author: Smith, J.:

text:
    HIRAM POOL and others, Plaintiffs, v. ALBERT E. SAFFORD, Defendant.

      Receiver in supplementary prroceedings — by whom appointed— to what control he is subject — Code, § 298.
    Although section 298 of the Code confers upon a county judge, at chambers, the power to appoint a receiver in proceedings supplementary to execution, yet with the appointment his authority over him ceases, and the receiver is thereafter subject to the control of the court in which the judgment was obtained; or if the judgment was upon- a transcript from a justice’s court, filed in the county clerk’s office, the receiver is subject to the control and direction of the County Court.
    Appeal by C. E. Marsh, the receiver appointed in supplementary proceedings herein, from an order made by the county judge of Cattaraugus county, requiring him to account and pay over certain money to S. C. Green, the surety of said receiver, or show cáuse why an attachment should not issue against him as for a contempt. The judgment upon the return of- an execution upon which the proceedings were instituted, was recovered in the Supreme Court.
    C. E. Marsh, as receiver of the defendant in proceedings supplementary to execution, sold certain property belonging to the defendant on the 28th day of October, 1874, at public sale. From this sale he collected and had in his hands on the 9th of February, 1875, seventy-seven dollars and fifty cents; and on the night of the 9th of February, 1875, he absconded with said sum. On the 10th day of February, the next day, Mr. S. C. Green, one of the sureties for Marsh on his bond as receiver, on demand of the attorneys for the plaintiffs, paid to them the sum of seventy-seven dollars aiid fifty cents, and took their receipt therefor.
    Subsequently, and about the 10th of April, 1875, Marsh returned to the county of Cattaraugus, and was then, and at the time of the granting of the order appealed from herein, insolvent, and unable to pay to Green said sum of seventy-seven dollars and fifty cents, which he had paid on Marsh’s behalf. Mr. Green commenced this proceeding to compel Marsh to account and pay over to him the sum of seventy-seven dollars and fifty cents, with interést from February 10, 1875.
    An order was made by the county judge of Cattaraugus county on the 22d day of May, 1876, by whom the receiver was appointed, requiring him to account on the first day of June thereafter, and pay over to Green the sum of seventy-seven dollars and fifty cents,, with interest from February 10, 1875, or show cause why an attachment should not issue against him as for contempt. Marsh appealed from that order.

      J. M. Ooregdon, for the appellant.

      G. Z. Lincoln, for the respondent.
   Smith, J.:

The county judge, at chambers, had not jurisdiction to make the order appealed from. Assuming that the order was proper on the merits (a point which, in the view we take of the case, is not before us, and upon which we express no opinion), it could only have been made by the court. It seems to have been supposed, that as the judge appointed the receiver he could control him in respect to his duties. A judge can appoint a receiver, because the statute gives the power (Code, § 298), but with the appointment his authority over the matter ends. The receiver is thereafter subject to the control of the court in which the judgment was obtained, or if the judgment was upon a transcript from a justice’s court, filed in the county clerk’s office, then he is subject to the control and direction of the County Court. (§ 298).

The order should be reversed with ten dollars costs and disi bursements. . •

Present — Talcott, P. J., Smith imd Hardin, JJ.

Order reversed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. PHILIP GARBUTT, Respondent, v. THE ROCHESTER & STATE LINE RAILWAY COMPANY, MORTIMER F. REYNOLDS and others, Appellants.
    . Neglect of railroad to build fences — mandamus when issued— Contempt — fine — costs of prosecution.

    Where a railroad company fails to construct fences and cattle-guards, as. required by statute, a writ of mandamus may properly be issued, compelling it to construct and maintain the same.
    Any citizen of the State may apply, as a relator, for a writ of mandamus for that purpose. :
    Where the company fails to comply with the requirements of such writ, the court has power, under title 13 of chapter 8 of part 3 of the Revised Statutes, to impose such fine or imprisonment, or both, as the nature of the case may require.
    Where it appeared that the defendant had been guilty of a contempt in failing to comply with the requirements of the writ, but that the contempt was not willful, and that no pecuniary loss had been sustained ; held, that it was the ■duty of the court to impose a fine sufficient to cover the costs and expenses in the proceedings to punish for the contempt, but that it was error to include therein the costs in the mandamus proceedings themselves.
    Appeal from an order of the Special Term in Monroe county, adjudging the defendants in contempt for not obeying a writ of peremptory mandamus issued in this case, and imposing a fine for the amount of the expenses of the relator, viz.: 1507.02, of which $98.35 were for the costs and expenses of the said writ, the residue being for the relator’s costs and the disbursements of the proceeding to punish for the alleged contempt.

      G. F. Danforth, for the appellants.

      Angus McDonald, for the respondent.
   Smith, J.:

The writ of mandamus in this case was issued in September. 1876, requiring the defendants to construct fences and cattle-guards on a portion of their roadway therein specified by the first day of January, 1877, and to make return to the writ on the last Monday in January, in what manner they had executed the mandate. No return having been made by the defendants, an order was made at Special Term, on 7th .February, 1877, requiring them to show cause at a Special Term to be held on the twelfth of that month why they should not be adjudged guilty of contempt in not obeying the writ, and why they should not be punished for such contempt, by fine and imprisonment and why the relator should not have his costs of the proceedings.

On the return of that order, it was ordered that the defendants have one week from that day to file their return to the writ, as . ordered to be made by them at the January Special Term;, that the relator make his answer thereto before the Special Term'on the 26th of February, and that the matter stand over to be heard at that time, on the papers theretofore used, and on such return and answer, without further notice. At that time, affidavits having been read, on the part of the respondents, in the nature of a partial return, an order was made, on the suggestion of the court, and apparently with the acquiescence of the relator, requiring the respondents to file an amended return, in five days, and giving the relator leave to file ail answer to the same in five days thereafter, and giving either party leave, on such answer being made, to apply at a Special Term, on four days’ notice, for a reference to take testimony on any issue formed by the amended ..return and answer.

In pursuance of that order, the respondents filed an amended return, to which the relator put in an answer, and subsequently .applied, on notice at Special Term, in March, 1877, for an order of reference. An order was granted, accordingly appointing Lucius' N. Bangs a referee to take evidence upon certain issues therein specified, and report the same to the court, with his opinion, and providing that, on the coming in of his report, either party might bring the matter of the alleged contempt to a hearing on motion.

The referee made a report, to which the relator took several exceptions, but he nevertheless gave notice to the respondents, that upon the report and other papers, he would bring the motion of the alleged contempt to a hearing, at the Special Term, on the last Monday of August, 1877. The hearing was had, and the order appealed from was then made. It adjudged the defendants guilty of the contempt alleged in not complying with the mandate of the writ. It adjudged, also, that the contempt was not willful, but it arose from unjustifiable negligence and delay on the part of the respondents, and that it was calculated to, and did, defeat, impair, impede and prejudice the rights and remedies of the relator in obtaining said writ and attempting to have it enforced; and the order imposed a fine upon the respondents of $507.02, for the costs and expenses of the relator, then adjudged, to wit: $98.35 for his costs and expenses of the said writ, and the remainder for his costs and disbursements of the proceeding to punish for the alleged contempt, including the fees of the referee, and $100 paid by the relator to his attorneys.

The order also appointed Joseph A. Stull and William Fellows referees to take evidence and report it to the court, with their opinion, upon the following questions: 1. Whether the defendants shall have fully complied with the mandate of said writ of mandamus at any time before the referees make their report. 2. If not, then that they report in what the defendants have not fully complied; how, and in what manner, and by what means, such full compliance can be best obtained, and what will be the cost and expense of doing so; and 3. What damages, if any, have been caused by the failure of the defendants to comply with said writ, since the application to punish for the contempt was made in February, 1877.

The appeal is to be disposed of upon the papers which were heard at Special Term. The relator not having appealed, cannot now complain that certain affidavits offered by him were excluded.

In support of the appeal, it is contended, on the part of the defendants that they are under no liability to this relator, which -can be enforced by mandamus. The argument advanced is, that the duty imposed by statute upon railroad corporations, in regard to fences (Laws 1850, chap. 140, § 44; Laws 1854, chap. 282, § 8), is a public duty, for a violation of which the corporation is subject to indictment, and the directors may be proceeded against by mandamus (2 R. S., p. 587, § 60), and that in the latter proceeding a fine may be imposed (no just excuse being shown) upon each member of the board, not exceeding $250, which, -when collected, shall be paid into the treasury, and shall be a bar to any claim for any penalty incurred by such member, by reason of his refusal or neglect to perform his duty so enjoined. (2 R. S., p. 587, § 60.) Further, that as the statute which imposes the duty of fencing declares the consequence of an omission to be a liability for “ all damages done by engines or agents of the corporation, to cattle, horses, and other animals ” (Laws 1850, chap. 140, § 44), a.private individual, who is injured by such omission, cannot resort to a mandamus, as that ivrit is never issued except for public purposes., We do not understand the defendants’ counsel to insist that the writ of mandamus was improperly issued in this case at the suit of the relator; nor can that question be raised upon this appeal, as the appeal is not taken from the order allowing the writ. The argument assumes that the matter involved is one of public duty, and that the duty may be enforced by mandamus]; and it is settled law, that, in a matter of public right, any citizen of the State may be a relator in an application for a mandamus (where that is the appropriate remedy), to enforce the execution of the common law, or of an act of the legislature, though, it is otherwise in case of private or corporate rights. (People ex rel. Case v. Collins, 19 Wend., 56.) In the present case, no order has been made for the enforcement of a private right, except so far as the private right of the relator may be subserved by the performance of the duty which the corporation owes to the public. Nothing has been awarded to the relator by way of compensation for damages sustained by him, by reason of the neglect of the defendants to obey the mandamus. Nor is the fine imposed intended as a penalty for the public wrong, and therefore to be paid into the treasury. The fine in this case is a mere indemnity to the relator for his costs and expenses in the proceedings.

That the court has power to punish, as for a contempt, a violation of its order, made in proceedings by mandamus, cannot be doubted. Those proceedings are embraced within title 13, chapter 8, part 3 of the Revised Statutes, entitled “ of proceedings, as for contempt, to enforce civil remedies, and to protect the rights of parties to civil actions.” Section one of that title provides that every court of record shall have power to punish by fine and imprisonment, or either, any neglect or violation of duty, or any misconduct, by which the rights or remedies of a party in a cause or matter depending in such court, may be defeated, impaired, impeded, or prejudiced, in the following cases: “ Sub. 3. Parties to writs, * * * and all other persons * * * for any disobedience to any lawful order, decree, or process of such court.” This language is sufficiently comprehensive to include mandamus, whether it be regarded as a special proceeding or a civil action. Section twenty-five of the same title, provides that “if the court shall adjudge the defendant to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of any party, in a cause or matter depending in such court, it shall proceed to impose a fine or imprisonment on him, or both, as the nature of the case shall require,” etc. This section is applicable to the case of a relator in a proceeding by mandamus. In the present case, it was adjudged that the defendants were guilty of a contempt, but that the contempt was not willful, and that no pecuniary loss had been sustained. It was not a case, therefore, for a fine or pecuniary indemnity beyond the costs and expenses of the prosecution; but, to that extent, it was the duty of the court to impose a fine. (People v. Spalding, 2 Paige, 327; Lansing v. Easton, 7 id., 364.) But the fine should have been limited to the costs and expenses incurred by the relator in the proceeding to punish for contempt, exclusive of the costs in the mandamus proceedings. The latter costs, however, were properly awarded and adjhsted in the order, as that was a part of the relief asked for by the order to show cause of the 7th of February, 1877. Their amount ($98.35) should bé deducted from the amount of the fine, the effect of which will be to leave it to be collected by ordinary process instead of an attachment.

It is insisted by the counsel for the appellants that, as the order directs further issues and sends them to a referee, the proceeding is not jet terminated, and the order allowing costs and imposing .a fine is premature. That view of the case, we think, is not ■correct. The proceedings by mandamus are terminated by the •order directing a peremptory writ and awarding costs. The proceeding to punish the defendants for contempt, by reason of their having neglected to obey the writ, up to the time when the proceeding was commenced, is also terminated by the order appealed from. The issues and the reference ordered are with a view of determining whether the appellants have continued to disobey the writ, since the commencement of the first proceeding for contempt. The second proceeding is based upon the idea that disobedience of the writ, continued since the first proceeding for a contempt was instituted, is a fresh contempt. In that view of the matter, the former proceeding is no bar to the latter, and the pendency of the latter furnishes no reason for delaying to enforce the final order made in the former.

If the relator consents to reduce the amount of the fine as above indicated, so that it shall not embrace the costs of the mandamus, the order appealed from is afiirmed as modified, with ten dollars costs of the appeal and disbursements to the relator; otherwise the order, is reversed, with ten dollars costs and disbursements to the appellants.

Present — Talcott, P. J., Smith and Hardin, JJ.

Ordered accordingly.


text:
    CHARLES MATTHEWS and others, Respondents v. EBENEZER ARNOLD, Appellant.

      Appeal to County Court on questions of law — how brought to a hearing — Code of Procedure, § 364.
    Where an appeal has been taken from a judgment- of a justice’s court involving questions of law only, and the case has been regularly noticed for argument and placed upon the calendar of the County Court the case will remain upon the calendar at subsequent terms without any further notice by either party ; but it cannot be brought on for argument at any subsequent term, except by motion, of which at least eight days’ notice must be given.

      Townsend v. Keenan (2 Hilton, 544) overruled.
    • Appeal from an order of the County Court of Oswego county, opening a judgment taken by default on the ground of irregularity.

      Skinner & Wright, for the appellant.

      W (& W. S. Gilbert, for the respondents.
   Smith, J.:

This was an appeal by the defendant to the County Court from the judgment of a justice on questions of law only. The plaintiffs put it on the calendar of a term of the County Court held in July, 1877, and noticed it for argument. By consent of the parties, the court put it over the term. At the next term, hold in August, neither party noticed it for argument or put it on the calendar; it was, however, put upon the calendar by the clerk of the court. It was called in its regular order on the calendar at that term, and the defendant not appearing, the plaintiffs moved it for argument, and judgment was taken by default, affirming the judgment of the justice. At the following November term the court, on motion of the defendant, made an order opening the default on the ground that it was taken irregularly, the appeal not having been noticed for argument at the term at which the default was taken.

The question involved in the appeal depends upon the construction to be given to a portion of section 364 of the Code of Procedure, which section is still in force. The part of the section which is material to the question is in these words: “If a return be made, and the appeal is from a judgment where a new trial may not be had, as provided by this chapter, it may be brought to a hearing at a General Term of the appellate court, upon motion by either party of not less than eight days. It shall be placed upon the calendar, and continue thereon without further notice until finally disposed of. But if neither party bring it to a hearing before the end of the second term, the court shall dismiss the appeal, unless it continue the same by special order for cause shown.” The question is whether, under these provisions, the default taken at the August term was regular, neither party having noticed the cause for argument at that term. We think it was irregular. The first sentence of the section prescribes the mode in which the appeal may be brought to a hearing, to wit: By a notice of argument of not less than eight days. This is exclusive of any other mode, and is mandatory. The counsel for the appellant argues that the next sentence dispenses with the necessity of a new motion for the second term. We think, however, the “notice” referred to is the notice to the clerk — -the note of issue. The language is: “It shall be placed upon the calendar, and continue thereon without further notice ” — what notice ? Evidently the notice which would be needed, but for the provision to place the cause on the calendar. The cause being once on the calendar, a fresh note of issue need not be served for each successive term. But the mandate contained in the first sentence is not affected' by the second. The case of Townsend v. Keenan (2 Hilton, 544), decides the other way; but, in the opinion in that, case, no reference is made to the language of the first sentence of the section, which seems to us controlling.

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

Present — Talcott, P. J., Smith and Hardin, JJ.

Order of County Court appealed from affirmed, with ten dollars costs and disbursements.


text:
    THE STEUBEN COUNTY BANK, Plaintiff, v. JOHN L. ALBERGER and others, Defendants.

      Attachment — application to vacate by subsequent lienor — on what papers it may be made and opposed — Code of Civil Procedure, §§ 682, 683.
    Under sections 682 and 683 of the Code of Civil Procedure relating to attachments of property, one who has acquired a lien upon property subsequent to its attachment in an action brought by another creditor, to which action he is not a party, can only move to vacate such attachment upon affidavits, made on behalf of said lienor, as in no other way can the existence of his. lien be shown.
    Buch application falls under the second class of cases specified in section 683, and may be opposed by new proof, by affidavit, on the part of the plaintiff, tending- to sustain any ground for the attachment recited in the warrant.
    Appeal of Louisa F. Alberger, an attaching creditor of Samuel F. Alberger, the said Samuel F. being one of the defendants herein, from an order of the Special Term in Monroe county, refusing to vacate the plaintiff’s attachment in this action as to the property of said Samuel F. Alberger.
    ÁL G. Rice, for Louisa F. Alberger, appellant.

      J. F. Parkhurst, for Steuben County Bank, respondent.
   Smith, J.:

Mrs. Alberger’s motion, at Special Term, to vacate the plaintiff’s attachment, was founded upon an affidavit stating that after the property of Samuel F. Alberger Avas attached by the plaintiff, she acquired a lien upon it by attachment, and the ground of her motion was the alleged insufficiency of the affidavits on Avhich the-plaintiff’s attachment Avas issued. In opposition to the motion, the plaintiff offered new proof, by affidavits, sustaining the ground for attachment alleged in the Avarrant. The counsel for Mrs. Alberger objected to such new proof, insisting that as the affidavit on her part did not controvert any of the facts or grounds on which the plaintiff’s warrant issued, the plaintiff could noi resist the motion Avith ucav affidavits.

The additional affidavits, taken in connection Avith the original affidavits on which the plaintiff’s attachment was issued, established, beyond doubt, the ground recited in the warrant of attachment, that the defendants, John F. and Samuel L. Alberger were, at the time of issuing said warrant, about to assign, dispose of, or secrete their property with intent to defraud their creditors. If, therefore, the additional affidavits were properly received, it will follow that the order appealed from should be affirmed. The question of the admissibility of the new affidavits involves the construction of section 683 of the Code of Civil Procedure, relating to the attachment of property, read in connection with' section 682.

Section 682 provides that: “The defendant, or a person who has acquired a lien upon, or interest in, his property, after it was attached, * * * may apply to vacate or modify the warrant,” etc. Section 683 provides that: “ An application, specified in the last section, may be founded only upon the papers upon which the warrant was granted; in which case it must be made to the court; or, if the warrant was granted by a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper. Or it may be founded upon proof, by affidavit, on the part of the defendant, in which case it must be made to the court; or, if the warrant was granted by a judge out of court, to any judge of the court, upon notice; and it may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground for the attachment, recited in the warrant, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings; in which case the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial.”

The meaning of these sections, so far as the question presented is concerned, is not entirely clear. The counsel for Mrs. Alberger contends that the right to attack the validity of an attachment by controverting the facts stated in the affidavits on which it was granted, is confined to the defendants in the action, and that consequently the plaintiff has no occasion to resort to new proof in support of his attachment, and should not be permitted to do so, except in the case of a motion by the defendant to set it aside upon controverting affidavits; that the right of a lienor, not a defendant, to attack the validity of the attachment, is limited to a motion to vacate it because of the insufficiency of the affidavits on which it was granted; and that he would be deprived of his right to move on that ground, if the reading of an affidavit on his part, showing that he is such lienor, which is necessary to give him a standing in court, entitles the plaintiff to support his attachment by fresh affidavits.

The construction contended for on the part of the plaintiff, is that a motion to vacate an attachment on the ground of the insufficiency of the affidavits on which it was granted, can be made by a defendant only; and that a mere lienor can only move to vacate upon affidavits on his own part.

The latter view was adopted by the judge who held the Special Term, and we are inclined to think -it is correct. Section 682 gives, in general terms, the right to the defendant, or a lienor, to move to vacate, etc., the attachment, without prescribing in what way, or before what court or officer it shall be done. Those particulars are provided for by the next section, which manifestly relates to a motion by a lienor, as well as to a motion by the defendant. The subject of its provisions is “ an application, specified in the last section.” It provides for two classes of applications: one, founded only upon the papers upon which the warrant was granted; the other, founded upon proof, by affidavit, on the part of the defendant. An application of the first class-cannot be made by the lienor not a defendant, for the reason that, as he cannot move without showing that he is a lienor, which can only be done by affidavit, he cannot found a motion solely upon the papers upon which the warrant was granted. As, then, a lienor can only move upon proof by affidavit on his own part, his application must necessarily be in the second class, and it may be opposed by new proof, by affidavit, on the part of the plaintiff; limited, however, to such proof as tends to sustain the ground for the attachment recited in the warrant, except in the case specified in the last clause of the section. For this purpose, a lienor must necessarily be regarded as included in the term “ defendant,” as used in the first clause of the second sentence of section 683. And that was probably the intention of the legislature. Otherwise, the right of a, lienor to move, given by the preceding section, is cut off.

Under the former Code, it was held that since the issuing of a warrant of attachment was no longer the commencement of a legal proceeding, but was merely a provisional remedy in an action, the sufficiency of the affidavits was not a jurisdictional question, hut a mere question of regularity in issuing process in the progress of an action (Morgan v. Avery, 7 Barb., 656), which none but a party to the action, injuriously affected by it, could take advantage of. (In the Matter of Griswold, 13 id., 412; Isham v. Ketchum, 46 id., 43, per Sutherland, J.) Under the old Code, however, a subsequent attaching or levying creditor, could move to vacate an attachment on the ground of fraudulent collusion between the plaintiff and defendant. It is hardly reasonable to suppose that the new Code was intended to cut off that right, and at the same time to give to a lienor the right, previously denied, to' him, of moving to set aside an attachment for irregularity in an action to which he is not a party. And yet the construction contended for by the appellant’s counsel would work that result. We think the intent of the new Code is to permit a lienor to move to vacate an attachment which stands in his way, on any ground formerly open to him, or upon affidavits controverting those upon which the attachment was issued, but not upon the ground of irregularity.

These views render it unnecessary to consider the other questions argued by counsel, and lead to an affirmation of the order.

.Present — Mullin. P.J., Talcott and Smith, JJ. .

Order affirmed, with ten dollars costs and disbursements.


text:
    OLIVER STANTON and others, Respondents, v. GEORGE W. MILLER, Executor, Etc., of MARY MILLER, Deceased, Impleaded, Etc., Appellant.

      Contract to convey land —• breach of— measure of damages.

    One Stanton, residing in Canada, entered into a contract -with a Mrs. Miller, residing in Rochester, by which the former agreed to move with his family to Rochester, there to reside with and take care of Mrs. Miller during- her life, she agreeing to give the house and lot where she lived to some member of his family, after her death, to be designated by her either by a deed or by will. Stanton moved to Rochester and performed the contract on his part, until' prevented by Mrs. Miller, who died without having designated any member of his family to whom the house and lot should go.
    In an action brought by Stanton, his wife and four daughters, to compel a specific performance, it was found that the consideration for the conveyance of the real estate was very inadequate, and that there were other inequitable circumstances attending the transaction, and a specific performance was refused; but it was held that plaintiffs, or some of them, were entitled to damages for a breach of the contract.
    Upon the trial of an issue framed for the purpose of determining such damages, the court charged that the plaintiffs were entitled to recover the value of the house and lot, with interest from the death of Mrs. Miller.

      Held,, that this was error, that they were only entitled to recover the value of the services rendered, moneys furnished, and expenses incurred in pursuance of the contract.
    Appeal from a judgment of the Special Term in Monroe county, after the verdict of a jury, upon issues framed, fixing the amount of damages sustained by the respondent herein.
    The action was commenced by the respondent, his wife, and their four daughters, against the appellant, individually, and Oliver M. Benedict (since deceased), to compel the specific performance of a contract made by Mrs. Miller, the mother of the appellant, for the conveyance.of certain real estate, by requiring Benedict to deliver a deed of said real estate, which Mrs. Miller had executed and left with him, in escrow, and by compelling the appellant to deliver the possession of said real estate. The contract was made 23d June, 1870, between Mrs. Miller, residing in Rochester, and Oliver Stanton, who resided in Cobourg, Canada. The substance of the contract was, that Stanton was immediately to remove with his family to the house of Mrs. Miller, in Rochester (she being an invalid and being alone with her servants), and keep house for her and take care of her, during her life, she to assure to him and his family her house and lot after her death, and to secure the title by placing a deed -in escrow, or by will, the title to be given to such member of Stanton’s family as Mrs. Miller should choose. The terms of the contract, and the other material facts, are stated in a report of the case in 58 N. Y. R., 192 (Stanton v. Miller.)
    The cause was tried at a Special Term in Monroe county in March, 1871. It was found that the plaintiff, Stanton, had performed the contract in part, and until prevented by Mrs. Miller; but that the consideration for the real estate was very inadequate, and that other inequitable circumstances existed, and it was decided that the plaintiffs were not entitled to a specific performance, but that they, some, or one of them, were entitled to compensation for-their damages in the premises, and to have the amount of their damages ascertained in this action, and for that purpose liberty was given the plaintiffs to move that the legal representative of Mrs. Miller be made a party, and also to move for a reference, or that an issue be framed to determine such damages. To that end the defendant, Miller, as executor of the will of his mother, was subsequently made a party, and an issue was ordered to be tried by a jury, to determine the amount of the damages sustained by the plaintiff, Oliver Stanton.
    On the trial of the issue, at the Monroe Circuit, in January, 1877, the jury rendered a verdict, fixing the damages at the sum of $8,549.50. The judge charged the jury that the plaintiff stands in the case as though the contract had been fully performed by him (he having performed until prevented by Mrs. Miller, and having tendered a full performance), and that the rule of damages is the value of the house and lot, with interest from the time when he would have been entitled to possession, upon the death of Mrs. Miller. The defendant requested the court to charge that the measure of damages to which Stanton is entitled is the value only of the services rendered, things furnished, and expenses incurred, in pursuance of the contract, and interest thereon. The request was refused. The defendant’s counsel - excepted to the ■charge and refusal.

      G. W. Miller, appellant, in person.

      G. F. Danforth, for the respondents
   Smith, J.:

The question in this case is as to the measure of damages. The most favorable light for the respondent in which the contract can be viewed, is to treat it as an agreement for the sale to him of the house and lot. The general rule, in this State, in the case of executory contracts for the sale of land, is that, in the case of breach by the vendor, the vendee can recover only nominal damages, unless he has paid part of the purchase-money, in which case he can also recover such purchase-money., and interest. (Baldwin v. Munn, 2 Wend., 399; Peters v. McKeon, 4 Den., 546; Conger v. Weaver, 20 N. Y., 145; Mack v. Patchin, 42 id., 167; Margraff v. Muir, 57 id., 155.) To this rule there are exceptions, based upon the wrongful conduct of the vendor, which are stated by Judge Earl, in the case last cited, as follows: “As if he is guilty of fraud, or can convey, but will not, either from perverseness or to secure a better bargain, or if he has covenanted to convey when he knew he had no authority to contract to convey, or where it is in his power to remedy a defect in his title, and he refuses or neglects to do so, or where he refuses to incur such reasonable expenses as would enable him to fulfill his contract. In all such cases, the vendor is liable to the vendee for the loss of the bargain, under rules analogous to those applied in the sale of personal property.” But can a vendor be said to act wrongfully, and to be within the exceptions to the rule, who refuses to perform an agreement which a court of equity pronounced hard and inequitable (as did the Special Term in this case), and in ■which the consideration is grossly inadequate ? If he is required to pay the value of the land, he is not relieved from the inadequacy of the consideration, and the more grossly inadequate the price the larger the profit of the vendee. It may be said that the Court of Appeals, in affirming the judgment of the Special Term, put their decision solely upon the ground that the contract was uncertain in respect to the persons to whom the title was to be conveyed or devised, Mrs. Miller not having made a designation, in her lifetime, by any irrevocable and unrevoked act. But there is nothing in the opinion delivered in the Court of Appeals (58 N. Y., 192), indicating that the views expressed in the opinion at Special Term were regarded as unsound. Assuming, however, that the only ground for refusing to decree a specific performance is the uncertainty of the contract, even then Mrs. Miller is not chargeable with bad faith in revoking the designation made by her, since the fact is found (and stress is laid upon it in the opinion of the Court of Appeals), that at the time of executing the contract, she was advised by her counsel, who drew it, that she could put an end to it whenever she chose to do so, subject only to liability for damages, and she relied upon that advice in entering into it; and the further fact is found that, when she refused to let Stanton go on, she offered to pay him damages. If the action had been brought against Mrs. Miller in her lifetime, upon her refusal to let Stanton perform the contract, would she have been liable in damages for the value of the house and lot ?

But the agreement was not one for the sale of the house and lot to the respondent, Oliver Stanton. He has not lost the profit of any bargain. The agreement did not secure to him the right to the house and lot. Had the title been conveyed to his wife, or either of his daughters, the agreement would have been satisfied.' The most that he can claim, therefore, in any event, is compensation for the services done, things furnished, and money expended in performing the contract. That, we conceive, was the true measure of his damages, and the defendant was entitled to have the jury instructed according to his request.

The judgment should be reversed, and a new trial of the issue ordered before a jury at a Circuit in Monroe, the question of costs to be reserved.

Present — Mullin, P. J., Talcott and Smith, JJ.

Ordered accordingly.


author: Smith. J.:

text:
    ROBERT N. McFARREN, Appellant, v. ZADOCK B. ST. JOHN, Respondent.

      Offer to allow judgment to be taken — neglect to annex affidavit — Code of Civil Procedure, § 744.
    An offer to allow the plaintiff to take judgment for an amount therein specified, signed by the defendant’s attorney, but to which the affidavit required by section 744 of the Code of Civil Procedure is not annexed, is a nullity, and the plaintiff is not required either to accept or reject it. He may proceed with the action, and pay no attention thereto; nor does he waive any right by retaining the same without objection.
    Appeal from an order of the Special Term in Yates county, setting aside an adjustment of the plaintiff’s costs, and allowing costs to the defendant.

      8. H. Tarry, for the appellant.

      M. A. Leary, attorney for the respondent.
   Smith. J.:

• Issue was joined in this action by the service of an answer on 1st November, 1877. At the same time, and before notice of trial, the defendant’s attorney served the plaintiff’s attorney with a written offer of judgment for $125, with costs of the action to that time. The offer was signed by the attorney for the defendant, but no affidavit was annexed to it, as required by section 740 of the Code of Civil Procedure. The plaintiff’s attorney gave no attention to the offer, but brought the action to trial and recovered a verdict for $125. He had his costs adjusted for all proceedings in the action, and entered judgment. In the meantime, the ■ defendant’s attorney served a bill of his costs subsequent to his offer, and presented them to the clerk, who refused to adjust them. The defendant then moved at Special Term and obtained the order now appealed from.

• The only question is, whether the offer was sufficient to entitle the defendant to his costs thereafter accruing in the action, the damages recovered not exceeding the amount of his offer. The defendant’s counsel concedes that the offer was insufficient in not having been verified, but he contends that the plaintiff waived the defect by retaining the offer and omitting to object to it or return it. And the Special Term is understood to have adopted that view of the matter. In that, we incline to think, the court erred. As we read the Code, an offer of judgment signed by the defendant’s , attorney is a nullity, unless verified as required by section ■ 740 of the Code of Civil Procedure.. The plaintiff would not be entitled to enter judgment upon it if he should accept it, and unless it is sufficient for all the purposes of an offer, it is of no avail. It is no answer to say that, as the plaintiff in this case did not serve notice of acceptance of the offer, he did not need it for the purpose of entering a judgment upon it. For aught that appears, if it had been sufficient for that purpose, he would have accepted it.

The argument that the plaintiff by simply retaining the offer-waived the defect, assumes that an offer of judgment is analagous to an answer or other pleading. It is not so strictly. An answer is a proceeding hostile in all respects to the party on whom it is served, and if he chooses to waive an irregularity in it, he may do so, and he is deemed to have done so by receiving and retaining it without objection. An offer of judgment, under the Code, is to some extent undoubtedly hostile to the party on whom it is served, as it imposes upon him the responsibility of accepting or rejecting it at the peril of losing his costs, and of becoming liable to pay the costs of his adversary. But it is not wholly so. If he accepts it, he is decidedly benefited by it, as it renders further-litigation unnecessary, and enables, him to enter judgment for- the «mount offered without delay. So far is it from being air exclusively hostile proceeding, that it may be used, by connivance between the parties to it, as a means of obtaining a fraudulent judgment at the expense of the creditors of the party making the offer. In short, the same reasons exist in respect to an offer, as in the case of a confession of judgment, for holding that all. the substantial requirements of the statute should be complied with.

The provision of section 740 of the Code of Civil Procedure, requiring that when an offer or acceptance is subscribed by the attorney, he shall annex to it his affidavit to the effect that he is-duly authorized to make it, in behalf of the party, is new, and was obviously regarded by the Legislature as material to the rights of both parties. So far as the party in whose behalf it is made is concerned, the opposite party can waive nothing for him. In short, unless the offer, when subscribed by the attorney, is verified according to the statute, it cannot have the effect to set the party in motion on ivhom it is served; he is not required to notice it in any manner; he need not return it, and he waives nothing by retaining it. The defect is not a mere irregularity, but is matter of substance. :

These views lead to a reversal of the order.

Present — Mullin, P. J., Talcott and Smith, JJ.

Order reversed, with ten dollars costs and disbursements.


text:
    CORYDON HITCHCOCK and JOHN T. WILSON, Appellants, v. JOHN A. PETERSON and JOHN P. BONDERSON, Respondents.

      Order of arrest — upon what facts granted, — When partner not liable to airest for . representations of a copartner.

    This action was brought to recover the price of certain lumber sold to the defendants, who were partners, and for work performed for them. An affidavit, used--.to procure an order of arrest, alleged that one of the defendants had falsely-represented that their firm was fully responsible, when, in fact, it was insolv- ' ent; that shortly before these representations were made, each of the partners conveyed certain lands of the value of $6,000 to their wives, without consideration ; that the deeds were not recorded until four months after the making of the representations, and that the conveyances were made to cheat the creditors- ‘ of the defendants; that the concealment thereof was to cheat and defraud the ‘ plaintiffs, and that each partner ordered some of the items of the bill, knowing at the time that they were insolvent.

      Held, that the affidavit showed facts, independent of the false representations,. sufficient to sustain an order of arrest against both partners.
    It is not necessary that the affidavits should specify the grounds of the arrest, in terms; it is enough that they state facts sufficient to authorize the conclur sion that the grounds exist.

      ¡Semble, that the action being on contract and not for the wrong, the partner not making the false representation was not liable to arrest for the false representation made by his co-partner, without his knowledge, authority or ratification.
    Appeal from an order of the Special Term in Chautauqua county, vacating the order of arrest in this case as to the defendant Bonderson. The order was granted by the special county judge of Chautauqua county for the arrest of the defendants Peterson and Bonderson, who are partners. The action is on contract to recover the agreed price of lumber sold to the defendants by the plaintiffs, and for work done by plaintiffs for them.

      Cook & Lockwood, for the appellants.

      Jenkins <& Cameron, for the respondents.
   Smith, J.:

The affidavits show that a gross fraud was practiced upon the plaintiffs, the fruits of which have been enjoyed by the defendants’ firm. In so far as the fraud consisted of false representations as to the pecuniary' responsibility of the firm, by which tiie debt in suit was fraudulently contracted, the defendant Peterson was the sole actor in it, there being no evidence that his partner ,Bonderson, knew' of the false representations made by Peterson, until he was served with the affidavits on which the order of arrest was granted. The action being on contract, and not for the wrong,. Bonderson is not liable to arrest, on account of the false representations made by his partner without his knowledge, authority or ratification. The case of Hathaway v. Johnson (55 N. Y., 93), we think, requires us to hold that mere participation by Bonderson as a member of the firm in the fruits of the fraud is not enough to justify his arrest, in the present form of action, he being personally clear of the fraud involved in the false representations made by his partner. True, that was a case of principal and agent, and not of partners, but the principle upon which one partner can bind his associates, by his acts and representations, is that he is their authorized agent in the business of the partnership. (Van Keuren v. Parmelee, 2 Comst., 523.) If, then, the affidavits showed no other fraud than that involved in the false representations made by Peterson, the order of the Special Term vacating the order of arrest as to Bonderson should be affirmed.

But it seems to us that the affidavits make a case for the arrest of both defendants on two grounds: That they disposed of their property with intent to defraud their creditors; and that, knowing they were insolvent, they fraudulently concealed the fact of their insolvency, and of their fraudulent disposition of property, and contracted the debt in suit with the intent not to pay the sin-no. It is not necessary that the affidavits should specify the grounds, in terms; it is enough that they state facts sufficient to authorize the conclusion that the grounds existed in fact.

The affidavit of the plaintiff Wilson alleges that two weeks before Peterson made the false representations above referred to, the purport of which was that the firm was fully responsible, and worth four or five hundred dollars over all debts, Peterson and Bonderson, respectively, conveyed certain lands and premises in Jamestown of the value of at least $6,000 to their wives, through the intervention of a third person, without consideration; that the deeds were not recorded until four months after Peterson made his false representations, and the affidavit alleges that said conveyances were made to cheat the creditors of the defendants, and the concealment thereof from deponent was to cheat and defraud the plaintiffs. This is not denied by Bonderson, although he makes an affidavit. The judge at Special Term laid stress on the fact that the affidavit did not allege that the conveyances were made with intent to cheat the plaintiffs specially, or subsequent creditors, generally. But it is alleged that Bonderson as well as Peterson bought of the plaintiffs on credit, and that the fact of such conveyances was concealed from the plaintiffs with intent to defraud them, and this is not denied by Bonderson.

As to the other ground, the affidavit of Wilson distinctly alleges that the defendants were insolvent when each item of the plaintiff’s account accrued; that each partner ordered some of the' items; that the defendants knew they were insolvent and unable to pay; and that they obtained a credit with the plaintiffs with, intent to cheat and defraud them. These allegations, not being denied, are enough to warrant the arrest of each defendant. (Wright v. Brown, 67 N. Y., 1.)

The order of the Special Term should be reversed, with ten dollars costs and disbursements.

Present — Mullin P. J., Talcott and Smith, JJ.

Ordered accordingly.


text:
    PARDON T. DIX, Plaintiff, v. FRANKLIN SHAVER, Defendant.

      Offer — who may take advantage of it — acceptance of, necessary — Agreement to locate railroad on particular line — when against public policy.

    The defendant, with others, signed a paper by which, in consideration of one dollar to him paid by the Lake Ontario Shore Railroad Company, and in consider- , ation that the company should locate its road as therein specified, he agreed. when the road should be graded, to pay the sum set opposite to his name > At the time of his signing, the company had surveyed different routes, but had not as yet located the road; subsequently the property and franchises of the company were sold under a mortgage foreclosure, and conveyed to a new company, which subsequently consolidated with still another company. By one of the two latter companies the road was located and graded as designated in the agreement.
    In an action by the receiver of the last company to enfoi'ce the agreement; held, that the paper was merely an offer on the part of the defendant, which could be retracted at. any time before acceptance, and that, as the company named therein had never accepted the same, there was no consideration therefor, and that the same could not be accepted or enforced by the new company, between which and the defendant there was no privity.

      Held, further, that, even if there were any consideration for the agreement, it could not be enforced, as it was void as against public policy, as only the route most advantageous to the public should have been selected.
    Motion by plaintiff for a new trial on exceptions taken at the Niagara Circuit, and ordered to be heard at the General Term in the first instance.
    The action was brought by the plaintiff as the assignee of the Lake Ontario Shore Railroad Company and the Rome, Water-town and Ogdensburgh Railroad Company to recover the sum of' one hundred dollars set opposite the name of the defendant, upon a- subscription paper signed by the defendant and others, of which the following is a copy: “ In consideration of one dollar to each of us in hand paid by the Lake Ontario Shore Railroad Company, the receipt whereof is hereby acknowledged, and also in considerar tion that the said company shall, and do locate the Lake Shore railroad on a line running from a point near the old graveyard in Wilson, easterly and north of Janies Van Horn’s brick barn in Newfane, in Somerset, and for other and sufficient valuable considerations, I, the undersigned, do hereby covenant and agree that I will pay to the said Lake Ontario Shore Railroad Company the sum set opposite my name, payable when said road is graded, on demand, witness my hand and seal this 15th day of January, A. D., 1872.” At the time when the paper was signed and delivered to the Lake Shore Railroad Company, the company had not located its route between the points mentioned in the paper. It had surveyed three routes running south of Van Horn’s barn, and the object of the subscription was to induce the company to adopt a route north of that point; no consideration ivas in fact paid, after the delivery of the paper and before the part of the railroad referred to in the subscription paper was constructed or graded ; the property and franchises of the company were sold under a judgment foreclosing a mortgage executed by said company, and the same were conveyed by sheriffs’ deed dated, 22d September, 1874. Subsequently a new corporation, known as “The Lake Ontario Railroad Company,” was organized under chapter 430 of the Laws of 1873, to complete, the railroad so begun by the Lake Ontario Shore Railroad Company. The latter company was afterwards consolidated with “The Rome, Watertown and Ogdensburgh Railroad Company,” under the name of that company. By one of these latter companies the road was graded and completed in 1875 or 1876, and is now operated its entire length. That portion of the road between the points named in the subscription paper is located north of Van Horn’s brick barn. These facts ■ appearing at the trial, the plaintiff Avas nonsuited, on the ground that the defendant’s subscription Avas Aoid for want of consideration.

      Farnell é Burrell, for the plaintiff.
    The subscription is a good and valid contract. The subscription and proof show an implied

      request to the railroad company to locate the road on a particular route, and upon the faith of it the company expended money in making a new survey, and complied with the request by locating the road according to the condition. (Barnes v. Perine, 12 N. Y., 18; Tnistees of First Baptist Society v. Robinson, 21 id., 234; 48 How., 414; 9 Barb., 202; The First Religious Society in Whitestown v. Store, 7 John., 112; McAuley v. Billinger, 20 id, 89; Barnes v. Perine, 15 Barb., 240; The Richmondville-Sem. v. Brownell, 37 id., 535; Hutchinson v. Smith, 46 id., 235; Beardsley v. Davis, 52 id., 159; The Wayne and Collegiate Institute v. Smith, 36 id., 583; L’Amoreaux v. Gould, 7, N. Y., 349; Burrell v. Root, 40 id., 496, 499; Eno v. Woodworth, 4 id., 249- Giles v. Bradley, 2 Johnson’s Cases, 253).

      John T. Murray, for the defendant.
    The subscription being conditional that the company should locate on the particular north lino, “and north of James Van Horn’s brick barn, in Newfanc,” the same was void as contrary to public policy. (Butternuts & Oxford Turnpike Co. v. Worth, 1 Hill, 518; Macedón <& Bristol Plankroad Co. v. Snediker, 18 Barb., 317; Fort Edioard & Fort Miller Plankroad Co. v. Payne, 15 N. Y., 583).
   Smith, J.:

The judge, at the Circuit, ivas clearly right in holding that there was no consideration for the defendant’s subscription. It was a mere offer on his part, which he was at liberty to retract at any time before any act on the part of the company indicating an acceptance of the offer, and constituting a good consideration for the defendant’s promise. No such act was performed by the company to which the offer was made. Had the company built and operated the road upon the route specified in the subscription paper, we incline to the opinion that it might have been inferred, in the absence, of proof to the contrary, that they did so at the request of the subscribers to the paper, as an acceptance and performance of the stipulated conditions ; and such action would have furnished a sufficient consideration. (The Wayne & Collegiate Institute v. Smith, 36 Barb., 576; Beardsley v. Davis, 52 id., 159.)

. But, so far as appears, the company to which the offer was made did nothing of the kind. It was divested of its property and franchises by the foreclosure sale in 1874. The grading and completing of the road and, so far as appeal’s, the locating of the route between the points specified in the subscription paper were done by the new company. Between that company and the defendant there was no privity. The defendant’s offer was not made to the new company. The new company did not acquire the interest of the original company in the subscription paper. It succeeded to such property only, of the original company, as was covered by the mortgage and sold on the foreclosure.

We are also of the opinion that the nonsuit ivas proper, for the reason that the agreement, even if there were a consideration to support it, was against public policy. It does not appear that the subscribers were stockholders in the company, and they were not bound to take stock. If their agreement had been a subscription . for stock, conditioned upon the adoption of a particular route, it seems that it would have been void, upon the principle laid down in Butternuts & Oxford Turnpike Co. v. North (1 Hill, 518); Macedon & Bristol Plankroad Co. v. Snediker (18 Barb., 317); and Port Edward & Fort Miller Plankroad Co. v. Payne (15 N. Y., 583).

The statute of 1850 (chap. 140), under which the Ontario Lake Shore Railroad Company was organized, appears to be identical in policy with the acts under which the several cases above cited arose, so far as the point in question is concerned. Public policy requires that, in locating a railroad, as well as a turnpike or a plankroad, between given terminal points, the route most advantageous to the public should be adopted. But if the courts should uphold agreements by persons not proposing to take stock to pay a bonus, in case one of the several rival routes is selected, the interests, not only of the public but of the stockholders, might be greatly prejudiced.

The motion for a new trial should be denied, and judgment ordered for the defendant on the non-suit.

Present — Talcott, P. J., Smith and Hardin, JJ.

New trial denied, and judgment ordered for the defendant on the nonsuit.


author: ■Smith, J.:

text:
    MARY P. HOOK, as Trustee of CHARLES H. HOOK, Respondent, v. DANIEL PRATT and others, Executors, Etc. of JAMES P. HASKIN, Deceased Appellants.

      Draft — whena consideration appears upon its face — Promise to pay for support of illegitimate child — when valid.

    Defendant’s testator drew a draft for $5,000, payable to his own order, for value received, and indorsed the same: “ Pay to the order of Mrs. Mary 1-Iook, 35 King, for the benefit of her son Charlie.” Mrs. Hook was, at the time, living with her husband, at Rochester, and had a child, some seven years old, who . was claimed by her, and admitted by the testator, to be his illegitimate son. In an action by Mary Hook upon the draft, held, that the draft imported a consideration upon its face.

      Semble, that, in any event, it was evidence of a promise t.o pay to the mother of the child the money which she should expend in his support, at least to the amount of the income of the fund derived from the proceeds of the draft, during his minority, and that such promise could be enforced.
    Appeal from a judgment entered on the decision of the court, on a trial at the Onondaga Circuit, without a jury.
    The action is on a draft, made and indorsed by the defendant’s testator, in the following words:
    “ $5,000.” “ Syracuse, N. Y., Sept. 13, 1870.
    “ Orrin Welch, Treas. Morris Run Coal Co., pay to the order, of myself, one year after date, live thousand dollars, for value received.
    (Signed) “ J. P. HASKIN.
    (Indorsed) “Pay to the order of Mrs. Mary Hook, 35 King, for the benefit of her son Charlie.
    (Signed) “ J. P. HASKIN.”
    It appeared at the trial that Charlie Hook, referred to in the indorsement, was a boy, seven or eight years old at the date of the draft, living with and taken care of by the plaintiff, his mother, who was then married and living -with her hushand, in Rochester. The boy was claimed by the plaintiff, and admitted by Ilaskin to be the illegitimate son of Ilaskin. The husband of the plaintiff was made a party defendant in this action.

      The court decided that the plaintiff was entitled to recover on the draft.

      JD. Pratt, for the appellants.

      Irving G. Vann, for the respondent.
   ■Smith, J.:

The only question in this case is whether the paper sued on imports a consideration, in view of the restrictive character of the indorsement, or if it does not, whether a consideration was proved.

We concur in the conclusion of the judge at the Circuit, that the paper imports a consideration on its face.

We are also prepared to hold, if it were necessary to the disposition of the case, that in view of the circumstances attending the making of the draft and indorsement, the bill is evidence of a promise by the drawer to pay the mother of the child the money which she should expend in his support,' at least to the amount of the income of the fund derived from the proceeds of the bill during the minority of the child. The promise of the father of an illegitimate child, who acknowledges the child as his own, to pay the mother with whom the child lives for its support, is founded upon a sufficient consideration. (Hicks v. Gregory, 8 C. B., 378; Smith v. Roche, 6 C. B. [N. S.], 223; Hesketh v. Gowing, 5 Esp., 131; Nichole v. Allen, 3 C. & P., 36; Jennings v. Brown, 9 Mees. & Wels., 496; Bunn v. Winthrop, 1 Johns. Ch. 329.)

The judgment should be affirmed.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment affirmed.


text:
    JOHN L. JOHNSON, Respondent, v. MARY L. PARMELY, Impleaded, Etc., Appellant.

      Mortgage — what will constitute an equitable assignment thereof — when party estopped to deny existence of.

    The plaintiff entered into an.agreement with one Gannett, on whose wife’s property Hobart College held a mortgage, as collateral to the bond of a former owner of the property, by which the plaintiff agreed to pay the amount of the mortgage, which was then over-due, to the college, take an assignment of it, ■and extend the time of payment one year. Plaintiff and Gannett, in pursuance of the agreement, saw the agent of the college and, plaintiff offered the money and asked for an assignment, but was told that the college never assigned a mortgage ; the money was then paid to the agent, who handed the bond to the plaintiff, and subsequently sent him a satisfaction-piece of the mortgage, which satisfaction-piece was never recorded. Thereafter Gannett sold the premises to the defendant, who, by her deed, assumed the payment of the mortgage.
    In an action to foreclose the same, held, that Gannett and defendant were estopped from denying the existence and validity of the mortgage.
    Appeal from judgment in favor of the plaintiff, entered on the decision of the late Mr. Justice Raivson, at the Ontario Special Term.
    This action was bi’ought to foreclose a mortgage, accompanied by a bond made by Willard C. Gannett and wife, to Hobart College, of Geneva, N. Y., dated November 1, 1868.
    .After the execution of the mortgage, the premises were conveyed by the mortgagor to one Lewis E. Gannett subject to said mortgage, and which he assumed to pay as part of the purchase-price. The title to the premises was afterwards passed to one Joseph C. Gannett, and by him conveyed to Mariette Gannett, the wife -of said Lewis E.;. said Mariette also assuming the payment of said mortgage as part of the purchase-price.
    While the title stood thus, in said Mariette, and in the month of May, 1875, the plaintiff, at the request of said Lewis E. Gannett, and in pursuance of an agreement that the plaintiff would advance the money to the college, take an assignment of the mortgage, and extend the time of payment for a year, applied to E. H. Hurd, Esq., the attorney of the college, who had said bond and mortgage for collection, and proposed to purchase the same and have them assigned to him. Mr. Hurd refused to assign the bond and mortgage, and stated to the plaintiff that the college would not assign them.
    After two or more interviews the plaintiff paid the money to Mr. Hurd in presence of Lewis E. Gannett, the bond being delivered up, and Mr. Hurd agreeing to have a .satisfaction-piece executed and forwarded to Mr. Field, the plaintiff's counsel, at Canandaigua. The mortgage was retained by Mr. Hurd for the purpose of drawing a discharge, and has never been delivered to the plaintiff. The satisfaction-piece was executed in pursuance of this arrangement, acknowledged June 29, 1875, and forwarded to Mr. Field by Mr. Hurd, and was from that time to the trial held by Mr. Field, it never having been recorded.
    The premises were purchased by the defendant Mary L. Parmely, “subject, nevertheless, to a claim of John L. Johnson of $575; also one other, a mortgage to L. D., niece, of $228, # * * with no’ incumbrances, excepting those before mentioned in this conveyance,” she then knowing of the existence of the mortgage.
    The plaintiff claims to foreclose this mortgage as assignee of Hobart College.
    The defendant claims that the mortgage was, by the transactions above stated, paid, and thereafter ceased to have any validity as a mortgage, or to be a lien on the said premises; and that an action to foreclose it could not be maintained; that the plaintiff’s remedy, if he had any, was by an action to have his claim declared a lien prior to the defendant’s rights in said premises.

      Spencer Gooding, for the appellant.
    The transaction between the plaintiff, Lewis E. Gannett, and Mr. Hurd, amounted to and operated as a payment and satisfaction of the mortgage, and it then ceased to be a lien on the premises, or to have any binding force or validity whatsoever. (Banta v. Garmo, 1 Sand., Ch. R., 383, and cases cited; Marvin v. Vedder, 5 Cow. R., 671; James v. Johnson $ Morey, 6 Johns., Ch. Rep., 417.) Tins mortgage having once been paid, its life and force as a legal instrument was ended, and no action could ever afterwards be maintained upon it. [Barda v. Garmo, 1 Sand., Ch. R., 383; Sandford v. McLean, 3 Paige, R., 122; Mead v. York, 6 N. Y. [2 Seld.], 449, and. eases cited; James v. Morey, 2 Cow. R., 246; Opinion of Woodworth, J., page 286; Hubbell v. Blakeslee, 8 Hun, 603; McGinn v. Wheelock, 7 Barb., 22.)

      Metcalf & Field, for the respondent.
    This payment of the money by the plaintiff to Hobart College, and the delivery of the bond to him, was, in law and equity, a good assignment, and carried with it the mortgage and the debt. (Jackson v. Blodgett, 5 Cow., 202; Patterson v. Hull, 9 Cow., 747; Langdon v. Bud, 9 Wend., 80; White & Tudor’s leading cases in Equity, 65 Law Library, 245.) Although plaintiff' has no written assignment of the bond and mortgage, he had possession of the bond, and he had paid his money, at the request of the party liable to pay the debt, and that gave him certainly prima facie title to the bond, and a right to recover all moneys due thereon. [Hooker v. Eagle Bank, 30 N. Y., 83; Mack v. Mack, executor', 3 Hun, 323; Runyan v. Mersereau, 11 Johns., 534; Fryer v. Rockfellow, 63 N. Y., 208; Bedell v. Cavil, 33 id., 581; Wester lo v. Be Witt, 36 id., 340.) The defendants, W. B. and M. L. Parmely, are absolutely estopped from claiming that the bond and mortgage has been paid. [Freeman v. Axdd, 44 N. Y., 50; Sands v. Church, 6 id., 347; Hartley v. Harrison, 24 id., 170; Hermans on Estoppel, § 235; Carpenter v. Dougherty, 2 N. Y., Sup. Rep., 427; Guernsey v. Roger's, 47 id., 233; Curtis v. Tyler, 9 Paige, 432.)
   Smith, J.:

The plaintiff claims that in equity he is to be regarded as the assignee of the bond and mortgage. It is alleged, in defense, that the debt was paid to the college, and the mortgage was satisfied. And the real question is, whether the transaction between the plaintiff and the college is to be treated as a payment of the mortgage debt, or whether it is to be regarded as a purchase and assignment of the mortgage as between the parties now litigating.

It is true, that the form of the transaction, on the part of the college, was that of a receipt of money in payment of the debt. But the money was paid by Johnson, the plaintiff, at the request ánd in the presence of Gannett, then the owner of the equity of redemption, and in pursuance of an agreement between Gannett and the plaintiff, that the latter would advance the money to the college, take an assignment of the mortgage, which ivas then overdue, and extend the time of payment for a year. And, in pursuance of that arrangement, Johnson advanced the money to the college and requested an assignment; but the agent, who acted for the college, declined to execute an assignment, alleging that it was against the rules of the trustees of the college to assign mortgages, and thereupon the agent accepted the money from Johnson, and delivered to him the bond and promised to send to his attorney a discharge of the mortgage, which he did subsequently.

The plaintiff or his attorney has had possession of the discharge ever since, and the mortgage has not been canceled or discharged of record. In these circumstances, it is obvious that if Gannett were still the owner of the premises, he could not defeat the plaintiffs claim, in a court of equity, by the plea that the mortgage is discharged. As between him and the plaintiff, the intention was to keep the mortgage alive, and he subsequently recognized its existence and validity by conveying the premises, subject to the mortgage, his grantee assuming the payment of it as a part of the pm’chase-price of the land.

The appellant, Mrs. Parmely, is m no better position than Gannett, she having succeeded to his title with notice of the plaintiff’s claim.

Upon another ground, the plaintiff is entitled to enforce the mortgage as against Mrs. Parmely. The judge found that the consideration agreed to be paid by . her to her vendor for the premises in question -was $1,700, and that the vendor allowed licito deduct therefrom the sum of $575, as the amount then due on the bond and mortgage sot out in the complaint. She is, therefore, estopped from setting up that the mortgage has been paid.'

The exceptions taken by the defendant to rulings of the court upon questions of evidence have no merit.

The judgment should be affirmed, with costs.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment affirmed, with costs.


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    CHARLES H. IVES, Respondent, v. JAMES C. HOLDEN and JOHN McILWAINE, Appellants.

      Motion to vacate attachment — when additional papers may be used by plaintiff— Code of Civil Procedure, § (383.
    Where a motion to set aside an attachment, issued upon an affidavit only, is made upon the affidavit upon which it was granted, and also upon the complaint, the plaintiff is entitled, upon the hearing, to read additional affidavits in support of the attachment.
    Appeal from an order made by the County Judge of Allegany county, denying a motion to dismiss a warrant of attachment, and allowing the plaintiff to read a new affidavit in support of the attachment and in opposition to the motion, on payment of costs.
    On the motion to set aside the warrant, the judge decided that the affidavits on which it was issued were defective, in that it did not appear thereby that the plaintiff was entitled to recover a sum stated therein over and above all counterclaims known to him; whereupon' the plaintiff’s attorney asked to be permitted to amend such affidavits, and to oppose the motion to dismiss by new proof by affidavit, on the part of the plaintiff The justice allowed the plaintiff to make and read such further affidavit remedying the defect in the original affidavits, upon payment to the defendant of seven dollars costs. Thereupon plaintiff’s attorney read a further affidavit, and the motion to dismiss was denied.

      J. W. Higdon, attorney for appellants.

      Loveridge & Swift, attorneys for respondent.
   Smith, J.:

Section 683 of the Code of Civil Procedure provides for two classes of applications to vacate a warrant of attachment: one founded only upon the papers upon which the warrant was granted; the other. founded upon proof, by affidavit, on the part of the defendant. An application in the latter class may be opposed by new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground for the attachment recited, in the warrant. In this case the warrant was issued on an affidavit of the plaintiff, as appears by a recital in the warrant. The notice of motion to vacate the warrant, served by the defendants attorney, stated that the motion would be made upon the complaint as well as the affidavit. For aught that appears, the complaint was so used. As it is not set out in the appeal papers, we are not informed of its contents. If it was verified — and for the present purpose that may be assumed — it could be used as an affidavit (Palmer v. Hussey, 59 N. Y., 647), and on its being so used by the defendants, the plaintiff would be entitled to read fresh affidavits in support of the warrant.

If it be suggested that by the terms of section 683, the county judge had not jurisdiction to entertain an application founded on affidavits on the part of the defendant, it may be answered that if the construction is correct, a point which we do not intend to decide, the fact of the want of jurisdiction is an additional reason for affirming the order of the judge refusing to vacate the warrant.

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

Present — Talcott, P. J., Smith and Hardin, JJ.

Order affirmed, with ten dollars costs and disbursements.


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    NELSON CHAMBERLAIN, Respondent, v. JOHN B. REED, Appellant.

      Division fences — maintenance and removal thereof — chap. 540 of 1S66, and chap. 635 of 1871.
    Under the provisions of the statutes relating to the maintenance and removal of division fences (chap. 040 of 1866, and chap. 635 of 1871), each owner, where the lands are not wholly cleared or improved, is hound to maintain his proportion of the division fence so far as he uses it, ihat is, so far as it serves to fence any of his lands which are inclosed, whether cleared or improved or not; but if. before he has contributed to the division fence or after ho luus built a portion of it, he chooses to let a part of his land lie open, and remove that part of the fence adjoining it, he may do so upon procuring the certificate of the fence viewers to that effect.
    It is not necessary that the whole of the fence be removed, a portion may be removed and the remainder left. But in such case, the party removing the fence must build, pay for, or maintain, as the case may be, his proportion of such part of the division fence as he continues to use for the purpose of inclosing any part of his land.
    Where, by an agreement between the adjoining owners, specific portions of the division fence have been assigned to each to build and maintain, either party, by applying- under the statute for leave to remove a portion of such fence, which portion he was by the agreement bound to maintain, thereby rescinds such agreement, and the other owner may then proceed de novo• to have the remainder of the fence apportioned between them.
    Where the fence removed was in a decayed and ruinous condition, and in places was completely broken down, so as to afford no protection to plaintiff’s adjoining land, held,, that defendant did not waive the benefit of the fence viewers’ certificate by waiting until after the first of April before removing it, though the case would have been different had the fence been a substantial one, protecting plaintiff’s land.
    Aureal from a judgment of the Monroe County Court reversing a justice’s judgment in favor of the defendant.
    The action was brought to recover the cast of repairing a part of defendant’s portion of the division fence on the line between adjoining lands of the respective parties, the defendant having neglected, after due notice, to repair the same. A part only of the lands on- each side of the division fence, was cleared and improved, and the portion of the fence in question was opposite land of the defendant which was not cleared or improved. The defense was that the defendant had permission from the fence-viewers to remove that portion of his fence, and let his wood land .lie open.
    The notice to the plaintiff’, under the statute, was to the effect that the defendant would apply to the fence viewers ‘1 for permission to remove my part of said division fence, * * * being •on the north side of my unimproved timber and wood land, and on the south side of the land or farm on which you reside.” The •certificate of the fence viewers was to the effect that they “ having viewed and examined the premises and fences in said notice mentioned and referred to, * * * do agree and decide the said •John Reed may, with propriety, .remove, the pai't.and portion,of such fences belonging to him to make and keep in repair; his said land being wholly unimproved.”

      II. It. Selden, for the appellant.

      W. F. Cogswell, for the respondent.
   Smith, J.:

It appeal’s, from the opinion of the comity judge, that the judgment of the justice was reversed on the ground that the certificate of the fence viewers, upon which the defense rested, was void for want of jurisdiction. That conclusion was reached by holding that the certificate permitted the defendant to remove all of that part of the entire division fence between the parties which it belonged to him to keep in repair, although the notice, from which they derived their jurisdiction under the statute, limited them to that portion of the fence which was on the north side of Reed’s unimproved timber land, and although a considerable portion of the fence so permitted to be removed ran through cleared and improved land. We think the certificate does not bear that, construction. The certificate was annexed to the written notice of application which the defendant had caused to be served upon the plaintiff, and by its terms was in pursuance of such notice, to which it made special reference. The notice described the fence which the defendant asked permission to remove, as being on the north side of his unimproved timber and wood-land. It seems to us that the certificate, read in connection with the notice, clearly imports that the part of the fence which the defendant was permitted to remove was that part which adjoined his woodland. We are of the opinion that the reversal of the judgment was not warranted upon the ground above stated.

' It is now contended, however, by the counsel for the respondent, that the division fence between the lands of the parties is a unit, as each party is bound to maintain his proportion, and a certificate which allows one party to throw open a part of his lands to the public, and impose upon the other the burden of maintaining the remainder of the division fence, does not comply with the statute. The entire division fence between the parties is 278 rods in length, running east and west. By an arrangement which is said to have existed between the parties for over twenty years, the first thirty rods of the fence on the west end has been maintained by Chamberlain, the next thirty by Reed, the next 118 by Chamberlain, and the last 110 rods on the east end by Reed. The east 110 rods is the portion which the certificate permits the defendant to remove. If the certificate is valid and the existing arrangement is to continue hi force, as to the remaining portion of the fence (178 rods), the plaintiff will be obliged to support 148 rods of it, in addition to the 110 rods which the defendant is permitted to remove, and which the plaintiff must keep up, unless he lets his adjoining lands lie open. It is not to be supposed that the statute was intended to work out results so inequitable. What, then, is the meaning of the statute? May one of two or more adjoining tenants be permitted to remove a part only of his division fence, or must he remove the whole or none ? The question appeals to be now, and the meaning of the statute is not free from doubt.

At common law, one tenant could not compel the tenant of an adjoining close to make a division fence, except by agreement or prescription, and then the remedy was by action on such agreement, or prescription. (Holladay v. Marsh, 3 Wend., 145.) Under the successive statutes in this State on the subject, a tenant who chose to let his lands lie open could not lie compelled to make his proportion of a division fence where none had been built; until the-amendment adopted in 1866 (L. 1866, ch. 540), which provided that each of two or more persons, having lands adjoining should make and maintain a just and equal proportion of the division, fence between them, in all cases where one-half or more of each of said adjoining lauds were cleared or improved. (§ 1.) By that, amendment, in all other cases, the owner could let his land lie open, if ho chose ; and if ho did so, he could not bo compelled to build a fence. But if he afterwards inclosed his laud, he was required to refund' to the owner of the adjoining land a just proportion of the value at that time of any division fence that had been made and maintained by such adjoining owner, or to build his proportion of such division fence. (§ 2.) And even if he chose tp let his land, lie open, if one-half or more of it was cleared or improved, he was required to refund to the owner of the adjoining land a just proportion of the value at the time said amendment took effect of any division fence that had been made and main-tamed by such adjoining owner, or to build his proportion of such fence. (§ 3.) Those provisions related to the case of a tenant who had not contributed to the making or maintenance of a division fence. If after he had made his proportion of the division fence, the tenant chose to remove his fence and let his lands lie open, ha could do so, provided his lands were not one-half or more cleared' or improved, on complying with the requirements of the statute, and obtaining a determination of the fence viewers that he could, do so with propriety. (§ 5.) By an amendment adopted in 1871 (L. 1871, ch., 635), the cases where persons having lands adjoining could be compelled to make and maintain a division fence,, were reduced to those in which each of the adjoining lands was wholly cleared or improved, and the several provisions of the act of 1866 above referred to were changed accordingly, and in that shape are now in force.

There is nothing in those provisions having a very direct bearing upon the question before us, but it seems evident that, in some instances where the statute speaks of “the land” of a tenant, it does not necessarily mean the whole of his land, and where it speaks of the “ division fence,” it does not mean the whole of such fence. Take, for example, the provision that an owner who has let his land lie open after the adjoining owner has built a division fence may subsequently inclose it, provided he pays for, or builds' his proportion of the fence. May he not inclose a part only of his land and leave the rest open, and.so be liable only for his proportion of such part of the fence as adjoins the land so. inclosed? To compel him to pay for fencing that part of his land which he does not wish to inclose would be unjust to him, and more than just to the adjoining owner. We are inclined to think the policy of the statute is, as to lands not wholly cleared or improved, that each owner shall maintain his proportion of the division fence so far as he uses it; that is, so far as it serves to fence his' lands which are inclosed, whether cleared or improved or not; but that if before he has contributed to the division fence, he chooses to let a part of his lands lie open, or if, after he has built a portion of it, he then chooses to let a part of his land lie opon, and to remove that part of the division fence adjoining it, he may do it on complying with the statute. But in either case, he must build, pay for, or maintain, as the case may be, his proportion of such part of the division fence as he continues to use for the purpose of inclosing any part of his land. The policy of the statute thus construed is in harmony with its provisions respecting a subdivision of division fences, whenever a transfer of title to adjoining lands or any part of them interferes with or Affects the division fences between the adjoining owners. (L. 1866, chap. 540, § 4; L. 1871, chap. 635, § 3.)

If, however, the construction which we have given to the statute were to work such injustice to the respondent as his counsel apprehends, we would be loath to adopt it, except upon clearer language than that contained in the statute under consideration. But we are of the opinion that no such result need follow. It seems to us that the action of the defendant in removing the portion of the fence adjoining his wood-land and in relieving himself, through the determination of the fence viewers rendered on his application, from the duty of further maintaining it, must be regarded as a rescission on his part of the previously existing arrangement between him and the plaintiff respecting the proportions of the division fence to bo maintained by them respectively, and that there is no longer any subsisting agreement between them on that subject. If this view is correct, the plaintiff may proceed de novo to have the division fence apportioned, and if a dispute arises between him and tho defendant as to the proportion to be maintained by each, the fence viewers may be called in to settle it. (1 R. S., 353, § 33.)

It is further insisted by the respondent’s counsel that the defendant waived the benefit of tho fence-viewers’ certificate by not removing his fence before tho first of April following. It appears in evidence that, for years before tho application was made to the fence viewers, the fence adjoining the defendant’s wood-land was in a decayed and ruinous condition, and in several places was so completely broken down and destroyed as to afford no protection to the plaintiff’s lands adjoining. If there had been a substantial fence, the removal of which would have exposed the plaintiff's land to inroads from -which the fence had previously protected it, tbe case would have been entirely different. Such a fence the defendant would have had no right to remove after the first of April, and it might be said with great force that by omitting to remove fit before that time, he had waived his right to hike it away. But in the actual circumstances of the case, the mere omission of the defendant to remove the decayed fragments of the ancient fence was no evidence of an intention on his part to continue to maintain the fence, and it furnishes no implication of a waiver of his right to remove it.

We think, therefore, that the defendant was under no obligation to maintain the portion of the fence in question at the time when the plaintiff repaired it, and that he had a substantial defense to the plaintiff’s action.

We have examined the several exceptions taken on the part of the respondent to rulings of the justice upon questions of evidence, but they point to no material errors.

The judgment of the County Court should be reversed and that of the justice affirmed, with costs of the appeal in the County Court, as well as of this appeal, to the defendant.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment of the County Court reversed, and that of the justice affirmed.


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    HARTLEY V. D. HORN, Respondent, v. OWEN D. PERRY and GIFFITH J. GRIFFITH, Appellants.

      iSureties — when not bound by admissions of principal.

    The plaintiff and Davies, Jones and Beckwith entei-ed into an agreement for the dissolution of a partnership existing between them, which provided that the assets of the firm should be collected or sold, and the proceeds applied to the payment of the debts, and that if any deficiency should arise, one-fourth should be paid by plaintiff, and three-fourths by the other three. This action was brought, to recover three-fourths of a note which plaintiff had been compelled to pay, against the defendants who had signed an instrument guaranteeing that Davies, Jones and Beckwith would perform all the stipulations on. their part contained in the agreement for dissolution.

      ■ Upon the trial the plaintiff showed that, in the absence of the defendants, he, . together with Davies, Jones and Beckwith, had examined the books of the firm, and determined that a deficiency existed and the amount thereof; that he had given his check for one-fourth thereof, and received a receipt from them ■ showing that he had done so; and that subsequently he had been compelled' to pay the note to recover a portion of which this action was brought.

      Held, that the examination of the books of the principals, the determination of a. deficiency, and the giving of the check and receipt, in the absence of the sureties, were inadmissible to prove a deficiency as against them.
    Appeal from a judgment entered on a verdict rendered at the-■Oneida Circuit in favor of the plaintiff, and also from an order-denying a motion made by the defendants for a now trial on the minutes of the justice before whom the action was tried.
    The action was brought upon an instrument signed by the-defendants, by which they guaranteed that Davies, Jones and Beckwith who had theretofore been in co-partnership with the plaintiff, and had then, with him, entered into an agreement to dissolve-the partnership, would perform all the stipulations in said agreement on their part contained. Among other stipulations, was one that the demands due to the firm should be collected or sold, and the proceeds applied to the payment of the debts and liabilities of the 'firm, and if they should be insufficient for that purpose, Davies, Jones and Beckwith should pay three-fourths of the deficiency, and the plaintiff one-fourth. The claim in suit is for three-fourths of the amount subsequently paid by the plaintiff upon a note of Pierce & Haggerty indorsed by the firm.

      E. II. liisley, for the appellants.

      A. M. Beardsley, for the respondent.
   Smith, J.:

The principal contract provided that in case the proceeds from the collection and sale of the claims and demands belonging to the firm, estimated to be of the value of $25,000, should be insuffiicient to pay the liabilities and debts of the firm, such deficiency should be paid, three-fourths by the principals of the defendants, and one-fourth by the plaintiff. Thus, the liability of the defendants was limited to three-fourths-of any deficiency that the plaintiff should be‘ compelled to pay after the accounts and bills receivable of the firm had been applied in the manner provided by the contract. In order, therefore, to charge the defendants upon the guaranty, it was incumbent on the plaintiff to show that the .demands of the firm had been exhausted and their proceeds applied to the payment of the firm debts. That the plaintiff undertook to prove, but the only evidence on the subject consists of the testimony of the plaintiff tending to show that accounts were sold at auction of the nominal amount of $3,200, that one or two small claims were collected by him, and that he and the principals, in the absence of the defendants, looked over the books of the firm and found there was a deficiency of $491.89, for which he gave his check to the principals and they gave him a receipt. In such settlement of tile deficiency the note of Pierce & Haggerty, thereafter paid by the plaintiff, and to recover three-quarters of which payment this action was brought, was not included. The check and receipt were also .in' evidence. The books, check and receipt were no evidence whatever, as against the sureties, that the claims had been collected and paid according to the contract. As against the principals, the proof would have been sufficient; but as to the sureties, the contents of the books of the principals, the receipt given by them, ’ their verbal admissions to the plaintiff, and his check, were but the" declarations of third persons, by which the sureties were in no manner affected. The latter bound themselves for any deficiency remaining after the claims were applied, not for such deficiency as the principals should admit. These views are fully sustained by authority. (Hatch v. Elkins, 65 N. Y., 489; Tenth National Bank v. Darragh, 1 Hun, 111; 1 Greenl. Ev., § 187.) The point was raised at the trial by objections to the evidence and a motion for nonsuit. In overruling it we think the judge erred.

We are also of the opinion that it was error to admit evidence' of the insolvency of Davies, Jones, Beckwith & Co., and that the defendants had indorsed for them. We are unable to see that it was relevant to the issue, and it is impossible to say that it did not prejudice the defendants in the minds of the jurors.

The judgment and order refusing a new trial should be reversed.

Present — -Talcott, P. J., Smith and Hardin, JJ.

Judgment and order refusing new trial reversed and new trial1, ordered, costs to abide event.


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    OTIS T. STANLEY, Respondent, v LAURA L. LOVETT, Appellant.

      Supplementary proceedings — what delay does not constitute abandonment.

    On May 14, 1877, the defendant appeared before a referee, duly appointed in supplementary proceedings instituted in this action, and, after having been partially examined, refused to answer certain questions put to her by the plaintiff; the proceedings were then adjourned until May 21st, on which day plaintiff appeared, but defendant did not. On November 7, 1877, on plain-' tiff’s application, an order was made, on the return of an order to show cause why the defendant should not be committed for a contempt in refusing to answer the questions, inquiring the defendant to appear before the referee and be examined, and continuing the injunction already granted.
    Upon an appeal from this order, held, that the delay of the plaintiff to institute the proceedings to punish the defendant for a contempt did not constitute an abandonment of the supplementary proceedings, and that the order was proper and should be affirmed.
    Appeal from an order made by the County Judge of Wayne county in proceedings supplementary to execution, requiring the defendant to appear before the referee previously appointed therein, and answer certain questions which she had refused to answer on a previous examination in the same proceedings, and continuing an injunction order. The order appealed from was made on the 5th November, 1877, on the return of an order requiring the defendant to show cause why she should not be punished as for a contempt, for her alleged misconduct in refusing to answer certain questions.
    On appearing, in pursuance of the order to show cause, the defendant objected that the judge had no right to entertain the application, as the proceedings had been abondoned, more than three months having elapsed since the plaintiff had taken any steps in the matter; the objection was overruled.
    It appears that on the 14th day of May, 1877, the parties attended before the referee, duly appointed in said proceedings, and the defendant was examined in part, and on that occasion refused to answer the questions above referred to, and that the proceedings were then adjourned to May 21st. On that day the plaintiff' appeared before the referee, but the defendant did not appear. The defendant alleges in her affidavit that when the proceedings were adjourned, the plaintiff’s attorney stated that he did not know whether he wished to examine the defendant further or not; that if he did, he would notify her, and that unless she was. notified she need not appear on the adjourned day. The referee’s minutes, verified by his affidavit, noted the adjournment, but for aught that appeared therein, the adjournment was unconditional.

      Chas. McLouth, for the appellant.

      S. B. McIntyre, for the respondent.
   Smith, J.:

The only question is whether the proceedings were abandoned and thereby terminated, so that the judge had no jurisdiction of the same on the return of the order to show cause. Wo think the proceedings were not abandoned. Upon the proofs. before him, the county judge was warranted in concluding that the adjournment before the referee from the fourteenth to the twenty-first of May was unconditional, as the entry of the adjournment in the referee’s minutes was in the usual form. The defendant does not claim that there was a stipulation in writing that the plaintiff should notify her to attend on the adjourned day. The verbal arrangement, if there was one, was effectual only as an excuse in proceedings as for a contempt for not appearing. The plaintiff appeared on the adjourned day, but the defendant did not. The mere fact that the plaintiff delayed further action on his part till November, was not per se an abandonment of the proceedings. In the several cases cited by the appellant’s counsel, there was some affirmative action on the part of the plaintiff other than mere delay, from which an abandonment of the proceedings could be implied. In Edmonston v. McLoud (16 N. Y., 543), the plaintiff commenced a suit by creditors bill, and sought 'to make the lien thereby acquired relate back to the supplementary proceedings, and to obtain therein the same relief which he endeavored to get by the latter. In Squire v. Young (1 Bosw., 690), the plaintiff did not move the matter before the judge on the adjourned day nor call his attention to it. And in Thomas v. Kircher (15 Abb. [N. S.], 342), the creditor neglected to have the proceedings adjourned or extended after the examination of the debtor had been had. But in the present case nothing of the kind occurred. The plaintiff did not neglect to prosecute the proceedings as far as it was in his power to do so, and was only prevented from completing the examination before the referee by the absence of the defendant on the adjourned day.

' We do not intend to say that an abandonment of supplementary proceedings may not be inferred from the mere delay of the creditor to prosecute them, provided the delay be unreasonable, considering the length of its duration and the circumstances attending it; but in the present case the county judge did not err in declining to hold that the delay was conclusive evidence of an intent to abandon the proceedings.

The order appealed from should be affirmed, with ten dollars costs and disbursements. The order to be entered herein may require the defendant to appear before the referee on a day to be named therein, at least five days subsequent to the date of the ■service of the order, to be examined as provided in the order hereby affirmed.

Present — Mullin, P. J..Talcott and Smith, JJ.

{Ordered accordingly.