text:
    GEORGE F. VIETOR and Others, Respondents, v. MOSES HENLEIN and Others, Appellants. WILLIAM E. ISELIN and Others, Respondents, v. THE SAME. EMIL OELBERMAN and Others, Respondents, v. THE SAME. OTTO HEINZE and Others, Respondents, v. THE SAME.

      Attachment — a debt is dm at once, if the goods be sold on a credit procured through fraudulent representations — it is fraudulent for the members of am, instilment firm, to pay individual creditors out of the firm assets, or to reserve moneys for the support of their families, when making a general assignment.

    Appeal from an order denying a motion -to vacate an attachment. One of the grounds upon which the attachment was issued was, that the defendants bad become indebted to the plaintiffs in the sum of $12,000 and upwards, upon the sale and delivery to them of ' goods and merchandise, and they were also charged with having assigned, disposed of and secreted their property with intent to defraud their creditors. The grounds for the attachment were controverted by the affidavits presented on behalf of the defendants. It was stated that the goods had been sold upon a credit of four months, wjhich, at the time when the attachment was issued, had not expired; and to answer that statement, affidavits were produced on behalf of the plaintiffs to establish the fact that the debt had been fraudulently contracted, and for that reason the defendants had deprived themselves of their right to insist upon the credit.
    The court, at General Term, said: “ If the plaintiffs were right in the answer made to this objection, then the terms of the credit were not binding upon them, but they were at liberty to bring their action for the recovery of the purchase-price of their goods in the same manner as though no agreement for any period of credit had been made. (Wig and v. Siohel, 3 Keyes, 120; Glaflin v. Taussig, 7 Hun, 223; Arnold v. Shapiro, 29 Hun, 478 ; Nelson v. Hydey 66 Barb., 59.)
    “And as one of the grounds upon which the attachment was issued was, that the defendants had become indebted to the plaintiffs for the price or value of the goods, the fact itself could be established in this manner in answer to the affidavit on the part of the defendants," that the term of credit had not expired when the action was commenced. For by section 683 of the Code of Civil Procedure the application to discharge the attachment, when it may be founded upon proof on the part of the defendants, may be opposed by new proof by affidavit on the part of the plaintiffs tending to sustain any ground for the attachment recited in the warrant. The existence of the indebtedness was one of the grounds so recited, and when that fact was assailed by affidavit on behalf of the defendants, the plaintiffs were entitled to meet and avoid it by showing the fact that the debt itself had become due, notwithstanding the agreement made for the credit.” * * *
    In support of the position that the defendants had assigned and disposed of their property with intent to defraud their creditors, reliance was placed by the plaintiffs on two facts. These were that they had paid to Max Wolff a fictitious debt of $13,754.91, and that they had together drawn from the firm the sum of $12,061.81, to be appropriated to their own individual uses and benefit, and not to be passed to the assignee under the general assignment. While the books of the defendants contained no authentic account of the alleged indebtedness to Wolff, it was still made to appear that the firm was indebted to him in the amount he had received. There was, therefore, although the payments made to Wolff were suspicious, no necessarily fraudulent disposition of the debtor’s property in making that payment. But as to the amount drawn by themselves from the firm assets the case was entirely different, for it was shown that this amount consisted of sums drawn by the different members of the defendants firm. It is stated to have been admitted by Louis Wolff, in the presence of the other defendants, who made no denial of the admission, at a meeting of the creditors, that the different sums, aggregating this amount of $12,061.81, had been drawn by the individual members of the firm to pay individual family debts, and to be devoted to the support and maintenance of their respective families during the time that should elapse between their failure and the date of effecting a settlement with their creditors. And if they effected such a settlement at forty cents on the dollar, the money drawn out would be at the disposal of the creditors in part payment of the compromise, but it they did not, then the money withdrawn would be devoted to the support of their respective families. The affidavits made by the defendants, in substance, admitted that these sums of money had been drawn by them from the moneys of the firm previous to the execution and delivery of the assignment, and in cas'e they failed to secure the compromise of their debts in this manner, that they designed and intended to appropriate it to the uses and support of their families. They did not, however, concede the amount to be that stated on behalf of the plaintiffs, but averred it to amount in the aggregate to the sum of $7,978.61. This difference was made up to the extent of $3,083.20 by payments which Moses Henlein made to William Reichman, to whom he was individually indebted upon a loan. It was not denied that the sum alleged to have been received by him had not, as a matter of 'fact, been drawn from the assets of the firm, but to the extent óf these two payments that he had become indebted to the person to whom they were made, and made the payments to extinguish that indebtedness. It was still a misappropriation of so much of the property of the firm, whose creditors were entitled to be benefited by it, drawn out by one of its members with the concurrence of the others, intending to and actually appropriating it to the payment of his own individual debts, and unauthorized by the condition in which this firm at that time was, financially situated. According to the most favorable state of the case made by the defendants, they individually took from the firm assets the sum of $7,978.61, to be chiefiy used and appropriated in the future for the support of themselves and their families, unless by means of their assignment, and the proposal made by them, they could secure an adjustment of their debts with their creditors at the rate of forty cents on the dollar. ' This was an unlawful appropriation of so much, at least, of the firm’s property,'and it cannot be legally excused by the circumstances that they may not have positively intended thereby to defraud their creditors. ' For the fact necessarily is, to this extent, that the creditors were defrauded by making this disposition of this sum of money, which the law did not permit them to make in the financial condition in which their affairs appear to have been. If, by the assignment itself, they had directed the assignee to pay the members of this firm the respective amounts drawn by them, it would have been clearly fraudulent and void upon Its face.' For tbe law will not permit insolvent debtors to reserve from their estate, when it may be assigned in this manner for the benefit of their creditors, anything more than the property exempt by statute from levy and sale under execution.

    That they did not give this direction in the assignment, but individually took the moneys themselves, rendered it no less an unlawful disposition of their property. It was taking from their assets this amount of money, which the creditors were entitled to the benefit of in the adjustment of their debts; and, within the authorities, it was a fraudulent disposition of so much of their assets. It was property taken by them to be withheld from their creditors, unless, in the single contingency, they should be able to secure a compromise at the rate of forty cents on the dollar, and which they did not afterwards succeed in effecting. A point of this description was considered in White v. Fagan (18 N. Y. Wk. Dig., 358), where it was held that such an abstraction of property previous to and in contemplation of a general assignment for the benefit of creditors was fraudulent, and the same conclusion results from what was held in Untermeyer v. Hutter (26 Hun, 147), and Taleott v. Hess (31 id., 282), and Shultz v. Hoagland (85 N. Y., 464-468, 469). It has been supposed by the defendants’ counsel that the casé of Sherill, etc., Co. v. Harwood (30 Hun, 9) afforded some countenance for this conduct of the defendants. But that ease differed so materially in its facts as not to be liable to this construction by any of its language. As the case has been presented, the plaintiffs were entitled to an attachment against the property of the defendants, for the reason that they had disposed of a portion of it at least, with the intent to defraud their creditors, and that conclusion is further confirmed by the entire omission of this sum of money from the inventory filed of the debtor’s property. * * *

      Hlumenstiel dk Hirseh, for the appellants.

      James Dunne, for the respondents in first three cases.

      Albert L. Cohen, for the respondents in last case.
   Opinion by

Daniels, J.;

Davis, P. J., and Beady, J., concurred in the result.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Daniels, J.;

license: Public Domain

text:
    CHARLES E. WILLIS, Respondent, v. EDWARD GEHLERT, Appellant.

      Tax sales in New York city — notice to redeem — when it is too uncertain to give a good title one holding under a tax lease does not hold under an adverse title.

    Appeal from a judgment in favor of the plaintiff recovered on a trial before the court without a jury.
    The action was brought to recover the possession of a lot of land situated upon the easterly side of Fourth avenue, twenty-five feet northerly from One Hundred and Twenty-sixth street. The title was acquired by one Adriance, in 1858, and he continued to own it until the time of his decease. By his will he devised it to his widow, and she, on the 10th of March, 1881, conveyed it to the plaintiff. The defendant went into possession of the property under a lease from James Ahearn, in 1866. This lease was for the period of ten years, and accordingly expired in 1876, about five years before the commencement of this suit.
    The court at General Term said: “ What right Ahearn had. to make the lease has not been shown, neither is it important that it should have been, as the term expired before the conveyance of the property to the plaintiff. But at the time of this conveyance the defendant was in the possession of the property under two leases from the city of New York, executed and delivered to him upon sales for the non-payment of taxes, and upon that fact it has been objected that the deed to the plaintiff was void under the statute declaring a conveyance of real estate void when it may be in the possession of another person claiming under a different title. But the answer to this objection arises out of the circumstance that the defendant was not in possession claiming under a title adverse to that conveyed to the plaintiff. His rights depended, to the extent of his claim that he was entitled to hold and possess the property for the periods mentioned in the leases, upon the title of the plaintiff’s grantor. And that did not present a case within this prohibition of the statute. (Ovary v. Goodmcm, 22 N. "Y., 170, 175; Bedell v. Shaw, 59 id., é6 ; Dawley v. Brovm, 79 id., 390, 397.)

      “ Both the plaintiff and the defendant claimed the property upon the same title, and that was conceded by the defendant himself in the notices served in his behalf, pursuant to section 13 of chapter 381 of the Laws of 1871, declaring the service of notice to redeem upon the owner of the property to be á prerequisite to the completion of the title of the defendant under the leases executed and, delivered by the city to him. That section directed that notice should be served on the person owning the property so conveyed, whether it be occupied or not, provided such owner resided in the city of New York, or in any adjoining county. And the notice directed to be served appears by the proof in the case to have been served upon Margaret E. Adriance as owner of the property, and who at the time did own it under the devise of it made to her by the will of her husband. This was a concession of her title as a matter of fact by the defendant, sustaining the conclusion already declared concerning the regularity of the proceedings resulting in the referee’s deed to her husband.
    The right of the defendant to withhold the property from the plaintiff is wholly dependent therefore, upon the leases given to him by the city. By section 4 of chapter 381 of the Laws of 1871, before the leases could be legally given, the clerk of arrears, under the direction of the comptroller, was to cause an advertisement to be published at least twice in each week for six successive weeks, in a daily newspaper published in the city of New York, giving notice of the sale with a statement that, unless the lands and tenements sold should be redeemed by a certain day, they would be conveyed to the purchaser. The sales, under which one of the leases was given, commenced on the 14th and ended on the 23d day of December, 1871, and the other commenced on the 15th, and the sales were continued on the 18th, 24th and 30th days of December, 1874. On which of these days, at either sale, this property was sold was not made to appear. The notices published by the clerk of arrears, in each instance, stated the days on which the sales had been made of property for the non-payment of taxes, and both notices then contained the following clauses: ‘And notice is hereby further given that unless the several lands and tenements so sold, be redeemed by the persons respectively claiming title to the same or some other persons, on or before the expiration of two years from the date of the respective sales of the said lands and tenements as is hereinafter particularly mentioned ’ (which on the first sale were stated to be the 14th, 15th, 16th, 18th, 21st, 22d and 23d days of December, 1873, and in the second sale the 15th, 18th, 24th and 30th days of December, 1876), ‘ by paying to the clerk of arrears for said city for the use of the purchaser of said lands and tenements sold, or their executors, administrators or assigns, the respective sums of money for which said lands and tenements, were sold, together with interest, etc. The mayor, aldermen and commonalty of said city will execute to the respective purchasers, their executors, administrators or assigns, a lease -under the common seal of the said city, of the lands and tenements so sold for such term of years as the same were respectively sold.’
    “ Neither of these notices stated any certain day when this land should be redeemed to prevent a conveyance of it to the purchaser, as the statute required that to be done. The notice left the day entirely uncertain on which the right to redeem would cease. In the first ease it might be either one of seven different days between the fourteenth and twenty-third of December, and in the other either one of four different days, between the fifteenth and thirtieth days of December, which left the time in each instance so completely uncertain as not to be a compliance with the direction contained in the statute. And to divest a person of his title to real estate for the non-payment of taxes, the law requires a strict observance of the directions given for that purpose by the statute.

      “ This was not, in either case, such a notice as the statute had directed should be published before the purchaser at the sale could be entitled to a lease or conveyance of the property. This subject was considered in Donahue v. O'Qonor (45 N. T. Supr. Ot., 279), and the same view was maintained .concerning the necessity of strictly complying with the directions contained in the statute. And the conclusion likewise follows from what was held in Adricmoe v. MoCafferty (2 Robertson, 153, 163). It is true that the leases after they were executed and delivered were made presumptive evidence that the sale and all proceedings prior thereto, from and including the assessments, and also of the notice required to be given previous to the expiration of the two years allowed to redeem, were regular and according to the provisions of the statute. But this presumption has been wholly overthrown by the production and proof of the notices themselves, which as a matter of fact .did not comply with the direction contained in the statute. This-presumption has been removed from the case, for it has been proven, by the notices that they were not regular, and were not according to the provisions of the statute, and the defendant consequently acquired no right of possession of the property under the sales and the leases executed and delivered to him. The plaintiff was consequently entitled to recover the possession of the property, as that was adjudged, and the judgment appealed from should be affirmed.”

      Jacob A. Gross, for the appellant.

      B. A. Willis, for the respondent.
   Opinion by

Daniels, J.;

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

Judgment affirmed.


text:
    EMMA D. VAN VLECK and HELEN D. ADAMS, Executrices, etc., of PATRICK DICKIE, Deceased, Appellants, v. HELEN D. LOUNSBERY, LOUIS B. ADAMS and BESSIE H. ADAMS, Respondents, Impleaded with SERENA D. TURRELL and Others.

      Zxeautors’ accounting — when an increase in the value of securities or real property: goes to the credit of principal ap,d not to that of income.

    Appeal from portions of the decree of the surrogate of the county of New York settling 4the accounts of the appellants as executrices of the estate of Patrick Dickie, deceased.
    The appeal has been taken so far as it is now before the court,, from so much of the decree of the surrogate as disposed of two items contained in the account of the executrices.
    The court, at General Term, after holding that the decision of the surrogate as to one item was correct said: “ The other item is the sum of $1,300 obtained upon the sale of premises, the title to which was derived by the executrices under a foreclosure of a mortgage owned by the testator amounting to the sum of $8,000. It has been insisted on the part of the executrices that this excess of $1,300 over the principal of the mortgage should be applied and credited as so much income of the estate. It was-not made to appear by proof that this excess, or any part of it, conflisted of interest or income from the mortgage itself, but it was made to appear that up to the time when the property was sold and conveyed the rents derived from it were applied and credited to the income of the estate. In that manner the parties entitled to the income enjoyed all the benefit and advantage which they could legally claim from the existence of the mortgage. They received the interest from it while it remained in fact a mortgage, and the rents and profits of the property itself after the foreclosure and a title had been obtained under'it. The difference in controversy consequently arose from the enhanced value of the property itself. It was no part of its rents or profits, but it was caused by its advance in value beyond the sum for which it had been purchased at the foreclosure sale, and when it was sold its entire proceeds belonged to the principle of the estate.
    “ If the property is to be regarded as real estate, then no possible ground of doubt as to the disposition of this difference can arise, for the money derived was the purchase-price of that property. But if the land after the foreclosure is to be regarded as personal property for the reason that the mortgage was a portion of the personal estate of the testator, as may very well be done under Valentine v. Belden (20 Hun, 537) and Lool&man v. lieilley (95 N. Y., 64), no difference will be created in the rights of the parties. For as the personal estate has received the advantage of the interest accruing upon the mortgage, and the rents derived from the property after the foreclosure, the difference then would consist in the enhanced value of the security itself in the condition in which it had been placed. And as such, that enhanced value being the increased value of the principal, would belong to the principal of the estate. The case would then be the same as though the mortgage had not been foreclosed, but had been sold for the sum of $9,300, in which event the proceeds would properly be accountable for as a part of the principal and not a part of the income of the ■estate.”

      David Thurston, for the appellants.

      George C. Dolt and Thomas Darland, for the respondents.
   Opinion by

Daniels, J.;

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

Decree affirmed, with costs.


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

text:
    EMORY A. CHASE and WILLIAM J. HUGHES, Executors of WILLIAM DONAHUE, Deceased, Respondents, v. WILLIAM BELDEN, Appellant.

      Steami yachts navigating the Hudson Timer — what lights they should, ea/rry at night— U. S. Revised Statutes, sec. 4233.
    A yacht called the Tosemite was licensed, under section 4214 of the United States Revised States, as a pleasure yacht to proceed from port to port in the United States, and by sea to any foreign ports. She was of 481 tons burden, was propelled by steam and had two high masts. She was coming up the Hudson river under steam with her sails furled, when, between nine and ten o’clock at night, near the Esopus light-house, she collided with and sank another vessel. It was claimed that the Tosemite occasioned the accident by failing to carry the proper lights.

      Held, that the Tosemite was an “ ocean-going steamer,” and a “ steamer carrying sail,” with-in the meaning of Rule 3 of the rules for navigation, prescribed by section 4233 of the United States Revised Statutes, and should carry the lights therein provided for.
    'That being “ otherwise expressly provided for ” she should not carry the lights specified in Rule Ho. 7. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new “trial made upon the minutes of the justice before whom the action ■was tried.

      The plaintiffs’ testator was the 'owner of the river steamboat Charlotte Yanderbilt, and the defendant the owner of the oceangoing steam yacht Yosemite. Between nine and ten o’clock on the night of July 14, 1882, the Yanderbilt was going down the Hudson river and the Yosemite coming up. Near the Esopus light-house .the two vessels came into collision; the Yosemite striking the Yanderbilt just forward of the gangway on the starboard side, and passing through, came out about the middle of the gangway on the port side, cutting off the bow of the Yanderbilt and sinking her. The complaint charges that- the collision was caused by the negligence of the defendant.

      F. L. Westbrook, for the appellant.

      P. Oarvbme, for .the respondents.
   Landon, J.:

The Yosemite was licensed under section 4214, United States Bevised Statutes, as a pleasure yacht, to proceed from port to port in the United States, and by sea to any foreign ports. She was of. 481 tons burden, was propelled by steam, had two high masts, carried her sails furled at the time of the collision. She was painted black. She carried the bright white light at the foremast head, the green light upon ¿her starboard side and the red light upon her port side, prescribed by Buie 3 of section 4233, United StatesBevised Statutes, for “ ocean-going steamers and steamers carrying sail when under way.” The plaintiffs claim, and the learned judge upon the trial charged the jury, that when she was navigating the' Hudson river she was in fault for not carrying the lights prescribed by Bule 1 of the same section. The pilot of the Yander-bilt did not understand the significance of the lights the Yosemite carried, and because of the darkness of the night and his inability to see anything except her lights, the jury under the chai-ge of the-court attributed the sinking of the Yanderbilt to the fault of the Yosemite. If the Yosemite had the proper lights, then it was gross incompetency on the part of the pilot of the Yanderbilt not to understand them. The rules, so far as necessary to cite them,, are,as follows:

United States Revised Statutes, Chapter Five. — Navigation.

Section 4233. The following rules for preventing collisions on the water, shall be followed in the navigation of vessels of the navy and of the mercantile marine of the United States.:

Steam and Sail Vessels.

Rule 1. Every steam vessel which is under sail, and not under .steam, shall .be considered a sail ‘vessel,; and every steam vessel which is under steam, whether under sail or not, shall be considered a steam vessel. ■

Lights.

Rule 2. The lights mentioned in the following rules, and no others, shall be carried in all weathers, between sunset and sunrise :

Rule 3. All ocean-going steamers, and steamers carrying sail, shall, when under way, carry,

{a.) At the foremast head, a bright white light, of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of twenty points of the compass, andvso fixed as to throw the light ten points on each, side of the vessel, namely, from right ahead to two points abaft the beam on either side.

(5.) On the starboard side a green light, of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side.

(e.) On the port side a red light of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken ■light over an arc of the horizen of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam on the port side.

The green and red lights shall be fitted with inboard screens, projecting at least three feet forward from the lights, so as to prevent them from being seen across the bow.

Rule 4. Steam vessels, when towing other vessels, shall carry two bright white mast-head lights vertically, in addition to their side lights, so as to distinguish them from other steam vessels. Each of these mast-head lights shall be of the same character and construction as the mast-he>\d lights prescribed by Rule 3.

Rule 5. All steam vessels, other than ocean-going steamers and steamers carrying sail, shall when under way carry on the starboard and port sides lights of the same character and construction, and in the same position as are prescribed for side lights by Rule 3, except in the case provided in Rule 6.

Rule 6. River steamers navigating waters flowing into the gulf of Mexico and their tributaries shall carry the following lights, namely: One red light on the outboard side of the port smoke-pipe, and one green light on the outboard side of the starboard smoke-pipe. Such lights shall show both forward and abeam on their respective sides.

Rule 7. All coasting steam vessels, and steam vessels other than ferry-boats and vessels otherwise expressly provided for, navigating the bays, lakes, rivers, or other inland waters of the United States, except those mentioned in Rule 6, shall carry the red and green lights as prescribed for ocean-going steamers; and in addition thereto a central range of two white lights; the after light being carried at an elevation of at least fifteen feet above the light at the head of the vessel. The head-light shall be so constructed as to show a good light through twenty points of the compass, namely, from right ahead to two points abaft the beam on either side of the vessel, and the after light so as to show all around the horizon. The lights for ferry-boats shall be regulated by such rules as the board of supervising inspectors of steam vessels shall prescribe.

Rule 8. Sail vessels, under way or being towed, shall carry the same lights as steam vessels under way, with the exception of the white mast-head lights, which they shall never carry.

The Tosemite was an ocean-going steamer” and a “steamer . carrying sail.” (Rule 3.) She was not “ under sail ” but “ under steam.” (Rule 1.) This distinction between under sail and carrying sail, is taken by the rules cited. Such a steamer “ when under way shall carry” the lights the Yosemite had. “Under way” where? The learned judge at circuit said in substance “ on the ocean,” and thus by the insertion of the ocean excluded the river. Rule 3 does not insert the words “ on the ocean; ” it does not in terms-exclude the river. All the rules seem to have been prepared with rigid exactness of expression, and therefore may safely be literally construed. Unless the fair construction of Rule 7 also includes “ an ocean-going steamer ” or “ a steamer carrying sail ” when navigating inland, waters, the Yosemite properly carried the same lights on the river as on the ocean.

It is not contended that this pleasure steam yacht, designed as a “ model of naval architecture ” (U. S. R. S., § 4214), was technically a “ coasting vessel.” Rule 7 provides “ steam vessels other than ferry-boats and vessels otherwise expressly provided for, navigating the bays, lakes, rivers or other inland waters * * * shall carry the red and green lights as prescribed for ocean-going steamers- and in addition thereto a central range of two white lights.” There is no comma after “ ferry-boats,” and hence the words “ other than ” govern “ vessels otherwise expressly provided for.” So that the meaning is, “ steam vessels other than ferry-boats and other than vessels otherwise expressly provided for,” or to apply it to this-case, “ steam vessels,” not otherwise expressly provided for, navigating the Hudson river shall carry the central range of lights. The Yosemite was a vessel “otherwise expressly provided for” in Rule 3, and therefore was by Rule 7 not required to carry a central range of two white lights, and was by Rule 2 prohibited from carrying such lights.

An examination of the rules cited shows that every vessel propelled by steam, whether on the ocean or the inland waters must, when under way, between sunset and sunrise, carry the gieen light, on its starboard side and the red light on its port side. Even the steamers on the waters flowing into the gulf of Mexico must carry these lights, but owing no doubt to the peculiar construction of the craft in those waters, these lights are placed on the starboard and port smoke-pipes of the steamers instead of upon their sides. Sail vessels when under way must also carry these lights. Even the boats which are too small to have the green and red lights fixed upon their starboard and port sides, must have them where they may be immediately displayed thereon when approaching another vessel. The green and the red lights placed respectively on the starboard and port sides, is the general provision for all steam vessels-everywhere. We are compelled, therefore, further to examine the rules to find some other distinguishing feature of some of the steam vessels mentioned, in order to ascertain what steam vessels are referred to in the words of exception in Rule 7, wherein we are informed that all steam vessels other than vessels otherwise expressly provided for, must when navigating the rivers and, inland waters •carry, in addition to the green and red lights universally required, a -central range of two white lights. Looking for something “expressly provided for,” “ otherwise ” than the green and red lights, we find in Rule 3 that “the ocean-going steamers and the steamers carrying sail ” shall carry at the foremast-head a bright white light; .and we find that no other steamer is permitted to carry such a light. We find in Rule 4 that steam vessels when towing other vessels .shall carry two bright white mast-head lights vertically. We find no other steam vessels thus provided for. We find no peculiar provision for any other steam vessels except that mentioned as to the steamers on waters flowing into the gulf of Mexico.

Finding, therefore, the ocean-going steamers and steamers carrying sail, and steam vessels when towing other vessels, thus expressly provided for, so as instantly to be known and distinguished from .all other steamers or vessels, and finding no others expressly provided for, we conclude that these steam vessels and ferry-boats, but .no others, fall within the exception created by Rule 7.

Upon the trial, the “ general rules and regulations prescribed by the board of supervising inspectors of steam vessels ” were read in evidence. The construction given by this board to the exception contained in Rule 7, above discussed, excludes all the steamers mentioned in the rules preceding Rule 7.. (See page 49.) Whether the construction adopted by the board, or the one adopted by us, be the true one, the Tosemite was not in fault in not carrying a central range of two white lights. These rules seem to place the sole reliance for safety of vessels in passing each other in the dark, so far as lights are concerned, upon the green and red lights. It is thus remarked on page 47: “ It will appear evident that in any situation in which two vessels may approach each other in the dark, the colored lights will instantly indicate to both the relative course of each ; that is, each will know whether the other is approaching directly or crossing the bows, either to starboard or port. This intimation, with the signals by whistles, as provided, is all that is required to enable vessels to pass each other in the darkest night with almost equal safety as in broad day.” There is much reason to believe that if the pilot of the Yanderbilt had understood the lights and obeyed the rules, this collision would have béen avoided.

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

Bocees, J., concurred.

Learned, P. J.

(dissenting):

Buie 3, section 4233, Revised Statutes, United States, says: “All ocean-going steamers and steamers carrying sail shall, when under way, carry,” etc., A, B, C, specifying the lights which were, in fact, on the Yosemite.

Rule 5. All steam vessels, other them ocean-going steamers and steamers carrying sail shall, when under way, carry,” etc., specifying the side lights provided by B and C of Rule 3, “ except in the case provided for by Rule 6.” This exception shows that, hut for the exception, the words steam vessels ” would have been broad enough to include the vessels mentioned in Rule 6, viz., “ river steamers.” Therefore, the words “steam vessels” include “river steamers,” or river steamboats.

Rule 6. “River steamers navigating waters flowing into the Gulf ■of Mexico ” shall carry certain lights.

Thus we see that these three rules provide for all steam vessels / that is, Rule 3 for what we may call in brief maritime steam vessels; Rule 6 for Mississippi steamers, commonly called steamboats ; Rule 5 for all others. If there were no other rules, then these would provide for all hinds of steam, vessels, in all places.

Then comes Rule 7. This mentions first, “all coasting steam vessels; ” then “ steam vessels other than ferry-boats and vessels otherwise provided for, navigating the bays, lakes, etc., except those mentioned in Rule 6,” and requires them to carry the red and green lights (as in B and C), and also certain lights called range lights.

Now, as Rules 3 and 5 include all steam vessels (excepting those mentioned in Rule 6), and as Rule 7 excepts those mentioned in Rule 6, it follows that Rule 7, if it applies to any vessels at all, must apply to vessels which are included in Rule 3 or in Rule 5. That is, it must apply either to some “ ocean-going steamers and steamers carrying sail,” or to some vessels “ other than ocean-going steamers and steamers carrying sail.” Therefore we may assume that the fact that a certain steam vessel comes within the description of Rule 3, or comes within the description of Rule 5, does not prevent the application to it of Rule 7.

How then is Rule 7 to be applied if all steam vessels are already provided for ? It is to be applied when a steam vessel comes into the situation mentioned in Rule 7, that is, when it is navigating inland waters of the United States. There is no remaining class of steam vessels not included under Rules 3, 5 and 6. Rule 7, by its express terms, does not apply to those described in Rule 6. It must, therefore, apply to those mentioned in Rule 3 or in Rule 5. And it applies to them when they come into certain circumstances, viz., when navigating mlcmd waters other than the Mississippi, etc.

It is said that Rule 7 excepts “vessels otherwise provided for,” and that this exception refers to the provisions of Rule 3. But if the exception refers to the provisions of Rule 3, why not to the provisions of Rule 5, which are equally express ? If the exception does not apply to the provisions of Rule 3, the defendant’s position is wrong. If it does, then it must equally apply to the provisions of Rule 5, and then Rule 7 is left with nothing to apply to because everything is excepted.

Again, “ coasting steam vessels,” must they not carry range lights when navigating inland waters? But they are provided for by Rule 5. Possibly they must carry range lights always. But that is not important here. If they are governed by Rule 5 when not navigating inland waters, yet, at any rate, when navigating inland waters Rule 7 must apply to them.

It is impossible to give to the words “ unless otherwise provided for ” in Rule 7 so broad a meaning as to include the vessels provided for in Rule 3 and in Rule 5; and there is no reason to include the provisions of Rule 3 and exclude those of Rule 5. The defendant’s counsel urges that Rule 3 expressly provides for maritime-vessels aiid'Rule 8 for sail vessels. But he omits to observe that Rule just as expressly provides for all steam vessels other them* maritime and ether than Mississippi steamers.

If it be asked to what do the words “ otherwise expressly provided for ” apply, it may be said that perhaps they are words of caution either as to present or future possible provisions. They may perhaps apply to the provisions of Rule 9, the case of small vessels in bad weather, or to the case of open .boats mentioned in Rule 13, for such boats are sometimes driven by steam power; and notice that open boats are classed, in that Rule 13, as “ vessels ” by the words other vessels.” If the word “ vessels ” in Rule 7 includes other than steam vessels, then the words “ expressly provided for ” might apply to the jorovisions of Rule 12 and Rule 8.

The view thus given is favored by the reason of the matter. Rule 7 means to give range lights on inland waters. The reason for the need of these range lights is the place not the character of the vessel. Yessels are numerous in such places. Courses are to a greater extent in one or two directions. The navigator- of a river accustomed to range lights ought not to be exposed to the especial danger which would arise if a steam vessel coming on a river should not carry such lights. The words are “ vessels navigating,” that is, vessels i/n the act of navigating, not vessels which always navigate such waters, but any steam vessels, whatever their customary routes* which come into and navigate inland waters.

Again, if we read Rule 5 we shall see that it includes a Hudson river steamboat, such as the Yanderbilt was. Could the Yanderbilt neglect to carry range lights and say in excuse that she was a vessel expressly provided for by Rule 5 and, therefore, she was not bound to carry range lights although navigating inland waters ? If not, why can the Yosemite make the similar excuse that she was a vessel expressly provided for by Rule 3 ?

Something was said in argument about the difficulty and uselessness of having range lights on a steamer carrying sail. I confess that I have not enough knowledge of such vessels to determine the meaning of the rule by that view of the matter; and indeed I hardly think that we should give much weight to such considerations unless it should be shown by proof to be impossible for a vessel like the Yosemite to carry range lights. If such range lights are obscured on such a vessel by masts or sails that would not be the fault of the owner of the vessel. It is enough for him to carry the lights prescribed by the rules. It seems to me then that Rules 3 and 5 provide for every kind of steam vessels, excepting such as are navigating the Mississippi waters provided for by Rule 6; that Rule 7 provides for such steam vessels as are navigating other inland waters and must affect steam vessels mentioned in Rules 3 and 5 when they navigate such inland waters, because otherwise there are no steam vessels to which it can apply.

There is a fact of some importance. The inspectors certificate of the Yosemite permits her to navigate “ the waters of any ocean route ” and says that she has signal lights. This certificate, therefore, states that she has the signal lights proper for an ocean route. It does not state that she has the signal lights proper for navigating inland waters, and the inspectors are by law directed to see that all the requirements of the law are complied with. (IT. S. R. S., § Ml 7.) The signal lights, therefore, which she had were declared by the inspectors to be those required for steam vessels on ocean routes, not on inland waters.

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


author: By the Court :

text:
    ALBERT DE FREEST v. THE CITY OF TROY.
    Practice— Code of Civil Pi'ocedw'e, sec. 191, suh. 8 — power to allow an appeal u/nder — hy what General Term it must he exercised.

    The power to allow an appeal to be taken to the Court of Appeals, in the cases specified in subdivision 8 of section 191 of the Code of Civil Procedure, can only be exercised by the General Term which rendered the determination sought to be reviewed, or the next General Term held after judgment has been entered thereon. No subsequent General Term can allow such appeal to be taken.
    Application for leave to appeal to 'the Court of Appeals.

      W. J. Boche, for the motion.

      E. Countryman, opposed.
   By the Court :

This was an action to declare an assessment illegal. Judgment was rendered for the plaintiff. An appeal was taken and was argued at the General Term, November, 1882, and was affirmed at the same term; not (as incorrectly stated in the moving papers) in December, 1882. The judgment of affirmance was entered in December, 1882. The defendant appealed to the Court of Appeals. It is now stated to us that when the case was called for argument in the Court of Appeals, in December, 1881, that court suggested that the appeal was not properly taken; that it did not appear that the amount in controversy was more than $500, and that the court below had not allowed the appeal under section 191, subdivision 3; that the Court of Appeals then suggested to defendant’s counsel that he should apply to the General Term for such an allowance. He now makes such an application.

By the section above cited such allowance can be made only at the General Term which rendered the determination, or at the next General Term after judgment is entered. This -application is therefore, on. its face, too late. The defendant’s counsel, however, urges that section 783 permits us to relieve him. But that section only permits the court to relieve a party from his omission to do some act. Here the question is as to the power of the court. Indeed section 781, stating that the court cannot extend the time to appeal, shows by inference that we cannot at this time grant this application. The Court of Appeals might just as properly disregard section 191, subdivision 3, and hear this appeal without any allowance at all, as this court could disregard the same section and grant an allowance at a time when our power has terminated. Indeed it is safer for that court to disregard the statute, because there is no appeal from their action.

Application denied, with ten dollars costs.

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

Motion for leave to go to Court of Appeals denied, with ten dollars costs.


author: By the Court.

text:
    LEONARD Y. GARDINER and MELVIN J. THOMAS, Respondents, v. GABRIEL SCHWAB and Others, Appellants.

      Practice — a report ca/rmot be sent bach to a referee for additional findings — Code of Oiml Procedure, sec. 1023 — General Buie No. 32.
    Since the adoption of section 1023 of the Code of Civil Procedure and the last amendment to General Rule No. 32, the report of a referee cannot he sent hack to him with instructions to make additional findings of fact or conclusions of law.
    Appeal from an order made at a Special Term, remitting the report made by the referee, before whom this action was tried, to him with instructions to add to his report and make a report of his findings as to certain questions of fact specified in the order.
    This action was tried before a referee who made his report on the 24th day of June, 1884, and delivered it to the attorney for the plaintiffs, the successful parties, and the attorney for the plaintiffs served a copy of the report upon the attorney for the defendants.
    On. the 5th day of August, 1884, the plaintiffs applied at Special Term for an order sending back the report to the referee for further findings of fact, which motion was denied. The motion was renewed before the same judge on the 7th day of October, 1884, upon additional papers and a letter written by the referee to the attorney for the plaintiffs, stating that he had found certain facts which were not included in the report of the referee.
    Upon these papers an order was granted, sending back the report of the referee for further findings of fact.

      Theodore H. Swift, for the appellants.

      W. L. Vam, Denbergh, for the respondents.
   By the Court.

In Gormerly v. McGlynn (84 N. Y., 284) it was held that section 1023 of the Code Civil Procedure had abolished that part of Rule 32 as it then existed which permitted findings of fact to be made on the settlement of a case. That rule has now been modified to conform to those sections. And it has further provided that after a court or referee has made and settled the findings and conclusions requested before the submission of the action for decision, he shall not make additional findings of fact or conclusions of law. This new provision in Rule 32 did away with the practice which had existed of sending a report or decision back to the referee or court for further findings or conclusions. It was felt that after an action had been once decided by the court or referee, it was dangerous to permit an attempt to modify the decision by new findings or new conclusions; that the report or decision was like the verdict of a jury after they had been discharged. If the referee or the court is to make further findings or conclusions, is there any reason why the parties should not be heard before him as to those findings and conclusions? This would result in a retrial. We cannot limit the matter, and say that the report or decision may be sent back to remedy accidental omissions. If sent back* at all, why may not the court or referee change his former findings and conclusions altogether; or at least add such findings and conclusions as will quite reverse the former result. In the late revision of rules the justices deemed the practice unsafe and did away with it; if indeed 1 it was not done away with by sections 1023 and 993, the revisers note to the contrary notwithstanding. This is the view taken in Bamc v. Neuss (2 Civ. Pro. R. [Browne] 185) by the General Term of the First Department. Palmer v. Phœnix Insurance Company (in this dept., 24 Hun, 138) held that the court or referee could not be permitted to make additional findings of fact or law on the settlement of the case. That decision by analogy applies here.

Order reversed, with ten dollars costs and printing disbursements, and motion denied with ten dollars costs.

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

So ordered.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL F. COLLINS v. JOHN D. SPICER, as Comptroller, etc.

      Practice — a/ppeal from, an order of General Term, modifying a peremptory writ of mandamus— Code of Oivil Procedure, secs. 190, 191, 1356, 2070.
    Appeals from an order granting, in the first instance, a peremptory writ of mandamus are taken as from an order, not as from a judgment.
    The provisions of subdivision 3 of section 191 of the said Code have no application to such an appeal.
    Application for leave to appeal to the Court of Appeals from an order of the General Term modifying, and affirming as modified, an order of the Special Term awarding a peremptory writ of mandamus.

      Wm. J. lioche, for the motion exponte.

   By the Court :

This was an application for a writ of mandamus. A peremptory writ was granted on affidavits, and in the first instance by the Special Term, September, 1883. (Code, § 2070.) An appeal was taken from the order granting the writ, and was argued at the November term, 1883. It was decided at the January term, 1884. The order of the Special Term had commanded the defendant to countersign two bills, one for $1,016.39, the other for $405.75. The order of the General Term reversed that of the Special Term as to the former, and modified it as to the latter by reducing the amount from $405.75 to $398.25. It is stated by the defendants’ counsel that the order upon the decision of the General Term was not drawn up until November or December, 1884; that it was filed in December, 1884. The order is entitled as of November term, 1883. The relators appealed December 8, 1884, to the Court of Appeals from so much of the order of the General Term as reversed the order of the Special Term. The defendants’ counsel now applies for an order allowing him to appeal under Code, section 191, subdivision 3. On reference to section 2087 it will be seen that a distinction is made between proceedings where an alternative writ is first issued, and then a peremptory writ, and those in which a peremptory writ is issued in tbe first instance. In the latter case that section provides' that an appeal is to be taken as from a final order made in a special proceeding. In the former case it is to be taken as an appeal from a judgment. In the present case there is no judgment. There is an order of the Special Term granting a peremptory writ; and an order of the General Term modifying the former,, but still granting a. peremptory writ. Indeed all the papers show, that the parties have treated the matter in this light. By the section above cited, therefore, the appeals are taken as from an order in a special proceeding, first under section 1356 to the General Term, then under section 190, subdivision 3, to the Court of Appeals. It appears to us, therefore, that section 191, subdivision 3, does not apply, as there is no judgment.

Application is denied.

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

Motion for leave to go to the Court of Appeals denied.


author: By the Court .

text:
    In the Matter of the Estate of CALEB S. DICKERMAN, Deceased. HARRIET N. DICKERMAN, Appellant, v. MARK S. DICKERMAN, as Executor, etc., Respondent.

      Devise of a remainder to a widow for life with a right to use pa/rt of the principal— construction of such a clause — when the surrogate cannot compel the widow to account.

    The defendant’s testator gave to his wife the use, interest and income of all his-estate remaining after the payment of his debtá; and in addition thereto gave and bequeathed to her, aiid authorized her to use, such part of the principal of his estate as she might from time to time in her judgment require to properly support and maintain her in manner and style suitable for one'in her station in life, “the same to be in lieu of dower.” He also directed that the funeral charges of his wife should be paid out of the principal of the estate. The rest, residue and remainder of his estate he gave to the children of a brother.
    Held, that the wife was to determine what part of the principal was required for her.proper support and maintenance, not the executor or the surrogate.
    That the surrogate had no power to compel her to account for the amount received' by her.
    That she was entitled to receive such amount as she required for future expenses, and was not required to first make advances from her own funds and then apply to the executor for reimbursement.
    Appeal from a decree of the surrogate of Rensselaer county.
    Caleb S. Dickerman died, leaving a will by the second clause of which it was provided as follows :

      Second. I give, devise and bequeath to my beloved wife, Harriet N. Dickerman, the use, interest and income of all my estate remaining after payment of my said funeral charges, debts and expenses -of administration, during her natural life; and, in addition thereto, I give, devise and bequeath my said wife, and authorize her to use such part of the principal of my said estate as she may from time "to time, in her judgment, require to properly support and maintain her, in manner and style suitable for one in her station in life. The same to be in lieu of dower in my estate. And I further direct that the funeral charges of said wife shall also be paid out of the said principal of my estate.
    On July 14, 1884, the appellant petitioned the surrogate of Rensselaer county, under section 2717 of the Code, that the respondent, who is the executor of her husband’s estate, pay to her $850 expended by her for support, also $300 every half year there after. On the return day objections were filed by the respondent and the appellant was ordered to account for said expenditure of $850. On September eighth she filed her account for $788, to which respondent filed objections. On October twenty-fourth she filed a further account for $669.15. The matter was submitted, and on December second the surrogate made his decree granting her petition that the executor pay to her $658.20, being at the rate of nine dollars and fifty cents per week for the period from September 2, 1882, up to January 1, 1884, on her legacy for support to January 1, 1884, and denying her petition that he pay to her $300 each half year thereafter, but granting to her permission to apply to the court from time to time for repayment of the moneys expended by her.

      Robert H. McClellan, for the appellant.

      Irving Raynor, for the respondent.
   By the Court .

The executor is, perhaps, correct in saying that the widow did mot take a fee, and that there was a valid remainder over after her death. (Although on that point see Campbell v. Beaumont, 91 N. Y., 464.) But that does not settle the question. The testator gave the widow the use, interest and income of all his estate, after payment of debts, etc., during her natural life.' And his will stated that in addition he gave her and authorized her to use “ such part of the principal of my said estate as she may, from time to time, in her judgment require to properly support and maintain her in manner and style suitable for one in her station in life.” There is nothing in the will inconsistent with this clause, which plainly leaves it to the judgment of the widow to determine how much she needs. The executor urges, to the contrary, the clause saying that this is in lieu of dower. But that clause is important to relieve the real estate. He also urges the clause that the widow’s funeral expenses are to be paid from the principal. But clearly the widow can, in exercising her judgment, leave enough of the principal for this purpose. He also urges the gift over of the rest, residue and remainder. But, on his own' construction, the surrogate can allow to the widow payments from the principal. Therefore, the gift over does not deprive her of some part of the principal. The •only question is, whether she is to determine how much she' requires, or whether the surrogate is to do this.

There is no mistaking the language of the will. And it was highly proper. The widow is about sixty years old; the estate is bout $5,000; the annual income about $170. The testator evidently saw that the income might not be enough for his wife. He had confidence in her judgment, and he was willing and desirous that she should use what m her judgment she required of the principal. There are probably no children of the testator, as the remainder is given to nephews and nieces.

Whether that remainder is valid, or whether the widow takes a fee, and can dispose of the principal (or whatever may remain), by ■deed or will, is not a question now before us. It is enough that the testator has declared that she may use such part of the principal as in her judgment she may from time to time require. She was under no obligation to render any account to the surrogate of her expenses; and the requirement of such an account was manifestly improper. Nor is the widow to be restricted to receiving a reimbursement of moneys from time to time expended by her. She is entitled to have what she requires, in order to use it; not merely to reimburse what she has used of her own money.

The decree of the surrogate should be reversed. The executor should be required to pay the widow $850, the amount she required for past expenses, and to pay to her the amount she requires from time to time, which, at present, she states to be $300 each half year. "We think, also, from the position which the executor bears to the-■persons in remainder, that he should be personally charged with the-costs of the widow in the Surrogate’s Court and on this appeal.

Present — Learned, P. J., Bookes and Landon, JJ".

Decree reversed, executor allowed to pay petitioner according to-opinion ; costs of petitioner before the surrogate and on appeal to be paid by executor personally.- Order to be settled by Learned, P. J.


author: Learned, P. L:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. that Portion of the CAYUGA NATION OF INDIANS Residing in Canada v. THE BOARD OF COMMISSIONERS OF THE LAND OFFICE OF THE STATE OF NEW YORK, Respondents.

      Treaties between the State and Indian tribes — right of a portion of the tribe to enforce payment of their part of an annuity — their claim must be heard and determined' by the board of land commissioners —1841, chap. 234, sec. 4.
    Upon the application of the relators, who claimed to be that portion of the Cayuga, nation of Indians residing in'Canada, a writ of certiorari was issued requiring, the board of commissioners of the land office to return all petitions, papers and documents pertaining to an application made by the said relators io the said board to receive their share of an annuity which the State of New York had' by treaties agreed and promised to pay forever, which application had been rejected by the said board.

      Held, that section 4 of chapter 234 of 1841 imposed upon the board the duty of' hearing and determining the application made by the relators.
    That the fact that since the war of 1812 no portion of the annuity had been paid' to the Canadian branch of the nation, on the ground that they had taken part in that war against the United States, did not authorize the rejection of their claim, if it were otherwise well founded, as it did not appear that the debt. due to them had been confiscated either by the State or the United States government.
    That the right of the relators to recover a portion of the annuity under the original treaty made with the whole nation could not be affected by the provisions of treaties subsequently made by the State with portions of the nation, to which the relators were not parties.
    Certiorari issued to review tlie decision of the board of commissioners of the laud office rejecting an application made by the relators. The writ required the board of commissioners of the land ■office to return all petitions, papers and documents pertaining to an application made by the relators to the said board to receive their share of an annuity which the State of New York had by treaties agreed and promised to pay forever, which application had been rejected by the said board.
    The relators, claiming to be that portion of the Cayuga nation of Indians residing in the province of Ontario, Canada, presented their petition to the board of commissioners of the land office to be paid their portion of certain annuities which the State had agreed to pay that nation. The petition was dismissed upon the following opinion of the attorney general:
    « STATE OE NEW YORK:
    Office of the Attorney General, ) Albany, April 30, 1884. f

      To the Honorable the. Commissioners of the Land Office:

    Sirs.— In the matter of the petition and memorial of “that portion of the Cayuga nation of Indians residing in Canada,” referred to me for my opinion, I have the honor to report as follows.
    1. That by virtue of former treaties made at Fort Stanwix ■ and Cayuga Ferry, in the years 1790 and 1795, respectively, the people of the State of New York, in consideration of the cession of large tracts of lands by the Cayuga nation of Indians, engaged to pay to the said Cayuga nation the sum of $2,300 annually.
    2. That this annuity has ever since been, and is now, regularly paid by the State.
    3. That at the time of the making of the said treaties part of said nation resided in Canada, 'and came by request of the State to the councils held at the above-mentioned places to take part in the treaties. r,
    4. That a branch of the nation resided in the western part of this State, and yet another branch at or near Sandusky, Ohio.
    5. That that branch residing at Sandusky, Ohio, in or about the year 1831, moved west of the Mississippi, and have since nearly all died.
    6. That at the time of the making of the treaties above-mentioned, the head chief of the Cayuga nation of Indians was “ O-ja-geht-ti,” or Fish Carrier.

      I. That said chief, “ O-ja-geht-ti,” had [the keeping of the treaty.
    8. That said treaty is now in the care and possession of a chief, “ O-jar-geht-ti,” who claims to be a lineal descendant of the “ O-jageht-ti ” to whom was intrusted the treaty, and to be the present head chief of the Cayuga nation of Indians. He resides with the branch of the nation in Canada, and is one of the petitioners.
    9. That this annuity of $2,300 was apportioned among these different branches of the nation until and including the year 1809, that brafich of the nation residing in Canada receiving their proportionate share thereof.
    10. That at the time of the war of 1812 and 1814 the Canadian branch of the nation, being sub jects of the British crown, took part in the war against the United States.
    II. That, since, on account of their participation in the war of 1812 and 1814, as subjects of the British crown, no portion of the annuity has been paid them, but the whole sum has been distributed among the branches of the nation within the United States.
    12. That in April, 1882, these same petitioners, by their attorney, Hon. James C. Strong, petitioned to the then commissioners of the land office, your predecessors, claiming their proportionate share of all annuities that had been paid the Cayuga nation of Indians in the United States since said stoppage of payment to the branch of said nation residing in Canada in 1812, or thereabouts, and asking also that they receive their proportionate share of all future payments; which, petition was referred to the Hon. Leslie W. Bussell, then attorney general, who made a report to this board under date of September 22, 1882.
    13. That, acting upon that report, the said commissioners of the land office concluded that it was a matter that should come before the legislature of the State instead of their board, and denied the petition..
    14. That since that date the petitioners, through their said attorney, filed with the board of claims a claim for that part of the-annuities paid the Cayuga nation of Indians since 1812, or thereabouts, which, in his view of the case, should have been paid to that branch residing in Canada, and presented to your honorable board the present petition and memorial in reference to futv/re payments-of the annuity.
    15. That the board of claims have decided that they have no jurisdiction in the matter of the claim filed before them, and have-ordered it dismissed.
    16. That this whole matter has, at various times, been the subject of legislative discussion and action.
    17. That in 1849, upon a memorial of the chiefs and warriors of the Cayuga Indians residing in Canada, presented to the legislature, asking practically the same relief now demanded by the petitioners, as to future payments of the annuity, the matter was referred to the then board of land commissioners.
    18. That said board on the sixteenth of March of that year made an elaborate report to the legislature, in which the various treaties between the State and the said Cayuga nation of Indians were considered ; the reasons for paying the whole annuity to the-branches of the nation residing in the United States discussed, and the conclusion reached that such petitioners were entitled to the relief prayed for.
    19-. That said report, upon its receipt by the legislature, was referred to its committee on Indian affairs, but that no further action seems to have been taken thereon.
    20. To the report of the commissioners of the land office referred to, found in volume three of assembly documents of 1849, No. 165, to the assembly journal of that year, to the several treaties between the State and the Cayuga- nation of Indians entered into since 1812, to the report of-Hon. Leslie W. Russell, referred to above, and to numerous other State papers and references upon the same general subject, which-are scattered through the legislative records, your attention is respectfully directed.
    21. That the board of land commissioners undoubtedly have-jurisdiction of this matter, by virtue of the provisions of chapter 234 of the Laws of 1841.
    22. That the granting of the petition, however, involves questions of State policy which have been the subject of legislative con- . sideration from time to time for many years.
    23. That as á usage has prevailed so long opposed to the granting of the relief prayed for, and the legislature failed to adopt the recommendations in the formal report of your predecessors, mentioned above, it seems to me that your honorable board should now hesitate to exercise the authority thus delegate 1.
    24. That the State by later treaties, foi’mally entered into, has ■contracted to pay the entire annuity to the branches of the nation residing within the United States.
    25. That in the event of the present recipients of the annuity refusing their consent to its reapportionment, and the payment of a large portion of the sum which they have been so long in the habit of receiving to their Canadian brethren, either said later treaties and contracts must be repudiated, or an additional annual appropriation made to satisfy the claims of these petitioners.
    26. That in my opinion these are questions which your honorable board should not attempt to decide, but which should be relegated to the legislature, the body which alone can, by necessary .appropriation, effectuate any relief in the event that the claim of petitioners should be adjudged a just one.
    27. That it hardly peems proper to subject the present recipients of the annuity, as well as the petitioners, to the expense of attending before this board in support of their respective rights, when the legislature might, in the end, fail to carry out, by necessary legislation, the recommendations of this board, as they did those of your predecessors in 1849.
    28. I am therefore of the opinion that this is a matter that would more properly go before the legislature, the only body that has power to supplement its conclusions by proper legislation, and that your honorable board, for the reasons given above, should decline tc entertain the petition.
    Yours, very respectfully,
    D. O’BRIEN,

      Attorney General.”

      James O. Strong, for the relators.

      D. O'Brien, attorney general, for the respondents.
   Learned, P. L:

This is a hearing upon a return to a writ of certiorari by which the relators seek to review the action of the respondents in denying the relief asked in a petition presented to them by the relators. The first point made by the respondents is that the relators have no standing in court, inasmuch as they do not come either as indi_ viduals or in any corporate capacity. The reply of the relators to this is a reference to chapter 234, Laws of 1841. The fourth section of that act imposes on the respondents the duty “to hear and determine all questions which may arise in relation to moneys under the control of this State belonging to any Indian tribe or nation, or individual Indian or his descendants, or an j part or portion of them, and all questions which may arise between the various parties of such tribe or nation in relation to any of their lands in this State, or the avails thereof.” Section 5 gives power to the respondents to make arrangements with any tribe or nation of Indians, or with any part or portion of them, or with any individual Indian or Indians, who have any claim upon moneys belonging to them under the control of the State.

Here we have power given to determine questions and make arrangements with a tribe or nation, with individual Indians, and with a part or portion, or parties of a tribe or nation. This evidently contemplated the fact that there was, or the possibility that there might be, portions, or parts or parties of a tribe or nation, with whom arrangements should be made and questions determined, not quite as individuals but as bodies possessing some organization and capable of acting. It appears further, as a matter of fact, that there are distinct portions or parts of this tribe of Indians: one residing in Canada, one residing in New York, and one, quite small, west of the Mississippi, and that the respondents have from time to time made arrangements in regard to the money in question with some of these parts or portions of the nation. Thus a construction has been given to the act; a construction which seems reasonable and necessary when we consider the fact of this separation of the tribe into these parts or portions. It conld hardly have been intended that the arrangements mentioned in the act should be made with every individual Indian. But it must have been intended that these portions of the tribe might severally act in respect to these moneys as distinct bodies. It seems to us, therefore, that we ought not to dismiss this matter on the ground that the individual Indians are not petitioners. In fact the petitioners seem to claim that they really compose the nation, having among them the sachems and an hereditary head chief and three-fourths of the whole number of the tribe.

On the 25th of February, 1789, the State made a treaty with the-Cayugas, by which that nation ceded most of its land, in consideration among other things of $500, to be paid annually to the Cayugas and their posterity forever. On the 27th of July, 1795, a grand council of the Cayugas was held at Cayuga Ferry, at which were gathered the chiefs and warriors, as well those residing in the State, as those residing in Canada; and a treaty was made with the State, by which the Cayugas sold all their land, except three small pieces, for $1,800 annually. And it was agreed that these two annuities, making $2,300 annually, should be paid at Canandaigua^ It was agreed that the receipt for these annual payments should be indorsed on the counterpart or duplicate treaty in possession of the Cayugas. The head chief of the Cayugas is known as O-jageht-ti. And this duplicate treaty is now in the possession of the head chief in Canada, known by that name, who is the successor of the head chief living when the treaty was made. One of the excepted pieces of land was reserved to him, a piece one mile square at Cannogai.

In 1807 the Cayugas, for a consideration paid at the time, ceded all the reserved land except this piece of one mile square reserved to the head chief. In 1809 and 1810 a large number of the Cayugas, with their head chief and sachems, removed to Canada, making, with those already there, more than three-fourths of the whole, and they have remained there ever since. No part of the annuity has been paid to them since that time, because, being subjects of Great Britain, they took part in the war of 1812 against the United States. Some of the Cayugas who remained in the United States had removed to Sandusky, Ohio. Up to 1809 the annuity was apportioned among the three different branches; the Canada branch, the Sandusky branch, the New York branch, each receiving a portion. In 1829 an arrangement was made with the Sandusky branch, by which their share of the annuity was' to be sent to them. This portion of the nation was about to remove in 1831 beyond the Mississippi, and in that year another arrangement was made between them and the State, by which the State was .to pay them $1,700, and those residing near Buffalo $600. Several times since 1841 the board of commissioners of the land office have made apportionments of the annuity between the New York branch and the western branch, and the whole annuity has been distributed between these branches of the nation.

The petitioners now ask the board to hear them and to take evidence as to their right to a portion of the annuity, insisting that they number 850, while all who are in the United States are only 276; that among them is the head chief O-ja-geht-ti and the lawful chiefs or sachems, and that the head chief has the duplicate treaty in his lawful possession.

The board of commissioners admit by the opinion of the attorney general, which they adopted, that they undoubtedly have jurisdiction in the matter under the statute above cited. But they insist that the granting the petition involves questions of State policy; that a report made by the board to the legislature in 1849, favorable to the claim of the Canada branch, was not acted upon by the legislature ; that long usage is contrary to the petitioners’ claim, and that the subsequent agreements' to pay the whole annuity to other branches deprive the petitioners of their rights. These are the grounds, which appear in the return, for denying the petitioners’ claim. ‘

Upon the argument of this certiorari, however, the respondents insist that the Indians cannot sue or be sued in our courts. The statutory restrictions referred to by counsel seem to apply to Indians residing in this State and vvho are, therefore, under its protection. Nor can this restriction be intended to prevent the. respondents from discharging the duty imposed on them by the statute above cited. If that statute imposes a duty in respect to Indians, which the respondents refuse to discharge, there must be -a remedy in the courts to compel the respondents to do this duty.

We may further remark that this proceeding is not open to the objection that the petitioners are suing the State upon treaty rights. The petitioners are only seeking to compel the tribunals, which the State has itself appointed, to do the duty which the State has imposed upon it. We see nqthing in the statute already cited which forbids this court from exercising that control over the respondents in this matter, which it may lawfully exercise in other cases. There is nothing to indicate that the action of the respondents is beyond review by the proper authority; at least to the extent asked by the petitioners.

Again, it is said that, in'making the treaty of 1795 and those which preceded, the Cayugas acted in a sovereign capacity, as a nation, and that the rights thereby acquired are to be enforced only as other treaties are enforced between sovereign States. Now, we ought not permit words such as “ sovereign States,” “ treaties,” and the like, to conceal the real facts. The Cayugas were an independent nation of Indians, possessing a large amount of land in this State. The State by its “ treaty ” with them bought all (that is, substantially all) this land. We know that this purchase practically deprived the nation of its home, and resulted in its separation into three parts, and the removal of these parts to different places. We know, also, that the nation did not own these lands in the manner in which this State (for instance) owns lands. The State owns lands in absolute proprietorship, as an individual does. An individual may not trespass on' the land of the State. While, on the contrary, the lands of the Cayugas belonged to each member of the tribe, and each had the right of enjoyment and using the same. It is in recognition of this that the State has divided up and distributed the annuity among the branches, in some proportion to the numbers belonging to each branch.

This same idea is indicated by the fact that the annuity is payable to the Cayugas and their posterity forever.” Now, this word “posterity” would be applicable only if the payment were'to be for the benefit of the individual members who should compose, the nation. A nation is not said to have posterity. For the nation is perpetual, if it exists as a nation; and therefore when the yord “ posterity ” was used it indicated that a time was anticipated when there would be no longer a nation as such, though there would still remain the posterity of the individuals. We can hardly think of any people as a nation who have not a part of the earth’s surface belonging to them as such; and this is especially true of such a nation as the Cayugas were.

But this argument must take another form. It may be said that, granting the right of these several branches to present their several claims, inasmuch as they cannot, or do not, any longer act as one nation, yet such claims should be presented to the legislature and not to the courts. There might be much force in this if it was not that the legislature, by the statute already recited, had conferred power on these respondents to act in the matter and to adjust these claims. Certainly the State may give power to the board of commissioners to hear the matter, even though otherwise it would be a matter only for the legislative power; and the respondents admit their power to be undoubted. Now, in conferring this power on the respondents we must understand that the legislature intended to authorize them to do justice. It was not intended to commit to them any questions of State policy. Indeed it is difficult to see what questions of that nature arise. The war of 1812 is long passed. To pay these petitioners (if they show themselves entitled) will not be to give aid and comfort to an enemy. After a lapse of some seventy years it is not probable that there are many of these petitioners who fought against us. Furthermore there is nothing to indicate that this debt was ever confiscated to the State, or to the United States, during that war, even if we admit that the war had the effect to suspend the payment. It. seems to us, therefore, that there is no question of State policy to prevent the respondents from acting.

But, again, it is insisted that these respondents have made subsequent treaties (so to call them), by which the State has agreed to pay this annuity to other branches of the nation than those in Canada. In reply, we may say that these agreements cannot be properly treaties, since they appear to be made only with two branches of the nation, and those not the majority of the whole. -Nor does it appear that these are permanent arrangements, since changes therein have been made. Nothing is shown which indicates- that there have been made any arrangements which cannot be changed. The statute provides for the settlement of questions between tbe various parties of the nation. Suppose, after such settlement, one of the parties should become extinct. Can there be no new adjustment ? Furthermore, if these petitioners have a right to be heard, and they certainly come within the language of the statute, how can any aiTangement with another part of the nation to which they are not a party, or when they have not been heard, deprive them of their rights? The statute evidently estab lished the respondents as a tribunal to hear and determine these conflicting rights of the several portions of the tribe. The respondents, without hearing these petitioners, allot to the other claimants the whole amount in dispute; call such allotment a treaty, and, as a treaty, allege that it is conclusive against the petitioners. That is not just. They were charged with the duty of hearing and determining the questions. They have not heard and determined the question on the claim of these petitioners. But, furthermore, if by the action of these respondents the State has become liable to pay to the portions in the United States, that may increase the liability of the State. It does not diminish the claim of these petitioners. They stand on the treaty granting this annuity. For that annuity their ancestors sold their land. The State has had the consideration, and must pay the purchase-money. And the State must pay to the lawful claimants; not arbitrarily to those whom they prefer. If the State establishes a tribunal to determine who are entitled, these petitioners must be heard and their rights legally passed upon.

Suppose the treaties of 1789 and 1795 had never been made, all of these, who are now the posterity of the Cayugas of the date of those treaties, would have had their rights in this great property. All of them would practically have been owners of it. They should all have the same rights now in the annuity, which was promised in payment for the land. It matters not where they live, whether under this government or under that of England, their rights are the same. Nor does it matter that they are broken up into portions and can no longer be called one nation, or that their several rights are thus in conflict. So far as is possible, the rights of all should be protected, so that, in the way best suited to their habits, every family or every individual should enjoy the benefit of the annuity.

We are of tbe opinion that tbe relief asked by tbe relators should be granted. The exact form can be determined on settling the order.

Present — Learned, P. J., Landon and Fish, J J.

Order granted as prayed for by the petitioners; form of order to be settled by Learned, P. J.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. Z. S. WESTBROOK, Appellant, v. THE BOARD OF SUPERVISORS OF MONTGOMERY COUNTY, Respondents.

      Duty of bawds of supervisors to provide suitable accommodations fbr the swrrogate — if am, office is provided Tie cannot make the county liable for the rent of another one.

    The board of supervisors of Montgomery county provided a proper and convenient room and furniture for the use of the surrogate in the county court-house, at Fonda, and refused to provide one at Amsterdam, when requested so to do by the surrogate. Thereupon the latter made an order establishing the office at Amsterdam, and directed the sheriff to furnish a suitable office and furniture therefor at Amsterdam. Upon an application to compel the board of supervisors to pay the rent and expenses thereby incurred:
    Meld, that as the board had provided a proper office and furniture therefor, it could not be compelled to pay for any other.
    Appeal from an order, made at Special Term, denying the appellant’s motion for a peremptory mandamus and other general relief against the respondents, the board of supervisors of Montgomery county, requiring them to audit and allow his claim for $132.50 paid by him for rent, fuel and lights for the surrogate’s office at Amsterdam, Montgomery county, for the year 1884.
    The appellant is, and for several years last past has been, the county judge and ex-officio surrogate of Montgomery county, resid— ing at the village of Amsterdam in said county. The appellant • established his general office at Amsterdam village, where the public business is transacted whenever presented by any one having business in the Surrogate’s Court. The appellant has held, and holds, a regular Surrogate’s Court at his office in Amsterdam on every Saturday, and at the court-house in Fonda on every Monday, for the public convenience, and on any other days at his office in Amsterdam, whenever any business is presented.
    It was claimed that the public convenience required that the surrogate should hold Surrogate’s Courts at Amsterdam, not ouiy for the convenience of the people of the towns of Amsterdam and Florida in transacting their business there, but for the purpose of lessening the business of the court so that the people of the other towns could have their business more speedily and better attended to at Fonda on Mondays. The surrogate, the appellant, so determined, and in December, 1883, presented the matter to the board of supervisors of Montgomery county, and they then refused to make any'provision for accommodations for holding Surrogate’s Courts at Amsterdam. Therefore, on January 1,1884, the appellant -duly made and entered an order establishing the surrogate’s office at Amsterdam, and fixing times for holding the Surrogate’s Courts at Amsterdam and Fonda for the public convenience, and requiring the sheriff of the county to provide suitable rooms, fuel and lights, for holding the Surrogate’s Courts at Amsterdam, at an expense not exceeding $150 per year, inasmuch as the supervisors had neglected to make the proper provisions. The said sheriff, on January 2, 1884, made and delivered to the appellant a written order and authority for him to provide suitable rooms, fuel and lights, for holding such Surrogate’s Courts at Amsterdam, at an expense of $112.50 for rent of rooms, and twenty dollars for fuel and lights for the same per year; total, $132.50.
    In pursuance of said orders and authority the appellant procured a suitable room, which was appropriated and used for holding the Surrogate’s Courts for the year 1884 at Amsterdam, and necessary fuel and lights therefor, and paid therefor the sum of $112.50 for rent, and twenty dollars for fuel and lights; total, $132.50. The appellant duly presented his claim for said sums, to wit, the total sum of $132.50, to the board of supervisors of Montgomery county in November, 1884, duly verified and certified for audit, and they duly considered the same and wholly rejected and disallowed the claim. The supervisors say, in answer to the claim and to sustain their action, that they provided suitable, proper and convenient rooms at Fonda, New York, where the surrogate ought to hold his courts and transact ¡bis business, and tbat, bolding Surrogate’s Courts at Amsterdam accommodates principally tbe people of tbe towns of Amsterdam and Florida; tbat tbe relator carried on bis business as an attorney-at-law in tbe same rooms which be had rented to be used as a surrogate’s office, and tbat tbe county ought not legally to be required to pay the expense thereof.

      Z. 8. Westbrook, for tbe appellant.

      JEL. Dunkel, for tbe respondents.
   By the Court :

We are of the opinion tbat, by providing a proper and convenient . room and furniture at Fonda for the use of - the county judge and ^ surrogate, in which to bold court, the supervisors bad performed the duty imposed by section 31 of the Code. It is true, as urged by the relator, tbat by section 2505 the surrogate is required to execute the duties of bis office at such other times and places within bis county as the public convenience requires; tbat is, other times than those specified in tbat section, and other places than “ his office,” as the word is used in the previous part of the section. But we do not think this provision authorizes the surrogate to-require the sheriff under section 31 to provide a room and furniture, when the supervisors have provided one room and furniture and have refused to provide another. On the other band, it seems-to us from the papers tbat under the circumstances it would be very proper for the supervisors, considering the public convenience^, to provide the surrogate with a room for his office at Amsterdam as well as at Fonda. This, however, is a matter, as we deem it, for their decision, not for ours.

The order should be affirmed, without costs.

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

Order affirmed, without costs.


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    JOHN HEENAN, Appellant, v. THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY Respondent.

      ■County Court — jurisdiction of, over domestic corporations — Code of Civil Procedure, secs. 340, 341.
    The County Court of Albany county has no jurisdiction over an action brought against a railroad company incorporated under the provisions of the general act, where the principal place of business of the company is located in the city of New York, and the summons is there served upon one of the defendant’s officers.
    There being a want of jurisdiction as to the subject-matter, and not merely as to the party defendant, the defect is not cured by the appearance of the defendant and the service of an answer setting [up the want of jurisdiction as a defense
    Appeal from an order of the County Court of Albany county, dismissing the complaint.
    A motion having been made at the close of the trial for a dismissal of the complaint, the court reserved its decision and a verdict was rendered in favor of the plaintiff. Subsequently the court directed that the judgment entered on this verdict be set aside and the complaint be dismissed, with costs. The county judge delivered ■the following opinion:
    Nott, Co. J.:
    This. is an action to recover damages for personal injuries, caused by defendant’s negligence in operating its railway through Albany county.
    The case was tried and submitted to the jury, which rendered a verdict for the plaintiff. The defendant now moves for a new trial, and that the complaint herein be dismissed. Two questions are presented for the consideration of the court: First. Whether the court has such jurisdiction as to entertain the action; and second, If it has not, has the defendant waived, or is it concluded from ■raising the point % The complaint alleges that the defendant is a domestic corporation under our laws, and is engaged in the business of carrying freight and passengers for hire in various parts of the State, including the county of Albany, and that a part of its iline of road is located in this county. The answer of the defendant admits that it is a domestic corporation, and avers that - its principal place of business is and was, at and long before the commencement of this action, established by its articles of association and actually located in the city of New York; that its principal place of business never was established or located in the county of Albany, and that the summons was served upon defendant in the city of New York. It also puts in issue the various allegations in the complaint. On the trial it was established that the defendant, being a railroad corporation, operated its road through various counties of this State, including Albany county, and that by the articles of association, and in fact, its principal place of business is and was located in the city of New York, and that the summons herein was served upon one of the officers of the defendant in the city of New York.
    Corporations created under the laws of this State are residents of the State, and an examination of the adjudications of our courts will show that their residence may be localized into one county or exist in many counties at the same time. For the purpose'of ascertaining the place of venue in an action in the Supreme Court against a railroad company, any county in which it operates its road may be regarded as its residence. (Pond v. B. R. R. Co., 17 How., 543.) So with reference to an action in the Justice’s Court. (Belden v. The JV. IT. & B. R. R. R. Co., 15 How., 17; Sherwood v. The S. da W. R. R. Co., 15 Barb., 650.) So with regard to highway labor. {The People ex rel. B. R. R. R. Co. v. Pierce, 31 Barb., 138.) So for the purpose of taxation. (The People ex rel. B. db S. L. R. R. Co. v. Fredericks, 48 Barb., 173; 48 N. Y., 70.) If there was no special provision in regard to the County Court, these authorities would control us and we should hold the action could be maintained against the defendant in this county.
    The Code of Civil Procedure provides that for the purpose of determining the jurisdiction of the County Court, a domestic corporation or joint-stock association whose principal place of business is established, by or pursuant to a statute or by its articles of association, or is actually located within the county, is deemed a resident of the county, and personal service of a summons made within the county, as prescribed by the Code (§ 341), is sufficient. Our jurisdiction, therefore, by this provision, in the case of a domestic corporation, depends first upon the location within our county of its principal place of business, whether by force of a special statute, or its articles of association, or its actual location; and secondly, upon personal serv ice of the summons within the county upon one of those of its officers who may be served, under the Code of Civil Procedure, with a summons in an action against it.
    The provisions of the Constitution in reference to the County Court (art. 6, § 15) are broad enough to permit the legislature to confer this power upon the County Court, in cases of corporations doing business in the county, and that it is so is eminently proper to cover cases where large business enterprises are carried on within the county, and some of its chief officers are within the county, directing its important offices, although the principal office may be located in another county. {Gemp v. Pratt, 7 Daly, 197, distinguishing Zanders v. The S. I. R. R. Go., 53 N. Y., 450.)
    Here the principal place of business of the defendant, by its articles of association and in fact, is located within the county of New York, and the summons was not served in this county. The conclusion reached is that this court has not jurisdiction over the defendant.
    This brings us to the consideration of the second question: Has the defendant waived, or is it concluded from raising the objection ? The plaintiff insists that the defendant having answered and appeared generally in the action, although by its answer it raised the issue of its residence, it cannot now say that it is a non-resident of the county, as the court could acquire jurisdiction of the defendant by the service of the summons upon a proper officer of the company within the county, which could not be done in the case of an individual.
    I am of opinion that the allegations of the complaint as to residence were sufficient, and as the defect of which the defendant complained did not appear on the face of the complaint, he could not demur. (Code, § 488.) The objection to the jurisdiction was therefore properly taken by answer (Code, § 498 ; Holbrook v. Baker, 16 Hun, 176; Ma/yhew v. Robinson, 10 How., 162-5) and was not waived by appearance in the action and an answer therein setting up the objection. {Sullivan v. Frasee, 4 Robt., 620; Wheelock v. Zee 74 N. Y., 495, 498.)

      In opposition to the rule at common-law, under the Code a defendant may plead as many defenses as he has, whether, as formerly denominated, to the jurisdiction in abatement, or in bar. (Code, § 507, Sweet v. Tuttle, 14 N. Y., 465.) It follows, therefore, that the general appearance of the defendant, distinctly by its pleading giving notice of its intention to raise the question of jurisdiction, is no waiver, nor does it conclude the defendant from insisting on the want of jurisdiction of this court. (Landers v. The S. 1. R. B. Co., 53 N. Y., 450; Damdsburgh v. The Knickerbocker L. Ins. Co., 90 id., 526.) The cases cited by the plaintiff’s counsel, Paulding v. Hudson Manufacturing Company (2 E. D. Smith, 38), Ballard v. Burrowes (2 Robt., 206), Olcott v. Maclecm (73 N. Y., 223), do not apply to this case.
    An order must be entered granting the motion of the defendant, and the complaint should be dismissed.

      Barnwell R. Heywood, for the appellant.

      P. B. McLennan and Otto T. Banhard, for the respondent.
   By the Court :

The opinion of the learned county judge is full and conclusive. We should not deem it necessary to add anything if it were not that the plaintiffs counsel has very strongly urged the point that the appearance of the defendant is a waiver of the objection to the jurisdiction. The eounty judge has taken the proper distinction. The question is not one of jurisdiction of the person of the defendant merely. It is one as to the limitation of the power of the County Court. In addition to the cases cited by the learned county judge, we may refer to the remarks of Judge Gardiner in Burckle v. Eckhart (3 N. Y., 132 at p. 137).

The order should be affirmed, with costs.

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

Order dismissing complaint affirmed, with costs.