author: .Bockes, J.'

text:
    Isaac L. Seymour, Appellant, v. Henry M. Davidson, Respondent.
   Judgment and order affirmed, with costs. Opinion by

.Bockes, J.'


source: Caselaw Access Project

author: Bocees?, J.

license: Public Domain

text:
    Lucy A. Spencer, Respondent, v. Huldah E. Spencer, Appellant.
   Judgment and order affirmed, with costs against appellant. Opinion by

Bocees?, J.


author: Learned, P. J.

text:
    The National Bank of Kinderhook, Respondent, v. John Wilcoxson and others, Appellants.
   Judgment affirmed, with costs against appellants. Opinion by

Learned, P. J.


author: Board-man, J.

text:
    Michael Denham and another, Respondents, v. John McGuire, Appellant.
   Judgment affirmed, with costs. Opinion by

Board-man, J.


author: Bockes, J.;

text:
    Robert A. Stanton, Receiver, etc., Appellant, v. Osmer M. Westover and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Bockes, J.;

Learned, P. J., dissents.


text:
    William Gleason, Respondent, v. Calvin H. Ball, Appellant.
   Judgment affirmed, with .costs. Opinion by

Learned, P. J.


author: Boardman, J.

text:
    Rufus Chamberlain, Respondent, v. The Delaware and Hudson Canal Company, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


author: Bockes, J".

text:
    Mary R. E. Goodspeed, Appellant, v. Damon H. Mead and others, Respondents.

   Judgment and order affirmed, with costs. Opinion by

Bockes, J".


author: Boardman, J.,

text:
    The People of the State of New York v. Anderson Gibbs
   Judgment and conviction affirmed. Mem. by

Boardman, J.,

and by Leonard, P. J., dissenting.


text:
    Elias Smith, as Superintendent, etc., Respondent, v. Hiram W. Brundage and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Bockes, J.,

text:
    Elizabeth A. Shults, Respondent, v. German Fingar, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.,

and by Learned, P. J'., dissenting.


text:
    John Kelly, Appellant, v. Utica, Ithaca and Elmira Railroad Company, Respondent.
   Motion for new trial granted, costs to abide event. Opinion by

Boardman, J.


author: Bockes, J.

text:
    The People of the State of New York v. The City Bank of Rochester. — Matter of Petition of Sartwell and others, Appellants.

   Order reversed, prayer of petitioner granted, with costs as on appeal from judgment. Opinion by

Bockes, J.


text:
    Eli Owens, Respondent, v. A. J. Walling, Appellant

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

Learned, P. J.


text:
    Patrick O’Rourke v. Austin Terry.
   Order reversed, with ten dollars costs and printing disbursements, and matter sent to County Court for its action. Opinion by

Boardman, J.,

and by Learned, P. J., dissenting.


text:
    Ripley Lynch, Appellant, v. The City of Binghamton and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    The People of the State of New York ex rel. Fletcher Brockway v. Horatio Whitney, Commissioner, etc.

   Order affirmed, with fifty dollars costs and disbursements against relator. Opinion by

Learned, P. J.


author: Learned, P. J.,

text:
    Phœbe Schuster and another v. The Dutchess County Mutual Insurance Company.
   New trial granted, costs to abide event.

Opinion by

Learned, P. J.,

and by Bookes, J., dissenting.


text:
    Fannie V. Russell, Respondent, v. The Village of Canastota, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    Emma E. Alexander, Respondent, v. George Alexander, Appellant.

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


author: Bookes, J.

text:
    Emma T. McWhorter, Respondent, v. The Village of Ithaca, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Bookes, J.


text:
    Hubbard W. Putney, Appellant, v. Noah W. Simons, Respondent.
   Judgment of County Court and of justice reversed, with costs. Opinion by

Learned, P. J.


text:
    Nicholas Rink, Respondent, v. Stephen W. Thacher and others, Appellants.

   Judgment and order affirmed, with costs. Opinion by

Bookes, J.


author: Boardman, J.;

text:
    Catharine Phelan, Appellant, v. The City of Binghamton, Respondent.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.;

Learned, P. J., dissenting.


text:
    Samuel F. Vilas, Respondent, v. John B. Page and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Learned, P. J., and Boardman, J.;

text:
    Joseph E. Tyler, Appellant, v. Oliver P. Rose, Respondent.
   Judgment affirmed, with costs. Opinions by

Learned, P. J., and Boardman, J.;

Bookes, J., dissenting.


text:
    George A. Kent and others, Respondents, v. Leonard Friedman, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Patrick Mahoney, Appellant, v. Patrick Farley, Respondent.
   Judgment affirmed, with costs. Opinion by

Bookes, J.


text:
    John Mills and another, Respondents, v. Ellen M. Brown, Appellant.
   Judgment affirmed, with costs. Opinion by

Bookes, J.


text:
    The New York, Lake Erie and Western Railroad Company, Appellant, v. The Board of Supervisors of Delaware County, Respondent.
   Judgment affirmed, with costs, on opinion of Special Term.


text:
    The People of the State of New York, Respondents, v. Cyril Pearl, Appellant.

   tJudgment and conviction affirmed. Opinion by

Bockes, J.,

and by Learned, P. J., dissenting.


text:
    Rebecca Trull, Respondent, v. William Wood, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Adaline Wright, Respondent, v. Isabella S. Conger, Appellant, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    In the Matter of the Attorney-General v. The Continental Life Insurance Company. (Matter of Hancy.)
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


text:
    Matter of the Superintendent of the Insurance Department v. The Globe Mutual Life Insurance Company.
   Order reversed, motion denied, without costs.


author: Bookes, J.,

text:
    Henry C. Harvey and another, Appellants, v. George Van Dyke, Respondent.

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

Bookes, J.,

and by Learned, P. J., dissenting.


author: Haight, J.:

text:
    IRVING C. COOPER and Others, Appellants, v. WILLIAM JOLLY, Respondent, Impleaded, etc.

      Costs — right of the defendant to costs, when the plaintiff recovers upon some only of several separate causes of action set forth in the complaint — Code of Civil Procedure, sec. 3234.
    In this action, brought to recover penalties for violations of the acts to prevent • the adulteration and dilution of milk, the complaint set forth separately twenty-three causes of action. The answer was a general denial. Upon the trial the plaintiff,’ having given evidence tending to establish thirteen of the causes of action, recovered a verdict “ for two counts at fifty dollars each, amounting to one hundred dollars.” The defendant claimed to he entitled to tax costs in his favor under section 3234 of the Code of Civil Procedure, providing that where the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one . or more of the issues,' and the defendant upon the others, each party is entitled to costs against the adverse party.

      Held, that the claim was not well founded, as the defendant had not recovered upon any of the issues within the meaning of the said section.
    Appeal from an order made at a Special Term in Oneida county, and entered in Jefferson county, awarding the defendant’ costs and disbursements. - • _

      O. W. Thompson, for the appellants.

      Laming <& Rogers, for the respondent.
   Haight, J.:

This action was for tbe recovery of penalties under chapter 518 of tbe Laws of 1864, as amended by chapter 237 of tbe Laws of 1878. Tbe complaint sets forth separately twenty-three causes of action; tbe answer is a general denial. . Tbe case was tried at' tbe Jefferson Circuit, and upon tbe trial the plaintiff gave evidence tending to establish thirteen of the penalties. Tbe case was submitted to tbe jury and they rendered a'verdict in tbe following words, viz.: “ Tbe jury say they find a verdict for tbe plaintiff for two counts at fifty dollars each, amounting to one hundred'dollars.” Tbe clerk refused to tax defendant’s costs in tbe action, and thereupon be made a motion at Special Term to have tbe same allowed. Tbe court at Special Term ordered that tbe defendant recover costs against the plaintiff, and that such costs be taxed by tbe clerk. From such order this appeal is taken.

Tbe right of tbe defendant to recover costs depends upon tbe construction to be given to section 3234 of tbe Code. Tbe section is as follows: “ In an action specified in section 3228 of this act, wherein tbe complaint sets forth separately two or more causes of action upon which issues of fact áre joined, if tbe plaintiff recovers upon one or more of tbe issues, and the defendant upon tbe other or others, each party is entitled to costs against tbe adverse party, unless it is certified that tbe substantial cause of action was tbe same upon each issue, in which case tbe plaintiff only is entitled to costs.”

It is contended on tbe part of tbe respondent that tbe word recovers, as used in tbe section, is equivalent to and has tbe same meaning as tbe word succeeds; that tbe plaintiff having recovered upon tbe two counts, and the defendant having succeeded as to tbe other twenty-one counts, that be is entitled to costs. It becomes important to ascertain tbe legislative intent in reference to the enactment of this section. Tbe reviser in his notes says that this part of tbe section quoted has been taken from section 26, title 1, chapter 10, part 3 of tbe Revised Statutes, with some amendments which appear to be the logical effect of tbe changes in tbe rules of pleading made by tbe Code of Procedure; that tbe Court of Appeals, in tbe case of Watson v. Gardiner (50 N. Y., 671), bad, in substance, held that this section of the Revised Statutes was repealed by the Code of Procedure; that the repeal is deemed to have been a mistake and the section is'here restored.

Subdivision 2 of the section of the Revised Statutes (2 R. S., 616) referred to is as follows: “When there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on those issues which are found for him; and the defendant on those which are found in his favor.” It will be observed that there is a change in the phraseology in this, that the Code provides “that if the plaintiff recovers upon one or more issues, and the defendant upon the other or others, each party is entitled to costs,” etc. Whilst in the statute it is “ that the plaintiff shall recover on those issues which ar& found for him, and the defendent on those which are fovmd in his favorThe word “ recovers ” is substituted for the word “found” in the statute. We are not, however, satisfied that the change in the wording was intended to change the meaning of the rule that prevailed under the old statute. On the contrary it appears to us that the word recovers as used in the Code is intended to express and convey the same meaning that the word fovmd did in the statute. It thus becomes important to determine what the rule was when the statute was in force. Upon this question we have numerous reported cases. In the case of Johnson v. Fellows (6 Hill, 353) the action was in replevin; the declaration contained but one count. The jury found in favor of the plaintiff as to a part oí the property, and that the defendant was entitled to the residue, assessing the value of the property that the defendant was entitled to at twenty-four dollars. It was there held that the defendant was entitled to recover costs for the reason that there had ,been an express finding in his favor. In the case of Crittenden v. Crittenden (1 Hill, 359) the action was in ejectment; the declaration contained three counts. The jury found in favor of the plaintiff upon one of the counts and in favor of the defendant upon the other counts, and it was in that case held that the defendant was entitled to costs. In the case of the People v. Feeter (12 Wend., 480) there were several issues, and the plaintiff obtained judgment upon all the issues save one, which was found in favor of the defendant. That issue, not involving the merits, however, it was held that the defendant was not entitled to costs.

In the cáse of Briggs v. Allen (4 Hill, 538), which was an action for libel, tbe declaration contained five counts, the third relatingexclusively to the charge of malpractice. On the trial the plaintiffwaived all claim for damages on account of the third count. The plaintiff obtained a general verdict. It was held that inasmuch asno separate verdict was rendered for the defendant he was not entitled to costs.

It thus appears that under the statute the rule was that in order to entitle the defendant to recover costs there must be a verdict or finding in his favor upon one or more of the counts set forth in the declaration; that where there was a general verdict in favor of the plaintiff, and no separate verdict rendered for the defendant, he could not recover costs. Applying the same rule to the section of the Code under consideration it follows that there must be a separate and distinct recovery on the part of the defendant in order to entitle him to costs. In this case there was no such recovery. The plaintiff had a general verdict upon two counts of fifty dollars upon each, making $100 in all. The counts upon which the jury found in favor of the plaintiff are not specified. It is a general verdict in his favor to that extent.

Our conclusion is that the defendant is not entitled to costs, and that the order must be reversed, with ten dollars costs and disbursements.

Smith, P. J., and HaRdiN, J., concurred.

So ordered.


text:
    J. MORRIS CHILDS and ORLANDO J. CHILDS, Respondents, v. HORACE F. KENDALL, as Assignee of LORING BOYDEN and GEORGE J. WELLS, Appellant, Impleaded with THOMAS N. JARVIS, and MILTON B. JARVIS.

      Judgment creditor — right of, to Tyring an action (after the making ef a general assignment Tyg Ms judgment debtor), to vacate a fraudulent mortgage given before the execution of such general assignment; the judgment having been recovered after the execu-. tion of the assignment. ,
    A judgment creditor cannot maintain an action to have a chattel mortgage executed by his debtor declared fraudulent and void, where the latter has executed, after the execution of the mortgage and before the recovery of the judgment, a general assignment for the benefit of his creditors.

      Spring v. Short (90 N. Y., 538) followed; Leonard v. Clinton (26 Hun, 288) overruled.

      Appeal from a judgment, entei’ed in Oneida county upon tbe decision of tbe Special Term, in favor of tbe plaintiffs, and from an order refusing to open tbe case and admit further evidence.

      Waters, McLennan á¡ Dillaye, for tbe appellant.

      Adams <& Swan, for tbe respondents.
   Haight, J.:

Tbe plaintiffs are. judgment creditors of tbe defendants Boyden and Wells. Tbe decree adjudges two chattel mortgages executed by tbe defendants Boyden and Wells, to be fraudulent and void as against tbe plaintiffs, and directs tbat tbe assignee pay to tbe plaintiffs tbe amount of tbeir judgment. Prior to tbe plaintiffs obtaining tbeir judgment tbe defendants Boyden and Wells executed to tbe defendant Horace P. Kendall a general assignment of all tbeir property for tbe benefit of creditors. No question is raised in .reference to tbe validity of tbe assignment. Tbe question presented is: Can a judgment creditor maintain an action to have an instrument declared fraudulent and void when a general assignment lias been made for tbe benefit of creditors previous to tbe procuring of tbe judgment.

In tbe case of Leonard v. Clinton (reported 26 Hun, 288) it was held in tbe Third Department tbat tbe judgment creditor could maintain tbe action notwithstanding tbe fact tbat tbe debtor had made a general assignment. A different conclusion, however, was reached in this department ib tbe case of Spring v. Short (12 Weekly Dig., 360). This latter case has recently been affirmed in tbe Court of Appeals (90 N. Y., 538, 544). The opinion upon this question says: “ Tbe opinion of tbe G-eneral Term, in this case, bolds that tbe appellants are not in a position to attack the validity of the mortgage which is tbe subject of this action, for tbe reason tbat tbe mortgagor had, subsequently to tbe execution of the mortgage, and before the appellants bad docketed tbeir judgments, being insolvent, executed a general assignment of all bis property including the mortgaged premises in trust for tbe benefit of all bis creditors; tbat tbe good faith of tbe assignment not being questioned by tbe appellants, as to them or between tbe parties thereto it must be regarded as a valid conveyance of tbe premises, so far as tbis action is concerned, and that tbe assignee or tbe creditors he represents are tbe only persons who have any right to question tbe validity of tbe mortgage. Upon tbis ground tbe judgment of tbe trial court was affirmed.

“We are unable to perceive bow tbis position can be overcome. The appellants bad no ben upon tbe premises. Tbe assignment stands in them way and presents an insuperable difficulty to maintaining the defense sought to be interposed. They occupy tbe position of parties who have commenced an action in tbe nature of a creditor’s bill to set aside a fraudulent conveyance, and whose action is founded and prosecuted upon tbe ground that if they sue- ’ ceed, and tbe fraudulent conveyance is set aside; they have bens under tbe judgments upon tbe property which, if enforced, will enable them to collect their demands. In tbis case if tbe mortgage is declared to be invalid, tbe assignment still remains an obstacle which prevents tbe appropriation of tbe property directly to tbe payment of their judgments. Tbe assignment constitutes a prior and a better title which is entitled to a preference, and as it is not alleged to be fraudulent or invalid, tbe mortgage cannot be assailed in this action.”

Tbis authority appears to be in point and must dispose of tbe question presented.

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

Appeal from order dismissed, without costs.

Smith, P. J., and Haedht, J., concurred.

So ordered.


text:
    JAMES A. MOSHER, Respondent, v. MATTHEW P. CAMPBELL, Appellant.

      County Court — has jurisdiction over actions to compel the satisfaction of a mortgage.

    'Where a person has entered into a written agreement to pay and discharge a mortgage and has thereafter taken an assignment thereof to himself instead of causing the same to be satisfied, an action may be brought against him in-a County Court to compel him to satisfy and discharge the mortgage, and to pay to the plaintiff the damages occasioned by his failure so to do.

      Avery v. Wülis (24 Hun, 548) distinguished.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe decision of tbe County Court of Cayuga' county.

      J. Rosecranes, for the appellant.

      Jacob B. Decker, for tbe respondent.
   Haight, J.:

This action was brought in tbe County Court to compel tbe defendant to satisfy and discharge a mortgage, and for damages which tbe plaintiff bad sustained by reason of tbe defendant not having discharged it in accordance with bis agreement.

This action is founded upon a written agreement of tbe defendant to pay and discharge tbe mortgage in question. Instead of so doing be purchased and bad tbe mortgage assigned to himself. Tbe only question raised and discussed upon tbe appeal is the jurisdiction of tbe County Court. Section 15, article 6 of tbe Constitution, provides : Tbe County Court shall have tbe powers and jurisdiction they now possess until altered by tbe legislature. They shall also have original jurisdiction in all cases where tbe defendants reside in tbe county, and in which tbe damages claimed shall not exceed one thousand dollars,” etc. * * * “ They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature.” Section 340 of the Code provides that the jurisdiction of each County Court extends * * * to an action for the partition of real property, for dower, for the foreclosure, redemption or satisfaction of a mortgage upon real property.”

It is contended on the part of the appellant that this clause of the Code does not give jurisdiction to satisfy a mortgage upon principles of equity; tbat in the case under consideration it depends upon the right of the court to compel specific performance of a contract, and the case of Avery v. Willis (reported in 24 Hun, 548) is relied upon to sustain his claim. That action was brought to reform a mortgage, to mate it a lien upon certain real estate and for its foreclosure. The court held that the County Court did not have jurisdiction to entertain an action for the reformation of a mortgage ; that such jurisdiction was not given by the statute. That case we regard as clearly distinguishable from the one under consideration. The statute referred to does not give the County Court jurisdiction to reform- a mortgage, but does give the court jurisdiction to satisfy a mortgage, and such jurisdiction is not limited to cases of payments.

Our conclusion is that the County Court had jurisdiction to decree that the mortgage should be discharged in accordance with the written agreement of the defendant.

Judgment should be affirmed, with costs.

Smith, P. J., and Hardin, J., concurred.

So ordered.


author: Smith, P. J.:

text:
    DOCTOR F. JACKSON, Respondent, v. ANTHONY H. KASSEALL, Appellant.

      Livery stable keeper — lien of, upon horses kept under an agreement with the owner— rights of a chattel mortgagee —1873, chap. 498.
    Section 1 of chapter 498 of 1873 authorizes livery stable keepers and other persons keeping or hoarding horses, under any agreement with the owners thereof, to detain such horses until all charges due under the agreement shall have been paid; “provided, however, that notice in writing shall first be given to such owner in person or at his last known place of residence, of the amount of such charges and the intention to detain such horse or horses until such charges shall be paid.” Section 3 provides that “ from the time of giving such notice, and while such horse or horses are so detained and no longer, such livery stable keeper or other person shall have a lien upon such horse or horses for the purpose of satisfying any execution which may be issued upon a judgment obtained for such charges.”

      Held, that a livery stable keeper who had, under an agreement with the owner, boarded a horse upon which a chattel mortgage had been given and duly filed, could uot, by serving tbe notice required by tbe statute upon tbe owner or mortgagee, acquire, as against tbe mortgagee, a lien upon tbe borse for tbe charges incurred for bis keeping prior to tbe time of tbe giving of tbe notice, but only for such as should be incurred thereafter.
    That bis right to acquire such a lien was not affected by tbe fact that tbe mortgagee knew that be was keeping tbe horse under such agreement.

      Quasre, as to whether a lien for past charges could be acquired as against the owner.
    The statute gives no lien upon any wagons, harness or robes that may be kept with the borse, but only upon tbe'horse itself.
    Appeal from a judgment of tbe Monroe County Court, entered on a decision of that court rendered upon a trial by tbe court without a jury.

      J. 8. QarloeTc, for the appellant.

      D. C. Hyde, for tbe respondent.
   Smith, P. J.:

Tbe action is replevin. It was brought to recover tbe possession of a mare, cutter, harness with brass trimmings, a wolf robe and two borse blankets which were owned originally by William L. Palmer. The plaintiff claims the property by virtue of certain chattel mortgages executed by Palmer. The defendant claims a lien on the property, superior to the plaintiff’s mortgages, for the keeping and care of the mare and the care and storage of the other property under a contract with Palmer. One of the mortgages under which the plaintiff claims was executed by Palmer to one Peck, and Peck having died, the mortgage was assigned by his administrator to the plaintiff. The other mortgage was executed to the plaintiff. The history of the transactions out of which the dispute arises is as follows: On 8th of August, 1878, Palmer executed to Peck a mortgage upon a wagon to secure him for having indorsed a promissory note for $150, for the accommodation of Palmer, due in sixty days thereafter. On 24th February, 1879, Peck having paid said note and also forty dollars more on Palmer’s account, Palmer executed to him a mortgage upon the mare, cutter and harness to secure the payment to Peck of $190 in three months thereafter, with interest. On the day last mentioned Palmer, for a valuable consideration, executed to the plaintiff a mortgage upon the said wagon, and also upon all the property in suit to secure the payment of the sum of $500 in three months from the date of said mortgage, with interest. Each of said mortgages was duly filed. At the time- of the execution of the several mortgages, and for some time prior and subsequent thereto, the defendant kept a stable' for livery and boarding purposes, in the city of Rochester, and by an agreement with Palmer, made in February, 1878, he boarded the mare, and when she was at the stable he groomed and took care of her, and he cleaned, stored and took care of the rest of the mortgaged property, for all which Palmer agreed to pay him at the rate of twenty- dollars per month. Palmer used the mare and other property whenever and as he saw fit until the 28th July, 1879. On the day when the second mortgage was executed to Peck as above stated, Peck saw Palmer and the defendant at the stable, and caused Palmer to pay the defendant all he then owed him as such stable keeper, and afterwards and on the same day the defendant executed to Peck the said second mortgage, which fact the defendant then well knew. On 28th July, 1879, the Peck mortgages were assigned to the plaintiff. On the same day the defendant served on Palmer a written notice of which the following is a copy: “ To W. L. Palmer: Take notice that I claim a lien by virtue of the statute in such cases made and provided upon your mare named ‘ Dollie,’ cutter, one top buggy, one set single harness, and all other horse accoutrements now in my possession, for keep, care and storage of the same, to the amount of eighty-nine dollars and sixty-three cents,, and I intend to detain the said horse or mare, and said other property until such charges shall be paid; that said amount is for boarding said mare, being a balance for the same. I further notify you that I claim the same by virtue of a special contract with you therefor. Dated July 28, 1879, (signed) A. H. Kasseall.’ ” After-that day the mare was not used by anyone, and on the 1st day of August, 1879, the plaintiff, by his agent, demanded possession' of the property in suit from the defendant, and the latter refused to deliver possession until paid the sum of ninety-five dollars and seventy-two cents, claiming that he had a lien thereon for that amount as a boarding stable keeper. After such demand and on the same day, the defendant served on the plaintiff a notice of which the-following is a copy: “Rochester, August 1, 1879. To Doctor F.. Jackson: Take notice that the amount of my claim and charges against you for the care and keep and board of your brown mare ‘Dollie,’ is the sum of eighty-six dollars and ninety-three cents, and that it is my intention to detain such horse in my possession until such charges and all further charges for care, keep and board of said mare are paid. Yours, etc., A. H. Kasseall.” At the time when Peck received his mortgages, and afterwards, until his death in May, 1879, he knew that the property in question was kept by Palmer at said stable, and the defendant’s terms for keeping, care and storage thereof, and the plaintiff knew the same as early as May, 1879. TJpon these facts the question arises whether the defendant has a lien on the property in dispute or any part of it, which is.superior to the lien of the plaintiff’s mortgages. *

At common law a livery stable keeper and agister has no lien unless there be a special contract to that effect. The reason assigned in the book# is that he only keeps the animal intrusted to his charge without imparting to it any new value, and therefore he is not within the rule which gives a lien to mechanics, tradesmen and laborers receiving property for the purpose of repairing or otherwise improving its condition. (Grinnell v. Cook, 3 Hill, 485, and cases cited by Bronson, J., pp. 491, 492.)

There is no proof in the present case of a special contract giving a right of lien. The defense rests upon the provisions of chapter 498 of the Laws of 1872, the first section of which act is as follows: “ Section 1. It shall be lawful for all livery stable keepers and other persons keeping any horse or horses at livery or pasture^ or boarding the same for hire under any agreement with the owner thereof, to detain such horse or horses until all charges under such agreement for the care, keep, pasture or board of such horses shall have been paid. Provided, however, that notice in writing shall first be given to such owner in person, or at his last known place of residence, of the amount of such charges and the intention to detain such horse or horses until such charges shall be paid.” Section 2. Prom the time of giving such notice, and while such horse or horses are so detained and no longer, such livery stable keeper or other person shall have a lien upon such horse or horses for the purpose of satisfying any execution which may be issued upon a judgment obtained for such charges.” “ Section 3. This act shall take effect immediately.”

■ This statute was amended in 1880 (Laws 1880, chap. 115), but as the amendment was not adopted till after the defendant had given notice of his claim it does not affect the present case. '

It is to be observed that the statute gives no lien upon anything but the “ horse or horses,” for whose keeping the d ebt accrued. So that as to all the property in dispute, except the mare, the defense fails.

As to the mare, the question is whether the defendant had a lien, as against the plaintiff’s mortgages, for that part of his demand for the keeping of the mare which accrued prior to the time of giving notice of his claim. If he had not such lien, he is liable for the detention of the mare after she was demanded by the plaintiff. Clearly that is the case if his lien is to be regarded as having its inception at the time of giving notice to the plaintiff, because such notice was not given until after the defendant had refused to surrender to the plaintiff the possession of the property. The-result is the same if the lien arose on giving notice to Palmer, for the reason that when the plaintiff demanded the property, the defendant refused to deliver it unless he was paid the whole amount due him for the keeping of the mare, including that which accrued prior to the giving of notice to Palmer. All that he could properly require was that he should be paid so much of his claim as had accrued subsequently to the giving of such notice, and he having refused to give up the property unless he was paid his entire claim, it would have been an idle ceremony to tender the small sum that had accrued subsequently to the notice, and the plaintiff was relieved from the necessity of so doing.

It is clear, from the language of the statute, that the defendant had no lien until he gave notice as required by the act. And the real question is whether such notice had a retroactive effect, so as to give the defendant a lien, as against the plaintiff’s mortgages, for that part of his demand which accrued before the notice was given. "We think not. As we understand the statute, the notice operated-to give the defendant a lien, the same as a special contract to that effect, between him and Palmer would have done. But Palmer and the defendant could not have cut off the prior rights of the plaintiff under bis mortgages, by an agreement between themselves that the defendant should have a lien for the keeping of the mare prior to the agreement. Again, if 'a notice given under the act operates retrospectively, it is immaterial for the purposes of the lien at what stage of the period of the keeping the-notice is given; one given on the last day would be as effectual as one given on the first day. Such a construction would defeat the very object of requiring a notice to be given,' which evidently is to advise the owner and all others interested that a lien is claimed, and to enable them to take such action as they may deem necessary in view of such claim.

' There are no words in the act which indicate an intent that the notice, ¿hall be retroactive. The provision that the notice shall state the amount of the charges, is for the benefit of the owner. "We think it refers to the charges thereafter to be made, and has no reference to those which accrued before the giving of the notice.

It does not aid the defendant, that the plaintiff and Peck knew when they took their mortgages that the defendant was keeping the mare under the agreement with Palmer. Without the notice required by the act there could be no statutory lien.

If the defendants suffer a hardship it is the result of his delay-in giving notice. Ilis entire claim has accrued since the mortgages of 24th February, 1879, were given. At that time, as is found by the trial court, Peck caused Palmer to pay the defendant all he then owed him, and the execution of the mortgage to Peck on that day was with the defendant’s knowledge at the time. Had he given notice then, Peck might have taken steps to strengthen his security so far as to protect himself against the defendant’s claim.

The case of Scott v. Delahunt (65 N. Y., 128), cited by the defendant’s counsel, is not applicable to the present case. That was the case of a common-law lien on a canal boat for repairs, and it was held that the lien of the shipwright was superior to that of a prior mortgagee, who after default in the payment of his mortgage had suffered the mortgagor to remain in possession of the boat, running it as his own. The mortgagor was held under those circumstances to be authorized by the mortgagee to keep the boat in repair and to confer a right of lien thereon for repairs necessary to make her fit for navigation. The case has no bearing upon the question whether a notice under the act of 3 872 has a retroactive effect..

It was held by ‘the Court of Appeals, in Bissell v. Pearce (28 N. Y., 252), that a mortgagor of horses has no right to pledge them, or otherwise to create a lien upon them for their keeping, to the prejudice of the rights of the mortgagee. In the opinion delivered in Scott v. Delahunt, that case was distinguished from Bissell v. Pearce.

In what we have said we have not intended to deal with the question whether a lien can be created as against the owner for past charges. We have considered only the case now before us of a prior mortgagee.

Several exceptions were taken at the trial by the defendant’s counsel, but only one of them was noted in his points and that requires no comment.

The judgment should be affirmed.

HaRDIN and Barker, JJ., concurred.

Judgment affirmed.


text:
    JAMES B. HAYNES, Respondent, v. JAMES H. RUDD, Appellant.

      Duress — when threats of a lawful 'prosecution amount to duress — compounding a, felony — when the parties a/re not in pari delicto.
    The defendant, in whose employ the plaintiff’s son was, accused the latter of having embezzled money and proposed that the plaintiff should arrange the matter by giving his note, indorsed by his wife, for $350. The note was given and subsequently paid by the plaintiff to one who had acquired it in good faith before maturity. This action'was brought to recover the amount so paid upon the ground that the execution of the note was procured by duress. Upon the trial evidence was given tending to show that the defendant attempted to influence the action of the plaintiff by operating upon his family pride, his fear of disgrace and his desire to save his son from the ruinous effects of a prosecution, and thereby induced him to execute the note.

      Meld, that such threats so made amounted to such duress or pressure as would avoid the contract thereby obtained.
    That the fact that the note was given for the purpose of compounding a felony did not prevent the maintenance of the action as the parties were not in part delicto, the note having been procured from the plaintiff by duress.

      Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Wayne Circuit.

      T. W. Collins, for the appellant.

      W. B. Mason and L. M. Norton, for the respondent.
   Smith, P. J.:

The plaintiff’s son had been in the employ of the defendant and the latter complained to the plaintiff that his son had embezzled or feloniously taken money from his employer to the amount of several hundred dollars, and the defendant proposed that the plaintiff should arrange the matter by giving his note for $250, indorsed by the plaintiff’s wife, so as to charge her separate estate. Accordingly, a note was made and indorsed as proposed, and delivered to the defendant who transferred it before maturity to a bona fide holder by whom it was prosecuted and collected of the plaintiff. This action was brought to recover the amount so collected on the ground that the defendant procured the note by duress. Evidence was given at the trial, on the part of the plaintiff, tending to show ■that the note was extorted from the plaintiff and his wife by threats made by the defendant to prosecute the plaintiff’s son for the alleged crime, unless the note was given and by promises to forbear prosecution and to save him and his father’s family from exposure and disgrace if the note should be executed. The jury rendered a verdict in favor of the plaintiff for the amount of the note with interest.

The plaintiff had a verdict on a former trial which was set aside by the Court of Appeals, by reason of the refusal of the trial judge to charge the jury that if there was no fraud, duress or undue influence on the part of the defendant,, and the note was given simply to' compound a felojiy, the plaintiff was not entitled to recover. (83 N. Y., 251.) That error was avoided on the trial now under review and the principal question before us is whether there is any evidence of duress or pressure, by means of threats and promises such as would avoid the note in the hands of the original payee.

We are to assume that the testimony on that issue, adduced by the plaintiff, was believed by the jury although controverted by the defendant. That testimony very clearly warranted the conclusion 'that the defendant directly attempted to influence the action of the plaintiff by operating upon his family pride, his fear of family disgrace and his desire to save his son from the ruinous effects of a prosecution, whereby the plaintiff was' induced to execute the note. The learned counsel for the appellant contends that as the threats pi’oved were of nothing more than a lawful prosecution they did not constitute duress in a legal sense. But we think that when threats of a lawful prosecution are purposely resorted to for- the purpose of overcoming the will of the party threatened by intimidating or terrifying him, they amount to such duress or pressure as will avoid a contract thereby obtained. Eadie v. Slimmon (26 N. Y., 9), as we understand the report of the case, is in point. (See, also, Williams v. Bailey, 35 L. J., Ch., 717.)

The fact that the note was not given until a week after the threats were made does not alter the case. It was simply a circumstance to be considered by the jury in determining whether the act was the direct consequence of the dures6.

The appellant’s counsel contends that the trial judge erred in refusing to charge as requested that if the compounding a felony entered into and formed a part of the consideration of the note the plaintiff could not recover; also, that if the plaintiff’s motive in giving the note was in part to compound a felony he could not recover. The requests were refused properly we think. If the plaintiff’s act was induced by duress on the part of the defendant the parties were not in equal position in the eye of the law. They were not in ypa/ri delicto, and the plaintiff may recover of the defend- ■ ant notwithstanding each of them intended the compounding of a felony or the stifling of a prosecution. The case would have .been very different if the plaintiff, believing the charge against his son to be true, had acted from a desire to save him, uninfluenced by threats or promises on the part of the defendant.

We are of the opinion that the judgment should be affirmed.

HaediN and Haight, JJ., concurred.

Judgment affirmed.


author: Smith, P. J,:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HARLEM G. CHAMBERLAIN, as Testamentary Trustee, etc., of OSCAR L. CHAMBERLAIN, Deceased, Respondent, v. JOHN G. FORREST and Others, Assessors, and THOMAS J. GAMBLE, Supervisor of the Town of Mt. Morris, Appellants.
    Assessment-roll— the assessors cannot morrease the amount assessed, after notice of the completion of the roll has leen giren.

    Before July 1, 1882, one of the assessors of the town of Mt. Morris called on the relator and was informed hy him that the amount for which the estate in his hands, as trustee, was liable to taxation was $40,000. It had been assessed at that amount the preceding year. -The assessor entered this amount in his memorandum book, and at the meeting of the assessors in July it was agreed that the relator, as trustee, should be assessed for that amount. By mistake it was entered on the roll as $4,000. July twenty-fifth the roll was completed and notice was then given that complaints would be heard on August fifteenth. On August second one of the assessors changed the amount from $4,000 to $40,000. ‘

      Held, that he had no power so to do, and that the amount so added by him should be stricken from the assessment.
    Appeal from an order of the Special Term made in a proceeding by certiorari, under chapter 269 of the Laws of 1880, directing an assessment-roll made by the assessors of said town to be corrected by striking out part of the assessment against the relator contained therein.

      J. A. <& J. B. Vanderlip, for the assessors.

      T. J. Gamble, supervisor, in person.

      W. A. Sutherland, for the relator.

      John L. Morgcm, for cestuis que trust.

   Smith, P. J,:

The facts of this case are these: Before the 1st of July, 1882, one of the assessors called on the relator and was informed by him that the amount for which the estate in his hands as trustee was liable to taxation was $10,000, and the assessor so entered it on his memorandum boob. It bad been assessed and entered on the roll at that .amount the preceding year. When the assessors met after the first of July for the purpose of preparing the roll the memorandum book was examined and the sum of $40,000 was agreed upon as the value of the property for which the relator, as trustee, was to be assessed, but by mistake the amount was inserted in the roll at $4,000; and although the mistake was then discovered the assessors forgot to change it. The roll was completed twenty-fifth July, and notice was then given of its completion and that complaints would be heard on fifteenth August. At that time the assessment stood on the roll at $4,000. On or after'the second of August one of the assessors changed the amount to $40,000. On the grievance day the relator appeared before the assessors and objected to the change on the ground that the assessors had no authority to make it, and demanded that it be corrected, which they refused, and thereupon this proceeding was begun.

We think the Special Term decided correctly in ordering the assessment to be reduced to the amount at which it stood on the first day of August. The statute requires that on or before that day, in each year, the roll shall be completed. (1 Ii. S., 393, § 19.) And when completed notice thereof must be given. The object of the notice is to enable all parties interested to examine the,, roll, and for that purpose at least twenty days notice must be given after its completion. The roll, when completed, is in the nature of a judgment. The power of the assessors to alter it in any material respect, after its completion and notice thereof, is limited to acting upon complaints made by parties conceiving themselves aggrieved. This has been held frequently. (Westfall v. Preston, 49 N. Y., 352; Overing v. Foote, 65 id., 263; Clark v. Norton, 3 Lans., 484; S. C., 58 Barb., 434.) In this case the change in the assessment was made without the requisite notice, and we cannot resist the conclusion that it was in excess of the authority of the assessors. If they had made the change, and then published notice, lefore the first day of August it would have been well.

It is urged that the assessors merely corrected a clerical error. But the alteration of a judgment, or of an assessment in the nature of a judgment, by increasing its amount tenfold can hardly be called the correction of a clerical error.

It is also insisted tliat the relator was not injured by tbe change in the amount, and so the case is not within the act of 1880. It is enough that he has been assessed without due notice; whether or not he could have made just complaint if he had been duly notified, cannot be inquired into here.

The assessors mistook their remedy. Chapter 515 of the Laws of 1868 gives a remedy where, by a mistake in transcribing or copying the assessment-roll of the preceding year, property has been assessed at a valuation less than that appearing upon the original assessment-roll. In this case it is averred that the mistake occurred in copying from the memorandum book of one of the assessors. But it appears that the entry in the book corresponded with the amount in the roll of the preceding year, and there is reason for saying that the case is within the spirit if not the letter of the act last referred to. But without deciding that question it is enough to hold, as we do, that the assessors in changing the amount in the roll, as they did, acted without authority.

The order appealed from is therefore affirmed, but the question of the costs of this appeal is left to be determined at Special Term, if the relator shall be advised to make a motion for the purpose of charging the appellants, or either of them, with costs, upon the grounds specified in section 4 of the act under which the proceeding was taken.

HardiN and Haight, JJ., concurred.

So ordered.


text:
    MARTIN RUSSELL, Appellant, v. ORVILL DEAN, Respondent.

      Exemption from execution — when it is waived by a failure to assert it — Oode of Civil Procedure, see. 1391.
    Under an execution issued upon a judgment a constable levied upon a span of mules owned and used by the debtor in bis business of farming and boating. He was a householder and had no other team. It did not appear what other property he then had. He did not at the time the levy was made, or at any other time, claim that the mules were exempt.

      Held, that he thereby waived any exeipptjjvi to which he might have been entitled under section 1391 of the Code of Civil Procedure.

      Appeal from a judgment in favor of tbe defendant, entered upon tbe report of a referee.

      Howe c& Hice, for tbe appellant.

      C. W. Avery, for tbe respondent.
   Smith, P. J.:

Replevin for a span of mules. Defendant justified as the bailee of one Ostrander who purchased tbe mules at a sale under an execution against tbe plaintiff. The plaintiff claimed that tbe mules were exempt from levy and that no title passed by tbe execution sale. Tbe case comes up on tbe report of tbe referee alone. Tbe referee found that tbe mules were used by tbe plaintiff as a team in bis business of farming and boating; that be bad no other team, and that they were necessary to him in bis said business, but it did not appear by the evidence what other property tbe plaintiff bad at tbe time of the levy. Tbe referee also found that so far as appears tbe plaintiff did not make any claim to tbe constable when the mules were taken, or at any other time, that they were exempt; and be did not at any time make such claim to tbe defendant, but before tbe commencement of tbe action be demanded tbe mules of the defendant and tbe defendant refused to give them up. Tbe referee held as matter of law that as it did not appear but that the plaintiff bad an abundance of household furniture and working tools equally within tbe $250 exemption, and as be at no time elected and claimed the mules to be exempt, be waived bis right of exemption and tbe defendant was entitled to judgment.

The real question presented is whether, in the absence of proof that tbe plaintiff had other property covered by tbe $250 exemption, bis omission to claim that tbe mules were exempt was a waiver of tbe exemption: Tbe present statute (Code of Civil Fro., § 1391) is substantially like that which preceded it (Laws 1842, chap. 157, as amended by chap. 782, Laws 1866) so far as tbe question in band is concerned. Under the former statute it was held in Hoyt v. Van Alstyne (15 Barb., 568), which was an action for tbe conversion of a mare, that evidence that tbe plaintiff was a householder, having a family for which be provided, and that the mare was all the team be bad and that it was used in prosecuting tbe business in which be was engaged-, was enough to entitle him to the exemption. In Wilcox v. Hawley (31 N. Y., 648) it was said by Davies, J., that “ it was sufficient for the plaintiff to show that this horse constituted' his team; that he was a householder, and that his household furniture, workman’s tools and team did not, in the aggregate, exceed in value the sum of two hundred and fifty dollars.” But that remark was not intended to overrule Hoyt v. Van Alstyne, for the same judge also said that the view taken of the statute in that case was correct. It is probable that the precise question now up was not discussed by counsel in either of those cases. In Seaman v. Luce (23 Barb., 240) it appeared that the debtor had more than two horses, which were worth in the aggregate more than the exempt value fixed by the statute, and it was held that the officer levying on one of them was not a trespasser, unless the debtor claimed at the time that the horse levied on was exempt. In Smith v. Slade (57 Barb., 637) it was held that it was not necessary for the plaintiff to show affirmatively that he had not other articles exempted by statute of the. value of $250, or which, with the articles mentioned in the complaint, exceeded that sum. But in that case it was shown that the plaintiff claimed the property at the time <ff the sale as exempt from levy and sale on execution, and forbade the sale on that ground, mentioning each article by name. In Lockwood v. Younglove (27 Barb., 506), JohnsoN, J., said: “The position now taken is that before a party can recover for property taken on execution, as exempt property under the- act of 1842, he must show that he has not other property which-may be exempt under the act.” • To that position the learned judge said there were two conclusive answers in that case: In the-first place no such question was raised upon the trial.” Second. That “ the horse in question was claimed by the plaintiff as exempt property, and the sale forbidden on that ground.” Neither of those answers to the position exists in the present case. On the whole we think the Correct conclusion is that it not having appeared either that the plaintiff had not other property exempt under section 1391 of the value of $250, or that he at any time claimed the property in question to be exempt, such property must be deemed to have been in fact liable to execution. Assuming that he had .other property which was exempt under section 1391, he -waived his claim to the statutory provision in bis favor in respect to tbe property in question by omitting to assert it. Tbe case of Frost v. Mott (34 N. Y., 253), cited by tbe appellant’s counsel, related to property wbicb was specifically and absolutely exempt under tbe Revised Statutes. In Cantrell v. Conner (51 How., 45) tbe case of Frost is cited as the sole authority, and to tbe extent of that case only are we disposed to follow tbe decision in Cantrell’s case.

These views lead to an affirmance, and tbe same result may be reached by another way. Tbe referee found that the demand upon wbicb the judgment was recovered, to enforce wbicb tbe execution, by virtue of wbicb tbe mules were sold was issued, was a promissory note given to the defendant for the price of a team bought of him by tbe appellant and one Post; and that at tbe time of such purchase tbe appellant bad no other team than one bay mare worth fifty dollars, but that he made a team of that and one owned by bis father-in-law. It does not appear what use tbe team purchased of the defendant was put to. It not appearing that the appellant and Post purchased as merchants or dealers in horses, it may be assumed that tbe team sold was of tbe class of property exempt by tbe act of 1842, and copsequently any article exempt by that act was liable to levy to satisfy a judgment recovered for tbe price of such team. (Hutchinson v. Chamberlin, 11 N. Y. Leg. Obs., 248; Cox v. Stafford, 14 How. Pr., 519.) There are no other questions in tbe case requiring discussion.

Tbe judgment should be affirmed..

HaRDIN and BaeKeb, JJ., concurred.

Judgment affirmed.


text:
    HARRISON SPRAGUE and ELISHA W. GARDNER, Appellants, v. TURNEY W. RICHARDS and ANDREW W. RICHARDS, Respondents.

      Appeal — failure of the appellant to serve printed papers — General Rule No. 40 —■ what costs are allowed upon a motion made under such rule which results in the judgment below being af/wmed.

      A. defendant who had appealed from a judgment rendered against him in a County Court having neglected- to print and serve his papers, a third person who had been allowed to appear and protect his interest in the judgment appealed from, moved under General Rule No. 40, to have the case stricken from the calendar and for a judgment of affirmance. The motion was granted, with ten dollars costs, unless the appellant should serve the printed papers within thirty days. Upon his failure so to do a judgment of affirmance was entered in which were included twenty dollars for costs before, and forty dollars for costs of argument.

      Held, that this was proper.
    Appeal from an' order of the Monroe Special Term, striking out certain items of costs taxed by the plaintiffs and ordering a readjustment.

      E. W. Gardner, .for the appellants.

      J. Van Voorhis, for the respondents.
   Smith, P. J.:

The defendants appealed to this court from a judgment rendered against them in the County Court of Ontario county, in favor of the plaintiff Sprague. At the term of this court, held in June, 1882, Mr. Gardner was permitted to come in as a party plaintiff and respondent to protect such interest as he might have in the judgment. At the October term, Gardner having put the cause on the calendar, moved, under Rulé 40, to strike the cause from the calendar and for judgment of affirmance, on the ground that the appellants upon the former appeal had neglected to serve printed papers. The motion was granted with ten dollars casts unless the appellants should serve papers within thirty days. The papers not having been served, Gardner, after the expiration of thirty days, entered a judgment of affirmance and taxed his costs in which were included the following items, to wit: “Before argument twenty dollars; for argument, forty dollars.” By tbe order now appealed from those items were stricken out with ten dollars costs of motion.

"We think the items were taxable. Rule 40 of 1880 (Rule 41 of 1877), provides that “if the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move, on affidavit and on four days notice of motion, that the cause be struck from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor.” Under the order obtained by Mr. Gardner, in pursuance of that rule, he properly entered a judgment of affirmance, the appellants having 'neglected to avail themselves of the privilege of serving papers in thirty days, granted by the order. Upon such affirmance he was entitled to the same costs as if the judgment of affirmance had been rendered after argument. (Code of Civil Pro., §§ 3238, 3228.) On affirmance, the costs follow as a matter of statutory right. No order of the court was necessary to give them, and no order of the court could rightfully take them away. (Gray v. Hannah, 3 Abb. [N. S.], 183; Combs v. Combs, 25 Hun, 279.) No question is made but that the action is one of those embraced in section 3228. The items in question are given specifically by section 3251. 'And their allowance is in accordance with long established practice in like cases. The right to those items is not affected by the circumstance that ten dollars motion costs were given by the court on granting the order. The order was not absolute, but was conditional, and if the appellants had availed themselves of the privilege granted by the condition, the motion would not have resulted in an affirmance. The motion costs were allowed in view of that contingency.

The fact that the papers in the action are entitled in the name of the original plaintiff Sprague, as well as that of the respondent Gardner, does not deprive the latter of his right to the costs to which he has been subjected in protecting his interest in the judgment.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to strike out, etc., denied.

HardiN and Macomber, JJ., concurred.

So ordered.


author: SMITH, P. J.:

text:
    HENRY CRIBBEN and Others, Appellants, v. LOUIS SCHILLINGER, Respondent.

      Attachment — affidavit made by the plaintiffs’ attorney — sources of his knowledge must be stated — Oode of Giml Procedure, sec. 636.
    An attachment was granted herein upon an affidavit made by one of the plaintiffs’ attorneys, in which he stated that the amount named was due to the - plaintiffs "over and above all counter-claims, discounts and set-offs known to the plaintiffs or the deponent.” The affidavit stated that it was made by the attorney, because the plaintiffs resided out of the county, and that the deponent’s knowledge as to the debt was derived from a statement of the account upon which the action was founded, sent to him by his clients in a letter.

      Held, that the attachment was properly vacated upon the moving papers, as the affidavit did not show either that the attorney had any knowledge, or the sources of his knowledge, that the amount named was due, over and above all counterclaims known to the plaintiffs.
    Appeal from an order made at the Onondaga Special Term, vacating a warrant of attachment.

      M. M. Waters, for the appellants.

      Frank H. Hiscoek, for the respondent.
   SMITH, P. J.:

The motion to vacate was made upon the papers on which the attachment was issued. It was granted on the ground that the papers did not show that the plaintiffs 'are entitled to the sum stated therein, “ over and above all counter-claims known to plaintiffs,” as required by subdivision one of section 636 of the Code of Civil Procedure. The only affidavit on that subject was made by one of the attorneys of the plaintiffs residing in Syracuse. He stated that the sum specified was due to the plaintiffs, over and above all counter-claims, discounts and set-offs known to the plaintiffs or the deponent.” 'The fact that the affidavit was made by the attorney and not by the plaintiffs was sufficiently accounted for, it having been shown that the plaintiffs resided out of the State. The affidavit of the attorney might have sufficed, if it had appeared that he had any knowledge as. to the existence of countei’-claims, and perhaps it would have been ■ enough (though, as to that, we express no opinion) if be bad stated tliat be was informed by bis clients that none existed. But nothing of the kind appeared. All that the attorney knew as to the amount of the debt was derived from a statement of 'the account on which the action was founded, which he had received from his clients, but the statement .conveyed no information as to whether a counter-claim existed. As the attorney had no knowledge or information on that point, there was no proof whatever on the subject and that lack of proof was a jurisdictional defect. (Ruppert v. Haug, 87 N. Y., 141.) We do not say that a sufficient affidavit cannot be made by an agent, in any case, but when made by him, there should be proof that he has knowledge, or at least satisfactory information as to the essential facts stated by him, and where he acts upon information only, the sources of his-information should be stated and the reasons why the affidavit is not made by some one having knowledge of the facts.

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

HardiN and BARKER, JJ., concurred.

So ordered.


author: Macombeb, J.:

text:
    WILLIAM H. ENSIGN and Others, Plaintiffs, v. JOHN L. McKINNEY and Others, Defendants.

      Evidence — presumption that public officials haroe discharged ihei/r duty — ancient -deeds — admissibility of, in evidence — wh¿n the existence of a power of attorney-may be inferred from other facts..

    Upon the trial of an action of ejectment a deed, executed and recorded forty-eight year's before, was offered in evidence hy the plaintiffs. It was-executed hyone of the grantors personally, and hy him as the attorney in fact for the others. The officer taking the acknowledgment stated that the .grantor so-executing the deed was personally known to him to he the person who did so, and that he acknowledged that he executed the same as his act and deed, as-well as the act and deed of the other grantors.

      Held, that the presumption was that neither the officer taking the acknowledg- ■ ment, nor the county clerk recording the deed, would have respectively performed and verified such official acts had there not been presented to them legal proof of the existence of a written power of attorney, executed hy the-other grantors under their hands and seals.

      It seems, that an ancient deed, over thirty years old, is admissible in evidence upon its bare production, without proof of acts of possession under it being first given.
    The facts of this case stated and held to entitle the plaintiffs to have them submitted to the jury, with instructions that they should decide whether or not from such facts, and the inferences and presumption arising therefrom, the existence of a valid power of attorney was established.
    Exceptions ordered to be heard at the General’ Term in the first instance, after a judgment of nonsuit, entered in Cattaraugus county.

      JE. D. Northrwp and E. Darwin Smith, for the plaintiffs.

      Mr. Bolles, for -the defendants.
   Macombeb, J.:

The action is ejectment for the recovery of certain real estate of which the defendants are in possession. The plaintiffs’ title is derived immediately from Seth Rowley, to whom the premises are claimed to have been conveyed by Benjamin .Chamberlain, Alpheus Hawley, Jesse Morrison, and Josiah Hall and James Hall. The deed to Rowley was executed by Josiah Hall in behalf of himself and as attorney in fact for the other grantors, February 2, 1833, and was recorded in the proper clerk’s office. There was, however, no written power of attorney to Josiah Hall produced upon the trial .nor any record of it nor any direct evidence given that the same ever existed. The court, for that reason, excluded the deed as evidence and refused to permit the plaintiffs to go to the jury upon the question whether or not such power of attorney existed at the time of the execution of the deed.

Hnder the proofs'in the case it was established, that on the 17th •of August, 1831, the State of New York agreed to sell to Alpheus Hawley, a tract of land conveyed by the Holland Land Company to the State, located in Cattaraugus county, supposed to contain 100,632 acres, for the sum-of $28,210.26, and on the 16th of September. 1831, the State executed to him a certificate of sale thereof. In December of the same year Alpheus Hawley sold an undivided three-fifths of the land to Benjamin Chamberlain, James Hall and Josiah Hall. On the 22d day of November, 183J, an agreement of partition was made between all the parties interested in the land, including Jesse Morrison. This agreement contained a clause making it subject to all the sales, both by deed and contract, that had been made previous thereto. The residue of the evidence in the case in behalf of the plaintiffs, and which was offered for the purpose of showing that the deed to Rowley was duly executed by Hall for himself and as attorney in fact for the other grantors, was to the effect that Chamberlain, Morrison, Josiah and James' Hall were engaged as copartners in the lumbering and land business under the name of The State Land Company, in the years 1832, 1833, 1834 and 1835, having in the county of Cattaraugus upwards of 100,000 acres of land mentioned in the patent; that Josiah Hall was an attorney at law and had charge of the interests of the company and acted as the attorney of the company. It was also shown that the company had an office at Great Yalley, where the books, records, maps, and field notes were kept; that all the members of the partnership took part in the selling of lands, frequently meeting to discuss prices, and directed from time to time deeds to be given after full payment and accounting for the receipts of the consideration moneys; that Josiah Hall prepared the form of the blanks for deeds. Alonzo Hawley testifies that Josiah Hall was accustomed to make like deeds at about the time of the dare of this deed, that he knew he was deeding lands, and that he was on several occasions a witness to the deeds executed in the manner that this' one was. These sales and deeds, the witness says, he reported to the parties and kept them posted as to what land was sold. He further says he thinks that the rest of the company did not execute any deeds in those years, and knew of no person executing any deed except Mr. Hall and himself.

Plaintiffs also offered in evidence a deed from Benjamin Chamberlain to Alpheus Hawley, dated November 19, 1835, conveying an equal undivided half of lands described in the deed, except such as were marked “ sold ” on a map annexed. It appears that among those that were marked upon this map as sold, which was put in evidence, was the land conveyed to Seth Rowley. ' This was objected to by the defendants’ counsel and excluded. Three other deeds were also offered in evidence, one to John Hurlbert, another to Samuel S. Clark and a third to Grove Hurlbert, executed in the same rqanner that the one now in controversy was. These were also excluded.

It further appears that before making the partition deed above mentioned, the original part owners of the land had a full accounting between themselves, and the balance sheet was struck and the accounts all adjusted, and that the partition was made upon the basis of such accounting. Proof was also given of a thorough search for the power of attorney under which Mr. Hall was supposed 'to act, but it was unavailing. The court havings excluded the deed to Eowley, it followed as matter of course that all subsequent deeds from Eowley should be excluded also.

It thus appears that no power of attorney to Josiah Hall was recorded in Cattaraugus county either before or after the execution of the Eowley deed, nor is it shown that such a power of attorney as an existing instrument in writing, under the signature and seal of the principal as the - statute requires (2 Edmond’s Ed., 139, § 6), ever existed. Nevertheless, we think that it was error for the trial court to withhold the deed to Eowley from the consideration of the jury.

The plaintiffs were entitled to prove the existence of the power of attorney by secondary evidence, and we think that the facts which were received in evidence and which were offered upon that question and excluded, made such a case as -that the jury could be warranted in finding as matter of fact, that Jbsiah Hall acted under a legal power of attorney. The fact that the power of attorney existed is asserted upon the face of the deed itself. In Jackson ex dem. Livingston v. Neely (10 Johns., 374) the deed recited the power of attorney and it was held that a subsequent purchaser had notice thereof by reason-of its recital in the deed.

It has frequently been held that one partner may bind the rest of the firm by deed, executed in behalf of the firm under a parol authority or a subsequent parol adoption or ratification of the act. (Gram v. Seton, 1 Hall’s R., 262; Skinner v. Dayton, 19 John., 513.)

The deed was sufficiently proved as to Josiah Hall as a party to it in his own bfehalf, and not only did it contain the assertion of the power of attorney, but the instrument itself was admitted to record by the county clerk in February, 1833. The officer taking the acknowledgment of Hall both individually and as attorney in fact, properly certifies that Hall was personally known to him to be the same person who executed the deed and acknowledged the same as his act and deed as well as the act and deed of Chamberlain, Hall, Hawley and Morrison. It will, as it seems to us, be presumed in this ease, as it frequently is, that a public officer does his duty, and that neither the officer taking the acknowledgment nor the county clerk receiving the deed of record would have verified such official acts respectively had there not been present before them legal proof, which in this case would be an instrument in writing under the hands and seals of the principals, of the existence of such power of attorney, inasmuch as a long period of time had elapsed since the execution of the instrument, namely, forty-eight years, at the time of the trial.

In Forsaith v. Clark (21 N. H. [1 Foster], 409), it was held that in the case of an acknowledgment which purported to have been taken before a justice of the peace in Massachusetts, the presumption was that the register of deeds had sufficient evidence of the official character of the magistrate to entitle the deed to be recorded in New Hampshire. The court says: the register of deeds may have had plenary evidence of the official character of the magistrate at the time he recorded the deed, and that evidence is now lost. Every presumption is to be made in favor of the legality of the record after such a lapse of time.

Says Wharton in his work on Evidence, section 1318 : “ The acts of an executive officer of the government (e. g., sheriffs, registers, treasurers, surveyors) are presumed to be regular, so far as to throw the burden of proof on the party collaterally assailing such acts on the ground of irregularity.” The officer is assumed prima facie to have done his duty till the contrary is shown, and when the acts relate to the cases where a registry is established by law, the question is one of the burden of proof. Documents so protected by age and safe keeping are, prima facie, receivable in evidence; and the burden is on him who would resist their admission.” (Section 1359; Wood v. Terry, 4 Lans., 80; Cooper v. Bean, 5 id., 318; Lucas v. Baptist Church, 4 How., 353; Hartwell v. Root, 19 Johns., 345; Wood v. Morehouse, 45 N. Y., 368.)

When an instrument is over thirty years of age, which is frequently declared to be a period at which an instrument becomes an ancient deed, it is admissible in evidence upon its bare production, says G-reenleaf on Evidence, section 21. See also Cowen and Hill’s Notes (second volume, note 882, page 1269), where it is declared that a power to execute a deed will in many cases be presumed. (See Doe ex dem. Clinton v. Phelps, 9 Johns., 169; Same v. Campbell, 10 id., 475.)

In the two cases last cited possession under the deeds was shown; but whether the plaintiff is bound first to show some acts of possession under deed is, says Greenleaf, “ a point not perfectly clear upon the authorities; but the weight of opinion seems in the negative.” (Sec. 21.) In note to section 144 (13th ed.) it is further stated that the weight of authority at present seems clearly not to require such proof; “ and it is now agreed that, where proof of possession cannot be had, the deed may be read, if its genuineness is satisfactorily established by other circumstances,” citing among other cases Jackson v. Laroway (3 Johns. Cas., 283, 287); Jackson v. Luquere (5 Cow., 221, 225); Jackson v. Lamb (7 id., 431); Hewlett v. Cock (7 Wend., 371); Willson v. Betts (4 Denio, 201).

The plaintiffs,- we think, had the right to have all the facts which were proved, and which were offered to be proved, submitted to the jury for their consideration, and it wa's for them to say whether such facts and such inferences as they should properly adduce therefrom, together with such presumptions of law as they should be instructed existed, established the existence of a valid power of attorney in Josiah Hall to execute the deed to Rowley in behalf of his associates.

Moreover, the partition agreement between the owners (exhibit A, of the printed case), by this clause, namely, “the above described tracts being subject to all sales, both by "deed and contract, made previous to the date hereof,” taken in connection with the map and the other evidence above referred to, is a recognition of the regularity and validity of the Rowley deed,' or at least a proper case was presented by it for the jury to find such recognition and ratification by the principals.

It follows that the judgment must be reversed and a new trial ordered, with costs to abide the event.

Present — Smith, P. J., HaRDIN and Maoomber, JJ

Judgment reversed and new trial ordered, costs to abide <oent.


author: Hardin, J.:

text:
    ATWELL MARTIN, Appellant, v. MARTHA A. ROBERTS, Respondent.

      Married women — a/re liable for money borrowed by them, independent of the uses to which they may apply it.

    A married woman is liable upon a several promissory note given by herself and her husband for money borrowed by and loaned to her, without regard to the purposes for which the money was borrowed or used. If she borrowed it she is liable to repay it, whether it was expended for the benefit of her husband or for that of her separate estate or business, or disbursed by her for any other purpose.
    Appeal from a judgment, entered in Oneida county for the defendant on a verdict, and from an order denying a motion for a new trial- upon the minutes of the justice before whom the action was tried, and also from an order denying a motion for a new trial on the ground of newly discovered evidence.

      IS. II. JRisley, for the appellant.

      Walter Ballou, for the respondent.
   Hardin, J.:

Plaintiff, in his complaint, avers that he loaned to the defendant April 13, 1872, “the sum of one hundred dollars for the benefit ol her separate estate, it being the consideration for the note set out in the complaint, which was the several note of the defendant and her late husband, Owen L). Roberts.” '

The answer of the defendant denied the allegation, and set up that defendant was a married woman when the note was executed and delivered, and averred “ that the consideration for the note mentioned in the complaint was money borrowed by her husband, Owen D. Roberts, to be used by him in his business, and that the same was received by him, and this defendant signed said note as surety for her said husband, all of which was known to the plaintiff at the time said money was loaned, and said note executed and delivered.”

Hpon the trial the plaintiff gave evidence tending to show that the loan of money ,was to the defendant; that the money was handed to her, and “ she looked it over ” and replied there was $100, and in the presence of the plaintiff told Mr. Roberts to go and .pay that on her premises and bring her a receipt.” Defendant gave evidence tending to support the averments of her answer.

The court submitted the case to-the jury, and a verdict was rendered for the defendant. The learned judge instructed the jury that “ in this case it is incumbent upon the plaintiff, in order to recover either, to show first that the money was m fact applied for the benefit of the separate estate of the defendant * * * . * or prove that the money was borrowed on her part for the avowed. purpose of applying the same for the benefit of her estate, and the loan was made and the note taken in reliance upon such representation. ‘ One of these two things must be established, either one or the other, either being established, the plaintiff can recover.’ * * * One or the other of those things must be proved to your satisfaction. If neither was proved defendant is entitled to the verdict.” No further request was made for any further instructions to the jury.

But as we understand the late cases, the court might have properly instructed the jury that if they found the money was loaned to the female' maker of the note, this defendant, then she was liable upon the note given therefor. (Tiemeyer v. Turnquist, 85 N. Y., 520.) In’ that case Finch, J., speaking of the rights and obligations of married women, says: If she buys on her own account she must expect to' be herself liable for the price.. No law prescribes or limits the kind or character of property which she may acquire, nor does it dictate what she shall do with it when it becomes her own. If it was money or land she might consume it in support of her family, and it is none the less her separate property because she chooses not to hold it as such, but consumes it for the benefit of others as well as herself. It is enough that it is hers; hers to keep, or give away, or sell or consume in the support of her family.” Nothing was said in Broome v. Taylor (76 N. Y., 564) inconsistent with the doctrine we have just quoted, as it did not appear that the bond in, question was given for a loan to the female defendant and obliger.

Cashman v. Henry (75 N. Y., 103) held that a married woman was liable for purchases made by her, although she had no antecedent estate to be benefited, and although the purchase was not made for the purpose of a trade or business. So in the case in hand, if the defendant was the borrower she was liable to repay the money. This would be so, whether she gave the money she borrowed to her husband, expended it for his benefit or disbursed it for herself or through him as her agent, for the benefit of her separate estate, or in her separate business or otherwise. We are brought to see, therefore, that it was very important to the plaintiff’s right to recover, that the jury should be told that a borrowing by her, as the plaintiff had stated was the case, wa's sufficient to warrant a verdict for the plaintiff. The charge did not contain that proposition untrammeled,■ clear and independent as a sufficient proposition upon which, being found, the jury might hinge a verdict for the plaintiff. When the plaintiff rested he reserved the -right to recall the plaintiff who, as the case states, was not there in the court room. The defendant took the case and put the defendant upon the stand, who denied the facts stated by the plaintiff tending to show that the loan was to her, and not to her husband, and she called another witness to corroborate a part of her testimony. Then the plaintiff took the case and was recalled as a witness and asked, viz.: “What was said between yon and Mrs. Roberts on that occasion on 'the subject of this dispute claimed ? ” This was objected to as immaterial and reopening, and the objections were sustained and an exception taken.

The witness had said he had a conversation with the defendant at North Lake after the suit was commenced, and we then must assume the object of the question was to show that she made statements in that conversation inconsistent with the evidence she had just given. Certainly the question called for evidence which bore upon the issue between the parties in respect to the loan, and therefore it was material. Under the circumstances attending the reservation of the right to recall the plaintiff, and in light of the fact that the defendant had just given her version of the transaction, we cannot say that the question could properly be excluded, as a matter of discretion.

So far as the evidence would bear upon her credibility as a witness, it could hot be said to be a reopening of the case. It was the first stage of the case which had come to plaintiff when it was competent for him to show any statements of hers inconsistent with his evidence. We think the ruling was-too severe upon the plaintiff, and that the question propounded to him was proper at the stage of the case when it was put. Henry v. Lowell (16 Barb., 268) is not in point, as in that case the offer was to give further evidence as to plaintiff’s injuries in an action of assault a,nd battery. After the defendant had rested it was properly held that the refusal to reopen the case was a proper exercise of discretion by the trial court. Nor is Chapman v. Brooks (31 N. Y., 87) in point, as the question put in that ease presumptively had no bearing upon the. case, and nothing was said to the trial judge to call his attention to the bearing of the question upon the issue. Second. As to the motion ' for a new trial upon newly discovered evidence, we think it was properly disposed of at Special Term, and we concur in the views expressed by Merwin, J., in denying the motion.

The judgment and order denying a new trial, made on the judge’s minutes, should be reversed and a new trial ordered, with costs to abide the event, and the order denying a new trial made on the ground of newly discovered evidence should be affirmed.

Smith, P. J., and Haight, J., concurred.

So ordered.


author: Hardin, J. :■

text:
    In the Matter of the General Assignment for the Benefit of Creditors of JAMES T. FULTON, Jr., to CHARLES M. VALLEAN and JOHN T. BUSH.

      Assignee for the benefit of creditors — his commissions are to be computed upon the ' moneys actually receimed —1877, chap. 466, sec. 26, as amended by sec. 7 of chap. 318 of 1878.
    Assignees for the benefit of creditors sold' certain real estate which had been transferred to them by the assignor, subject to two mortgages existing thereon at the time of the assignment. The assignment contained no specific direction requiring them to pay the mortgage debts. In their accounts they chárged themselves with the amount actually received, that is, the purchase price less the amount of the mortgages.

      Held, that they were entitled to receive commissions upon the amount of money actually received and not(upon the full price for which the property was sold. (Coxy. Bchermerhoi'n, 18Hun, 16, distinguished.)
    Appeal' by Charles M. Yallean, one of the assignees and a creditor, from that part of the decree of the Niagara County Court made on a final accounting by tbe assignees, which allowed John T. Rush the appellant’s co-assignee commissions on $119,000, the unincumbered value of certain of the assigned property, instead of on $31,500 the amount actually received in cash by the assignees for the incum. bered interest sold. There was some additional personal property. It was claimed by the respondent that the assignees were entitled to commissions of five per cent on, $125,674.90, and by the appellant that the commissions should be upon $38,174.90, the latter being the sum which actually came into their hands. The county judge was of the opinion that the commissions should be allowed on the full value of the property sold and so allowed them.

      H. G. Tucker, for the appellant.

      O. R. Piper, for the respondent.
   Hardin, J. :■

"What the commissions should be allowed depends upon a construction of section 26 of the Laws of 1877 (chap. 466) as amended by section 7 of chapter 318 of the Laws of 1878, which provides that the assignee or assignees shall receive the commissions specified “ on the whole sum which will have come into his or their hands.”

That section received a construction by the Court of Appeals, In the Matter of the Assignment of Hulburt (89 N. Y., 259), where the same case (reported in 10 Abb. N. C., 284) was reversed. It was held that the words of the statute refer to the money actually received, not to the property assigned.

In the case before us, the assignees found the real estate was incumbered by two mortgages, one for $70,000 and one for $17,500. There was no specific direction to the assignees to pay the mortgage debts.

The case differs from Cox v. Schermerhorn (18 Hun, 16), much relied upon by the county judge. In that case the executors were responsible for the whole amount of such sales, and it was their duty to receive the proceeds of such sales, pay off the incumbrances if any and dispose of the balance of such proceeds as directed by the will.

When they rendered their accounts they charged themselves with the whole sums received and paid, and in those charges they were credited with the payment of $87,000 of mortgages.

By the terms of tbe trust they were authorized to sell the real estate devised to them and apply the proceeds - to the payment of the incumbrances. Gilbert, J\, says, “ the executors were liable’ for the price for which the property was sold.”

In the case in hand the assignees only charged in their accounts the moneys which they actually received. They ought not to receive commissions on a greater sum. (In re Woven Tape Skirt Co., 85 N. Y., 506; In re Dean, 86 id., 399.)

That part of the decree of the County Court of Niagara appealed from must be reversed, and the proceedings remitted to that court with directions to amend its decree, so as to allow the assignees commissions only upon the amount of money received by them, with costs of this appeal payable by the respondent Bush.

Smith, P. J., and Haight, J., concurred.

So ordered.