text:
    George Hyland and Johh Hyland as adm’rs of George Hyland, deceased, Appl’ts, v. Bernard Bayter, Mary Ann Baxter, Ella Baxter, Wendell Zimmer, and Bernard Baxter, as adm’r of Bridget Bayter, deceased, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1 Executors and administrators — Duty of — Supplies for family of INTESTATE.
    An administrator has no legal right to furnish supplies for the family of the intestate at the expense of the estate.
    2 Same — Trustees — Infants.
    When tlie rights of infants are involved, a trustee is usually held strictly accountable in the line of his duty as such, and equities are found in his behalf only in the event of entire good faith on his part, and when it is subservient to necessities of the minors beneficially interested.
    3 Same — Allowance for past disbursements.
    Allowance of credit for past disbursements will only be made in cases where the court would have permitted it to be made on previous application in behalf of the infant beneficiary.
    4 Same — Surrogates court — Accounting — Equities.
    Upon an accounting of an administrator as such, the Surrogates Court has power to consider the equities involved.
    Appeal from decree of Surrogate of Livingston county, made upon accounting of George Hyland, as administrator, etc., of Bernard Baxter, deceased. It appears that Bernard Baxter died intestate May 27th, 1862, leaving Bridget Baxter his widow, and three infant children, Mary, aged seven years, Bernard, aged two years, and Ella, aged seven months.
    And June 5th, 1862, Bridget Baxter, the widow, and George Hyland were appointed administrators. The personal estate consisted of livery property, amounting, as per appraisal and inventory, to $1,481. The administrator Hyland took possession of the property, and for a short time and until he could sell it, continued the livery business. He sold it in August, 1862, on terms of credit, which required monthly payments of $25 each and interest. The purchase money was received by him in installments and the payment was completed in September, 1866. An inventory was made shortly after the appointment of the administrators, but it was not filed until June, 1872, when it was done pursuant to direction of the order of the Surrogate, made in proceedings instituted by the guardian for the infants. There was no guardian for the infants until Wendell Zimmer was so appointed in May, 1872. And upon his petition the order was made pursuant to which Hyland filed his account as administrator. It was then referred to an auditor to examine and report thereon. Upon the hearing the evidence tended to prove that the widow and her family were substantially without means of support other than such as were derived from her services and the estate of the deceased, except that a small amount was also received by her from rents of a house in her possession. And that from time to time,the administrator, Hyland, furnished her with money, and articles of merchandize, and paid some taxes assessed to her on houses and lots in her possession.
    The auditor reported that the proceeds of the personal property which came to Hyland’s hands were . ' . $1,481 00 And interest as stated in his account . . . 140 00 Interest surcharged . ... . . 100 00 And receipts from use of the livery property, between May 16th and July 31st, 1862, . . . 151 87
    Making ..$1,872 87
    And that he should be credited with the payment of debts of intestate’s funeral expenses, and commissions, amounting to ..... $631 60
    Leaving in bis bands for distribution as of September 1st, 1867 . t? >£■- I-*to
    Treating one-third as paid to tbe widow Ox I-J- . 02 —T Cn
    Leaving for distribution to tbe next of kin . . $827 52
    Adding interest from Sept. 1st, 1867, to time of bis report, Sept. 19th, 1874, . . $415 28
    Less commission on that sum . . . 10 38
    ■- $404 85
    Producing a balance in bis bands . . . $1,232 37
    Tbe auditor found that tbe administrator Hyland paid the widow chiefly in articles of merchandize, with some money equal to the distributive shares of her and her children in the estate, being tbe same charged in bis account, intending such as payment of their distributive shares, but that such payment in bis opinion was unauthorized by law, and could not be allowed to him as a credit upon bis accounting as administrator in that court, that she received tbe money and merchandise, claiming them in her right as administratrix, and appropriated the same to the support of the minor children.

      And on bringing into court, the widow, as a party to the proceeding of accounting, the auditor afterwards made a further report that she had expended the distributive shares of the minor children “ in providing for their necessaries during their .minority, and that if she had expended the samé as their general guardian, the said payment would have been allowed to her on her accounting as guardian,” but that, in his opinion, she, as administratrix, had no legal right to make such payments, and such court had no power to allow such payments to the administrators as a credit. And consequently they must be jointly charged to them as against the next of kin, but that, as between the administrators, Hyland was entitled to a decree that the widow pay the same, and that she repay to him so muchas he shall pay to the next of kin. The surrogate sustained exceptions to the finding of the auditor that the money and merchandise received by the widow from Hyland were appropriated by her for the support of the minor children, or for their necessary support during their minority; and in other respects apparently confirmed the report. And decree was entered Dec. 22d, 1876, from which this appeal was taken by the administrator Hyland, who afterwards died, and the appeal was continued in the name of the present appellants. And the widow having afterwards also died, Bernard Baxter, as administrator of her estate, was substituted as a respondent.

      Oscar Craig, for app’lts; D. W Noyes and Chas J. Bissel, for resp’ts.
   Bradley, J.

The embarrassment of the appellants arises mainly out of the failure of their intestate to observe the statutory direction to him as administrator of the estate of Bernard Baxter, deceased. He as such took possession of the personal estate and converted it into money. He was called upon by the widow of the decedent, his co-administrator, for money and for merchandise and he furnished them to her. She and her three minor children constituted her family, and all of them remained at home with her for about five years after the death of her husband, when the eldest child, Mary, went out to work, and did so a considerable portion of the time thereafter. It may fairly be inferred or assumed that the money and merchandise so received by the' widow of Hyland was used by her in the support of her family, and that some benefit was thus received by all of the children. And it is quite evident, as the court below understood, that Hyland furnished to the widow the merchandise and money in ’ good faith believing that he was properly supplying the family with the means of support from the estate in his hands of his intestate, and that it was used for such purpose.

The family had no means of support other than from the labor of tbe mother and this personal estate in the hands of Hyland, except a small amount of rent received for use of a house, until the expiration of five years after the death of Baxter, when some relief was furnished by the absence and labor of the one daughter. The acting administrator had no legal right to hand over to his co-administrator any of the assets in his. hands or to furnish supplies for the family of his intestate at the expense of the estate. The infant children were not represented by any general guardian, and no one was entitled to receive for them any portion of the fund in his hands. And the question arises whether any equities exist in behalf of this administrator which fairly' require any allowance or credit to him as against the shares of the children in the estate.

When the rights of infants are involved a trustee is usually held to a strict accountability in the line of his duty as such. Howell v. Mills, 53 N. Y., 322. And equities are found in his behalf in case of departure from his legal duty in the event only of entire good faith on his part, and when it is subservient to the necessities of the minors beneficially interested. The denial of the right to break in upon the capital of funds held for infants, or to obtain reimbursement by the trustee, or guardian so doing, has been somewhat rigorously adhered to 2 Perry on Trusts, § 618, Walker v. Wetherell, 6 Vesey. 473.

But in this State that rule is not inflexible, and circumstances may arise to justify the impairment of the principal of the fund for maintenance, and when they have so existed and produced expenditure made in good faith, equitable considerations will be applied to reimburse the trustee. In re Bostwick, 4 John Ch. 100; Hill v. Hanford, 11 Hun, 536. Such allowance of credit, however, for past disbursements, will be given only in cases where the court would have permitted it to be made on prior application in behalf of the infant beneficiary.

While the failure of the administrator to file the inventory of the estate, or to render and settle his account until required by proceedings taken against him for those purposes, are circumstances of negligence and disregard of duty, they do not necessarily deny to him good faith and purposes in dealing with the fund. The personal estate which came to him was such that he was required to sell it on a long installment credit, which did not wholly result in proceeds to him until four years afterwards. And in the meantime the widow was calling upon him for money and goods for the use of her family, which he supplied, and which was thereafter continued in like manner. The view of the auditor as expressed by his opinion was, that the surrogate’s court had no power to consider the equities, if any existed, in behalf of the administrator Hyland, with a view to allowance to him of any credit for the moneys and merchandise so advanced by him. And the surrogate did not in his opinion expressly adopt or disaffirm that proposition. He placed tbe confirmation of the report on other grounds.

At all events the apprehension of want of power in that court to treat the equities claimed by Hyland, it seems, induced him to bring an action in the supreme court for such alleged purpose, in which he failing to get relief at the trial court sought review at the general term where the judgment was affirmed. Hyland v. Baxter, 31 Hun, 354. And on appeal to the court of appeals it was there held that the decree of the surrogate’s court was res judicata, because that court had jurisdiction to fully adjust and award any equities existing between the parties, and in behalf of Hyland, and that his remedy and relief, if he was entitled to any, must be found in the review of such decree, and the judgment was affirmed. 98 N. Y., 610. If it be assumed that the administrator was equitably entitled to allowance of credit in his account for moneys furnished by him to the support of the infant beneficiaries, there is some difficulty in making the apportionment between them, so as definitely, and correctly, to charge their respective shares with the amounts supplied.

This is one ground upon which the surrogate put his conclusion as appears by his opinion. And such was the view expressed in the opinions of the general term on review of the judgment in the action before mentioned on the facts there presented.

It is contended that by such decision the questions here were disposed of adversely to the appellants. That was a review of the findings of the trial court, and they were entitled to the most favorable vieAV which could legitimately be taken of them upon the evidence. And as appears by the determination finally made by the court of appeals, such question was not properly in the action for consideration.

Although the matter of the accounting and determination were theoretically had before the surrogate, the auditor was instrumental in taking the evidence and making the report upon which the decree was directed. And his view that there was no power in that court to. determine the equities, if any there were, excluded from his consideration that question. And it is not apparent that the surrogate entertained a contrary view of the jurisdiction of his court in that respect. The question at least was one then'not free from difficulty, and there is reason to apprehend that the subject of controversy here may not have received the attention which it would have had if the power to extend the inquiry beyond the legal duties of the administrator, and to equitable considerations, had been clearly assumed by the surrogate’s court. The auditor found substantially that these funds went to the support of the family.

There is no specific finding of necessity of the infants for such contribution to their maintenance. And in the auditor’s view of want of power, sucli fact was necessarily deemed by him of no importance. The finding of such fact we cannot say is not justified by the evidence. It tends to prove that on the death of Baxter the family were substantially without means of support, other than such as the estate of the decedent might supply. The question of apportionment between the infants of the fund which may be deemed as applied to their joint maintenance and support, is one of some difficulty. But it does not appear that no means are or can be furnished by the evidence to apply to greater or less extent a rule for that purpose. The question of its accuracy must necessarily be that of judgment, having in view all the circumstances, which should be carefully exercised for the protection of their interest respectively.

It may be seen that the same difficulty may have existed in the accounting of the widow if she had been the general guardian of all the children as they were one family. A rule which requires, the severance of a family for the jDrotection of a guardian in his account would be harsh, and the consequence unnatural.

This matter should go back to the surrogate for rehearing unembarrassed by any question of power or jurisdiction.

But unless special reasons appear, and are applicable to- the account for merchandise rendered in this case, it .should not be allowed as against the infant’s fund. The permission of a trustee to deal with infant beneficiaries by selling to them his property and thus charging the fund, cannot, without liability to great abuse, be permitted. And the rule which ordinarily denies such right is for obvious reasons a salutary one. The administrator was in the mercantile business. A considerable portion of his account rendered is for goods sold from his store. This business was carried on for profit. How much profit was within the prices charged does not, and probably cannot, appear.

While there may be circumstances which will justify the allowance of such a claim and when credit should be permitted, it is safe, generally, to apply the rule somewhat rigorously against the allowance of such dealing with the funds of infants by trustees, than to indulge departure from it.

In the view taken of this case we see no basis upon which direction can be given here which will enable the parties to obviate a rehearing.

The decree should therefore be reversed, and a rehearing had of the matter of accounting, in the surrogate’s court.

Costs of this appeal to abide the final award-of costs.

Smith, P. J., and Barker, J., concur.


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    David Baker, Resp’t, v, James Lee, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1, Taxes and assessments — School tax — Warrant fob collection of —Effect of benewal.
    In an action for taking and selling plaintiff’s wagon, defendant justified as collector of school taxes, by virtue of a warrant issued by the trustee. It appeared that the original warrant issued to the defendant as collector bad run out, and a few days after its expiration it was renewed by an endorsement on it by the trustee as follows : “ Renewed for ten days.” Later the trustee wrote thereon, “ Renewed for twenty days from the time it run out.” The collector levied on the wagon, and sold it after the expiration of the ten days, in the first endorsement, but within the twenty days mentioned in the second. By the county judge on the appeal from a judgment of a justice, in favor of the defendant, the second renewal was held invalid as not complying with the statute requiring the written approval of the supervisor. It was urged by the defendant’s counsel that the first renewal was for the life of the original warrant, which was thirty days, and that the words “ for ten days” were surplusage. Held, the statute authorizing simply the renewal, of the warrant, and not any limitation by the trustee of the time for which it should operate, the renewal of the warrant and its delivery to the collector made it in effect a new process of the same force and effect as the original process.
    2. Same — Constbuction of woeds limiting life of wabbant.

      Held, that the words of limitation were either mere surplusage or had the effect to vitiate the renewal and render it void. That the construction most favorable to the conduct of the school district officers should,' from the nature of their duties, be adopted, and that the intention being evident to renew the warrant, the words limiting the life of the warrant, should be regarded as of no effect.
    Appeal from a judgment of the Cayuga county court revising a justice’s judgment.

      Frank C. Cushing, for appl’t: D. L. Hurlbut, for resp’t.
   Smith, P. J.

Action for taking and selling the plaintiff^ wagon. The defendant justified as collector of school taxes, by virtue of a warrant issued by the trustee.

It appeared in evidence that the original warrant issued to the defendant, as collector, had run out in his hands, and on. the 80th of October, 1885, a few days after it expired, it was-renewed by an endorsement upon it made by the trustee, or by his direction, in the following words: “ Renewed for ten days,” On November 3d the trustee wrote upon it, the additional words “ Renewed for 20 days, from the time it run out.” The' collector levied upon the wagon, November 5th, and sold it on the 12th. The county judge was of the opinion that as the sale was made after the ten days had expired, it was not authorized by the first renewal, and that the collector was not protected by-the second renewal as that was void for want of the written approval of the Supervisor endorsed thereon, as required by L. 1864, p. 1265, § 87, am’d by L. 1867, vol. 1, p. 975, § 22. On that ground alone he reversed the judgment of the justice.

The defendant’s counsel contends that the first renewal was for the life of the original warrant, that is for thirty days, and that the words “ for ten days ” were surplusage. In other words, that the authority of the trustee was limited to granting or withholding a renewal; that the effect of the renewal and delivery of the warrant to the collector was to make it a valid and effectual process, as of that date, including the time that it had to run ; and that the trustee had no power to diminish or enlarge the time.

We are inclined to think the contention is well founded. The statute simply gives the power to renew; it does not prescribe the form of renewal, nor authorize the trustee to say for what time the renewal shall operate. (L. 1864. p. 1264, §. 86 am’d L. 1867, vol. 1, p. 974, § 21.) It seems that the renewal of the warrant and its delivery to the collector have the effect of making it a new process, of the same force and effect, in all respects, as the original warant.

In Folsom v. Streeter, (24 Wend., 266,) Chief Justice Nelson said, “ The renewal is in fact but a reissuing of the process, and I perceive no reason against regarding it as an original issuing.”

In Smith v. Randall, (8 Hill, 495,) it was said by Bronson, J., •“ The renewal of the warrant made it a new process for all the purposes of collecting the taxes which then remained unpaid. .By renewing ‘the within warrant,’ the defendant said, in •effect to the collector, ‘ we command you, as within you are •commanded,’ to collect, etc. It is the same thing substantially, •as though the original warrant had been recited in the renewal.” In the same case he criticised and declined to concur in a dictum that fell from Mr. Justice Sutherland in Preston v. Leavitt, (6 Wend., 663,) to the effect that the renewal of a justice’s exe-¡cutiori “does not per se constitute a new execution.”

The same doctrine was applied in Gale v. Mead, (4 Hill, 109,) under very peculiar circumstances. The taxable inhabitants of ¡a school district voted to lay a tax for building a schoolhouse. Thereupon the trustees made out a tax list and warrant, but ¡before the same were delivered to the collector, the vote for the tax was repealed at a subsequent district meeting. At a still later meeting the repealing vote was repealed, and thereupon the trustees renewed the warrant previously made out, and then, 'for the first timé, delivered it to the collector. It was held rto be' valid. The court said, “As the warrant had never been .issued before, there could not strictly be a renewal of it, within the meaning of the statute. Still, the renewal under the hands and seals of the trustees may perháps be regarded as making .it new process of that date,” citing Smith v. Randall, (supra.

In Seaman v. Benson, (4 Barb., 444,) Gray, J., said. “ The renewal, of .a warrant is the renewal of the command contained in it. By it the same power is given to the collector, the same times within which to collect, and the same responsibilities are imposed upon him, as if it was an original warrant. And I am unable to perceive the substantial difference between the renewal of it by a repetition of the command in the form of a new warrant, and renewing it by endorsement upon the back of the original.

Parker v. Brown, (17 Barb., 145,) also was a case in which the original warrant was not issued to the collector until after its renewal. Allen, J., said; “The warrant not having, been issued for collection prior to the renewal of November 3, 1851, it became by such renewal and delivery to the defendant for collection a valid and effectual process, for all purposes, as of that date. “ (Citing Gale v. Mead, and Smith v. Randall, supra.) “ The rights of theplaintiff and the powers and duties of the defendant, were the same under such process that they would have been had the warrant been made out and dated as an original process on the day of its delivery to the defendant.”

And in Thomas v. Clapp, (20 Barb., 165,) it was held that the renewal of a warrant for the collection of a school tax is equivalent to issuing a new warrant.

It is true that in none of the cases cited was the endorsement of renewal special or limited in any respect. But it is clear, in this case, that the trustee intended to renew the warrant and caused the endorsement to be made for that purpose, and it is equally clear, from the authorities cited, that if the renewal was effectual for any purpose, it was equivalent to the issuing of a new warrant. The words of limitation were either mere surplusage, or they had the effect to vitiate the renewal and render it void. To adopt the latter construction would be going counter to the manifest intention expressed by the endorsement, and would be applying a harsh and severe rule to the proceedings of school district officers, had in good faith. As was said by Nelson, Ch. J., in Folsom v. Streeter, (supra.) “ The system has become somewhat complicated, the duties of these officers often difficult, and involving considerable responsibility. Their conduct should always be viewed with indulgence, and is entitled to the most charitable intendments of the law.” We think the words of limitation are to be treated as surplusage and that the renewal is to be regarded as the issuing of a new warrant. Thus viewed, it was a protection to the collector in making the levy and the sale.

Upon all the other points discussed by counsel we concur in the views expressed by the county judge in his opinion.

The result is, that the judgment of the county court should,, be reversed and that of the justice affirmed.

Barker, Haight and Bradley., J.J., concur.

So ordered.


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    Samuel B. Dick et al., Respt’s, v. Charles Phillips, Appl't.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1. Evidence — Discovery op book and papers — Code Civ. Pro., chap. 8, art. 4, §§ 803-S09, sole authority por granting — Order to show cause only, is admissible in first instance.
    Under the present code a party can not be compelled to produce his books and papers for the examination and inspection of his adversary before trial, except in the mode pointed out in Code Civ. Pro., chap. 8, art. 4. The proceeding must be by verified petition praying for the discovery or inspection sought, and the only order that can be made in the first instance, is one directing the party against whom the discovery or inspection is asked, to allow it, oi in default thereof to show cause why it should not be done. A. peremptory order cannot be granted ex parte.

    2. Same — Code Civ. Pro., §§ 853, 812 and subd. 7 do not apply.
    The provisions of Code Civ. Pro., §§ 853, 872, subd. 7, do not contemplate an order for the examination and inspection of books and papers before trial.
    Appeal from an order of Erie special term refusing to vacate an order made by the Allegany County Judge, directing the defendant to be examined as an adverse party before trial, and to produce certain boohs and papers for examination and inspection. .

      Charles S. Brown, for appl’t; Hamilton Ward, for resp’ts.
   Smith, P. J.

The order of the county judge, so far as it directs the defendant to be examined, appears to be regular, and the special term properly refused to interfere with it.. But that portion of it which directs the production of books and papers for examination and inspection is of questionable propriety.

We are of the opinion that under the present code a party cannot be compelled to produce his books and papers for the examination and inspection of his adversary before trial, except in the mode pointed out in art. 4, chap. 8, of the Code. The proceeding must be by a verified petition praying for the discovery or inspection sought, and the only order that can be made in the first instance, is one directing the party against whom the discovery or inspection is asked to allow it, or in default thereof," to show cause why it should not be done. In other words, a peremptory order compelling a production of books or papers for examination and inspection cannot be granted ex parte. The statute is intended to secure to the party proceeded against, an opportunity to show cause against the granting of the application, and an order that deprives him of that right cannot be upheld.

The respondents’ counsel refers to section 853 and subdivision 7, of section 872, as authorizing the order. We do not think they have that effect. Section 853 subjects to punishment for contempt a person who fails, without reasonable excuse, to obey an order duly made and served, requiring bim to attend and be examined, or so to attend, and bring with bim a book or paper. Subdivision 7, of section 872, provides that where tbe party sought to be examined is a corporation, the affidavit on which the proceeding is based, shall state the names of tbe officers whose testimony is sought, or the books and papers as to which an examination or inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons, and the production of such books and papers Neither of these provisions contemplates an order for a discovery, or what is its equivalent, an examination and inspection of books and papers. The distinction between an order for a discovery of the contents of books and papers, by submitting them for examination and inspection, and one for their production merely, is pointed out in McGriffin v. Dinsmore, (4 Abb. N. C., 241) cited by the respondents’ counsel. See, also, Smith v. MacDonald, (1 Abb. N. C., 350.)

That part of the order which requires the production of books and papers for examination and inspection should be reversed; in all other respects the order is affirmed, without costs of this appeal to either party.

Barker, Haight and Bradley, JJ., concur.

So ordered.


author: Bradley, J.

text:
    George H. Ball, appl’t, v. The Evening Post Publishing Company, resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1. EXAMINATION OP PARTY BEFORE TRIAL — ORDER FOR — AFFIDAVIT TO SUPPORT— Code Oiv. Pro., §§ S70, 872 — Supreme Court Rule, 83.
    The affidavit made by a defendant’s attorney to support a motion for the examination of the plaintiff before trial under Code Civ. Pro., §§ 870, 872, states that the defendant is a domestic corporation, and its place of business and office-, the nature of the action and the answer, the opinion of the defendant that the testimony is material and necessary for the defendant and the defense of the action, and then states the grounds of such opinion which are sufficient to show the materiality to the defense of the evidence the defendant seeks to obtain by such examination, and expects to prove by it, and that in order to maintain its defense and prove the allegations contained in its answer, the defendant desires to examine the plaintiff. Held, that these facts were sufficient to bring the application for the order within the statute.
    2. Same — Deposition Taken under — purpose for which it may be taken.
    The only purpose for which such an application of a defendant after answer under the statute can be supported, is to take the deposition for use upon the trial, by way of defense, but it is sufficient if the purpose to use the deposition upon the trial is fairly inferable from the statements made in the affidavit.
    3. Same. — Privilege as to questions — Effect of upon the application FOR THE ORDER.
    If it can be seen that the examination will legitimately embrace nothing except that as to which he would be privileged from testifying, the application for such an order should be denied, hut the fact that the party may decline on account of privilege to testify, in respect to some, and not to all the legitimate subjects and matters of inquiry is not in the way of granting such an order, as the party may be fully protected by asserting his privilege.
    Appeal from order of Erie special term denying motion to vacate order directing the plaintiff to submit to examination at the instance of the defendant.

      Frank C. Ferguson, for Appl’t; Franklin D. Locke and John G. Milburn for Resp’t.
   Bradley, J.

The cause of action alleged is libel. The answer denies the complaint, and alleges matters in justification and mitigation. After the issues were perfected the defendant obtained an order from a justice of this court, directing the plaintiff to appear before the referee appointed by the order, at a time and place therein specified. The motion to vacate the order was made upon the grounds :

1. That the affidavit upon which it was granted did not specify facts showing that the examination was material and necessary, as required by rule 83.

2. That it did not state that the examination was required for use upon the trial.

3. That the name of the defendant was not given by it.

4. That the purpose of the examination sought was to enable the defendant to prepare a bill of particulars, and not for use on the trial.

5. That the order requires the plaintiff to give evidence criminating himself.

6. That the referee named is not a suitable person to take the examination.

The motion to vacate was denied and another referee substituted. The affidavit contains the title of the action, and was made by one of the attorneys for the defendant, and refers to the defendant named in the title, and states that it is a domestic corporation, having its office and place of business in the city and county of New York. It states the nature of the action, and sets out the answer. It states the opinion of the deponent, that the testimony of the plaintiff is material and necessary for the defendant, and for the defense of the action; and then proceeds to state the grounds of such opinion, which are sufficient to show the materiality to the defense of the evidence the defendant seeks to obtain by such examination, and expects to prove by it. And that in order to maintain its defense and prove the allegations contained in its answer, the defendant .desires to so examine the plaintiff. Those facts seem to be sufficient to bring the application for the order within the statute, which provides that the deposition of a party to an action . . . may be taken . . at the instance of an adverse party . . at any time before the trial. Code Civ. Pro., § 870. The affidavit must set forth “ the names and residences of the parties to the action, and whether or not they have appeared,” etc., the nature of the action, the substance of the judgment demanded . . .

the nature of the defense, and that the testimony of the person to be examined is material and necessary for the defense. Id. § 872. And rule 83 of this court requires that the affidavit specify the facts and circumstances which show that the examination of the person is material and necessary. The only purpose for which such an application of a defendant after answer, under the statute can be supported is to take the deposition for use upon, the trial by way of defense. The examination cannot be granted to obtain admissions, or to enable a defendant to prepare for trial, and might not to prepare a bill of particulars, The fact, however, that those things are incidentally referred to in the affidavit does not necessarily qualify the substantial and legitimate purpose mentioned, and upon which the application seems by the affidavit to have been founded.

It is said that the affidavit is defective because it does not state the purpose to use the evidence on the trial. And on that proposition are cited Beach v. Mayor (4 Abb. N. C., 236), and Knowlton v. Bannigan (11 id. 419). Those cases do not support the proposition to the extent requiring such purpose to be directly and by express terms stated. In the former of those cases, the affidavit showed that the application was merely to enable the party making it to prepare for trial, and therefore could not be treated as made to obtain testimony to use on the trial; and in the latter, the application was to examine a third person, in which the court observes a distinction in the statement required in the respect in question. In the application for the examination of an adverse party after issue, it is sufficient if the purpose to use the deposition on the trial is fairly infer-able from the statements made in the affidavit.

That does not appear here. The affiant says that in order to maintain its defense and prove the allegations contained in its answer, the defendant desires to examine said Ball and take his deposition, etc. Gilbert v. Third Ave. R. R. Co., 17 J. & S., 129.

While it is true that the plaintiff may decline to testify as to some of the matters involved, and in reference to some of the facts and circumstances which are set out in support of the allegation of materiality of his evidence for the defense because it might tend to criminate him; yet that situation is not necessarily applicable to all the matters stated to be material to, and within the issue, and which the application for the contemplated examination as shown by the papers upon which the order was made has in view. If it could be seen that the examination would legitimately embrace nothing except that to which his privilege .would apply, tbe application for such an order should be denied. But the fact that the party may decline for that reason to testify in respect to some, and not as to all the legitimate subjects and matters of inquiry, is not in the way of granting such an order, because the party may be fully protected by asserting his privilege on his examination in respect to all attempted adduction from him of evidence coming within it. Kinney v. Roberts, 26 Hun, 166; Davenport G. M. Co. v. Taussig, 33 Hun, 32; Davies v. Fish, 35 Hun, 430.

There seems to be no other question requiring consideration.

The order should be affirmed.

Smith, P. J., and Barker, J., concur.


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    Daniel F. Cridler et al. Respt’s, v. Henry Colegrove, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    Evidence — Affirmative testimony entitled to moee weight than MERE negative — When it is ekeoe to deliver such a charge to a JURY.
    Plaintiffs brought this action to recover for medical and surgical services rendered in the treatment of a boy, defendant’s nephew. The parents of the boy were both living, but the mother had obtained a divorce from the father, and they lived apart, the boy living with his mother, a sister of defendant. While on a visit with her at the house of her mother, Mrs. C., he was run over by a railway train, and the services for which compensation is claimed were rendered at the house of Mrs. C. The plaintiffs relied upon an oral promise of the defendant to pay them, alleged to have been made on the second day after the injury happened, in a conversation that occurred between themselves, together with another physician, and the defendant in a bed-room off of the dining-room at the house of Mrs. C., at which no other person was present. The defendant denied making the alleged promise.- In speaking of the conflict of testimony the trial judge charged the jury in substance, that affirmative evidence is entitled to greater weight than negative testimony for the reason that one swearing affirmatively and positively to a fact is guilty of perjury if the fact did not occur. Whereas one who swears negatively is only subject “ to the common infirmity of humanity when we say in trying to reconcile testimony that he has forgotten it.” The testimony of the defendant not only specifically denied the circumstances as alleged by the plaintiffs and their witnesses, but gave a circumstantial account of the events claimed by him to have taken place. On appeal from the judgment entered on a verdict for the plaintiffs, and from an order denying a motion for a new trial, Reid, that in view of the positive and affirmative character of the defendant’s testimony, the charge was erroneous and might have prejudiced the defendant. Had the defendant testified merely that he did not recollect saying what the plaintiff testified to, or had his testimony been such as to justify the inference that he was testifying to a lack of recollection and nothing more, the case would have been different.
    Appeal from a judgment on a verdict rendered at the Steuben circuit, and from an order denying a motion for a new trial on the minutes.

      J. H. & C. W. Stevens, att’ys for' appl’t; J. IT. Stevens, of counsel. Holliday Bingham, att’ys for resp’ts; H. Bemis, of (Counsel.
   Smith, P. J.

Action to recover for services rendered by tbe plaintiffs, Daniel F. Cridler and Milton J. Baker, and their assignor, John. K. McKinnon, as physicians and surgeons, in and about the surgical and medical treatment of Charles Pryor, a lad, a nephew of the defendant. The lad was run over by cars upon a railroad track, crushing both legs above the ankle, and the plaintiffs amputated them below the'knee. Both the lad's parents were living, but his mother had obtained a divorce from her husband; and they were living separately, in the village of Hornellsville. The lad lived with his mother, who was a sister of the defendant. At the time of the injury the lad and his mother were visiting at the house of her mother, Mrs. Colegrove, at Ackport, a few miles from Hornellsville, and there the services of the plaintiffs were rendered.

The plaintiffs relied upon an oral promise of the defendant to pay them for their services, alleged to have been made on the second day after the injury happened, and the day before the amputation was performed, in a conversation that occurred between the three physicians and the defendant in a bedroom off of the dining-room in Mrs. Colegrove’s house, at which no other person was present. The defendant denied making the alleged promise.

In speaking of this conflict of testimony, the judge charged the jury, in substance, that affirmative evidence is entitled to greater weight than negative testimony, for the reason that one swearing affirmatively and positively to a fact is guilty of perjury if the fact did not occur, whereas one who swears negatively is only subject (to quote from the charge,) “to the common infirmity of humanity when we say, in trying to reconcile testimony, that he has forgotten it.”

This part of the charge was excepted to. In order to determine whether the charge was erroneous, it will be necessary to look with some particularity at the testimony of the defendant. He testified that there were two bedrooms in the house, one off off the parlor, the other off of the dining-room or kitchen. He first testified to a conversation in the kitchen or dining-room bedroom on Tuesday, at which Drs. Cridler and McKinnon, the defendant and Mrs. Pryor were present. Dr. Baker was not present, he not having arrived at that time. In the conversation then had, as the defendant detailed it, there was nothing said about paying the physicians. The witness also testified that after Dr. Baker came, he and Dr. Cridler, and, as the witness thought, Dr. McKinnon, with the witness and Mr. Pitts, an uncle of Mrs. Pryor, went into the parlor bedroom, and discussed the boy’s condition and what had better be done; that Dr. Cridler asked witness what he thought, and witness replied that if the boy was his he would have his leg amputated; that during the interview, Pitts asked whether the boy’s father took any responsibility in the matter, and witness said that they need not hesitate on account of the boy’s father, that witness would stand between him and them, all harm or all damages. “I think,” said the witness, “ that is all I can remember.” The witness further testified, “ I did not in that room say to either of the doctors or any of them ‘ go' on and do what you can for him and I will pay for it.’ ” . . “ After the interview in the parlor bedroom where we four were, there was no time when the three doctors and myself went into the kitchen bedroom. I never was in the kitchen bedroom when Dr. Baker was present. The time when we were in the kitchen bedroom was before Dr. Baker arrived, and then Dr. Cridler was in the bedroom most of the time, Mary, (Mrs. Pryor), was there and Dr. McKinnon stood in the door part of the time. I wasn’t in the parlor bedroom having any conversation, only, as I have stated, when Mr. Pitts and Dr. Cridler and Dr. Baker were present; never was there but that once. There was no time when the three doctors and I were in that bedroom with the door shut, and when I said ‘go on and do the best you can for the boy and I will see you paid, or I will pay you for it,’ nor in any bedroom. I never spoke ‘ pay,’ never used the word. The word to ‘ pay ’ was never spoken of by them either.” .' . . “Up to the time that amputation took place, I did not use the word ‘ pay’ to them or they to me.”

It will be observed that the testimony of the defendant is not merely negative ; it details the conversations; and it positively denies that certain words imputed to Mm by the plaintiffs’ witnesses, and the only words constituting a promise, were uttered by him. He does not deny according to his best recollection; he does not rest upon a mere want of memory, but he gives his version of the interviews and conversations positively, and as positively the making of the promise testified to by the plaintiffs’ witnesses. If his version is untrue, it would seem to be as difficult to relieve Mm from the imputation of perjury, as it would be for the plaintiffs to escape the like imputations, if their statement is untrue. Had he testified merely that he did not recollect saying what the plaintiffs testified to, or had his testimony been such as to justify the inference that he was testifying to a lack of recollection and notlfing more, the case would have been different. But in view of the positive and affirmative character of his testimony, we think the' charge excepted to was erroneous and may have prejudiced the defendant.

There are some other exceptions, but. as the questions raised by them may be eliminated from the case, upon another trial, it is unnecessary to consider them. For the reason above stated, the judgment and order should, be reversed and a new trial granted, costs to abide event.

Bakkee, Haight and Bradley, JJ., concur.

So ordered.


text:
    Michael Sheehan, Resp’t, v. Xaver Mayer, Impl’d, etc., Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1. Indians — Lease made by Seneca Indian of lands on Reservation— U. S. Session Laws 1874-5, p. 330.
    In June, 1872, a Seneca Indian residing on the Alleghany Indian reservation in Cattaraugus County, executed to plaintiff a lease of a piece of land on said reservation for the term of thirteen years, from November 1st, 1872. The land leased was within one of the villages mentioned in U. S. Session Laws 1874-5, p. 330, entitled “ An act authorizing the Seneca Nation of New York Indians, to lease lands within the Cattaraugus and Alleghany reservation, and to confirm existing leases.” Plaintiff, on November 30th, 1875, assigned said lease, and transferred possession of said land with the buildings thereon, to defendant, and to secure the payment of the consideration defendant on the same day executed to plaintiff a mortgage on his interest in the lease and all buildings thereon erected or to be erected. Defendant continued in possession of the premises under said lease, and in April, 1878, default having been made, plaintiff commenced an action to foreclose said mortgage. After trial judgment was duly entered, directing that the premises be sold, that the purchaser be let into possession, that the proceeds, or so much as may be necessary, be applied to the payment of the amount unpaid on the mortgage, and that the deficiency if any be paid by defendant. The act referred to made valid all then existing leases of lands within the boundaries of the villages therein named, in which Indians of the Seneca Nation or persons claiming under them were lessors (with an exception not material to this case), for a period of five years after the passage of the act, except such as by their terms expired at an earlier date. It also provided that at the expiration of a lease the Nation should be entitled to the possession of the lands and have power to lease the same. Such leases were made renewable at their termination for periods not exceeding twelve years, and persons who at such time might be the owners of improvements erected upon such lands were entitled to such renewed leases. Field, that the lease in question, if invalid before the act, was made valid by its provisions.
    2. Same — Foreclosure of mortgage on leasehold and improvements —When defendant may not raise question of the expiration of LEASE.

      Held, that defendant could not raise the question whether the lease had expired, it not having expired when this suit was commenced and it not appearing that he had been disturbed in his possession when judgment was entered.
    3. Same — Right of renewal — What interest is sufficient for.

      Held, that plaintiff’s interest, as mortgagee of the improvements and leasehold gave him a right of renewal, under the act. and from the fact that his assignee continued in possession under the lease it might be presumed, if necessary to support the judgment, that the lease had been renewed.
    Appeal from a judgment entered upon a decision, made at the Cattaraugus special term and from an order denying a motion to modify the judgment.

      Henderson and Wentworth, for appl’t, Ansley and Vreeland, for resp’t.
   Smith, P. J.

In June, 1872, Casler Redeye, a Seneca Indian, residing on the Allegany Indian reservation in the county of Cattaraugus, executed to the plaintiff a lease of a piece of land on said reservation, for the term of thirteen years from the first day of November, 1872. The land, so leased, was within the boundaries of the village of Great Valley, one of the villages mentioned in the act of Congress, approved February 19th, 1875, entitled “ an act authorizing the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany reservations, and to confirm existing leases.” (U. S. Sess. Laws, 1874-5, p. 330.)

On the 30th of November, 1875, the plaintiff assigned said lease, and transferred the possession of said land on which were then a house and barn, to the defendant, in consideration of the sum of eleven hundred dollars agreed to be paid therefor by the defendant, to secure the payment of which, the defendant, on the same day, executed to the plaintiff a mortgage upon the house and barn, and also upon his interest in said lease and all buildings then on said land or thereafter to be erected thereon.

The defendant continued in possession of the premises under said lease, and in April, 1878, default having been made, the plaintiff commenced this.action to foreclose said mortgage. The action was tried in May, 1881, and in March, 1884, judgment was entered directing that the premises be sold, that the purchaser be let into possession, that the proceeds, or so much thereof as may be necessary, be applied to the payment of the amount unpaid upon the mortgage, and that the deficiency, if any, be paid by the defendant.

Subsequently, the defendant moved at special term to modify the judgment so as to conform to the decision of the trial judge, and particularly to strike out the provision that the purchaser at the foreclosure sale be let into possession. The motion was denied.

The argument of the appellant’s counsel, if we correctly apprehend it, may be summed up in the proposition that the lease referred to was void at its execution, and at the most was made valid by the'act of February, 1875, for five years only, from the passage of said act, and that as the five years had elapsed before the trial, the court erred in holding that the mortgage was then a subsisting lien upon the premises.

The act referred to made valid all then existing leases of lands within the boundaries of the villages therein named, in which Indians of the Seneca Nation, or persons claiming under them, were lessors, (with an exception not material to the present case,) for a period of five years after the passage of the act, except such as by their terms expired at an earlier date. The act also provided that at the expiration of a lease, the Nation should be entitled to the possession of the lands and have power to lease the same. It also made such leases renewable, at their termination, for periods not exceeding twelve years, and provided that the persons who might be at such time the owners of improvements erected upon such lands, should be entitled to such renewed leases, and to continue in possession of such lands on such conditions as might be agreed upon, by such owners and the councillors of the Seneca Nation, or in case of their disagreement, by referees, to be chosen as provided in the act. (§. 3.)

The lease in question, if invalid before the act, was made valid by its provisions. We do not think the defendant is in a position to raise the question whether the lease had expired. Clearly, it had not expired, when this suit was commenced, as that was within five years after the passage of the act. Whether the plaintiff had availed himself of the right of renewal, under the act, is a question which does not concern the defendant. It does not appear that the defendant had been disturbed in his possession when judgment was entered. For aught that appears, his only right to the possession was under the lease assigned to him by the plaintiff. The right of the Indian Nation to the possession of the land, at the expiration of the five years, was subordinate to the right of the owner of the improvements to a renewal of the lease, for twelve years thereafter. While it was not proved at the trial that the lease had been renewed, neither was the contrary shown. The plaintiff’s interest, as mortgagee of the improvements and of the leasehold, we conceive, gave him the right of renewal, under the act, and. from the fact that his assignee continued in possession under the lease, it may be presumed, if necessary to support the judgment, that the lease had been renewed,

We think the case was correctly disposed of at the trial, and upon the motion under review, and that the judgment and order should be affirmed with costs.

1886, Oct. 1. — Judgment and order affirmed with costs.

Op. by Smith, P. J.

Bakkbr & Haight, J. J., not sitting.

Bradley, J., concurs.

Affirmed.


text:
    Charles Fincke, et al. Executors and Trustees, Respt’s, v. City of Buffalo, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    ■1. MUNICIPAL CORPORATIONS — AWARDS FOR TAKING OF PROPERTY — NEW TRIAL.
    . Where the defendant condemned and took a part of the property of plaintiff’s intestate, for the purpose of a public avenue, and action was brought for the amount of awards for the property so taken, payment of the awards having been shown, and verdict rendered'for the defendant, the evidence not showing clearly that the party to whom the awards were paid was the agent of the person to whom they were due, Held, a new trial was properly ordered.
    2. Mortgage foreclosure of — Eminent domain.
    The interest acquired by the defendant in the plaintiff’s property by the exercise of the- right of eminent domain is paramount to the lien of mortgages of a date prior to that of the proceedings taken to acquire such interest, and will not he affected by judgments foreclosing the mortgages and sales pursuant thereto unless those proceedings and their results were then made the subject of attack for some alleged cause with a view to remove the color of title or right produced by them.
    Appeal by the defendant from an order of Erie circuit granting a new trial.
    The action is brought to recover the amount of awards made by the defendant to plaintiffs by way of compensation for their land, taken by the City for a public avenue pursuant to Laws of 1873, ch. 540. The requisite proceedings were had as required by that and other statutes to acquire the title for such purposes. The plaintiffs were mortgagees of some of the lands so taken, and awards were made to them as such in October, 1873, for $184.39 — 1468.08 — «499.88—i1360 and $459.88.
    In July, 1874, four of them were paid to one Bork, and the other prior to that time, all which the plaintiffs allege was done without authority. The jury found for the defendant, whereupon a new trial, was ordered. And the defendant appeals,

      Herman Hennig, for appl’t.; Frank C. Ferguson, for resp’t.
   Bradley, J.

The plaintiffs conveyed to . one Zink certain premises situate in the city of Buffalo, and took from him a mortgage, of date November 20, 1871, to secure $3,500, of the purchase money. And they conveyed to James S. Lyon, certain other premises in. the city, and took from him a mortgage to secure the payment of $30,000, of the purchase-money.

The proceedings to condemn property for the purpose of, and to open tire avenue, were accomplished in the fall of 1873, and portions of the lands covered by both mortgages were taken, for which the awards in question were made by the city. The orders for the amounts of four of these awards on the city treasurer were delivered by the comptroller of the city to Bork in July, 1874. And the main question submitted to the jury was whether he had authority from the plaintiffs to obtain such orders. For the support of such authority, reference is made to an unproduced letter which the comptroller of the city says purported to have been written by Fincke, addressed'to James S. Lyon, or to Lyon and Co; that it was brought to him in July, 1874, by Bork, who was then city treasurer, and on the-strength of the letter he endorsed and delivered the awards or warrants to Bork, who took them and retained the letter; that he read only a portion of the letter and is unable to state its contents, and was unacquainted with the handwriting of Fincke. Bork testified that he got the warrants of the comptroller, and his impression is that he got them on a letter from Fincke to Lyon directing a delivery ” He is asked: “ Can you state the contents of that letter ? — Ans. I cannot. Ques. Can you state the contents of that letter so far as it related to tbe awards ? — Ans. No, sir. Ques. Can yon state generally tbe contents of that letter ? — Ans. No, sir, I cannot.” And on being recalled and asked if he can state the substance of the letter he answers : “ Only generally, as I stated it,” and being then asked: “ State the substance of the letter if yon can. ” he answers : “ I couldn’t say anything more. I don’t think I could give you a word of it.” ' The letter was’ not produced, nor did it appear what had become of it.

Mr. Fincke testifies that he never authorized any one to get the awards or warrants for him, that he never wrote any letter to Lyon or Bork or to anybody else to get them, or any of them, or to receipt for the money. And Lyon testifies that he never received any authority from the plaintiffs or from Fincke, to draw the awards, that he did write to Fincke in relation to the award to the latter as mortgagee of the premises of which Lyon had the legal title, and received from him a letter in answer declining to give authority to draw the award, and referring to his relation of executor or trustee. This is substantially the evidence bearing directly upon the question of authority. The comptroller undoubtedly understood in some manner when he delivered the warrants to Bork, that the letter then produced contained direction or authority to do so. He says his recollection is that Bork read the portion of it referring to the awards, that he saw some portion and thinks one third of it, but cannot state contents “ excepting referring to the awards,” by which he meant to be understood that reference was made in it to the awards.

This evidence is of itself feeble, but reference is made to the fact that the awards had then remained in the comptrollers office uncalled for several months, and that Fincke did not call for them until several years thereafter as some evidence in support of the authority exercised in obtaining the warrants from the comptroller.

Mr. Fincke testifies on this subject that while he learned, the city was taking some of the premises for a public improvement, and supposed that awards would be made for the benefit of the plaintiffs by way of compensation, he had no notice of the awards until he went to the comptroller’s office in 1877, or 1878, and asked for them, when he was advised that the awards had been paid. And on investigation then made, he learned they had been receipted with the signature of Bork, which was the first knowledge he had of the awards.

There was some evidence tending to prove that Fincke was in the comptroller’s office two or three times a year, in 1874-5, looking over tax records, but it does not appear that this improvement or the awards was then the subject of inquiry or remark.

The plaintiff Finche had had some business relations with Lyon, Bork & Co., of which Lyon and Bork were members arising out of the collection of rents by the firm for him. Three of the awards were made on account of taking portions of three several lots embraced in the premises of which Lyon had taken title from the. plaintiffs, and given to them a purchase money mortgage of $80.000. Those premises were known as the Mann and Lord property, with which was kept an account in behalf of Lyon in the office of Lyon, Bork, & Co., and the proceeds of the awards were credited in that account to that property. There is no evidence that Fincke’s attention was ever called to ' this until disclosed by his investigation before referred to, although there is evidence tending to prove that he was in the city several times in each of the years 1874, 1875- and 1876, and had some business with the firm. The only interest the plaintiffs had in the property covered by the Lyon mortgage, was that given by such instrument, added to which was the personal liability of Lyon to pay the money secured by it. And if the moneys had been fully paid, the matters of the awards in respect to that property would have been of no practical importance to the plaintiffs, but the appropriation of the portion of thepremis.es taken by the city depreciated to that extent the security furnished by the mortgage. The firm of Lyon, Bork & Co., failed in the latter part of the year 1875, and Lyon was then insolvent. The fact of the-personal liability of Lyon to pay the mortgage, furnishes of itself no evidence of authority to take and appropriate the awards, but might have some force with other circumstances tending to support such authority as the amount of them would, if received by the plaintiffs, enure to his benefit by way of allowance on the purchase money mortgage debt, in the event he had paid the residue of it.

But this relation did not apply to the two other awards made for taking portions of lots of the premises, which had been conveyed by the plaintiffs to Zink, who had given them in return a mortgage'on such premises to secure the payment of the purchase money for which the latter was personally liable. •

The warrants for these-awards were also take n by Bork, unless one of them had before been taken by Lyon from the comptroller. One of thes'e latter awards was so taken by Bork with the three before mentioned.

The question of authority applies alike to those four without any means of distinction furnished; and is dependent upon the force given to the letter referred to, which Bork in his evidence, in general terms, treated as an order from Fincke to Lyon, to obtain the awards.

- This other or fifth one was not obtained at the same time, but was taken' from the comptroller’s office before the letter was produced. Bork says he got this one (which was $360) in December, 1873. This was before the' letter was received, and there is no evidence of any authority then from Fineke. The comptroller took receipts which were produced, for the four warrants taken in July, 1874, but no receipt was found for the other one. The main question submitted to the jury was whether any authority from the plaintiffs permitted the delivery of the warrants to Bork, or to Lyon, Bork & Co. We think the conclusion of the trial justice, that the verdict was against the weight of evidence, was justified, and that in granting a new trial his discretion was not improperly exercised.

When carefully examined, the evidence, so far as it directly bears upon the import of the letter in respect to any authority or direction contained in it, to obtain from the comptroller the warrants representing the awards to the plaintiffs is very vague, and the inference that it did contain such authority derivable from such evidence and all the circumstances, was so weak as to permit the trial judge to fairly conclude that the fact was not satisfactorily proved, and that injustice had been done by the verdict, so far as it depended upon the evidence on that question.

The defendant’s counsel contends that the plaintiffs were not entitled to recover, because the foreclosure of the mortgages made to them by Lyon & Zink, cut off the right of the defendant to the portion of those lands which the defendant had proceeded to take, and barred all the rights derived from such proceedings. And this is urged upon the ground that the title had not become entirely perfected in the city, because the money, unless taken by plaintiffs’ authority, had néither been paid nor deposited within the meaning of the Statute, Charter title VIII. §§ 15, 16, 18.

The foreclosure of those mortgages were by actions. The city of Buffalo was made a party defendant. The judgments were recovered in September and October, 1877. They were in the usual form, and adjudged that the defendants “ be forever barred and foreclosed of all right, title, interest” etc., in the premises. It will be observed that the 'proceedings of the city were taken and completed long before the foreclosure actions were commenced. And the confirmation of the commissioner’s report in such proceedings was made more than a year before that time, which perfected the right of the plaintiffs to the amount of the awards and the liability of the city to pay them. Id, § 15. Whatever interest the city had acquired by means cf the exercise of this right of eminent domain, was paramount to the lien of the mortgages, and would not be affected by the judgments in those actions, and the sales pursuant to them, unless those proceedings and their result were there made the subject of attack for some alleged cause, with a view to remove the color of title or right produced by them. 2 R. S. 192, § 158, Lewis v. Smith, 9 N.Y., 502, affirming 11 Barb,152; Rathbone v. Hooney,58 N. Y., 463; Emigrant Industrial Savings Bank v. Goldman, 75 N. Y., 127. The foreclosure actions did not proceed in hostility to, or challenge such proceedings and their validity and effect, but on the contrary it was in the complaints of those actions alleged, that the city had acquired title, arid the lands so taken had become part of a public avenue of the city. The right of the defendant acquired by the proceedings to take the property does not seem to have been affected by the judgments and sales in the foreclosure actions. And assuming that it has not paid the awards to any party entitled to receive payment no reason appears why it should not do so.

No other question seems to require the expression of consideration.

The order should be affirmed.

Smith P. J., Barker and Haight JJ., concur.


author: mith, P. J.

text:
    Solomon H. Goodman, Appl’t, v. James W. Robb, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    -1. Pleadirg — Libel and Slander — Answer by way op confession and avoidance — May not be hypothetical.
    The second paragraph in the answer in an action for slander alleged substantially that if defendant spoke any slanderous words of, and concerning plaintiff, of the nature of those charged in the complaint, they were confidential and privileged, and were not spoken in malice. Plaintiff moved .that the second paragraph be stricken out on the ground that it was alternative and hypothetical; also that defendant be required to make it more .definite and certain. Held, that the rule which existed under the system of •pleading which preceded the Code was necessary under the present system, that a plea must either traverse or confess and avow. That the count under consideration assumed to set up matter in avoidance of the charge in the . complaint, but did not confess the charge, and was for that reason void.
    12. Same — Remedy by demurrer not by motion to strike out.
    It seems that a demurrer would be the proper remedy, but there is no authority under the Code for striking out an entire count of an answer on the ground of insufficiency.
    .2. Same — Indefiniteness and uncertainty.

      Held, that the pleading was justly chargeable with indefiniteness and uncertainty, but correction in those particulars was useless so long as it remained hypothetical.
    Appeal from so much of an order of the Orleans special term, :as denies the plaintiffs motion to strike out the second paragraph :in the defendant’s answer, or to direct that it be made more definite and certain.

      William E. Hobly, for appl’t., John Cunneen for resp’t.
   mith, P. J.

The action is for slander. The answer originally contained several paragraphs separately numbered, all of which, except the first and second, have been stricken out. The .first paragraph is a denial. The second alleges, in substance, that if tbe defendant spoke any slanderous words of and concerning tbe plaintiff, of tbe nature of those charged in the complaint, they were confidential and privileged, and were not spoken in malice..

The plaintiff moved that the second paragraph be stricken out on the ground that it is alternative and hypothetical, and also that the defendant be required to make it more definite and certain, in several respects, and, among others, so as to indicate particularly whether the defendant admits or denies the speaking of the slanderous words charged in the complaint, and which of them he alleges were privileged or confidential, and what words spoken by him he intends to mitigate. That branch of the plaintiff’s motion was denied by the part of the order which is now appealed from.

The second paragraph is not only separately stated and num bered, but it contains what was obviously intended to be a statement of a separate defence. It is a distinct count of the answer. Plainly, it is hypothetical. Under the system of pleading that preceded the Code, it was a rule that a plea must either traverse or deny, or confess and avoid. (1 Ch. Pl., (14th Am. Ed.) p. 526). The same rule has frequently been applied under the Code, (Lewis v. Kendall, 6 How. Pr. R., 59; Buddington v. Davis, id., 401). The rule is as necessary under the present system, as it was under the old, to prevent irrelevancy, uncertainty and useless prolixity in pleading. The count under consideration assumes to set up matter in avoidance of the charge in the complaint, but it does not confess the charge. For that reason it is bad.

The only question is whether the remedy for a defect of that nature is by motion to strike out. The question whether a demurrer would lie, is not before us, and therefore' we do not decide it; but it would seem that that remedy is available. In Lewis v. Kendall, (sup.) and Buddington v. Davis (sup.) a demurrer was sustained. The Code allows a demurrer to a defence consisting of new matter, on the ground that it is insufficient in law upon the face thereof. (Code C. P., §. 494.) “Insufficiency” in a pleading is not defined by the Code. An answer that presents no defence, and does not take issue with the complaint, may well be regarded as insufficient. An irrelevant pleading, that is, one which has a substantial relation to the controversy between the parties to the suit, has been characterized as “ insufficient.” (Moak’s Van Santvoord’s Pl., (3d. Ed.) p. 772.) So, too, it has been said, a frivolous reply or answer, may* if; the party prefer, be demurred to as insufficient, although the Code gives a more summary remedy by an application for judgment. (Id.) But we know of no authority under the Code, .for striking out an entire count of an answer, on the ground, ok insuffi-, ciency. This is not the case of a sham defence, under section 538, of the Code, nor a motion to strike out irrelevant or redundant matter provided for by section 545. An entire count cannot be stricken out as irrelevant or redundant. (Fasnacht v. Stehn, 53 Barb., 650.)

In Wies v. Fanning, (9 How. Pr. R., 543,) a part of an answer which was held to be hypothetical, was stricken out, but the same portion was held, also, to be irrelevant and redundant. On that ground, the remedy by motion was appropriate. Irrelevant and redundant matter cannot be demurred, to but the objection must be taken by a motion to strike out. (Moak’s Van Santvoord, p. 771.)

The motion in the present case was not only to strike out the second count, but also to require it to be made more definite and certain. That it is justly chargeable with indefiniteness and uncertainty is apparent, but to correct it in those particulars would have been useless so long as it remained a hypothetical or de bene esse pleading.

We think the portion of the order appealed from, must be affirmed, but as the pleading is bad, without costs and with leave to the plaintiff to demur, if he thinks proper, in ten days.

Barker & Bradley, JJ., concur; Haight, J., not sitting.

So ordered.


text:
    George W. Rice, et al, Resp’ts, v. Eugene Heath, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1 Title, vesting of — When it takes place — On sale of peesonal PROPERTY.
    Plaintiffs claim damages for the conversion of a quantity of wagon hubs. Defendant claimed title as assignee of the persons composing a firm ’ which it is alléged'purchased the'hubs of plaintiffs. Upon the trial, it was claimed by plaintiffs that the sorting.and counting of the hubs was a condition precedent to vesting of title in the vendees. It appearing from the evidence that it was not a condition precedent to the vesting of title, hut that it was done by the vendee, in order to ascertain the number of hubs in condition required by the contract. Held, that the title vested upon delivery.
    2. Same — Convebsion.

      Held, that as to the hubs rejected as defective title was not intended to pass, and if defendant refused to deliver them on proper demand he was liable for their value.
    3. Fraud — What will not be sufficient evidence to prove.
    The contract having been made some five months previous to the failure of the firm, no inquiries or representations having been made as to their financial condition, and plaintiffs having had previous dealings with them from which they might be presumed to know their character and standing, the evidence not showing that the members of the firm had knowledge of their insolvency. Held, that there was no evidence of fraud on the part of the firm.
    4. Same — Request to charge — When error to refuse — Fraud must be PROVED BY EVIDENCE STRONG ENOUGH TO OVERCOME PRESUMPTION OF INNOCENCE.
    Defendant’s counsel requested the judge to instruct the jury that the charge of fraud against the assignors of the defendant was in the nature of a crime, and could not be presumed, but must be established by evidence; and that defendant was entitled in a judicial consideration of the proofs to the application of the rule that the presumptions of the law are in favor of the innocence of the person accused. Held, that refusal so to charge was error. That the request was equivalent to a request to charge that in order to find fraud there must be evidence sufficient to overcome the presumption of fairness and good faith.
    Appeal from a judgment of the Yates country court on a erdict and also from an order of that court denying a motion for a new trial on the minutes.

      F. L. Brown, att’y for appl’t, Edwin Hicks, of counsel. Calvin J. Huson, for resp’ts.
   Smith, P. J.

Action for the conversion of a quantity of wagon hubs. The defendant claimed title as the assignee of the persons composing the firm known as the “ Shortsville Wheel Company,” which company, it is alleged, purchased the hubs of the plaintiffs.

It was shown by uncontradicted evidence that about the 20th of November, 1884, the plaintiffs, by their agent, Green, contracted to sell and deliver wagon hubs to the company at their place of business, at Shortsville, at the price of five cents for the small hubs and eight cents for the large ones, and that between that date and the first day of April, 1885, the plaintiffs, from time to time, delivered hubs under said contract. It was also proved that the company made payments on account of said hubs, from time to time, so that at the close of the delivery, there was due to the plaintiffs a balance, which, according to the testimony on the part of the defendant, and the account kept in the books of the company, amounted to the sum of $129.34.

The action was begun in a justice’s court, where the plaintiffs recovered a verdict of $197.97. The case was appealed to the county court and retried there, resulting in averdict for $152.70.

The contention of the respondent’s counsel is that the judgment may be sustained upon two grounds: First, that by the terms of the contract the counting and sorting of the hubs was a condition precedent to an acceptance, and that as to the hubs not counted and sorted, no title passed. Second, that the purchase was fraudulent, by reason of the fact that the purchasers, knowing themselves to be hopelessly insolvent at the time, and that they could not pay for the property purchased, failed to disclose that fact to the vendors.

The case was submitted to the jury by the county judge, in each of those aspects, and they rendered a general verdict for the plaintiffs in the amount above stated.

Upon the first branch of the case, the judge charged the jury, in substance, that if it was the intent of the parties to the contract that the hubs should be culled or sorted before their acceptance by the vendees, no title passed until the sorting was made, and that it was for the jury to say from the evidence whether such was the intent.

The appellant’s counsel contends that there is no evidence in the case to warrant the finding of an agreement or intent that the sorting or counting of the hubs was to be a condition precedent to the vesting of the title in the vendees,-and that the submission of that question to the jury was consequently erroneous. The point thus stated is raised by exceptions duly taken.

The only Avitnesses who testified to the terms of the contract are Green, the agent of the plaintiffs, called by them, and C. Heath and Jessup, two of the members of the company, called by .the defendant. All three were present when the contract was made. Green, on his direct examination, stated nothing about a contract. He testified merely to the fact of the plaintiff’s delivering hubs to the company, and their value. On his cross examination, the fact was elicited that the hubs were delivered under a special contract of sale, at an agreed price ; and he made a statement as to the terms of the contract, but said nothing about culling or sorting the hubs, until he Avas reexamined, when he testified that Heath said “ he wanted good blocks; that some we had draAvn there the year before had been a little soft in the center; they Avould sort the blocks. . . that they should accept only good blocks. I said that we should expect them to throw out anything that was not good.” ... “I told him that as often as we had a sufficient number of hubs drawn there to make it an object, to sort them up; that we should Avant to use money occasionally, as we Avould draw hubs. He agreed to that.”

That testimonj was substantially denied by Heath and Jes-sup, and each of them testified that nothing Avas said about sorting and accepting before the delivery should be complete and the title pass.

The plaintiffs also put in evidence an account kept by the bookkeeper of the company, by Avhich it appeared that he did not credit the plaintiffs, on the books, with hubs delivered, until they had been sorted and counted and their number reported to him. No invoices of the hubs were furnished by the plaintiffs, and, for aught that appears, the company had no other Avay of ascertaining the number delivered, than by counting them after delivery.

We think the case is barren of evidence to support the prop-, osition that the hubs were to be sorted and counted as a condition precedent to the vesting of title. It is apparent from the testimony that the hubs were to be delivered to the- company at its place of business before they were sorted. They were so delivered. The sorting and counting Ayere to be done by the vendees merely to enable them to ascertain how many of the bubs they wer^ pay for. It is like the case of Burrows v. Whitaker (71 N. Y., 291), cited by appellant’s counsel, where it was said, “ It is very plain that the object of the culling and counting or measuring, was merely as a means of ascertaining the total value, at the rates agreed upon ; and hence the title became changed, withoutthe entire lumber being culled, counted or measured.”

The sorting and counting were to follow and not precede the delivery, and were to be performed by the vendee. Those features of the arrangement are conclusive upon the question, under the circumstances of the case. In Macomber v. Parker (13 Pick., 175), the law, was thus laid down: “ the general principle is, that where any operation of weight, measurement, counting or the like, remains to be performed, in order to ascertain the price, the quantity or the particular commodity to be delivered, and to put it in a deliverable state, the contract is incomplete until such operation is performed. Brown on Sales, 44. But where the goods or commodities are actually delivered, that shows the intent of the parties to complete the sale by the delivery, and the weighing or measuring or counting afterwards would not be considered as any part of the contract of sale, but would be taken to refer to the adjustment of the final settlement as to the price.”

In Russell v. Carrington, (42 N. Y., 118,) Lott, J., speaking for the majority of the court, cited with approval the statement in the prevailing opinion in the court below, that “ the general rule on the subject is sufficiently expressed in the proposition, that when anything is to be done by the vendor in order to ascertain the value, quality or quantity of the goods sold, the delivery is not complete and the property does not pass to the vendee.” And he went onto say that the rule referred to is not applicable “ where the vendor is not to do the thing required.” See, also, Tyler v. Strang, (21 Barb., 198, 206,) Bradley v. Wheeler, (44 N. Y., 495.)

It is undoubtedly competent for the parties to provide by their agreement when the title shall pass, but here there is nothing in the contract, as shown by the testimony, to indicate an intent other than that the title should pass when the property was delivered.

The cases cited by the respondent’s counsel do not sustain his position, Stephens v. Santee, (49 N. Y., 35,) was decided upon the ground that by the contract the ties were to be inspected before delivery, and the vendee declined to accept them till they were inspected. Not having been inspected, it was held the title did not pass. See the comments on this case, in Hurd v. Cook, (75 N. Y., 459.) Bacon v. Gilman, (57 N. Y., 656,) is an authority against the respondents. In Foot v. Marsh, (51 N. Y., 288), the contract was held to be executory.

In what we have said, we do not refer to the calls or hubs that were rejected as defective. As to them, it is apparent the title was not intended to pass. If the defendant refused to deliver them, on a proper demand, he was doubtless liable for their value, but the recovery did not proceed upon that basis, and the verdict is for the whole amount which the plaintiffs claim was unpaid upon the entire contract.

Upon the other branch of the case, above stated, the trial judge, in effect, submitted it to the jury to say whether the defendant’s assignors purchased with the intent to get possession of the goods, without designing to pay for them, or whether,' being insolvent and knowing that fact, they had no reasonable hopes and did not believe, that by continuing their business, they could retrieve their fortunes and pay for the goods purchased.

A careful review of the case fails to disclose to us any evidence of fraud. The • contract was made about five months before the firm failed. No inquiries, and no representations, were made as to the financial condition of the firm. The plaintiffs had made sales to the firm previously, and may be presumed to have known something of their character and standing. There is no evidence that the members of the firm knew, at that time, that they were insolvent. They did not ask the plaintiffs for credit. They paid about five hundred dollars on the contract, in advance, on the day it was entered into. They made additional payments from time to time, as the property was delivered, and a balance of only about one seventh of the entire purchase price remained due at the close. In these circumstances, the bare fact that they found themselves insolvent, five months after the contract was made, is not, of itself, evidence that they made the purchase with a fraudulent intent.

The defendant’s counsel requested the judge to instruct the jury that the charge of fraud against the assignors of the defendant is of the nature of a crime and cannot be presumed, but must be established by evidence; and that the defendant is entitled, in a judicial consideration of the proofs, to' the application of the rule that the presumptions of the law are in favor of the innocence of the person accused. The request was declined and the defendant’s counsel excepted. What else was contained in the request than the elementary .proposition that fraud is never to be presumed, but must be proved ? That proposition is applicable to civil as well as criminal trials.- The judge was not asked to say that the fraud must be proved beyond all reasonable doubt, — he was merely asked to charge that in order to find fraud there must be evidence sufficient to overcome the presumption-of fairness and good faith. The refusal was error.

There áre other exceptions, but they need not be considered.

For the reasons' above stated we think the judgment should be reversed and a new trial ordered in the Tates county court, costs to abide event.

Baiíkeb,, Haight and Bradley, JJ., concur.

So ordered.


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    Laura A. Prior, by her guardian ad litem, Appl’t, v. Thomas E. Prior, Appl’t, and Jacob Hall, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1. Partition — Sale — Inadequacy of purchase money.
    A sale in partition will not ordinarily be set aside on the ground of mere inadequacy of the sum produced by the sale.
    2. Same — Code Civ. Pro., § 1533.
    In an action for partition of real'property, one of the defendants was a life tenant of the property and the plaintiff and the other defendant had a remainder. Held, that this case was within the provisions of Code Civ. Pro., § 1533, and that the property could not be sold in partition.
    3. Same — Effect of consent.
    If all the parties were sui juris, there might be no difficulty in supporting a sale against the prohibition in Code Civ. Pro., § 1533, because all objection to the sale would be overcome by their consent, and the distribution of the proceeds. The infancy of any of the parties however presents an obstacle.
    4. Same — Equities of third parties.
    Where such a sale had been made and the property bought and improved by persons not parties to the action, a motion being made to set aside the sale, it was held, that although the court might on motion exercise equitable powers, and adjust the equities of parties, opportunity should be given to these persons to be heard.
    Appeal from order of Erie county court denying motion to set aside a judicial sale of real property made pursuant to judgment in partition.
    The defendant, Jacob V. Hall, was a life tenant of the premises, and the plaintiff and the other defendant had the remainder of the estate in the land. This action was partition. The premises were sold. The life, tenant was paid from the proceeds the estimated value of his estate, and the residue was paid into ' court for the other parties, who were infants. This sale was made December 10, 1881.
    And the proceedings for the motion were taken in February, and the motion heard in April, 1886, in behalf of the infant parties. ■ The motion was denied. And Laura A. and Thomas E. Prior appeal.
    Roberts, Alexander & Plesser, for appl’ts; O. O. Cottle, for resp’t,
   Bradley, J.

The question of adequacy of the purchase money paid for the property on the sale was a disputed one of fact.

It appears that the sale took place more than five years before the motion was made to set it aside, and that in the meantime the rights of third parties who purchased a portion of the property have intervened. Ordinarily, in such case, a sale will not be set aside on the ground of mere inadequacy of the sum produced by the sale. The leading contention on the part of the appellants is, that the direction to sell and the sale were ineffectual because not permitted by any statute, but that on the contrary the sale was within the inhibition of the statute which provides that “ where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, any one of them may maintain an action for a partition, of the real property to which it attaches according to their respective shares therein, subject to the interest of the person holding the particular estate therein. But in such an action the property cannot be sold; and if it appears in any stage thereof, that partition cannot be made without great prejudice to the owners, the complaint must be dismissed. Code Civ. Pro. § 1533.

The relation of the parties to the land comes within the provisions of this section. And unless the direction to sell, and the sale are in some manner relieved from the operation and effect of the statute, there may be some difficulty in sustaining them in a direct proceeding for relief against the sale. ' The direction to sell, and the sale are not void, because the court had jurisdiction of the subject-matter of the action and of the parties to it. Cromwell v. Hull, 97 N.Y., 209. — It is a well settled proposition that a party having an estate in remainder cannot in such an action compel a present partition and sale of land against the consent of a life tenant. Sullivan v. Sullivan, 66 N. Y., 37 , Hughes v. Hughes, 63 How., 408.

And the purpose of this statute evidently was to distinctly declare the rule that a sale in such case should not be made, and therefore directed that when partition could not be made as between those having an estate in remainder or reversion, the action should proceed no farther. In this case the sale of the entire estate in the land was directed and made. And the life tenant does not object, but consents to tahe the amount' ascertained by means of the recognized rules for the computation of the value of such estates, and takes the sum so set apart for him. ' And if all the parties were then sui juris, there might be no difficulty in supporting the. sale so far as this question is concerned, because they could by consent overcome all objection to the sale and distribution of its proceeds. The infancy of the appellants, however, presents a question which may lead to a different conclusion. Scheu v. Lehning, 31 Hun, 183.

But without further considering this question, or now expressing any opinion upon it, we think the case cannot intelligently be disposed of upon the proofs before us. Within the long time intervening between the sale and this motion, the affidavits tend to show that portions of the premises have been sold by tbe purchaser at tbe sale to persons who have purchased in good faith; that in like manner taxes have been paid and improvements made on the lands. The persons who have made such purchases are not parties here. It cannot now be said that they have no equities. At all events they should have an opportunity to be heard. While the court may on motion exercise equitable powers, and adjust the equities of parties, and may direct that the necessary parties be brought in for that purpose; this is not a proper case to be disposed of on affidavits, as it is evident the facts would not be undisputed. The suggestion of the court below in that respect is approved.

But there is another difficulty in the way of considering here the decision of the motion by the county court. That court was called upon to exercise its discretion. This court cannot review the discretion of-that court. Reilly v. D. and H. C. Co.; 5 Eastern Reporter, 706.

The order should be affirmed.

Smith, P. J.; Barker and Haight, J.J., concur.


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    John McGivney, Appl’t, v. Jefferson L. Childs, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1 SUPPLEMENTARY PROCEEDINGS — INJUNCTION AGAINST DISPOSAL OF PROPERTY BY DEBTOR — PROPERTY ACQUIRED SUBSEQUENTLY NOT INCLUDED —Code Civ. Pro., §§ '2435, 2469.
    Plaintiff obtained an order in supplementary proceedings forbidding defendant from transferring or disposing of his property not by law exempt from execution. At the time of the service of the order upon him, defendant had two horses which with other things were mortgaged to one R. Subsequently, with the consent of the mortgagee, he traded one of the horses for another, some money and a note. Thereafter he paid to the mortgagee on a debt which he owed him but which was not secured by the mortgage, a sum of money and the note, which was received by him as cash. Held, That as the money and note were acquired subsequently to the service of the order, and not being owned by the debtor at that time, the order did not apply to them.
    2 Same — Property exempt from execution — Proceeds on sale of are exempt — Code Civ. Pro., § 1391.

      Held, That the horse that was traded being one of a team which was necessary to him in his business, was by Code Civ.Pro., § 1391, exempt from execution. And that the money and note, being the proceeds of the sale of such property, the exemption attached to them for a reasonable time.
    Appeal from au order made by the county judge of Erie, denying a motion in supplementary proceedings to punish defenddant for an alleged contempt.

      Charles F. Whitcher, for appl’t; Barnes & Knight, for resp’t.
   Smith, P. J.

The plaintiff, a judgment creditor of the defendant, instituted supplementary proceedings against the latter, under Section 2435 of the Code of Civil Procedure, and obtained therein an order forbidding the defendant from transferring or disposing of his property not exempt from execution. The order was served upon the defendant on the 17th of October, 1885. At that time the defendant had two horses, of the value of 225 dollars ; which, with three cows owned by him, were mortgaged to one Russell. On the 12th of November following, the defendant, with the consent of the mortgagee, traded one of the horses, a sorrel, for a bay horse, eighty dollars in money, and a note for fifteen dollars. Subsequently, and before the 20th of that month, he paid on a debt that he was owing to the mortgagee, but whieh was not secured by the mortgage, the sum of §88.65 in money, and the note for §15 which the creditor received as cash.

The plaintiff contended before the county judge, and now contends, that such payment was a violation of the injunction order, and rendered the defendant liable to be punished for a contempt. We think the county judge was right in deciding adversely to that contention. The money and the note were acquired subsequently to the service of the order, and not being owned by the debtor at that time, the order did not apply to them. This holding accords with numerous decisions under the old code. (Potter v. Low, 16 How. Pr. R., 549; Campbell v. Genet, 2 Hilt., 290; Graff v. Bonnett, 25 How. Pr. R., 470; Caton v. Southwell, 13 Barb., 335.) We do not understand that the rule has been changed by the present code. (See. Sec. 2469, C. C. P., and Throop’s note to same.)

Furthermore, the injunction order in this case did not apply to the money and note in the hands of the judgment debtor, for the reason that they were the proceeds of property sold by him, which was exempt from execution, and the exemption attached to such proceeds, for a reasonable time. (Tillotson v. Wolcott, 48 N. Y., 188.) The affidavit read in opposition to the plaintiff's motion, shows that the defendant had a family dependent' on him for support, and that the team of which the sorrel horse was one, was necessary to him in his business, The horse, consequently, was exempt. (Code C. P., § 1391.)

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

All concur.

So ordered.