text:
    GEORGE C. WEED, Plaintiff, v. WILLIAM E. CALKINS and EDGAR C. MERCHANT, Executors, etc., of Clark P. Ives, Deceased, Defendants.

      Inability of obligors as between each other — right of cosureties to compel contribution— when the right to compel contribution to a deficiency judgment is not tabeen away by a failure to malee the person against whom it is sought a paurty to that action.

    In 1873 the plaintiff, the defendants’ testator Ives, De Lano and Harris, purchased a parcel of land for $10,000, the plaintiff owning one-quarter, Hairis one-half and Ives and De Lano together the remaining quarter. A joint and several bond, secured by a mortgage, in which they all united, was given to secure a portion of the purchase-money. Ives died in 1877. Thereafter, in an action brought to foreclose the mortgage, to which the plaintiff, Harris and De Lano, and Ives’ widow and heirs-at-law, but not the defendants, his executors, were madeparties, ajudgment for deficiency was recovered against the plaintiff, Harris and De Lano, which was thereafter paid by the plaintiff, Harris and De Lano being insolvent.
    In an action by the plaintiff to compel the defendants, Ives’ executors, to contribute towards the payment of the said judgment:

      Held, that the defendants were liable for one-eighth of the deficiency, and also for one-half of the amount which the plaintiff had been obliged to pay by reason of the insolvency of Harris and De Lano.
    That neither the death of Ives nor the fact that the defendants had not been made parties to the foreclosure action and that no judgment for deficiency had been asked or recovered against them therein, relieved them from such liability to the plaintiff.
    Submission of a controversy without action, under section 1279, et seq., of the Code of Civil Procedure.
    In 1873 the plaintiff, with defendants’ testator (Ives), and two others (Harris and De Lano), purchased land for $10,000, taking undivided interests therein as follows: The plaintiff, one-fourth; the defendants’ testator and De Lano together, one fourth, and Harris one-half.
    The same day, to secure a portion of the purchase-money, they all united in a joint and several bond and mortgage for $6,000, to be paid in six years, with interest annually. The defendants’ testator died in May, 1877, leaving a widow and heirs, and thereafter letters testamentary were issued to the defendants.

      The mortgage was foreclosed by an action, to which the plaintiff, He Lano and Harris and the widow and heirs of Ives were made parties, and judgment entered therein November 1, 1879. These defendants were not made parties. There was a deficiency on the foreclosure sale of $3,466.84, for which judgment was docketed January 27,1880, against the plaintiff, Harris and He Lano. Harris and He Lano are insolvent, and the judgment for deficiency has been collected of the plaintiff. The plaintiff now claims to recover of the defendants, as such executors, the sum of $1,708.42.

      Waldo & Grover, for the plaintiff.

      R. L. Hand, for the defendants.
   Bockes, J.:

It must be assumed, nothing being stated in the submission to the contrary, that the • parties have no unadjusted equities growing out of the payment down of the $4,000 at .the time of the purchase of the mortgaged premises, nor put of their use and occupation since the purchase. We must consider the case in the light of the facts stated in the submission, and of those facts only. On those facts there can be no question, as we think, as to this, that the plaintiff, Weed, is entitled to recover against the personal representatives of P. O. Ives, deceased, the one-eighth of the deficiency which the former was compelled to pay, in the foreclosure suit,- on his individual purchase, holding the latter as the individual purchaser of one undivided eighth of the premises. .

The legal presumption, from the facts stated, is that the debt evidenced by the bond was, as between the obligors, the individual debt of each, proportionate to their respective titles, specified in the deed of the lands to them, to secure the purchase-price of which the bond and mortgage were given. Ives was the purchaser of one undivided eighth, and so he should pay one-eighth of the purchase-price. On the bond executed by all, the plaintiff became the surety for Ives’ one-eighth of the whole debt, and, by reason of such surety-ship, the former was compelled to answer Ives’ obligation, to the extent of one-eighth of the deficiency on the mortgage foreclosure. As to this one-eighth, the relation between the plaintiff and Ives was simply that of principal and- surety, and it follows, of course, that the estate of Ives should make the plaintiff good for such sum as the latter was compelled to pay by reason of such suretyship. This is not a case of partnership; the rules of law applicable to that relation, where one partner has been compelled to pay an entire partnership debt, have here no application. As the case is here presented, the plaintiff’s rights against Ives’ estate are to be determined by the law applicable to the relation of principal and surety. In this view of it, we think it very clear that the plaintiff is entitled to judgment on this submission for the one-eighth of the deficiency, which amount he was compelled' to pay by reason of his suretyship for Ives.

But this conclusion does not cover the entire case. If the line of reasoning above adopted be sound, the plaintiff and Ives were co-sureties for De Lano and Harris, the other two obligors on the bond, for the part of the purchase-price of the premises which belonged to them respectively'to pay. De Lano was the purchaser of an undivided eighth, and Harris of an undivided fourth, and the plaintiff and Ives stood on the bond as co-sureties for them in that proportion as to the entire purchase-price. Now, De Lano and Harris having become insolvent, the plaintiff was compelled to pay their proportion of the deficiency on the foreclosure. Then, can he now claim contribution from Ives’ estate for any part of the sum so paid by him for those insolvents ?

The question is this, where there are several sureties, and one becomes insolvent and another pays the debt, can the latter compel contribution from the other solvent sureties? This question the law answers in the affirmative. Judge Story says that in such case the insolvent’s share should be apportioned among all the other solvent sureties. (Story’s Eq., §496. See, also, Clark v. Myers, 11 Hun, 608; Easterly v. Barber, 66 N. Y., 433, 439.) But it is also laid down that to authorize such apportionment, the action must be in equity, and the insolvent must be made a party. The principal necessity for having the insolvent before the court is with a view to establish the insolvency. Here the fact of insolvency is admitted, and in the form in which this case comes before the court, the defect of parties should be deemed to be waived. The parties have agreed upon a statement of facts under the Code, waiving the formality and technicalities of an action, and ask the decision of the court on the facts stated; and the court must declare their rights thereon; and this, whether they rest upon an application of legal or equitable principles. (Graves v. Brinkerhoff, 4 Hun, 305.) Had the action been brought in the ordinary way by summons and complaint, a defect of parties would have been waived, unless objection for that cause had been raised by answer or demurrer. So here the presentation of the case, on the submission without action, should be deemed a waiver of all formal and technical objections not material to a determination of the legal propositions referred to the court for decision.

An important question still remains to be considered. It is urged that the death of Ives, and the subsequent foreclosure of the mortgage given to accompany the bond, in which foreclosure suit Ives’ estate was not charged with a deficiency, operated to relieve the estate from all obligation on the bond to the holders thereof; and that Ives’ estate could be held for contribution by a cosurety on the bond only in ease liability thereon survived or continued against the estate in favor of such holder. Of course, the right of one surety to claim contribution from his co-surety can arise, in the absence of an express agreement between them, only where payment by him is made of a demand which they were equally under legal obligations to pay. (Tobias v. Rogers, 13 N. Y., 59.) The point of objection here is that the holders of the bond could not, after foreclosure of the mortgage, enforce it, because of the statute which provides that, after such bill shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the Court of Chancery.” (2 R. S., 191, § 153; Eq. Life Ins. Soc. v. Stevens, 63 N. Y., 341; Scofield v. Doscher, 72 N. Y., 491; Lockwood v. Fawcett, 17 Hun, 146; Matter of Collins, 17 Hun, 289.) This statute, it will be observed, does not discharge the debt. It only restrains its prosecution by a suit at law, except under permission from the court, now the Supreme Court which takes the place of the Court of Chancery. The mischief sought to be remedied by this provision was the enhancement of costs by a multiplicity of suits to recover the same demand. This case does not come within the spirit of this law, nor is it within its letter. The statute runs against the holders of the debt secured by the mortgage, and prohibits him from proceeding to enforce it in a particular way, unless under permission from the court. It does not embrace a case like that of the present plaintiff. His claim is not on the bond, but it rests upon an independent obligation, springing from his relation of co-surety-ship with Ives. Thus, the statute does not apply to this case, which has its counterpart, in legal effect, in Comstock v. Drohan (8 Hun, 373). In that case, Judge Daniels says this provision was not intended “ to prevent a party who had been compelled to pay the debt, either wholly or partially, from maintaining an action for his reimbursement, against another who had become liable upon an independent agreement to indemnify him and the learned judge adds, when she (the defendant) failed to pay, and it was paid by him (the plaintiff), on the judgment recovered against him. for the deficiency, it was so much money paid for her use, and which he was entitled to recover against her. The statute never was designed to reach a case of that kind, but to limit the party prosecuting an action to foreclose the mortgage to that proceeding, unless good cause could be shown for relief from the statutory restraint.” The judgment in this case was affirmed in the Court of Appeals (71 N. Y., 9), where the reasoning of Judge Daniels received direct approval. In the case cited, it is true, the obligation sought to be enforced was express, while here it is imposed by law. Still, it is as much a collateral obligation, and is just as binding in the one case as the other. It is not an obligation with which the holder of the debt secured by the mortgage had or has any concern. The statute cited does not afford the defendants in this case any protection against the plaintiff’s claim for contribution from Ives’ estate.

Nor can it be maintained that the decease of Ives discharged his estate from liability. The bond was joint and several. Liability thereon continued against his personal representatives; and in so far as the plaintiff and Ives held the relation of co-sureties therein, their obligation, as between themselves, was equal.

Our conclusion is that the plaintiff is entitled to judgment herein, (1) for the sum paid by him as surety for Ives, being one-eighth of the aggregate deficiency, and (2) De Laño and Harris being insolvent, for one-half of the sum paid by him for them, on his co-surety-ship with Ives, being one-sixteentb of said aggregate deficiency, and one-fourth thereof in the other. He is also entitled to interest on the amount so paid, with costs of suit.

The attorneys will doubtless agree upon the judgment to be entered; if not, it can be settled by one of the justices of the court.

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

Judgment for plaintiff, in accordance with opinion. Order to be settled before Bookes, J.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    THEODORE V. MASTEN, Plaintiff, v. JOHN OLCOTT and ADELAIDE OLCOTT, Defendants.

      Judgment in former action — only a bar as to the matters actually litigated — effect of a defendant in a Justice’s Court withdrawing a flea involving the title to land.

    One John Olcott, claiming to be in possession of a certain piece of land and to be a tenant of Adelaide Olcott, brought an action in a Justice’s Court to recover damages for a trespass committed thereon by one Masten. Masten alleged, and upon the trial offered to prove, that he had been in possession of the land for twenty years; but upon Olcott’s objecting that it would bring the title to land in dispute, he withdrew this defense, and judgment was entered in Olcott’s favor. Nothing was litigated before the justice but Olcott’s actual occupation and the amount of damages sustained. Thereafter this action was brought by Masten against John and Adelaide Olcott to recover the land.

      Held, that this action was not barred by the former judgment, as the question of title was not in any way involved or determined therein.
    That Masten did not waive or in any way prejudice his rights by withdrawing his offer upon Olcott’s objecting, instead of giving an undertaking and removing the action into another court.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term, after a verdict directed for the defendants at the Circuit.

      T. F. Bush, for the plaintiff.

      Thornton A. Fiver, for the defendants.
   Learned, P. J.:

This is an action of ejectment. The plaintiff claims title to a lot of some three acres. The defendant, Adelaide Olcott, claims title to a part of that lot, being about one acre. On the trial it was shown by the defendants that, prior to commencement of this action, John Olcott, claiming in his complaint to be a tenant of Adelaide Olcott of this acre, brought an action of trespass in a Justice’s Court, for injury done by Masten’s cattle to his crops. The complaint alleged possession only. The answer of Hasten denied the allegations, and averred possession in himself for the last twenty years. On the trial of that action in the Justice’s Court, Hasten offered to prove possession for twenty years. The plaintiff, Olcott, objected, on the ground that it would bring the title to the land in question. Hasten thereupon withdrew his offer. And the plaintiff, in the Justice’s Court, had judgment.

The justice testified that the question of title of the defendant was not- tried; that the question of occupancy for twenty years was not tried; that nothing was litigated but the actual possession and occupation at the time of trespass, and the amount of damage to the crop. •

Upon the trial of the present case, it was held by the learned justice that the judgment in the J ustice’s Court was conclusive as a bar. He directed a verdict for the defendant. That presents the only question here.

Although the complaint of John Olcott in the Justice’s Court averred that he was in possession, as tenant of Adelaide Olcott, yet such tenancy was not in issue in that court. All that was established by the verdict was his possession ; it might be as owner, or even as tenant for years under Hasten. Por, even as Hasten’s tenant, he could have maintained the action. Nor does it appear by the testimony of the justice that, as a matter of fact, it was shown that John Olcott claimed under Adelaide. It was enough for him to prove possession, unless Hasten showed a paramount and adverse title. (Ehle v. Quackenboss, 6 Hill, 537.) Nor have we a right to assume that, upon that trial, John Olcott was not shown to be a tenant of Hasten. (Green. Evid., § 528, etc.) It is that which is requisite to be proved and established in order to recover a judgment, and that only, which is res adjudieata and conclusive on the parties. (Blair v. Bartlett, 75 N. Y., 150; Toles v. Gardner, 11 W. Dig., 395.

Masten was precluded from drawing the title in question, and if it appeared on Olcott’s showing to come in question, the action would have been dismissed. (Old Code, §§ 58, 59.)

In Terrett v. Cowenhoven (18 Sup. Ct. N. Y., 320), it was held that a judgment rendered in summary proceedings before a county judge to remove one holding over after sale under execution, did not estop the person removed from asserting afterwards an equitable title, which he had to the land at the time of removal. And the reason was that the county judge had not jurisdiction to pass on the equitable rights of the party.

In the case of Boyer v. Schofield (2 Keyes, 628), two opinions were written. It does not appear which was the opinion of the court. But it does appear that when the court below excluded certain evidence,, on the ground that the justice’s judgment was conclusive, no exception was taken. The only question properly raised seems to be on the motion to strike out the evidence of the justice’s judgment, on the ground of want of jurisdiction. That case seems to throw little light upon the present.

But in Dawley v. Brown (79 N. Y., 390), the court say, in speaking of a prior action in ejectment: “ It may be shown by parol on what title it was rendered.” It is not the former recovery which constitutes the estoppel. It is the decision of the question which was in contestation between the parties.” Applying that to the present case, we see by the direct testimony of the justice that the title was not in dispute between the parties.

The defendant insists, however, that, as Masten might (as he assumes) have pleaded title, and thus might have transferred the litigation to a tribunal which had jurisdiction of questions of title, his neglect so to do is equivalent to a verdict against him on that very question. But Olcott had commenced the action in a court where the question of title could not be tried. Masten was willing to litigate upon the matters of which the justice had jurisdiction. It would not be just, therefore, that he should be precluded as to the questions which he did not litigate, for the reason that he might have litigated them in another tribunal, if he had given the bond to oust the justice. The claim must be within the issue, and must be passed upon to create a former adjudication. (East N. Y. and J. R. Co. v. Elmore, 53 N. Y., 624.)

Nor are we at liberty to assume that the title could have been brought in question if a bond had been given, because we are not informed by anything which is shown to have taken place in the Justice’s Court that at the particular time of the trespass Olcott was holding possession adversely to Hasten. The justice testifies that nothing but possession was shown. (Toles v. Gardner, 11 W. Dig., 395.)

On the whole, we think that a new trial should be granted, costs to abide event.

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

Motion for new trial granted, costs to abide event.


text:
    DUNCAN McDOUGALL, Appellant, v. JAMES L. TRAVIS, Respondent.

      Replevin — will not lie against one holding the property as the servant of another.

    An action of replevin cannot be maintained against a freight agent of a railroad company for a refusal to deliver freight to the consignee thereof until certain charges thereon have been paid, where he makes no claim to, and has no possession or control of the property except as the agent or servant of the company.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      M. J. Shoecraft, for the appellant.

      Charles Stebbins, for the respondent.
   Learned, P. J.:

A consignor shipped corn to the plaintiff by the New York Central and Hudson River Railroad Company. On its arrival at Canastota, and after the delivery of a part, the company, through the ■defendant, 'its freight agent at that place, refused to permit the delivery of the rest until the payment of five dollars per day for the use of the car for every day after twenty-four hours from its arrival at Canastota. The defendant had no possession or control of the corn, except as the agent or servant of the company. The plaintiff; brought replevin and took the corn. The referee found that he was not entitled to recover against the defendant, and directed judgment for costs. The plaintiff appeals.

The corn came lawfully into the possession of the New York Central and Hudson River Railroad Company, and it remained in their possession at the time when the action was commenced. It was not in the possession of the defendant, and he had no control over it, except as the servant of the company. As it was not in the defendant’s possession, it could not be rightfully taken by replevin against him. For instance, if one were in possession of furniture in one’s own house, a person claiming it could not maintain replevin against the servant who should refuse to deliver it on demand. Replevin is to be brought against the person in possession, not against one who is the mere servant of the possessor. None of the cases cited by the plaintiff are in conflict with this rule.

The plaintiff argues that whoever does the wrong is liable. He does the wrong who, being in possession wrongfully, refuses to surrender. He does not do the wrong who is not in possession. And it is not every exercise of physical power over the thing in question which constitutes possession.

The judgment should be affirmed; with costs.

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

Judgment affirmed, with costs.


text:
    In the Matter of the Application of THOMAS MURPHY for a Mandamus against the Comptroller.

      (Jompin'oller — power of, to audit bills approved by the Superintendent of the Insurance Bepa/riment — 1873, chap. 593, see. 2.
    Section 2 of chapter 593 of 1873 provides that “ all charges for making examinations of any insurance company, and all charges against any company by any attorney or appraiser of this department, shall be presented in the form of an itemized bill, which shall first be approved by the said superintendent,- and then audited by the comptroller, and shall be paid on his warrant, drawn in the usual manner, upon the State treasurer.”

      Held, that under the said section the approval of a bill by the superintendent was not conclusive upon the comptroller, but that the latter had power to examine and pass upon and readjust a bill approved by the superintendent and presented to him for audit and payment, as prescribed in the said section.
    Appeal from an order made at Special Term, directing a peremptory mandamus to issue, compelling the comptroller to audit the bill of the relator at $9,800. The claim was presented to the comptroller under the Laws of 1873, chapter 593, which provides, among other things, that “all charges for making examinations of any insurance company, and all charges against any company by any attorney or appraiser of this department, shall be presented in the form of an itemized bill, which shall first be approved by the said superintendent and then audited by the comptroller, and shall be paid on his warrant, drawn in the usual manner, upon the State Treasurer, to the person or persons making such examination.”

      E. Newcomb, for the relator.

      A. Schoonmaker, Jr., Attorney-General, for the People.
   Learned, P. J.:

The papers presented to the comptroller, and called in the moving affidavit an “ itemized bill,” are as follows: A charge against the Insurance Department, in favor of Mr. Murphy, for appraising nineteen pieces of real estate, owned in fee by the Manhattan Life

Insurance Company, and 209 pieces mortgaged to said company, in all 228 pieces, containing 776 lots.

Also the items of the charge:

For expense..................................... $837 14

For services, at the rate of one-seventh of one per cent, on appraised value, $6,274,000 ................... 8)962 86

$9,800 00

Also a schedule, giving records of mortgages, value of lands, etc., and amounting in all to only 213 pieces of land, of which the appraised value amounts in all to the sum above mentioned.

Now, without considering whether a charge, at a certain per eentage on the total appraisement, may not be said to be “itemized,” under the statute, it is plain that a gross charge “for expenses, $837.14,” is not “ itemized.” It does not state what the expense was, or its particulars. It affords no one any opportunity of examining into its correctness, or of deciding whether the expense was for proper or improper purposes. It is a noticeable circumstance that the charge for expenses is exactly the right amount, in odd dollars and cents, to make the wholq bill an even sum of $9,800.

But the more important question relates to the power of the comptroller in respect to this bill, if it had been properly “ itemized.”

The statute (§ 2, chap. 593, Laws of 1873) says that the itemized bill “ shall first be approved by the said superintendent, and then audited by the comptroller, and shall be paid on his warrant, drawn in the usual manner,” etc. The bill of Mr. Murphy, having been marked “correct” by the superintendent, was, in 1879, presented to the comptroller. ILe audited it at $720. Mr. Murphy refused to accept that sum, and again presented it to the comptroller in 1880. The comptroller declined to reaudit it, and Mr. Murphy brought this proceeding for a mandamus. The Special Term ordered a peremptory mandamus, requiring the comptroller to audit the bill at $9,800, and to draw his warrant accordingly, and the comptroller appealed.

The Revised Statutes make it the duty of the comptroller to examine and liquidate the claims of all persons against the State, in cases where provisions for the payment thereof shall be made by law. (1 R. S. [6th. ed.], m. p. 170, § 1, sub. 7.) And the present is a claim against the State, although the State is to be reimbursed. The general duty of the comptroller, therefore, would require an examination of this claim.

The word audit,” used in the act of 1878, undoubtedly means to hear and examine; to pass upon and adjust. Ve have it used in regard to supervisors, who are to audit accounts payable by counties, and in regard to town auditors, as to accounts payable by towns. (1 R. S., 355, § 46; 367, § 2 [4]; and see Chase v. Saratoga, 33 Barb., 603; People ex rel. Sherman v. Supervisors, 30 How., 173.) And the word plainly means a judicial investigation and decision as to the merits of a claim.

It is hardly an exception to this meaning that sometimes the law has determined the amount of the claim, and that the officer having the power to audit, is bound by that determination. The auditing officer is, in that respect, bound, as a jury would be bound in a similar case. If a claim were pending before a jury, and it appeared that the law, or some valid decision, had established its amount, the jury could not disregard the law, or such valid decision. And so, if the law has determined the amount of the present claim, or if the amount has been determined by some valid decision, then the comptroller is bound to follow that law, or that valid decision.

The, question then is whether the statute, in saying that the bill shall be approved by the superintendent, meant that his approval should determine the amount, as it were, judicially. It may be noticed that there is no express power given, either to the superintendent or to the comptroller, to take proofs as to the bill. And if any argument against the comptroller’s right to examine is urged on this ground, the same argument applies to the superintendent. Nor is there any reason to think that the superintendent would have any better knowledge as to the expenses, or as to the proper charges for such work, than the comptroller would have. If it were intended that the comptroller should exercise no discretion, why did this statute require him to audit % For the meaning insisted upon by Mr. Murphy, it would have been enough to say that the bill should be approved by the superintendent, and then paid o'n the comptroller’s warrant. There are no other claims referred to in this section of this statute than this bill; and it cannot, therefore, be said that this was only a general provision for auditing claims, the amount of which had not been determined by law. But the statute says expressly that these charges shall be audited by the comptroller.

Nor is there anything unreasonable in requiring the approval of the superintendent. It would be proper that a bill, before it was submitted to the examination of the financial officer of the State, should, as a preliminary safeguard, be required to have the superintendent’s approval. Not that such approval should be binding upon the State, as is here insisted, but to give a double protection against improper claims.

We are not referred to any case where the approval ” of an officer has been made the equivalent of an auditing. And where the auditing officer, as in this case, is one to whom such business is generally intrusted, it needs strong language to infer that such discretionary' power is taken from him. Where a statute simply requires that a bill of charges shall be first approved by one officer and then audited by another, we see no reason to construe the statute so as to make the latter requirement of no practical effect. We should rather construe it so that both requirements may stand.

The case of the People ex rel. Hoyt v. Supervisors (16 Wend., 520) is urged by the respondent as being in conflict with these views. In that case it was decided that the section (69,1 Rev. Stat., m. p. 615), which authorized the supervisors to increase or reduce damages on the opening of highways, did not apply to the provisions of an act of February 23, 1830, relative to highways in certain counties; and that, in those counties, the verdict of the jury was conclusive, in such cases, on the auditing board. This is only an illustration of what was said above, viz.: That an auditing board or officer may be bound by a previous decision of an authorized tribunal. But it does not aid in settling the present question; which is whether, under this statute, the intention of the legislature was that the “ approval ” of the superintendent should be a binding decision on the State.

So in the case of Morris v. The People (3 Denio, 382), if salaries of officers were determined by statute, the auditing board had no discretion. Just as in a suit by an officer for his salary, fixed by statute, a jury would have no discretion as to the amount. But Mr. Murphy’s compensation was not fixed by law, and the question is, to whom did the legislature intrust the determination ?

As to the case of The Amoskeag Manufacturing Company v. The Mayor, etc. (63 N. Y., 637), it is to be noticed that that was a common-law action against the city, and that a city may be- sued for any claim against it; in which respect it differs from a county. (Brady v. Supervisors, 10 N. Y., 260; Martin v. Supervisors of Greene, 29 N. Y., 645 ) The plaintiff had done work for the city through its fire commissioners, and sued therefor. The defense was that the chamberlain of the city was required to audit and pay the bills contracted by the fire commissioners; and that he had refused to audit the bill at its full amount. But the city chamberlain does not bear towards claimants that judicial position which boards of supervisors are declared to have, in the cases above cited, in respect to claimants against a county. For, as above remarked, a city may be sued like a private individual, and like a private individual is, in such a suit, bound by its contract. The City of Albany, in that case, through its fire commissioners, had contracted for work to be done by the plaintiffs. That work had been done and the city owed for it. The city could not defeat that claim by the refusal of its own chamberlain to allow it. If the claim had been one against the county, the audit of the supervisors would have adjusted the amount. (People ex rel. Johnson v. Supervisors, 45 N. Y., 196.)

But in the present case there is no one whom Mr. Murphy can sue. He has been appointed under the authority of the State, and his claim must be passed upon in such manner as the State may provide. So that the question only returns, how did the State provide that his claim should be passed upon; by the superintendent or by the comptroller ?

The case of The People ex rel. Outwater v. Green (56 N. Y., 466) only held that by the statutes relative to the city of New York, the comptroller and auditor had no power of supervision over, or review of the action of the board of supervisors. The case of Lanigan v. The Mayor (70 N. Y., 454) is but an affirmance of the same doctrine, viz.: That the board of supervisors was the auditing body, and that their decision could not be changed by the city auditor. None of these decisions throw any light on the question before us, viz.: "Whether the “ approval ” by the superintendent was meant by the legislature tó be a decisive auditing.

The learned court, in deciding this motion, said, that if the comptroller was empowered to examine into the justice of the charges, he might determine the whole claim to be unjust and wrong. But that argument equally applies to the position taken by Mr. Murphy. If the superintendent is to approve the claim, he may determine the whole claim to be unjust and wrong. Certainly the statute has given to one or the other of these officers the power, and has imposed on him the duty, of deciding whether the bill is right, and how much of it is right, and what ought to be paid. That power and duty necessarily involves the possibility of making a mistake, and of doing injustice. But that is not the question. We are brought back to the simple question, was the approval” intended to be conclusive, or was the bill still subject to an actual auditing by the comptroller ?

And here we may remark that to require the sanction of two of the officers of the State to a claim like this before it be paid would be nothing unusual. It would be analogous to the case of many claims against the United States. (United States v. Guthrie, 17 How. [U. S.], 284.)

We have, then, these facts and views: That the comptroller is the officer to whom the duty of examining many other claims against the State is intrusted ; that by this section of the act he is especially required to audit this claim; that such requirement is meaningless in the view taken by Mr. Murphy; that the superintendent is not required to “ audit,” but to “ approve ” ; that the meaning of the word “ audit ” is to examine and adjust; that the duty of actual auditing is modified only when a statute or a valid decision, or the equivalent, has already determined a definite amount; that the comptroller is as capable of examining and adjusting the claim as the superintendent; that it is not unusual to require the sanction of two officers to a claim; and that none of the decisions cited by the relator throw light on the construction of this section. We conclude that the order directing a mandamus to issue requiring the comptroller to audit and pay this bill at $9,800 was erroneous.

We do not understand that the comptroller refuses to audit the bill at some proper amount, or that lie refuses to pay tbe bill at tbe amount at which it has already been audited, although the affidavit seems to state a refusal to audit altogether. No point has been made as to whether the comptroller may not re-audit the bill at such amount as he may deem proper. (People ex rel. Johnson v. Supervisors, 45 N. Y., 200.)

But it would seem altogether incorrect, when a bill has once been audited by the comptroller, that we should direct a re-auditing, in the absence of any proof that the first audit was not just and proper. The relator has not insisted that the auditing already had was not made on good and sufficient evidence, or that the conclusion was not correct. He has only urged that the comptroller had power, not to examine, but only to pay the bill.

The order, therefore, should be reversed, with costs against the relator.

Boardman, J., concurred.

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

Order reversed, with costs against the relator.


author: Boardman, J.;

text:
    BRIDGET TOOMEY, Administratrix, Appellant, v. ALEXANDER S. TURNER and others, Respondents.

      Negligence — what contributory negligence on the part of the plaintiff will beer his action.

    Appeal from a judgment in favor of the defendants entered upon a nonsuit directed at the Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought for the alleged negligent killing of plaintiff’s intestate. The deceased was employed by the defendants in and about their coal and lumber yard. Going in between two coal cars standing on a switch in the yard he was crushed and killed by the moving of the two cars together, caused by pushing a lumber dar against one of them. The lumber car was moved upon the track by order of one of the defendants for their convenience. The deceased was between the cars for the purpose of urinating. The evidence further showed that he went there after the lumber car had been started, and that, if he had looked, he could have seen they were pushing it towards him. The evidence also showed that he was notified to help move the car, and promised to do so as soon as the others got there. That, if he had paid any attention to what was going on, he would have heard the noise made in getting the car started and in moving it towards him. ILe had been warned on three several occasions not to go between the cars for he would be liable to get hurt by so doing. The plaintiff was nonsuited on a motion made upon two grounds, first, the absence of negligence on the part of defendants, and, secondly, contributory negligence on the part of intestate.

      The court at General Term said: “ The case of Van SchaicTc, Executor, v. Hudson Rimer Eaib'oad (43 N. Y., 52Y) is so strictly analogous to the one under review that we must be governed by it. The circumstances in their legal effect were identical. In each case the persons killed were lawfully on the premises, knew of the sources of danger, and recklessly exposed themselves to injury by imprudently going between cars standing upon the track for a per-, sonal necessity. In each case the negligence resulted in death. Both were persons of mature years, conscious if not forewarned of the great danger, familiar with the locality, and knowing the liability of cars to be moved upon the track. Both, for a personal purpose, left places of safety and carelessly put themselves where harm came to them. On such facts, it was held in Van SchaicTc v. Hudson Ewer Railroad (siapra) as a question of law, that the deceased was guilty of contributory negligence, and the plaintiff should have been nonsuited.
    The case cited has been followed by this court in O’Meara v. Delaware and Hudson Ccanal Co. (18 Hun, 192), upon facts showing a similar act of negligence in passing between cars standing upon a track at a highway crossing.
    Without attempting to distinguish between these cases and those cited by the appellant, we feel that they are controlling upon us.
    The judgment and order must therefore be affirmed, with costs.

      Jacob Schwartz, for the appellant.

      E. B. Youmans, for the respondent.
   Opinion by

Boardman, J.;

Learned, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    Henry Merritt, Appellant, v. William Carpenter, as Administrator, etc., Respondent.

   Judgment reversed, new trial granted. Referee discharged, costs to abide event. Opinion by

Learned, P. J.


author: Bockes, J.

text:
    The People of the State of New York, Defendants in Error, v. Joseph Abbott, Plaintiff in Error.
   Judgment and conviction affirmed. Opinion by

Bockes, J.


text:
    Lucy E. Witter, Respondent, v. Ralph Brewster, Appellant.

   Motion for new trial granted, costs to abide event. Opinion by

Boardman, J.;

mem. by Learned, P. J.


text:
    Joseph Dorgan, Appellant, v. William W. Hartwell and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    John Corl, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


author: Boardman, J.

text:
    Martha A. Oliver, Appellant, v. Robert W. Livingston and Byron Pond, Executors, etc., and others, Respondents.

   Decree reversed in accordance with opinion, and remitted to surrogate for resettlement, costs to appellant out of estate. Order to be settled before Boardman, J. Opinion by

Boardman, J.


text:
    Harry Jansen, Appellant, v. Reuben Bernard, as Executor, etc., Respondent.

   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Abiel Stoddard and others, Administrators, etc., Appellants, v. James M. Gailor and others, Respondents.
   Judgment affirmed, with costs against appellants. Opinion by

Learned, P. J.


text:
    Benjamin F. Sweet, Appellant, v. Morgan S. Northrop, Executor, etc., Respondent.

   Decree reversed, advancement charged, costs of appeal against respondent. Order to be settled before Boardman, J. Opinion by

Boardman, J.


author: Bookes, J.,

text:
    Mary E. Newton, Appellant, v. Samuel M. Waller and others, Respondents.

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

Bookes, J.,

and by Boardman, J., dissenting.


author: Boardman, J.,

text:
    Jerome Messinger, as Executor, etc., Respondent, v. I. Newton Messinger and others, Appellants.

   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.,

and by Learned, P. J., dissenting.


text:
    Charles R. Westbrook, Appellant, v. William Gleason, Respondent, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Walter Jennery, Respondent, v. Aaron B. Olmstead and William H. Clement, Appellants.
   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Bookes, J., taking no part.


author: Bookes, J.;

text:
    Elmina Coffin, Administratrix, etc., Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.

   Order affirmed, with costs. Opinion by

Bookes, J.;

Learned, P. J., taking no part.


author: Learned, P. J.,

text:
    Henry G. Burleigh and Brackett W. Burleigh, Respondents, v. The Adriatic Fire Insurance Company, Appellant. Same, Respondents, v. The Gebhard Fire Insurance Company, Appellant.

   Judgment reversed, new trials granted, costs to abide event. Opinion by

Learned, P. J.,

and by Bookes, J., dissenting.


text:
    Dwight H. Furman, Respondent, v. Charles J. Johnson, Appellant. Same v. Same.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Osborn, J. ;

text:
    Edward Newcomb, as Receiver, etc., Appellant, v. Matthew Hale, Respondent, Impleaded with others.
   Judgment affirmed, with costs, on opinion of

Osborn, J. ;

Learned, P. J., taking no part.


text:
    Michael Feeney, Respondent, v. Garrett R. Pier and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Margaret Carovan, Appellant, v. Freeman J. Wallace, Respondent.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    George Young, Appellant, v. Horace K. Thurber and others, Respondents.

   Judgment reversed; new trial granted; referee discharged; costs to abide event. Opinion by

Bockes, J.


text:
    Joseph Sweet v. Betsey Loveland. Henry H. Hathaway, Respondent, v. Abraham Tuttle, Appellant.

   Judgments affirmed, with costs. Opinion by

Learned, P. J.


text:
    The President, etc., of the Delaware and Hudson Canal Company, Appellants, v. The Village of Whitehall and others, as Trustees thereof, Respondents.

   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Learned, P. J., taking no part.


text:
    Cyrus Devoe, Respondent, v. George H. Davis, Appellant.

   Judgment and order reversed, and new trial granted; costs to abide event. Opinion by

Bockes, J.


text:
    Rowland B. Bliven and Charles W. Jaines, as Executors, etc., Respondents, v. Emily Seymour and others, Respondents, and Amelia Crumb, Mary E. Crumb and Mott J. Crumb, Appellants.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Luther B. West, Appellant, v. Joel A. Hamilton, Respondent.
   Order denying new trial affirmed, with costs. Opinion by

Boardman, J.


text:
    Augustus W. Clapp and others, Appellants, v. Albert M. Low and others, Respondents.

   Motion for new trial granted, costs to abide event. Opinion by

Boardman, J.


text:
    Lyman Bradley v. James Manning.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    James W. Green and Nathaniel Bentley, Appellants, v. Delos Fry and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Andrew Dowling, Appellant, v. The Methodist Episcopal Church of Keeseville, Respondent.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Fayette C. Stevens, as Constable, etc., Appellant, v. Eliza Lapham, Respondent.

   Judgment of County Court reversed, and that of justice affirmed, with costs.


text:
    Richard F. McNair, Respondent, v. Henry B. Catlin, Appellant.

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

Learned, P. J.,

and by Bockes, J., dissenting.


text:
    Charles A. Langdon, Appellant, v. Rosealgine A. Guy, Respondent.

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

Learned, P. J.


text:
    Robert S. Hale and others, Appellants, v. John Fallon and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Boardman, J.,

and by Learned, P. J., dissenting.


text:
    Joseph Baum, Respondent, v. Harry D. Stone, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    William B. Fitch, as Survivor, etc., Respondent, v. William J. Best, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


text:
    Benjamin Stoker, Appellant, v. Hubbard M. Walters, Respondent.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


author: Bookes, J.

text:
    Garret Van Vranken, Respondent, v. Charles Bartold and Ira E. Frazer, Appellants.

   Judgment of County Court reversed, and that of justice affirmed, with costs. Opinion by

Bookes, J.


text:
    George W. Sheffield, Respondent, v. Charles S. Clark, Appellant. Caroline E. Sheffield, Respondent, v. Charles S. Clark, Appellant.

   —Judgments affirmed, with costs. Opinion by

Learned, P. J.


text:
    Abram B. Close, Respondent, v. Thomas Brennan and Charles L. Clark, Appellants.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Seth Pope, Respondent, v. Elijah M. Allen, Appellant.

   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Joseph Beckwith, Respondent, v. Mary L. Bartholomew, Appellant.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Ann M. Sparling, Respondent, v. John H. Divine and Daniel R. Bonnell, Appellants.

   —Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Boardman, J.


text:
    Josiah Van Patten, Respondent, v. Village of Saratoga Springs, Appellant.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Henry Jacobie, Appellant, v. Casper Sweet and Eliza J., his wife, Respondents.

   Judgment affirmed, with costs. .Opinion by

Learned, P. J.


text:
    Stephen E. Calkins and Jane A. Calkins, Respondents, v. Daniel Vrooman, Appellant.

   Judgment reversed ; new trial granted ; referee discharged; costs to abide event. Opinion by

Learned, P. J.


text:
    Maryette Hansee, Appellant, v. Thomas Botsford and others, Respondents.

   Case stricken from calendar and judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. - Pierce v. Oatman Covell and others.
   Motion to dismiss appeal denied, with ten dollars costs.


text:
    Henry C. Adams, Appellant, v. Jacob C. Nellis, Executor, etc., of Peter G. Fox, Respondent.
   Order of Special Term reversed, and order of continuance granted as per order filed with clerk. Mem. by

Bookes, J.


text:
    Mary A. Fuller, Appellant, v. Charles Bogart, Respondent.

   Appeal dismissed, with ten dollars costs and printing disbursements.


text:
    In the Matter of the New York, Lake Erie and Western Railroad Company v. The New York, Lackawana and Western Railroad Company.
   Order of commissioners affirmed, with costs. Mem. by

Learned, P. J.


text:
    John W. Castell v. William W. Whispel.
   Motion denied, with ten dollars costs.


text:
    Simon Stern v. Pauline A. Scudder.
   Appeal dismissed, with ten dollars costs.


text:
    Sylvester Risley, Respondent, v. Ira Abbey, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    John McKenzie, Respondent, v. Catharine A. Swinburn, Appellant.
      William D. Clark, Respondent, v. The Same, Appellant.
   Orders affirmed in each case, with ten dollars costs and printing disbursements in each.


text:
    Jacob W. Mitchell, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

   Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People of the State of New York ex rel. Edward B. Long, Respondent, v. St. John Croft, Appellant.

   Order affirmed, with ten dollars costs and printing.


text:
    John L. Perry, Jr., Executor, etc., Appellant, v. The Community of Sisters, etc., Respondents.

   Motion denied, without costs.


text:
    St. Lawrence University, Respondent, v. Stephen Rood and others, Appellants.

   Judgment affirmed, with costs.


text:
    Calvin P. Wood, Respondent, v. Hoffman Fire Insurance Company, Appellant.

   Judgment and order affirmed, with costs.


text:
    Wilson McKeever, Appellant, v. Samuel R. Follett, Respondent.

   Judgment affirmed, with costs on authority of 18 Hun, 556.


text:
    Helen M. Winnie, Respondent, v. Warren Ferris and others, Appellants.

   Judgment affirmed, with costs.


text:
    Alice L. Hawver, Respondent, v. Elbert Richards, Appellant.
   Judgment affirmed, with costs.


text:
    In the Matter of the Accounting of William Dey Ermand, as Executor, etc.

   Motion denied, with ten dollars costs.


author: Davis, P. J. :

text:
    LESTER B. MILLER and MERRITT B. MILLER, Appellants v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Respondent.

      Bill of lading — {he printed portions are controlled by the written pants — when the earner is estopped from denying the receipt of the cvrticles specified in it.

    In November, 1878, tbe firm of E. W. Peek & Co. delivered to tbe defendant, at Kansas City, fifty-five barrels, and received therefor two bills of lading, partly printed and partly written. The printed portion acknowledged tbe receipt, in apparent good order (contents and value unknown) of tbe packages, consigned as marked and numbered in the margin, and in tbe margin was written, by tbe defendant’s agent, besides tbe address and marks, in one tbe words “articles, thirty ban-els eggs,” and in tbe other "articles, twenty-five barrels eggs.” In fact the barrels contained nothing but sawdust.
    Tbe bills of lading, indorsed in due form by E. W. Peck &.Co., and accompanied by drafts drawn upon the plaintiffs, were sent to tbe latter, who relying thereon, accepted and paid tbe drafts. Thereafter,- upon discovering that the barrels contained nothing but sawdust, they brought this action to recover from the defendant the amount so paid.

      Held, That tbe printed portions of the bills of lading were controlled by tbe written parts thereof, and that, as so construed, tbe words “ contents and value unknown,” meant simply that tbe condition or kind, and quality and value of the eggs were unknown.
    That as against a bona fide indorsee of the bills of lading the defendant was estopped from denying that tbe barrels contained eggs, and that the plaintiffs were entitled to recover.

      Appeal from an order sustaining a demurrer interposed to the complaint, and from a judgment entered thereon.

      Douglas Campbell, for the appellants.

      Elihu Root, for the respondent.
   Davis, P. J. :

The defendants by their lawfully authorized agent, in November, 1878, received at Kansas City, Missouri, from some person doing business in the name of E. W. Peck & Co., fifty-five barrels containing nothing but sawdust, and thereupon delivered to such person two bills of lading. The portions of the first bill, material to the question in this case, are as follows :

Kansas City, Mo., Nov. 1, 1878.

Received of E.W. Peck & Co. Consigned to order E. "W. Peck & Co., New York.

The following described packages, in apparent good order (contents and value unknown), consigned as marked and numbered in the margin, to be transported over the line of this road to the company’s freight station at , and delivered in like good order to the consignee or owner.

********

This receipt to be presented without alteration or erasure.

Marks and Consignee. Articles. Said to Weigh.

Order E. W. Peck & Co., New York, 30 bbls. Eggs. O. R. E.

c]. Star Union Line, Chicago. E. W. P. & Co., N. Y.

The portions of the second, pertaining to the question, were in like form in all respects except the part in writing, which is as follows:

Marks and Consignee. Articles. Said to Weigh.

[a] 25 bbls. Eggs. 4, 500.

Order E. W. Peck & Co., New York.

c|. Star Union Line, Chicago.

The words describing the articles as thirty barrels of eggs and twenty-five barrels of eggs, in the bills respectively, were written in by the agent of the defendants. All the residue of the bills, except the names of the shippers and consignees, were printed blank forms. These bills of lading were each indorsed in due form by E. W. Peck & Company, and were annexed to drafts purporting to be drawn by E. W. Peck & Company on the plaintiffs in the city of New York, which drafts were delivered to the Bank of Kansas City for collection; and the plaintiffs were notified that the fifty-five barrels of eggs had'been shipped by the defendants to the plaintiffs, and that E. W. Peck & Company had drawn against them for the sum of $495. The plaintiffs in due time received the bills of lading, and relying thereon, accepted and paid the drafts. Shortly after payment of the drafts the fifty-five barrels of sawdust arrived.in New York, and the plaintiffs discovered that they did not contain eggs and refused to receive the same. The fifty-five barrels of sawdust were of no value above the freight charges thereon, but that number of barrels of eggs would have been at that time, inclusive of all freight charges, of greater value than the sum paid by the plaintiffs upon the drafts.

There is no allegation of fraud on the part of the defendants, and there is no question but that they transported and offered to deliver the same packages and contents which they, in fact, received; nor is there any question but that the plaintiffs as assignees of the bills of lading received the same and paid the drafts in entire good faith relying upon such bills.

The question presented by the case is whether the defendants are liable for the damages sustained by the plaintiffs by their acceptance and payment of the draft. It is claimed by the defendants that the words “ contents and value unknown,” printed in the body of the bill, countervail the written receipts for thirty and twenty-five barrels of eggs, or have the effect to reduce those words to a mere declaration that it had received thirty and twenty-five barrels said to contain eggs.

We have not been able to find in the books a case similar to this in its facts. Most of the cases arise upon the question of the weight or quantity of the articles delivered differing from that stated in the bill oi lading; or upon the condition, at the time of the delivery, of the articles contained in the packages received. (Jessel v. Bath, 2 L. R. Exch., 267; In re The Columbo, 3 Blatch., 521; Shepherd v. Naylor, 5 Gray, 591; West v. Steamboat Berlin, 3 Clark, 532; Clark v. Barnwell, 12 How. [U. S.], 272; Barrett v. Rogers, 7 Mass., 299; Grant v. Norway, 10 C. B., 665; Meyer v. Peck, 28 N. Y., 598; Sears v. Wingate, 3 Allen, 103; Byrne v. Weeks, 7 Bosw., 372.) Under these authorities, as we understand them, the-defendants would not be liable if they had delivered the number of barrels called for containing eggs, because of any ill condition in which the eggs might be found, unless it could be shown that such condition was caused by the defendants’ negligence or fraud. But in this case the complaint avers that the defendants received no eggs, but simply a number of barrels containing nothing but sawdust, and on thus receiving the barrels of sawdust the defendants issued bills of lading with a written acknowledgment that they had received so many barrels of eggs. That part of the bill of lading was in writing. According to the authorities in this state, the 'written portions of such an instrument must control, where they are repugnant to the printed portions. (Leeds v. Mechanics' Ins. Co., 8 N. Y., 351; Harper v. Albany Ins. Co., 17 N. Y., 198.) The printed words, therefore, contents and value unknown,” as contained in these bills of lading, when read in connection with the written receipt, must be held simply to mean that the condition or kind and quality and value of the eggs were unknown to the defendants.

But we think that as between a bona fide indorsee of a bill of lading who has advanced his money relying upon it, the written portion of the receipt should prevail and the party issuing it must be held liable for the injury sustained by its falsity. It was said by Denio, C. J., in Meyer v. Peck (supra):There is, no doubt, an established distinction in favor of a bona fide indorsee, grounded upon the doctrine of estoppel. By signing the bill of lading acknowledging the .receipt of a given quantity of merchandise, the master has enabled his shipper to go into market and obtain money on the credit of the shipment, and cannot be permitted, as against a person so advancing, to set up his own or the master’s want of care at the expense of the endorsee. This results from the qualified negotiability of these instruments.” (See Dows v. Perrin, 16 N. Y., 325; Bates v. Todd, 1 Moo. & Rob., 106; Berkley v. Watling, 7 Ad. & El., 29.)

The case in which these remarks were made was held not to be within the rule thus laid down, but we do not see why the principle thus announced by the learned chief justice is not a sound one. In this case it is apparent that the Iona fide consignees of the bills of lading, who have relied upon the act'of the defendants and advanced their money upon the drafts, must suffer for the fraud of the shipper, or that the loss must fall upon the defendants, whose act enables the shipper to commit the fraud. It was clearly in the power of the defendants to protect themselves by receiving the barrels in such form us would not have misled or deceived the plaintiff. But in this case the written portion of the receipt indicates knowledge on the pait of the receiver. The plaintiffs had a right to assume that the barrels were known by the defendants to contain eggs of some sort, and were not merely fraudulent packages of sawdust. To hold otherwise seems to us to be opening the widest possible door for frauds of this character. The only mode in which assignees of bills of lading, or bona fide acceptors of drafts based upon such bills, can protect themselves, would be to refuse acceptance and payment until after the actual arrival and examination of the goods. Until then they can have no opportunity for self-protection. But such a rule would be seriously injurious to the vast amount of traffic now conducted upon such instruments. The carrier, on the other hand, has an ample opportunity, either by inspection of the articles, to know whether or not a deception is being practiced, or to protect himself and prevent the consignee from being misled, by the form of the bill of lading he issues. If he chooses to issue receipts for barrels or packages containing specified articles, it is not enough to deliver to a bona fide consignee, who has advanced money on the faith of the bill of lading, packages containing articles altogether different ■and of no value.

"We think the judgment should be reversed and the demurrer overruled, with leave to answer over in twenty days, on payment of costs of the appeal and of the demurrer.

Brady and Daniels, JJ., concurred.

Judgment reversed, demurrer overruled, with leave to answer over in twenty days, on payment of costs of appeal and of demurrer.


author: Davis, P. J.:

text:
    THE EVANSVILLE NATIONAL BANK, Appellant v. ADOLPH KAUFMANN and FERDINAND S. M. BLUN, Respondents.

      Letter guaranteeing payment of d/rafts— who may take advantage of it.

    The firm of Bingham Bros., distillers at Evansville, Indiana, were accustomed, to the defendants’ knowledge, to consign their products to one Fiegelstoch in New York and draw upon him as occasion required. December 29,1874, the defendants wrote from New York to Bingham Bros, a letter saying “any drafts that you may draw on Mr. A. Fiegelstoch of our city we guaranty to be paid at maturity.” Thereafter Bingham Bros, drew a draft on Fiegelstoch, and presented the same, together with the defendants’ letter, to the plaintiff, which discounted the draft, and forwarded it to New York, where it was dishonored. In an action brought against the defendants:

      Held, that the letter operated as a special promise to Bingham Bros, to pay the amount of any drafts drawn by them upon Fiegelstoch, which he refused to pay.
    That the discounting of the draft by the plaintiff, upon the delivery to it of the letter, rendered the plaintiff an equitable assignee of the promise contained in the letter, and that having an interest in the subject-matter the plaintiff could maintain the action to the same extent as its assignors could have done.
    When a letter is to be considered as a general agreement to guaranty all drafts to be drawn against a certain person, enforceable by the holders thereof, discussed and the authorities collated by Davis, P. J.

    Appeal from a judgment in favor of the defendants, entered on the report of a referee.

      William H. Scott and Asa Eglehart, for the appellant.

      G. E. Souther, for the respondents.
   Davis, P. J.:

This action was brought to recover the amount of two drafts, drawn by Bingham Bros., of Evansville, Indiana, on A. Fiegelstoch, of the city of New York, and bought or discounted by plaintiff at Evansville, and forwarded to New York for acceptance and payment by the drawee, by whom they were dishonored.

Bingham & Bros, were distillers at Evansville, and used and needed large credits in their business. Fiegelstoch was a consignee of their products, upon whom they were accustomed to and did draw as occasion required.

The defendants, with knowledge of these facts, made their letter of credit in the following words and figures:

New York, December 29, 1874.

Messrs. Bingham Bros., Evansville, Indiana:

' Dear 'Sirs. — Any drafts that you may draw on Mr. A. Fiegelstoeh, of our city, we guaranty to be paid at maturity.

Truly yours,

KAUFMAN & BLUN.

On the 5th and 10th of May, 1875, Bingham & Bros, drew on Fiegelstoeh two drafts of $5,000 and $2,500, at sixty and fifteen days respectively, and presented the same, with the said letter of credit to plaintiff, by whom the drafts were discounted in due course of business, relying upon the guaranty of defendants, which was delivered to and remained in the possession of plaintiff.

The referee disposed of the case altogether upon the question of the construction and effect of the letter of credit, holding that these were controlled by the case of Birckhead v. Brown (5 Hill, 634), which was affirmed by the Court of Errors; S. C. (2 Denio, 375), by an equally divided vote and without any opinion. It seems quite apparent, from the opinions given by the learned referee, both upon the motion to dismiss the complaint, and upon the final decision, that if he had not felt himself bound by the authority above mentioned he would have rendered judgment for the plaintiff.

To my mind it seems to be extremely clear that the object and purpose of the guaranty or letter of credit in this case was not to secure Bingham Bros, against loss of money or property they might have in the hands of Fiegelstoeh and draw against at any time or to indemnify them in their dealings with Fiegelstoeh. That object could and would, doubtless, have been expressed in a very different form if the defendants had entertained such a purpose only. The intention was, as it seems to me manifest by the language of the instrument, and even more clearly in the light of the surrounding circumstances, to give a general credit to the drafts of Bingham Bros, that might be drawn on the person named, so that they could and would be bought or discounted by the plaintiff or any other bank or party to whom they might be presented, to enable the drawers to raise the money as the needs and usages of their business should require. The words of the instrument are: Any drafts that you may draw on Mr. A. Fiegelstoch, of our city, we guaranty to be paid at maturity.” To be paid to whom ? Certainly to the holders of such drafts who shall present them for such payment. To be paid when ? At maturity; that is, when due according to the usage established by the commercial law. This is plainly a guaranty of payment by the drawee when due to the holder who presents the draft, and not a promise of indemnity of the drawer in case the drawee fails to pay.

The drafts ” contemplated are or may be negotiable paper under the law merchant, passing from hand to hand by delivery or indorsement, and with reference to that paper, with all its well known incidents, the defendants promise that it shall be paid at maturity if drawn by the drawers named and upon the specified drawee.

It is entirely sound in law, I think, to read this instrument as though its words were :

Any drafts that Bingham Brothers (of Evansville, Indiana) may draw on Mr. Fiegelstoch, of New York, we guaranty to be paid to (the holder and owner) on due presentation at maturity.”

In this case the letter of credit was presented to the plaintiff and delivered to it with the drafts when discounted, and it appears affirmatively in the case that the plaintiff acted upon the credit of the letter in purchasing the drafts of Bingham Brothers and paying therefor. These facts attach the guaranty to those specific drafts, and reduce the general promise, pro hac vice, to one of personal undertaking with the plaintiff in respect of their payment if duly presented. These views accord with numerous authorities. (Russell v. Wiggin, 2 Story, 213; Carnegie v. Morrison, 2 Met., 381; Boyce v. Edwards, 4 Pet., 111; Story on Bills, §§ 545, 546, and cases there cited.) Monroe v. Pilkington (14 How. Pr., 250), in which the question was elaborately examined by Justice Davies. And they are consistent with the Union Bank v. Coster's Executors (3 N. Y., 204); Benedict v. Sherill (Lalor’s Sup., 219); Lawrason v. Mason (3 Cranch, 492); Mason v. Hunt (1 Doug., 297). But these authorities are, as the learned referee shows in his opinion, not in accord with the more analogous case of Birckhead v. Brown (5 Hill, 634; S. C., 2 Denio, 375), and not wholly consistent with the views expressed by Dwight, Com., in Barns v. Barrow (61 N. Y., 41), in which the question was not very directly involved. It must, under this condition of the authorities, remain for the Court of Appeals definitely to settle the rule of this state in cases like the present. "We feel ourselves not at liberty to disregard the decision of the Supreme Court in Birckhead v. Brown (supra), although the decision of this court was barely affirmed by a divided court, in the court of last resort.

But we think this case may be determined upon another ground. In the view insisted upon by the respondents, the letter of credit in question in this case was a special letter or promise to Bingham Brothers. In that view it was a valid contract, for it would be so read by the law as to supply the consideration, so far as necessary, under the former statute of frauds. “ If you will d/ra/w on him, I will guaranty that any drafts you may draw on Mr. A. Fiegelstoch of our city will be paid at maturity.” Or it would be regarded as an original promise under the rule of Gates v. McKee (13 N. Y., 235), and the defendants held to the established construction of such instruments. (Douglass v. Reynolds, 7 Pet., 113; Rochester City Bank v. Elwood, 21 N. Y., 90; Rindge v. Judson, 24 id., 64; Lawrence v. McCalmont, 2 How. [U. S.], 426.)

The drafts drawn by Bingham Bros, are within the contract of defendants. That contract guaranteed to Bingham Bros, that they should be paid at maturity. They were not paid, and so, for the breach of the guaranty, Bingham Bros., if they had remained owners of or had taken up the drafts on their being dishonored, would have had a right of action against the defendants. If that right were not assignable at common law it was so in equity, and an assignment would have given plaintiff a right to bring an action for its own benefit in the name of Bingham Bros. The law of assignments is now changed and the real party in interest, under our Code, may bring the action in his own name. The sale of the drafts to plaintiff by Bingham Bros, and payment of their value gave complete title of them to plaintiff. The delivery of the contract of defendants, guaranteeing the payment of the drafts, was an equitable assignment of that instrument to the plaintiff, which operated when a right of action accrued to Bingham Bros, for breach of the promise that the drawee would pay at maturity, to transfer such right of action to plaintiff. There can be no question but that after a right of action had accrued to Bingham Bros, for non-payment of the drafts, that firm could have assigned that cause of action so as to enable any assignee to recover upon it in his own name in this State. In legal contemplation, such an assignment has been made. The letter of credit was delivered to plaintiff by Bingham Bros., upon sufficient consideration, and with intent to transfer its obligation, whatever it might have been or might become, for the purpose of protecting and securing the plaintiff.

A naked delivery even of a sealed instrument upon sufficient consideration and with intent to transfer an interest in it is a valid assignment of title ; and that the delivery in this case was antecedent to the time when the liability of defendants became fixed by the nonpayment of the draft can have no legal significance. The plaintiff was entitled to retain the letter on such delivery, even against Bingham & Bros., who could not rightfully withdraw it against the plaintiff’s consent, and the title became perfect as to both the inchoate and the perfected right of action, whenever the defendant’s promise was broken by the non-payment of the drawee. If the assignment be regarded merely as collateral to the drafts, nevertheless the plaintiffs took title sufficient to enable them to enforce the contract so far as necessary to protect their drafts. An instrument thus assigned may be sued by the holder who if not absolute owner, is a trustee with a beneficial interest. ■ Our conclusion is, therefore, that the question so ably discussed by the learned referee, as to the true nature of the contract, is not material to the final disposition of this case.

The plaintiff, as an equitable assignee of the letter of credit, with an interest in the subject-matter, can maintain the action to the same extent that his assignors could have done, and that, for anything that now appears in the case, would be for the full amount of the drafts.

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

Bradt and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event


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    ABRAHAM B. CONGER and MARY R. McC. CONGER, his wife, Respondents, v. SARAH M. DURYEE, Appellant, Impleaded, etc.

      Lease — acceptance of rent is a waiver of a piñor forfeiture — when the continued failme of a lessee to comply with a lease operates as a new forfeiture.

    Although the acceptance of rent by a lessor is a waiver of a forfeiture theretofore incurred by the failure of the lessee to pay taxes assessed against the premises as required by the terms of the lease, yet the failure of the lessee to pay the taxes within a reasonable time after the reception of the rent occasions a new forfeiture, for which the lessor may re-enter.
    Appeal from a judgment, entered upon a verdict for tlie plaintiffs, directed by the court.

      Carlisle Norwood, Jr., for the appellant.

      James A. Seamam, for the respondents.
   Davis, P. J.:

This was an action to recover possession of premises demised by a lease made on the 1st of May, 1850, for a term which would expire May 1, 1878. The action was begun September 12, 1877. The defendant, who is now appellant, answered November 17,1877, and after the expiration of the term of the lease served a supplemental answer, setting up that fact and claiming a renewal of the lease or compensation for improvements under its covenants. The complaint alleged a forfeiture under the covenants of the lease for non-payment of rent, and also for non-payment of taxes. On the trial the plaintiffs made no proof of non-payment of rent. It was admitted by the defendant on the trial that the taxes of 1875 and 1876 were unpaid at the time of the commencement of the action, and that on August 30, 1877, the plaintiffs paid the taxes of 1874, and the amount of those taxes has not been repaid to them. After the taxes of 1875 and 1876 were known to be in arrears and unpaid, and about the 1st of May, 1877, the •plaintiffs received from the defendant rent for the premises which accrued after default in paying the taxes. The defendant was in possession of the premises under an assignment of the lease, made to her as collateral security for certain loans. The default in payment of the taxes was subsequent to the assignment of the lease to her. The court, upon the trial, excluded all the evidence offered under the supplemental answer to show the value of the buildings that had been erected upon the premises, and to establish the counter-claim set up by the supplemental answer. This exclusion was, we think, entirely proper, if the plaintiffs established a right to re-entry at the date of the commencement of the suit. A forfeiture, if it then existed, was a complete answer in this action to the alleged counter-claim. The defendant did not seek to come in and be relieved from the forfeiture on such terms as a court of equity might think proper to impose, but claimed absolute and peremptory rights by virtue of the termination of the lease, on the ground that no forfeiture existed, or, in other words, that it had been waived by the plaintiffs and could not be enforced. Probably if the defendant had any rights in equity to be relieved from the forfeiture, and to have her interest in the buildings erected during the tenancy ascertained and paid for as provided for by the lease, her rights in that behalf are not lost by the judgment in this case, which proceeds upon quite different questions from those that would be presented in a proper action for relief. The case was disposed of upon the simple question whether the forfeiture for non-payment of taxes had been waived by the receipt of rents, which subsequently accrued under the lease.

It is undoubtedly a general rule that forfeitures for breaches of covenants in leases are waived by the acceptance of subsequently accruing rent, because the acceptance of the rent eo nomine is ordinarily a recognition of the continuance of the tenancy, and when it is made after the act of forfeiture by the tenant, with knowledge of the landlord of that act, it is a waiver of the forfeiture. The proper application of this rule would very clearly prevent the enforcement of the forfeiture in this case for non-payment of taxes during any time prior to the payment of the rent, and if the defendant, within a reasonable time after the plaintiffs received the rent, had paid the arrears of taxes, no forfeiture could have been claimed. But the obligation to pay was a continuing one, and»the court below undoubtedly held that the failure to pay the taxes within a reasonable time after the rent was received, was, under the covenant, a new forfeiture for such non-payment. This position seems to be sustained by the authorities.

In Jackson v. Allen (3 Cow., 220), it was held that to make a receipt of the rent operate as a waiver of forfeiture, the rent must not only be received after the forfeiture is incurred, but such rent so received must have accrued after that time, and this validates the lease only to the time when the rent so received accrued.

In Doe v. Bliss (4 Taunt., 735), the question was whether a lessor, who had reserved the right to re-enter on breach of covenants not to underlet, by waiving his right to re-enter on one underletting lost his right to re-enter on a subsequent underletting, and by waiving his right to re-enter on a breach of covenants to repair, lost his right to re-enter for a subsequent want of repairs. The court stopped counsel for the plaintiff, who would have shown cause against the rule, saying that the propositions were “ too strong to be made much of.” And in Bleecker v. Smith (13 Wend., 531), it was held that where there was a continuing covenant under the lease, the lessor was at liberty, at any time, to enforce the forfeiture when the default- exists or accrues after the payment of rent, but that the acceptance of rent waived all forfeitures up to that time.

This seems to us to be the true and reasonable construction of the covenants of the lease in respect to the payment of taxes. The covenant did not provide that the taxes should be paid at any specified time. By construction of law they were payable within a reasonable time, and any time would probably be reasonable which prevented the addition of any greater burden upon the land than the amount of the taxes imposed. Refraining from paying them might not be deemed a justifiable cause for enforcing the forfeiture at a time when some installment of rent accrued. But for a neglect continued subsequently to such payment so as to put in jeopardy the interests of the lessor in the demised premises, we see no reason why he should not be permitted to enforce the forfeiture.

We think that the ruling of the learned judge at Circuit was correct, and that the judgment should be affirmed.

Daniels, J., concurred.

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

Judgment affirmed.


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    SAMUEL SCOTT, Appellant, v. ROBERT C. BROWN. CAROLINE BROWN, as Executrix, etc., Respondent.

      Abatement — when an action may he revived after the defendant’s death — 2 B. 8., 447, §§ 1, 2.

    This action was brought against a plumber, for so negligently and improperly making certain repairs in the plaintiff’s house as to allow the gas to escape from the sewer into the house, and to seriously injure the health of the plaintiff and that of his family. The complaint further alleged that, in addition to the said injuries, the plaintiff’s five children were sickened and poisoned by the said gases; that three of them died, after a protracted illness, and that the plaintiff was put to great trouble and expense to provide necessary care, nursing and medical treatment, both for himself and his said children. The defendant having died after issue joined, the plaintiff moved to have the action revived against his executrix, and for leave to serve a supplemental complaint.

      jHeld, that in so far as the action was brought to recover damages for the injuries occasioned to the plaintiff’s person, it abated by the death of the defendant, but that in so far as it was brought to recover for the damages and expenses occasioned by the sickness of his children, it survived, and should be revived against the defendant’s executrix.
    Appeal from an order denying a motion for leave to continue this action against Caroline Brown, as executrix of the last will and testament of Robert O. Brown, deceased.

      E. P. Wilder, for the appellant.

      E. W. Southworth, for the respondent.
   Davis, P. J.:

This action was brought against Robert O. Brown, deceased, who was a plumber, for his so negligently and improperly making certain repairs to the plumbing of plaintiff’s house, that poisonous gases arising from the sewer came into the house through a hole left in the waste-pipe, and seriously injured the health of the plaintiff and his family. The complaint, after alleging certain injuries to the plaintiff’s own person, proceeds in paragraph five to allege as follows : “That in addition to the foregoing injuries, plaintiff’s five children aforesaid were sickened and poisoned by said foul gases and exhalations, and three of said children finally, after a protracted illness, and notwithstanding the most careful medical treatment and care, died in consequence of said poisoning. That plaintiff was put to great trouble and expense to provide necessary care, nursing and medical treatment both for himself and for said children,” etc. After issue joined the defendant died. A motion was made to revive the action against Caroline Brown, as executrix, and for leave to issue a supplementary complaint against her as such executrix. The motion was denied upon the sole ground that the cause of action alleged in the complaint did not survive.

Regarding the action as altogether one of tort for negligent performance of duty, the question whether or not it survives upon the the death of the defendant is controlled by statute.

The statute is in these words :

Section 1. “ For wrongs done to the property, rights or interests of another for which an action may be maintained against the wrongdoer, such action may be brought by the person injured, or after his death by his executors or administrators against such wrongdoer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects as actions founded upon contract.

§ 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.” (2 R. S., 447, §§ 1 and 2.)

These sections present the plain and common case of a statute establishing a general rule, and plainly specifying the exceptions which shall exist to the rule. The exceptions clearly make the case one for the application of the well known maxim, “ expressio u/nius est exelusio dlterius /” and no other exceptions to the general rule are therefore to be allowed beyond those expressly specified. In looking at the exceptions we find that “ actions on the case for injuries to the person of the plaintiff ” are among them. The case before us would have been when the statute was adopted, an action on the case for injuries to the person^of the plaintiff, in so far as it relates to his own personal injuries. It therefore would not be protected by the statute, but would abate upon the death of the defendant under the rule of the common law.

But the complaint also sets forth what would have been an action on the case for injuries, not to the person of the plaimbif \ but' to his five children, who, it is alleged, were sickened and poisoned by the foul gases and exhalations, whereby the plaintiff was put to great trouble and expense to provide necessary care, nursing and medical treatment for such children ; and he seeks to recover damages by reason of such care, trouble and expense.

This is a cause of action not at all within the exceptions of the statute, but clearly within its general provisions, for it alleges a wrong done by the defendant to the plaintiff’s property, rights and interest, and not to his own person. It seems to us to be clearly covered by the case of Cregan v. The Brooklyn Cross Town Railroad Company (15 N. Y., 192), which was an action by a husband against a carrier of passengers, to recover for the loss of services of his wife and for expenses paid in consequence of injuries to her person, resulting from defendant’s negligence while she was a passenger. In that case the Court of Appeals held that the action was grounded in tort. But they also held that it did not abate upon the death of the plaintiff, but might be revived in the name of his personal representative, because it was within the provisions of the Revised Statutes above cited preserved from abatement and was not included in the exceptions to that statute. That case cannot easily be distinguished from this.

Wade v. Kalbfleisch (58 N. Y., 282) can have no legitimate bearing upon the question before us. That was an action upon contract for breach of promise of marriage. It rested altogether upon ■contract, and could not be maintained at all without proof of the contract. The statute really had nothing to do with the question, because ex vi terrwmi it has no application to actions on contract. JBut it was held that, because under the established rules in respect of damages in such cases, the jury might (or might not) in their discretion, in addition to the pecuniary loss arising from the breach of the contract, give damages for injuries to the feelings and mental sufferings of the plaintiff, therefore the action should be regarded as one of injuries to the person, and would abate by the death of the plaintiff. There is no analogy between that case and the one before us, and we are therefore relieved from the duty off following it.

The relation of parent and child imposed upon the plaintiff the obligation to take care of the children in their sickness caused by the defendant’s “ wrongs,” and to incur the expenses attendant upon such sickness and their death. These were pecuniary injuries formerly recoverable in an action on the case, and not arising from any injury to the person of the plaintiff. We do not see any difficulty in the case arising from the fact that in connection with such injuries there were also original causes of action for ihjuries to his own person united in the complaint. If the court below had allowed the motion to file the supplemental complaint, those causes of action would doubtless have been eliminated from the complaint, or if they were not, the executrix would have had her remedy either before or at the trial, as she might have been advised.

We think the motion below should not have been denied, and the order must be reversed and the motion granted, with ten dollars costs and disbursements of the appeal, but without costs of the court below.

Brady, J., concurred.

' Present — Davis, P. J., and Brady, J.

Order reversed and motion granted, with ten dollars costs and disbursements of the appeal.


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    ELIAS JESSURUN, an infant, etc., Respondent, v. JAMES B. MACKIE and others, Appellants.

      Summwry proceedings — what errors of the justice must be reviewed by appeal — when the enforcement of an order for dispossession will not be restrained — appointment of a guardian ad litem in such proceedings for an infant defendant is proper.

    This action was brought to restrain the enforcement of an order made in summary proceedings by one of the justices of a district court of the city of New York dispossessing the plaintiff, and directing him to be removed from certain premises held by him under a lease. The action was based upon the refusal by the justice to appoint a gua/rdian ad litem in such proceedings for the defendant, who alleged in his answer that he was an infant.

      Held, that the action could not be maintained, and that the remedy of the plaintiff, if any, was by an appeal under section 2260 of the Code of Civil Procedure.
    That this was not a case in which, under section 2265 of the Code of Civil Procedure, an injunction should be granted to stay the execution of final judgment in an action of ejectment.

      Semble, that if the fact of infancy had not appeared in the proceeding, the remedy would have been by motion.

      Semble, that the justice erred in refusing to appoint a guardian ad litem for the infant, although there was no express provision of any statute or of the Code requiring him so to do.
    Appeal from an order made at Special Term granting an injunction pendente lite.

      G. H. Brewster, for the appellants.

      Benno Loewy, for the respondent.
   Davis, P. J.:

The respondent, Elias Jessurun, is the tenant of the appellant James B. MacMe, of certain premises under a lease executed by Mackie to him. Proceedings to remove him as such tenant from the premises for non-payment of rent were commenced in a district court of the city under title 2 of chapter 17 of the Code of Civil Procedure, entitled “ summary proceedings to recover possession of real property.” On the return day of the precept, the tenant Jessurun appeared and objected that he was an infant, and that no guardian ad litem had been appointed for him. The proceedings were adjourned until the following Monday, and on that day the tenant again appeared and put in an answer alleging that he was an infant, and asking that a guardian ad litem be appointed on his behalf. The justice ruled that no guardian ad litem was necessary in the case, and proceeded to the trial without appointing such guardian and made a final order for the removal of such tenant. Thereupon the tenant by Solomon Jessurun, his guardian ad litem, commenced this action against James B. Mackie, the landlord. George "W. Parker, the justice before whom the District Court was held, and Dennis McDermott, the marshal of said court, praying for a perpetual injunction against them from proceeding to enforce the order of dispossession and from removing him from the premises held by him under such lease. An order to show cause based upon the complaint and the accompanying affidavits, was made which contained a temporary injunction. On the return day of that order the Special Term, after hearing the parties, granted an injunction during the pendency of the action with costs of the motion. There is no provision in the proceedings under the statute known as the “ landlord and tenant act,” or in the provisions of the Code entitled “ summary proceedings to recover possession of real property ” for the appointment of a guardian ad litem, where an infant is proceeded against; but by analogy there does not seem to be much reason to doubt that such a guardian should be appointed by the court, where infancy is alleged and made to appear. The reason of the rule which requires the appointment of such guardian in actions and other proceedings is fully applicable to proceedings of this character. This was said by Johnson, J., in Boylen v. McAvoy (29 How., 278), to be the protection of such persons against what the law adjudges to be their own incompetency to choose attorneys or to conduct their own litigations with suitable prudence and discretion.” It certainly would have been the better course for the District Court, to have appointed a guardian ad litem when the answer of the tenant was interposed, and it was probably error for which the proceedings would have been reversed to refuse to do so. But that question by no means disposes of this appeal.

The failure to appoint a guardian in an action for an infant defendant is not a mere irregularity- which, the infant could waive before he arrived at his majority. It was, as a general rule under the former practice, an error of fact, for which, upon writ of error and assignment of error of fact, the judgment could be reversed. (Mockey v. Gray, 2 John., 192; Bliss v. Rice, 9 id., 160; Gosling v. Acker, 2 Hill, 391; Kellogg v. Clock, 2 Code Rep., 28.)

After the abolition of writs of error for errors of fact, the remedy in such cases in actions was held to be by motion. In McMurray v. McMurray (9 Abb. [N. S.], 315), the court held that, by analogy to the old practice, the. remedy ought to be limited to two years after the judgment, or after the disability ceased, and a motion to set aside the judgment was on that ground denied. In this case the question of .infancy was raised by the answer duly verified and by the decision of the court that the appointment of a guardian ad litem in such cases was not necessary. If this was error, the remedy was a plain one, to wit, by appeal under section 2260 of the Code. The tenant, however, resorted to an action in this court, to restrain the enforcement of the final order by perpetual injunction. Section 2265 prescribes the modes by which proceedings for the removal of tenants, under that title, may be stayed or suspended, both before and after final order, .and expressly enacts that an injunction shall not be granted before the final order in the proceeding except in a case where an injunction would be granted to stay the proceedings, in an action of ejectment brought by the petitioner, and upon the like terms; or after the final order, except in a case where an injunction would be granted to stay the execution of the final judgment in such an action, and upon the like terms.”

We think, under this provision, the court below was not authorized to grant the injunction in this case. It was an application after the final order, and it was not á case where an injunction would be granted to stay the execution of the final judgment in an action of ejectment. The remedy of the tenant in such an action would have been by appeal, where the fact of infancy appeared and had been ruled upon, so that the question of the correctness of the ruling would have been brought up by the appeal, or by motion to the court in such a case, where the fact of infancy did not appear. We think that no injunction order would have been allowable to perpetually enjoin the proceedings in such a case. The court would simply have set aside the judgment upon motion, or reversed it upon appeal, and there would have been no necessity for resorting to an independent action on the equity side of the court for a perpetual injunction. In fact such a proceeding, if allowed, would operate to deprive the plaintiff in such an action of all rights which would be preserved to him on the appeal or by motion. In this case, the tenant had a remedy (if in any mode) by appeal under the present Code, as he would have had under the former Code by writ of certiorari. Section 2265 prohibits the granting of an injunction in such a case as this. The tenant has mistaken his remedy, and the order of the court below must be reversed, with ten dollars costs and disbursements of the appeal, and the motion for the injunction denied, with ten dollars costs of the court below.

Brady and Daniels, JJ., concurred.

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

Order reversed, with ten dollars costs.