text:
    THE GLOBE MUTUAL LIFE INSURANCE COMPANY, Appellant, v. GEORGE C. SNELL, Respondent.

      Application fen’ policy of insurance — may he withdrawn at any time before the policy is issued.

    On April 26, 1877, an vagent of the plaintiff appilied to the defendant at Manheim, Herkimer county, to insure his life in the plaintiff’s company. The defendant finally consented to apply for a policy for §5,000, and the application and necessary papers were prepared and signed, to be sent to the company in New York, to be by it accepted or rejected. On April 30, 1877, the defendant being dissatisfied with the financial standing of the company, wrote to the agent at St, Johnsville, that he had concluded not to take out the policy. The company received the application, and on May 21,1877, made out a policy and sent it to the ag-ent, who tendered it to the defendant on July 24, 1877, who refused to receive it. This action was brought to recover the half-year premium due by the terms of the policy.
    Held, that the defendant was entitled to withdraw his application at any time before it had been accepted, and that having done so he was not bound to accept the policy subsequently made out and tendered by the company.
    Appeal from a judgment in favor of tlie defendant, entered upon the verdict of a jury.

      W. E. Scripture, for the appellant.

      E. E. Sheldon, for the respondent.
   Talcott, P. J. :

This is an appeal from a judgment for the defendant, rendered at the Herkimer Circuit on a verdict.

The action is brought by a life insurance company on an alleged agreement, in writing, made on the 26th of April, 1877, by which the defendant authorized Daniel Storms, an agent of the plaintiff, to procure a policy on his (the defendant’s) life from the plaintiff, for the sum of $5,000, and agreed upon the presentation of the said policy to accept thé same and pay the sum of $51.75, being the semi-annual premium upon the said policy.

The said Daniel Storms and one Vickory, also an agent of the said plaintiff, on the said 26th of April, 1877, came to the defendant’s house in Manheim, in the county of Herkimer, and solicited the defendant to insure his life in the plaintiff’s company, and the defendant finally consented to become an applicant for such insurance to the amount of $5,000, the application to the company and the other papers were thereupon made out and delivered to said Stoi-ms to be forwarded to the said company’s office in New York, to be considered and acted upon by the pi’oper officers of the company, and to be either accepted or rejected by them.

The defendant Snell testified that Storms and Vickory said, that if the application should be accepted by the company, ho (Snell) would receive the policy within two weeks. On the 30th of April, 1877, Snell, for some reason, which does not appear, but as stated in the answer, because he discovered that the said . company was not of the character and financial standing which had been repi'esented to him by said Storms and Vickoiy, concluded not to take a policy from said company, and wrote the following letter addi’essed to said Storms at St. Johnsvüle, where he resided, viz.:

“Little Falls, April 30, 1877.

‘‘ Dear Sir — I have concluded not to take a policy, and so I will let you know in time.

“ Yours truly,

“ GEORGE C. SNELL.”

This letter was received by Storms on or about the 1st of May, 1877. The company, l’eeeived the application, and on the 21st of May, 1877, made out a policy, and sent it to Storms for delivery to Snell. Storms tendered the policy to Snell on the 24th day of July, 1877, who refused to receive it, and this action was then brought by the company to recover the $51.75, half-year’s premium due by the terms of the said policy.

The testimony of the two agents, Storms and Vickory, in substance, tended to show that, at the time of receiving the application and making the agreement, it was not specifically agreed between the said Storms and Snell that, if the company accepted the risk, the policy should be delivered to Snell within ten days, though they substantially conceded that they had said to him that if the application was accepted the policy would, in the ordinary course of business, be delivered to him within two weeks. The court charged the jury that no time for a delivery of the policy being specified, the law implied that it was to be delivered within a reasonable time ; and that if it was made a condition of the contract that if the application should be -accepted, the policy should be delivered within two weeks from ■the time of signing the application and agreement, that a tender <of the policy after the expiration of nearly three months was not ;a compliance with the condition, and the defendant was not bound ‘to receive the policy and pay the premium after the lapse of ■ such time; and this question was left to the jury asa question •of fact.

The plaintiff excepted to so much of the charge as instructed the jury that where no time was named for the delivery of the policy, the law would imply that, if accepted, it was to be delivered in a reasonable time. The plaintiff also requested the court to charge that the defendant, not having placed his refusal to accept the policy on the ground that it was to have been delivered within two weeks, waived that objection. To this the court said : “It is a circumstance to be considered by the jury in finding where the truth is.” But that if, when the policy was offered to him, the defendant had shut his mouth and said nothing, it was not necessarily a waiver of the right to insist that the offer of the policy was too late. To this the plaintiff excepted. We think those portions of the charge which were excepted to were correct; but, moreover, and aside from any question about whether the accepted policy was tendered in time, we think that, after the notice given by Snell to the plaintiff, he was under no obligation to accept" the policy.

The substance of the transaction was an application by Snell to the plaintiff for a policy of insurance, afterwards and before the application had been accepted and, for aught that appears before the plaintiff had in any way considered or acted upon it, and probably before the application had even reached the office of the plaintiff in New York, full notice of the countermand was given to the agent by whom the application had been solicited. The promise to pay contained in the written contract hereupon, though in form made to Daniel Storms, was in fact made to him as the agent for the company, and the consideration agreed to be paid by Snell was not intended as a consideration for the services of Storms in receiving the application and forwarding it to his principal, but was expressly stated to be the semi-annual premium upon the policy ; besides, the plaintiff does not claim as the assignee of Storms. We understand that tlie well-settled rule of law is, that “ the party making the promise is bound to nothing unless the promisee, within a reasonable time, engages to do, or else does or begins to do, the thing which is the condition of the first promise. Until such engagement or doing the promissor may withdraw his promise, because there is no mutuality and, therefore, no consideration for it.” (1 Parsons on Con., 550, 551.) The case of Justice v. Lang, cited by the counsel for the plaintiff from 42 N. Y., 493, which was an action on an alleged contract for the sale and purchase of certain Enfield rifles, was again before the Court of Appeals and reported in 52 N. Y., 329, and on the latter occasion it was held to be, under the circumstances, a question of fact for the jury whether there was any agreement by the plaintiff, the alleged vendee of the rifles, to accept and pay for the same. We do- not see that the case has any bearing upon the question presented in this case. The application was simply a request to the defendant to enter into a contract. This request the defendant could lawfully countermand before it had been accepted by the plaintiff. This doctrine was held to its full extent in the Massachusetts case of Real Estate Mut. F. Ins. Co. v. Roessle (1 Gray, 336).

. The judgment should be affirmed.

Present — Talcott, P. J., and Smith, J.; Hardin, J., not sitting.

Judgment affirmed.


source: Caselaw Access Project

author: Hardin, J. :

license: Public Domain

text:
    ELIZA HENSLER, Appellant, v. PETER SEFRIN, Respondent.

      Contract made by a husband in his own name for the sale of his wife’s land, — when the latter is bound by, though not named therein — Estoppel—what acts entitle a party to a specific performance of a verbal contract of sale.

    For some time prior to April 20,1858, the plaintiff’s husband had been in possession of a tract of ground in Tonawanda, consisting of ten lots. On that day he contracted, in his own name, to sell the said tract to the defendant for §800, §700 of which was paid in cash, and the remaining §100 in work during the following year. The defendant entered into possession of the ten lots and continued to use and occupy the whole tract from that time down to the commencement of this action, to the knowledge of the plaintiff and her husband. January 4, 1860, the plaintiff and her husband gave to the defendant a warranty deed which he believed conveyed the ten lots, but which in fact conveyed only eight of them. The defendant, on discovering the mistake in 1875, tendered to the plaintiff, her husband being then dead, a deed of the two lots omitted from tire former deed, and requested her to execute it, which she declined to do.
    At the time of the making of the contract the legal title to the lots was in one Hart, who, in pursuance of negotiations with the husband, conveyed them to the plaintiff by deed dated November 18,1859, but not acknowledged or delivered until March 20, 1860. All negotiations for the purchase and sale of the land were earned on by the husband. The money paid by the defendant was received by the plaintiff from her husband.
    In an action of ejectment by the plaintiff to recover possession of the two lots, held, that the court properly adjudged that the plaintiff held the legal title in trust for the defendant and directed her to convey the same to him.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury, adjudging that the plaintiff holds the legal title to lots nine and ten, in the village of Tonawanda, in trust for the defendant and ordering her to convey the same to the defendant.

      The action was to recover possession of the two lots, and the defence was of an equitable character.
    At the time the land was contracted to be sold to the defendant,-the legal title to the lots was held by Elizer Hart, as the receiver of the. Bank of Orleans. In pursuance of negotiations conducted by the plaintiff’s husband, Hart conveyed the premises to the plaintiff by deed, dated November 18, 1859, but not acknowledged or delivered until March 20, 1860.
    The issues were tried before the Erie Circuit, and upon the findings and conclusions of law judgment was entered, from which the plaintiff appeals.

      George Wing, for the appellant.

      George W Cothran, for the respondent.
   Hardin, J. :

The husband of the plaintiff, on the 20th day of April, 1858, sold the premises in question, with eight other lots (three fenced in as one garden lot), to the defendant for the sum of $800, and entered into a written contract under seal for the whole ten lots with the defendant.

The defendant paid down, upon the contract, $700, and the other $100 he paid during the following year in work.

The defendant, immediately after consummating his purchase in April, 1858, entered into, possession of the whole ten lots, and continues to occupy them, claiming that he purchased and paid for the whole ten lots. January 4, 1860, he took a warranty deed from the plaintiff and her husband, which he supposed covered the whole ten lots until about 1875, when he discovered that lots nine and ten were not embraced in the deed.

The defendant then applied to the plaintiff to execute a deed of said two lots, and she decliued to do so and thereafter brought this action to recover the possession of them from the defendant.

It satisfactorily appeared upon the trial that the defendant negotiated for the purchase of the whole ten lots ; that they were embraced in the contract he received therefor from the plaintiff’s husband, and that he understood his purchase covered them, and. that he paid the $800 in the faith that he was to receive title to the whole ten lots.

It also appeared that the plaintiff’s husband caused to be inserted in the contract a description of the whole ten lots, and Contracted to convey them to the defendant.

The consideration paid by defendant, $800, to the plaintiff’s husband, was subsequently paid by the husband to the wife.

It is clearly shown that the plaintiff, as well as her husband, knew of the possession by the defendant in the spring of 1858, of the whole ten lots, and that he occupied and improved all of them, down to the day of the trial of this action, with the Knowledge of the plaintiff.

The plaintiff, therefore, had notice of all the rights and interests of the defendant, legal and equitable, in the whole premises, when she took, in March, 1860, a deed of the whole ten lots from Elizer Hart, as receiver of the Bank of Orleans. ( Williamson v. Brown, 15 N. Y., 354; Baker v. Bliss, 39 id., 70; Reed v. Gannon, 50 id., 345; Livingston v. Arnoux, 56 id., 507; Cavalli v. Allen, 57 id., 508.)

She, therefore, knew that the defendant had purchased the whole ten lots from her husband, and had paid therefor $800, the contract price ; that he had entered into possession under such contract, and that, equitably, he was entitled to a deed of the premises from her husband, who had assumed and exercised the right to sell to the defendant the whole ten lots.

She was not, therefore, by reason • of the conveyance of Hart, as receiver, to her in March, 1860, a purchaser in good faith.

It appears by the evidence that the plaintiff’s husband “ negotiated the purchasing of all the real estate (she) I owned, during his lifetime”- and she testified that “my husband negotiated the sales of all the real estate I sold during his lifetime; he generally transacted what business I had, for me, with my consent.” And in her cross-examination she said, “ my husband never negotiated any real estate for me without my special direction.”

She then states that she did not make the contract for the sale of the ten lots to the defendant.

From this evidence we learn that the husband negotiated for the purchase of the ten lots from Hart, and we are not at liberty to conjecture the date of that negotiation from any evidence or fact fixed in the case. The deed of Hart to the plaintiff states an order of sale was made June 5, 1858. But the husband of plaintiff contracted to sell and convey the ten lots in April, 1858, to defendant.

However, it is manifest that at the time of the deed to the plaintiff, March, 1860, her husband who had “ negotiated the purchase of all the real estate she owned in his lifetime,” knew of the sale to the defendant, and that he had paid the $800 for the whole ten lots, and therefore, as the husband was the agent for the purchase for plaintiff, she, through her agent, is chargeable with notice of the equities of the defendant in the whole ten lots. His notice and knowledge must be regarded as notice to and knowledge of the wife, according to the well settled principle that a principal is chargeable with all the knowledge the agent possesses in the transaction of the business he has in charge. (Adams v. Mills, 60 N. Y., 539.)

When, having such notice in addition to the notice which the defendant’s possession of the premises gave to her, as we have before seen, she took the $800 from the husband, the consideration actually paid by the defendant for the whole of the lots ; she adopted the act of sale made by her husband, and she should not now be allowed to impute a fraud to her husband or to practice a fraud upon the defendant.

She ought to be held estopped from denying the equitable title and interest acquired by the defendant to the ten lots purchased by him of her husband. (Adams v. Mills, 60 N. Y., 539.)

We are referred to the case of Squier v. Morris (1 Lans., 282). That case is distinguishable from the one before us. That was an action for specific performance brought against the wife upon a contract of sale made by her husband, and it was held that she was not bound by the contract of sale made by the husband, and that the parol contract made by her was void by the statute of frauds, “ because it was an agreement, in substance, to convey lands.”

So, too, it was held in Briggs et al. v. Partridge et al. (64 N. Y., 364), that an action could not be maintained upon an instrument under seal against a party not named in the instrument, in the absence of some proof or act of ratification on the part of the understood principal.

The opinion in that case states that when the contract has been ratified or confirmed by acts in pais, and the coxxtx’act is one which would be valid, though not under seal, a different rule may obtain. In the case before us the defendant by paying the consideration, and by taking possession of the whole ten lots, as purchaser, and claiming to own and occupy them under the contract, and by making improvements, and betterments upon them with the assent of the husband of the plaintiff, and with the knowledge of the plaintiff, was in a situation to insist that even a parol contract was taken out of the statute of frauds, and could be enforced according to the well settled principles applicable to cases for specific performance. (Ryan v. Dox, 34 N. Y., 307; Carpenter v. Ottley, 2 Lans., 458; Foote v. Foote, 58 Barb., 258; Cipperly v. Cipperly, 4 N. Y. Sup. C. Rep. [T. & C.], 346; Morrill v. Cooper, 65 Barb., 519; Freeman v. Freeman, 43 N. Y., 34; Redfield v. Holland Purchase Ins. Co., 56 id., 357.)

If it be assumed that it was error to admit evidence that Hensler, the husband, was in embarrassed circumstances at the time the deed was taken from Hart, receiver, in March, 1860, we do not see that the error prejudiced the plaintiff.

The judgment should not be reversed for an erroneous ruling, if the court can see that no barm was done to the appellant thereby. (Woodruff, Fxecutor, v. McGrath, 32 N. Y., 235; Code of Civil Procedure, § 1003.) Nor was there any error px’ejudicial to the plaintiff in allowing the witness Williams to state that be derived ixxstructions from Hensler, the husband, in regard to bow the contract should be drawn for the laxid sold to the defendaxit; nor xvas it error to receive the coxxtract in evidexice ; nor did any haxxxx come to the plaintiff by allowing proof of the indorsemexits of $700 axxd $100 on the contract, as the fact of such payments was subsequexxtly proven by exxtirely competent evidence.

We do xiot find axxy error ixi the findings of the trial judge, or in his refusals to find, calling for a reversal of the jxidgmeixt. The relief granted requiring the plaintiff to convey the legal title to lots Nos. 9 axxd 10 was within the issues made by the pleadixxgs, and therefore proper. (Code of Civil Procedure, § 1207.)

The judgment should be affirmed, with costs to the respondent.

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

Judgment affirmed, with costs.


author: Hardin, J.:

text:
    THE ORLEANS COUNTY NATIONAL BANK, Respondent, v BURRALL SPENCER, Appellant, Impleaded with others.

      Judgment by default — irregularity in— motion to vacate such judgment, denied because of laches — Right to enter judgment by default against one of several joint debtors.

    This action was brought against the defendants, Ezra Jones, Burrall Spencer, Samuel M. Spencer and Jarvis Lord, as joint payees and indorsers of a promisory note, discounted by the plaintiff. The summons and complaint were personally served on Jones, and on Burrall Spencer and Samuel M. Spencer on May 7, 1878, and on' Lord sometime before May 29, 1879. Samuel M. Spencer served an answer alleging that his indorsement on the note was forged by Burrall Spencer. On May 29,1878, judgment by default was entered against Jones and Burrall Spencer. The issue raised by Samuel M. Spencer’s answer is still pending. Burrall Spencer had notice of the entry of the judgment against him on June 7, 1878, and subsequently used the judgment-roll for the purpose of establishing a defence interposed by him in an- action of foreclosure, to which all the parties to this action were parties. On May 9, 1879, Burrall Spencer noticed a motion, to be heard May 27, 1879, to set aside the judgment against him for certain irregularities which were specified in his notice.

      JSSld, that the court below, in its discretion, properly denied the motion, and that an order to that effect should be affirmed.
    The power of the Supreme Court to allow a judgment to be entered against one joint debtor, on his failure to appear and answer, while an issue raised by the answer of another joint debtor is still pending, considered by Hardin, J.
    Appeal by defendant, Burrall Spencer, from an order of the Munroe Special Term, denying a motion to set aside a judgment against said Burrall Spencer for certain irregularities specified, and for such “ other and further relief as may he proper in the premises.”
    The action was brought against Ezra Jones, Burrall Spencer, Samuel M. Spencer and Jarvis Lord. The summons and eomplaint were served on Ezra Jones, Burrall Spencer and Samuel M. Spencer on the 7th day of May, 1878, personally.
    The papers do not show at what date Jarvis Lord, another defendant in the summons named, was served, though they do show that subsequent to the 29th of May, 1879, a judgment was entered against said Lord. On the 29th of May, 1878, a judgment was entered in Orleans county clerk’s office against Ezra Jones and Burrall Spencer for the sum claimed in the summons and complaint, and for costs, their default being duly proven by affidavit. Samuel M. Spencer interposed an answer.
    The complaint stated that the four persons named were joint payees and indorsers of a note made.by the Rochester Iron Manufacturing Company ; that it was discounted and owned by plaintiff, and that the payment of it at maturity was demanded and refused, and the indorsers duly notified and charged, etc., “ and that the said note remained wholly unpaid, except the sum of ninety dollars paid thereon November thirteenth.” A notice of motion to set aside the judgment was made by Burrall Spencer, it was dated May 9,1879, and given for a Special Term appointed to be held May 27, 1879. It appeared that the moving attorney obtained a certified copy of the judgment from the Orleans county clerk 7th of June, 1878, and that Burrall Spencer had knowledge of the judgment from after 'that time, and that the judgment-roll was used by him to ' sustain a defence interposed by him in an action of foreclosure, to which action the parties herein were parties.
    It appeared by an affidavit made'May 26, 1879, that the answer of S. M. Spencer set up that his indorsement on said note was forged by Burrall Spencer, and that such issue was pending at that time, undetermined.
    The moving papers contained no affidavit of merits, or suggestion of a defence upon the merits, in behalf of Burrall Spencer.

      O. O. Cottle, for the appellant.
    The plaintiff was not entitled to a judgment against any of the defendants until the issue joined was disposed of. (Files v. Battershall, 2 Robt., 146; Sager v. Fichols, 1 Daly, 1; Fullerton v. Taylor, 6 How., 259; 2 Burr. Pr., 46 [2d ed.J; Miller v. McOagg, 4 Hill, 35; 1 Burr. Pr., 372; 3 Wait’s Pr., 597; Old Code, §§ 136,:274; New Code, §§ 448, 457, 1205.) The right sought to be protected by, the motion is matter of substance and not simply one of form and practice. The defendants, against whom judgment has been entered, are deprived of their right to call upon their co-defendants for their pro raía share of the joint liability. (Niles v. Battershall, 2 Robt., 149; Nelson v. Bostivick, 5 Hill, 37, 41.) Delay in making a motion is not a bar in a case like this, involving matters of substance and of right. (Hallett v. Righters, 13 How., 46; Mcmuf. and Merck. Bank v. Boyd, 3 Denio, 258; Rederick's Adms. v. Richley, 19 Wend., 108, 113; Note C; in Bliss’ New Code, 846.) The defect complained of is not amendable for the reason that the plaintiff is not now, and has not at any time had any right to judgment. The judgment is wholly unwarranted and- void. (Winnebrenner v. Bdgerton, 30 Barb., 185; Roderick's Admr. v. Richley, 19 Wend., 108.)

      Cogswell & Perkins, for the respondent.
   Hardin, J.:

By laches the defendant lost all right to have the judgment set aside for irregularity.

Motions for irregularity must be made promptly. In this case there was a delay of nearly a year. ,

In Bacon v. Comstock (11 How., 198), Harris, J., refused to' set aside a judgment on a motion of a defendant, a joint debtor, as too late when there had been about the same delay. Nor can the judgment be “ impaired or affected by reason of * *' * an informality in entering judgment or making up the roll.” (Civil Code, § 721, as amended by chapter 542 of the Laws of 1-879.) The same section provides, “ that a judgment shall not be affected or impaired by reason of * * * any other default or negligence of the clerk, or any other, officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced."

Has there been any “omissions or defects” in the proceedings by which Burrall Spencer has been prejudiced ?

By omitting to deny the allegations of the complaint, by suffering a default, he has admitted that he is indebted as in the complaint stated. He has admitted that all four of the persons named in the complaint are indebted to the plaintiff in the amount and as therein stated.

True, he admits that they are jointly indebted, but that does not make him any the less indebted." He also admits, so far as it is in his power to admit, that the plaintiff is entitled to a judgment against him, against the four named in the complaint.

With these admissions before us, how are we shown that he is prejudiced by a judgment which, so far as he is concerned, declares the truth of his admissions ?

If .he was a joint principal debtor and voluntarily paid the note, would he not be entitled to contribution from the other principals named in his contract of indorsement ? If the judgment stands and he pays it, will he not, if he is a joint principal, be entitled to contribution from his associate principals ?

If he was an accommodation surety or indorser, and he paid the note voluntarily, would he not be entitled to call for contribution upon his co-sureties or indorsers ? If the judgment stands and he pays it, will he not have the like .right to call for contribution from his co-indorsors ? (Barry v. Ransom, 2 Kernan, 462 ; Tobias v. Rogers, 13 N. Y., 59.)

Suppose the indorsement of S. M. Spencer was forged by B. Spencer, as the answer of S. M. Spencer alleges, and a judgment entered after that fact was determined by a trial upon the issue made by S. M. Spencer’s answer, would a judgment then entered be any the less effectual against B. Spencer than the one already entered against him ? If -that be so, how has B. Spencer been prejudiced by the entry of the judgment now standing upon the default of B. Spencer.

But passing over the question as to whether B. Spencer was prejudiced by the judgment, vro come to consider the power of the court to enter such a judgment.

The Supreme Court exists in virtue of, and derives its jurisdiction largely from the constitution of the State.

Section 6 of article 6 is as follows :

“ There shall be the existing Supreme Court with genera? jurisdiction in law and equity, subject to such appellate jurisdiction of the Court of Appeals as now is, or may be prescribed by law.”

By the personal service of the summons and complaint as aforesaid, the Supreme Court obtained jurisdiction of the person and of the subject matter ; and having such jurisdiction, could it not pronounce its judgment upon the defendants named in the judgment, upon their default.

Does not the power exist to give judgment upon the admissions or defaults, irrespective of the rules of practice or statute regulating practice in certain case's ? We speak now of the naked power of the court, and exclude all consideration of regularity in proceedings, and all mere formalities relating to “ entering judgment.”

We have been referred by the learned counsel for the appellant to Nelson v. Bostwick (5 Hill, 37). That was an action on a joint bond given, to secure costs in a suit, by Shumway, who was principal, and by Nelson who, in fact, was surety, though a joint obligor.

There is a dictum of Bronson, J., to the effect that the entry of judgment against Nelson alone, although Shumway was not served, was erroneous, as it did not comply -with section 1 of 2 R. S., 377, which provides for a judgment in form against all joint contractors, when some only are served, and for an indorsement upon the execution of the fact that some were not served.

Bronson, J., remarks, that “ this is not a mere formal defect which may be overlooked on a writ of error. It is a matter of substance. It changes the form of the execution and may prejudice Nelson in the collection of the money.” “ Until the record is amended no execution can issue against Shumway.”

Judge Co wen also delivered an opinion in the case, and in speaking of the judgment says : “ The judgment moreover is formally erroneous in dropping the name of Shumway, who was sued with Nelson though the former was not served with process. But the defect is amendable, and the defendants in error might amend it on payment of costs were it not for the substantial defect's.”

These conflicting views of those two learned judges were not passed upon in making the judgment pronounced, as the entire court united in holding that the declaration was fatally defective for not assigning a breach of the bond.

We are also referred to Niles v. Battershall (2 Robt. R., 146), which was an action for an attorney’s services against four, and only one appeared and defended, and the joint liability was found by the referee, and a separate judgment order against the defending defendant alone, and upon appeal it was held that the judgment was irregular and erroneous and it was reversed, as there was no leave of the court to enter such a judgment. (Code of Procedure, § 136.)

It is well settled that in an action against persons alleged to be jointly liable, if some turn out not to be liable, a judgment may be entered in favor of the plaintiff as to those found to be liable, and against the plaintiff as to those found not to be liable. (Parker v. Jackson, 16 Barb., 33.)

In Brumskull v. James (1 Kern., 294), it was so held when the action was a joint one against two defendants, and the wife was discharged by reason of coverture established upon the trial. To the same effect is Claflin v. Butterly (5 Duer, 328), and Harrington v. Higham (15 Barb., 524).

Under this rule, should the defence of forgery of the name of S. M. Spencer be established, the plaintiff would have an absolute right to judgment against the other defendants, who have suffered default. The rule was otherwise at common law in cases where the defendants appeared and answered on the merits. (Graham’s Pr. [ed. of 1832], 632; Weall v. King et al., 12 East, 453.) In this last case cited the plaintiff was nonsuited because he established the liability of only one of the defendants; and under the former practice, after a failure to plead, a rule for the defendant’s default might be entered in a common rule book, and after four days from entry of the default a rule for judgment might be entered.

The rule was final or intei’locutory; in debt on bond it was final, and the judgment was entered as of course. But in cases where there was to be an assessment, if one defendant was in default and the other answered, the assessment vras before the same jury, so that the damages against the party suffering a default and the one defending might be the same, and a prior assessment upon the default of one joint debtor was held to be irregular, and set aside on motion for that reason. (Griswold v. Stoughton, 1 Caines, 6; Van Schaick v. Trotter, 6 Cow., 600.)

Before the issue could be tried in cases where damages were to be assessed, it could nót be done before an interlocutory judgment had been regularly entered against the defendant who neglected to plead. (Hart v. De Lord, 17 Johns., 270; Van Schaick v. Trotter, 6 Cow., 600.)

The validity of a judgment by confession of one joint debtor has long since been determined, so far as the party confessing is concerned, and such confession binds his property or his interest in the joint property. (Crane v. French, 1 Wend., 311;Grazebrook v. McCreedie, 9 id., 437; Stingtenburgh v. Van Denburgh, 7 How., 231; Bridenbecker v. Mason, 16 id., 204; Lambert v. Converse, 22 id., 265.)

And it has been settled that where a judgment is taken by confession the Supreme Court has the same jurisdiction and power over its judgments as in actions pending, and may therefore order amendments of defective statements made upon confession. (Mitchell v. Van Buren, 27 N. Y., 300; Union Bank v. Bush, 36 id., 631.)

The last case cited also holds that the determinations of the Supreme Court in such matters are not reviewable on appeal to the Court of Appeals. (Union Bank v. Bush [supra], 635.)

Since the decision of the cases-quoted supra the Legislature has made an important change • in the law in respect to judgments taken by confession from one or more joint debtors.

Section 1278 of the Code of Civil Procedure is as follows, viz.: “ § 1278. One or more joint debtors may confess a judgment for a joint debt due, or to become due; where all the joint debtors do not unite in the confession the judgment must be entered and enforced against those only who confess it, and it is not a bar to an action against all the joint debtors upon the same demand.”

From this section we see that one joint debtor is now expressly authorized to confess a judgment to be entered against him alone, and the law expressly declares it shall not be a bar to a joint action. We express no opinion upon the effect of the judgment before us, upon the question of whether it would be a bar to an action against all, or if set up in a supplementary answer by S. M. Spencer a bar to any further proceedings or judgment against him.

’ It may be urged that a party, by confessing, waived his right to have a joint judgment against all his co-joint contractors, and that the statute expressly provides that confession may be made ; and, therefore, it cannot be allowed, that a separate judgment stand, taken otherwise than by an express confession. (Code of Civil Procedure, §§ 1273, 1274.)

But a party may waive a constitutional or statutory right not only in- the mode prescribed in the statute, but by other acts or modes than those enumerated in the statute as to waivers or consents.

Though the statute provides that a jury trial may be waived by “ written consent,” by oral consent, in open court, or by failure to appear, the Court of Appeals have recently determined that he may waive that constitutional and sacred right in other modes, and by other acts than those specifically enumerated in the statute upon that subject. His conduct and silence and delay may accomplish the waiver. (Baird v. Mayor, etc., 74 N. Y., 382; Wheelock v. Lee, 74 id., 495.)

In the case in hand we find that the defendant, Burrill Spencer, derived knowledge of the entry of the judgment in question as early as the 7th of June, 1878, and that he slumbered upon his privileges to move to set it asido for more than eleven months.

And, furthermore, that he obtained a copy of the judgment record and used it to affect rights in other litigations, between himself and the parties in this action.

Having by his laches waived the irregularities and by his delay and inaction suffered the judgment to stand for more than eleven months, may we not treat his consent or acquiescence in the judgment as equivalent to a confession of judgment or a consent that the judgment stand, with the like force and effect as against him, as would a judgment entered upon his express confession.

The learned counsel for the appellant insists that this judgment was “ without jurisdiction and void,” and refers us to the case of The People ex rel. Tweed v. Liscomb (60 N. Y., 559); and Ex parte Lange (18 Wall., 163). In those cases the judgment imposed sentences in criminal cases, which were not merely erroneous “ but such as could not, under any circumstances, or upon any state of facts have been pronounced.”

In re Lange it was held that, having once been fined and paid, he could not again be put in jeopardy and fined for the same offence.

We do not think that the principles there stated, aid the defendant upon his motion in this civil action to be relieved of a judgment which was suffered by a default to be entered and allowed to stand for nearly a year, for not one dollar more than appeared by the complaint and the admission thereof by default, and by the absence of all suggestion in an affidavit of merits or otherwise to be justly due to the plaintiff.

Our conclusion is, that the Special Term in its discretion properly refused to set aside the judgment against B. Spencer, and wo therefore affirm the order, with ten dollars costs and disbursements.

Talcott, P. J., concurred, and Smith, J., concurred in the result.

Order appealed from affirmed with ten dollars costs and disbursements.


text:
    MARTIN S. CUYKENDALL, as Receiver, etc., of the late DODGE AND STEVENSON MANUFACTURING COMPANY, Plaintiff, v. AMOS DOUGLAS, Defendant.

      Manufacturing corporation— chapter 40 of 1848, sections 20,21 and 22 — increase of stock — what evidence of notice to stockholders held sufficient — certificate as to the increase of the stock — what is a sufficient acknowledgment of— Assessment on stockholdei's, on the insolvency of a corporation — when the stockholders are estopped from disputing their liability for its debts.

    Sections 20 and 21 of chapter 40 of 1848, authorize a corporation formed thereunder to increase its capital stock as therein prescribed, and provide for giving notice of the meeting, to be held for that purpose, to the stockholders. Section 22 provides that if a sufficient number of stockholders appear in person or by-proxy, they shall organize by choosing one of the trustees chairman, and a. suitable person for secretary; that if a sufficient number of persons vote in favor-of increasing the stock, a certificate stating certain facts prescribed in said section, “ shall be made out, signed and verified by the affidavit of the chairman, and be countersigned by the secretary, and such certificate shall be acknowledged by the chairman and filed as required by the first section of this act.”

      On October 8, 1867, a certificate was filed showing that at-a meeting of the stockholders of a manufacturing corporation, held to vote upon increasing the capital stock, John A. Dodge was elected chairman and Howard S. Stevenson secretary, and that more than two-thirds of the whole number of shares of capital stock voted'in favor of the increase. It was signed as follows:
    “JOHN A. DODGE.
    “ Subscribed and sworn to before me,) this-Sth day of October, 1867. )
    “ Daniel A. Robinson, Jr ,
    “ Justice of the Peace of Cayuga county.

    “Countersigned — II. S. Stevenson,

      “Secretary.”

    It appeared that Dodge had been named as one of the trustees in the articles of association filed in March, 1866, and had acted as stich at a meeting of the trustees on September 11, 1867.
    In an action by the receiver of the company to enforce an assessment upon stock held by the defendant, in which the defendant challenged the validity of the increase of the stock directed at such meeting, held, that it sufficiently appeared that Dodge was a trustee of the corporation at the time of the meeting, and that he was qualified to act as chairman thereof.
    That the certificate was sufficiently acknowledged to satisfy the requirements of the statute in that resx>ect.
    That in the absence of evidence that due and sufficient notice of the meeting was not given to the stockholders, the books of minutes of the company and the certificate showing that more than two-thirds of the stockholders appeared in person or by proxy, and voted for the increase of the stock established, as against the defendant, that the stock was increased at a regularly assembled meeting of the stockholders.

      .Semble, that when upon the voluntary dissolution of a corporation, on the ground of its insolvency, the Supreme Court appoints a receiver and directs an asscss:ment upon the stockholders, such order, until modified or reversed on appeal, ■ establishes conclusively as against the stockholders-that the debts, to the payment of which the assessments are to be apxffied, are debts for which they are personally liable.
    "When at the time.of the dissolution of the. company and- the appointment of a receiver a.portion of the debts of the company are not yet due, it is not essential to the validity of an assessment upon the stockholders directed by the court that judgrrents should first have been.recovered thereon against the company.
    What is snffi dent evidence to establish as against a stockholder his ownership of •shares in a corporation, considered.
    Motion for a new trial on a case and exceptions ordered to be heard in,the first instance at the General Term, after a.verdict in favor of the plaintiff directed at the circuit.
    This action was tried at a circuit court in Cayugá county, and a verdict ordered for the plaintiff for $1,849.
    The defendant asked the court to direct a verdict in his favor on several grounds. The court refused and the defendant excepted.

      The action was brought to -recover of the defendant, as a stockholder in the Dodge and Stevenson Manufacturing Corporation, of which the plaintiff was appointed receiver.
    The company was organized iii March, 1866, with a capital stock of $250,000, and had its principal place of business in .Auburn, Cayuga county. The certificate of organization was-filed in the Cayuga county clerk's office March 10, 1866. The ■defendant received a! certificate September 19, 1866, for ten shares, -and a certificate March 4, 1868, for five shares, and one-■dated June 17, 1868, for nine shares. The latter certificate = ¡stated, “ capital-increased to $500,000.”
    At -a meeting of the board of trustees held September 11, 2867, it was unanimously resolved to increase the stock to '$500,000 ; and notices were directed to be given and were given Tor a stockholders’ meeting for October 4, 1867. ■
    The book of minutes of the board of trustees was produced at the trial, and the following proceedings and resolutions read therefrom m evidence, against the objection and exception of the •defendant, who insisted : “ First. That it isiiot competent evidence-to-prove increase of capital stock. Third. That there is no provision of the statute providing for a record of a meeting of stockholders to increase stock, except the record be filed in the clcrk'soffice, which is of no effect uiitil it is shown to be filed' there ; that the book is shown by evidence to be the book of minutes of .meetings of the trustees’ aud-not-a 'book-of 'xhiniites Of meetings of "the Stockholders.” -The objections 'werebveffuled^and- thb following resolutions read1:
    7‘ AubuííN) N. Y.ySepténiBér'11, 1867.
    “ Board of trustees met. Present — J. A¡ Dodge, H. G. Tomp,’kins, G. J. LetchwOrth, I. F. Terrill, J. A. Polhemus.
    “First. It was unanimously resolved’that the capital stock Of the Dodge and Stevenson Manufacturing Company be increased to the sum of five hundred thousand dollars ($500,000).
    ‘ ‘ Second. That the president be authorized to issue the proper" notices to the stockholders to cariy out the first Resolution; Adjourned.
    '“ JOHN A. DODGE,

      ’“’President

      “Auburn, N. Y., October 4, 1867.
    “At a meeting of the stockholders of the Dodge and Stevenson' Manufacturing Company, held in their office, October 4, 1867, at-two o’clock, John A. Dodge was appointed chairman, and H. S-Stevenson was appointed secretary. H. G. Tompkins and G. J. Letchworth wore appointed tellers. Moved by I. F. Terrill, and. seconded by R. A. Nelson, that the stockholders proceed to vote, upon the resolution to increase the capital stock of the Dodge and. Stevenson Manufacturing Company to ($500,000) five hundred, thousand dollars. Carried. Poll opened at 2| o’clock. Moved by I. F. Terrill, and seconded by H. G. Tompkins, that the poll, close at five o’clock. Carried. Moved by I. F. Terrill, and seconded by H. G. Tompkins, that the meeting adjourn, to meet again at 7[ o’clock this evening. Carried.”
    On October 8, 1867, the following certificate was filed :
    “Ata meeting of the stockholders of the Dodge and Stevenson Manufacturing Company, held at their office, in the city of Auburn, N. Y., on the 4th day of October, 1869, at two o’clock p. m., for the purpose of voting upon the resolution of the trustees to increase the capital stock of said company to $500,000, John A. Dodge was elected chairman of the meeting and Howard S. Stevenson secretary.
    “ The stockholders present proceeded to vote in person and by proxy, and upon the closing of the poll, and counting the ballots, it appeared that more than two-thirds of the whole number of shares of said capital stock were voted in favor of the resolution to increase the capital stock of said company to $500,000. The debts and liabilities of said company are $235,967.56. The capital actually paid in is $250,000.
    “JOHN A. DODGE.
    “ Subscribed and sworn to before me, this 8th day of October, 1867.
    “ Daniel A. Robinson, Jr.,
    “ Justice of the Peace of Gayuga county.

    .“ Countersigned — H. S. Stevenson,
    “ Secretary.

    “ [Indorsed.] Filed October 8, 1867.”
    Plaintiff’s counsel then again offered to read in evidence from «aid last-mentioned book the minutes of meetings of August 29 mid 31, 1874. Defendant’s counsel again objected on the same .grounds he had taken on his objection thereto, when before offered to be read by plaintiff’s counsel, and heretofore set forth. Said objection was overruled, and defendant in due time excepted, and said minutes were read in evidence, as follows :
    “ Office of the Dodge and Stevenson Mfg. Co., > '■'■August 29, 1874, a. m. )
    “ In pursuance of the call of the' president of this company, and due notice thereof to all its trustees, a meeting of the said trustees was held. Present — II. G. Tompkins, E. L. Thornton, G. J. Letchworth. Matters of special interest pertaining to the business “were discussed, and on motion, the meeting adjourned to 4¿- o’clock 3*. M. this day.”
    “ Office of the Dodge and Stevenson Mfg. Co., ) “4-| o’clock p. m., August 29, 1874. )
    i! Board met pursuant to adjournment from this morning. Present — II. G. Tompkins, E. L. Thornton, G. J. Letchworth. Letter was read from Mr. Eowler from New York, saying he could not be home before Sunday morning. On motion meeting ■adjourned until ten o’clock Monday morning, August 31st.”
    “ Office of the Dodge and Stevenson Mfg. Co., > 10 o’clock, a. m., August 31st )
    •“ 1874.
    “Board met pursuant to adjournment from Saturday, p. m. .'Present — Jno. S. Fowler, II. G. Tompkins, G. J. Letchworth. Minutes of regular meeting May twelfth, and special meeting -June sixth received and adopted. The following resignation of „E. L. Thornton was read, and on motion of Mr. Fowler accepted.”
    “Auburn, August 29, 1874. ) 5 o’clock, p. m. 5
    “ To the Members of the Board of Trustees Bodge and Stevenson Mfg. Go.:

    “Dear Sirs. — I hereby tender my resignation as trustee of jyour company, having parted with all my stock.
    “ Yours respectfully,
    “E. L. THOKNTON.”

      The president reported that he had become satisfied that, even• after the most careful and economical management, the present, year’s business will show a net loss to the company. The treasurer reported that the receipts from the business are entirely inadequate to the payment of the company’s bills payable, and that a. large amount of paper now lies under protest, upon some of which actions have already been commenced, and others threatened to-be commenced.
    Alter a thorough discussion and examination of the present and future prospects of the business, and with duo regard to the best, interests of all parties interested in this company, the following-resolutions were presented by Mr. Fowler, who moved their adoption.
    “Resolved, That we, the trustees of the Dodge and Stevenson. Manufacturing Company, have become satisfied that the property and convertible assets of the said corporation, over and above its-, capital stock, are insufficient to pay its just debts, and that the business for which it was incorporated cannot be longer carried without loss to the stockholders or creditors.”
    “Resolved, That pursuant to the provisions of chapter 361 of' the Laws of 1852, and chapter 179 of the Laws of 1853, of the State of New York, the said Dodge and Stevenson Manufacturing Company is hereby dissolved and ceases to exist.
    “ Resolved, That a copy of these resolutions be served upon or-sent by mail to all the creditors and stockholders, and a copy thereof to be published in the Auburn Daily Advertiser.
    “ The ayes and noes were called for, with the following result: J. S. Fowler, aye; H. G. Tompkins, aye; G. J. Letchworth, aye. The president therefore declared the resolutions adopted, unanimously. On motion the board then adjourned at 12 o’clock m.”‘
    On the 15th day of June, 1876, upon due application, the accounts of the trustees were passed, find the plaintiff was duly appointed a receiver of said company, and the trustees were removed by an order of the Supreme Court.
    The receiver gave his bond and duly qualified. On the 21st of' July, 1876, the receiver made a report to the court that there were subscriptions to the stock unpaid, and asked for directions. ns to whether an assessment should be made.

      Ou that day the Special Term granted an order, viz., that an assessment be made and is hereby directed upon the stockholders of the late Dodge and Stevenson Manufacturing Company, and those liable for the debts thereof, of and to the “ amount of seventy-five per cent of the amount of stock held by them respectively ; that the said receiver make and proceed to collect the same with all reasonable dispatch.”
    The receiver on the 22d of July, 1876, made such an assessment, and assessed the defendant $1,800.
    It appeared the capital had not all been paid in, and the liability of the stockholders, it was claimed, existed under sections 10 and 11 of the act of 1848.
    The question as to the affinity of the judge appointing the receiver was considered at a former term of this court, and the opinion of the court by Mullen, J., is reported in 14 Hun, 440 ; the order then made was subsequently reversed by the Court of .Appeals.

      W. F. Cogswell, for the plaintiff.

      Richard C. Steel, for the defendant.
   Hardin, J. :

The learned counsel for the defendant insists “ that the verdict should not have been for more than seventy-five per centum of $1,500 and interest.”

In October, 1867, a vote was taken at a stockholders meeting upon the resolutions for increasing the capital stock,from $250,000 to $500,000. The certificate filed with the clerk shows that more than two-thirds of the whole number of shares of the capital stock voted in favor of the resolution.

There was no proof given to the contrary upon the trial. The 20th section of the act of 1848 (chap. 40), relating to the formation of corporations for manufacturing purposes, provides that “any company which may be formed under this act may increase or diminish its capital stock by complying with the provisions of this act.”

Section 21 provides for a meeting of the stockholders, for the purpose of availing of the provisions of the act. It declares that “ when any company shall desire to call a meeting of the stockholders ” for such purpose, “it shall be the duty of the trustees to publish a notice, signed by at least a majority of them, in a newspaper in the county, * * * at least three successive weeks,” and to deposit a notice in the postoffice, addressed to each stockholder.

This is a duty imposed upon the trustees for the purpose of assembling the stockholders. The certificate which was filed was signed and sworn to by John A. Dodge, and it appears by the certificate of incorporation, made March 10, 1866, that ho was named as a trustee to manage the concerns of the company. There was no proof that he was removed or displaced, and the minutes of board of trustees show him acting at a meeting September 11, 1867, as such trustee, and it, therefore, sufficiently appears that when he was elected chairman of the stockholders' meeting, he was eligible as the chairman of the meeting, and answered the requirements of section twenty-second in that regard, and there is no force in the objection made to the certificate filed in October, 1867, in that regard. The certificate was “ verified by the affidavit of the chairman,” and “ it was countersigned by the secretary ” of the stockholders’ meeting. It was filed in the clerk’s office.

The statute says: “And such a certificate shall be acknowledged by the chairman.”

The certificate was produced from the clerk’s office. At the end of it and to the left of the signature of John A. Dodge were these words, ‘1 subscribed and sworn to before me, this 8th day of October, 1867, Daniel A. Robinson, Jr., justice of the peace of Cayuga county.”

The force of the objection is aimed at the use of the word “ subscribed ” instead of the word “ acknowledged.”

We fail to see that there is any force in substance in the objection, of which the defendant can avail himself successfully. The object of the statute was to provide a mode of proof of the instrument, to establish its genuine character, and as the signature was in presence of the justice and he had witnessed and certified it, we do not see why the object of the, statute was not answered.

A certificate of acknowledgment is only required to be in substantial compliance” with the statute. (Thurman v. Cameron, 24 Wench, 87; West Point Iron Company v. Reymert, 45 N. Y., 703; Canandarqua Academy v. McKechnie, ante, p. 63.)

There was some evidence given tending to show that notice of the stockholders’ meeting was given to all of the stockholders. Tn the absence of any proof that due and sufficient notice was mot given to all, we think the book of minutes and the certificate, showing that more than two-thirds of the stockholders appeared in person or by proxy, and voted for the increase of- the stock, establish as against this defendant, that the stock was increased from $250,000 to $500,000, at a regularly assembled meeting of stockholders.

September 9, 1868, a semi-annual dividend of five per cent was declared, and also a dividend of five per cent payable 20th of December, 1868, and one 20th February, 1869. There was proof of the payment of these dividends.

The defendant December 24, 1868, acknowledged the payment of $120 as a dividend, and he received and indorsed a check for dividend, which was given February 20, 1869, by Dodge, as president of the company. February 7, 1868, the defendant wrote to the president that file was negotiating for five shares of stock óf the company issued to Loomis & Sands, and also for the three shares allotted on this “ original ” stock, and he asked for privilege of paying up the installment due on that stock February 1, 1868 ; and he received a letter from the company February 13, 1868, giving him the privilege of paying up the installment and having a receipt in full.

February 17, 1868, defendant sent to pay the last named balance a draft, and he asked for a certificate of the five shares of Loomis & Sand stock bought by him. It was transferred to him February 8, 1868, in writing by the assignee of Loomis & Sands.

January 29, 1874, the defendant sent in a receipt to the company for a. new certificate for twenty-four shares of stock of the company, and also acknowledged preferred stock.

March 15, 1872, in chapter 108 of the laws of that year, the Legislature authorized the company to issue preferred stock, if a' majority of the stockholders should assent thereto.

On January 5, 1874, the defendant executed three several instruments covering twenty-four shares of stock, in each of which instruments occur substantially these words, viz. : “ For considerations mentioned in chapter 108 in the Laws of 1872, an act amending the same, and the assent and subscriptions made thereunder,, the undersigned hereby transfers and surrenders and delivers up-to the trustees of Dodge and Stevenson Manufacturing Company to be canceled, the within scrip and shares of capital therein mentioned, being nine shares in number, dated “Franklin, N. Y., January 5, 1874, Amos Douglass.” Proceedings in respect to. the preferred stock were had, and stated to defendant, and he was-asked by letter to send in his scrip as held by him, and to execute a surrender of it in the words given above. He sent in his. three certificates covering twenty-four shares of stock, with -a surrender attached to each certificate in the words given supra.

We think the defendant was the owner of twenty-four shares of the stock of the company at the time it wont into liquidation, and. at the time the receiver made the assessment, and that he was. properly held liable to be assessed upon the twenty-four shares of the stock. The recovery was for seventy-five per cent on twenty-four shares, of $1,800, and forty-nine dollars interest thereon.

Besides, the twenty-second section of the act provides, that when the certificate of the stockholders’ meeting is filed, “ the capital stock of such corporation shall be increased or diminished to the amount specified in such certificate.” It also provides the company shall be entitled to the privileges and provisions of this act..

The defendant as a stockholder was part of the company, and as he, in common with the company, had the benefit for a time of such “privilege and provisions,” it is just and proper that he should take the burdens and be subjected “ to the liabilities of the act.” (Act of 1848, chap. 40, § 22.)

Again, it appeal’s that there was a stock book kept by the company, and an account thereon of defendant’s stock, and the receiver testified that he found the defendant’s name thereon.

The exact contents of the book do not seem to be in the case, as made up before us, though the evidence shows the defendant’s name thereon. But in the absence of any proof by the defendant that he did not appear by the book to be owner of twenty-four shares, we think, with the evidence before us already alluded to, that we should be justified in presuming that the twenty-four shares of defendant’s stock wore entered- upon the stock ledger which was open to inspection to “stockholders and creditors of the company.” (Act of 1848, chap. 40, § 25.) That statute declares. “ such book shall bo presumptive evidence of the facts therein, stated in favor of the plaintiff, in any suit or proceeding against-such company, or against any one or more stockholders.” (Section 25.)

If that book was presented to the court when the assessment was made, and the amount of assessment required there determined upon from a consideration of the debts, liabilities and the number of shares held by the various stockholders, and the court found from the prima facie evidence in such proceedings that the-defendant was a stockholder of twenty-four shares, and directed an assessment of seventy-five per cent thereupon, why should he not be included ?

However this view may bo, we think the defendant was clearly liable to bo assessed for twenty-four shares, and not for fifteen only.

We come now to consider the motion made by the defendant,, to dismiss the complaint based upon a supposed failure “ to prove that any of the debts of the company were to be paid within one-year from the time it was contracted.”

We might with propriety adopt the reasoning of Talcott, J., in Hurd v. Tallman (60 Barb., 272), aud conclude that the action, of the Supreme Court in appointing a receiver, and directing an assessment upon the stockholders of the company, was conclusive upon the stockholder in this action against him.

If the order was irregularly made or prematurely made, the remedy was by an application to change the order, or by an appeal therefrom. (In re Reciprocity Bank, 22 N. Y., 9; Hurd v. Tallman, 60 Barb., 286; Whittlesey v. Franz, 74 N. Y., 461.)

But we think there is a further answer to the position taken, by the defendant. It appears that, at the time of the dissolution* the company was in debt from $300,000 to $350,000, and that a large part of it was for debts not then matured. The dissolution was August 31,1874. It then appears the company was insolvent,. and the trustees pursuant to the Herkimer county act (chapter 561 of Laws of 1852), which was by an act of 1853, chapter 179, made applicable to Cayuga county, provided no preferences shall have been made by the company, adopted a resolution dissolving the compay as they had a right to do. (Story v. Furman, 25 N. Y., 214, and cases there referred to, and Hurd v. Tallman, 60 Barb., 272.)

The report of the president made to that meeting of the trustees stated “that the (then) present year’s business would show .a net loss to the company.” It appeared that as much as .$100,000 of the debts were due.

It appeared that settlements were made -every year with one George Harding, and that his debt was in bills payable, and that the settlement of the year the company went into liquidation was not paid. It appears that there wore contingent liabilities upon indorsements or guaranties made by the company for about $10,475.72 upon “business paper owned by the company.”

It also appeared that some of the claims against the company were for infringements of patents. The receiver was sworn and gave a general account of the debts, and it does not appear in his cross-examination or by any other evidence in the cause that the defendant’s debts were not contracted, as in the usual course of business of such company, payable in less than one year from the creation of the indebtedness.

We think, therefore, it was fairly concluded by the trial judge that some, at least, if not ail the debts, were payable within one year from the time of their contraction.

Nor was there any force in the learned counsel’s argument that this action could not be maintained without showing that the creditors had obtained judgments against the company. It appeared that many of the debts were not matured in August, 1874, when the company was dissolved. The dissolution of the company by the resolutions of August, 1874, under the act of 1852, put it out of the power of creditors to obtain judgments against the company, and had such judgments been obtained they would have been fruitless, as the creditors could not, by means thereof, upon executions or otherwise, seize the funds in the bands of the trustees. (Shellington v. Howland, 53 N. Y., 375; Kincade v. Dwinnell, 59 id., 548; Whittlesey v. Frantz, 74 id., 460; Huguenot Nat. Bank v. Studwell, 74 id., 621.)

They held the funds as trustees for the creditors. They stood for the time they held the assets as statutory receivers, appointed in virtue of the sovereign power, and such trustees or receivers-hold, by a tenure and for purposes as valid and effectual as do-receivers appointed by this court, the funds of an insolvent corporation. (Story, Receiver, v. Furman, 25 N. Y., 220.)

The action by the receiver appointed by the Supreme Court,, named as the successor of the statutory receivers or trustees, is to-enforce in equity the liability of the stockholders, and a recovery by him as such is a bar to an action by a creditor. (Walker v. Crain, 17 Barb., 119; Story as Receiver v. Furman, 25 N. Y., 222.)

In Pfohl v. Simpson et al. the action was by a creditor of The Peoples’ Safe Deposit and Savings Institutions to reach the liabilities of stockholders in equity, and I stayed actions brought by separate creditors against stockholders at law, and upheld the right of the creditor to enforce the stockholders’ liability for the benefit of all the creditors, and it was also held that such relief was within the equity jurisdiction of the court. The judgment was sustained by this court and the Court of Appeals. (Pfohl v. Simpson, 74 N. Y., 137.)

We have considered above the only points raised in the argument before us, and we conclude thereon adversely to the defendant for the reason stated, and we must therefore direct judgment for the plaintiff, as receiver, upon the verdict, against the defendant, with costs.

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

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


text:
    HENRY P. KNOWLES, Plaintiff, v. SAMUEL CUDDEBACK, Defendant, Impleaded with SANFORD N. HOOPER.

      Lease — when one signing it vAth lessee may show that he did so as surety only— when a surety is not bound by a renewal, taken by the lessee by virtue of a clause in the original lease.

    'This action was brought to recover rent due upon a lease dated November 16, 1874, made between “Henry P. Knowles * * * of the first part, and Sanford N. Hooper * * * and Samuel Cuddeback of the second part,” by which the party of the first part leased “ to the said Sanford N. Hooper, party of the second part,” certain premises therein described, from November 16, 1874, to January 1, 1877. The lease contained a clause by which “ the said party of the second part, jointly and severally, covenant that they will pay to the party of the first part ” an annual rent as therein provided; “ the party of the second part to have the privilege of a renewal of this lease for three years longer, upon giving the party of the first part, thirty days before the expiration hereof, notice of his election to renew.” On December 28, 1876, Hooper notified Knowles of his intention to avail himself of the privilege given him in the lease, to renew it for three years, and Knowles thereupon indorsed •an extension upon the lease.

      Held, that it was admissible to show by parol evidence that Cuddeback signed the lease as a surety for Hooper, and that Knowles had notice of this fact. 'That Cuddeback was only liable for the rent accruing during the term given in the original lease, and not for that which might fall due under any-renewal thereof which the said Hooper might elect to take.
    ■Motion for -a now 'trial on exceptions ordered to be heard in the .first instance at the General Term,- after a verdict in favor of the plaintiff.
    The action was brought upon a lease to recover rent due thereunder. The plaintiff's right to recover the rent which accrued prior-and up-to December 31,-1876, was not disputed. The contest made at the trial was in respect to the rent which accrued after that date.
    The lease was “ made and executed between Henry P. Knowles, of Palmyra, Wayne county, N. Y., of the first part, and Sanford N. Hooper, of the town of Phelps, Ontario county, N. Y., and Samuel Cuddeback, of the second part, the 16th day of November, .in the year of our Lord 1874.”

      It provided, among other things, that “ the said party of the first part has demised and leased, and does hereby demise and lease to the said Sanford N. Hooper, party of the second part, the following premises, viz.: * * * for and during the term beginning on the 16th day of November,. 1874, and ending on the .1st day of January, 1877.
    “And the said party of the second part, jointly and severally, covenant that they will pay to the party of the first part, for the use of the said promises the annual rent of $350, to be paid as follows : Said rent to begin December 1, 1874, and the rent for the first four months rent to be paid April 1, 1875, and afterwards quarterly, payable at the Lyons National Bank, Lyons, N. Y. * * * The party of the second part is to have the privilege of .a renewal of this lease for three years longer, upon giving the party of the first part, thirty days before the expiration hereof, notice of his election to renew.
    “ The party of the second par’t covenants that at the expiration of said term they will surrender up said premises to the party of the first part in as good a condition as now, necessary wear and -damage by the elements excepted.
    “ Witness the hands and seals of the said parties, the day and year first above written.
    “II. P. KNOWLES, [l. s.]
    “ S. N. HOOPER, [l. s.]
    “ SAMUEL CUDDEBACK.” [l. s.]
    Hooper December 28,1876, gave notice in writing to Knowles, the landlord, viz. : “I wish to avail myself of the-clause in our lease for the saloon, allowing mo to continue or extend it for .the three years from January 1, 1877 ; and I consider this a proper notice for that purpose. Yours truly, S. N. Hooper.”
    The plaintiff upon its receipt made the following memorandum on the lease : “ December 28, 1876, to be continued and extended for three years from January 1, 1877, II. P. Knowles.”
    January 6, 1877, Cuddeback was informed of the election made by Hooper.
    Evidence showing that Cuddeback was simply surety for Hooper was offered and received against the plaintiff’s objection and exception. Hooper suffered a default.

      At the trial the judge ordered, a verdict for the plaintiff against the defendant Cuddeback for the rent in arrear, in the term first named, and refused to order a verdict for the plaintiff for any rent accruing after January 1, 1877. The plaintiff asked to have sul> mitted to the jury the question, “ as to whether and at what time Hooper sent to Knowles the notice of renewal, and whether Cuddeback assented to Hooper holding over, and ratified the notice of renewal by Hooper, when he got notice that Hooper had served notice for a continuance of the lease.” The court refused and the plaintiff excepted

      S. B. McIntyre, for the plaintiff.

      J. Welling, for the defendant Cuddeback.
   Hardin, J.:

It is clear from the terms of the lease that the premises were demised to Hooper.

It is equally clear that Hooper and Cuddeback “jointly and severally covenant to pay to the party of the first part, for the use of said premises, the annual rent of $350,” from December I, 1874, to December 31, 1876.

It was competent to show by the surrounding circumstances and by parol, that the defendant Cuddeback was merely a surety for Hooper, and that such fact was known to the plaintiff, the landlord at the time when he executed the lease. (Barry v. Ransom, 12 N. Y., 466; Blossom v. Griffin, 13 id., 569; Artcher v. Douglass, 5 Denio, 509.)

We proceed, therefore, to the further consideration of the case, with the relation of Cuddeback as surety for Hooper, the tenant, established and known to the plaintiff. We have seen the premises were leased to Hooper, and the term was certain, expiring 31st of December, 1876; and Hooper and Cuddeback jointly and severally promised to pay the rent accruing in that time. We come now to inquire what is the legal effect of the further words of the lease, to wit: “ the party of the second part is to have the privilege of a renewal of this lease for three years longer upon giving the party of the first part thirty days before the expiration, hereof, notice of his election to renew.”

The word “ party,” as used in this clause, is equivalent to and used to convey the same idea as would have been expressed by the use of the ivord “ Hooper.” This is manifest from the relation Knowles, Hooper and Cuddeback held towards each other in respect to the property, its use and occupation, and the promise to pay for the use.

Again, at the close of the sentence we find the words “ notice of his election to renew.” These words clearly contemplate an election by Hooper, the tenant. The whole sentence carries out the idea that “ the privileges of a renewal ” for “ three years longer ” is granted by the landlord to the tenant, upon -the condition that “ notice of his election to renew” be given by him to the landlord. The landlord gives the tenant the “privilege of a renewal of the lease for three years longer,” as we have seen upon condition that thirty days’ notice be given of his election to avail himself of the privilege by a “ renewal.” It is, in effect, a stipulation that the tenant has the right to have a new lease drawn and thus be renewed by a fresh execution. (Taylor’s Landlord and Tenant, § 332.)

Taylor says, the covenant by the landlord that “ he will renew the lease at the expiration of the term for the same or some other period mentioned ” is one adding much stability to the lessee’s interest, and he adds, “under this covenant the lessor is bound to make another lease eithor-to the lessee or his assignee.”

This lease does not contain a continuing guaranty for payment by the surety; it is not so written in words, and we think is not open to a construction binding the surety for a term to be named in a “renewal.” (Rutgers v. Hunter, 6 Johns. Ch., 218.)

The surety did not stipulate or covenant that his liability should continue over a three years longer term if the tenant elected to take and receive a renewal.

The rules which apply to contracts of sureties, and as applicable to collateral covenants, are accurately stated by J. C. Smith, J., in Hayden v. Crane (1 Lans., 181), and applying the rules we cannot interpret the lease, so as to charge the surety Cuddeback with the three years longer term, which required the landlord to give and allow the tenant to receive a new and other lease. (See Liverpool Water Works Co. v. Atkinson, 6 East, 509.) The privilege of renewal is more like a buyer’s option not uncommon in modern transactions, and it is generally understood that, if the option is availed of, a transfer or conveyance must be formally given to effect a consummation of the contract.

The surety did not expressly covenant beyond the first term named in the lease, and we cannot find any words in the lease apt and appropriate to conclude him by the tenant’s exercise of his

We are referred to Decker v. Gaylord (8 Hun, 110). We think that case is distinguishable from the one in hand. There the words were, “ this contract is to be renewed for three consecutive years, if it is fulfilled to the satisfaction of the parties.” There the contract yas declared to bo a continuing one, running with the lease, if the game were renewed by the parties. And it appeared the surety expressly stated he would be held, and waived the making of a juew lease.

Not so here, as Cuddeback the surely protested that he would not continue his liability, or have anything to do with a new lease. The liability of the surety Cuddeback beyond the 31st of December, 1876, was not established, and therefoi-e the trial judge properly refused to direct a verdict against him for such rent as .accrued subsequent to that date, and properly refused to submit the case to the jury in that regard.

We must deny the motion for a new trial, motion to the defendant Cuddeback, with libei-ty to- plaintiff to venter judgment on the verdict.

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

Ordei’ed accordingly.


author: HardiN, J. :

text:
    SARAH A. PURSELL, Respondent, v. JOHN FRY AND JACOB SMITH, Executors, etc., of RICHARD HINDS, Deceased, Appellants.

      JPersonal transactions with a deceased person — when a legatee may testify as ■ to — Code of Civil Procedure, § 829 — claim far services on an entire account — part payment takes the balance out of the statute of limitations — Unliquidated •claim — interest not allowed —• When a married woman may recover for personal -services — when costs not awarded against executors, who have refused to pay a claim.

    "The plaintiff presented to the defendants, as executors, a claim for services - rendered to their testator, the plaintiff’s father. Upon the trial on a reference,' under the statute, a sister of the plaintiff, who was also a legatee under the will, and her husband, were allowed, against the defendants’ objection, and exception, to testify as to the employment of the plaintiff by the testator, and as to his promise to pay her wages for her services.

      Held, that the evidence was properly received.
    The plaintiff commenced to work in May, 1867, and continued to do so until May 18, 1877. Upon the trial the defendants claimed, and the plaintiff admitted, that payments had been made on the account in each of the years during which the services were rendered. The defendants insisted that the claim for services rendered more than six years p7'ior to the testator’s death was barred by. the statute of limitations.

      Meld, that the plaintiff’s claim constituted an entire account, and that the payments made took the entire balance out of the statute.
    .No price was agreed upon for the services to be rendered, nor was any balance admitted to be due by the defendants.

      Meld, that it was error to allow interest upon the amount allowed by the referee from the time of the presentation of the claim to the defendants.
    At the time of entering into the service of the testator the plaintiff was a married woman, but had separated from her husband and supported herself by her earnings.

      Meld, that the wages belonged to her, and that she was,entitled to sue to recover* them.
    "October 24, 1878, the plaintiff presented to the defendants a claim for services rendered in attending upon their testator (the plaintiff’s father) and his wife, amounting to §1,551.50, claiming wages at the x-ate of three dollars per week. On December 9, 1878, the defendants injected the claim and consented to a reference, upon which the plaintiff recovered $674, the referee fixing the wages at two dollars per week. The referee also found, that the defendants acted with prudence and in good faith in resisting the payment of the plaintiff’s claim.

      Meld, that an ox’der awarding costs to the plaintiff was erroneous and should be reversed.
    Appeal from a judgment in favor of the plaintiff; entered .upon, -a reference made under the statute, and from an order confirming the referee’s report and awarding costs against the defendants, and also from an order denying a motion to vacate the said report and grant a new trial.
    The plaintiff presented a claim for her services performed for the deceased, at his instance and request, to his executors, who disputed and rejected it. A reference under the statute, was thou agreed upon and approved by the surrogate.
    The referee reported in favor of the plaintiff.
    A motion was made to confirm the referee’s report and for costs, and it was granted at Special Term.
    A motion was made upon a case and exceptions to set aside the report, and denied at Special Term.
    The defendants appeal from such orders and the judgment entered thereon. ,

      Fanning & Williams, for the appellants.

      Horace McGuire, for the respondent.
   HardiN, J. :

In support of the plaintiff’s claim she called one of her sisters,, a Mrs. Boyd, and a legatee named in the will of their deceased father, and she gave evidence tending to establish an employment-of the plaintiff by the deceased, and an agreement to pay her wages if she would go to the house of the deceased testator and take charge of the housework and personally care for his wife, their mother, who was afflicted with paralysis.

This evidence was objected to, on the ground that she was not-competent to give evidence relating to personal transactions with her deceased father against his executors. The objection was overruled, and an exception taken by the defendants.

We think the ruling of the learned referee was correct. (Code of Civil Procedure, § 829; Ely v. Clute, 19 Hun, 35; Hill v. Alvord, id., 77.

She was not called in “ her own behalf or interest.”

Subsequently in the case, her husband, Mr. Boyd, was called and gave evidence tending to support an agreement to pay wages, and tending to show several payments made by the deceased on account thereof. His evidence was objected to and an exception taken.

For the reason already stated it is apparent that the wife was competent as a witness, in behalf of the plaintiff, and therefore he "was not incompetent. Section 830 of the Code of Civil Procedure was repealed in 1878.

We think the evidence given by the Boyds, and by others compietent to speak, abundantly established.

(1.) The original employment of the plaintiff by the testator. (2.) His agreement to pay her wages. (3.) The performance of the services by her for the period allowed to her by the referee. (4.) And that her wages were worth the price allowed therefor by the referee.

. We cannot infer from the language found in the will of the deceased, or from any oral evidence given upon the trial, that the legacy given to the plaintiff by the - testator was intended as .a payment and satisfaction for her wages while in his employment. We cannot, therefore, deem it a satisfaction of the plaintiff’s claim for services. (Boughton v. Flint, 74 N. Y., 477.)

The referee has found that the plaintiff commenced work in May, 1867, and continued work up to the 18th May, 1877, with the exception of two absences, and that the aggregate time worked was eight years or 416 -weeks. This finding is supported by the evidence. He also finds that no specific price for such .services was agreed upon and that the services were worth two dollars per week. The evidence supports these findings.

When the plaintiff presented her claim to the executors, the .stated several credits amounted in the aggregate to $158.

When the executors had rejected the claim, and a reference under the statute had been agreed upon, the executors made up a statement of their counter-claim, and in it they charged her with several sums of money, as having been advanced and paid to her by the deceased, in each of the years embraced in the period of time covered by the services. Upon the trial the plaintiff admitted “ so much of the counterclaim as stated in the executors list of items,” as embraced cash received by her in 1867, and each successive year down to and inclusive of 1877, amounting in the aggregate to $158. These cash payments were allowed to the defendant, and $1-58 deducted by the referee from the aggregate of the plaintiff's services, and a balance struck of $674,.. and judgment ordered for that sum, with interest from the 24th. of October, 1878.

It is insisted by the learned counsel for the appellants that the statute of limitations should have been allowed as a bar to any recovery for services accruing more than six years prior to the death of the testator.

We think this argument is unsound.

(1.) The payments made by the testator were acknowledgments of the indebtedness, and sufficient to take the whole claim out of the statute. (Rich v. Niagara Savings Bank, 3 Hun, 481; Miller v. Talcott, 46 Barb., 167; Bowe v. Gano, 9 Hun, 6.)

(2.) The claim of the plaintiff, “ I think at any and all times for previous services, was an entire account, and that she could have' maintained but a single cause of action thereon,” and that “ a. payment by the intestate upon the balance due the claimant took the entire balance out of the operation of the statute.” (Smith v. Velie, 60 N. Y., 106.)

We think the referee erred in allowing interest from October 24, 1878, to the date of his report April 12, 1879. He has-found that no price was agreed upon for the wages. There was-no admission of any balance due at the time the account was presented to the executors ; on the contrary, they rejected the whole demand. It was unliquidated. There was no express agreement, to pay interest, nor any implied agreement from custom or otherwise shown to arise.

And, according to the authorities, no .interest was recoverable until the amount of the claim was ascertained and liquidated, as it was not capable of being ascertained by computation merely. [Reid v. Rensselaer Glass Factory, 3 Cow., 387; S. C., Rensselaer Glass Factory v. Reid, 5 id., 589, approved and followed in Holmes v. Rankin, 17 Barb., 456; McMahon v. N. Y. and Erie R. R. Co., 20 N. Y., 469; Smith v. Velie, 60 id., 106 ; Godfrey v. Moser, 5 Thomp. & Cook, 677; 3 Hun, 218; De Lavallette v. Wendt, 75 N. Y., 579.)

We must order a new trial, unless the the plaintiff stipulates to-deduct from the judgment the. interest upon the amount of the-recovery ($674) from October 24, 1878 until the date of the report, April 12, 1879.

The evidence of Mrs. Boyd as to the $250 advanced, in 1877 did not establish an indebtedness of the plaintiff; it simply established a gift. The same observations are true in respect to the evidence given by Mrs. Bailey as to the $150 referred to in 1873.

The plaintiff at the time she entered into the services of the testator was a married woman, but she had separated from her husband and was supporting herself, and apparently never received any further attention or support from her husband after her separation from him.

Under such circumstances - her earnings belonged to her and were recoverable by her and not' by her husband. (Chapter 172 of Laws of 1862; Brooks v. Schwerin, 54 N. Y., 343; Adams v. Honness, 62 Barb., 326; Birkbeck v. Ackroyd, 74 N. Y., 356.)

It was competent for her to make a bargain with the testator for her seiwices, and for compensation therefor, and after she had performed, it was too late for him or his executors to repudiate the bargain and refuse to pay her the fair value of her earnings. (62 Barb., supra; Willetts v. Sun Mut. Ins. Co., 45 N. Y., 45.)

We come now to consider the order awarding costs against the executors payable out of the estate.

(1.) The claim was presented to the executors 24th of October, 1878, for $1,551.50.

(2.) The executors rejected it November 21, 1878, and offered to refer.

(3.) December 9, 1878, a stipulation was entered into by the parties to refer, and the reference was approved by the surrogate, and on the tenth of December an order was entered referring the claim, etc.

(4.) The plaintiff recovered only $674.

(5.) The referee finds and certifies that the executors “ acted with prudence and good faith in resisting the plaintiff’s claim, and for the sole purpose of administering the trust faithfully and for the purpose of protecting the estate.”

(6.) There was no proof of bad faith or mismanagement presented to the Special Term.

(7.) It appears that the price of the wages was not agreed upon by the plaintiff and the testator, and that witnesses differed largely as to the value of the services. The plaintiff charged and claimed three dollars per week. The referee finds the value of her services only two dollars per week.

Under such circumstances Ave think the plaintiff Avas not entitled to recover costs, and that her right was limited to the “ referees’ fees, and Avitnesses and other necessary disbursements, to be taxed according to kw.” (Code of Procedure, § 317; Pinkernelli v. Bischoff 2 Abb. [N. C.], 107; Comstock v. Olmstead, 6 How., 77; Fort v. Gooding, 9 Barb., 388; Buckhout v. Hunt, 16 How., 407; Cruikshank v. Cruikshank, 9 id., 350; Carhart v. Blaisdells Exr., 18 Wend., 531; 2 R. S., § 41, p. 88; Woodin v. Bagley, 13 Wend,, 453.)

The Special Term erred in aAvarding costs to the plaintiff, and the order must be modified by striking out so much thereof as awards costs to the plaintiff, and allowed to stand so far as it awards referees’ fees, witnesses’ fees and necessary disbursements to the plaintiff, and as so modified affirmed.

We must reverse the judgment and order a new trial before another referee, with costs of the appeal to abide the event, unless the plaintiff shall stipulate to reduce the judgment by striking out the interest on $674 from October 24, 1878, to April 12, 1879, in which case the judgment and order of confirmation of the referees’ report will be affirmed, as so modified, with costs of this appeal.

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

. Ordered accordingly.


text:
    MANLY LOOMIS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      ¿indictments — when a caption is unnecessary — Conveying property with intent to defraud creditors — what indictment thwefor is sufficient — Examination of the prisoner in supplementary proceedings — inadmissible on a criminal tidal — Code, j 292.
    "When an indictment is removed from a superior to an inferior court a caption thereto is unnecessary.
    An indictment found against the plaintiff in error alleged that ho knowingly and willfully assigned and conveyed to Ellen Loomis all his right, title and interest in and to certain lands therein described, “with intent to hinder, delay, cheat ■and defraud E. H. Myers, Duett Rogers and divers other persons to the jurors aforesaid unknown, the said E. H. Myers, Duett Rogers and the said divers •other-persons to the jurors aforesaid unknown, then and there being creditors of him,” the said plaintiff in error.

      He Id, that the indictment was sufficient, and that it was not,necessary to state in it the character of the debts, or the manner in which they arose.
    Upon the trial of an indictment charging one with conveying his property, at a particular time therein specified, with intent to defraud his- creditors, debts contracted by him after the date mentioned in the indictment cannot be proved.
    Upon the trial of an indictment for conveying property with intent to defraud the grantor’s creditors, the district attorney was allowed to prove that the prisoner . had been examined in supplementary proceedings, and that his-signature to the examination, which was produced in court, was genuine. The district .attorney then read from the examination, and asked the prisoner whether the ¡statements so read, or those which he had made upon the trial, were true. These questions were allowed against the objection and exception of the prisoner’s counsel.

      Held, that the evidence was inadmissible under Code, § 292.
    Writ of Error to the Court of Sessions of Jefferson county.
    The prisoner was indicted and convicted of conveying and disposing of bis property with intent to defraud bis creditors.
    The indictment was found in the Oyer and Terminer in Jefferson county, and removed to and tried m the sessions of Jefferson ■county. The indictment charged that the prisoner conveyed certain property to Ellen Loomis, “ with intent to binder, delay and ■defraud the creditors of bim, the said Manly Loomis. And that the said Manly Loomis was then and there the owner in fee of the aforesaid described premises, lands and tenements, and then and there did knowingly and willfully, and with intent to hinder, delay,, cheat and defraud Ephraim H. Myers, Duett Rogers and divers-other persons to the jurors aforesaid unknown (the said Ephraim. H. Myers and Duett Rogers and the said divers other persons to' the jurors aforesaid unknown, then and there being creditors of' him and the said Manly Loomis), convey the same and each of" them to Ellen Loomis, by means whereof the said Ephraim H. Myers, Duett Rogers and the said divers other persons to the-jurors aforesaid unknown, were then and there cheated, hindered,, delayed and defrauded, against the form of the statute in such case made, and provided, and against the peace of the people of' the State of New York and their dignity.
    “And the jurors afoi’esaid, upon their oaths aforesaid, do further present that Maxily Looxnis, of the town of Wilna, in the-county of Jefferson and State of New York, on the 1st day of' August, 1877, at the town of Wilna, ixi the county of Jefferson and State of New York, fraudulexitly, wickedly and unlawfully' did secrete, assigxi, convey and otkei’wise dispose of his property,, with intent to defraud Duett Roger’s and Ephraim II. Myers, then, and there being creditor’s of him, the said Manly Loomis, against - the form of the statute in such case made and px’ovided, and against the peace of the people of the State of New York and. their dignity.”

      Stephen It. Pratt, for the plaintiff in error’.

      Watson M. Rogers, district attorney, for the defendants in error.
   Hardin, J.:

At the trial in the Court of Sessions in Jefferson county, after a plea of not guilty, and after the People had commenced giving their evidence, the prisoner objected that no evidence could be given, and moved to quash each count of the indictment upon the following grounds :

(1.) The indictment pui’ports to have been found in the Oyer and Terminer, and there is no caption to the indictment. (2.) Nor does the record of this conrt anywhere show that there was, a competent court in session at the time, or who comprised the. court, or that any grand jury was then and there sworn, or the-names of the jurors.

The objection was overruled, and the motion to quash was denied, and the prisoner took an exception.

The caption and commencement to the indictment was as. follows :

State on New York, Jefferson Bounty.

At the Court of Oyer and Terminer, held in and for the county of Jefferson, at the court house, in Watertown, on the 10th day of June, in the year one thousand eight hundred and seventy-eight, the grand jurors of the People of the State of New York, in and. for the body of the county of Jefferson, upon their oath, do present, that Manly Loomis, of the town of Wilna, in the county of Jefferson, and State of New York, on the 1st day of August, in the year of' our Lord one thousand eight hundred and seventy-seven, at the. town of Wilna, in the county of Jefferson and State of New York, knowingly and willfully became and was a party to, and! knowingly and willfully did make an assignment and conveyance-to Ellen Loomis of the right, title and interest that he, the saidi Manly Loomis, then and there had in and to the lands and tenements hereinafter described, to wit:

Subsequently, when the record of conviction was made up and which is now before us, a full and complete caption was inserted.

We think there was no error in denying the motion to quash the indictment. The indictment had been removed from a superior to an inferior court. (Wharton’s Prec. and Pleas, p. 1, note F.; The People v. Guernsey, 3 Johns. Cas., 265; Bishop on Crim. Proc. [2d ed.], §§ 665, 666; People v. Jewett, 3 Wend., 320; People v. Bennett, 37 N. Y., 117; People v. Haynes, 55 Barb., 450.)

The indictment avers that the prisoner conveyed his real estate, naming it, to one Loomis, with intent to defraud creditors.

Some of the creditors are named and others are stated to ba unknown to the grand jurors.

(1.) The conveyance of the property is distinctly averred..

The intent to defraud creditors of the prisoner is likewise distinctly averred and two of them named.

We think the averments sufficiently definite under the language of the statute. Objection to the mere form of the indictment should be taken advantage of by demurrer or motion before the trial. (Berry v. People, 8 Weekly Digest, 15; King v. Matthews, 5 Term Reports, 162.)

The character of the debt or the manner in which it arose meed not be stated, in order to support the averment of the indictment that the conveyance was made with intent to defraud creditors of the prisoner. (People v. Underwood, 16 Wend., 546; Laws of 1831, chap. 300, § 26, p. 402.)

Under the indictment it was competent for the People to show the conveyance by the prisoner by deeds, or mortgages of his property, with intent to defraud “ any creditors.”

And, secondly, to establish the existence of debts at the time of the averment in the indictment named, the conveyance or disposition of the property.

But we do not see how it was competent to establish indorsements made, or debts created, after the alleged crime was committed. Such evidence was offered and objected to by the prisoner’s counsel and received and an exception taken, and the counsel for the prisoner subsequently moved to strike out all evidence of indebtedness which occurred after August 1, 1877, on the ground that it is incompetent and immaterial and has no bearing upon the charge.” The motion was denied and an exception taken. The statute declares it a crime to convey property with intent to defraud “any creditor,” and seems to refer to debts and creditors then in existence.

The prisoner was sworn as a witness in his own behalf, and the learned district attorney cross-examined him, and drew from him the fact that ho had been previously examined before one Gilbert, in proceedings supplementary to execution. The prisoner .stated his signature to the examination and evidence to be genuine. That was objected to by the prisoner’s counsel, as prohibited by Statute, as incompetent and immaterial. The court overruled the objection and exception was taken by the prisoner. Then the "witness said he signed the evidence taken, and the district attorney quoted from the minutes of that former examination, and tho witness was asked as to which was true, statements made upon, this trial or statements in the evidence quoted from the supplementary proceedings.

Section 292 of the Code of Procedure regulating suppolmentary proceedings provides, viz.:

“No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his. examination Avill tend to convict him of the commission of a. fraud ; but his answer shall not. be used as evidence against him. in any criminal proceeding or prosecution.” * *

By quoting his ansAvers in the supplementary proceedings and contrasting them Avith his evideñce upon this trial, and asking him which were true, the “ answers ” were used in this criminal prosecution against the prisoner and in violation of the provision of section 292 of the Code of Procedure. The ruling and the reception of such evidence or' portions of his “ ansAvers ” were erroneous. (Forbes v. Willard, 54 Barb., 520 ; Barber v. People, 17 Hun, 366.)

The evidence in the supplementary proceedings was not voluntary ; the law required him to “answer.” (Code of Procedure, § 292 ; People v. Hendrickson, 1 Park. C. R., 406.)

We cannot say hoAV much this contrasting of the statements made by the prisoner may have affected his credibility Avith thq jury. He had given evidence tending to establish his innocence, and had the jury believed him, they might have acquitted instead of convicted him of the crime charged in the indictment.

Por this error occurring upon the trial, we must :set aside the verdict of conviction and reverse the judgment, and remit tho proceedings to the Court of Sessions of Jefferson county, Avith directions for a neAV trial.

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

Conviction and judgment reversed and proceedings remitted to the Court of Sessions of Jefferson county, with directions for a. new trial.