text:
    ORLANDO M. BOGART and Others, Respondents, v. JOSEPH DART, Appellant, Impleaded, etc.

      Injury to personal property — what is — Code of Civil Procedure, sec. 635, sub. 3 — the property of one partner in the firm assets cannot be attached for the fraud of his absconding co-pa/rtner.

    A person who has been induced to make advances upon the faith of forged bills, notes and acceptances, has sustained an “ injury to personal property ” within the meaning of these terms as used in subdivision 3 of section 635 of the Code of Civil Procedure, prescribing the cases in which an attachment may be granted.
    The fact that one of two partners has been guilty of fraudulent acts, and has thereafter absconded from the State, will not authorize the granting of an attachment against the firm property, -where it appears that the other, partner has remained in this State, engaged in carrying on his business, and has been guilty of no actual misconduct. In such a case the attachment can only be issued against the property of the absconding and guilty partner.
    Appeal from an order made at Special Term, denying a motion to vacate and modify an attachment granted in this action.
    This is an appeal from an ordei denying a motion made by and on behalf of the defendant Dart to vacate and modify an attachment issued against property held by a firm in which he was a partner. The affidavit on which the attachment was granted, contained the following allegations : “ That the defendants, as partners under the firm name of Swezey & Dart, between the 1st day of October, 1880, and the 28th day of January, 1881, through fraud and deceit, and the use of false tokens, to wit, certain forged bills, notes and acceptances, and with intent to deceive and defraud these plaintiffs, induced the plaintiffs to advance to them, and the plaintiffs being so deceived and defrauded, and believing the said notes, bills and acceptances to be genuine and valid business paper, did advance to the defendants, between the dates aforesaid, by way of discount of the said forged bills, notes and acceptances, sums of money amounting in the aggregate to $62,512.13, no part of which has been paid.

      “ And deponent further says that he is informed by Joseph Dart, one of the said defendants, and verily believes the defendant John A. Swezey, who has had the entire management of the pecuniary affairs of the defendants, and who alone is responsible for the uttering of the said forged paper, and for the perpetration of the said fraud and deceit, has absconded and departed from the State with intent to defraud the creditors of said firm and to avoid the service of'a summons upon him.”

      Williann Stanley, for the appellant.

      B. F. BlaÁ/r, for the respondents.
   Daniels, J.:

The attachment directed the seizure of so much of the property óf the defendant Swezey, and of both defendants as copartners, as would satisfy the plaintifPs demand, consisting of the sum of upwards of $62,000. It was created by advances made upon the faith of forged bills, notes and acceptances. But while the affidavit in general terms charges both the defendants with the fraud, it appears by the concluding paragraph contained in it that it was perpetrated alone by the defendant Swezey. These facts created a •cause of action in the plaintiff’s favor against the firm, and it was an injury to personal property within the meaning of those terms as they have been used (Code of Civil Pro., sub. 3, § 635), for by subdivision 9 of section 2, chapter 449, Laws of 1876, and subdivision 10 of section 3343 of the Code of Civil Procedure, any act •other than a personal injury by which the estate of another is lessened or reduced is declared to be an injury to personal property. "According to these provisions sufficient cause of action was shown ■ upon which an attachment could lawfully be issued. But that, of ■ itself, did not entitle the plaintiff to this remedy. It was necessary, in addition to the right of action, that a further fact should be established before an attachment could be lawfully issued, and what that fact shall be has been defined by the provisions contained in sec- ' tion 636 of the Code of Civil Procedure. It must, according to the terms of that section, consist in the circumstance either that the defendant was not a resident of the State, or that he has departed therefrom with intent to defraud his creditors or to avoid the ’ service of a summons, or keeps himself concealed with that intent.

Other causes are also provided for which are not now required to be considered, because they are in no way connected with ■ this case. Por the purpose of bringing it within the language of this section it is stated in the affidavit, that Swezey who alone is responsible for uttering the forged paper and for the perpetration'of the fraud and deceit, had absconded from the State with the intent to defraud the creditors of his firm and to avoid the service of a summons upon him. As to this particular defendant this was all that was required to entitle the plaintiff to the benefit of the pro visions of the act allowing an attachment to be issued. But it appeared that the other member of the firm had in no manner departed from this State, or otherwise rendered himself obnoxious to the provisions of the statute declaring the causes required to be shown for the purposes of justifying an attachment. He, on the other hand, remained in the State engaged in the transaction of his business, and no actual misconduct of any description was alleged against him.

The provisions of the Code as they have been enacted have provided for the remedy by attachment only because of some specified delinquency on the part of the person or persons whose property is to be seized. They do not, because other persons may be connected in business with the party guilty of the misconduct, allow their property to be seized because of his act. But they provide for the issuing of the attachment against the property of one or more of the defendants who are shown to have committed one of the acts subjecting him or them to this remedy. And it is only against the person or persons who have been shown to have done what the statute, in this connection, has intended to prohibit, that the attachment can properly be issued. When it is issued it must be against the property of the person or persons who are shown to have done that which, according to subdivision 2, section 636, of the Code, can only be made the foundation of such a proceeding. In the present case but one of the defendants has left the State, either with the intent to defraud his creditors or to avoid the service of a summons upon him, and consequently he was the only person against whom a case was presented on which, by any possibility, an attachment could be issued. What the Code has provided in this connection is a remedy against the party whose misconduct has brought himself within its provisions. They are personal in their character and render the individual alone liable to be so proceeded against who has been guilty of one or more of the acts intended to be redressed by this mode of proceeding. It has not evinced the existence of any intent whatever to punish one person for the guilt of another. In this respect not only its terms, but also its spirit, require that it should be construed substantially the same as the other provisions have been, declaratory of the causes where parties in civil actions'may be arrested. (Hathaway v. Johnson, 55 N. Y., 93; Hitchcock v. Peterson, 14 Hun, 389.)

By the construction given to those provisions one party is not allowed to be arrested because of the fraud or misconduct of another, and from the terms made use of prescribing the cases in, and the circumstances under which attachments may be issued, it is evident that the legislature intended that a like policy should be observed.

The attachment upon the affidavit presented in this ease could only lawfully issue against the property of Swezey, who was the defendant shown to be in fault. As to the other party, no cause for issuing an attachment was either shown or in any form intimated. For that reason the attachment itself should be so far vacated as it directed the seizure of the property of the firm, and it should be limited in its effect to the property alone of the defendant Swezey.

Davis, P. L, concurred.

Present — Davis, P. J"., and Daniels, J.

Order modified as directed in opinion.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    AMERICAN GROCER PUBLISHING ASSOCIATION, Appellant, v. THE GROCER PUBLISHING COMPANY, Respondent.

      Trade mark —proprietary right in a name — when it is unneeessa/ry to show guilty knowledge or fraudulent intent on the part of the wnng-doer.

    The plaintiff has for many years published in the city of New York a paper called the American Grocer. In 1875 one Price, who had theretofore edited the plaintiff’s paper, left it and started for the defendant a new paper called the Grocer. Both, papers were issued in pamphlet form, were of about the same superficial size and were addressed to similar objects. The plaintiff’s paper had previous to 1875 been known as and called the Grocer, Price himself having so called it in his editorials, and a large portion of its correspondence feeing so addressed. The defendant located its office in the same block and on the same side of the street as that in which the plaintiff had its office, and the plaintiff having subsequently removed to another place, the defendant did likewise. Price on leaving the plaintiff announced his withdrawal to its subscribers and his intention of starting a new paper.

      Held, that even if the evidence failed to show an intention on the part of Price to encroach upon the plaintiff’s business, yet the plaintiff was entitled to an injunction restraining the defendant from the publication of any paper called the Grocer or the American Grocer, as it had acquired a proprietary right in that name.
    In such a case neither guilty knowledge nor fraudulent intent on the part of the wrong-doer need be shown.
    Appeal from a judgment, entered upon a trial at Special Term, dismissing the complaint upon the merits.
    The action was brought to restrain the defendants from using the word “ Grocer,” either separately or in conjunction with any other word, as a name for a trade newspaper published by them.
    The plaintiffs are a corporation and for many years prior to the publication of the first number of the defendant’s paper published a paper in the city of New York called the American Grocer, which was known as and commonly called the Grocer. Mr. ~W. H. O. Price was its editor until 1875, when he ceased to act in that capacity and began the initiation of a new paper, the first number of which was issued on the 11th of December, 1875, and which was called the Grocer. Both papers were in pamphlet form and of about the same superficial size and were addressed to similar objects. It appears, in addition to this, that prior to December, 1875, the American Grocer was known as and called the Grocer, and was so designated by its subscribers. Mr. Price, during his editorship, himself frequently so called it in his editorials, and a large portion of its correspondence was so addressed. The circulation of the plaintiff’s paper is by mail chiefly over the United States and Canada. The defendants’ paper was started on the same block in this city, and on the same side of the street as the plaintiffs’; that is to say, the defendants selected as the location of their office tüe same block and side of the street as that adopted by the plaintiffs. It further appears that the plaintiffs having removed their office of publication to West Broadway, between Reade and Duane streets, the defendants did likewise.

      The Grocer, as appears also from the testimony in the case, was started at the price of two dollars per annum for the avowed reason that the sum charged for the plaintiff’s paper, three dollars, was too high. This is apparent, because in his prospectus Mr. Price said: “ I shall put the subscription price at the very moderate rate of two dollars a year, having for some time been convinced that the price of the American Grocer was too high.” It was further proved on the trial that no correspondence addressed to the Grocer came after that time to the plaintiff, and, further, that there was no other paper published in the city of New York with a name that would lead to its being called the Grocer.
    Mr. Price testified upon the trial that the only reason the name Grocer was selected was because no other title could be thought of, that Avould indicate the purpose and character of the paper. But he admitted that he had heard of the Grocer’s Price Current, and also the Grocer and Produce Review, neither of which was ever called the Grocer. And in reference to the location of its office of publication on the same block in Chambers street as the plaintiff, he said that it was at a time of the year when it was very' difficult to make a choice; that they had found a vacant loft at No. 163 that would suit their purpose, and that they had moved to West Broadway because it was thought to be one of the best places in the city to have an office, and, further, that they had had their eyes on that locality for some time.
    It appears, also, that when Mr. Price ceased to be the editor of the plaintiff’s paper he addressed numerous of its subscribers, announcing his withdrawal from that publication and expressing his intention to establish a new paper. And it also appears by the evidence offered on behalf of the defendant that several dealers in the city knew of both papers, and likewise the difference between them. But there is some evidence in the case given on behalf of' the plaintiff showing that some confusion existed in consequeneeof the similarity of the names of the papers, a part of the plaintiff’s patrons having mistaken the defendant’s paper for that of' the former.

      E. More, for the appellant.

      Hugh Porter, for the respondent.
   Brady, J.:

The learned justice who presided at the Special Term disposed of this case in a very brief opinion, declaring that the views enunciated by Justice Lawrence upon the decision of the motion for an injunction seemed to him to cover the case as then presented. And the latter justice was evidently influenced by the facts that the whole equity of the complaint was denied and that the papers, after a careful inspection, did not present such a resemblance as would justify him, on such a motion as that which he was considering, in determining that the defendant’s paper was intended to be passed off upon the public or that it would be likely to be purchased by the customers as and for the plaintiff’s paper. He thought the case presented to him was within the rule laid down in Snowden v. Noah (Hopkins’ Ch. B., p. 347), which he reviewed and commented upon.

The respondent relies upon the case, which was referred to by Justice Lawrence, and also upon the case of Bell v. Locke (8 Paige, 75), in which the chancellor refused to enjoin the publication of the defendant’s paper; but that decision would seem to rest upon the ground that he did not regard the defendant’s paper as such a simulation of the plaintiff’s publication as to injure the circulation' of the latter by deceiving the public and inducing the belief that it was in reality the same paper. This doctrine of resemblance seems to have been the controlling element in the consideration of both of these cases, and sustains the conclusion in regard to them which was adopted by Justice Lawrence in his consideration of the question involved.

Upon the question of the intent of Mr. Price there are perhaps strong circumstances tending to establish the fact that the original design was to encroach upon the plaintiff’s business. These circum-stances are the adoption of the name of the Grocer for his paper and the location of its offices in the immediate vicinity of those occupied by the plaintiff. It is quite apparent that many designations other than that of the Grocer simply, might have been employed for his paper, the adoption of which would not have resulted in any confusion. He knew that the plaintiff’s paper was frequently designated the Grocer merely, and that he so called it himself whilst lie was its editor; and it must be assumed from the position that he occupied that he had abundant intelligence to understand that some trouble might arise in the receipt of the correspondence of the plaintiff’s paper, which as he knew very often came addressed simply to the Grocer; and being so directed after the establishment of the new paper by him, it wmild go to the office of the latter paper, unless it was specifically addressed to the premises occupied by the plaintiff. This conduct may be entirely compatible with fair rivalry in journalism, but it must be admitted that it does not create that impression.

The plaintiff’s paper had been well established, doubtless through the effective management of Mr. Price, and its reputation would therefore ensure its patronage, and it was entitled to protection from him as a citizen, unwilling to be engaged in any effort to destroy its value or interfere with its advantages.

But it is not necessary under the rules of law, as they now prevail in this State, in regard to trade-marks, to determine whether there was an intent to do wrong or not. The recent determinations of the Court of Appeals seem to place the right to protection upon the infringement of the proprietary right acquired by the use of a symbol or figure, or letter, or other form of device or name. It was distinctly said, for instance, in Coleman v. Crump (70 N. Y., 578), “ neither is it necessary to establish guilty knowledge or fraudulent intent on the part of the wrong-doer. It is sufficient that the proprietary right of the party and its actual infringement is shown.”

And in the more recent case of Hier v. Abrahams (82 N. Y., 524), the court said: “ But wffiere the trade-mark consists of a word, it may be used by the manufacturer who has appropriated it in any style of print, or on any - form of label, and' its use by another in any form is unlawful, * * * and this accords with the authorities. The goods become known by the name or word by which they have been designated, and not merely by the manner or fashion in which the word is written or printed, or the accessories surrounding it, and the unlawful use of the name or word in any form may be restained.”

And the doctrine is declared in that case also, that an actual intent to defraud can hardly be deemed necessary to entitle the plaintiffs to restrain the defendants from continuing the unlawful use of a trade-mark, whereby the plaintiffs are sustaining damage; and it is said that the violation of such a right is, in legal contemplation, a fraud. If in this case, for example, it can be shown that any confusion is occasioned by the use of the name by the defendants in their business, it is a damage. It would involve investigation, and it would, no doubt, lead to labor or create an element which would not necessarily enter into the business of the plaintiff and require consideration. if ihe defendants’ paper were not published.

The case of Howard v. Henriques (3 Sandf., 725) sustains the proposition that the use by the defendants of an imitation of the name of the plaintiff’s paper should be restrained. In that case it appears that the plaintiff’s hotel was called the “ Irving House,” but it'soon became generally known as the “ Irving House ” and “Irving Hotel” indiscriminately. The defendants named their house the “ Irving Hotel.” There was no question of resemblance between the two hotels or the two signs. It was the name that was protected, not the name which plaintiff took, but one of the names by which his hotel was known.

In Clement v. Maddick (5 Jur. [N. S.], 592), the proprietor of Bell’s Life in London and Sporting Chronicle obtained an injunction restraining the proprietors of The Penny Bell’s Life and Sporting News from using any title which included Bell’s Life, by which name the complainant’s paper was known familiarly.

In Ingram v. Stiff (5 Jur. [N. S.], 947), the London Journal, a weekly paper, restrained the defendant from publishing a daily London Journal. And Mr. Brown in his treatise upon trade-marks, sections 415 to 418, presents a very interesting synopsis of some French cases. In one of the plaintiff’s journals, the Moniteur Universal had become known as the Moniteur. The defendant’s paper adopted the title Moniteur Official of the French Empire. It was 'held that the title of a journal is property, and the use of the word Moniteur, either singly or with the qualification Official, was enjoined for the reason that it incontestibly appeared that the Moniteur Universal, whether as a daily, political and literary sheet, or as an historical collection, had always been known by the simple title Moniteur. In. another case in which the publication was The Press, the Free Press was enjoined, although the papers belonged to different parties and addressed themselves to different classes of readers.

In another, the defendants having adopted the title Petit Journal, which was the title of the paper published by the plaintiffs, added the words de la Somme, which were printed in smaller characters. The judgment declares that the title of a journal is the exclusive property of its founder, and to give to a new journal the title already belonging to another would be a usurpation of property, and consequently an act of unlawful competition. An injunction was therefore granted forbidding the further use by the defendants of the words Petit Journal.

These French cases are in harmony with the decision made in Howard v. Henriques (supra).

In the Dixon Crucible Company v. Guggenheim (2 Brew., 321), it was said: “ The name of a newspaper is a trade-mark, as much so as a label stamped upon a bale of muslin. Can it be supposed that if some one were to commence the publication in this city of a ‘Public Ledger’ of the same size, price and style as the one published by George W. Childs, that a court of equity would not promptly arrest the career of such a piratical craft by an injunction ? ”

And in Stevens v. De Couto (7 Robt., 343), Judge Monell said: “And I have no doubt that the names so long appropriated and used of the New York Herald, or the Sun, would be protected as trade-marks.”

These authorities, with the enlarged doctrine as announced by the Court of Appeals in the cases to which reference has been made, leave no doubt of the right of the plaintiffs to the interposition of this court to protect it from the publication of any paper called the Grocer, or the American Grocer, the plaintiff’s publication being well known by either or both of these names.

And the result of this review must therefore be to reverse the judgment of the Special Term, and to order a new trial, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, new trial ordered, with costs to abide the event.


author: Beady, J.:

text:
    WILLIAM E. MARSH, Appellant, v. CHARLES F. CHICKERING and GEORGE H. CHICKERING, Respondents.

      Master and servant— when the question of the servant’s :negligence in using defective machinery, after a promise of the master to repair it, should he left to the jury.

    The plaintiff, who was employed by the defendants to light a lamp at the entrance of a building owned by them, testified that while trying to light the lamp the ladder used by him broke; that he met one of the defendants that night, told him of the accident, and suggested that the new ladder should have hooks on it, to which the defendant assented, and told him to see the superintendent and have the new ladder hooked and spiked; that the plaintiff saw the superintendent several times, and requested that the new ladder should be hooked and spiked, and that the superintendent promised that it should be done; that when the new ladder arrived without hooks or spikes, he complained to the superintendent, who promised he would have them put on; that he continued to use the ladder until on one stormy night it slipped and he fell to the ground and broke his leg.
    In an action to recover for the injuries so sustained, held, that the question as to whether or-not the plaintiff was guilty of contributory negligence in continuing to use the ladder, with knowledge of its defective condition, after the promise of the superintendent to have it repaired, should be submitted to the jury.
    Appeal from an order made at circuit, dismissing tbe complaint, and directing the exceptions to be heard in the first instance at the General Term.

      A. R. Dyett, for the appellant.

      Spencer G. Doty, for the respondents.
   Beady, J.:

The plaintiff was in the employment of the defendants and it was a part of his duty to light two lamps outside of the building known as Chickering Hall, and at the entrance thereof. Hpon the trial he testified that the first ladder used by him was a new one, which became wet and frosty ” lying under the stoop, and broke while he was using it; that upon the night of this occurrence he met Mr. Charles F. Chickering, one of the defendants, and told him that he had met with an accident, stating what it was and suggested to him that he ought to have another ladder with hooks on it; to which Mr. Chickering responded: “ Yes, I think so, too, and you had better go down and see Mr. Burrill, the superintendent, and tell him to get another ladder and have it hooked as you want it — hooked at the top and spiked at the bottom.” It appears, further, that the plaintiff made the communication to Mr. Burrill, as instructed by Mr. Chickering, two or three times, and requested that the new ladder, which had been bought by order of Mr. Chickering, by Mr. Burrill, should be hooked and spiked, and that Mr. Burrill promised to do as he was requested in this regard. It further appears that the plaintiff used the new ladder the first night it arrived and without spikes or hooks, but complained of it to Mr. Burrill, who again promised to have it hooked and spiked; Mr. Burrill expressly promising that he would have it attended to. The plaintiff continued to use this ladder until, it appears, on a very stormy night, described by him as a terrible night, when it was blowing, raining, snowing and sleeting, he went outside to light the lamps which, it would seem, was necessary, because there was an entertainment to be given in the hall on that night. It was about five minutes before seven. He succeeded in lighting seven out of the eight burners of the south lamp, and on lighting the eighth burner the ladder slipped with him and he fell and broke his leg. And it appears that the ladder slipped because there was nothing to hold it; in other words, it was not hooked and spiked, or either, as contemplated by the promise which was made to the plaintiff by Mr. Chickering and Mr. Burrill, the latter of whom, it would seem, was the person selected to do the work as the’’superintendent. The case contains, also, the evidence of experts, that hooks and spikes on ladders used for the purposes of lighting lamps similar to those at the hall of the defendants, are necessary to keep them firm and inferentially to prevent accidents such as that which occurred to the plaintiff. The plaintiff testified also, in relation to the subject, that when the promise was made to him by Mr. Burrill, that the ladder should be fitted with hooks and spikes, he believed that it would be done and relied upon the promise and continued to use the ladder.

When the plaintiff rested the counsel for the defendant moved to dismiss the complaint upon the following grounds, viz.:

First. That the injury alleged in the complaint was occasioned by the negligence of the plaintiff.

Second. That the injury alleged in the complaint did not happen from the negligence of the defendants.

Third. That the injury to the plaintiff happened by an act to which the plaintiff contributed, and to which the defendants in no way contributed.

Fourth. That the alleged injury to the plaintiff was not caused solely by the neglect of the defendants.

Fifth. That the defendants never instructed the plaintiff to use the ladder.

Sixth. That the plaintiff used the ladder of his own volition, and in the exercise of his own judgment and discretion, without any instructions or suggestions from the defendants.

Seventh. That the defendants are not liable for the reason that the plaintiff was specially employed by the defendants, and the plaintiff, therefore, assumed to act for himself and choose the methods by which he should perform his work.

Eighth. That the plaintiff had the same means that the defendant had of knowing that the ladder was unsuitable and defective.

The motion was granted and the plaintiff duly excepted. The coun«el for the plaintiff asked to go to the jury, both on the question of the negligence of the defendants and the plaintiff’s contributory negligence, which motion was denied and an exception to such denial duly taken.

The principles enunciated in the case of Laning v. The New York Central Railroad (reported in 49 N. Y., 521) are applicable to and controlling upon the question presented for consideration in this appeal. Among other expressions used by the court in the elaborate opinion of Eolgbr, J., we find the summary of a rule applicable to actions of this character, namely: “And where a servant knows as fully as the master of the existence of that which is at last the producing cause of the injury, and continues, without promise of amendment of the defect, of his own accord in the master’s employ, exposed to the effects when they shall come, it may constitute contributory negligence on his part to remain thereafter in the service,” the learned justice citing a number of cases of- which this-rule is predicated. And it was held in that case that although the plaintiff knew that Westman, the person who was superintending the erection of the scaffolding upon which he was to work, was drunk on the day that the scaffold was finished, and although it might be negligence for the plaintiff to remain in the employment of the defendant subject to the direction of Westman and liable to evil results from work done under his supervision, which was liable to be an insufficient and negligent supervision from his perception being clouded and dulled by drink, yet, nevertheless, the question of contributory negligence to the injury received was a question, for the jury. And the case of Holmes v. Clark (10 W. R., 505) was approved, in which it was held that there is a formidable distinction between the case of a servant who knowingly enters into a contract to work on defective machinery and of one who, on a temporary defect arising, is induced by the master, after the defect has been brought to the knowledge of the latter, to continue to perform his service under promise that the same shall be remedied.

And this proposition seems to be sustained by the case of Hough v. The Texas and Pacific Railroad Company (Rep., vol. 9, p. 193), and to be recognized by Mr. Cooley in his work on Torts, 559, in which, upon the authority of cases cited, he states the rule to be that if the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of .assurances that the danger shall be removed, the duty to remove is manifest, imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover the assurances remove all ground for argument that the servant by continuing the employment engages to assume the risk.

These adjudications are sufficient to sustain the legal conclusions that the continuance of the use of the ladder by the plaintiff, after promises on the part of the defendants that it should be so constructed as to remove the pending danger, was not per se negligence-on his part, although it might be so declared by the jury upon a consideration of all the surrounding facts and circumstances, and that whether it was or not is a question to be submitted to the jury. It is fairly inferable from the nature of the plaintiff’s employment, and from the character of the defendant’s hall, that the lighting of the lamps was a necessity in the transaction of their business and must be done; and as it was the plaintiff’s duty under his employment to do it, it must be done by him and the danger assumed. He seems to have been impressed with the necessity of having guards placed upon tlie ladder, and as soon as that condition was attained, and which seems to have been after the first accident related by him, he advised the defendants and received promises that the protection suggested should be furnished in the improvement of the ladder with the design to accomplish its greater safety. He continued to discharge his duties under the promise, under protest, as it were, because he rested upon the belief that the defendants would discharge the duty they owed him, and whether under the circumstances he voluntarily accepted the danger was a question about which the jury might or might not entertain any doubt.

The circumstances referred to should all have been submitted to the jury for their consideration under the authorities, and it was an -error therefore to take the question from the jury. It was a right of the plaintiff’s to have them pass upon it, and to determine it either for or against the plaintiff, as well as the defendants’ negligence in omitting to do what the latter had admitted was necessary for the security of the plaintiff in the discharge of the duties of his employment..

For these reasons we think the complaint was improperly dismissed, the exceptions well taken, and that a new trial should be ordered, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, new trial ordered, with costs to abide the event.


author: Daniels, J.:

text:
    THE GERMAN SAVINGS BANK, Plaintiff, v. EMILIE SHARER, Administratrix, etc., and CONRAD STEIN, Defendants and Appellants, Impleaded with Others, Respondents.

      Surplus moneys — when the court can distribute them after the death of the owner of the land — how to be distributed — right of a creditor to be made a party — what costs can. be allowed.

    Where, after the death of the owner of real estate, an action is commenced to foreclose a mortgage thereon, in which a sale thereof is had in pursuance of a judgment of the court,.the surplus moneys arising upon the sale may he distributed by and under the direction of the court.

      Chapters 658 of 1867, and 170 of 1870, requiring surplus moneys to be |iaid over to the surrogate, do not apply to sales made in pursuance of a judgment of the court.

      Loucks v. Van Allen (11 Abb. [IT- S.], 427) followed.
    The surplus moneys should be distributed ratably among all the general and judgment creditors of the deceased owner, after notice to them and an opportunity given to appear and be heard. '
    Where a general creditor, who had no notice of the proceeding, until after the entry of the order confirming the report of the referee as to the distribution of the moneys, applies to be made a party to the proceeding and to have an opportunity to be heard, his application should be granted.
    In proceedings for the distribution of surplus moneys, motion costs and disbursements only can be granted. ITo allowances can be made.
    Appeal by the administratrix and by Conrad Stein, a general creditor of the intestate, from an order confinning the report of a referee and directing a distribution of the surplus moneys arising upon a sale in foreclosure, and from an order denying the application of Stein to become a party to the proceeding, made after the entry of the order confirming the report of the referee, and from an order denying a motion to resettle one of such orders.

      A. C. Brown, for the appellants.

      Sigismimd Kaiifman, for the respondents.
   Daniels, J.:

The surplus which has been directed to be distributed arose upon a mortgage sale, by which the title and interest of two different persons in the mortgaged property was sold. The rights and interests of the claimants to so much of the surplus as was created by the share of one of the joint owners in the property were ascertained without serious difficulty. As to that no complaint has been made, and it forms no part of the contest brought before the court by the present appeal.

The share of the surplus now in question was derived from the interest of John Sharer in the estate. He died before the commencement of the foreclosure suit, leaving personal property of no significance by way of value. In the proceedings before the referee all of his creditors, except the appellant Stein, presented their debts for payment, and as such debts and expenses left only the sum of one dollar and sixty-one cents, the surplus was practically distributed between them. These debts, as there was no personal estate, were in the nature of charges upon the real estate of the intestate debtor, and attached in the same manner to the surplus when it was realized in the action prosecuted for the foreclosure of the mortgage. This resulted from the statutory enactments existing upon this subject, providing for the application of the real estate for the payment of the debts of the intestate, when the personalty has been found to be insufficient for that purpose. (Hyde v. Tanner, 1 Barb., 76; Roe v. Swezey, 10 id., 247.) It is only the residue remaining after payment of the debts which can be divided between the heirs or devisees of the deceased debtor. (Erwin v. Loper, 43 N. Y., 521.)

The court came into possession of this fund subject to these charges in favor of the creditors. And as it surely had jurisdiction over the action through which the fund was derived, it had the power to retain it until the rights of claimants to it were settled, unless that had been taken away by the statutes which will presently be noticed. For it is a well settled principle of courts of equity, when jurisdiction of an equitable subject matter has been once properly acquired, that it will be retained until a full and complete disposition of the controversy has been made. (Taylor v. Taylor, 43 N. Y., 578, 584; Gilian v. Norton, 33 How., 373 ; Story’s Eq. Jur., §§ 796, 797.) The power to accomplish the same end. was also within the jurisdiction of this court as a court of equity to settle and adjust the accounts of executors and administrators. (Rogers v. King, 8 Paige, 210.)

But in its administration it should observe the requirements of the statute in proceedings to obtain that end. As to the fund so to be distributed, all the creditors having no lien by way of judgment or mortgage or other similar incumbrance on the land, stand upon an equality. They are under the statute equally entitled to share in the distribution of the fund. And the circumstance that several of them in this case had recovered judgments for their debts by default against the administratrix did not work any change in the application of that principle. For the purpose of observing it an opportunity should have been afforded all the creditors to present and substantiate their claims. And ordinarily the course prescribed by the statute for executors and administrators is the only one which can be either safely or properly adopted. But this case ■could very well be an exceptional one in that respect, for the reason that it was made to appear that all the creditors had appeared •and been heard, except the appellant Stein. There was therefore no necessity for publishing notice requiring creditors to appear and present their claims, as the facts have been finally made to appear in the proceeding. But something more should have been done than was provided for before the fund was distributed to prevent this creditor from being left entirely out of the case. He was as completely entitled to his share of the fund as wais either of the other creditors. And still no opportunity was extended to him to appear and establish his claim. But the proceeding was carried on entirely without him, and no notice, either actual or constructive, was given to him that it was in progress. This violated a fundamental right in the enjoyment of which he was entitled to be protected. He .had done nothing.whatever for which he could be lawfully deprived of this .right, and as he had received no information of the proceeding lie could not properly be charged with neglect because he had omitted to present his claim at an earlier period of time than he did.

The fact that the other creditors have received the money which was probably payable to him cannot change the legal aspect of the case. That a wrong has been done to him through their agency or participation is no reason whatever why it should be rendered still - further effectual by denying him all opportunity for redress. He is entitled to be heard, and in case he establishes his claim as a charge upon this fund, he should also have the assistance of the court in the way of redressing the wrong to which it has unintentionally been made a< party. The least ■ that can be done is to open the proceeding and afford him an opportunity of being heard before the referee, leaving him at liberty, if he shall thereupon be successful, to seek further redress by availing himself of all appropriate legal remedies for the purpose of securing what may be just and right in the case.

Chapter 658 of the Laws of 1867, as it was afterwards amended by chapter 170 of the Laws of 1870, has not deprived the court of its jurisdiction over surplus funds, produced as this fund appears to have been. For neither act was made to include such a surplus arising ont of an action in court. In terms the direction given controlled only the conduct of a person or corporation making a. mortgage sale. This sale was not made in that manner, and it was-the court that received and became charged with the obligation of properly distributing the surplus. This subject was carefully considered by Mr. Justice Learned in Loucks v. Van Allen (11 Abb[N. S.], J2Y), and that was his conclusion. The statute by all fail-rules of construction sustains that view, and there was consequently no legal necessity for sending this fund into the hands of the administratrix or of the surrogate for distribution. It could well be done-by the court by conforming its proceedings, as far as that was practicable, to what had been provided for by the statute to secure an equal distribution of the fund among the creditors of the intestate,, and that end would have been attained if the omitted creditor had. been brought into the proceeding.

It was not proper to pay the fees of the referee in the entire proceeding out of this particular surplus. A substantial portion of his-services were performed in determining what should be done, as he did, with the other half of the surplus. And for them he should have been paid out of that fund.

The proceeding too was not one for allowances to counsel. The-provisions made upon that subject apply only to the proceedings and costs in actions. All that can be allowed upon an application of this nature beyond the disbursements, are mere motion costs-for such motions as may be properly made.

In the judgments recovered against the administratrix costs have-been included. This was not allowable, as a matter of course, as the award of costs appears to have been made. And while the administratrix might not now be permitted to contest the right to the costs, the creditors entitled to payment out of this fund stand-in an entirely different situation. They have the right to insist that the fund shall be equally and proportionately applied on the debts of the intestate, and for that reason that these costs, not legally recoverable, because not specially obtained on motion, shall be excluded from the computation. The orders made for the distribution of the fund, and denying the application of Stein to be-allowed to appear and prove his claim, should be reversed, with ten dollars costs, besides disbursements, and an order should be entered sending the case back to the referee for further proof, and for a distribution of the fund ratably among all the creditors of the intestate.

Dávis, P. J., and Brady, J., concurred.

Orders reversed with ten dollars costs and disbursements.


text:
    ELIZABETH J. HAINES, Respondent, v. CHRISTOPHER MEYER and WILLIAM H. BREEDEN, Appellants, Impleaded, etc.

      Bond of foreign executor — when an action will tie against Ms sureties, although the statutory prerequisites ham not been complied with.

    The defendants became sureties upon a bond given in the form prescribed by-statute (3 R. S. [6th ed.], 73, § 7) by one Edward Fox, a resident of the State of Pennsylvania, upon the issue to him of letters testamentary upon the estate of one Richard Fox, who had died in the city of New York, by the surrogate of that county. After his appointment the executor received and converted to his own use certain property of the estate, and thereafter died in the State of Pennsylvania wholly insolvent. Letters of administration with the will annexed having been thereafter issued by the surrogate of New York to the plaintiff, she, as such administratrix and as a legatee, brought this action against the sureties to recover the amount misappropriated by their principal.

      Held, that although the statutory prerequisites to an action upon the bond could not in this case be complied with, yet as the statute contained no provision, either in terms or by fair implication, restricting the rights of the parties entitled to indemnity to the proceedings prescribed by it, the plaintiff was entitled to maintain this action in equity, as otherwise she would be remediless.
    Appeal from an order overruling demurrers interposed to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

      J. Sandford Potter and William A. Boyd, for the appellants.

      Albert Smith, for the respondent.
   Daniels, J.:

It appears by the complaint that on. or about the 29th day of September, 1861, Richard Fox died at the city of New York, leaving a will, by which'Edward Eox and another person, both residents of the State of Pennsylvania, were named as the executors of his estate. In May, 1864, letters testamentary upon the estate were issued by the surrogate of the county of New York to Edward Fox, the other person nominated as executor having declined to qualify.

On receiving such letters the executor, in compliance with the requirement of the surrogate, gave a bond in the form prescribed by the statute, in which the two appealing defendants became his sureties. After his appointment and the execution and delivery of this bond, the executor received property belonging to the estate, from which he is stated to have realized not less than the sum of $10,000. This property he converted to his own use, and never distributed any portion of it as the executor of the estate. After this misappropriation of the estate, and in the month of January, 1877, the executor died, in the State of Pennsylvania, wholly insolvent. In March, 1878, the plaintiff received letters upon the estate, left unadministered by the executor with the will annexed, from the surrogate of the county of New York. And upon that authority, as well as her right to participate in the distribution of the estate as a legatee, this action has been brought by her against the sureties on the executor’s bond.

This bond was required to be in like form as that prescribed for administrators in cases of intestacy (3 R. S. [6th ed.], 73, § 7), and the bond was in fact given in that form. It was, as the law required it to be, conditioned that the executor should faithfully execute the trust reposed in him as executor of all and singular the goods, chattels and credits of Richard Eox. Under the terms of this condition he became obligated to preserve and protect the property of the estate, to apply it to the payment of the testator’s debts, and to distribute the residue according to the terms of the will. By the conversion of the property and its appropriation to his own use, this duty he wholly failed to discharge, and the consequence was that his bond became forfeited, and his sureties, according to its terms, were rendered liable for the consequences of his misconduct. A clear right of action had accrued in the ease, and the plaintiff, under the letters issued to her, has been vested with the authority of enforcing it.

But under the statutes relating to the conduct of executors and administrators, and the distribution of the estates of deceased persons, the liability of these sureties cannot be enforced by any proceeding which has in terms been provided, for no settlement of the estate can be obtained before the surrogate, and no such decree made by him, as in the language of the statute, would form the basis of an action on this bond. For that purpose it is rendered either essential that the executor shall refuse or omit to perform a decree made by the surrogate against him, or that a decree of the surrogate shall be filed and docketed, and an execution to collect its amount be returned unsatisfied. (3 R. S. [6th ed.], 125, § 19; 329, § 19.) •

The case is in such a form as not to be within this power or jurisdiction of the surrogate over it, and by following the proceedings provided for by the statute the liability of the sureties upon this bond for the default of their principal cannot be enforced. The case presents a clear liability within the terms of the bond, without any proceeding prescribed by the statute through which it may be enforced. The statute, however, contains no provisions either in terms or by fair implication restricting the rights of parties entitled to indemnity, under such a bond, to the proceedings which it is provided may be instituted. No restraint has been imposed in any form preventing the parties entitled to that redress from -obtaining it in any manner conformable to the established principles of courts of law or equity. And under these principles, where a right is found to exist which cannot otherwise be enforced against the parties liable, resort for that purpose may be made to a court of equity. (Hudson v. Reeve, 1 Barb., 89, 92; Brown v. Brown, 1 Barb. Ch., 189, 217.) In this case it was stated by the chancellor that the court “ proceeds upon the principle that wherever there is a right there ought to be a remedy either in this or some other tribunal; and where no remedy exists elsewhere to enforce the right this court will furnish such remedy, whenever it is necessary to prevent a total failure of justice where the property in controversy or the person of the wrong doer is within the jurisdiction and •control of the court.” A similar principle was acted upon in Watson v. Sutherland (5 Wall., 74), where it was said that the absence of a plain and adequate remedy at law affords the only test of equity jurisdiction. (Id., 79.) The authority of this principle was in no manner shaken by the determination of the court of errors in Durant v. Supervisors of Albany County (26 Wend., 66), for the chancellor’s decree was reversed solely for the reason that the statute prescribing the .cases in which a creditor’s suit may be maintained did not by any fair construction authorize the action prosecuted in that case. A point in its nature very much like that upon which this action is dependent was presented and considered in the case of Carow v. Mowatt (2 Edw. Ch., 57). And after a very full examination of the authorities it was held that such an action as the present one upon the bond could be maintained in equity. This case rests upon statutory provisions very similar in their nature to those now applicable to the present controversy, and it was held, because of their deficiency in not providing for the enforcement of the liability of the sureties upon the bond, under circumstances similar to those now presented, that an action to enforce it could properly be prosecuted in a court of equity. A like point was before the court in Towner v. Tooley (38 Barb., 598), where it was conceded substantially that such an action might be maintained, but it was defeated in that instance because of a defect of parties. And the doctrine of the case of Bate v. Graham (1 Kern., 237), tends to confirm the same conclusion.

■ V point somewhat similar to the present one was examined in the case of Williams v. Kiernan, not yet reported, where a like conclusion has been reached. And for the reasons there as well as now stated, there seems to be no substantial ground for doubting the right of the plaintiff to maintain this action upon the bond. The judgment or order from which the appeals have been taken should be affirmed, but allowing the defendants to answer upon the usual terms.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed, with leave to defendants to answer on the usual terms.

       See ante, page 355.


text:
    THE RECTOR, CHURCH WARDENS AND VESTRYMEN OF CHRIST PROTESTANT EPISCOPAL CHURCH IN THE CITY OF NEW YORK, Appellant, v. JOHN MACK and RHODA E. MACK, Respondents, Impleaded, etc.

      Conveyance of land subject to a mortgage — vests the'legal title in the grantee — his title is not altered by his purchasing the land at a sale on the foreclosure of the mortgage — he does not thereby relieve the property from easements to which it was ■ subjected by the provision of a deed executed subsequently to the mortgage.

    March 3, 1859, the plaintiff, which owned certain premises in the city of New York, sold in pursuance of a prior agreement a portion thereof to the defendant John Mack, subject to a mortgage of $11,000, which the grantee assumed and agreed to pay, reserving an easement of light for certain of the windows in a building belonging to the plaintiff and situated on the adjoining lot. In May, 1863, Mack conveyed the premises to C., who on the same, day conveyed them to the defendant Rhoda, the wife of John Mack; both the conveyances being made subject to the said mortgage. Rhoda, after she became the owner, procured the mortgage to be foreclosed, and having purchased the premises at the sale claimed to have thereby acquired a title to them free from the servitude imposed by the plaintiff’s conveyance.
    Held, that the deed to the defendant Rhoda vested the legal title to the property in her, the mortgage being merely a lien or security for the payment of the mortgage debt.
    That this legal title was neither changed nor divested by the sale in the action for the foreclosure of the mortgage. '
    That the deed executed to her upon such sale operated simply as a release of the mortgage, and did not relieve the property from the burdens and restrictions imposed upon it by the plaintiff’s conveyance.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

      Wheeler H. Pechham, for the appellant.

      Poa/rdman c& Boardman, for the respondents.
   Daniels, J.:

The action was brought to restrain the continuance of certain erections upon premises owned by the defendant Rhoda E. Mack, and adjoining on the south the church property of the plaintiff. The church edifice, as well as the property in controversy, are situated on the south-easterly corner of Thirty-fifth street and Fifth avenue, in the city of New York. On the 12th day of February, 1859, the trustees of 'the plaintiff entered into an agreement, under seal, with the defendant John Mack, for the sale of the land on the southerly side of and adjacent to that upon which the church edifice had been erected. By the terms of the agreement then made it was declared and provided that the use of light from all openings on the north side of the lot should be reserved for the use of the parties of the first part (the plaintiff), with the privilege to the party of the second part to build over one and to the second window of the basement, supported on pillars, so as not to close up said windows, and that no shrubbery should be allowed to grow, or any other obstacle be placed in front of said windows so as to exclude the admission of light. And these restrictions were declared to be binding on the successors in office, heirs, administrators, executors and assigns of the respective parties so lohg as the adjoining property on the north side of the lot should be used for church purposes. On the 3d of March, 1859, the plaintiff, in compliance with this agreement, conveyed the premises adjacent to the church lot upon the south to the defendant John Mack. After that, and in the month of May, 1863, he conveyed the same premises to Blanche Chaudurgue, who on the same day executed and delivered a deed of the same property to the defendant Bhoda E. Mack.

By the terms of the agreement restricting the use which might be made of the property sold by the plaintiff, a servitude in its favor was created. It was an interest in or burden imposed upon the property which was valuable to the plaintiff and legally created by the instrument executed by the parties to it. ' {Rome and Watertown R. R. Co. v. Ontario Southern R. R. Co., 16 Hun, 445.) And as the deed conveying the property was in terms rendered subject to the covenants contained in the agreement, the title conveyed was, to that extent, qualified and limited, and persons afterwards acquiring that title under the plaintiff’s grantee took it subject to that restraint and qualification. The terms of the record itself was sufficient to put them upon inquiry and charge them with notice of the rights the plaintiff was entitled to enjoy, notwithstanding the conveyance of the property by the deed. {Childs v. Clark, 3 Barb. Ch., 52.)

In addition to this circumstance the deed from the plaintiff’s grantee was made for the sole and only purpose of placing the title to the premises in his wife, and his grantee immediately executed that purpose by delivering the deed required to consummate it. No pecuniary consideration whatever entered into either of these deeds, but they were executed solely for the purpose of making the defendant Rhoda E. Mack the owner of the property.

After she became such owner a mortgage previously existing against the property was procured by her to be foreclosed, and upon the sale made under the judgment she became the purchaser, and after that she made the erection now in controversy which violated the restraints and provisions, subject to which the plaintiff conveyed the property to her husband. At the time when the plaintiff acquired its title to the property that mortgage existed against it, amounting to the sum of $11,000. In the conveyance made to the plaintiff, the grantor, who was liable for the payment of the mortgage debt, made it subject to the mortgage and the plaintiff thereby assumed its payment. In like maimer when the property was conveyed to John Mack by the plaintiff it was made subject to this mortgage and he also assumed its payment. But in the deed made by him that personal obligation was not imposed upon the grantee, neither did his grantee attempt to impose it upon the defendant Rhoda E. Mack, but it was simply declared that the grant was subject to that mortgage. The grantee in the last deed insisting after the mortgage sale that her title to the land was acquired under the foreclosure sale, claimed to hold it free from the restraints. imposed upon it by the contract between her husband and the plaintiff, and in effect preserved by the deed from the latter' to her, and under that claim she deemed herself at liberty to use the property as its sole and unqualified owner in all respects. Whether she can be protected in this position and allowed to disregard the obligation of servitude to which the property, was so carefully subjected by the contract and conveyance of the plaintiff is the point to be determined by the disposition of the present appeal. As she acquired her title from her husband with notice, and probably with full knowledge of the burdens imposed upon the premises in the plaintiff’s favor she was equitably bound to observe and maintain them; and procuring the mortgage, to which her title was also subjected, to be foreclosed and a sale made for tbe apparent purpose of merely-relieving herself from this obligation, was in violation of the duty existing upon her part to the plaintiff. But still if the legal right acquired by her under the foreclosure sale is to be attended with the effect claimed for it, her position must accordingly be sustained.

But by the conveyance which was made from the party who held the title, subject to the lien of the mortgage, the plaintiff acquired the legal estate in the land. And the same estate subject to the servitude was acquired by its grantee, and subsequently passed in the same manner to the defendant Ehoda E. Mack. By these deeds she became the legal owner of the property, and the outstanding mortgage upon it was merely a lien or security for the payment of the mortgage debt. (Runyan v. Mersereau, 11 Johns., 534; Kortright v. Cady, 21 N. Y., 343, 347; Stoddard v. Hart, 23 id., 556.)

This legal title was neither changed nor divested by the sale to the person holding it in the foreclosure proceedings. After that, as well as before, she continued to hold the title to the premises by virtue of the deeds made by the plaintiff and its grantee. And the deed executed to her in compliance with the terms of the sale, in the foreclosure action, simply operated as a release of that security upon the property. This appears to follow from the effect given to conveyances of this nature by the statute, for it has been declared in plain terms, that such a deed shall be as valid as if the same were executed by the mortgagor and mortgagee. (3 E. S. [5th ed.], 273, § 88.)

In the present instance it could not operate upon the title of the mortgagor, for he had previously conveyed that away, and it had been effectually acquired by this defendant through the conveyances preceding, and that executed to her. She already held hei title subject to this mortgage and its lien as a security, and the sale to her consequently was equivalent only to a deed executed by the mortgagee. It transferred to her simply his rights and interests, for she had previously become the owner of the residue of the estate in the land. It was in substance and effect simply a release of the property from the mortgage, and to that extent enlarging her interest without superceding or changing that previously acquired by her. The consequence is that she did not by her purchase at this foreclosure sale acquire a title to the property paramount to that conveyed to her husband by the plaintiff, but that she continued to hold it as she had before, only that from the time of the sale it was relieved from the lien of this mortgage. The sale and conveyance to her, therefore, did not relieve the property from the burdens and restrictions subject to which the plaintiff conveyed it, but she was bound to observe and perform them, for the reason that she had received the legal estate in it, subject to that obligation.

It does not appear precisely when the erection was made which formed the subject of the plaintiff’s complaint, but it does appear that it was of- such a nature as to interfere with and obstruct the use of light in such a manner as to constitute a breach of the covenants or conditions qualifying the title conveyed by the plaintiff to John Mack.

No case was made entitling the defendant to the benefit of the statute of limitations, for it did not appear that the fence erected had existed so long as to be protected by either of its provisions. The case was not disposed of upon that ground,' but solely because this defendant had acquired a title to the property which relieved it of the servitude imposed upon it before the time when she received her deed. This was an erroneous view of the rights and obligations of the parties. For, as before observed, the defendant’s title remained entirely unchanged except in the circumstance that it had been relieved from the lien of this pre-existing mortgage. The judgment in the case should be reversed, and upon the facts found in the decision of the learned judge before whom the trial took place judgment should be awarded in favor of the plaintiff, requiring the removal and discontinuance of the erection forming the subject of the complaint in the action.

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

Judgment reversed. Judgment ordered as directed in opinion.


author: Daniels, J.: Lawrence, J.:

text:
    THOMAS BOLAND, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Indictment — when it is not bad for duplicity — 1872, chap. 675, sec. 68 — power of an inspector of election in New York city to examine the return of a poll clerk.

    The plaintiff in error was indicted and convicted of a violation of the provisions of section 68 of chapter 6 i'5 of 1872, providing that every inspector of election, member of any board of canvassers, messenger, poll clerk or other officer authorized to take part in or perform any duty in relation to any canvass or official statement of the votes cast at any election, who shall willfully make any false canvass of such votes, or who shall make, sign, publish or deliver any false return of such election or any false certificate or statement of the result of such election, knowing the same to be false, or who shall willfully deface, destroy or conceal any statement or certificate entrusted to his care or custody, shall on conviction thereof be adjudged guilty of a felony. Each count alleged that the accused did willfully make, certify and deliver to the officer entitled to receive it a false statement and certificate of the votes received.

      Held, that the indictment was not bad for duplicity; that although each of the acts alleged was by the statute made criminal, yet when taken together they constituted but one complete act.
    An inspector of election is not bound to accept the decision of the poll clerks and sign the returns as prepared by them. It is his duty and he has authority to examine, investigate and correct them.
    Writ of error to the New York Court of Oyer and Terminer to review the trial and conviction of the plaintiff in error for a felony in violating the election laws.

      A. H. Purdy, for the plaintiff in error.

      B. K. Phelps, district-attorney, for the people.
   Daniels, J.:

The defendant was an inspector of elections for one of the election districts in the city of New York, and in the discharge of the duties of that office it was charged by the indictment upon which he was tried and convicted that he, with the other inspectors, had made false statements and certificates of the number of the votes given in his district for candidates for the office of alderman; that they had certified and stated the votes given for George Hall, who was one of such candidates, to be 200; for Jacob A. Hatzel, another of such candidates, to be twenty-three; for Joseph P. Strack, another of such candidates, to be seventy ^ for .Bernard Kenny, also a candidate for that office, to be eighty-five; for Julius Hoffman, another of such candidates, to be four, and a like number for Louis Hock, another candidate for the office of alderman; while the truth was that Hall received but 130 votes and Hatzel received ninety-three votes, as the inspectors very well knew. These charges, with the others of a more formal nature contained in the indictment, constituted a crime under the provisions of chapter 675 of the Laws of 1872. Great care was observed in their enactment to provide for such a canvass, statement and return of the votes received at the election as would secure a truthful statement of the result and thereby insure to every vote its appropriate weight and effect in determining the election; It is not only the privilege but it is also the right of every voting citizen to have his vote truthfully, counted and returned by the officers charged with the performance of that duty. In no other way can a popular government be maintained. The theory of such a government is that every citizen shall have a voice in shaping its policy and directing its operations. That right can only be exercised and enjoyed by means of the ballot, which must be the expression of his choice as well as his judgment, and if he can be deprived of its appropriate effect by an improper count or a false statement or return, he is as effectually disfranchised as though he were deprived of his right to vote by means of some legal enactment. Fraudulent practices attended with such a result deprive the locality in which they may be tolerated of the benefits of popular government, and render it as despotic as those which, in theory at least, had been here rejected as unworthy of support. A true popular government can be maintained in only one way; and that is by the intelligent support of its citizens, which can be derived in no other manner than by means of their ballots. To secure this important result was the principal object designed to be promoted by the enactment of this statute, and those afterwards amending or enlarging some of its provisions; and the mode in which that should be done was clearly and particularly detailed. The provisions made are plain, and not easily capable of being misunderstood. Certainly such was the nature of those indicating the manner in which the votes should be canvassed, counted, stated and returned. The object to be accomplislied was familiar, and the process for its attainment was clearly given. This is plainly manifested by the different sections of the act. (Laws 1872, vol. 2, pp. 1603-1607, §§ 50-57.) It is afterwards declared that every inspector of election, member of any board of canvassers, messenger, poll cleric or other officer authorized to take part in or perform any duty in relation to any canvass or official statement of the votes cast at any election, who shall willfully make any false canvass of such votes, or who shall make, sign, publish or deliver any false return of such election, or any false certificate or statement of the result of such election, knowing the same to be false, or who shall willfully deface, destroy or conceal any statement or certificate intrusted to his care or custody, shall, on conviction thereof, be adjudged guilty of a felony, and shall be punished by imprisonment in a State prison not less than two nor more than five years. (Id., 1611, § 68.) ■ This indictment shows an intentional violation of the. provisions made by the statute for canvassing, stating, certifying and returning the votes received at the place where these defendants acted as inspectors, and in that way charges the present defendant with the commission of a crime. In that respect the indictment is not defective in either of its counts, for all the facts requisite to show a willful violation of the duties enjoined by the statute have been fully set forth.

The more strenuous objection taken on behalf of the prisoner to the indictment is that it has charged too much. As either of the prohibited acts has been made a crime, it has been objected that neither count of the indictment could include more than one of them. Each count has in fact averred that the inspectors, including the defendants, did willfully make, certify and deliver to the officer entitled to receive it, a false statement and certificate of the votes received. And because of those averments the indictment has been assailed as bad for duplicity. It is insisted that each count sets forth more than one offense, and for that reason the defendant was improperly tried. It is certainly true that the statute prohibits each act as a distinct offense, but it does not follow from that circumstance that they are to be held to be separate crimes when they characterize and are connected with one continuous transaction. The statement and certificate are shown to have been falsely made, and having been so made, were then delivered to the officers to whom they were respectively to be seat. These were but different stages in one event. They each constituted a portion of one continuous duty. The statement and certificate were made to give a false account of the votes that had been received at the election, and their delivery was made to carry the preceding acts into' effect. They were all incidents and appropriate incidents of one completed criminal act. Each might have been alleged as constituting a crime; so could all of them together for the same purpose ; and when so combined but one offense is in reality set forth. A trial and conviction for one of these acts 'would probably be a bar to a further prosecution for the others forming but a portion of all that was done, for in cases of felony, where one offense is a necessary ingredient or accompaniment of another, and the State has selected and prosecuted the former to conviction, there can be no further prosecution of the others. (Whart. Crim. Law, § 565, and cases noted.) However the matter may be presented, whether jointly or separately, but one offense will be set forth, and for that reason all may be contained in a single count of .the indictment. It has been held to be error to state the successive gradations of statutory offenses disjunctively, but to state them conjunctively when they are not repugnant is always allowable. (Whart. Crim. Law [7th ed.], vol. 1, § 296.) For that reason, where a statute makes two or more distinct acts connected with the same, transaction indictable, each one of which may be treated as successive, steps in the same offense, they may be coupled in one count. This is allowed, for the reason that all the acts together form but a connected series of one transaction. By a statute of this description but one offense is really provided for, although it may be committed in various ways, and the combined act may be properly set forth as one offense. For that reason, under similar statutes, it has been held that the prisoner might properly be charged in one count with both offering for sale and selling one-half a lottery ticket (Com. v. Eaton, 15 Pick., 273), and for receiving and aiding in concealing, stolen goods when each of these acts was declared to be an offense. (Stevens v. Com., 6 Met., 241.) See also to the same general effect Com. v. Harney (10 Met., 422); Com. v. Hulbert (12 id., 446); Com. v. Brown (14 Gray, 419, 430, 431); State v. Fletcher (18 Mo., 425); State v. Morton (27 Vt., 310); Mackey v. State (3 Ohio, 363); State v. Price (6 Hals., 203, 215). When two or more crimes are of the same nature, and are necessarily so connected that they may, and when both are committed must, constitute but one legal offense, they should be included in one charge. {Com. v. Tuck, 20 Pick., 356, 360, 361; State v. Ayer, 3 Foster [N. H.], 301; Rex v. Horne, Cowp., 672; Huikle v. Com., 4 Dana [Ky.], 519.) When a crime may be committed in different ways an indictment which in a single count charges it in all ways, coupling them as they are specified one after another by the conjunction and, it is not open to the objection of duplicity. (Bishop’s Grim. Procedure, vol. 1 [2d ed.], §§ 434,437.) Under the principle mentioned the indictment in this case is not subject to the objection now under consideration. The acts were so connected as to form together but one transaction. And they were properly so alleged. In this respect the case differs from those relied upon in behalf of the prisoner where the acts alleged were different-and distinct in fact as well as in law.

Even if the proof of the delivery of the statements and certificates were as it is urged defective, there was sufficient in the other circumstances shown to constitute an offense under the language of this statute, and upon that a conviction could properly take place, even though no proof whatever had been made of the delivery of the statement and certificate. For under the terms of the act, either making a false canvass of the votes or making, signing, publishing or delivering a false return of the election, or any false statement or certificate of the result has been made a crime. And when a crime has been proved within the terms of the indictment, although not embodying all the attributes charged, the conviction of the accused is required. The principle is well settled that it is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime as therein charged. {People v. Jackson, 3 Hill, 92; Dedieu v. People, 22 N. Y., 178, 184; White v. People, 32 id., 465, 469 ; Dawson v. People, 25 id., 399, 403; Lohman v. People, 1 Comst., 379.) And the proof was certainly sufficient to bring this case within its control.

The evidence was sufficient to support the conclusion that the place where the votes were received was a legally designated polling place. The minutes of the commissioners were not objected to as incompetent evidence to show the fact of designation. The only ■objection taken to them was that tbey were immaterial. Under this tbe point that they may.have been incompetent proof cannot now for the first time be taken. If it had been raised at the trial the •commissioners themselves might have been called to prove the fact if that had been found to be necessary. But there was further proof •supplied by the fact of the election being held there under the management and supervision of the inspectors, and the canvass and scatement of the votes made by them, in all of which the defendant participated, indicating that the place where the votes were received was a lawfully appointed polling place.

The exception taken to the refusal of the court to charge “ that if a fraud has been committed it could not have been committed without the aid of the poll clerks, and that is a very significant circumstance that the poll clerks have not -been indicted or charged with crime,” is also relied upon in support of the writ issued to review this case. But even if the facts had-been as this-request assumed them to be, it would not have justified the direction requested, for the omission stated would have been no evidence in favor of the defendant. The point in issue as to him was whether he was guilty, and if the proof was sufficient to establish the fact that he was, it could not be impaired in its force by the circumstance that other guilty persons had not then been prosecuted. The inquiry suggested would have been entirely immaterial, and it was very properly excluded from the case as it was to be considered by the jury.

. The prisoner as an inspector was not bound to accept the decision of the poll clerks and sign the returns in accordance therewith as the court was asked to hold. On the contrary, he was bound to make and sign only a truthful ’return of the votes.' This was the plain intention of the statute and he had such authority to examine, investigate and correct as was necessary to secure that end. If he failed to make use of it and knowingly made a false statement, certificate or return, the statute has rendered that misconduct a crime even though it may have arisen out of the adoption of the false and fraudulent decision of the poll clerks. As long as the statement, certificate and return were willfully and falsely made by the defendant, as the evidence justified the jury in finding was the fact, the crime created by the statute was committed, and it would not change the result if it was done by adopting the false tally and decision of the poll clerks. One purpose of the statute was to prevent the inspectors from shielding themselves under the misconduct of others.. For that reason it has been made a crime upon their part willfully to sanction and give effect to the criminal misconduct of those-co-operating with them. As long as the inspectors knew the statements made to be false and unfounded, it became their plain duty to have them corrected; and for failing to do so and certifying and' returning as true the false statements made, even though that may have been previously announced by the poll clerks, the law has-rendered them criminal and punishable. No other objections have been taken to the propriety of the defendant’s trial and conviction. And as neither of these which have been considered have been found to be well founded, it follows that the conviction must be-affirmed.

Lawrence, J.:

I concur in the opinion of Mr. Justice Daniels that the conviction in this case should be affirmed. None of the exceptions which were taken by the prisoner’s counsel upon the trial appear to me to-have been well taken, and as the questions of fact were fairly submitted by the justice who presided at the trial to the jury, the result at which the jury arrived cannot be disturbed upon appeal.

Present — Daniels and Lawrence, JJ.

Judgment affirmed.


author: Per Curiam :

text:
    JOHN T. FARISH, Respondent, v. DAVID AUSTIN and Others.

      A judgment obtained in an action brought upon a judgment of the Supreme Gowrt, without first obtaining leave so to do, is invalid — old Code, sec. 71.
    The bringing of an action upon a judgment recovered in the Supreme Court of this State without first obtaining the leave of the court so to do, as required by section 71 of the old Code, is not a mere irregularity which is waived by the omission of the defendant to raise the objection, but the omission to obtain such leave renders the judgment invalid and the same will be set aside upon the application of the administrator of the deceased judgment debtor, made sixteen years after the entry of the said judgment.
    Appeal from an order made at Special Term denying a motion made on the petition of William S. Mount, executor of Charles B. Spicer, one of the defendants in the above entitled action, to set aside the service of the summons and complaint and to set aside and vacate the judgment entered by default. ' This action was brought upon a prior judgment, without the leave of the court being first obtained.

      O. J. Wells, for the petitioner, appellant.

      A. B. Cruiksha/nJc, for the plaintiff, respondent.
   Per Curiam :

The question in this ease arose upon the following facts :

On the 7th of May, 1852, John F. Farish recovered a judgment against the defendants David Austin, John H. Austin, George W. Austin and Charles B. Spicer, in the Supreme Court of this State, for the sum of $10,690.25.

In 1862 an action was brought by the same plaintiff against the same defendants upon the judgment so recovered, upon which, after personal service of the summons and complaint on the several defendants, judgment was entered by default against all the defendants for $17,169.19 on the 30th of August, 1862. In September, 1878, the defendant Charles'B. Spicer died leaving a last will and testament by which he nominated William S. Mount the petitioner, as executor. The will was duly admitted to probate, and the petitioner duly qualified as executor. Funds came into his hands amounting to $1,300, which were solely individual assets of said Charles B. Spicer. The plaintiff in the last-mentioned suit served upon the executor proof of the judgment and obtained an order of the surrogate requiring the executor to show cause why the judgment should not be paid. The executor rejected the claim founded upon the judgment, and the Surrogate’s Court held that it would be enforced unless attacked by the executor.

The petition shows that Spicer was more than twenty years ago a co-partner with the Austins, named as defendants in the judgment, under the firm name of Austin & Spicer, and it avers that if said judgment is properly provable against the deceased’s estate it will consume the balance in the hands of the executor and nothing will remain for the payment of more recent individual debts, which he claims are entitled to a preference in equity. He insists that the judgment is void because the action was brought upon a judgment of the Supreme Court, without leave having been obtained to bring the same, and he prays that so far as the testator is concerned the judgment may be - vacated and set aside, or that he have leave to bring an action to vacate and set aside the judgment. This motion was denied by the court below.

Section 'll of the Code provides as follows: “ No action shall be brought upon a judgment rendered in any court of this State, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown on notice to the adverse party.”

This language in explicit terms forbids the bringing of an action upon a judgment without such leave, and it declares in substance that such leave must be obtained for good cause shown on notice to the adverse party.

There is no allegation in the complaint that such leave was obtained, nor is there any proof given in answer to the motion, showing that such leave had been obtained.

The question whether the bringing of a suit on a judgment without such leave is a mere irregularity, which may be waived by the defendant’s not objecting in time or otherwise, or whether such leave is a substantive right which must be shown to exist, is one much in conflict in the authorities. In Lane v. Salter (4 Robt., 239) it is held to be a mere irregularity, and in Finch, v. Carpenter (5 Abb., 225) that the proper remedy is by motion to set aside the complaint, and on such motion leave to sue nunc pro tune should not be granted, but the plaintiff should be left to his direct motion for such leave. And in Goodyear Company v. Frisselle (57 How., 255); Thompson v. Sutphen (2 E. D. Smith, 527) and Mills v. Winslow (Id., 18) it was held that the question was a jurisdictional one, and the absence of the order granting leave was fatal to the maintenance of the action.

In Hastings v. Farmer (4 N. Y., 296) the action was brought upon a contract made by an Indian. The statute (2 R. L., 153, § 2) declares that no person “ shall sue or maintain any action ” upon such a contract. The Court of Appeals held that the act being forbidden by law, is, if performed, illegal and void. The party performing it, in direct conflict with the statutes, cannot be permitted ■to derive any advantage from it. The principle of that case is analogous to the one presented in this, because the language of the Code is equally peremptory. “No action shall be brought * * * without leave of the court for good cause shown, on notice to the adverse party.” (See. 71.)

In Schofield v. Doscher (72 N. Y., 491) the action was brought to recover an alleged deficiency arising on a covenant to pay a portion of a mortgage debt, upon lands contained in deeds from the mortgagor to one Iieiden, the alleged.covenantor. It appeared that in November, 1873, the plaintiff had commenced an action to foreclose the mortgage, making the defendant Doscher, the executor of Heiden a party, and the complaint asked for judgment for deficiency against the mortgagor, but not against Doscher. Notice was served that no personal claim was made against Doscher. He did not appear upon the sale, and judgment for deficiency was obtained against the mortgagor. The point was made that the action upon the covenants could not be brought without leave of the court under section 153 of the Revised Statutes (2 R. S., 191), and the Court of Appeals-sustained the objection. The learned judge who pronounced the opinion said: “ But if the sale does not produce enough to satisfy the mortgage debt, and he (the plaintiff) wishes to proceed at law upon any obligation or other evidence of debt by which the mortgage debt is further secured, he must have the authority of the court and takes the hazard of obtaining it, for as before said the aim of the statute is to dispose of the matter in one proceeding. Nor was the lack of authority from the court to sue, a defense which should have been pleaded and proven affirmatively by the defendant. The authority to sue was at the very basis of the right to sue. There wras no right of action until the court had given one, so that it was for the plaintiff to allege it or at least prove it before he made out a right to maintain his action.”

It is difficult to see any distinction between the principle of that case and the one governing the case before us, and we think that the balance of authority is in favor of the appellant’s position that the judgment upon which the claim is presented is not a valid one, and that the prayer of the petition should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and an order entered granting the motion.

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

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


author: Davis, P. J.;

text:
    In the Matter of JOHN LOWDEN, to Vacate Assessment, etc.
    Assessment— surveyor’s fees — when and how they may be included in it — when am, assessment is reduced, interest is allowed only from the date of the order reduo ing it.

    Appeal by the petitioner from ati order of the Special Term denying a motion of the petitioner to vacate the whole of an assessment, and appeal by the Mayor, etc., from so much of the order as vacated a portion of the assessment.
    The court at General Term said: “ The Special Term, while upholding the assessment generally, was of opinion that the charge contained in it for surveyor’s fees was illegally assessed. The Court of Appeals have lately determined, In re Merriam (84 N. Y., 596), that the expenses of surveyors’ fees in such cases actually accruing in the construction of the improvement for which the assessment is laid, are proper items to be embraced in the assessment. But in this case the amount allowed for surveyor’s fees does not appear to have accrued on these particular sewers, but the amount was arrived at by taking a per centage of this work, as compared with the whole amount of work done for surveying during the year, and without reference to the actual amount expended in this work. The Special Term considered this to be an illegal mode of getting at the amount of surveyor’s fees, and we are also of that opinion. The surveyor’s fees were ordered, therefore, to be stricken out of the assessment, and the assessment reduced accordingly.
    The court also held that interest can only be charged from the date of its order upon the assessment as reduced. This followed the decision of this court in a somewhat similar case, the court being of opinion that the petitioner was not chargeable with interest upon the amount of the assessment, because a greater sum was claimed than he was lawfully bound to pay, and therefore he was not in default for not paying such greater sum, and should not have been charged with interest.”

      Moody JR. Smith, for the petitioner, appellant.

      J. A. Beale, for City of New York, respondent.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

Order affirmed, without costs.


author: Daniels, J.;

text:
    THOMAS H. THORN and OSCAR THORN, Respondents, v. JAMES SUTHERLAND and HERMAN T. WINTER, Appellants.

      Evidence — when a witness may express an opinion as to the value of the property in question.

    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial, made at Special Term upon a case and exceptions.
    The action was brought to recover damages because of the defendants’ refusal to deliver to the plaintiffs on demand certain personal property left upon certain real estate in the city of New York, of which the plaintiffs liad been in possession as tenants, and from which they had been removed under a judgment of dispossession.
    The property, for the conversion of which the recovery was had in the action, had been placed upon the demised premises for the purpose of improving and rendering them useful under the lease executed by the defendants. Upon the trial the defendant Winter was examined as a witness as to the value of the property. He had been engaged in the same description of business which was carried on by the tenants upon the premises,- and in that manner had become acquainted with what it was necessary to do to fit up a coal yard and adapt the premises to the requirements of the business. After giving something of a description of the condition of the premises, including the improvements made by the tenants, he was asked whether he knew the value of the materials when he took possession of them, and his answer was, “ I know probably as much as any other man in the court room about them, I think.” He was then asked, “What means of knowledge have you of their value ?” and his response was “ I have been in the coal business for twenty-five years; I have bought and sold and fixed up lumber of this kind; I have bought second hand lumber and put it up for fences.” He was then asked, “ What was the value of these materials that have been described here at the time you took possession?” This was objected to because the witness was not competent to testify upon the subject. The court then inquired, “ Have you continued the business of buying and selling old and new lumber,” to which he answered, “ No, sir; I bought only for this purpose.” And then the court sustained the objection and the defendant’s counsel excepted. The witness then gave a still further description of the condition of a portion of the materials in controversy at the time when the defendants took possession of the property, and after he had stated that it had probably rotted he was requested to give its value, but the court rejected his answer, and the defendant’s counsel excepted.
    The court at General Term said: “ From the experience of this witness, his knowledge of the business, and the fact of his having bought and sold lumber for improvements similar to those made upon these premises, he was competent to answer the questions which were propounded to him as to the value of these articles.
    “ This subject has already received the consideration of this court in the case of Jarvis v. Furman now about to be decided. The authorities bearing upon it have been examined in that case, and the rule which now appears to be established has been so applied as to require that evidence of this nature, when it is proposed to be given by such a witness concerning the- value of property in dispute, should be received. It is not necessary to repeat the views which have there been expressed, but it is sufficient to say for the reasons then given, that the evidence proposed in this case upon this subject should not have been excluded.”

      .G. M. Speir, Jr., and S. B. Brownell, for the appellants.

      John Todd and Willict/m A. Coursen, for the respondents.

       See ante, page 391.

   Opinion by

Daniels, J.;

Davis, P. J., and Beady, J. concurred.

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


text:
    FOLLANSBEE G. WELCH, Appellant, v. GEORGE W. WINTERBURN, Respondent.

      Entry into possession of a house on the expectation of talcing a lease — on refusal to accept the lease and to remove after demand, the occupier becomes a trespasser.

    Appeal from a judgment in favor of the defendant, entered on a trial at the circuit, where the complaint of the plaintiff was dismissed.
    The plaintiff was the owner of a leasehold estate in premises known as 28 East Fourteenth street, in the city of New York. With his consent and permission the defendant acquired possession of the property. This was received by him under an arrangement that a lease of it should be executed by the plaintiff and himself, under which he should occupy and enjoy the property. After various efforts were made for the purpose of agreeing upon the form and terms of such a lease, the parties proved incapable of arriving at any satisfactory, mutual understanding. After that inability had been developed, and it had become evident that no agreement could be proposed by one party with which the other would be satisfied, the plaintiff gave the defendant written notice requiring him to quit and surrender the premises. This he failed to do, and extended his occupancy to the fifteenth day of the month when the plaintiff resumed possession of the premises, and thereafter brought this action of trespass to recover damages.
    The court at General Term said: “ By his refusal to accept and receive a lease of the property, and afterwards omitting to comply with the plaintiff’s demand for a surrender of the premises, he became a trespasser. (Adams v. Freeman, 12 Johns., 408; Smith
      v. Stewart, 6 id., 46; Jaclcson v. Monerief, 5 Wend., 26; Livingston v. Ta/nner, 14 N. Y., 64.) While the defendant’s possession actually continued, an action for damages because of the trespass, it is true, could not be maintained by the plaintiff, but that disability continued no longer than the latter was actually deprived of the possession of the property. As soon as that was resumed by him the right at once fully accrued entitling him to indemnity for the wrong produced by means of the continuance of the defendant’s trespass. (Case v. Shepherd, 2 Johns. Cases, 27, 29, and authorities cited in note; Holmes v. Seeley, 19 Wend, 507.) And the principle is conceded to be correct in Wohler v. Buffalo and State Line Hailroad Company (46 N. Y., 686). Upon the evidence as it was presented the plaintiff was entitled to damages for the time the defendant continued to occupy the premises after his right to do so had been terminated by a demand of their possession. And the complaint in the action though broader than was required for the purpose of maintaining such an action was fully sufficient for all the purposes of the case.”

      Daniel G. Thompson, for the appellant.

      T. M. Tyng, for the respondent.
   Opinion by

Daniels, J.;

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

Judgment reversed, new trial ordered, with costs to abide the event.