text:
    GEORGE H. ADAMS, Plaintiff, v. WILLIAM CONOVER and JOHN CONOVER, Defendants.

      Covenant for quiet enjoyment — when a judgment recovered against the grantee is conclusive evidence of a breach, as against the grantor — measure of damages on partial eviction — when grantee may sue for a breach of covenant, after homing sold the land.

    This action was brought to recover damages for a breach, of a covenant for quiet enjoyment contained in a deed of certain land, upon which was a mill, given by the defendant and another, to the plaintifE and another. After the grantees had entered into possession of the premises, and while they were maintaining the dam at the same height at which it was, at the time of the conveyance to them, two actions were brought against them by the owner of adjoining lands, to recover damages for the overflow thereof, in which judgments were recovered against them, after the grantors liad been notified of the bringing of the actions.

      Held, that the said judgments established, as against the defendants, that they had no right, at the time of the said conveyance, to maintain the dam at its then height, and established also a breach of the covenan t for quiet enjoyment.
    That it was not necessary that the appurtenances of the land conveyed,' — i. e., the right to overflow adjoining land, — should be specifically described in the deed.
    That the plaintiff was entitled to recover such proportion of the amount which he would have been entitled to recover upon the failure of the title to, or eviction from the possession of the whole of the farm, as the value of that portion of the property, as to which the title had failed, boro to the value' of the whole of it.
    That the fact that the plaintiff had, after having paid his share of the judgments recovered against him, conveyed his interest in the premises, by a warranty deed, to his co-grantee, did not prevent'him from maintaining this action.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term, after a verdict rendered in favor of the plaintiff.
    The action was brought to recover damages for a breach of a covenant of quiet enjoyment contained in a deed of conveyance, which described by boundaries a piece of land, and purported to convey the same together with a right of way over adjoining land, “ with the appurtenances,” &c.

      John Gillette, for the plaintiff.

      W. H. Adams, for the defendants.
   Hardin, J.:

In March, 1867, the defendant Conover, and one Benjamin Conover by warranty deed, conveyed certain premises and privileges and appurtenances situated in the town of Victor, Ontario county, to the plaintiff and one John Conover in consideration of $8,000. There was a plaster mill in use on the premises. The deed contained the usual covenant for quiet enjoyment. The grantees entered into possession of the premises. Subsequently two actions were brought against -the grantees, and tried, in which were recoveries for overflowing the lands of Felt, who owned on the stream next above the granted premises. There was evidence given upon this trial, tending to show that the grantors had notice of these suits so brought against the grantees. And the verdict here establishes that such notices were given. And there was evidence given, tending to establish that the mill-dam was maintained by. the grantees at the same height it had been used before the grant was made.

The former judgments establish, therefore, that the right thus to maintain the dam did not exist in the grantors at the time of the conveyance.

They also establish a breach of the covenant for quiet enjoyment. (Rea v. Minkler, 5 Lans., 196; Shattuck v. Lamb, 65 N. Y., 499.) The judge in effect charged that the right to maintain the dam at its former height passed to the grantees, and that for the breach the plaintiff was entitled to recover his share of the damages sustained by reason of the breach of the covenant for quiet enjoyment. We think the former recoveries were binding upon the grantors. (Stowell v. Chamberlain, 60 N. Y., 272; Smith v. Smith, 10 Weekly Dig., 19.) We also think the record of the former recoveries was properly received in evidence to show what matters might have been litigated therein, and that parol evidence in respect to the trials in those actions was properly admitted, to show what in fact was litigated in those actions. (Smith v. Smith, supra; Kerr v. Hays, 35 N. Y., 331.)

We find nothing in the records of the former recoveries to establish that there was any qualified right to keep the dam at .its height when conveyed, at certain seasons of the year. 'They therefore establish that no such right existed in the grantors. The trial' judge was therefore correct in instructing the jury that they were to treat the right of the grantees, to have the dam kept at such height, as one of the appurtenances that they acquired, and that it passed to them as an appurtenant to their premises. (Green v. Collins, 10 Weekly Dig., 89.) It was not necessary the appurtenances should be specifically described in the deed. (Ib.; Voorhees v. Burchard, 55 N. Y., 98.) The former recoveries established a breach of the covenant for quiet enjoyment.

We do not think the exception to the charge taken by the defendants can avail them. In was in these words: “ Counsel for the defendants excepted to the charge that the slash boards were to be treated as a permanent part of the dam, and that the covenant carried the right to maintain the dam permanently at the height it was with the pld slash boards on.” If there was any qualified right to maintain the height of the dam, as it was when the grant was made, which passed, the attention of the judge should have been specifically called thereto. But, as we have said, we do not think the evidence justified any such finding by the jury, and,, therefore, the qualified right referred to in the case of Marcly v. Shults (29 N. Y., 346), was not presented by the evidence. It is not error to refuse *to charge abstract propositions or propositions having no support in the evidence offered. The difficulty with the defendants’ position arose from the findings in the former action, to the effect that there was no right to maintain the dam at the height it was at the time of the conveyance.

The offer made by the defendants to show that “the water in the stream which fed the pond had been gradually diminishing from year to year,” was substantially allowed. So far as the witness knew, he was permitted to state, by the ruling. Nor do we see any error in excluding evidence as to how the mill was operated with, or after steam was put in to run it.

When Felt recovered for flooding his lands by keeping up the dam as it was when the plaintiff took defendants’ conveyance, there was established an eviction. (Shattuck v. Lamb, 65 N. Y., 510.)

The plaintiff’s right to damages accrued, and the payment of his share of the recoveries had by Felt was abundantly established. Before this action was commenced, the plaintiff conveyed his interest in the lands to John Conover. It is now insisted that such conveyance carried the right to damages sustained by reason of the breach. The damages now sought had all accrued before the plaintiff made such conveyance..

As the exact terms of that conveyance are not before us, we assume from the oral evidence that it was an ordinary warranty deed. We do not think it passed the damages sustained by the plaintiff. (Richards v. Bent, 14 Am. R., 1; Beddoe v. Wadsworth, 21 Wend., 120; Hamilton v. Wilson, 4 Johns., 72; Sedgw. on Dam., 174.)

The defendant offered to prove that the custom of the mill diminished in value during the time the plaintiff occupied it; and also to show that for various causes the property was worth less at the time the plaintiff sold his interest to John Conover than when purchased of the defendant. The trial judge declined to go into that evidence, and ruled that the defendants might introduce evidence as to the value of the extra amount of use of the water of which the plaintiff is deprived.” The rule is settled in this State that the plaintiff is entitled to recover snch proportion of the whole amount which he would be entitled to recover upon the failure of the title or possession to the entire property, as the value of that portion of the title or possession which has failed, bears to the value of the whole. (Furniss v. Ferguson, 15 N. Y., 443; Sedgw. on Dam., 183.)

Thus the real injury sustained is arrived at. We do not see that the defendant can complain of the rule of damages which obtained at the Circuit. The verdict seems to be in accordance with-the justice of the case, and we must allow it to stand. The motion for a new trial is denied.

Motion for a new trial denied, and judgment ordered for plaintiff on the verdict.

Talcott, P. J., concurred; Smith, J., not sitting.

Ordered accordingly.


source: Caselaw Access Project

author: IIardin, J.:

license: Public Domain

text:
    MILLY L. COE, an infant, by WILLIAM C. COX, her special guardian, Appellant, v. JACOB C. DE WITT, Administrator, &c., of CHARLES PARDEE, Respondent.

      Will — construction of — when devisee takes a fee — 1 It. 8., 722, § 3.
    A testator, by his will, devised and bequeathed the one-third part of all the rest, residue and remainder of his estate to his nephew, “Edward B. Ooe, and the heirs of his body forever, and in case of his death without issue then living, ” he devised and bequeathed the said portion to other devisees therein named.

      Meld, that Edward B. Ooe tools: a fee in the testator’s real estate, which «passed to one purchasing at a sale had under the foreclosure of a mortgage given by him thereon.

      Barnes v. Hathaway, 66 Barb., 452, followed.
    Appeal by Milly L. Coe, from part of an order distributing certain moneys paid for tbe condemnation of certain lands, known as a portion of the Mansion House, in Buffalo, for rtilroad, purposes. The only question arising here is, as to the proper construction of the will of Bela D. Coe, deceased.

      James H. Oox, for Milly L. Coe, appellant.

      Spencer 0Union, for the respondent.
   IIardin, J.:

The fifth clause of the will of Bela D. Coe, upon which the question presented here arises, is as follows : Fifthly, I give, devise and bequeath the one-third part of all such residue, remainder, .and reversion of my said estate, to my nephew Edward B. Coe, and the hews of his body forever, cmd in case of his death without issue then living, 1 hereby devise and bequeath his said portion, to be divided in equal parts, to the trustees of the said Theological Seminary, and to the trustees of said Orphan Asylum, iu fee forever, for the like uses and purposes.”

Edward B. Coe executed a mortgage upon the premises which passed to him, which was foreclosed, and Charles Pardee became the purchaser. Milly L. Coe is a daughter and the only child of E. B. Coe. She was born in 1863, and claims all interest in the premises so taken, and that, should she survive her father, she would be entitled to the moneys in question.

The representatives of Charles Pardee claim the moneys upon the death of Edward B. Coe. The Revised Statutes provide, viz.: “ Section 3. All .estates tail are abolished, and every estate which would be adjudged a fee tail, according to the law of the State as it existed previous to the twelfth day of July, one thousand seven hundred and eighty-two, shall hereafter be adjudged a fee simple, and if no valid remainder be. limited thereon, shall be adjudged a fee simple absolute.” (1 R. S., 722.)

I think the opinion of Mullxn, P. J., in Barnes v. Hathaway (66 Barb., 452), commits this department to a construction of the statute adverse to the appellant. And the question as now presented is not open to discussion and re-examination in this court. (Seaman v. Harvey, 16 Hun, 74.)

We must therefore hold that Edward B. Coe took the fee, and that the same passed by his grant, and was therefore acquired by' Charles Pardee, and formed part of his estate at the time of his death. (Cases supra; Grout v. Townsend, 2 Hill, 555; Wilson v. Wilson, 32 Barb., 328; Sherman, v. Sherman, 3 Id., 385; Brown v. Lyon, 6 N. Y., 419.)

We must therefore affirm the order, with $10 costs and disbursements, payable out of the fund.

Talcott, P. J., and Smith, J., concurred.

Ordered accordingly.


author: ITardin, J.:

text:
    HANNAH E. ANDREWS, Respondent, v. MARY APPEL and JOSEPH APPEL, Appellants.

      Covenant against incumbrances — remote grantee man/ maintain action uyonrrmeasure of damages in an action for a breach of.

    On November 2, 1871, the defendants, by a deed, containing covenants against incumbrances, and of warranty and seizin, conveyed certain premises to one WiHiams, wlio conveyed them to one Redman, who conveyed them to the' plaintiff, by deeds all of which contained covenants against incumbrances. This action was brought by the plaintiff to recover the amount she had been compelled to pay to redeem the land from sales for taxes and assessments, which were liens upon it at the time of its conveyance by the defendants.

      Held, that the plaintiff was the real party in interest, and that to avoid circuity and multiplicity of actions, she was entitled to maintain the present one.
    For a breach of a covenant against incumbrances, only the amount actually paid to relieve the premises therefrom, can be recovered, and in no event can the recovery exceed the amount of the consideration for which the deed was given.
    Appeal by the defendants from a judgment of the Monroe ■County Coru’t, reversing a judgment of the Municipal Court of Rochester.
    On November 2, 1871, the defendant, Mary Appel, conveyed a house and lot owned by her to one Shaffer, by a deed containing covenants against incumbrances, and of warranty and seisin. Shaffer thereafter conveyed the premises to one Williams, Williams to Redman, and Redman to the plaintiff. All of the said deeds contained a covenant against incumbrances. The covenants in the deed from Mary Appel (in which Joseph Appel is not named as grantor), were in the following words : “ And the said Mary Appel and Joseph Appel do hereby covenant and agree to and with the said party of the second part .... heirs and assigns, that at time of ensealing and delivery of these presents .... the lawful owners, and she is well seized of the premises above conveyed, free and clear from all incumbrances, except as herein stated, and that the premises thus conveyed in the quiet and peaceable possession of the said party of the second part, she will forever warrant and defend against any person whomsoever, lawfully claiming the same or any part thereof.” This action was brought to recover the amount of two taxes paid by the plaintiff, and which it is claimed were liens upon the premises prior to the conveyance by Mary Appel to Shaffer in November, 1871; one was a general city tax of 1870, of $20.10, assessed to.Eliza A. Loder, a former owner, the other for a sewer tax, assessed in 1870 to William 11. Benjamin, also a former owner of said premises, for the sum of $26.30, to discharge which the plaintiff, in August, 1877, paid $91.12, and to recover which this action was brought.

      H. H. Woodward, for the appellants.
    It is well settled that the •covenants of seizin, that the grantor has a right to convey, and that the land is free and clear from incumbrances, are personal covenants, and do not run with the land or pass to the assignee. If not trae, there is a breach as soon as the deed is executed, and they become choses in action, which were not technically assignable. •{4 Kent Comm., 8 ed., 528, note a; Gerard’s Titles to Real Estate, 508; Limmoek v. Lockwood, 10 Wend., 142;-Rawle on •Covenants, 4 ed., 355, note 2; Lewis v. Lymcm, 6 Conn., 249; Tillotson v. Loyd, 4 Sandf., 516; Lewis v. Ridge, Cro. Eliz., 873 ; Grescot v. Green, 1 Salk, 199; Sugden on Vendors, American Notes by Perkins, 240, note g, citing cases in several of the States; Cla/rk v. Swift, 5 Mete., 390 ; Heath v. Wheden, 24 Me., 383; Ohaqymcm v. Holmes, 5 Halst., 20; Mitchell v. Wewner, 5 •Conn., 597; Lewis V. Lymem, 6 Id., 249; Oathcart v. Bowman, 5 Barr, 317; Shelton v. Pease, 10 Mo., 473; Angelí Water■courses, 6 ed., 263 ; Thevyer v. Olemens, 22 Pick., 494; Whitney v. Linsmore, 6 Cush., 128; Osborne v. Atkins, 6 Gray, 424; Rawle Cov., 3 ed., 343-352; 4 Kent Comm., 11 ed., 472; BTjydembtvrgh v. Cothal, 3 Duer, 197.)

      Lemiel Wood, for the respondents.
    The word “ assigns ” being used in all these covenants, indicates that there is also a privity of •estate and contract between these parties, from defendants down to plaintiff, and constitutes a continuous link or chain from defendants ■down to plaintiff; and she, being the last assignee, can maintain this ■action in her own name against defendants. (Thompson v. Rose, 8 Cow., 266; Oolby v. Osgood, 29 Barb., 339; Ernst v. Parsons, 54 How. Pr., 163 ; Roberts v. Levij, 3 Abb. Pr., N. S., 311.) A -covenant for further assurance runs with the land, and is transferred by a conveyance. It carries a covenant against incumbrances with it, and a right of action for a breach of the covenant against in•cumbrances passes in equity. (Oolby v. Osgood, 29 Barb., 339; Roberts v. Levy, 3 Abb. Pr., N. S., 311; Ernst v. Parsons, 54 How. Pr., 163.) A covenant to pay taxes and assessments ordinary and extraordinary is a covenant real, running with the land. (Mew-¿in v. O' Gormor, 43 Barb., 514; Whithy v. Mumford, 5 Cow., 137;
      Snyder v. Jones, 10 Wend., 180.) A lessee’s covenant to pay assessments runs with the land, and binds tbe assignee of the term. (Post v. Kecurney, 2 N. Y., 394, per Gardner, J.; Verjplcmk v. Wright, 23 Wend., 506.) A covenant ¡to repair in a lease runs with the laud, and binds the grantee of the covenantor. (Myers v. Burns, 33 Barb., 401; Normcm v. Wells, 17 Wend., 136; Allen v. Quiver, 3 Denio, 284.) In an action on the covenant against incumbrances in a deed, the plaintiff, if he has paid off the incumbrances, may recover the amount paid by him, &c. (Delmergne v. Norris, 7 Johns., 358; Hall v. Deem, 13 Id., 105; Dimmiok v. Lookwood, 10 Wend., 149; Barnes v. Mott, 64 N. Y., 402.) An assignee is liable on all covenants which run with the land, as covenants to repair, pay rent, &c., although not expressly named therein. .(Jaegues v. Short, 20 Barb., 269-274, per Strong, J.; Lcmeth v. Anderson, 6 Oow., 302; Willard v. Tillmam,, 2 Hill, 274; Kecurney v. Post, 1 Sandf., 105; S. O., affirmed in Court of Appeals, 2 N. Y., 394.) A covenant to pay rent runs with the land and passes to an assignee, who may sue in his own name. (.Demurest v. Willard, 8 Cow., 206; Willcurd v. Tillmcm, 2 Hill, 274; Ghilds v. Gla/rk, 3 Barb. Ch., 52-55 ; Astor v. Miller, 2 Paige, 68.) A covenant to pay taxes and assessments is broken when the lessee neglects to pay them. The covenant runs with the land and binds the assignee of the term, but not under-tenants, nor their assignees. (Trinity Ohureh v. Higgins, 48 N. Y., 532; Post v. Keamney, 2 Id., 394; Martm v. O’Oonnor, 43 Barb., 514; Astor v. Hoyt, 5 Wend., 603.)
   ITardin, J.:

It is settled by authority that the grantor who gives a covenant against incumbrances, is liable only to the extent of the consideration money received. (Dimmick v. Lockwood, 10 Wend., 151.) It is also settled that the recovery can be had,'only of the amount actually paid to relieve against the incumbrance, and not for an incumbrance outstanding and not paid off. (Delavergne v. Norris, 7 Johns., 358.) The plaintiff is the grantee and assignee of the covenants contained in the deed of the defendants, and after becoming such, paid off the taxes laid by assessment upon the lands, and thus redeemed the lands from the sale, made to enforce the taxes. The taxes were liens upon the lands when the covenant of defendants was made.

Under such circumstances, the plaintiff was the real party in interest, who sustained actual damages, having acquired the right to enforce the covenant, by an equitable and incidental assignment, against incumbrances given by the defendants. (2 Story Eq., § 1040; Roberts v. Levy, 3 Abb. Pr., N. S., 316; Ernst v. Parsons, 54 How. Pr., 164, note; Trustees of Columbia College v. Lynch, 70 N. Y., 440; Barnes v. Mott, 64 Id., 402; Prescott v. Trueman, 4 Mass., 627; Hall v. Dean, 13 Johns., 105; Colby v. Osgood, 29 Barb., 339; Richard v. Bent, 59 Ill., 38; S. C., 14 Am. R., 1, and cases there cited from five States.) Such a rule avoids a circuity and multiplicity of actions. The objection existing at common law, that a covenant or chose in action was not assignable, has been obviated by our modern legislation.

The actual damages accrued when the incumbrance was paid off to save the title from passing under the tax sale. If it was made in good faith, upon a valid and paramount claim, to avoid a loss of title, and an actual eviction, the right of redress was as perfect as though an actual eviction had taken place. (Sweetman v. Prince, 26 N. Y., 224; Burt v. Dewey, 40 Id., 283; Bordwell v. Collie, 45 Id., 497; Delavergne v. Morris, 7 Johns., 358.)

This covenant against incumbrances is coupled with one for quiet enjoyment of possession of the premises, and the two covenants, according to some authorities, may be construed together, ■and both be held to run with the land. (Budd v. Marshall, 22 Alb. L. J., 257; 42 L. T., N. S., 793; 2 Wait Actions and Defenses, 380.)

We think the plaintiff entitled, upon the facts established, to recover of the defendants, and the County Court, therefore, properly reversed the judgment of nonsuit; and we must, therefore, affirm the judgment of the County Court of Monroe county.

Judgment affirmed.

Taícott, P. J., and Smith, J., concurred.

Judgment of the county court affirmed.


author: Habdin, J.:

text:
    EDSON F. EMERY, Respondent, v. GEORGE BALTZ and SOLOMON SCHEU, Appellants.

      Sureties — when they are not discharged from liability by the release of the principal from arrest — when they cannot mail themsebes of counter-claims existing inf mor of their principal — Bond—how affected by promise of obligee.

    In an action upon a bond given by the defendants as sureties for one Hack, conditioned that the latter should faithfully perform his duties, as agent of a life insurance company, and pay all indebtednesses to the plaintiff, it appeared that in an action previously brought by the plaintiff against Hack, he had caused him to be arrested under an order granted therein, and had. subsequently released him from such arrest, upon his confessing a judgment, for the amount due to the plaintiffs.

      Held, that his so doing did not prevent his maintaining this action upon the bond.
    The defendants sought to set up as counter-claims, causes of action existing in favor of Hack against the plaintiff.

      Held, that as Hack was not a party to this action, the defendants could not avail themselves of them.
    Effect of a verbal promise by the obligee of a bond to the sureties thereon, that if the principal named in the bond did not pay over moneys collected, promptly he would stop his business and notify the sureties, considered.
    Appeal from a judgment in favor of tbe plaintiff, entered in Erie county upon tbe report of a referee.

      A. G. Rice for tbe appellants.
    The discharge of Hack from arrest was a surrender of a security which tbe plaintiff bad obtained for tbe collection of tbe money against the principal, and a surrender of such security discharged tbe sureties. (Hesbit v. Smith, 2 Bro. Cb. 0., 579; Hays v. Wood, 4 Johns. Ob., 130; 1 Story Eq. Juris., §§ 501, 639; Mayhew v. Crickett, 2 Swanst., 185 ; Capel v. Butler, 2 Sim. & S., 457.) Any act of tbe creditor which increasestbe risk of tbe surety, discharges the surety. (Brown v. Reggins, 3 Kelly, 405 ; Marshall v.' Ailten, 25 Yt., 328; Herrick v. Orange County Bank, 27 Id., 584; Curran v. Colbert, 3 Kelly, 239; Com. Bank of Lake Erie v. Western Reserve Bank, 11 Ohio, 444; Carpenter v. King, 9 Mete., 511; Bangs v. Strong, 10 Paige, 11,16; Hubbellv. Carpenter, 5 Barb., 520; Dixon v. Ewing, 3 Ohio, 280; La Forge v. Herter, 5 Seld., 241; Everly v. Rice, 20 Pa., 297;
      Reesr. Berrington, 2 Lead. Cases in Eq., pt. 2, 373; Jones y. Bub-lock, 3 Bibb, 467; Carpenter v. Devon, 6 Ala., 718 ; Gone v. Miller, 8 Serg. «fc R., 52; Talmage y. Burlingame, 9 Barr, 275.)
    /S'. N Rogers, for tbe respondent.
   Habdin, J.:

The plaintiff has recovered on a bond, given him by one Hack, and the defendants, as his sureties, conditioned for Hack’s faithful performance of his duties as general agent of The Life Association of America, and that said Hack “ shall at all times, when requested, make good all indebtedness to said Edson E. Emery . . . and shall also, on the first day of every month after this date, and at all other times when requested, render due and full account of, and deliver over unto said Edson E. Emery, all the money or other property belonging to him, which shall have been, or shall then be in the hands of said Michael Hack or subject to his control, so long as he shall continue in the employ of the said E. E. Emery, and so long as he shall continue to act for him, either with or without authority.”

Prior to the execution and delivery of the bond by Hack and the defendants as his sureties, the plaintiff and Hack had entered into an agreement for the employment of Hack as such agent, which' was to continue three years unless terminated by nrmtmaZ consent. The agreement was referred to in the bond and was therefore known to the defendants, when they became sureties for Hack. It is now insisted that some time after the bond was delivered there was a conversation between the plaintiff and one of the sureties, to the effect that the sureties intended to withdraw from the bond and not be bound for Hack for the future. That the plaintiff then agreed with defendants that he would require Hack to account monthly and see that he did not get behind, and in case he did not pay up promptly every month, he would stop his business and notify defendants of the fact, and of the amount he was in default, and that the defendants relied upon that promise, and did not take measures to terminate their liability upon the bond. The evidence to establish such position was objected to as immaterial, and excluded by the referee, and the defendants took an exception. There was no consideration for such an agreement named in the offer. The bond, when read in .connection with the agreement of appointment of Hack, showed an absolute undertaking for three years, unless terminated by mutual consent of Hack and Emery. It was not therefore in the sole power of Emery to terminate the agreement, and no reason appears why he should or could be made to surrender the bond taken for the faithful conduct of, and payment by Hack.

As the right to- terminate the bond is not shown we fail to see how the doctrine of estoppel can be applied to the case, so as to prevent the plaintiff from asserting the defendants’ liability, evidenced by the bond.

Nor was there such negligence shown or offered, as to discharge the obligation taken by the plaintiff for Hack’s conduct and payment of moneys received by him. (Trent Navigation Co. v. Harley, 10 East, 34; Nares v. Rowles, 14 Id., 514; London Assurance Co. v. Buckle, 4 Moore, 153; 2 Story Eq. Jur., § 325; Schroeppell v. Shaw, 3 N. Y., 446; Clark v. Sickler, 64 Id., 231.)

Before the commencement of this action the plaintiff brought a suit against Hack, and under a provisional remedy obtained an order for his arrest, and subsequently released him from arrest on the order, upon his confessing judgment for the amount due the plaintiff. We are not able to say that the plaintiff thus deprived himself of the right to issue a body execution against Hack upon the judgment recovered. (Meech v. Loomis, 28 How. Pr., 209.) If the defendants had paid up the plaintiff’s claim, and become subrogated to the right of the plaintiff, and then sought upon the judgment to arrest Hack, and failed to find him, or been prevented in any other way from asserting his liability to arrest, a different question would have been presented. It is not necessary to pass upon that question here.

There was an offer to prove the sixth answer, made and excluded. That answer set up several counter-claims, set up as such, which belonged to Hack, and upon which the defendants sought to recover “ as a counter-claim.” Hack was not a party to this action. He had the right to say whether such matters should be used in this action, or in an independent action brought by him therefor. They were therefore, according to the rule laid down in such cases, unavailing to the defendants. (Gillespie v. Torrance, 25 N. Y., 306; Lasher v. Williamson, 55 Id., 619.)

This was a legal action, and the referee had no right to turn it into, or treat it as an equitable action. (Webster v. Bond, 9 Hun, 437.) The exception taken upon the denial of the motion for a nonsuit was waived in the argument before us, and we therefore do not consider it. The question as to whether Hack owed the plaintiff anything at the time he confessed judgment, was excluded, as it called for a matter of law. Besides, the answer of the defendants did not deny that judgment.

The referee properly found that the Habberstro note was taken as a collateral and not as payment. (Noel v. Murray, 13 N. Y., 167; Gibson v. Tobey, 46 Id., 637.)

Judgment affirmed.

Talcott, P. J.,_and Smith, J., concurred.

•Ordered accordingly.


author: .Hardin, J.:

text:
    GEORGE CHAMBERLAIN, Appellant, v. WILLIAM SPARGUR and others, Impleaded, &c., Respondents.

      Right of a subsequent purchaser to attach a prior unacknowledged and unattested deed — l R. 8., 738, § 137. ’
    Under section 137 of IE. S., 738, a deed not acknowledged or attested by at least one witness, previous to its delivery, does not take effect, as against a subsequent purchaser or incumbrancer, until so acknowledged; and such a purchaser or incumbrancer may attack the deed, without showing that he purchased in good faith and without notice of it.
    Appeal from a judgment in favor of the defendants, establishing his title to certain real property, entered upon the trial of this action by the court without a. jury.
    Mary L. .Woodward, one of the defendants in the case, originally owned the lands and premises in question, which were situate in tlie town of Allegany, in the county of Cattaraugus, and which were placed by her husband in the charge .of one William Iiowe for sale. Howe, in conjunction with his partner, Hoxie, made an-arrangement with one John J. Moore, whereby Moore was to purchase and take a deed of the property at the price of $11,324, of which one-half was paid by the transfer of a patent right, and for the balance Moore gave his mortgage, covering the premises, and payable in ten years, with interest annually, to Howe alone, and Howe & Hoxie executed a deed of the premises to Moore, relying on their ability to procure a deed from Mrs. Woodward. This occurred, and the papers were dated on February 28, 1867. At or about the time of this transaction, Howe prepared a deed running' from Mrs. Woodward to Hoxie and himself, bearing that same date, and containing a covenant of warranty, which covered the premises in dispute, and which he took to her for execution on March 2, 1867. After some demur she signed it, and her husband then took it to a justice of the peace, who lived some "distance away, for the purpose of procuring him to take the acknowledgment. The justice filled out and officially signed the acknowledgment, but upon his presenting it and himself before Mrs. Woodward, she refused to acknowledge it, and he thereupon left it with her in that condition, an apparently executed and acknowledged instrument.
    Her husband subsequently, but on the same day, took it, and without her knowledge and against her wishes delivered it to Howe, who at once procured it to be recorded, of which fact Howe notified Woodward by letter; and the first knowledge Mrs. Woodward had of the delivery of the deed to Howe came from her perusal of that letter about two weeks afterward. Although she claimed to have greatly resented the act of her husband in passing the deed to Howe, she never took any steps to procure its revocation, never protested against it except to her husband, but on the other hand prosecuted to judgment on a complaint sworn to by herself, an action against Howe upon the note he gave for a part of the consideration of the deed, the residue of the consideration (the whole being $600) consisting of a check, the proceeds of which her husband received and appropriated.

      Thereafter various conveyances of the property and assignments ■of the said mortgage were made, by virtue of which Mrs. Woodward, claiming to have re-acquired the title to the property, conveyed a part of the same by quit-claim deeds to certain of the •defendants, and executed leases of the remainder to the others. The nature of these conveyances need not be considered, as the court held that Mrs. Woodward did not re-acquire the title 'by them. ’The plaintiff claimed under the first deed.

      Bolles <& Moulton, for the appellant.

      Jones de Sparger, for the respondents.
   .Hardin, J.:

The principal question in this case calls for a construction of ¡section 13Y of article 4 of title 2 of chapter 1 of part 2 of the Revised Statutes.

Mrs. Woodward signed her name to a deed, March, 186Y, but the same was not attested or acknowledged. It was taken into posses-sion by her husband, and delivered and put upon record. Subsequently she conveyed and leased to other parties. The statute referred to is, viz.: “ Every grant in fee of a freehold estate should be subscribed and sealed by the person from whom the estate or in"terest conveyed is intended to pass, or his lawful agent; if not duly acknowledged previous to its delivery, its execution and delivery ■shall be attested by at least one witness, or if not so attested, it shall not take effect as against a purchaser or incumbrancer until so •acknowledged.” (1 R. S., Y38, § 13Y.)

We think the weight of authority supports the construction .given to this statute by the Special Term.

“ Until so acknowledged,” the deed of Mrs. Woodward did “ not take effect as against a purchaser or incumbrancer.”

The language is absolute and comprehensive. And without discussing the reason for the rule or the argument to the effect that the statute refers to “ purchasers ” or incumbrancers, in good faith and without notice, and those only, we yield our assent to the authorities and approve of the construction given by the Special. Term. (Goodyear v. Vosburgh, 57 Barb., 246; S. C., 39 How. Pr., 377; Roggen v. Avery, 63 Barb., 65, which was affirmed by the Commission of Appeals in 65 N. Y., 592.)

Nor were the purchasers from Mrs. Woodward estopped from asserting the invalidity of her deed thus made. She could not herself dispense with the requirements of the statute, nor with the consequences which the statute declares shall attend an unattested and unacknowledged deed.

We think the conclusions, of fact reached by the trial court, were supported by the evidence.

The judgment should be affirmed, with costs.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed, with costs.


author: Hardin, J.:

text:
    SAME, Respondent, v. MARY L. WOODWARD, Appellant.

      Ratification — what is sufficient evidence of — Statute of limitations.

    This action was brought to establish the plaintiff’s title to certain premises, similarly situated to those involved in the last action. The judgment directed that the defendant render an account of the proceeds of the property received by her and that the plaintiff have judgment against her therefor, .subject, however, to the plaintiff’s-first paying the defendant the amount still unpaid to her of the purchase price of the property.
   Hardin, J.:

We think the evidence supports the conclusion of the trial court, that Mrs. Woodward, after her husband had delivered her deed to Howe & Hoxie, ratified the delivery. Her husband assumed to act as her agent, and she brought an action upon one of the notes, which he took towards payment 'of the consideration for the deed. She verified the complaint, and a judgment was entered upon the note, and as the finding is, we must assume she thus ratified the act of her husband. Subsequent ratification is equivalent to original authority. There was some evidence that he did not know - of the-origin of the note or the acts in respect thereto, until in 1876, but-we are satisfied' with the conclusion of the trial judge to the effect that she had earlier knowledge thereof. As we understand the ease Mrs. Woodward had been in possession of the land, and the purchase-money has been in part unpaid. We think the court was, therefore, correct in preserving her right to enforce and receive payment of the portion remaining unpaid.

Her demand was not barred. The case of Miner v. Beekman (42 How. Pr., 33, cited by counsel for appellant) was reversed in the Court of Appeals, as appears by the report thereof, in 50 N. Y., 337. (See also Hubbell v. Sibley, 50 N. Y., 468, and Trimm v. Marsh, 54 Id., 609.)

The judgment against Mary L. Woodward should also be affirmed, without costs.

Lalcott, P. J., and Smith, J., concurred.


text:
    ALFRED SPRING, Plaintiff, v. HENRY O. WAIT, Treasurer of Cattaraugus County, N. Y., Defendant.

      Board of Supervisors of Cattaraugus county — cannot alter the salary of the sunvgate of said county.

    Chapter 482 of 1875, passed in pursuance of section 23 of article 3 of the Constitution, authorizing the legislature to confer further powers of local legislation upon boards of supervisors, did not authorize the Board of Supervisors of Cattaraugus county to alter the salary of the surrogate of that county, as established by chapter 767 of 1872, as amended by chapter 401 of 1877.
    Controversy submitted upon an-agreed statement of facts pursuant to section 1273 of the Code of Civil Procedure.
    The plaintiff, at the general election in 1879, was duly elected surrogate of Cattaraugus county, and took office J anuary 1, 1880, and a quarter’s salary became due to him as such surrogate April 1, 1880. The question submitted was, whether he was entitled to receive one quarter of $1,500 or one quarter of $1,200. The plaintiff claimed the former, and the defendant claimed it should be the latter.

      G. W. Rider and Alfred Spring, for plaintiff.

      Allen da Thrasher, for defendant.
   Hardin, J.:

Section 15 of article 6 of the Constitution, adopted in 1867, rebating to the county judges and surrogates, and their salaries, contains the following provision as to such officers, viz.: “ His salary, and the salary of the surrogate, when elected as a separate officer, shall be established by law, payable out of the county treasury, and shall not be diminished during his term of office.” '

Prior to the adoption thereof, such salaries were fixed under the Constitution of 1846, by the board of supervisors. The section of the Constitution of 1867 was reported so as to provide that the salary should be fixed by the board of supervisors, but upon an amendment moved and advocated by Judge Comstock, the language was changed by the constitutional convention so as to confer the power upon the legislature.

The intent of the framers of the Constitution of 1867 to confer the power upon the legislature to establish such salary, is made thus very clear. Healey v. Dudley (5 Lans., 115), was decided by this court in 1871, and very clearly points out that the section quoted confers the power upon the legislature, and that case also holds that the language just quoted confines the power to the legislature. Since that decision was made, and in 1874, the Constitution has been amended, and the 23d section of article 3 been incorporated into the Constitution in the following language:

Section 23. “ The legislature shall, by general laws, confer upon the board of supervisors of the several counties of the State, such further powers of local legislation and administration as the legislature may from 'time to time deem expedient.”

When that section was incorporated into the Constitution there was existing an enactment of the legislature of 1872, in chapter 767, providing for the establishment of the salaries by law of such officers, pursuant to section 15 of the Constitution, quoted.

Section 1 of the act of 1872 established the salary of the surrogate of Cattaraugus county at $1,500 per year. Subsequent to the amendment of the Constitution in 1874, a general law was, in 1875, chapter 482 of laws of that year, passed by the legislature, which conferred “ on boards of supervisors further powers of local legislation and administration.” That act, in subdivision 2 of section 1 declares the board of supervisors shall have power, viz.:

“ To fix, subject to the limitations of section 15, article 6 of the Constitution, the salaries and per diem allowances of county officers, whose compensation may be a county charge.” If we turn to section 15 of the Constitution for the limitations named in the language of the act of 1875, just quoted, we find the words are those which declare the salary shall not be diminished during the term of office. The decision made by the court in Healey v. Dudley (supra), applied to this case, would require us to hold that-the act of 1875 did not confer power upon the board of supervisors to interfere with and change the salary of the surrogate, as the same had been «stablished by the legislature of 1872, and that no power to legislate by the board of supervisors was within the meaning of section 23 of article 3 of the Constitution.

But in addition to the views expressed in that case by Mullin, T. J., we think there is another complete answer to the position taken by the defendant here. Section 23 of article 3 in terms declares that the Legislature shall confer upon Boards of Supervisors such further powers of local legislation and administration as the legislature may from time to time deem expedient,” thus conferring a discretion upon the legislature as it shall deem expedient from time to time to exercise it.

We have already seen that the act of 1872, establishing the salary by law of the surrogate of Cattaraugus at $1,500, was in force when the act of 1875 was passed, we cannot say that the law of 1875 anntdled or altered the act of 1872. Beyond that, in 1877,. by chapter 401, the legislature amended the act of 1872 in some particulars, and in express terms declared the salary of the surrogate of Cattaraugus fixed at the sum of one thousand and five hundred dollars.” Thus evincing a clear and unmistakable intent to carry out the provision of section 15 of the Constitution, and a clear intent to exercise its discretion in regard to that subject, and as clearly evincing its intent to declare it inexpedient to allow the board of supervisors to exercise any power over the subject.

We conclude, therefore, that the resolution of the board of supervisors of Cattaraugus county, passed in 1878, was inoperative and void, so far as it undertook to provide that the salary of the surrogate should be $1,200 per year, instead of -$1,500, as establislied by a law, passed by the legislature, in chapter 401 of Laws-of 1877.

It follows, therefore, that the plaintiff or surrogate is entitled to receive his salary at the rate of $1,500 per year, and that the defendant, the county treasurer of Cattaraugus county, was wrong in withholding $75 thereof (besides the $300 paid) April 1, 1880.

¥e must, therefore, order judgment in favor of the plaintiff for $75, and interest from April 1, 1880, with costs. As-no question was raised as to the power of the treasurer to submit the controversy, we do not pass upon that question.

Judgment ordered for the plaintiff for $75, and interest from April 1, 1880, with costs.

Talcott, P. J., and Smith, J., concurred.

Ordered accordingly.


text:
    JENNIE W. HALL, Respondent, v. EATON J. RICHARDSON, Appellant.

      Executor — when personally liable upon an agreement made in regard to the estate — when his promise to panj is valid, though not in writing — action against him in his representative capacity, does not bar one against him individually— section 829 of the Code of Civil Procedure does not apply to an action against him individually.

    Upon the death of one Luther Hall, the plaintiff, who was in possession of a-farm and certain articles of personal property, claimed to be entitled thereto by virtue of an agreement made with the deceased. Thereupon the plaintiff, her husband, and the defendant, who was the executor of Luther Hall, entered into an agreement, in the presence and with the consent of Hall’s widow, who was beneficially interested in the property, by which the plaintiff released and surrendered her interest in the property to the defendant, upon the defendant’s personally agreeing to make certain payments to her.
    In an action brought by her to enforce the agreement, Held, that the, agreement was founded upon a sufficient consideration, and that, being an original one, it was valid, though not in writing.

      That the fact that the widow was present at the time it was made did not render her liable thereon, or require her to be made a party to the action.
    That the fact that a former action had been brought against the defendant as executor, upon the same agreement, in which a judgment had been entered in his favor on the ground that he was not liable thereon in his capacity as ■ executor, did not prevent the maintenance of this action.
    That as this action was not brought against the defendant in his representative capacity, the testimony of the plaintiff and her husband as to the interest accruing to her in the property by virtue of her agreement with the deceased, was not rendered inadmissible by section 829 of the Code of Civil Procedure.
    That the defendant could not defeat the action by showing that the plaintiff took the title to the property to prevent her husband’s creditors from seizing it.
    Appear by tbe defendant from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    Tbe defendant was appointed and qualified as sole executor of Lutber Hall, deceased, wbo died August 17, 1871, leaving a farm and certain personal property in "Wbitestown. Tbe plaintiff claimed to be a tenant in possession of tbe farm, and to bave certain personal property on it. There was a controversy between tbe plaintiff, ber.husband and others interested in tbe estate, and an adjustment was made thereof, by which she surrendered her interest in tbe property to tbe defendant, on bis agreement to pay to her certain amounts. Subsequently tbe plaintiff brought an action against tbe defendant Rieha/rdson, as executor, claiming a recovery upon tbe agreement made in tbe adjustment.
    In that action, a judgment was rendered for tbe plaintiff, from which the defendant appealed to tbe General Term, which reversed the judgment, bolding in effect that tbe defendant, as executor, was not liable; but that tbe arrangement made and entered into by him with tbe plaintiff, was binding upon tbe defendant personally. No appeal was taken from that decision, and a new trial was bad in that action, and a judgment rendered in favor of tbe defendant as executor, as appeared by tbe judgment record brought up on tbe .argument of this appeal.

      George IF". Adams, for tbe appellant.

      W. de J. D. Kernan, for tbe respondent.
   Hardin, J.:

'We think the former action was not a bar to this action. (Porter v. Kingsbury, 77 N. Y., 164.)

In the former action, the defendant here was sued in his representative capacity, here he is made a defendant in his individual capacity. Under such circumstances, the pending of the former action was not a defense to this action. There was not “ another action pending between the same parties for the same cause.” (Code Civ. Pro., §§ 488, 498; Kelsey v. Ward, 16 Abb. Pr., 98; affirmed, 38 N. Y., 80; Auburn City Bank v. Leonard, 20 How. Pr., 196.) We do not think that Patience S. Hall was a necessary party. The title of the personal propierty, upon the death of the-testator, passed directly to the executor. (Sherman v. Page, 21 Hun, 59; and cases there cited in the opinion of Hardin, J.)

To relieve it of the equities and interests therein claimed by the plaintiff to exist at the time of the adjustment, the defendant personally made an agreement, and upon that agreement so made by him, the recovery proceeds. It is no answer to his personal liability, to say that the adjustment was made with the knowledge of Patience S. Hall, the widow, who also had a beneficial interest in the property. The averment is, that the defendant personally (and alone) made a promise to pay the plaintiff certain sums, if he would surrender to him the property, and all his interest in .the same. Such is the finding of the referee, upon the evidence tending to support, the averment. That Mrs. Hall was present at the settlement, and. acquiesced in it, may be conceded; but that did not render it necessary or proper that she should be a party, to enable the court to determine what agreement the defendant, and what liability he, personally incurred, to enable him to obtain immediate and full possession of the property.

We do not think the referee would have been justified in treating the counter-claim or recoupment set up in the fourth answer as true, and admitted by the pleadings. The plaintiff has made a reply in form thereto, and upon that reply as part of the proceedings, the parties went down to trial. If it was inartistically drawn, or was irregular in form, the defendant should have moved • the court to strike it from the record. As long as it stood in the record, it was 'the duty of the referee to treat it as a denial of the matters stated in tbe fourth defense. Nor do we think the fourth answer sets up a counter-claim in favor of the defendant personally. The agreement found by the referee to have been made by the defendant was an original one, and was valid, though not in writing. It was not void by the statute of frauds because not in writing. (Prime v. Koehler, 77 N. Y., 91.)

At the time the agreement npon which the recovery has been had was made, the plaintiff claimed some interest in the property as owner, as tenant, &c., and the defendant formed a sufficient consideration for his promise to pay her the sums stated by the referee. It is no defense to such an agreement that doubtful motives led to the acquisition of that property, or an interest in it, or the lease of the land. Even though it be conceded that she took the title in the property and a lease of the farm from the intestate in her name, to hold the same secure against any attacks or claims thereto by the creditors of her husband, the defendant, upon receiving her surrender of the lease, her transfer of the interest she had actually acquired in the personal property, ought to keep his promise, and it does not lie in his mouth, after receiving the consideration he stipulated for, to tarn around and say she acquired the rights and property surrendered because she knew if her husband took them, by purchase or otherwise, they would be liable to be seized and taken by his creditors. The consideration for the defendant’s promise to pay was good and sufficient. (Seaman v. Seaman, 12 Wend., 381; Farmers’ Bank v. Blair, 44 Barb., 641.)

It is strenuously insisted by the learned counsel for the defendant that the evidence of the plaintiff, and that of her husband, was not admissible to establish the extent of her interest in the property surrendered to the defendant, and especially that part which relates to renting the lands of Luther Hall, deceased, and the transactions and negotiations had with him by the plaintiff in respect to the personal property. But section 829.of the Code of Civil Procedure does not apply, as this action is against the defendant in his personal character, not as executor, assignee, or any other of the representative characters named in the section.

The case of Whitehead v. Smith (10 Weekly Dig., 198), opinion by Rapallo, J., does not lay down a different rule. In that ease the action was brought by an executor, and the court held that a husband could not, while section 829 of the Code of Civil Procedure was in force, be a witness against the executor. The principle of that case would have excluded Joseph L. Hall from being a witness to personal transactions with his deceased father, if this action had been against his executor, as such. (S. C., 7 Weekly Dig., 133.)

■ There was no error committed in receiving evidence of the assignments of the Calalenda Vandenburg mortgage. It tended to establish an interest in tbe plaintiff in the property which was made the subject of the adjustment and agreement between her and the defendant.

After the proof was given that the assignment was delivered to Luther Hall, the deceased, the presumption was, that the defendant, his executor had them, and if he could not find them or would not, and maintained they were lost, then it was' proper to give parol evidence of their contents. No objection was properly taken, that the subscribing witness was not called to give evidence of the ■execution of the instrument subscribed by him. The objection is unavailing here. The appellant urges correctly that we may examine the evidence, and reach a different conclusion from the referee, in respect to whether the agreement found was in fact, made. (Macy v. Wheeler, 18 Abb. Pr., 73; S. C., 30 N. Y., 231.) However, a careful consideration of the evidence, as presented in the case before us, reveals a conflict upon the vital question as to whether the defendant promised as the referee has found. The referee had better opportunities than we can have, to consider what weight should be given to all the circumstances and evidence, and we cannot say that he has found against the fair weight and strength ■of the evidence.

The defendant had been named as an executor, and he found a controversy in respect to the assets, before he had qualified as exectitor. It was a controversy which might have led to long and angry litigation, and he, as a careful, prudent, businessman, fond of peace and harmony in respect to estates, may have deemed it prudent and advisible to bargain for a solution of the difficulties, and, therefore, advisable to make just such an adjustment as the referee finds ■was made. "We do .not feel at liberty to disturb the finding of the referee upon the conflict of evidence which was before him. If the finding was without evidence, we, of course, should interfere and set it aside. (Lansing v. Stone, 37 Barb., 15; Townsend Mfg. Co. v. Foster, 51 Barb., 346, affirmed in 41 N. Y., 620.)

The referee having found the agreement was made personally hy the defendant, and not as executor, we think the conclusion of law to the effect that the defendant was personally bound, was ■correct, and in accordance with well settled authorities. (Ferrin v. Myrick, 41 N. Y., 315; Austin v. Munro, 47 Id., 360; Levin v. Russell, 42 N. Y., 251; Camp v. Barney, 6 N. Y. Sup’m. Ct., 624.)

In Chouteau v. Suydam (21 N. Y., 179), there was a written contract, and upon a full consideration thereof, it was held not to be a ^personal contract. That case does not aid the defendant here, where the finding is to the effect that the agreement was made with intent to bind the defendant personally, and not in his representative character as executor.

The referee’s findings as to the amount of the difference between the value of the crop of 1869 and the value of the crop of 1871, was based upon a conflict ■ in the evidence, and we cannot say that his conclusions are against the weight of the evidence.

Our conclusion is that the report and judgment should stand.

Talcott, P. T, and Smith, J., concurred.

Judgment affirmed.


author: Smith, J.;

text:
    LENA A. STORY and others, by their Guardian, WILLIAM E. STORY, Appellants, v. ORANGE W. DAYTON, surviving Administrator, &c., of SAMUEL STORY, deceased, Respondent.

      Surrogate — power of, to open a decree made by Mm — should be cautiously exercised,, and not simply for the purpose of reviewing his decision — Ms discretion in-respect thereto is reviewdble on appeal— Guardian ad litem in swrogate's court. —qualifications of — laches in moving to open decree because an improper person, was appointed.

    Appeal from' a decree or order of the surrogate of Allegany county, denying a motion to open a decree made by him on the settlement of the accounts of the administrator of the estate of Samuel Story, Jr., deceased.
    The court, at General Term, said: “ The power of a surrogate to open his decree, on the ground of clear mistake, accident or fraud, is undoubted. But the power should he cautiously exercised, and it should never be used for the mere purpose of enabling the surrogate to review his own decision. The only appropriate method of review is by appeal.
    “ The appellants and moving parties in this case are the next of kin of the intestate. They are minors, and one of the grounds on which the surrogate was asked to open his decree was that the guardian ad Utem, who appeared for them on the settlement, was. a nephew of the attorney for the administrator, and a clerk in his law office, and was appointed on his nomination. The statute does not prescribe the qualifications of a guardian ad litem, in the surrogate’s court, but it is good practice to require the same qualificar tions as are required of a guardian ad litem for an infant defendant in this court. No person ought to be selected unless he be the general guardian of the infant, or an attorney of the courts of record, fully competent to understand and protect the rights of the infant, and who lias no interest adverse to his, and is not connected in business with the attorney or counsel of the adverse party. And he should also be of sufficient ability to answer to the infant for any damage which may be sustained by his negligence or misconduct. (52 Rule of this court.) But it does not follow that an irregular appointment of a special guardian is per se ground for setting aside the decree on motion, after the time to appeal has expired. An application of that nature is addressed to the discretion of the surrogate. Doubtless his decision thereon may be reviewed, and may be reversed for a clear abuse of discretion. But in this case there are some considerations connected with the delay and change of circumstances that have taken place, which weigh strongly against opening the settlement at large. The accounting was had in May,-1876. In the fall of that year a general guardian was appointed for the infants, and although, as the respondent states in his affidavit, a copy of the accounting was then shown to and examined by him or his agent, and was for a long time in his possession, the motion to open the decree was not made until after the lapse of nearly two years, and no excuse is shown for the delay. Since the accounting, the administratrix, who was the mother of the infants, has died; the surviving administrator, who is the maternal grandfather of the infants, intimated in his affidavit that he is growing old and enfeebled in health and memory; and he alleges that some of the books and memoranda necessary for an accounting have been lost or destroyed. The intestate was a retail merchant, and his personal estate, which was inventoried at upwards of $16,000, consisted largely of a stock of goods, and book accounts and notes for small or moderate amounts. The petition presented to the surrogate, on the motion to open the accounting, contains general charges of negligence and improvidence in disposing of the goods and'collecting the debts due to the estate, but nothing specific is stated in that respect. The fact appears that the goods were sold for more than they were inventoried at. In view of all the circumstances, we are not prepared to say that the denial of the motion to set aside the entire accounting and to throw open the whole matter, was such an abuse of discretion as that, upon that ground alone, the decree should be set aside.”

      Wilkes Angelí, for the appellant; A. G. JRiee, of counsel.

      Loveridge cfo Swift, for the respondents.
   Opinion by

Smith, J.;

Talcott, P. J., and Hardin, J., concurred except that in their opinion the respondent should be charged with costs in either event.

Order of surrogate reversed, and prayer of petitioner granted, with costs of this appeal to be paid by the respondent personally, unless the respondent will stipulate that the decree or final settlement may be amended in the particulars specified in the opinion herein, in which case the order appealed from is affirmed, with costs of this appeal to be paid by the respondent personally, and not out of the estate.


author: Hardin, J.;

text:
    JOSEPH A. CRANE and JOHN W. DAVIS, as Executors, &c., of BENJAMIN DECKER, Appellants and Respondents, v. B. FRANK DECKER and others, Appellants and Respondents.

      Will — when it may authorize a majority of the trustees to act.

    Appeals from a judgment entered on the report of a referee.
    The action was brought to obtain a construction of the will and. codicils of Benjamin Decker, deceased. The plaintiffs are two of three executors named in the will and codicils, and the defendant Clark Bell is the other executor.
    The court at General Term said: “ The will named three' executors, and it conferred upon them duties as trustees. It also contained a provision as follows: (7.) The act of any two of my said executors in respect to anything which by my will they are empowered to do shall be binding, as also shall the acts of the sole survivor of them.’ They all qualified, and they are all living. The general rule requires all trustees to act, when trusts are created like those confided by the will and codicils in this case to the executors and trustees, in conveying real estate. (Tiffany & Bullard on Trusts, 536, &c.)
    “But when the founder of the trust expressly authorizes a majority to act and to execute their acts, their executions of the duties of the trust in good faith, are valid and effectual. (Bullard & Tiffany, 541; Clarice v. JPozrlcer, 19 Yes., 1Y.)
    “ The execution of the trust in this case, according to the determination of two of the executors and trustees, is valid, because such determination and action are expressly provided for by the creator of the trust. . Such being the intention of the founder of the trust, it must, like all other intentions not contrary to law or public policy, prevail.' We therefore hold that the ‘act of any two,’ in respect to the trust, is valid and obligatory.”

      Rvzmsey de Miller, for the plaintiffs, appellants and respondents.

      Claris Bell, defendant and appellant, in person.

      George B. Bradley, for the defendant Drew, executor, &c.
   Opinion by

Hardin, J.;

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new trial ordered before another referee, costs to abide event.


text:
    HENRY M. STEELE, Plaintiff, v. WILLIAM P. TAFT and THEODORE PERKINS, Defendants.

      Sale of goods — what is sufficient to constitute a valid one — when the memorandum of it need not be signed by both parties.

    Motion by the plaintiff for a new trial on exceptions taken at the Ontario Oircuit, and ordered to be heard at the General Term in the first instance.
    The action was brought to recover damages for the conversion of certain articles of personal property which the plaintiff claimed under a chattel mortgage, executed to him by Lewis G. Steele on January 25, 1877. The defendants claimed to have purchased the property of Steele prior to the execution of the mortgage. The jury found for the defendants.
    The evidence of the defendants’ title was a writing, termed a bill of sale, signed by Steele, stating that the defendants had bought of him certain articles, therein separately specified with their prices, being the property in suit, and that he had received payment “ by indorsement on bill of stock.” It was proved that on June 20, 1876, the defendants, being engaged at East Bloomfield in the manufacture of grain drills and other articles, sold their stock to the said Lewis G. Steele for the sum of $823.81, and executed and delivered to him a bill of sale thereof. At the time of the defendants’ purchase in January, 1877, the amount of the purchase, being the sum of $627, was indorsed on said bill of sale of ■June, 1876. Steele produced the bill of sale at the time of the indorsement, and after the indorsement was made, it was delivered by the defendants to Steele and he retained it and executed to the defendants the bill of sale of the property in suit. There was evidence tending to show that the property sold to the defendants was pointed out and accepted by them at the time, and that it was left at Steele’s place of business, for the purpose of having it finished, as he undertook to do, upon the employment of the defendants.
    The court, at General Term, said: “ Here, then, was a concurrence of all the elements necessary to constitute a valid contract at common law, according to Comyn’s analysis. (Oomyn on Conti'., 2; Justice v. Lcmg, 42 N. Y., 493, 497, per Lott, J.) There was also enough to take the agreement out of the statute of frands, to wit: a memorandum of the agreement, in writing, subscribed by the party to be charged therewith. (Dmis v. Shields, 26 "Wend., 341.) It was not necessary that the memorandum should be signed by the purchasers as well as the seller. Both parties having assented to the agreement evidenced by the memorandum, it is obligatory upon the party by whom it was subscribed. {Da/ois v. Shields, suprai) The memorandum imports an executed sale for an executed consideration. The consideration was the discharge of a pre-existing indebtedness, and the discharge was consummated at the time, by*crediting the amount of the sale upon the “bill for stock” held by Steele. Tlie title to the property passed at the time of the execution of the bill of sale, there being evidence in the case tending to show that the property was then present, and pointed out, and accepted by the purchaser.”

      Metcalf c& Field, for the plaintiff.

      Fdwm Hides, for the defendants.
   Opinion by

Smith, J.;

Talcott, P. J., and Hardin, J., concurred.

New trial denied, and judgment ordered for the defendants on the verdict.


text:
    JOSEPH F. HILL, Executor, Respondent, v. JOHN HEERMANS, Appellant.

      Code of Civil Procedure, § what not a personal transaction or communication within — Inferences to he drawn from ambiguous facts should ha left to the jury.

    Appeal by the defendant from a judgment entered upon a verdict at the Steuben Circuit Court, 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 action was brought to recover the possession of two town bonds, alleged to belong to the original plaintiff, the present plaintiff’s testator. The defendant claimed to own them as the assignee of one Joseph Fellows. The plaintiff claimed that he had acquired title to the bonds from one Rodburn, and deposited them for safe keeping with Fellows, who had thereafter inserted his name in a blank left for that purpose, and that they had thereafter come into the defendant’s possession. The case has been before the General Term, on an appeal from a former trial, and is reported in 17 Hun, 470, to which reference is made for a full statement of the facts.
    The court, at General Term, said: “ The court below submitted to the jury two leading questions, viz.: First. Did Hill purchase the two bonds for himself, or for Fellows'? Second. If he purchased them for himself, did he ever transfer them to Fellows, or consent to such transfer? We think the court committed no error in ref using to jpass upon these two questions, and in holding that upon the whole evidence they belonged to the province of the jury. When the defendant found the bonds, the blank which had existed for the name of the owner had been filled in by an insertion, in the handwriting of Fellows, of the words ‘Joseph Fellows,’ thus giving-rise to the reasonable inference that they were the property of the defendant as assignee of Fellows.
    “ To overcome that presumption, the antecedent ownership of the bonds byBodburn, his negotiation and arrangement with ITill, his delivery of them to Hill, the placing the bonds in the custody of Hill, and his leaving them stored where he left them, and other-circumstances, were all received, and were competent upon the question of ownership in fact. The kind of ink and the handwriting used to fill in the blank were also circumstances for the jury to consider in determining the question of ownership of the bonds. If the ownership of the bonds remained with Hill, then the name of Fellows in the indorsement must have been inserted by mistake or fraud. It was not claimed to have been fraudulently inserted. It became a question of fact for the jury, under all the circumstances, to-determine whether the insertion of Fellows’ name was a mistake or a rightful act of ownership. If the title never was transferred by Hill in fact, if he never consented in any manner to the insertion, then the ownership, if he originally acquired it by the negotiation with Bodburn, remained in Hill. It is argued that the court committed an error in allowing the following questions to be answered by Hill, viz.:
    “ Question. At the time you left these bonds in the safe, was file-name of Mr. Fellows in either of these indorsements ? Answer. No, sir; it was not. Question. Was the name of Joseph Fellows anywhere on these instruments at that time ? Answer. No, sir.
    “We do not think any error Was committed in receiving the evidence. The physical condition of the bond thus described was wholly independent of a personal transaction or communication between the witness and the deceased person. Section 829-of the Code of Civil Procedure was not violated.'
    “It is claimed by the appellant that the court should have-granted the motion for a nonsuit, on the ground that the evidence-did. not show any title to the bonds in the plaintiff. We think that the court was right in submitting to the jury the questions of fact, and instructing them to draw the proper inference and conclusions from the evidence. It was a case where conflicting constructions or meanings might be fairly given to the language employed, and the facts and circumstances proven, and it was not, therefore, proper for the court to determine the question as a matter of law. (.People ex rel. Akin v. Sughitt, 55 N. Y., 678.)”

      Brown <& Sadden, for the appellant.

      Geo. B. Bradley, for the respondent.
   Opinion by

Hardin, J.;

Talcott, P. J., concurred; Smith, J., not sitting.

Judgment and order affirmed.


author: Hardin, J.

text:
    ABRAM FRALICK, Appellant, v. DANIEL P. STAFFORD and MARTHA T. STAFFORD, Respondents.
   Judgment reversed on questions of fact, and a new trial ordered before another referee, costs to abide event.

Opinion by

Hardin, J.


author: Haedin, J.

text:
    THE PHŒNIX BANK, Appellant, v. DANIEL P. STAFFORD and MARTHA T. STAFFORD, Respondents.
   Judgment reversed and new trial ordered before another referee, costs to abide event.

Opinion by

Haedin, J.


text:
    THOMAS WOODALL, Respondent, v. PLINY E. WASHBURNE, Appellant.
   Judgment affirmed., with costs.


text:
    ROSWELL W. DRIGGS, Appellant, v. NELLA BENEDICT, Respondent.
   Order of surrogate affirmed, with costs to be paid by appellant;


text:
    GEORGE BRISBANE, Respondent, v. ALBERT BRISBANE, Appellant.
   Judgment reversed, and new trial ordered before another referee, costs to abide event.

Opinion by

Smith, J.;

Talcott, P. J., not sitting.


author: Noxon, J.,

text:
    PHILIP EDMUNDS, Appellant, v. THE UTICA PARK ASSOCIATION, Respondent.
   Judgment and order affirmed, on opinion of

Noxon, J.,

at Special Term.


text:
    GEORGE CHAMBERLAIN, Respondent, v. MARY L. WOODWARD, Appellant.
   Judgment affirmed, without costs.


text:
    DOUGLASS BOARDMAN, as Executor, &c., and another, Appellants, v. BENJAMIN KILLMASTER and EDWARD EVANS, Respondents.
   Order granting a new trial affirmed, on opinion delivered by the trial judge.


text:
    JOHN THEISS, as Administrator, &c., of WILLIAM THEISS, Deceased, Respondent, v. SAMUEL BARRONS and JULIA E. ROBERTS, Appellants.
   Judgment and order affirmed.


text:
    HENRY H. BELLINGER, for himself and for such others, &c., Appellant, v. FRED. I. SMALL, as Executor, &c. of FRANCIS A. FEETER, Deceased, Respondent.
   Judgment affirmed, with costs.

Hardin, J., not sitting.


text:
    DANIEL W. BROWN, Respondent, v. J. PAUL GRUPP and another, Appellants.
   Leave granted to amend case in the particulars ashed for by. the appellants on the payment of $10 costs of opposing this motion, and reargument ordered on appellants stipulating not to claim costs of former argument in case the judgment shall be reversed.


text:
    GEORGE N. HICKS and another, Respondents, v. SPENCER CLARK, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    ARCHIBALD M. GRAHAM and another, as Executors, &c., Respondents, v. MELISSA L. SNYDER, Appellant, Impleaded, &c.
   Motion to dismiss appeal denied with $10 costs of opposing, on the ground of waiver of the irregularity in service of notice of appeal. (People ex rel. White v. Erie C. P., 6 Wend., 549; Stevenson v. McNitt, 27 How. Pr., 335.)


text:
    ANSON LAMBERSON v. HARYEY M. BANKS.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    AMY A. LAMBERSON v. HARVEY M. BANKS.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    NATHAN JOHNSTON, Respondent, v. ABRAM A. BARNES, and others, Appellants.
   Reargument ordered.


text:
    ABRAM A. BARNES, Appellant, v. NATHAN JOHNSTON and others, Respondents.
   Reargument ordered.


author: Hardin, J.,

text:
    GEORGE D. LORD, Appellant, v. THE CITY OF ROCHESTER, Respondent.
   Judgment reversed and new trial ordered before one or more other referees, costs to abide event.

Opinions by

Hardin, J.,

and by Smith, J., dissenting.


text:
    ADA M. TOWNE, Respondent, v. MARY TOWNE BURT, Appellant.
   Order appealed from affirmed* with $10 costs, and disbursements.


text:
    ORVILLE ROBERTS, Appellant, v. HENRY C. PECK and others, Respondents.
   Order of Special Term in Herkimer County affirmed, without costs. (Code Civ. Pro., § 1015.)


text:
    ORVILLE ROBERTS, Appellant, v. HENRY C. PECK and others, Respondents.
   Order of Onondaga County Special Term appealed from affirmed, with $10 costs, and disbursements. Held, that the referee had no power to award an extra allowance under section 1022 of the Code of Civil Procedure. But the action of the court in awarding extra allowance was within its discretion.


text:
    ISAAC J. EVANS, as Executor, &c., Respondent, v. ELLISELLIS, Appellant, Impleaded, &c.
   Judgment and order reversed and new trial ordered, costs to-abide event. Held, that the answer to the question, “ Is that your signature,” did not necessarily involve a transaction or personal communication with the deceased, under section 829 of the Code of Civil Procedure.


text:
    ANDREW M. JOHNSTON, Respondent, v. HORACE J. HARVEY, as Administrator, &c., Appellant.
   Order affirmed. (Bradley v. Burwell, 3 Denio, 61, and opinion of Mullin, J., in Cornes v. Wilkins, 14 Hun, 428, followed.)


text:
    WILLIAM H. BAKER, as Receiver, &c., Respondent, v. JOHN C. VAN EPPS and SARAH H. VAN EPPS, Appellants.
   Order appealed from affirmed, with $10 costs, and disbursements. Held, that in supplementary proceedings the receiver can employ the attorney of the party for whose benefit the proceedings are instituted.


text:
    FRANCIS G. HALL, Respondent, v. CHARLES STICKLER, EFFIE STICKLER and others, Appellants.
   Order reversed without costs.


text:
    ROSELLA T. GARTNER, as special Administratrix, &c., Appellant, v. EMMA M. DE SANTA MARINA, otherwise called EMMA M. PURVIS, Respondent.
   Order affirmed, with $10 costs, and disbursements.


text:
    ELLEN HENDERSON, Respondent, v. JAMES SCOTT, Appellant.
   Order affirmed, with $10 costs, and disbursements. Held, that the order setting aside the nonsuit on the minutes was not void, but at most only voidable on appeal or by motion.


author: Haight, J.,

text:
    CHARLOTTE BLODGETT, Appellant, v. ORANGE C. BLODGETT, Respondent.
   Order affirmed, with $10 costs, and disbursements, dn opinion of

Haight, J.,

at Special Term.


text:
    JOHN MILLER, Respondent, v. THE JEFFERSON COUNTY NATIONAL BANK, Appellant.
   Judgment of the County Court and that of the justice reversed. Held, that there was no proof of the authority of Wilbur to employ plaintiff to render the services for defendant.


text:
    WILLIAM W. STARKWEATHER, Appellant, v. NATIONAL UNION BANK, Respondent.
   Judgment of the County Court appealed from affirmed. Held, that the bill of sale only transferred to the plaintiff such belting as was in the shop.


text:
    GEORGE W. COE, Respondent, v. ALONZO B. RAYMOND and others, Appelants.
   Judgment and order affirmed. Held (1), that the answer does not set up a want of jurisdiction in the County Court. (Dake v. Miller, 15 Hun, 556, followed.) (2) The question of Phillips’ .agency was properly submitted to the jury.


text:
    EATON J. RICHARDSON, as Executor, &c., of LUTHER HALL, deceased, Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, Appellant.
   Judgment and order affirmed,

Hardin, J., not sitting.

Held, (1) No question was taken below as to the form of the verdict. (2) The verdict was right on the merits, as the injury resulting from ■obstructing the flow from the spring was a continuing injury, which the former recovery did not bar.


text:
    EMMA SUGG, by Guardian, Respondent, v. JOSEPH M. PROZELLE, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Held, that there was no proof of probable cause.


text:
    GEORGE BULLARD, Respondent, v. GATES SHERWOOD and others, Appellants.
   Order reversed,- with $10 costs, and disbursements, and motion granted, stalling out the interest included in the judgment. (Gallup v. Perue, 10 Hun, 525, followed.) Sections 120, 1212 and 1213, Code of Civil Procedure, do not authorize the clerk to compute interest on an unliquidated demand.


text:
    ANDREW J. PIERSON, Respondent, v. LORA EDWARDS and CORNELIUS EDWARDS, Appellants.
   Judgment of County Court reversed, and that of the justice affirmed. Held, that the defendants killed the right dog, and at the right time. _


text:
    BRIDGET SIMPSON, Respondent, v. THE FIRST NATIONAL BANK OF WATERTOWN, Appellant.
   Judgment and order reversed, and new trial ordered, costs to abide event.


text:
    JAMES FITZGERALD, Appellant, v. THE ROME IRON WORKS, Respondent.
   Judgment affirmed.


author: Rumsey, J.

text:
    HENRY J. FORWARD and others, Appellants, v. THE BANK OF BATAVIA, Respondent.
   Order of Special Term aifirmed, with $10 costs, and disbursements.

Memorandum by

Rumsey, J.


text:
    THE BANK OF BATAVIA, Appellant, v. HENRY J. FORWARD and others, Respondents.
   Order of County Court reversed, with $10 costs, and disbursements. Held, that the information sought for was not needed to enable defendants to set up payment, and not shown to be necessary for any other purpose. -


text:
    PENELOPE CHAPPELL, Respondent, v. SUSANNAH HUEBENER, Appellant, Impleaded, &c.
   Order denying motion to strike out amended complaint affirmed, ■without costs to either party.


text:
    PENELOPE CHAPPELL, Respondent, v. SUSANNAH HUEBENER, Appellant, Impleaded, &c.
   Order granting a reference reversed without costs to either party.


text:
    DAVID R. FOGELSONGER and HENRY FOGELSONGER, Respondents, v. THOMAS FORSON, Appellant.
   Order appealed from affirmed, with $10 costs, and disbursements.


author: Rumsey, J.,

text:
    WILLIAM SOUTHERLAND and DAVID V. BENHAM, Sheriff, &c., Appellants, v. CADY E. REED and HENRY REED, Executor, &c., Respondents.
   Order appealed from affirmed, with $10 costs, and disbursements, on opinion of

Rumsey, J.,

at Special Term;

Rumsey, J., not sitting.

See Shaver v. Brainard (29 Barb., 26).


text:
    EDWARD BARTON and DOLLY HOSNER, as Administrators, &c., of NICHOLAS HOSNER, Deceased, Appellants, v. CHARLES HOSNER and others, Respondents.
   Order appealed from reversed, with $10 costs, and disbursements. Held, that there was no such proof of bad faith or mismanagement as authorized the costs to be charged upon the administrators personally. (Cunningham v. McGregor, 12 How. Pr., 305; Morse v. McCoy, 4 Cow., 551; Devoy v. Boyn, 3 Johns., 247; Withy v. Mumford, 5 Cow., 141, note.)


text:
    JOHN B. STILWELL, Respondent, v. GEORGE E. PRIEST, and others, Appellants.
   Order appealed from affirmed, with $10 costs, and disbursements.


text:
    THE YATES COUNTY NATIONAL BANK OF PENN YAN, Appellant, v. LILIAN B. PARKE, Respondent, Impleaded, &c.
   Order appealed from reversed, with $10 costs, and disbursements. Held, that the money paid to discharge the mechanic’s lien should be deducted from the avails of the property, and that being done the balance was insufficient to satisfy the judgment.


text:
    THOMAS VAN TUYL, Appellant, v. ERASTUS W. PARKER, Respondent.
   Order modified by reversing so much as refuses to strike out the award of costs and set aside the execution, -and the motion to that effect granted, and the residue of the order affirmed without costs to either party. Held, that the award of costs was irregular because not in the discretion of the court. (Old Code, §§ 304, 305.)


text:
    CATHARINE J. PRICE and REUBEN PRICE, Respondents, v. NATHANIEL L. PALMER, Individually and as Executor of MARGARET L. PALMER, Deceased, Appellants, Impleaded, &c.
   Judgment affirmed, with costs, on opinion of

Rumsey, J.,

at special term;

Rumsey, J., not sitting.


text:
    MARTIN TIMAN, Administrator, &c., Respondent, v. THOMAS E. KINNEY, Appellant.
   Judgment reversed, and new trial ordered before another referee, costs to abide event, unless plaintiff shall consent to reduce the amount of the judgment by the sum of $100, with interest thereon, from the time of the commencement of the suit, in such event the judgment, as so modified, is affirmed, without costs of this appeal to either party.


text:
    SAMUEL G. BEACH, Respondent, v. JACOB SKILLMAN, Appellant, Impleaded with JOHN HAY.
   Order affirmed, without costs.

Memorandum by

Hardin, J.;

Rumsey, J., not sitting.


text:
    LYMAN H. GRANGER, Appellant, v. GEORGE W. CROUCH and others, Respondents.
   Order appealed from affirmed, without costs.


author: Beady, J.:

text:
    THOMAS J. POPE and another v. GEORGE PERAULT, Respondent. HENRY H. MORANGE, Appellant.

      The testimony taken by a referee must be filed with, his report — General Rule No. 30 — Stenographer need not deliver notes until his bill is paid — effect of allowing the referee to use them as the basis of his repos't.

    Under General Rule No. 30, the testimony taken before a referee must be filed with his report, and until this is done the filing is incomplete, and the time within which exceptions to the report must be filed and served does not begin to run.
    Although a stenographer is not obliged to part with his notes until his bill has been paid, yet if he do deliver them to the referee to be examined by. him and used as the basis of his report, he cannot limit the effect of such delivery , and it is the duty of the referee to file them with' his report, even though the fees of the stenographer remain unpaid.
    Appeal from an order made at a Special Term confirming the report of a referee, and from an order denying a motion to compel the minutes of the testimony taken before the referee to be filed.
    The appellant, H. H. Morange, Jr., was fozmérly the attorney for the defendant herein. In December, 1878, other attorneys were substituted in his place in pursuance of an order which required the defendant to give a bond to pay any fees which might be ascertained to be due to Mi’; Morange. On a reference, after a hearing had before the referee, the latter made a report, by which he found that nothing was due to Mr. Morange. This report was, on motion of Mr. Morange, set aside and a new hearing ordered by an order made at a Special Term, ’ which order was, however, reversed, upon an appeal taken by the defendants to the General Term. The testimony had been taken by a stenographer, who had delivered his notes to the referee to be used by him in making his report, but with directions that they should not be delivered to either party, or filed until his fees had been paid. It was claimed that the stenographer had .been employed under an agreement that each side should bear one half of the expense, and that Mr. Mo-range refuses to pay his one-half.

      The defendant, after the entry of the order of reversal made by the General Term, moved for an order confirming the referee’s report, and Mr. Morange moved for an order requiring the testimony taken before the referee to be filed. From the orders .made upon the hearing of these motions these appeals were taken.

      Henry H. Morcmge, for the appellant.

      T. B. Walcemcm, for the respondent.
   Beady, J.:

The testimony should, under rule 30, have been filed with the report. Until that is done, the filing is incomplete, and the time to except does not run. Whether the attorney violated his agreement with the stenographer or not,-the referee certainly could not report without the testimony. It matters not how such testimony was taken, nor with what understanding. It was either in the referee’s hands or it was not. If it was, it necessarily became a part of his report. If it was not, there was no basis for judicial action. The stenographer, it is true, might have retained the notes until his bill was paid. But he could not limit the effect of their surrender. By that act the referee acquired the testimony for the purposes of the decision, the report, and as a legal consequence, of the filing.

The court below should therefore have directed the filing of the report; but, under the previous opinion of the General Term, without costs. It should also have refused to hear the motion to confirm the report until the testimony had been filed and the attorney had had the usual time to except thereafter.

Both orders should be reversed, without costs, and an order made, granting the motion to file the testimony without costs, and dismissing the motion to confirm the report, without costs, but without prejudice to a renewal in due course of practice after the filing of the testimony.

Present — Davis, P. J., Beady and Barrett, JJ.

So ordered.


author: ZBarrett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex. rel. EDWARD G. GILMORE, Appellant, v. CHARLES DONOHUE, a Justice of the Supreme Court of the State of New York, Respondent. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN SMITH, Appellant, v. THE SAME, Respondent.

      Oertiomri — when a proceeding is finally determined so as to be review able by.

    Upon the return of an order requiring the relator to show cause why he should not be attadicd for a criminal contempt, in forcibly and willfully resisting the lawful order and process of the court, such proceedings were had that the court adjudged him to have been guilty of the said contempt and ordered that he be imprisoned in the county jail for thirty days and paya fine of $250.

      Held, that for the purpose of reviewing these proceedings upon a certiorari, they must be deemed to have been terminated by the entry of the final order, convict! ng the relator of the contempt, and sentencing him .to pay the fine and be imprisoned, and that it was error to quash the writ on the ground that the proceedings were not terminated because no warrant of commitment. liad yet been issued.
    Appeals from orders made at a Special Term, quashing writs of certiorari.
    Tbe appeal in each proceeding was from an order of Mr. Justice Lawrence, made in July, 1880, quashing a writ of certiorari issued by the said justice on April 1, 18S0, to review the proceedings against the relator, had before Mr. Justice Donohue in a matter entitled “The People, ex rel. E. Fellows Jenkins, Superintendent of New York Society for the Prevention of Cruelty to Children, against Davene,” which terminated in an order made by him, on March 81, 1880, directing the imprisonment of the relator for thirty days, and imposing upon him a fine of $250, for an alleged contempt in willfully resisting the execution of a warrant issued in the said matter.
    The proceedings in which the said order of commitment was issued were commenced before Mr. Justice Donohue by E. Fellows Jenkins, representing the said Society, against one William M. Davene, by .the issuing of a warrant for the arrest of the said Davene, in which it was charged that said Davene, “ willfully and unlawfully exhibited, used and let out one Little Bob ’ as a .gymnast and contortionist, in violation of the provisions of chapter ,122 of the Laws of 1876, entitled An Act to prevent and punish 'wrongs to children ’; ” and it was for an alleged resistance to the ■execution of this warrant, that the order directing that the relator be imprisoned and fined as aforesaid was made. To review that •decision and order, the writ of certiorari- was issued.
    The motion to quash the writ of certiorari was granted on the ground that the order of Justice Donohue, of ‘March 31, 1880, imposing the imprisonment and fine, was not final, because no commitment had been issued to enforce it, and, therefore, was not reviewablei

      A. J:Dittenhoefer, for the appellant.

      Xewis X. Delafield, for the respondent.
   ZBarrett, J.:

The writs of certiorari were quashed below upon a misunderstanding of what was decided in People ex rel. Devlin v. Peabody (5 Abb. Pr., 194) and Devlin v. Platt (11 Id., 398). These- cases undoubtedly support the familiar rule that the writ does not lie until the proceedings are terminated. - But the precise question now involved =did not arise. Here the final judgment has been pronounced, formulated, signed and entered of record. . Nothing, whatever, remains to be done but to issue the warrant. -' "WA think that for the purposes of a review these proceedings must be deemed to have been terminated by the final order, conmcting the relators of contempt, and pronouncing upon them the judgment of fine and imprisonment. ■ - - •. . , •

The warrant which .follows -is. analogous to the execution issued upon an ordinary judgment. There-the appeal is from the judgment, not from the process issued to, .enforce it; As the writs .were quashed upon the sole ground that they would not lie until the warrants had bceir issried, we need .not now consider any Other point. , The question whether certiorari -is the. proper remedy may therefore be properly reserved until the hearing before us upon the writs. ■ ‘

The orders quashing the writs should be reversed, and 'the writs reinstated.

Present — Davis, P. J., Beady and Baerett, JJ.

Orders quashing the writs reversed, and the writs reinstated.


author: Barrett, J.:

text:
    CHARLES W. BLOSSOM and others, Respondents, v. LLEWELLYN G. ESTES, Appellant. SAME v. SAME.

      Attachment — the a/ppearance of the defendant does not revive an attachment, invalidated by a failure to serve the summons within thirty days — Code, § 327, as amended by section 7 of chapter 824 of 1866.
    An attachment'which has become invalid by reason of the failure of the plaintiff to serve the summons, either personally or by publication, within thirty-days from the time it was issued, is not revived and rendered valid by the-subsequent appearance of the defendant in the action.
    Appeal from two orders made at a Special Term, one denying-a motion to set aside a warrant of attachment, and the other denying a motion for leave to renew the first motion on additional affidavits.
    The attachment was issued and a levy made on October 30, 1869, under section 227 of the Old-Code, as amended by section 7, chapter 824 of 1866. The order for the service of the summons by publication was not made until December 27 of that year. Thereafter, and in the latter part of 1874, the defendant, as it was claimed by the plaintiff, appeared in the action.

      L. II Arnold, Jr., for the appellant.
    A’. II. Hobbs, for the respondents.
   Barrett, J.:

It has been repeatedly held that an attachment is invalidated by the failure to serve or publish the summons within thirty days after the issuing of the warrant. The court may, of course, acquire jurisdiction and proceed with the action in personam, upon the service of the summons- or the defendant’s voluntary appearance at a later date. But the provisional remedy fails unless the service is effected or the publication commenced within the time prescribed by statute. Here it "is conceded that the publication was not commenced until after the expiration of the thirty days. This was not amere irregularity, but a jurisdictional omission, which worked the destruction of the warrant. The alleged appearance long afterwards did not revive the attachment. If authorized, it simply gave the court jurisdiction ■ over the person of the defendant.

It is also urged that the motion, though nominally made by the defendant, is really in the interest of third persons claiming title to what was attached. It appears, however, that' the attorney was-employed by the defendant to make the motion, and the defendant himself furnishes an affidavit in support of it. The defendant has a right to so move, even if his object be mainly to assist his assignees, or though the latter may incidentally secure an advantage from his success. Indeed, under the present Code, in force when the motion was made, a status is expressly .given to other interested parties.

We think the attachment should have been vacated, and that the order in the first appeal should be reversed, with $10 costs, and disbursements, and the motion granted.

It will be unnecessary, therefore, specially to consider the second appeal, although we must say that Mr. Hatch’s affidavit would have justified a renewal of the motion, even-if we had sustained the respondent’s view of the effect of an appearance. This affidavit. threw doubt upon the fact of an appearance, and, at all events, it showed that if he did appear, it was without authority.

The second appeal, under the circumstances, should be dismissed without costs.

Present, Davis, P. J., Brady and Barrett, JJ.

Order in the first appeal reversed, with $10 costs, and disbursements, and motion granted.

The second appeal dismissed, without' costs.