private counsel of their own to look after their interests. Others have thought this unnecessary, and have been willing to trust to the receiver’s management. Whatever the services of such counsel may be worth to their clients is a debt from those clients to their counsel. It is not, and ought not to be, a claim on the fund. Those creditors who did not choose to employ private counsel should not be made to pay, in whole or in part, for the debts contracted by other creditors to their counsel.

These counsel insist that, in some cases, their services have benefited not only their own clients, but also the other creditors ratably. Although that be so, the other creditors did not employ them, and one should not be made to pay for services which he did not request, and the performance of which he could not prevent. They were not retained by the other creditors, and therefore those creditors should not be required to pay. They were not retained by the receiver, and therefore their services are not a charge on the fund. The mere rendering of services to their own clients which have proved beneficial to other persons, does not justify the court in compelling such other persons, directly or indirectly, to pay therefor.

We are aware of the cases in equity where costs are charged on the fund. But it must be observed in passing that it is the costs, not the counsel fees owing by clients, which are thus charged. Those cases belong to a small class, including actions of interpleader, for the construction of a will and the like. And they involve nearly always a conflict between the defendants themselves, some making claims which the others directly and not indirectly oppose.

The present case, however, is that of a suit to distribute the assets of a defunct corporation among its creditors. The receiver, as the officer of the' court, is charged with the duty of collecting the assets and of seeing that no unjust claim is allowed. Each claimant may, by himself or by counsel, present his claim. Indirectly, of course, its allowance diminishes the amount payable to others. But the officer of the court is at hand to oppose; and in a certain sense acts for all valid claims. There is no construction of a will to be determined, on which all the rights depend. The only question in respect to each creditor is that of amount. For it is undisputed that thé assets are to be used to pay the creditors.

Even, then, if we should consider these so-called intervening creditors as quasi parties, and they are certainly nothing more, it would not be a case in which parties should be paid even their costs out of the fund, far less their counsel fees. The orders permitting these creditors to intervene (as it is called) were made at their request and for their own personal benefit. And these orders only gave them the privilege of having notice of proceedings and opposing, if they choose, and of moving in the matter. The whole litigation could have been carried on without their appearance. They were not needed as parties, and there is no good reason why their costs and counsel fees should be paid out of the fund.

And it must be observed that the question here is not whether the services thus rendered ought to be compensated, .but the question is who should make compensation. If the court makes allowances to be paid out of the fund, then the court assumes to determine between client and attorney how much the client ought to pay; and that, too, without any opportunity for the client to be heard. For the money in the hands ■ of the receiver belongs to policyholders pro rata. And the counsel who make this application are the counsel of certain of these clients. Whatever, then, the court directs the receiver to pay to these counsel as compensation is a payment pro rata made to them by their clients. It is, therefore, a determination by the court how much their services have been worth to their clients, as well as to others. And on that question the clients are not and cannot be heard.

Even the taxable costs under the Code' belong to the client; although often taken by the attorney as his compensation or as a part thereof. And by the Code the amount payable for legal services is a matter of contract, express or implied. If this be so the court ought not to determine that amount, even between attorney and client, in a proceeding where the client is not heard. Much less ought the court to determine such amount against persons who never were the clients of the attorney.

We are therefore of the opinion that this is not a case in which even the taxable costs of the intervening creditors should be charged upon the fund. If it were such a case there would be no need of a _ reference, but only of a taxation. And we are of the opinion that it is not a, case in which any allowance should be granted to the counsel of the intervening creditors payable out of the fund; whether such allowances be claimed under the provisions of the Code or whether they are claimed as reasonable counsel fees earned by the counsel of these intervening creditors. • We think it unjust to clients that the court, without hearing them, should determine what they should pay for services rendered.. And as the respective attorneys will receive the pro rata dividends for their clients, they will have a full opportunity to protect themselves and to secure a just payment for their services.

Orders reversed, without costs, and motion for reference denied, without costs.

Present — Learned, P. J.; Boardman and Landon, JJ.

Appeal from order of reference to Buggies, and from order denying motion to vacate; orders reversed, without costs, and motion for reference denied, without costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    CHARLES F. NICHOLS, Respondent, v. THE WEED SEWING MACHINE COMPANY, Appellant, Impleaded, etc.

      Taking a mortgage in the name of a third person, to defraud creditors or escape taxation — the validity of the mortgage cannot be attacked by a subsequent incumbrancer.

    This action was brought to foreclose a mortgage given by one Wood to Charles F. Nichols as collateral to a bond for $7,000, which bond provided that the money was to be received by him in trust for Elizabeth B. Nichols, Mary E. Ball and George C. Nichols. Two thousand seven hundred dollars of the $7,000 belonged to Elizabeth, $8,800 to Mary and $1,000 to George.
    The bond and mortgage were taken in the name of Charles because Elizabeth and Mary were unwilling to have it taken in the name of George (as he was a stockholder in a company and liable as such on certain of its guarantees), and in order to protect the property of the three persons from any contingent liabilities thereon. Another reason for so taking it was the unwillingness of George C. to have his name appear lest it might subject him to a taxation which he considered unjust. The mortgagor made no defense. A subsequent incumbrancer, by attachment and judgment against the mortgagor, claimed that the mortgage was void because it was intended to hinder, delay and defraud the creditors of George, and for the reason that it was against public policy, as being an attempt to escape taxation.

      Held, that neither of these defenses could be set up by a subsequent incumbrancer after the mortgagor had waived them by making a default.

      Qiuere, as to whether even the mortgagor could have availed himself of them.
    Appeal from a judgment in favor of the plaintiff, entered upon "the report of a referee.

      II. Boa/rdman Smith, for the appellant.

      A. D. Wales, for the respondent.
   Learned, P. J.:

This is an action of foreclosure, against which the Weed Sewing Machine Company, a subsequent incumbrancer, alone defends. Simeon D. Wood is the mortgagor. The money which was loaned to him, $7,000, belonged to three persons, as follows, to Elizabeth B. Nichols $2,700, to Mary E. Ball $3,300, to George C. Nichols $1,000. And the bond given to the mortgagee, Charles F. Nichols, contained a clause, to the effect that the payment of the principal sum was to be received in trust for Élizabeth B. Nichols, Mary E. Ball and George C. Nichols according to their interest in the loan. The reason why the bond and mortgage were taken in the name of Charles E. Nichols, as found by the referee, was because there were three persons interested in the fund; and Elizabeth and Mary were not willing that it should be in the name of George, because he was a stockholder in some company, under which he was liable on certain guarantees; and he found that the transaction was in plaintiff’s name to protect the property of these three persons from contingent liability on these guarantees. Among other reasons why George 0. Nichols did not desire the mortgage to be in his name was because it might subject him to a taxation thereon, which he considered unjust. Simeon D. Wood received, the-.-money and executed the bond and mortgage, and delivered the same to George C. Nichols, as agent of Charles F. Nichols. Wood has made default in the payment, and makes no defense.

The complaint alleges that the money payable on the bond was to be received by the plaintiff for the benefit of the persons above mentioned, as in the bond described.

The defense, set up by the Weed Sewing Machine Company, the subsequent incumbrancer by attachment and judgment against Wood, is two fold. First, that the mortgage was void, as intended to hinder, delay and defraud the creditors of George C. Nichols. Second, that it was void as against public policy, on the ground that it was made in an attempt to escape taxation.

First. As intended to hinder, delay and defraud creditors of George C. Nichols. It is very doubtful whether, on the facts, this bond and mortgage were made with such intent. So far as concerns the $6,000 belonging to Elizabeth B. Nichols and Mary E. Ball, the creditors of George C. Nichols had, and could have, no claim. And whatever these ladies did could not defraud, and could not be intended to defraud, his creditors. As to his $1,000, there were no suits against him; and he testified that he was then, and had ever since been, perfectly solvent. But if, to the extent of the $1,000, or even to the extent of the whole $7,000, this money be said to have been transferred to Charles F. Nichols with intent to hinder, delay or defraud creditors of George C., still it is only as to his creditors that the transfer is void. (2 B. S., m. p. 137, § 1.) His creditors are the persons who have the right to claim that the transfer is fraudulent. And this is in order that they may recover back the money to apply on their claims. If the position of the defendant, the We.ed Sewing Machine Company, be correct, the money, instead of being restored to the creditors of George C., if there were any, would be kept from them, and applied to pay a creditor of Simeon D. Wood. Wood’s, creditor has not been defrauded, nor has there been any attempt made to defraud him. Wood has had this money, and'it may have gone to pay some of his creditors. For it he agreed to pay Charles F. Nichols. It is of no consequence to Wood whence Charles F. Nichols received the money, even if he stole it. That is: so long as there are no adverse claimants to the money itself; and in this case there are none.

And here it may also be noticed that there has really been no attempt to transfer the ownership of the funds from George C. Nichols and the two others to Charles F. Nichols. No absolute ownership was given to him. He was but an express trustee for them. If there had been three bonds executed (one to each of the interested parties) and a mortgage to Charles F. Nichols as trustee, to secure these three bonds, then the case would have been like that of the ordinary railroad bonds, secured by a mortgage. No one would say that the purchaser of such a railroad bond had transferred his property; because the mortgage, which secured it, was executed to a trustee for all interested. The only .difference in the present case from that supposed is that one bond was given to the trustee for the benefit of the parties in interest. But they did not assign or transfer to Charles F. Nichols their property. They only put it in his hands as their respective trustee. They had equitably the same interest as before, and could have enforced their rights against Charles F. And a transfer in trust for the person making it is void only as against his creditors. (2 B. S., m. p. 135, § 1.)

Second. As to the claim that the mortgage is void as against public policy. The defendant cites the case of Cox v. Wightman (11 Sup. Ct., 4 Hun, 799). As that case is not reported in full, it may be well to state what was decided. One Beeve Dilley held a bond and mortgage executed to him. He assigned the bond and mortgage to Orrin Dilley without consideration, and for the purpose of avoiding taxation thereon ; and testified before the assessors that he did not own this bond and mortgage, but had sold it and had received the pay therefor. Orrin Dilley died in possession of the bond and mortgage. Subsequently Eeeve Dilley died. Orrin Dilley’s executor foreclosed, the bond and mortgage and collected the amount, in the form of another security. There were other facts which it is needless to detail. Eeeve Dilley’s administrators brought that action to recover that security. It was held that they could not recover. The plaintiff in that case, (like the defendant in this,) urged that the assignment by Eeeve to Orrin was utterly void, and that the title to the bond and mortgage remained in Eeeve, and cited Nellis v. Clark (20 Wend., 24) to sustain that doctrine. But the court decided otherwise, and held that Eeeve’s administrator, (his estate being solvent,) could not get back a bond and mortgage which Eeeve had voluntarily transferred, though without consideration, and with a design to escape taxation. That case was affirmed by the Court of Appeals in April 1876 and is therefore a more recent authority than Dewitt v. Brisbane (16 N. Y., 508). If when Orrin Dilley’s executor was foreclosing the mortgage, the mortgagor had set up that the assignment thereof had been made to escape taxation, and if the court had decided that that was a defense to the mortgage, there would have been some analogy to the present case.

But still there is a great difference even between the act of Eeeve Dilley in that case and the act of George 0. Nichols in the present. Dilley put his property out of his hands, so that he ceased to be, and testified that he had ceased to be, the owner. Nichols, in the most unfavorable view, did not put his property out of his hands, but only invested it in such a manner that it could not easily be found. If a resident of Broome county invests in a bond and mortgage on land in Saratoga county, with the intent, and in order, that the assessors of his town may not readily discover the mortgage, this is no culpable act. It is no act against public policy. If one, in order to escape taxation, sells his bonds and mortgages and invests in railroad stock, or in United States stock, or in railroad bonds, he does nothing wrong. If one with intent to escape taxation buys negotiable paper instead of lending on bond and mortgages, this fact does’not affect his title to the paper. And if he should bring an action on such paper it would be no defense for the defendant to' show that the principal motive which, induced the plaintiff to lend his money in that way was that he might escape taxation, which he would be liable to, if he purchased land.

Assuming, for the purpose of argument, that George 0. Nichols put money into Charles F. Nichols’ hands to hold as express trustee for him, in order that the assessors might not discover it, we doubt whether Charles F. could refuse to perform that trust, on the ground of its illegality. But however that may be, if he should choose to perform the trust, no one could complain. And if this trustee invested the money in this bond and mortgage, it is not for the mortgagor to inquire what disposition the mortgagee may make of the money when collected. There.was - nothing illegal in the loan, even if the arrangement between Charles F. and George C. were against public policy. And the error of the defendant as we think, is in attempting to attach to the contract of loan between Wood and Charles F. an element of illegality, supposed to exist in the arrange ment between Charles F. and George 0. Nichols. Wood had no knowledge of any alleged illegality. The contract between Wood and Charles F. Nichols was to repay money which Wood had received, and that is what public policy requires.

There is still another consideration. The doctrine that, where there is an illegal contract, the law will not enforce it in favor of one party thereto against the other has never prevented either party from voluntarily performing the contract he has made. If, for instance, A. has transferred property to B. in order to defraud A.’s creditors and upon a promise by B. to return the property, A. cannot compel B. to keep his promise and return the property, if B. refuses. But, on the other hand, if B. does not refuse, but performs his promise and returns the property, A. can retain it and B. cannot reclaim it. Thus it appears that it rests with the party to the contract to perform or not. If B. should voluntarily return to A. the property thus illegally transferred, no one could complain. B. would be doing a lawful and proper act. He would be returning the property to its rightful owner. And his refusal to return is dishonest, although the law permits him to be dishonest, if he will. B.’s creditors would have no right to the property, because B. would only have performed a contract, which he might perform, if he chose, but which he could not be compelled to perform if he did not choose. Applying then this reasoning to the case-before us and supposing, for the present, that Wood was not obliged to pay the mortgage, for the alleged reason that it was illegal, still he had the right to pay it. He had a right to pay his debt, and he was not bound to resist this foreclosure, on the ground of alleged illegality. It was a real and not a fictitious debt; and its payment would be no fraud on his creditors. The subsequent incumbrancer had no right to insist, for its own benefit, on this defense, which Wood did not choose to set up. The defense was personal' to him. If he had paid the debt out of other property, he would have done' no wrong to his creditors. To pay it out of the mortgaged property does no wrong to the subsequent incumbrancer.

This may be illustrated by the case of Wood v. Erie Railway Company (72 N. Y., 196), where it is shown that a common carrier cannot set up as a defense that the shipper of goods is acting in violation of the statute relating to fictitious names.

The defendant cites Dewitt v. Brisbane (16 N. Y., 508). It is important to understand the facts of that case. Albert Brisbane executed a mortgage to James Brisbane, which, at the time of the assignment thereof by James, was a valid security to a certain amount. James assigned it to Viger, De Witt . & Co. as collateral security for an agreement of Albert, illegal under the statute. Albert conveyed to James the equity of redemption. James died; and the defendant was his son and his executor. Therefore it appears that the defendant represented not only the equity of redemption, but also the original mortgagee, who, as pledgor, had still an interest in the mortgage. The plaintiff, by his action, was not only attempting to foreclose the mortgage, but was necessarily attempting to foreclose the interest of James, as the mortgagee, inasmuch as the assignment was not absolute, but only as security.

Thus the question was not purely whether the mortgagor could defend on the ground that the assignment was made for an illegal purpose. The further question was involved whether the assignor of the mortgage, where the assignment was collateral to an illegal purpose, might not resist the foreclosure of his interest therein. The case of Johnson v. Bush (3 Barb. Ch., 207) decided that the assignor, a corporation, had no power to assign, as it did; that is, that no assignment in fact- was made, not that it was made for an illegal -purpose. So the case of Talmage v. Pell (7 N. Y., 328) turned on the want of power in the corporation. The question of want of power is not in this present case.

We have examined the case of Drexell v. Tyrrell (15 Nev., 114), cited by defendant. As the case is not authoritative in this State, it is sufficient to say that we have considered the opinion of the majority of the court arid the cases cited to sustain it; and we do not think it correct, or sustained by the citations. As we think, the opinion fails to appreciate that there is no illegality in the contract of loan; and that the question is only whether one who has borrowed money shall repay it.

The judgment is affirmed, with costs.

Present — Learned, P. J.; Boardman and Landón, JJ.

Judgment affirmed, with costs.


author: Boardman, d.: Learned, P. J.: Landon, J.:

text:
    WILLIAM H. DORRANCE, as Administrator, etc., of THOMAS DOWNES, Sr., Deceased, Respondent, v. WILBUR M. HENDERSON, as Sheriff, etc., Appellant.

      Sheriff — action against, for a false return — when he may show in mitigation of damages that the plaintiff’s jtidgment has been set aside by a bankruptcy court — stay in bankruptcy, when void, —effect of accepting a dividend.

    On the 9th day of August, 1876, the defendant, as sheriff, levied upon the stock of goods of the firm of Case & Downes by virtue of an execution issued upon two judgments recovered against that firm by the plaintiff’s intestate on the 8th day of August, 1876. On the fifteenth day of August a petition to have the said firm declared bankrupts (but not alleging that the judgment or execution was in fraud of the bankrupt act or asking that a sale thereunder be restrained) was filed with the clerk of the United States District Court, who issued the usual order to show cause, and inserted therein a provision staying the -sheriff fr'om selling the said goods, who thereupon adjourned the sale until November sixteenth. On September nineteenth'an order was made by the bankruptcy court denying a motion made by the plaintiff’s intestate to set aside the stay and directing that the assignee in bankruptcy should sell the goods and that the liens of the judgments should attach to the proceeds realized therefrom. The defendant having on November fourth surrendered the goods to the assignee, after having been notified by the plaintiff’s intestate not to do so, and having on December twenty-second returned the execution unsatisfied, this action was commenced by the plaintiff’s intestate on August SI, 1877, to recover the damages he had sustained thereby.
    The defendant set up in a supplemental answer, and offered upon the trial to prove, that on September 38, 1877, the assignee in bankruptcy brought an action against the plaintiff’s intestate in the District Court and procured therein a judgment setting aside the judgment upon which the execution was issued.

      Held, that the stay was without authority and void and the defendant was not bound to respect it.
    'That the defendant should have been allowed to prove the recovery of the said judgment in the District Court, not as a bar to the action but in mitigation of damages. (Boardman, J., dissenting.)
    That as the plaintiff had lost the security of the levy by the sheriff’s act it was entirely proper for him to prove his claim against the bankrupt’s estate and accept a dividend thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.
    The action was brought against the sheriff to recover damages for a false return.
    It appeared that on the 9th day of August, 1876, the defendant, as sheriff, levied upon and took possession of the stock of goods of Case & Downes, as copartners, of the value of $2,000, by virtue of two executions issued ■ upon two judgments recovered by the plaintiff’s intestate against the said firm, and duly advertised the same for sale thereunder.
    That on the 15th day of August, 1876, a petition in the usual form was filed by other creditors of Case & Downes with the clerk of the District Court for the Northern District of New York, praying that the firm of Case & Downes might be declared bankrupts. In the petition there was no allegation that either of the said judgments or executions were in fraud of the bankrupt act or of creditors, or prayer that the defendant should be restrained from selling under the executions; that upon the petition being filed the usual order to show cause was issued by the clerk, who inserted therein a provision in form staying the defendant in this action as such sheriff from making sale under the executions, which order was served on the defendant on the 16th day of August, 1876.
    The defendant deemed himself stayed by the said order and adjourned the sale from time to time until the 16th day of November, 1876. The plaintiff in the executions made a motion in the District Court, sitting in bankruptcy, to set aside the stay so far as it restrained the defendant from selling under the executions, or for such other or further order in the premises as should be just and equitable. The motion was heard on the 19th day of September, 1876, and was opposed by the petitioning creditors. The court denied the motion and then proceeded to dispose of the property held by the sheriff by ordering the same to be transferred to the assignee in bankruptcy, and to be sold by him free and discharged of the liens of said executions, and that the said liens should be transferred and attach to the moneys realized from such sale, etc.
    The plaintiff in the executions refused to recognize the validity of the order or to avail himself of any of its provisions and on the 11th of October, 1876, his attorneys notified the defendant that they considered the said order to be void and desired the defendant to proceed and sell the property on the executions, but the defendant did not do so.
    On the' 4th day of November, 1876, the assignee in bankruptcy of Case & Downes' demanded the-goods of the defendant and he surrendered the same to him without objection, and without any authority or assent of the said Thomas Downes, Sr., or his attorneys.
    The assignee took the goods and sold them for $2,000 on the 6th day of November, 1876, and the said District Court confirmed the sale and ordered the goods sold free from liens. This order was made without any notice to the said Thomas Downes, Sr.
    On the 22d day of December, 1876, the defendant returned the executions to the clerk’s office of Madison county wholly unsatisfied, without direction or authority from the plaintiff or his attorneys. This action was commenced on the 31st day of August, 1877.
    The defendant set up in a supplemental answer and offered to prove on the trial that on the 28th day. of September, 1877, the said assignee in bankruptcy commenced an action in the said District Court against the said Thomas Downes, Sr., and procured a judgment therein setting aside the said two judgments. This defendant was not a party to that action.
    On the 11th day of July, 1879, the said Thomas Downes, Sr., appeared before W. II. Comstock, register in bankruptcy, and claimed a-dividend in the assets of said bankrupts on both of his aforesaid judgments or demands; and in his affidavits as to each, after stating their consideration, etc., he stated, in substance, that executions were issued upon them and a levy made on the stock of goods of the bankrupts and that the sheriff afterwards released the levy; and the said Thomas Downes, Sr., afterwards received in all from the assets of the bankrupts as his dividend the sum of forty-one dollars and fifty cents.

      Wm. O. Huger, for the appellant.

      Edwin II. Ridley, for the respondent.
   Boardman, d.:

This was an action brought against the sheriff for a false return upon two executions issued to him. Judgments in favor of plaintiff’s intestate. The facts are very clearly stated in the decision of the learned referee, to which reference is made.

The -judgment rolls, the executions and the levy are conceded to have been regular in form, and that the defendant, by his levy, acquired a jgri/ma facie title to, or lien upon, the property seized. After such levy, bankruptcy proceedings were had against Case and Downes, defendants in the execution, by their creditors. Under those proceedings an order wras granted staying the' defendant. Such stay was unauthorized by the bankruptcy proceedings. No case was made by the petition in bankruptcy for such an order. No case was made by affidavit or proof to sustain such order. The court did not grant it, or direct it to be issued in any such form, nor did the judge pass upon the question. It was the act of the clerk, without power or authority and without right. It was an illegal interference with the proceedings of a State court, without a particle of evidence to excuse it. (Clark v. Binninger, 38 How., 341, and cases cited; Hayes v. Dickinson, 9 Hun, 277; Roderigas v. E. R. S. I., 76 N. Y., 316.)

The stay was without authority and void, and the defendant was not bound to respect it.

If the preceding conclusion be correct, it must follow that the District Court could not acquire any additional or greater right to control the property, or the defendant, because the plaintiff saw fit to move in the District Court to set aside the void stay. That was not a submission to the jurisdiction of the court which could make the void act valid. The plaintiff failed of his relief, and, instead, the court did something else which it had no right to do upon plaintiffs motion, and in direct hostility to his wishes. Certainly the plaintiff was not estopped by such unwarranted action of the court directing an officer of the State court to turn over plaintiff’s vested rights and valid lien to an assignee in bankruptcy, there to be made a bone of contention, in such manner as the district judge might prescribe. The plaintiff very properly repudiated such interference and stood upon his rights under his levy. Those rights could not be attacked upon ex pcvrte affidavit used in opposition to plaintiff’s motion. Indeed, it is quite possible they could not be attacked by rule or order or on summary application, unless by the consent of the plaintiff in the execution. Much less could the plaintiff be compelled to become a party to litigation by rule, as in this case, without his consent. (Smith v. Mason, 14 Wall., 419; Marshall v. Knox, 16 id., 551; Doyle v. Sharpe, 14 N. Y., 154.) The proper remedy in case of contest over the title to or right of possession of property is by action by the assignee in bankruptcy against the sheriff or other person in possession. (U. S. R. S., § 4919.)

The referee finds, and there is sufficient evidence to sustain such finding, that the defendant, without authority or assent from the plaintiff, and voluntarily, surrendered the goods levied upon to the assignee in bankruptcy. Such act the referee finds to have been a wrongful act as to the plaintiff, by which plaintiff’s lien was destroyed and by which defendant put an end to any privity between him and plaintiff, and the defendant thereafter acted in hostility to the plaintiff.’

The voluntary surrender of the property and return of the executions unsatisfied, would make the defendant prima facie liable to the plaintiff for his debt. (Ansonia Brass Co. v. Babbitt, 14 N. Y., 395.) When such execution was returned, and when the property was given up by defendant, there was no fact, adjudication or valid order which justified the defendant’s conduct. As matters then stood the sheriff was clearly liable to the plaintiff for his wrongful acts in releasing the property and returning the execution. He knew such acts were hostile to the interests and in violation of the directions of the plaintiff.

The plaintiff thereupon brought this action for a false return, and judgment was recovered July 27, 1880, upon the report of the referee, dated May 6, 1880. After the commencement of this action an action was begun by the assignee in bankruptcy against Downes, Sr., and others, to set -aside the judgments and executions in favor of Downes, Sr., and such judgments and executions were set aside as in fraud of the bankruptcy law. The defendant in this action was not a party to said action. That judgment was obtained in March, 1879.

This last judgment does not bar the plaintiff’s action, as the referee finds. No such judgment existed when plaintiff’s cause of action accrued, or when plaintiff’s action was commenced. The sheriff was not a party to such action, nor was the sheriff at the time when he returned the executions unsatisfied, or afterwards, in privity with plaintiff. From that time he was acting in hostility to plaintiff and in accord with the assignee. He no longer stood in plaintiff’s place or rested on his title. He abandoned and sacrificed plaintiff’s rights to his adversaries. Nor were the subject-matter of the two actions the same. The action in the District Court was brought to get rid of the lien by virtue of defendant’s levy under plaintiff’s executions. But those liens had been destroyed by the defendant’s wrongful acts long before the action was commenced. Here the question is, was the sheriff’s act wrongful ? The rights of the parties must be determined by the condition of things at the beginning of the action. (Wisner v. Ocumpaugh, 71 N. Y., 113.) The District Court judgment cannot be a bar to this action.

Nor can the sheriff use such a judgment as evidence that the levies were voidable because in • violation of the bankrupt act. The sheriff cannot protect himself from his wrongful act by showing that the judgment or execution were erroneous or irregular. (Bacon v. Cropsey, 7 N. Y., 195; Ginochio v. Orser, 1 Abb., 433.) The judgments and executions were not void, but voidable at the election of the assignee in bankruptcy upon cause shown. The execution was regular upon its face and a -protection to the defendant in making the levy and sale thereunder. He cannot be heard to say, by way of defense to his wrongful act, that there were reasons why plaintiff should not have had his judgments, or w^y such judgments should be set aside. Such defenses are available to the defendant in the judgment and execution only. It is not the law that an officer can neglect his legal duty and then defend himself by evidence of extrinsic facts having no relation to his conduct, duty or liability.

After the plaintiff had lost the security of the levy by the sheriff’s act it was entirely proper for him to prove his claim against the bankrupt’s estate and take his dividend. By the defendant’s act he had lost all his claim upon the debtor’s property except in that way. It was not an adoption of the sheriff’s act. It did not affect his right of action against the sheriff, nor was it a waiver of it. The referee has given the defendant the benefit of such dividend in reduction of the recovery. It is not necessary to say whether such allowance was proper or not since the plaintiff does not object to it.

The District Court judgment is not evidence in bar because the defendant is not a party to it, and because the judgment did not exist until long after the sheriff, defendant, had become liable for this debt of plaintiff’s by reason of his wrongful act and false return. Nor is such judgment evidence against the plaintiff and in favor of the defendant that the execution under which defendant made his levy was voidable, invalid or irregular. The sheriff could not have proved by parol, by way of defense to his return of the executions unsatisfied, that plaintiff had procured such judgments under such a state of facts as would constitute a fraudulent preference under the bankrupt act. If that could not be done by parol it ought not to be done by a judgment record to which the defendant was not a party, and which would not have been evidence against him if the judgment had been in plaintiff’s favor.

While some of the questions presented are not free from doubt I am of the opinion the judgment is right and should be affirmed, with costs.

Learned, P. J.:

I agree with the foregoing opinion of my Brother Boardman except in this respect. While I think that there was a cause of action against the sheriff, and that the measure of damages was prima facie the amount of the execution; yet, on the other hand, 1^ think that the sheriff could show the District Court judgment in connection with his own conduct, to reduce the damages.

Let us suppose that the sheriff had sold the goods • of the judgment debtor under the execution, and had paid to the plaintiff’s intestate the money collected. Then, if the assignee in bankruptcy had brought his action against the judgment creditor, and had (as he did) set aside the judgment as in fraud of the bankruptcy he would have recovered from that judgment creditor the money which the sheriff had paid him. So that the plaintiff’s .intestate would practically have had nothing, by virtue of his judgment and execution. Now I do not see why he should be any better off, merely because the sheriff has violated his strict duty; doubtless in obedience to what he supposed .to be a valid order of a competent court.

Again. If the sheriff had not thus surrendered the goods to the assignee in bankruptcy, but had continued to hold them, until the assignee commenced his suit against the plaintiff’s intestate; thert it is very evident that, in that suit, the District Court, having jurisdiction of this present plaintiff’s intestate, could have (as it did) set aside his judgment and could thus have annulled the lien which he had acquired by his execution. Or it could have adjudged that the judgment creditor should transfer that lien to the assignee in bankruptcy. In either case the present plaintiff’s intestate could have no claim against the sheriff for not proceeding with the execution. Why should his administrator have such claim now?

It must be remembered that the assignee in bankruptcy, on his appointment, became the owner of the property of this judgment debtor; subject to any valid liens thereon. If the judgment of the plaintiff’s intestate was valid, as against the assignee, then the assignee took the property subject thereto. If it was not valid, then the assignee took the property free therefrom. Now, it is true that the sheriff was not authorized to decide whether the judgment was, or was not, valid. And if he attempted to decide this question he acted at his peril. But a competent court has -now decided the question in a litigation between the assignee in bankruptcy and the plaintiff’s • intestate. And it is decided that the judgment was void as against -the assignee. Certainly the sheriff had no better claim than the judgment creditor had. If the judgment was void as against the assignee in bankruptcy, so was the lien of the execution. And the sheriff, in surrendering the property to the person, as against whom the lien was void, has done the plaintiff or his intestate no damage.

¥e must look, not at technical rights of action, but at the real merits. And this is not a case in which any rule should be rigidly enforced against the sheriff. He made a mistake in surrendering the property; but it was a mistake which he might easily make. Bankruptcy courts have perhaps too often assumed powers which did not belong to them. And it is not strange that the sheriff yielded to a power wrongfully assumed by that court. He should not be punished, unless the plaintiff’s intestate suffered actual damage, which he would not have suffered, had the sheriff retained the property. I do not see that the plaintiff’s intestate would have been benefited by the retention of the property by the sheriff. He would have had to surrender it to the assignee in bankruptcy. And •that is all that the sheriff did.

Therefore I think the judgment should be reversed and a new trial granted, costs to abide event.

Landon, J.:

I concur with the presiding justice. The judgment recovered by the assignee in bankruptcy against Downes, Sr., is a fact material to show the value of the plaintiff’s judgment, and to measure the exact loss which he sustained by the false return of the sheriff. That the sheriff was no party to. that action is immaterial. The fact exists that the plaintiff’s judgment was intrinsically ^valueless, and the supplemental answer allows proof of it to be given with the same effect as if the fact had been known and pleaded when the suit was commenced. The sheriff was only prima facie liable for the amount of the execution. (Ansonia Brass Co. v. Babbitt, 8 Hun, 157.) He can mitigate the damages. (Swezey v. Lott, 21 N. Y., 481-484.) Suppose the defendants in the execution had paid plaintiff the judgment since the commencement of this action, might not the sheriff prove it under a supplemental answer ? Why is the defendant in this case credited with the amount the assignee in bankruptcy paid the plaintiff after suit commenced? Plainly because it was a fact showing that his damages had been reduced, and the sense of justice is offended by allowing a party to recover more than will compensate him.

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


author: Landon, J.;

text:
    JANE CROSIER, as Administratrix, etc., of MARY PERRY, Deceased, Respondent, v. CORNELL STEAMBOAT COMPANY, Appellant.

      Application to a surrogate for letters of administration — verification of the petition — 1878, chap..298, sec. 2 — .when the legal appoinment of the officer administering the oath vñll he assumed — form of jurat.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of 'the justice before whom the action was tried, and also from an order denying a motion to strike out a sum included in the verdict for interest.
    The action was brought by the plaintiff to recover damages- for the negligent killing of her intestate by the defendant.
    The court at General Term said: “The presentation by the plaintiff of the letters of administration issued to her by the surrogate established prima facie their validity. (Belden v. Meeker, él N. Y., 307.)
    “ Only the jurisdiction of the surrogate to issue them could be attacked collaterally. (Code Civil Pro., § 2591.) It is objected that the surrogate acquired no jurisdiction, because it does not appear that the petition upon which the same were granted was verified before ‘ an officer duly authorized to administer oaths/ as is required by Laws 1878, chapter 298, section 2, where the surrogate himself does not personally examine, on oath, the applicant. In this case, the petition purports to be verified before c J. P. Cullen, Notary Public.’ It commences thus: ‘ Surrogate’s Court, Ulster county, ss. ’ Upon the evidence, it is not otherwise apparent that J. P. Cullen was a notary public for the county of Ulster. No evidence was given to show that he was not. The surrogate received this petition as a compliance with the statute.

      “JTon constat, that it was not made and verified in the Surrogate’s Court and under the observation of that officer. Every presumption is in favor of the surrogate having acted rightly.

      “ Besides, it is the practice of the courts to read affidavits purporting to have been taken before an officer authorized by the statutes to administer oaths, upon the jurat or certificate of the officer, if 'within the State, without further authentication.
    ■ “ The presumption is that the affidavit was taken within the .limits of his jurisdiction, and- the court will not, in case of a defacto officer, inquire into the validity of his appointment in a proceeding to which he is hot a party. (Parker v. Baker, 8 Paige, .428; Thurman v. Cameron, 24 Wend., 87.)

      “ The statute says the petition shall be £ verified.’ No separate affidavit of verification was appended, but a jurat, thus: ‘ Sworn before me, etc.’ The presumption is that the petitioner swore that the petition is true.” , '

      S. L. Stébbms, for the appellant.

      I). W. Sparling, for the respondent.
   Opinion by

Landon, J.;

Learned, P. J., and Boardman, J. concurred.

Judgment and order affirmed, with costs.


author: Learned, P. J., and Landon, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JERRY BUFFUM, Appellant, Impleaded with LEWIS BUFFUM.

      Excise lorn — selling liquor without a license— a servant is protected by his master’s license — a conviction cannot be had for the offense of selling liguor without a license, under an indictment so cha/rging, when the offense proved was of selling liquor to be drunk on the premises in violation of a storekeeper’s license.

    Appeal from a judgment of the Oouft of Sessions of Broome county, convicting the defendant of selling liquor without a license, and from an order denying a motion for a new trial, made upon a case and exceptions.

      . Lewis Buffum and Jerry Buffum were indicted. The indictment has several counts; of which the first is that the defendants sold spirituous liquors on the 15th of January, 1881, and at divers times between that date and the date of the indictment, in quantities less than five gallons, without having a license. On the trial it appeared that Lewis Buffum obtained a license about May, 1880, such as is called a storekeeper’s license, that is, a license to sell liquors in- quantities less than five gallons, but not to be drank on the premises. And Jerry Buffum was the agent or servant of Lewis Buffum. A new license ivas granted May or June, 1881, which was to Jerry Buffum. The alleged sales were between January 15, 1881, and the date of the new license. There was proof tending to show that after January 15, 1881, and in January or February, 1881, Jerry Buffum sold liquors to be drunk on the premises. The court' discharged Lewis Buffum and held that the indictment could not be sustained by proof of sales made after June 2,1881.
    The court charged that the license to James Buffum did not protect Jerry Buffum in selling outside the license; that if between January 15, 1881, and the dáte of the new license (May or June, 1881) Jerry Buffum sold liquors to be drunk on the premises, he was guilty of the offense charged in the first count. • The defendant excepted, and the jury found the defendant guilty under the first count. He was therefore convicted of selling liquors in quantities less than five gallons without having a license.
    The court at General Term said: “ This is contrary to Huffstater v. People (12 Sup. Ct. N. Y. [5 Hun], 23), where it was held that under an indictment like the present the accused could not be convicted by proof that' he had a storekeeper’s license but sold liquors to be drunk on the premises. He was indicted for one offense and convicted of another. This would be the law as to Lewis Buffum. It must be the law also as to his servant or agent. ' He was entitled to the benefit of his master’s house. The license which protected his master protected him, so that he was not guilty of selling without a license.
    “ It is true that the license did not protect either Lewis Buffum or Jerry Buffum in selling outside the license. But the difficulty is that the indictment charged the selling without any license at all; and it does not charge the selling liquor to be drunk on the premises. The premise disproves the offense charged and proves an offense not charged.”

      Alexander Gumming, for the appellant.

      D. II. Oarver, district-attorney, for the people.
   Opinions by

Learned, P. J., and Landon, J.

Present — Learned, P. J., Boardman and Landon, JJ.

Judgment and conviction reversed and new trial granted.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. RALPH WOLFORD, Commissioner, etc., Appellant, v. AMIDON M. STREVELL and Others, as Referees, etc., Respondents.

      Befusal of a commissioner to lay out a highway through inclosed land — when the owner consents, no certificate of a jury is necessary in order to amitlwrize an appeal to the county judge — 1 B. 8., 514, secs. 58, 60; 1877, chap. 465 — thereferees appointed by the county judge upon such an appeal may meet outside of the town limits.

    Certiorari to review the determination of - the defendants, as referees appointed by the county judge of Albany county, upon an appeal from an order of the relator, as commissioner of highways of the town of Knox, refusing to lay out a highway through the inclosed land of James Armstrong. Armstrong, the owner of the land, gave his consent, but no jury of freeholders certified that, the proposed road was necessary or proper. The commissioner •refused to lay out the road. The referees reversed the order of the commissioner.
    The court at General Term said : “ The relator objects that since no certificate of a jury was obtained, no appeal lies from the commissioner’s refusal to lay out the highway. He is mistaken. The Revised Statutes (1 R. S., 514, § 58) prohibit the laying out of a highway through inclosed, improved or cultivated land, without the consent of the owner or occupant, unless certified to be necessary by the oath of twelve reputable freeholders of the town. Section 60, as amended by chapter 465, Laws 1877, prescribes the method of obtaining the certificate ‘ in all cases, * * * except where the same is altered, opened or laid ont with the consent in writing of the owner.’ In this case the owner did give his consent in writing, and as the statute now is, no method of obtaining the certificate is given, except in case the consent of the owner is not given. *****
    “The referees, after their first meeting, had several hearings outside of the town of Knox, and the commissioner alleges that they thereby lost jurisdiction of the matter. The statute gives the referees power to adjourn from time to time. (1 R. S., 519, § 89.)
    “ The statute requires that the referees shall not be residents of the town in which the proposed highway is situate. While the referees held the matter under advisement, it was inevitable that each one should separately consider the matter outside of the town of Knox, and no reason is perceived why they might not collectively do so. No abuse is alleged ; jurisdiction was obtained pursuant to the statute, and every statutory requirement was observed.”

      U. Krum, for the relator.

      O. M. Hungerford, for the respondents.
   Opinion by

Landon, J.;

Learned, P. J., and Boardman, J., concurred.

Order of. referees affirmed, with fifty dollars costs, allowed by section 2143 of the Code of Civil Procedure, and disbursements.


author: Per Curiam.

text:
    ANNE MANNING, as Administratrix, etc., Respondent, v. THE PORT HENRY IRON COMPANY OF LAKE CHAMPLAIN, Appellant.

      Action /<??• damages — allowance of interest from, the time of the death, — 1870, chap. 78 —power of the court to examine the jury to see if they have included it.

    Appeal from an order made at Special Term, denying the defendant’s motion to set aside the verdict and vacate the judgment entered herein.
    The action was brought to recover damages against defendant for its having, by its alleged wrongful act and negligence, caused the death of Thomas Manning, plaintiff’s husband.

      The verdict, as appears by the minutes of trial kept by the clerk, and as recorded and entered in the judgment roll, is as follows: “ The jury came into court and rendered a verdict for the plaintiff in the sum of $3,000. The jury on being inquired of by the court whether they intended to include interest, by the. direction of the court retired to consider the matter, and again returned into court and said they included interest to date.”
    The last sentence was added by the clerk without the direction of the court and without the knowledge of the jury. It appeared that when the clerk made inquiry of the jury if they had agreed upon a verdict, the foreman replied, that they had agreed upon a verdict for the plaintiff in the sum of $3,000. The clerk then made an entry upon his minutes as follows: “ The jury then came into court and'rendered a verdict for the plaintiff in the sum of $3,000.” The clerk then addressed the usual question to the jury and they assented to the verdict as so rendered. The plaintiff’s attorney and counsel were then in court, and one of them made inquiry of the court as to whether interest was to be computed on the verdict, and suggested that the clerk be instructed to add interest.
    The court then said: “ I don’t know about that; I will see; perhaps the jury have included interest.” • The court then inquired of the jtiry whether they intended the verdict to include interest. Under the direction of the court the jury retired, • and having . returned into court, the foreman'said: “No interest.” "Whereupon the court said: “ Then you are entitled to interest.!’ Plaintiff’s attorney then remarked: “ The rate will be seven per cent, I suppose?” Upon which the foreman of the jury said: “"We intend to include interest to date.” The clerk then entered in his minutes what follows the $3,000, as above.
    On the 16th of August, 1881, judgment was entered in favor of plaintiff, as appears by the judgment roll “ in the sum of $3,000, and the further sum of $923.92, being the interest 'thereon from the 1st day of February, 1877, to the 24th day of June, 1881, and the further sum of $34.66, being the interest of the said sum awarded, computed by the clerk of the court, making in all $3,958.58.”
    The court at General Term said : “ There seems to - have been a misunderstanding .on the part both of the- counsel and of the court at the time of the trial in regard to the statute which gives interest on a verdict in these cases from the death of the deceased. (Laws 1870, chap. 78.) Evidently the statute was not before the court. Its provisions are quite peculiar, and it is not strange that both the court and the counsel might have thought that the allowance of interest depended on the question whether or not the jury had allowed interest. No objection was made to the consideration of this question by the jury; or rather to their ■ statement of the manner in which they had determined the damages. Their verdict was in substance a statement that they had found the damages at a sum which, with interest from the time of the injury, made at the date of the verdict $3,000.
    “We think that the decision in Warner v. New York Central and Hudson River Railroad Company (52 N. Y., 437) shows that the statement by the jury that they intended interest to. date was made while they were still a jury and before they were dismissed from the case, and therefore while the matter was in their power.
    “ It seems to us therefore that the plaintiff has already recovered (somewhat irregularly, it is true) interest on her damages from the death of the deceased to the date of the verdict, and that for this reason that interest, being $933.92, as stated in the judgment, should be stricken from the judgment, and that the order .appealed from should be reversed, and order granted to this effect, without any costs to either party.” •

      Waldo & Grover, for the appellant. .

      John N. Gcmnon and Richard I. Hand, for the respondent.
   Opinion

Per Curiam.

Present — Learned, P. J., and Boardman, J.; Landon, J., not acting

Order reversed and motion to strike out interest, of $933.92, granted, without costs.


text:
    HENRY G. CROUCH, Respondent, v. WILLIAM M. HAYES, as Treasurer of the County of Ulster, Appellant.

      Publishing a list of lands, the taxes on which are unpaid, in Ulster county — 1878, chap. 65, sea. 6; 1869, chap. 831 — fees for publishing such list.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    Section 6 of chapter 65, Laws of 1878, the provisions of which are applicable to the county of Ulster, required the defendant, as treasurer of the said county, “to cause to be published, at least •once in each week, for six weeks, in the two public newspapers designated by the board of supervisors of said counties for the publication of the session laws, a list or statement of the real estate ” liable to be sold for taxes in that county, and a notice of the time and place of the sale thereof, “ the publishing of the said notice not to exceed the sum of two dollars for each newspaper so publishing each of the several notices.”
    The plaintiff’s newspaper had been thus designated by the board •of supervisors. The defendant, as treasurer, in 1879, delivered to the plaintiff, for publication in his newspaper, the list and notice of ■sale. The plaintiff caused it to be published in his newspaper the number of times prescribed by the statute. The list separately ¡specified 699 parcels of land.
    The plaintiff claimed that the defendant, as treasurer, contracted with him for the publication thereof at the rate of two dollars for ■each parcel of land. Upon the trial he recovered judgment at that .rate, the court finding that the defendant agreed to pay that sum.
    The court at General Term, after holding that the evidence did not establish any contract with the defendant, said: “ The law, however, fixed the plaintiff’s fees, and the defendant, in the execution of his official duties, had no right to make any contract to increase them. Chapter 831, Laws of 1869, provides that the proprietor of any newspaper ‘ may charge and collect for publishing .any notice-. * * * or other advertisement, required by law to be published, not more than seventy-five cents per folio for the first-insertion, and fifty cents for each subsequent insertion.’

      “ The law required this advertisement to be published, and therefore the above fee bill applies. The provision of section 6 of the act first cited, that ‘the publishing of the said notice is not to exceed the sum of two dollars for each newspaper so publishing each of the several notices,’ is entirely consistent with the act of 1869, and, upon familiar principles, the two must be construed together. So construed, the plaintiff’s fees would be per folio, and not exceeding two dollars per lot, and' so measured would not •exceed $588.75.
    “ The twefth section of chapter 65, Laws 1878, enacts that, where no provision on the subject is made in this act, all the general laws in the State in relation to the assessment and collection of taxes, and the redemption of land sold for taxes shall be in force in the county of Ulster, with the modification that the duties of the comptroller with respect thereto are devolved upon the county treasurer.
    “ The act of 1878 does not specify how the printer shall get his pay for publishing the advertisement in question, but the general law provides that the expense thereof shall be audited by the comptroller and paid out of the treasury of the State, on receiving one copy of the newspaper containing the same, with an affidavit of such list or statement. (Chap. 427, Laws 1855, § 34; 1 E. S. [6th ed.J, 963, § 78.) '
    “ Substituting the county treasurer for comptroller, and the treasurer will audit the account when properly verified, and pay the same out of the county treasury. The affidavit becomes one of the muniments of title of the purchaser of the land.”

      William & Kenyon, Jr., for the appellant.

      Wm. Zounsbery, for the respondent.
   Opinion by

Landon, J.;

Learned, P. J. and Boardman, J., concurred.

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


author: Learned, P. J.;

text:
    Elias Applebaum, Appellant, v. Moses Shaumburgh, Respondent.
   Order reversed, and order for perpetual stay granted. No costs of motion or of appeal to either party. Opinion by

Learned, P. J.;

Landon, J., not acting.


text:
    William R. Breed and another, Executors, etc., Appellants, v. John Padgett and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Boardman, J., dissenting.


author: Boardman, J.

text:
    Alonzo Harrington, Administrator, etc., Respondent, v. John E. Miller and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railway Company to Acquire Real Estate of Robert T. Turner and others.
   Award set aside; new appraisal directed by other commissioners. Opinion by

Learned, P. J.;

Landon, J., dissenting.


author: Learned, P. J., and Landon, J.;

text:
    Orange Kathan and Monroe Kathan, as Executors, etc., Respondents, v. William Van Vranken and Benjamin Van Vranken, Appellants.
   Judgment reversed,, new trial granted and referee discharged, costs to abide event. Opinions by

Learned, P. J., and Landon, J.;

Boardman, J., dissenting.


text:
    Earl A. Pease and Elizabeth Woodworth, Respondents, v. John Creque and others, Appellants.
   Judgment reversed, referee discharged and new trial granted, costs to abide event. Opinion by

Landon, J.;

Boardman, J., not acting.


text:
    Bridget McGrath, Administratrix, etc., Appellant, v. The President, etc., of the DELAWARE and HUDSON CANAL COMPANY, Respondents.

   —Judgment affirmed, with costs. Opinion by Boardman, J.;

Learned, P..J-, not acting.


author: Learned,

text:
    Robert T. Wendell and others, Respondents, v. The New York Central and Hudson River Railroad Company, Appellants.
   and order with costs.

Learned,


author: Landon, J.

text:
    Burr B. Andrews, Appellant, v. The Ætna Life Insurance Company of Hartford, Respondent.
   Judgment affirmed, with costs.

Opinion by

Landon, J.


author: Learned, P. J.

text:
    Rufus Burnham, Appellant, v. Samuel W. Phelps and others, Respondents.
   Judgment reversed, new trial granted and costs to abide event. Opinion by

Learned, P. J.


text:
    Edwin Simpson, Respondent, v. New York, Lake Erie and Western Railroad Company, Appellant.

   —Judgment reversed, with costs. Opinion by

Learned, P. J.;

Landon, J., not acting.


text:
    Nicholas Shufelt, Respondent, v. Samuel Sweet and Samuel V. Sweet, Appellants.
   Judgment reversed, referee discharged and new trial granted, costs to abide event. Opinion by

Landon, J.


text:
    Charles L. MacArthur and Arthur MacArthur, Respondents, v. The City of Troy, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Vilas National Bank of Platsburgh, Respondent, v. Elric L. Moore and others, Appellants.
   Judgment reversed, with costs, and motion for judgment on frivolousness of answer denied, with ten dollars costs. Opinions by

Learned, P. J., and Landon, J.


text:
    The President, etc., of the Delaware and Hudson Canal Company, Appellant, v. Liflet Harris, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Landon, J.;

Learned, P. J., not acting.


author: Board-man, J.;

text:
    Elizabeth H. Putnam, Respondent v. Cornelia M. Stewart, Appellant.
   Judgment affirmed, with costs. Opinion by

Board-man, J.;

Landon, J., not acting.


text:
    Charles P. McVean, Appellant, v. William Ohley, Respondent.
   Nonsuit set aside, new trial granted, costs to abide event. Opinion by

Learned, P. J.


author: Board-man, J.

text:
    Mary A. Squire, Respondent, v. Laura Peck and Cornelia Peck, Appellants.
   Judgment affirmed, with costs. Opinion by

Board-man, J.


text:
    In the Matter of the Will of George W. Ewen, Deceased.
   Decree affirmed, with costs against appellants personally. Opinion by

Boardman, J.


text:
    Anne Manning, Administratrix, etc., Respondent, v. Port Henry Iron Ore Company of Lake Champlain, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Landon, J.


text:
    Rensselaer N. Patterson and others, Respondents, v. Silas J. Moore, and others, Appellants.
   First order reversed, with ten dollars costs of printing and disbursement, and motion denied, ■ with ten dollars costs; second order reversed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railway Company to acquire crossing over New York, Lake Erie and Western Bailway Company.
   Order of confirmance affirmed, with costs against appellants. Opinion by

Boardman, J.


text:
    John Condon, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellants.
   Judgment and order affirmed, with costs. Opinion by

Boardman, J.; Learned, P. J., taking no part.


text:
    James Carrigan, Appellant, v. Thomas H. O’Connor, as Executor, etc., and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Elisha Mack, Respondent, v. Thomas Phelan, as Administrator, etc., Appellant.
   Judgment affirmed, with costs Opinion by

Learned, P. J.


author: Boardman, J.;

text:
    Rensselaer N. Patterson and others, Respondents, v. Silas J. Moore and Silas B. Moore, Appellants.
   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Learned, P. J., dissenting.


text:
    George Whiting and others, Appellants, v. Joachim Lebenheim and Edmund Nollain, Respondents.
   Judgment affirmed, with costs. • Opinion by

Learned, P. J.;

Landon, J., not acting.


text:
    The People of the State of New York ex rel. Pauline Friedlander and others, v. Albert F. Mitchell and others, Trustees, etc.
   Assessment vacated, with fifty dollars costs and disbursements. Opinion by

Boardman, J.;

Landon, J., dissenting.


text:
    Sarah J. Uline, Respondent, v. The New York Central and Hudson River Railroad Company, Appellants.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Landon, J., and by Learned, P. J., dissenting.


text:
    Andrew Suffern and others, Respondents, v. Lewis M. Smith and John L. Bacon, Appellants.
   Judgment reversed, referee discharged, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    Isaac S. Newton, Respondent, v. Birdsell Yale, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Landon, J., dissenting. <


text:
    John Flood, Appellant, v. James Dooley, Jr., Respondent.
   Judgment affirmed, with costs. Opinion by

Boardman, J.; Landon, J., not acting.


text:
    Stephen C. Johnson, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
   Judgment and order reversed, new trial granted and costs to abide event. Opinion by

Learned, P. J.


text:
    Simon J. Keator, Respondent, v. Flavius Smith and William H. Smith, Appellants.
   Judgment modified by deducting $158.18, as of date of judgment, and as modified affirmed without costs in this court. Opinion by

Landon, J.


text:
    Alester Vadney, Respondent, v. Henry A. Person, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Patrick Murray, as Administrator, etc., Appellant, v. The Troy and West Troy Bridge Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Landon, J.;

Learned, P. J. dissenting..


text:
    In the Matter of Estate of Peter G. Fox, Deceased.
   Decree affirmed, without costs to either party. Opinion by

Learned, P. J.


text:
    Olney L. Carpenter, Respondent, v. The Boston and Albany Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.;

Learned, P. J., not acting.


text:
    Seth Pierce, Respondent, v. Oliver St. Marie, Appellant.
   Judgment affirmed, with costs.


text:
    Job T. Viall and others, Respondents, v. Elizabeth Dater, Appellant.
   Judgment reversed, new trial granted and referee discharged, costs to abide event. Opinion by

Boardman, J.


author: Bearded, P. J.

text:
    Elijah Morton, Respondent v. Stanley Johnson, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Bearded, P. J.


text:
    James B. Lewis, Respondent, v. James Cavanagh, Appellant.
   Judgment affirmed, with costs, with leave to defendant to answer within twenty days after notice of affirmance, on payment of costs of demurrer at Special Term and costs of appeal. Opinion by

Boardman, J.;

Landon, ¿L, taking no part.


author: Boardman, J., and Learned, P. J.

text:
    James Bolton, Respondent, v. Nathaniel B. Terpening, Appellant.
   Judgment affirmed, with costs. Opinions by

Boardman, J., and Learned, P. J.


text:
    Elisha S. Fowler and Amy B. Lyons, Appellants, v. Nicholas H. Haynes, as Constable, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Addie M. Smith v. Lewis H. Cramer, Receiver, etc.
   Motion for leave to go to the Court of Appeals denied.-


text:
    Temple Grove Seminary v. Louis H. Cramer, Receiver, etc.
   Motion for leave to go to Court of Appeals granted and cause certified.

Boches, J., not acting.


text:
    Isaac Hawley and Norris G. Woodward, as Overseers, etc., Respondents, v. Joseph Maplethorpe, Appellant. Same v. Abner Hobart, Appellant.
   Orders reversed, with ten dollars costs and printing disbursements to each case, and motion granted, with ten dollars costs in each case.


text:
    John H. Gee, Plaintiff, v. Frank Arnold, Defendant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Randall Perkins, Appellant, v. John Bixby and others, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements on opinion of county judge.


text:
    The People of the State of New York ex rel. Edward Hannon and Michael Cavanagh, as Taxpayers, etc., Respondents, v. John Magill, as Police Commissioner, etc.,. Appellant.
   Appeal dismissed, without costs to either party, on the ground that the question has become merely abstract.


text:
    Henry Wynkoop, Executor, etc., Plaintiff, v. The Niagara Insurance Company, Defendant.
   Motion for new trial denied and judgment for plaintiff on verdict, with costs.


text:
    Sarah L. Toles, Respondent, v. George Adee and James Adee, as Executors, etc., Appellants.
   Judgment and order affirmed, with costs. Mem. by

Learned, P. J.


text:
    The People of the State of New York ex rel. John H. Myers, Respondent, v. Frederick Storm, Appellant.
   Judgment affirmed, with costs.


text:
    Mary E. Mann, Administratrix, etc., Respondent, v. The Delaware and Hudson Canal Company, Appellants.
   Judgment and order affirmed, with costs.

Learned, P. J., not acting.


text:
    The Attorney-General of the State of New York v. The Continental Life Insurance Company.
   Oi’der refusing leave to revalue death claims affirmed, with .ten dollars costs and printing disbursements.


text:
    Frank J. Beger, Respondent, v. Thomas A. Pagett, Appellant.
   Order reversed, with ten dollars costs and printing disbursements. Mem. by

Learned, P. J.


text:
    Frank J. Enz and Thomas G. Miller, Respondents, v. William J. Smith, Appellant.
   Judgment affirmed, with costs.


text:
    Lyman S. Ellis, Respondent, v. Orson C. Brown and Daniel Lane, Appellants.
   Judgment affirmed, with costs.


text:
    Samuel B. Beers, Appellant, v. Fred. S. Cook, Respondent.
   Judgment of County Court reversed and that of justice affirmed, with costs. Mem. by

Learned, P. J.


author: Bookes, J.

text:
    Theodore F. H. Meyer, Appellant, v. Hiram Phillips and Arthur Finkle, Respondents.
   Judgment affirmed, with costs. Mem. by

Bookes, J.


text:
    Mary E Bundy, Appellant, v. George W. Parkins and John G. Parkins, Respondents.
   Judgment of County Court reversed and that of justices affirmed, with costs. Mem. by

Learned, P. J.


text:
    Daniel W. Whitaker, Appellant, v. William L. Ford and John B. Perry, Respondents.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Catharine Fagan, Respondent, v. Samuel H. Gurney, Appellant.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Ransom Stanley, Respondent, v. Merrick Ogden, Appellant.
   Judgment affirmed, with costs.


text:
    Celestina Meeker and Henry Meeker, Administrarix and Administrator, etc., Appellants, v. Cordelia Wright and Nelson Wright, Respondents.
   Judgment affirmed, with costs.


text:
    In the Matter of Proving the Will of Ambrose Higgins, Deceased.
   Decree affirmed, with costs against the appellants. Opinion by

Boardman, J.


text:
    First National Bank of Elmira and Elijah B. Smith, Respondents, v. John T. Rathbun and Newton P. Fassett, Executors, etc., Appellants, and John T. Rathbun.
   Order of General Term, as entered by defendant, set aside as not according to decision, and order entered by plaintiff directed to stand, with ten dollars costs to plaintiff.


text:
    Salisbury v. McClaskey.
   Motion to go to Court of Appeals denied.


author: Brady, B. J.:

text:
    JONATHAN WOODRUFF, Appellant, v. THE IMPERIAL FIRE INSURANCE COMPANY OF LONDON, ENGLAND, Defendant. BERNARD REILLY, late Sheriff, etc., Respondent.

      Sheriff — fees of, on settlement of an action in which an attachment has been issued— Code of Civil Procedure, sec. 3807, sub. 2.
    Under subdivision 2 of section 3307 of the Code of Civil Procedure the sheriff, upon the settlement of an action in which a levy has been made under an attachment issued therein, is entitled to poundage upon the value of the property attached not exceeding the sum at which the settlement is made, together with his fees for serving the attachment and making a levy and return.

      German American Bank v. The Morris Run Coal Company (68 N. Y., 585) distinguished.
    Appeal from an order fixing the compensation of the sheriff on an attachment.
    The sheriff’s charges were as follows:
    Compensation or poundage.......................... $123 13
    Levy and return fee................................ .2 69
    Serving six copies of attachment...................... 12 00
    Deputy’s compensation.............................. 25 00
    $162 82

      A. E. Wood/ruff, for the appellant.

      Vanderpoel, Green <& Oumvng, for the respondent.
   Brady, B. J.:

Section 3307 of the Code of Civil Procedure, subdivision 2, provides as follows:

“ If the action is settled either before or after judgment the sheriff is entitled to poundage upon the value of the property attached, not exceeding the sum at which the settlement is made.”

The sheriff attached a bond sufficient in amount to pay the sum agreed upon in settlement of the claim asserted in the action, which settlement took place, and upon the amount of which the sheriff is entitled to poundage in the sum of $123.13, estimating it as at two and one-half per cent on the first $250 and at one and one-quarter per cent on the sum of ninety-three dollars and fifty cents. He is also entitled to six dollars for the service of six copies of the attachment, and to a levy and return fee of one dollar and eighteen cents.

Section 213 of the former Code did not in express terms give to the sheriff, where a settlement took place, his poundage; and the Court of Appeals, in the ease of the German American Bank v. The Morris Run Coal Company (68 N. Y., 585), in construing that section held that it was not intended to give poundage in cases where a settlement took place before judgment, and where, consequently, there could be no sale of the property. Section 3307, as will be seen from the language which has been quoted, is broader than section 213, because it declares in express terms that-the sheriff, if a settlement takes place before judgment, and therefore before any sale of the property under an execution could be made, is entitled to his poundage. In the one case the right arose by implication which was discarded by the Court of Appeals, and in the other it is affirmatively given. The section, as it now exists, distinguishes this case from all others relied upon in behalf of the appellant on this subject. It is our judgment, therefore, that the appellant is entitled to the items which have been mentioned, namely, his poundage, his fees for serving the attachments and his levy and return fee. All the other items are rejected.

This disposition of the appeal renders it unnecessary to consider the question as to the right of any judge, other than the one who issued the attachment, to pass upon the compensation which is contemplated by section 3307 of the Code, independently of the poundage which is provided by law. The order appealed from should, therefore, be modified by reducing it to the sum .of $136.31.

The order as modified must be aifirmed, without costs to either party.

Daniels, J., concurred.

Present — Beady and Daniels, JJ.

Order modified as directed in opinion, and aifirmed as modified, without costs to either party.


author: Brady, P. J.:

text:
    CLIFTON W. CLIFTON, Respondent, v. EDWARD F. BROWN, as Executor, and OLIVIA H. LAWRENCE, as Executrix, etc., of WILLIAM E. LAWRENCE, Deceased, Appellants.

      Bight to serve an amended pleading — not waived by noticing the issue joined for trial.

    A plaintiff, by noticing for trial an issue of law raised by the service of a demurrer to the complaint, does iy&t waive his right to serve an amended complaint within the time allowed by law.

      Philips v. Buy dam (6 Abb. [N. S.], 289) overruled).
    Appeal from an order made at a Special Term, denying a motion to strike out an amended complaint.

      Joseph D. Fay, for the appellants.

      II. 8. Oullwer, for the respondent.
   Brady, P. J.:

It appears that on the 11th of January, 1882, a demurrer to the complaint was served upon the plaintiff’s attorney. On the following day he served a notice of trial of the issue of law for the first Monday in February. The defendant’s attorney served a similar notice. On the twenty-sixth of January the plaintiff’s 'attorney served an amended complaint, wbicb was returned on tbe next day, upon tbe ground that tbe right to serve tbe same bad been waived by tbe service of notice of trial. Tbe defendant thereupon moved to strike out tbe complaint. His motion was denied, and hence this appeal.

By section 542 of tbe Code of Civil Procedure it is provided that within twenty days after tbe pleading, or tbe answer or demurrer thereto is served, or at any time before tbe period for answering it expires, tbe pleading may be once amended by the party, of course, without costs, and without prejudice to tbe proceedings already bad. But if it be made to appear to tbe court that tbe pleading was amended for tbe purpose of delay, and that tbe adverse party will thereby lose tbe benefit of a term for wbicb tbe case is or may be noticed, tbe amended pleading may be strickeri out, or tbe pleading may be restored to its original form and such terms imposed' as tbe court deems just. This section is similar to section 172 of the former Code.

In the case of Philips v. Suydam (6 Abb. [N. S], 289) it was declared by a-divided court, that tbe act of a party in noticing a cause for trial is a waiver of bis right to amend his pleading without leave. It appeared in that case that both parties noticed'the cause for trial, and before tbe expiration of twenty days from the service of tbe original answer tbe defendant’s attorney served an amended answer alleging usury, ’’‘which tbe plaintiff’s attorney declined to receive, on tbe ground that tbe defendant by noticing bis cause for trial had waived tbe right to amend, and under such circumstances tbe plaintiff would not accept an unconscionable answer. Tbe defendant’s attorney subsequently moved for an order requiring tbe plaintiff to receive it. Mr. Justice Lstgeaham, in denying tbe motion, said that noticing tbe cause for trial prevented an amendment of the pleadings of tbe party giving tbe notice; that tbe answer showed no defense except that of usury, and that, under tbe circumstances of tbe case, tbe defendant should not be allowed to make that defense.

Judge Gaedozo, in deciding tbe appeal taken from tbe order of Judge INGeaham, amongst other things, said that where a party noticed a cause upon tbe pleadings as they stood, he thought be must be considered as waiving tbe right to amend bis pleading as of course, and must be regarded as having elected to stand by the issue as then framed. Justice Olebkb, dissenting, declared, however, that the defendants had a clear right under section 172 of the Code to serve an amended answer, unless the service of a notice of trial by them was a waiver of that right, and that service of such notice did not prejudice them in any way; that the right to serve the amended answer, unless the plaintiff was damnified by it, as, for instance, by throwing the case over the circuit, as contemplated by section 172 of the then existing Code, could not be interfered with; that nothing of that kind appeared in the case, and, therefore, the defendants had lost nothing by the fact of noticing the cause for trial.

In Washburn v. Herrick (4 How. Pr., 15), to which reference is made in the case of Cusson v. Whalon (5 How., 302), it is said if the plaintiff notices a cause for trial before the defendant’s time to amend expires, he does so at his peril; and, as said in the case of Cusson v. Whalon, Mr. Justice Gexdlev set aside the judgment where the defendant demurred to the complaint, noticed it for argument, and took judgment by default within twenty days after service of the demurrer, and before service of the amended complaint, which was allowed to be put in within that period, although he admitted that both sides had the right to notice the cause.

This case, although relied upon by the appellant herein, is substantially a recognition of the proposition that noticing the cause for argument, prior to the expiration of the time allowed to amend, is to be regarded as an act done at the peril of the party serving the notice.

In the case of Ostrander v. Conkey (20 Hun, 421), it was declared where, after issue had been joined in an action, and the same had been regularly noticed for trial at circuit by the defendant, the plaintiff, in good faith, and within the time allowed by law, served an amended complaint, that the issue theretofore joined and noticed for trial was destroyed ; but that where the amended pleading was served' in bad faith, the remedy of the party aggrieved was by motion to strike it out. And it must be noted that in this case there is no charge of bad faith, and no charge that the amended complaint was interposed for the purpose of delay. This case just cited was a Qeneral Term adjudication, and the doctrine laid down. in Washburn v. Herrick was recognized and approved, viz., that where the party notices his cause for trial within the time allowed to his adversary to amend he does so at his peril.

Section 542 of the Code of Civil Procedure, to which reference has been made, contemplates the rulings which have been made by these cases, viz., that the party may amend within the time allowed by law, and that his plea must stand unless it be made to appear that it was amended for the purpose of -delay, and that the adverse party would lose the benefit of a term for which the cause was or may be noticed. It must be said, therefore, that the case of Philips v. Suydam cannot be sustained as an authority; and it is to be presumed that the amendment made therein was not sustained for the reason that it presented what was regarded as an unconscionable defense.

It seems to be very clear that the right to amend existed under section 542 of the Code of Civil Procedure, and that the service of notice of argument was not a waiver of that right.

That section provides for a case in which notice of trial has been served, and the only penalty imposed is that the amended pleading shall be stricken out, if interposed for the purpose of delay.

For these reasons the order should be affirmed, with ten dollars costs and disbursements.

Present— Beady, P. J., Dakiels and Barker, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    JOSEPH WITTNER, Respondent, v. REINHOLD VON MINDEN, Appellant.

      Attachment — cannot issue in an action to recover damages for fraudulently obtaining goods— 0!ode of Civil Procedure, §§ 685, 636.
    Under the provisions of the Code of Civil Procedure, an attachment cannot he issued against the property of a defendant, in an action brought simply to recover damages for obtaining goods by false and fraudulent representations.
    Appeal from an order made at Special Term, denying a motion to vacate an attachment.

      Fer&mcmd Kwrsman. for tbe appellant.

      F. S. Hakn, for tbe respondent.
   Beady, J.:

Tbis is an action to recover a sum of money only, to wit, $377.55, as damages for obtaining goods by false and frandnlent representations, as appears from tbe attacbment. Tbe defendant moved to discharge tbe attacbment, upon tbe ground that there was no provision in tbe Code allowing tbe issuance of such a process upon such an allegation.

Section 635 of tbe Code of OivilProcedure' designates tbe actions in which a warrant of attacbment may be granted, and section 686 declares what must be shown in order to procure one ; and in neither of these sections is there any reference made to claims resting upon allegations of fraud in contracting tbe debt. It is not provided by either that an attacbment may issue in an action brought to-recover the price or value of goods which were obtained by false representations.

It may be that if the action were trover, under section 635 an attacbment might issue.

But that question is not involved upon this appeal, and it is not, therefore, necessary to consider it. It is sufficient to say that tbe sections to which reference has been made do not authorize, in an action like this, the granting of an attachment upon the charge on which it rests herein.

The views presented upon this appeal by the learned counsel for the appellant must therefore prevail, and the order appealed from be reversed, and the attachment discharged, with ten dollars costs and the disbursements of the appeal.

Daniels, J., concurred.

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

Order reversed, and attachment discharged, with ten dollars costs and disbursements.