author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LEWIS SALKE, Respondents, v. JAMES TALCOTT and THE MARINE COURT OF THE CITY OF NEW YORK, Appellants.

      Appeal to the Common Pleas from an order of the Marine Court granting a new trial — the stiqmlation required hy chapter 545 of 1 874 must he given upon it — ■ power of the appellate court, when the stipulation is not given — writ of prohibition — lohen it will not he granted.

    Upon the trial of an action brought in tlie Marine Court of the city of New York by one Talcott, against one Sallee, Talcott recovered a judgment, which was, upon appeal to the General Term .of the Marine Court, reversed, and a new trial ordered. Talcott then appealed to the General Term of •the.Court of Common Pleas, without giving, the stipulation, required by chapter 545 of 1874, to the effect that judgment absolute might be ren- " dered against him in the event of the affirmance of the order directing a new trial. The Common Pleas affirmed the order of the General Term of the Marine Court, directing a-new trial. Sallee thereupon, claiming that the Common Pleas should have ordered a judgment absolute in his favor, procured a writ of prohibition, restraining Talcott and the Marine Court from taking any further proceedings in the action.
    Upon an appeal from the order granting the said writ, Held, that in the ab- • sence of the stipulation required by the act of 1S74, the Court of Common Pleas could not have ordered a judgment absolute in favor of Salkc.

      That if the appeal could be taken, without any stipulation having been given, the Common Pleas in considering the case, were, by subdivision 3 of section 48 of chapter 479 of 1875, vested with a discretion as to the disposition to be made of it, which discretion was not reviewableat a Special Term of the Supreme Court on an application for a writ of prohibition.
    That if the relator was aggrieved by any irregularity in the form of the judgment of the Court of Common Pleas, he should apply to that court for the correction of -the judgment.
    That if the Marine Court had no authority to proceed‘ further with the case, the relator could protect himself by raising the proper objections and by taking the proper exceptions when the case should be moved for trial, and by correcting any erroneous rulings thereon by appeal.
    That the order granting the writ should be reversed and the writ quashed.
    Appeal from an order granting an application for a writ of prohibition restraining the justices of the Marine Court from entertaining or trying the cause of James Talcott against Lewis Salke.
    That suit was commenced in the Marine Court in November, 1875, and was tried on December 23, 1878, before Mr. Justice Goepp and a jury, and resulted in a verdict being directed in favor of James Talcott, the plaintiff. From this judgment an appeal was taken by Lewis Sallee to the General Term of the Marine Court, Where, on October 18, 1879, the judgment entered upon the direction .of the trial judge was reversed and a new trial ordered. From this order of the General Term of the .Marine Court, reversing the judgment in favor of the plaintiff, Talcott, and ordering a new trial, Talcott appealed to the General Term of the Court of Common Pleas, without giving the stipulation required by section 9 of chapter 515 of 1871, to the effect that, if the order should be affirmed, judgment absolute should be ordered against the appellant. The Common Pleas affirmed the order of the General Term of the said Marine Court and ordered a new trial. Salke 'then applied for and procured this writ, claiming that judgment absolute should have.been, and was, in legal effect, ordered by the Common Pleas.

      Thomas <& Wilder, for the appellants.'

      JR. 8. JNeweombe, for the respondents.
   Davis, P. J.:

For several reasons the writ of prohibition in this case was improperly granted:

I. The appeal from the order of the General Term of the Marine Court granting a new.trial was not accompanied by the stipulation required by chapter 545 of the Laws. of 1874. In Gordon v. Hartmann, the Court of Appeals held that “there can be no appeal from an order of the Marine Court granting a new trial without the stipulation” required by the act of 1874. The court also held that the provisions of chapter 479 of the Laws of 1875 had not abrogated or repealed the provisions of the act of 1874. That decision is of course controlling, and it follows that the Court of Common Pleas, whatever else it might have done, had no power to render judgment absolute, against the. appellant from the order granting the new trial. The order of the Common Pleas, in affirming the order of the Marine Court, did not render judgment absolute against the appellant; and it appears from the opinion of the General Term that it did not intend to do so. To hold, in a ease where the court not only had no power’ to render such a judgment, and did not render it but declared emphatically its intention to the contrary, that the law will regard what it did do as equivalent to such a judgment, would be a novel exercise of the authority of this court under the writ of prohibition. The -legal effect of the judgment of the Court of Common Pleas was to remand the case to-the Marine Court for such action as is directed by the order of the General Term of the latter court.

II. The absence of the stipulation on the appeal from the order, assuming that the appeal was regular under the act of 1875, took the case out of the provisions of the act of 1874, and left the Court of Common Pleas to the exercise of the discretion vested in that court in such cases by subdivision 2 of section 43 of chapter 479 of the Laws of 1875. This was the view taken by the judges of the Conimon Pleas (for reasons specially assigned in the opinion). The exercise of that discretion is not reviewable at a Special Term of this court on the extraordinary writ of prohibition. >

III. The relator, if aggrieved by the judgment of the Court of Common Pleas because of irregularity of form, had a plain remedy by application to that tribunal for the correction of the judgment. This court should not interfere by prohibition while so simple and easy a remedy lies open to the relator.

IY. If there were no lawful appeal which could give the Court of Common Pleas jurisdiction, as seems to be the view of the Court of Appeals under the statutes, the case has remained in legal contemplation, in the Marine Court under and subject to the order of the General Term granting the new trial. That court is proposing to do nothing more than to proceed in the discharge of its. judicial duty, to a new trial of the cause' in conformity to the judgment of the General Term. There is therefore no more reason for interfering with the functions of that tribunal in this case by a writ of prohibition, than there is to arrest all its functions by similar process. If the court is assuming to act without authority, the relator can protect himself by raising the proper objections and by exceptions, at the' time the case is moved for trial and during the trial, and by correcting the erroneous rulings if any, by appeal. His right depends upon questions of law which may be presented and all errors affecting the same corrected in the ordinary proceedings in the action, without resort to a writ designed for purposes foreign to the review and correction of errors which occur in the progress of the trial and decision of causes.

The order should be reversed and the writ quashed, with costs.

Beady and Baerett, JJ., concurred.

Order reversed, with costs and disbursements, and the writ quashed.

        Gordon v. Hartman, 9 Weekly Digest, 293. — Rep.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN O’BRIEN CLARKE, an Infant, by JOHN F. CLARKE, his Guardian ad litem, Respondent, v. SARAH BOREEL, Appellant.

      In what actions the summons may be served by publication — what must be shoion to authorize the entry of a judgment by default in such a case — Code of Civil Procedure, % 685, 1317.
    In this action, brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, the latter was personally served with the summons and complaint oil March 4, 1880, at Nice, in France, where she resided, in pursuance of an order directing the service of the summons by publication. On April 16, and before the time for the defendant to appear and answer had expired, she moved to set aside the order directing the service of the summons by publication, on the ground that, as the action was one in which an attachment could not issue, no judgment could, under section 1217 of the Code of Civil Procedure, be entered against her by default.

      Held, that, as the defendant’s time to appear and answer had not expired when the motion was made, and'as no attempt to enter a judgment by default had been made, the motion was properly denied as premature.
    That the order for the service of the summons by publication was properly granted, even though the plaintiff might not thereafter be able to show such a state of facts as would authorize him to enter any judgment against the defendant in case she failed to appear or answer.
    Appeal from an order made at a Special Term, denying a motion to vacate an order directing the service of tbe summons herein to be made by publication.

      Joseph G. Choate, for the appellant.

      Ira D. Warren, for the respondent.
   Davis, P. J.:

It is not objected by the appellant that the affidavit on which the order was made is insufficient in form. The point presented is that the order is irregular and invalid, because under the Code no judgment could be entered in the action on the default of the defendant. This point rests upon the provisions of section 1217 of the Code of Civil Procedure, which provides that “ a judgment shall not be rendered for a sum of money only, upon an application made pursuant to the last section (1216) except in an action specified in section 635 of this act.” Section 635 relates to and provides for warrants and attachments, which it declares may be issued “ when the action is to recover a sum of money only, as damages; for a breach of contract other than a contract to marry; wrongful conversions of property and any other injury to personal property in consequence of negligence, fraud or other wrongful acts.” This section does not include actions for injmies to the person. This suit is for the recovery of damages for injuries to the person, alleged to have been caused by the negligence of the defendant, and no attachment has been or could be issued at the time of obtaining the order of publication. The defendant is a nonresident of this State, and resides at Nice in France, where the summons and other papers were served on her personally on March 4r.1880. ITer notice of motion to set aside the order of publication was served on April 16, 1880. The time for her appearance in the action had not expired wheii the notice of motion was given, an’d she was neither in default nor in danger of judgment being taken at that time against her.

The motion is based upon the idea that because no attachment had been or could be issued against defendant’s property, and no judgment could be entered against her by default without proof of such attachment as required by section 635 of the Code, therefore the court has no jurisdiction to make the order of publication. The idea is a mistaken one. The court had jurisdiction of the cause of action. The injury occurred in the State, to a citizen and resident. The order of publication is one step toward obtaining jurisdiction of the person of the defendant who is a non-resident. It was clearly in the power of the court (and it was its duty on a proper case shown) to take that step. The order was neither invalid nor irregular, because it might happen that it would not result in obtaining jurisdiction of the person of the defendant in such form as to enable the rendition of a judgment for the recovery of the damages sought by the complaint. That was a contingency. If the defendant chose to appear in the action after the service at Nice, the jurisdiction of the court, both of her person, and of the cause of action, would be complete; and its power to give judgment independently of sections 1217 and 635 would be perfect. Hence it was entirely proper and regular to make the order, although the plaintiff might fail to be able to show ■ afterwards a state of facts that would entitle him to judgment.. At the time the motion was made the defendant’s time to appeal’, or to appear and answer, had not expired. It had not begun to run. Non constat, that the defendant would not appear'in the action, and thus cure all possible defects. The plaintiff was at least entitled before his proceedings could be arrested, to claim that at least the time within which she could appear and answer must fully expire. If he then attempted to enter judgment by default, tbe question of his right to do so could properly be raised. Or if he entered judgment; a motion to set it aside would bring before the court the question whether jurisdiction of the person of the defendant had been properly acquired. It is not the order of publication that confers jurisdiction of the person in such cases. It is the subsequent growth and ripening of events which may or may not add jurisdiction of the person of the defendant to jurisdiction of the subject-matter. The plaintiff: is entitled to use the means provided by law to produce their concurrence if he can. His failure to do that may defeat his further prosecution of the suit, but not till ■ such failure is complete. A.non-resident might as well move to set aside a summons which had been issued to a sheriff:, with a view to service whenever an opportunity should occur, on the ground that no jurisdiction was obtained because no proof could be made that would entitle judgment to be entered in the action by. default, as required by the Code. The answer to such a motion would be that the plaintiff is entitled to try to get jurisdiction of his person in any lawful ikay he can. There seems no difference in principle between the cases, though of course one in form.

The motion was premature. The questions made were not up; for, as yet, the plaintiff had taken no steps beyond that provided by the Code, to enable him to try and get the defendant to submit' ex débito justitim to a trial of his demands for the alleged personal injuries. The order should be affirmed, ‘with $10 costs of appeal, besides disbursements, but without prejudice to any motion that may be made if judgment shall be entered by default.

Barrett, J., concurred.

Present — Davis, P. X, Brady and Barrett, XT.

Order affirmed, with $10 costs, and disbursements.


author: Ingalls, J.:

text:
    DAVID WATTS, Survivor of HUBBARD ARNOLD, Appellant, v. WILLIAM D. SHIPMAN, as Assignee of WILLIAM BUTLER DUNCAN and others, Respondents.

      Trust for the payment of outstanding checks of its creator — w hat is sufficient to establish one — a general assignee of the creator of the trust takes subject to it.

    The firm of Duncan,' Sherman & Co. had, for many years prior to July 26, 1875, been engaged in carrying on business as bankers in the city of New York. To settle claims held against them, by persons who did not keep accounts with them, they were accustomed to give to such persons what were called ‘‘cashier’s checks,” which checks were cashed, through the clearing-house, by the National Bank of the State of New York, in pursuance of an arrangement made between it and the said firm, by which the latter agreed to protect the bank for all payments thereof which it might make. On the morning of July 27. 1875, the said firm, having then largely overdrawn its account with the said bank, and being then largely indebted to it, delivered to the attorney for the said bank a letter, addressed to its president, stating that they had so overdrawn the account, requesting the bank to pay such overdraft, and transferring to it certain securities, which were delivered, with the letter, to the attorney, who delivered them to the said president before 10 o’clock of the morning of July 27. The securities so deposited were sufficient in value to pay all the drafts and checks which had then been drawn by the said firm in accordance with the arrangement made with the said bank, including the one upon which this action was brought. The securities were so furnished and delivered in pursuance of the arrangement by which the bank was to be protected in all payments that it might make of certified checks and cashier’s checks, drawn by the said firm. On the same day, but subsequent to the delivery of the letter, the said firm made a general assignment, for the benefit of its creditors, to the defendant, Shipman.
    On .TMy 26, 1875, the said firm of Duncan, Sherman & Co., being indebted to the firm of which the plaintiff is the survivor, delivered to it a cashier’s check for $6,665.63, which was on that day deposited by the said firm with the Fourth National Bank of the City of New York, and which check had, prior to the deposit of the securities with the bank, passed the clearinghouse. Payment of the check having been refused by the bank, this action was brought by the plaintiff against the firm of Duncan, Sherman* Co., the general assignee, Shipman, and the National Bank of the Stale of New York, to enforce its payment.

      Held, that by the transfer of the securities and the acts of the parties, a valid trust had been created for the payment of all checks and drafts which had, at the time of the deposit, been drawn by the firm of Duncan, Sherman & Co.
    That the trust included and applied to such checks and drafts as had been then drawn, but not yet presented, as well as to those which had already been presented to and paid by the bank.
    That the holders of such'checks and drafts acquired, in equity, such an interest in the securities so deposited as to create in their favor a preference over the creditors claiming under the general assignee.
    That the plaintiff was entitled to recover.
    Appeal by tbe plaintiff from a judgment in favor of tbe defendants, entered upon a trial had at a Special Term.
    This action was commenced by the firm of X). Watts & Co., as plaintiffs, against the copartnership firm of Duncan, Sherman & Co., William D. Shipman, their assignee for the benefit of creditors, and the National Bank of the State of New York, to enforce the payment of a certain “cashier’s check” for $6,665.63, made by Duncan, Sherman & Co., in favor of D. Watts & Co., July 26, 1875, the day preceding tlieir insolvency and assignment. Bor the payment of this check the plaintiffs claimed that Duncan, Sherman & Co. had delivered to the National Bank of the State of New York certain securities, constituting a trust fund, to meet this and certain other outstanding obligations of Duncan, Sherman & Co., to the benefit of which the plaintiffs and the holders of such other obligations were entitled, in preference to the general creditors of Duncan, Sherman & Co.
    Duncan, Sherman & Co. having, during the pendency of the action, been discharged in bankruptcy, the action was discontinued as to them by order of the court.
    Mr. Arnold, one of the plaintiffs, having died, the action was continued by his surviving partner.
    The issue raised by the pleadings was whether the securities delivered to the National Bank of the State of New York, for the payment of the cheek in question and other checks, constituted a trust fund for that purpose, for the benefit of the plaintiffs, or whether by the assignment they passed- to the assignee, free from any claim or equity on the part of the plaintiffs %

      William Allen Butler, for the appellants.
    The transaction, as proved, constituted a specific appropriation by Duncan, Sherman & Co., of the securities transferred to the National Bank of the State of New York, as a fund for the payment of the “cashier’s check ” held by plaintiffs, which will be upheld in equity for their benefit. (Marine de Fire Ins. Bcmh of Georgia v. Jaimeey, 1 Barb., 486; 3 Sandf., 257; Curtis v. Tyler, 9 Paige, 432; Exp. Warmg, 19 Yes.; 350; S. 61, ,2 Rose Bankr. Rep., 182; Exp. Pa/rr, Buck’s Cases in Bankruptcy, 191, 196; Exp. Perfect, Montagu Bankr. Rep., 25; Exp. Prescott, 3 Deacon & Chitty Bankr. Rep., 218 ; Powles v. Harcgremes, 3 De Gex, Maen. & G., 430 ; City Bcmh v. Luchie, L. R., 5 Oh. App., 773; Exp. Smart, L. R., 8 Ch. App., 220;' Exp. Gene. South Am. Co., L. R., 10 Oh. App., 635.) The doctrine of equity which we invoke will be found to be equally well settled in this country as in England. {Moses v. Miwgatroyd, 1 Johns., 119; Mcmre v. Harrison, 1 Eq. Ab., 93 k.; 5 Mich., 1692; Bcmh of Auburn v. Throop, 18 Johns., 505 ; Vailv. Foster, 4 N. Y., 312.) The asssignment by Duncan, Sherman & Co., to the defendant Shipman, did not affect the equity of the plaintiffs, which attached to the securities as soon as the trust in their favor was accepted by the National Bank of the State of New York. The assignee took no greater rights than his assignors had in the assigned estate, and it came into his hands charged with ail the equities existing in respect to it at the time of the assignment. {Mitchell v. Winslow, '2 Story, 630; Heed v. Sands, 37 Barb., 185 ; Slade v. Van Vechten, 11 Paige, 21.)

      Benjmni/n D. Sillimcm, for the respondent.
    The securities which were placed, on July 27, with the Bank of the State of New York, passed under the assignment to Judge Shipman, their assignee. {Bechwith v. Union Bcmh, 9 N. Y., 211; Hunt v. Bcmh of F. America, 49 Barb., 221; Hyhers v. Leather, dec. Bcmh, 11 Paige, 612.) Inasmuch as a check is not an assignment óf funds of a depositor in a bank, and a bank owes no obligation to the holder of the check until it has accepted it, it follows that the check was no assignment of or lien on any security of Duncan, Sherman & Co. in the hands of the bank. {Copperthwaite v. Sheffield, 3 N. Y., 243 ; Winter v. Drury, 5 Id., 525 ; Chapman v. White, 6 Id., 412; Warner v. White, 5 Nat. Bankr. R., 416 ; Exp. Bowton, 17 Yes., 426 ; Exp. Trelers, 18 Id., 229.)
   Ingalls, J.:

On July 26, 1875, Duncan,. Sherman & Co., being indebted to the plaintiff, made and delivered the following check :

'“No. 50,001. New York, July 26, 1875.

“Duncan, Sherman & Co., pay to Messrs. D. Watts & Co., or order, in current funds, sixty-six hundred sixty-five 63-100 dollars. “ $6,665 63-100. DUNCAN, SHERMAN & CO.” .

[Across the face.] “ Sixty-six hundred sixty-five 63-100.

“ Entered, J. B. B. • Cashiers Check.”

[At the end.] “ DUNCAN, SHERMAN & CO.,

“ J. C. Hull, Cashier.”

This is known as a banker’s check, and is evidence of an existing indebtedness from Duncan, Sherman & Co., to the plaintiff. It seems to have been one of a series drawn by the said firm for convenience in transacting their business, and by an arrangement with the National Bank of the State of New York, such checks were to be cashed by the said bank through the clearing-house. In regard to the check in question William G. Sewell testified at the trial:

“ In July, 1875, I was in the employ of Watts & Co.; I recollect this check [‘Ex. A.’] distinctly; on the 26th of July, 1875, I deposited it in the Fourth National Bank.

“ Q. By looking in this book now shown you, which is the bankbook of Watts & Co. with that bank, the entry on that day, the 26th, is what ? *

“ A. I find here an amount which includes that check: I find here deposited on that day $7,193, 28,- and a portion of that deposit was made up of this check; I identify that as the pass-book, and the entry of the deposit was made by Mr. Watts, I believe the receiving teller of the Fourth National Bank at the ,time I made that deposit; I made that deposit, I should judge, between 2 and 3 o’clock ; I got the check from Duncan, Sherman & Co.; I don’t remember the man who delivered it to me; I remember collecting the check; I went there and collected it in the regular course of business.”

Mr. Duncan, as a witness upon the trial, described the manner the checks were negotiated,- as follows :

“ Q. State to the court generally in what transaction these cashier’s checks were used %

“ A. When parties had claims on us requiring the payment of money, and didn’t have an account with us which permitted their drawing their check upon us, we were in the habit of paying them by the checks of the firm, countersigned by the cashier, and called the cashier’s cheeks, and this check is one of that general description ; we were in the habit of drawing these checks daily and constantly for large amounts, according to the course and practice of business in our banking house; these checks were not paid over our own counter; our firm had an arrangement with another banking house or corporation to cash these so-called cashier’s checks drawn by our firm; we had such an arrangement with the National Bank of the State of New York.”

The court has found the following:

“Fifth. — That on the morning of the said 27th day of July, 1875, the firm of Duncan, Sherman & Co., having largely overdrawn any amount which they had in the Bank of the State of New York, and being then largely indebted to said bank, delivered to Samuel L. M. Barlow, Esq., who assumed to act in that respect as the attorney of the said Bank of the State of New York, a letter, which is in the words and figures following, that is to say :

“ ‘24th July, 1875.

“ ‘ Tnn President,

National Bank State oe New York,

“ ‘ Decvr Sir: — We may have overdrawn on you to the amount of say $180,000; we request you to pay said overdraft, and we hereby transfer to you securities, as per inclosed list; also the margin on loan of $300,000 borrowed from the Farmers’ Loan and Trust Company, on May 1, 1875, due November 4, 1875, secured by 3,500 shares Panama R. R. stock, subject to their lien of $300,000, and interest, and we have duly notified this assignment to the Farmers’ Loan and Trust Company.

“‘Yours truly,

«‘ (Signed) DUNCAN, SHERMAN & CO.’

“ And at the same time delivered to Mm the securities therein mentioned, all of which he delivered to Mr. Duer, the president of said bank, by or before 10 o’clock of the morning of said 27th July, 1875 ; which securities were so furnished and delivered in accordance with a general arrangement which had existed between said firm and said Bank of the State of New York; that said bank should be protected in payments which it might make of certified checks and cashier’s checks, drawn by said firm.”

Mr. Barlow testified in regard to the letter and the securities :

“A. This.letter bears date 21th of July, 1875, but it was not delivered until the morning of the 27th; the first lines contain the substance of the contract; Mr. Duer said, on loolring at the securities, they were ample to cover the amount,'and he afterwards told mo the same thing.

Copy letter put in evidence by defendant’s counsel, marked ‘Ex. 2.’

“Plaintiff’s Counsel: — Do you know the fact that the Bank of the State of New York did go on and pay the bulk of those, certified checks and cashier’s checks?

. “ A. I know it inferentially ; I don’t know it positively.

“Q. Wasn’t that fact brought to your knowledge when you took away those securities, that they had already paid the bulk of those certified checks, and cashier’s checks?

“ A. I believe that they were nearly all paid.

“ Q. Wasn’t the fact stated to you by Mr. Duer when you came to take away the securities ?

“ A. I don’t know where I got the information; I think the fact is so, and yet I don’t know where I got the information.”

On the same day, but subsequent to the delivery of such letter and securities to the bank, Duncan, Sherman & Co. made a voluntary assignment, for the benefit of their creditors, to the Hon. William D. Shipman, who claims the securities under such assignment. The securities deposited with the bank were sufficient in value to pay all the drafts and checks drawn by Duncan, Sherman & Go. in accordance with such arrangement with the bank, including the check in question. Mr. Duncan testified:

• “ Q. State whether or not on July 26, 1875, you had on deposit with the Bank of the State of New York securities to protect that bank for tbe payment of these cashier’s checks of which you have spoken %

A. I can’t state whether, on the 26th, we had; we bad on tbe 26th or the 27th; I can’t state about the 26th, because I am not certain as to the date; it is some time ago; it was either the 26th or 27th; at, and shortly prior to our suspension, our house had funds and securities lodged with the Bank of the State of New York; the amount of the funds and securities so lodged was in excess of the amount of the outstanding cashier’s checks, on the morning of July 27.

“By Oouns'elfor the National Banh, of. the State of New Yorlc:

Q. These securities were deposited, you say, to meet over drafts represented by these checks; were they deposited to meet overdrafts alone and these checks, or were they deposited to meet any other of your liabilities ?

“ A. All of our liabilities to the bank, which only arose, however, from just such transactions a/nd from certification of checlcs.”

We think the evidence is fairly to the effect, that the securities were deposited with the bank for the purpose of securing the payment of the class of obligations of which the check in question was one; and that such deposit was made in accordance with the arrangement between the bank and Duncan, Sherman & Co., in regard to the payment of such drafts and checks. No other inference can, in our judgment, be fairly drawn from the facts, in regard to the intention and purpose for which such securities were delivered and accepted. The check in question had been drawn, and delivered to the plaintiff, and deposited in the Fourth National Bank, and passed the clearing-house previous to the depositing of the securities by Duncan, Sherman & Co. Although the letter, which accompanied the securities, bears date July 24, 1875, it was not delivered until the morning of the 27th of the same month. And the evidence fully justifies the assumption that it was intended to take effect at the time of its delivery, and to include all the outstanding drafts and checks, of the description above mentioned. There seems to be nothing which indicates that a distinction was intended, at the time of such deposit, to be made between such as had been paid by the bank and those which had been drawn but not presented, and we perceive no reason for any such unjust discrimination. Duncan, Sherman & Co. evinced no desire to withdraw the securities, or to revoke the deposit, or to limit its effect to a portion of that class of obligations. Mr. Duncan testified at the trial:

“ A. The deposit of the securities was necessary to meet the outstanding checks, and whether that was on Tuesday morning, or not, I can’t recollect.- There was a deposit of securities for this purpose at that time made specifically, specifically for the purpose of meeting the over drafts of the account represented by these outstanding checks, of which this check was one ; I don’t think I personally went to the bank in connection with that deposit; I recollect the fact of its being made; I did not, of course, at any time after that deposit was made for the purpose I have mentioned, withdraw it or do any act of withdrawal, unless -the assignment to Judge Shipman operated legally to affect it; I never did any act about it.”

The conduct of the assignee is very commendable in not interposing captious opposition to a just and legal adjustment of this controversy. The learned judge at Special Term seems to have regarded this case as within the doctrine of a class of decisions which declare that a check or bill -of exchange, before acceptance, gives to the holder no lien, legal or equitable, upon funds of the drawer in the hands- of the drawee, of which Winter v. Drury (5 N. Y., 525) is- an example. If the facts of this case established no more than the- mere drawing of a check upon a bank in the ordinary way of transacting business of that description, an acceptance would be required before a fund in the hands of the drawee would be bound. We are satisfied that this case contains elements which clearly distinguish it from the class of cases referred to, and upon the authority of which this cause seems to have been decided at Special Term. In our judgment, the facts develop all the essential elements of a valid trust created for the payment of such drafts and checks. Duncan, Sherman & Co. being, at the time, the owners of the securities, and possessing the right to devote them to any lawful purpose, voluntarily placed them in charge of the bank for a declared purpose, and in regard to which we think no reasonable doubt can be entertained ; when the contents of the letter, the verbal directions, and the general circumstances which surround the entire transaction are fairly considered, there remained no uncertainty in regard to the class of persons who were to be benefited by such deposit, as the nature of the obligations intended to be provided for was understood, and sufficiently defined. The securities were not received by the bank, in the ordinary way of accepting deposits, or even collaterals, simply to protect the bank, or to create a fund to be checked out by the depositors. Duncan, Sherman & Co. doubtless intended by depositing the securities, to protect the bank against loss; yet, we think their primary and main purpose was to provide means by which the holders of such checks would be paid in full. The reason for preferring that class of creditors is immaterial, so long as they had a perfect right to devote the securities to such object. The depositing of the securities can properly be regarded as part of a scheme, somewhat extraordinary perhaps, adopted by Duncan, Sherman & Co. in transacting their financial business. The check was received by the plaintiff upon the assumption that it would be paid by the National Bank of the State of New York, pursuant to the arrangement between Duncan, Sherman & Co. with such bank. We conclude that, by the established facts of this case, the three parties, Duncan, Sliérman & Co., the bank, and the plaintiff are drawn into such relation, that the latter acquired in equity such an interest in the securities deposited with the bank, as created in his favor a preference over the creditors claiming under the assignment. In Story’s Equity Jurisprudence (vol. 2, § 964), the author, in defining a trust, remarks: “ Three things are said to be indispensable to create a valid trust. Eirst, sufficient words to raise it; secondly, a definite subject; and, thirdly, a certain or ascertained object.” In Martin v. Funck (75 N. Y., 134), Judge Church remarks at page 141: “No particular form of words is necessary to constitute a trust, while the act or words relied upon must be unequivocal, implying that the person holds the property as trustee for another.” The same case declares that the validity of a trust does not depend upon the party to be benefited thereby having notice of its creation at the time. In Kent’s Commentaries (vol. 4, p. 306), tlie author says, “ If a trust be created for the benefit of a third person, without hi§ knowledge, he may, when he has notice of it, affirm the trust, and call upon the court to enforce the performance of it. Collateral securities given by a debtor to his surety are considered as trusts for the better securing of the creditor’s debts, and Chancery will see that their intention will be fulfilled.” (Rogers Locomotive Workes v. Kelly, 19 Hun, 399; Exp. Waring, 19 Vesey, 345; Curtis v. Tyler, 9 Paige Ch., 432; Moses v. Murgatroyd, 1 Johns. Ch., 119.) Applying these legal principles to the facts of this case, we are satisfied that a valid trust was created, which inured to the benefit of the plaintiff, and which should be executed in his favor. When the securities were placed in the possession of the bank by Duncan, Sherman & Co., they were beyond recall, as the trust attached, which could only be discharged by the consent of the parties for whose benefit it was created, by the holders of the drafts and cheeks. We fail to discover any reason founded in equity, upon public policy, or commercial security, which should induce the court to deny to the plaintiff the protection which the justice of his case demands. The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J., and Barrett, J., concurred,

Judgment reversed, new trial ordered; costs to abide event.


author: Per Curiam:

text:
    MADELINE W. EDLEFSON, Respondent, v. JOSEPH W. DURYEE, Appellant.

      Costs — cannot be allowed, upon the granting of an ex parte order. .
    Costs cannot be allowed upon tlie granting of an ex parte order requiring the defendant to file his answer.
    Appeal from an order made June 17, 1880, reinstating an ex parte order made June 14, 18S0, directing the defendant to file liis answer, within five days, or in default thereof that the said answer be deemed abandoned, and granting $10 costs to the plaintiff.
    On or about May 24, 1880, the plaintiff served upon the defendant a notice to file his answer, and on June 14, 1880, upon an affidavit showing that the answer had not been filed, obtained an order ex parte, that it be filed within five days, or in default thereof that the said answer be deemed, abandoned, and imposing $10 costs on the defendant. • On June 16, 1880, the defendant obtained, ex pa/rte, a modification of such order so as to strike therefrom the direction as to the $10 costs. On the same day the plaintiff obtained an order to show cause why the order of June 14 should not stand as originally granted herein, and the subsequent order of June 16, modifying the same by striking out the costs, should not be vacated and set aside. The motion came on to be heard and was argued, and the order of June 1Y, 1880, made, from which the defendant appealed. .

      Carlisle Norwood, for the appellant.

      Ernest T. Fellowes, for the respondent.
   Per Curiam:

The appellant is right in his conclusion. The order to file the answer 'was ex parte, and costs should not have been allowed. (Browne v. Anthony, 13 How., 301.) Beside, it was a judge’s order. (See Brevoort v. Warner, 8 How., 821.) A party might as well insert motion costs in an order of arrest, or for time to answer.

The order should be reversed, with $10 costs, and the disbursements of the appeal, and the motion to vacate the order of June 16, 1880, denied, without costs.

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

Order reversed, with $10 costs and disbursements, and motion denied without costs.


author: Per Curiam :

text:
    HATTY CLAY, Respondent, v. HENRY De B. CLAY, Appellant.

      Action for a divorce — a third, person accused of committing adultery with the defendant, cannot he made a party to it on her own application — such person will, however, he alloioed to appear on the hearing, testify, and summon and examine witnesses.

    Where, in an action brought by a wife to procure an absolute divorce from her husband, on account of his adultery, the complaint alleges that the adultery was committed with a woman named therein, such woman cannot, upon the failure of the defendant to appear and answer, be made a party to the action and be allowed to answer and defend the same upon the merits.
    The court will, however, require notice to be given to her counsel of all proceedings to take testimony in the action, and will allow her to be present and cross-examine the witnesses produced, to be herself sworn as a witness and give her testimony, and to have summoned and .examined such witnesses as she may desire.
    ' Appeal from an order denying a motion of- one Isabella I). Lyon for leave to intervene and defend this action.
    This is an action for divorce on the ground of adultery. The complaint alleges that the defendant committed adultery with Isabella D. Lyon. The summons was issued for service on December 23, 1879. The defendant, having left the State, was served out of the State under an order for service by publication. On the last day for him to appear in this action, namely, April 6, 1880, he made default; but on that day the petitioner, Isabella D. Lyon, presented her petition for leave to intervene and defend. The ground on which the motion to intervene is based, is that the petitioner’s good name and character are attacked in this action by the allegations charging the defendant with adultery committed with her.

      James W. Perry, for the appellant.
    Under section 452 of the Code of Civil Procedure, the court has power to make the petitioner a party, as well as under the general principles governing a.court of equity. (Story Eq. PL, 5 ed., §§ 72, 137 ; Shaver v. Brainercl, 29 Barb., 25; Tonnely v- Ilall, 3 Abb. Pr., 205;
      Wa/tdng v. Waring, Id., 246 ; Story Eq. Pi., S ed., § 237, a and b; Schoolmaster v. Fraser, 2 Hagg. Ec., 613 ; Montagus v. Montague, 2 Addams Ec., 372; Wood v.' Medley, 1 Hagg. Ec., '64-5 ; Anon., 15 Abb. Pr., N. S., 171, 307.) The practice of allowing third persons to intervene as parties defendant in suits for absolute divorce, on the ground of being the alleged companions in adultery with the respondent, is fixed and settled in England. (Browning on M. & D., 61, 62 ; Willianns v. WilUams, 1 L. E.., P. & 1)., 21); Ilobim son v. Pobinsoii; 1 S. & T., 363, and many others.) The court can and will, in actions for divorce, receive light from any source that will develop the truth; and it will frequently of its own motion inquire into matters not involved in the pleadings, in order that its conscience may be relieved from any deceit that might be practiced upon it. The truth herein can be best elicited and the conscience of the court best aided, by the appearance of the petitioner in the- action. (Perry v. Perry, 2 Barb. Ch., 285 ; Graves v. Graves, 2 Paige, 62; Smith v. Smith, 4 Id., 432 ; Morehead' & Brown’s Digest, 123; Green v. Green, 7 Ind., 113.)

      W. JB. Ilornblower, for the respondent.
   Per Curiam :

The utmost that the court could do in such a ease as this would be to hear the communications as matter of favor, and there is no express provision of law for such a contingency as the present.

The petition, so far as it prayed for leave to come in and answer and defend upon the merits, was properly denied for want of power.

The court will, however, look to it that the testimony is clear and convincing before granting the plaintiff relief which must necessarily reflect upon, and, fro tanto, convict the petitioner. In order that the right of the petitioner, not to be convicted unheard, may be secured so far as consistent with the law in such cases, the order of the court below'- should be modified by denying the prayer of the petitioner to come in and defend the action, as a party, and directing that notice be given, to the counsel of the petitioner of all proceedings to take testimony in the action, and that she be allowed to be present and cross-examine the witnesses produced, and that she be called and sworn as a witness and be permitted to give her testimony, and that such witnesses as she may name be summoned and examined, and, as so modified, affirmed, without costs.

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

Order modified as directed in opinion, and affirmed as modified.


author: Davis, P. J.;

text:
    JOHN DERRENBACHER, Respondent, v. THE LEHIGH VALLEY RAILROAD COMPANY, Appellant.

      When the plaintiff is not bound to prom the existence of a defendant corporation— a general appea/rance and the service of an answer by the latter amounts to an admission of its corporate existence — in any event, proof of user or corporate acts establish its existence prima facie.

    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant. The complaint alleged that the defendant was a corporation duly organized under the laws of the State of New Jersey. The answer denied eacli and every allegation of the complaint, and set up contributory negligence on the part of the plaintiff as a defense.
    The court, at General Term, said : “ The motion to dismiss the complaint on the ground that plaintiff had not proved the corporate character of the defendant, was properly denied. Where a corporation brings suit,‘it is bound to allege its corporate existence, and at common law was bound to prove it under the general issue. The rule is the same now as to foreign corporations, but as to domestic corporations the rule is so far changed by statute, that such a plaintiff is only put to show its own corporate existence, where the defendant pleads specially “ nul tiel corporation y” but where a corporation is sued, its general appearance and answer in the action ought-to be deemed an admission of its corporate existence, as much as the general appearance and answer of a natural person is an admission of his existence and identity. It appears and answers as a corporation, when no special issue is presented on that question, and thus puts itself in court as such, and ought not afterwards to be heard to insist that, plaintiff must affirmatively prove that it is what it has put itself on record as being. Some confusion has arisen on this subject (perhaps, in the cases), by not properly observing the difference between a plaintiff corporation’s own affirmation of its existence when put in issue by an answer, and the appearance of a corporation when sued as a defendant, on putting in an answer in the name by which it is sued.
    “ At all events, in such a case it is enough to show user or corporate acts to mate aprima facie case of the entity and identity of the artificial person that has appeared, and is defending the suit. In this case, the issues were tried all through the plaintiff’s case, upon the assumption that the Lehigh Yalley Railroad Co. was an existing corporation. It was quite right, therefore, not to permit the defendant to railroad itself out of court because its charter was not produced and proven. Th % prima facie case was sufficient to call upon the defendant to give some of the evidence which the learned counsel says his client was misled into not producing, to not, 1 negative proof of its non-existence,’ if any such it had.”

      Charles B. Alexander, for the appellant.

      Edmard H. Hobbs, for the respondent.
   Opinion by

Davis, P. J.;

Barrett, J., concurred.

Present — Davis, P. J., and Barrett, J.

Judgment affirmed.


author: Barrett, J.;

text:
    THE BENEDICT & BURNHAM MANUFACTURING COMPANY, Appellant, v. DAVID G. THAYER, Respondent; THE PEOPLE OF THE STATE OF NEW YORK, ex rel. DAVID G. THAYER, Respondent, v. PETER BOWE, Sheriff, etc., Appellant.

      Execution against the person — not rendered, void by the omission of a clause requiring the sheriff to return it within sixty days — an order allowing such a clause to be inserted should be granted as a matter of course — a return made by a sheriff in pursuance of an order, from which an appeal has been toteen, should be canceled if the order be reversed on the appeal.

    Appeal in the action from an order made at a Special Term, denying a motion by tbe plaintiff to cancel tbe sheriff’s return upon an execution against the person of the defendant, and to remit the said execution to the said sheriff.
    Appeal in the special proceeding from an order made on habeas corpus, discharging the defendant in the action from the custody of the sheriff.
    On November 10,' 1877, the respondent was arrested in the above entitled action, and on April 12, 1878, he was admitted to bail. On January 16, 1880, the respondent was arrested upon an execution against his person, issued January 15,1880, upon a judgment in the action. The direction to return the execution within sixty days was omitted from the execution, and the plaintiff in the action moved for leave to amend the execution by inserting the direction, but its motion was denied. Thereafter, on a habeas corpus, the respondent was discharged from custody. The plaintiff appealed from both the order denying its motion and the order discharging the respondent, and the appeals were argued before the General Term on March 12, 1880, and the decisions were handed down April 7, 1S80. (20 Hun, 549.) Intermediate the argument and the decision of the General Term, and on March 15, 1880, the sheriff made return of the execution, showing the prisoner arrested and discharged by order of the court.

      On April 8, 1880, and after the decision but before the entry of the orders of the General Term on the appeals, the sureties on the bond given upon the respondent’s arrest surrendered him to the sheriff. On April 12, 1880, on the settlement of the orders of the General Term, counsel for the respondent, by affidavit, brought to the attention of the General Term the fact of the return of the execution intermediate the argument and the decision of the appeals. -Nevertheless, on April 16, 1880, the orders of the General Term were entered, though dated April 7, 1880. On April 15, 18S0, the respondent presented his second petition for a writ of habeas corpus, and the writ was issued the next day, with an order requiring the plaintiff to show cause why the respondent should not be discharged. On April 16,1880, the plaintiff procured and served oh the respondent an order to show cause, why the execution which had been returned by the sheriff should not be taken from file, the return canceled and the execution delivered to the sheriff; such order being made returnable on the day and hour whereon the writ of habeas corpus was returnable. The sheriff made return to the writ, stating, first: that he held the respondent by virtue of the order of arrest and the surrender by his bail; and second: that he held him by virtue of the execution and the orders of tha General Term, which orders, hoivever, came to the sheriff after the service upon him of the writ. The orders of the General Term reversed the order denying the plaintiff’s motion to amend the execution, and to allow the amendment nunc pro tunc, and reversed the first order discharging the respondent, and remanded him to the custody of the sheriff.
    The habeas corpus proceedings and the plaintiff’s motion came on before Justice Donohue at a Special Term at Chambers, and were transferred by him to the judge sitting at Special Term, who, after several adjournments, heard the matters, and made an order in the first proceeding discharging the respondent, and on the motion denying it.
    The court, at General Term, said: “ When this case was previously before us, we held that the execution against the defendant’s person was not void merely because of the omission to direct its return -within sixty days. We accordingly directed, what should have been done in the first instance, an immediate amendment to cure this trivial-, objection, reversed the order discharging the defendant, and remanded him to the custody of the sheriff under the execution. It seems, however, that shortly after the argument before us, and while the matter was yet under advisement, the sheriff took upon himself, at whose instigation does not appear, to return the execution, specifying that the defendant had been discharged from custody under the very order, the validity of which was then under consideration. This fact ivas cabed to our attention when the order reversing the discharge and remanding the defendant was subsequently made, but we deemed it of no moment. Of course the return fell with the reversal of the order on which it was based. The validity of the execution had been in no wise impaired.’ It was not like the cases of Gleason and Roberts (MS. opinion Court of Appeals), where, in consequence of the reversal of the judgment, the very foundation of the execution had fallen. The only reason why we did not at once cancel the return and remit the execution to the sheriff for proper action, in accordance with the facts as they then existed, was because we deemed that to be more appropriately the function of the Special Term. We are at a loss to understand, in the absence of any opinion from the court below, why this course was not pursued. It would be a reflection upon the administration of justice if this defendant were to escape the legal consequences of his acts. by such unmeritorious technicalities as he has invoked upon both applications. It is clear that the force of the execution was but temporarily spent by the erroneous discharge and the sheriff’s return of that fact. The effect of the reversal was plainly to restore the original and legal status. Practically, this could only be done by canceling the return, replacing the execution in the sheriff’s hands and leaving that officer to resume his custody of the defendant, and thereupon to make a new and proper return.”

      Cephas Brainercl and James S. Stearns, for the appellants.

      A. C. Brown, for the respondent.
   Opinion by

Barrett, J.;

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

Order in the action reversed, with $10 costs, and disbursements ; the return canceled and the execution remitted to the sheriff.

Order in the habeas corpus proceedings reversed, with $10 costs, and disbursements, and the prisoner remanded to the custody of the sheriff.


author: Per Curiam.

text:
    THE SHELDON HAT BLOCKING COMPANY, Appellant, v. THE EICKEMEYER BLOCKING MACHINE COMPANY, ARCHIBALD T. FINN and CHARLES ATWOOD, Jr., Respondents.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


author: Ingalls, J.

text:
    JOHN T. ACKLEY, Plaintiff, v. ELEANOR J. WESTERVELT, Defendant.
   ■Judgment ordered for plaintiff, on the verdict.

Opinion by

Ingalls, J.


text:
    WILLIAM LUPTON, Respondent, v. JOHN FLETCHER and JAMES FLETCHER, Appellants.
   Judgment affirmed, with costs.

Opinion by

Ingalls, J.


author: Brady, J.

text:
    JOHN SCHELLEY, Respondent, v. CATHARINE DIEHL, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Brady, J.


text:
    HENRY H. SHUFELT v. HERMAN MATHIAS.
   Motion denied.


author: Davis, P. J.

text:
    DARIUS MILLER and another, Respondents, v. ELMORE A. KENT and others, Appellants.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Davis, P. J.


author: Barrett, J.

text:
    WALTER S. PIERCE and others, Appellants, v. RINALDO M. WATERS and others, Defendants.
   Order reversed, with $10 costs, and disbursements, and order entered as directed in opinion. Appeal from order denying motion to send the case back to the referee, dismissed, without costs.

Opinion by

Barrett, J.


text:
    JOSEPH KOHN v. JOSEPH M. KOEHLER.
   ■ Motion granted, and leave to appeal to the Court of Appeals given.


text:
    FREDERICK BEDFORD v. THOMAS C. FIELDS and others.
   Motion denied, with $10 costs.


text:
    JOHN S. PROUTY v. RODNEY M. WHIPPLE.
   Motion for re-argument denied.


text:
    JOHN S. PROUTY v. THE LAKE SHORE & MICHIGAN SOUTHERN RAILROAD COMPANY.
   Motion for re-argument denied.


text:
    LOUIS E. HOWARD and others, Appellants, v. JOSEPH PARK and others, Respondents.
   Order reversed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    JOHN H. HARDT and others, Appellants, v. HERMAN SCHULTING, Respondent.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Davis, P. J.


author: Daniels, J.

text:
    HENRY CLARKE v. JULIUS LOURIE.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Daniels, J.


text:
    In the Matter of James A. Deering (Respondent), to Vacate an Assessment, etc.
   Order reversed, with $10 costs, and disbursements, and application denied. (See opinion in the Matter of Fuller, and per cwriam, in the Matter of Sobreven and Schultz, handed down July 1,1880.)


text:
    WILLIAM G. WILSON, Appellant, v. WILLIAM H. GRANT, Respondent.
   Order affirmed, with costs.

Opinion by

Barrett, J.


text:
    OLIVER S. CARTER and others, Appellants, v. THE PACIFIC MAIL STEAMSHIP COMPANY, Respondent.
   Order modified, as directed in opinion, and affirmed, as modified, without costs.

Opinion

Per Curiam.


text:
    In the Matter of THOMAS H. WALTERS.
   Motion for re-argument denied.


text:
    In the Matter of GUSTAVE A. BRAHE.
   Order affirmed, with costs.

Opinion by

Barrett, J.


text:
    In the Matter of WILLIAM N. LOEW, An Attorney.
   Petition denied.


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN W. FLAHERTY and GEORGE C. BENNETT, v. Hon. JOSEPH NEILSON, Chief Judge of the City Court of Brooklyn. JOHN W. FLAHERTY and GEORGE C. BENNETT, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      •City Court of Brooklyn — criminal trials in it a/re reviewable on writs of error and, certiora/ri issued, from the Supreme Court — when a conviction will he set aside because of the improper t/i’eatment of a juror.

    Writs of error and of certiorari will issue from the Supreme Court to review a trial and conviction had in the City Court of Brooklyn, upon an indictment found in the Court of Sessions and transferred to the City Court for trial.
    During the trial of the plaintiff in error upon an indictment, charging him with a conspiracy to defraud the city, the judge called one of the jurors and the counsel for the prosecution and the defense into a room, and after showing to the juror an anonymous letter, which stated that the juror had been in the habit of playing cards with the sons of the plaintiff in error, asked him if lie knew who wrote it, to which the juror replied, that he did not. The judge then said, that it was “very embarrassing and unpleasant, and, toward a juror, monstrously unjust, and a serious imputation.”” The plaintiff in error was not present, and the judge said, when the counsel for the plaintiff in error attempted to speak, that “he did not expect counsel to make any observations.” There was no proof that the facts-stated in the letter were true, nor was the juror asked if they were true.

      Held, that the conviction should be reversed, as the tendency of this action, by the judge, was to dominate the juror’s free-will, and terrify him into a. verdict for the people.
    This case came before tbe court both by a writ of error and by a. writ of cerUora/ri to the City Court of Brooklyn, for the purpose-.of reviewing the proceedings had upon the trial and conviction of the relators upon an indictment charging them with a fraudulent, consjiiracy to defraud the city of Brooklyn.
    During the progress of the trial the counsel for the plaintiffs in. error were notified to appear before the presiding judge after the-adjournment of the court. Pursiiant to the notification they attended in a private room before the said judge, with the counsel for the People, one of the jurors, John R. "Wilmer, and the official stenographer of the City Court. Neither of the defendants were present or had any notice of the meeting.
    The following transaction then occurred:

      Judge. — I want to ask this juror about this letter (producing it),, and I could not do so, of course, except counsel were present. (Addressing the juror:) I simply-want to ascertain if you lmow the handwriting of this (handing him the letter) ? Be kind enough to look at this. It is anonymous, and I am very anxious to find out who wrote it.
    Juror Wilmer looked at the letter and said: “ No, sir; I do-not.”

      Judge. — Never saw the .letter?

      Juror. — No, never.

      Judge. — This last clause of it, just read it. If you can in any way recall, or hereafter if you can detect the handwriting, I would like to send a summons and have the party brought up.

      Juror. — Yes, sir. (He then read:) — “ Another thing. Are you aware that the juror, Wilmer, is a chum of the Bennetts, sons of George C., with whom he has been in the habit of playing cards almost nightly % I notice that since the commencement, of this trial that he is not seen with them at the old haunts as formerly. The writer has no animosity to Bennett or Flaherty, but thinks it right to post yon in relation to the -above, in the interests of the city.”

      Jud^e. — My simple question was whether you knew the writing?

      Jxiror'. — No, sir.

      Judge. — I want to put it to you, showing my respect to you entirely, and I could not do it without asking the counsel to come in.. It looks rather formal, but it is the only way I could do it.

      Juror. — (He was still holding the letter.) I don’t recognize the-writing at all.

      Judge. — That is all I can say to you. It is very embarrassing- and unpleasant, and toward a juror monstrously unjust and a serious imputation.

      One-of the Counsel for the Accused. — I don’t understand it. I confess I don’t understand by what right your Honor can compel a juror—

      Judge. — I don’t want any observations at all.

      Counsel. — I confess it is an unusual proceeding. If your Honor receives a letter of that kind I don’t think you should call the attention of a juror to it.

      Judge. — I did not expect counsel to make any observation.

      Counsel. — I don’t know what we are here for then.

      Judge. — If you think I have committed an error I am sorry for'it.

      Counsel. — Well, it has a tendency seriously to prejudice my clients.

      J%idge. — I don’t think so.

      Counsel.- — -"Well, I do.

      I. S. CatTÁn, district attorney, for The People.

      Ira Shafer and Jesse Johnson, for the plaintiffs, in error.
   Barnard, P. J.:

Is this appeal properly in’ this court ? The indictment was found', in the Court of Sessions of Kings county; it was transferred by order to the Court of Oyer and Terminer, and the demurrer to the-indictment overruled, and then it was sent back to the Sessions. By the Court of Sessions it was transferred to the City Court for trial, and there tried and the defendants convicted. By the law establishing the City Court of Brooklyn (L. 1849, ch. 125, § 11), the City Judge, with the aid of a mayor and an alderman, or with the aid of two aldermen, could try all criminal cases which could be tried by the Court of Sessions. There was then only one City Court judge, and the appeals from their judgment in a criminal case went t.o the General Term of the Supreme Court, not by force of the law of 1849, which was silent, but by force of the Revised Statute, which clothes the Supreme Court with jurisdiction over all writs of error and writs of certiorari. In 1870 the City Court was reorganized with three judges, and with a General Term. The .section in respect to criminal jurisdiction was amended so as to give .•any of the judges of the City Court power to hold a court of ■ criminal jurisdiction with the same powers as Coux’ts of Oyer axxd 'Terxniner. Neither xxuder the law of 1849 nor xxxxder the law of 1870 cotxld indictments be found in the City Court. The judge could try indictxnents sent to the City Court for trial, either by the Court of Oyer and Terminer or Sessions. The law of 1870 is also silent with reference to appeals in criminal cases when tried by one of the judges of the City Coxxrt. I do not think section 6 of the act of 1870 (L. 1870, ch. 470), designed to reach appeals in such cases. The laxxguage is, “An appeal xxpon the law may be taken to .the General Term of said court from a judgment entex-ed xxpon the report of referees, or the dix’ection of a sixxgle judge of said court, in all cases and upon the facts where the trial is by the court or referees.” These wox*ds, “ judgment upon report of refex-ee, or by dix’ection of coxxx’t,” have a different meaning and apply only to civil trials. In eximinal cases they have no x-elevancy. There is, therefore, no power to warx’ant the x*eturn of a writ of ex’ror to the City Court to x’eview a trial had before one of the judges. It caxxnot be supposed that the .Legislatxxre designed to px’evexxt an appeal. The ■City Coxxrt, at General Term, cannot review it unless power is given by law for that purpose; as we have séen, thex’e is no such power. There remain bxxt two ways of x*eaching an appellate coux’t; eitlxer a writ of erx’or or certiox’ari will bxing the record and exceptions ..directly from the City Court to this coux’t, or an order must be obtained from the City Court, sending back the record, to the end that the writ may reach the court which sent the indictment to the City Court for trial. I think the writs of error and certiorari reach the City Courts in criminal cases. The Supreme Court has still power to review all criminal trials, unless the powei* has been taken away. This has not been done in express terms, nor by words which give the power to another court. The writ of error is,, therefore, properly in this court.

Upon the merits I think this judgment should be reversed for improper interference with the juror, "Wilmer. While the case was being tried, it seems that some one had sent to the presiding judge an anonymous letter, informing the judge that Wilmer had been playing cards with the sons of one of the defendants before the trial commenced. By direction of the judge, the juror is taken into a-private room with a stenographer, and the letter is shown to him, and he is asked if he knew who wrote it; he replied, that he did not; he is then told to read the last clause, which is the one containing the charge about card-playing with the young Messrs. Bennett, and then, after reading it, he is again asked if he knew who-wrote it; he made the same reply, and the judge then told him, “it was very embarrassing and unpleasant, and, toward a juror,, monstrously unjust, and a serious imputation.” There was nothing in the letter either unpleasant or serious. A juror may play cards with young companions, and afterwards be a good juror to try their father for an alleged criminal ofíense, if not challenged by the district attorney. The counsel for the defendant attempted to say something in defense of the rights of his clients, the accused, and he was told by the judge that he “did not expect counsel to make any observations.” The defendants were not present and were not invited. The attorney, so far as the case shows, had no authority to appear for them in their absence upon this proceeding. There is no proof of the truth of the facts, stated in the anonymous letter, and the juror was not asked if they were true. The tendency was to dominate the juror’s free will and to terrify him into a verdict for the people.

Conviction reversed, and a new trial granted.

Gilbert, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment reversed, and new trial granted.


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    JOHN SEGELKEN, by his guardian ad litem, Respondent, v. OTTO MEYER, Appellant.

      Infant — right of, to sue by his guardian ad litem.

    On January 2, 1873, the defendant, who had been and was then acting as attorney for the plaintiff's mother, who was the administratrix of her deceased husband, and the general guardian of his children, gave to her a receipt stating that there was due to her as guardian of her children, the sum of $1,500, and as next of kin of two deceased children, $1,000, “payable according to a decree of the Surrogate of the county of New York, interest to be paid on the money,” semi-annually. The decree directed the shares to'be paid to the general guardian of the infants. The plaintiff's mother died in 1876. On July 19, 1877, Andrew Koch was appointed general guardian, and on October 15, 1877, guardian ad litem for the plaintiff.

      Held, that the plaintifí could, by his guardian ad litem, maintain an action against the defendant to recover his share of the fund received by the latter from the plaintiff’s mother.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This aetion was brought against the defendant, Otto Meyer, an attorney and counselor-at-law, to recover the share of John Segelken, the infant plaintiff, in certain moneys held by him, and for which he had given to the plaintiff’s mother the following receipt :
    “ Due Mrs. Gesche Segelken, as guardian .of her children, Gesche, John and Car'sten Segelken, the sum of fifteen hundred dollars, .and as next of kin of Adeline and Sophie Maria the sum of one thousand dollars, payable according to a decree of the Surrogate of the County of New York, interest to he paid on the money to Mrs. .'Segelken July and January 1st of each and every year.
    “ January 2d, 1873. OTTO MEYER.”
    The plaintiff claimed that the money for which this due-hill was given, came from the money belonging to the estate of his father, who had died intestate in 1874, leaving him surviving five children — the plaintiff, Carsten, Gesche, Adeline and Mary Segelken, and a widow, and that the defendant received the money while acting as the attorney for the widow, who was the administratrix of the husband, and the general guardian of his children.- On January 2,1873, Gesche Segelken, the widow, had an accounting with the defendant, and.it was found that the defendant was indebted to Gesche Segelken, as guardian of her’ ■children, in the sum of $1,500, and as néxt of kin of Adeline and Mary :S., who had died intestate and unmarried, in the sum of $1,000, of which sum the plaintiff’s share was $750. The widow died December 21, 1876, and thereafter, and on July 19, 1877, Andrew ICoch was appointed general guardian of the plaintiff, and on October 15, 1877, his guardian ad litem.

      A. B. Dyett, for the appellant.

      Christian G. Moritz, for the respondent.
   Barnard, P. J.:

The right of the infant by his guardian ad litem to bring this action, was decided by this court in Segelken v. Meyer, 21 Supreme Court (14 Hun), 593.

The facts establish a just claim. The plaintiff is an infant son of John Erederic Segelken. He died in 1864 without a will, leaving a widow and five children, all infants. The widow was appointed administratrix of her deceased husband, and general guardian of all of his children. The estate was settled by final decree in 1870, and. the plaintiff, as one of the children of deceased, was decreed entitled to $750 for his share of the father’s estate, including his share of 'such portion as was inherited from two of his sisters who died intestate, unmarried, and under age. The defendant was the lawyer of the widow as administratrix and as general guardian. In 1873 he had collected of the moneys of the estate $2,500. On January 3,1873, lie gave a written paper to Mrs. Segelken, acknowledging that there' was due her $1,500 as guardian and $1,000 as-next of kin of the two deceased children. In 1876 the widow died, leaving the plaintiff’s share of these sums wholly uncollected.. The decree, on final accounting directed the administratrix and guardian to pay the several shares of the children to the general guardian. In the written paper the defendant inserted a clause that-the $2,500 was payable according to a decree of the Surrogate of’ the County of New York.” The claim, now made, that the plaintiff' is not entitled to sue until he arrives at age, is untenable. The-guardian had no right to lend her attorney the trust funds without security, and to postpone its repayment until the arrival of the-infant of age. She probably knew nothing of the effect of the clause in reference to the decree. It would be against well settled rules of equity to permit an attorney to take an advantage of the-infant in such a manner. The claim that the plaintiff has no right-of action at all is equally untenable. The money was collected by the attorney for the administratrix and general guardian. He dealt with her as if she, as general guardian, held the shares derived, directly from the father, as well as that portion therein which the-surviving children had inherited from the deceased sisters. It was-a mere matter of form how she held it. It belonged to the children, and, as belonging to the children, the defendant acknowledged his indebtedness by the writing in question. The objection seems-to be a merely technical one to evade payment. As matter of fact, the plaintiff’s general guardian and his guardian ad litem are one and the same person. The point taken by the appellant that his-evidence was improperly excluded does not arise, as the evidence; was stricken out without objection.

The judgment should be affirmed, with costs.

T)vkman, J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs.


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    GEORGE P. VAN WYCK, Appellant, v. CHARLES H. VAN WYCK and others, Respondents.

      .Won-resident executor■ — when he does not have “his usual place of business within-this State ” — chapter 657 of 1873.
    The defendant resides upon a large farm, owned by him, in Nebraska, and! is one of the Senators of that State; he employs an overseer upon the farm, and is absent therefrom a considerable portion of the year, spending the period of such absences at Middletown, in this State, where he lived before going West. He has no place of business at Middletown, but has a desk in. the office of his attorney, and one -containing papers at the hotel there, and is a director of a National Bank at that place. His visits to Middle-town are periodical and irregular; and to go from his farm in Nebraska, to that place requires about throe days.
    Held, t-bat the defendant did not have “his usual place of business within' this State,” within the meaning of chapter 657 of 1878, authorizing letters-testamentary to be issued to a non-resident executor, without requiring" security to be given by him, if he has his usual place of business within, this State.
    Appeal from an order of the Surrogate of Orange county, issuing letters testamentary on the will of Elizabeth Yan Wyck, deceased, to lier son, Charles H. Yan Wyck, the "executor named in. the will, without requiring him to give a bond, he being a resident of the State of Nebraska.
    The will contains the following provisions :
    “ Lastly: I hereby nominate and appoint my son, Charles H. Yan Wyck, sole executor of this, my last will and testament, and I hereby exonerate him from giving or being required to give any bond or security as such executor, for or on account of non-residence or any other reason or cause whatever, any law or statute to the contrary notwithstanding.”
    The proof showed that the executor formerly resided at Middle-town, Orange county, New York, but changed his residence to-Nebraska about five years ago. The surrogate held that he had his usual place of business within this State, as that term was used in chapter 657 of 1873, providing that “ if any person applying for letters testamentary be a non-resident of the State such letters shall not be granted until the applicant shall give a bond; provided, however, that such non-resident may receive such letters without bonds if the testator, by words in his last testament, has requested that his executor be allowed to act without giving bonds, and if ■such executor has his usual place of business within this State.”

      Herriolc, de Losey, for the appellant.

      John G. Wilkin, for the respondent, Charles H. Yan Wyck.

      O. D. M. Baker, guardian ad Utem for infant respondents.
   Barnard, P. J.:

Under the provisions of the Revised Statutes non-resident executors were bound in all cases to give security such as in cases of intestacy was required from administrators. (2 R. S., 70.) In 1873 the Legislature amended the Revised Statutes so that in cases where the testator required, in the will itself, that no security should be .-required, letters should issue to his executor without it, “ if sunk, ■executor has his usual place of business within this State.”

The will in the present case contains a full request that the ex■ecutor be permitted to act without security, and the only question is whether the executor has his usual place of business within the State. The facts are entirely undisputed. The executor named in the will, Charles II. VanWyck, is a resident of Nebraska, and holds the office of State-Senator there. He owns a very large farm there, upon which he resides. He has an overseer, and is absent a considerable portion of each year therefrommost of this period of ■absence is.spent in Middletown, in this State. The executor resided .at Middletown before he moved west, and is still a director in the National Bank there. It does not appear what the business of the 'executor in this State was before he went west. He has not now .any place of business here, except as he uses a desk in his attorney’s office while here, and except that he has a desk containing papers in tire hotel at Middletown. He has a large amount of real and personal property in this State. It, takes nearly three days to go to Middletown from his home in Nebraska. His visits are periodical and without any regularity, beyond being two or three times a year •“ whenever business required.”

"With great hesitation I think the executor has not his usual ■place of business in this State.” He has no business beyond- the management of his own property here; has no stated place of bus-mess. He is not usually at any point within the State for the purpose of doing business, but only occasionally and irregularly. He 'lives some three days’ travel from this State. The statute was ■designed to meet cases very different from this one. There are very many persons who live in an adjoining State, but who usually .-and habitually are pursuing their daily business within the State, who pass their business hours in New York, and who have a formal .■residence out of it. It seems to me that the statute intended to jreach such cases only.

Judgment reversed, with costs to appellant out of the estate.

IDykman, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Decree of surrogate reversed, with costs to appellant and guardian ad lAtem, out of the estate, and proceedings remitted to surrogate to require security from the executor.


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    RICHARD B. SMITH, Appellant, v. GEORGE W. COOPER, Sheriff of Suffolk County, Respondent.

      iChattel mortgage — what indorsement thereon by the mortgagor operates to create a new mortgage.

    On October 17, 1877, one Smith executed and delivered to the plaintiff a chattel mortgage, which was, on March 11, 1878, filed in the proper •office. On March J1, 1879, Smith, with the concurrence and under the ■direction of the plaintiff, made upon the mortgage the following statement, •viz.:
    “ Smithtown, March 11, 1879.
    ■“ This chattel mortgage is hereby renewed for one year from this date. As witness my hand and seal. CALEB T. SMITH, [l.s.]
    ■“ Sworn to before me this ) 11th day of March, 1879. j
    ‘ ‘ Jacob B. Conklin,
    Notary Public.”

      Held, that the effect of this act was to create a new mortgage, valid as against. Smith and his creditors.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The defendant, the sheriff of Suffolk county, seized, under an execution issued upon a judgment recovered by one Gorman against-Caleb T. Smith, certain articles of personal property which were-alleged to belong to tbe latter. The plaintiff claimed to he the-owner of certain of the articles, by virtue of a bill of sale, and of' others by virtue of a chattel mortgage, executed to him by Smith, and brought this action of replevin to recover the articles seized by the defendant.

      J. Lcmrenoe Smith, for the- appellant.

      Downi/ng c& Sta/nbrough, for the respondent.
   Barnard, P. J.:

The judge erred at the Circuit in holding, as matter of law, that the mortgage given by Caleb T. Smith, to the plaintiff, and filed March 11, 1878, ivas void and of no effect as to the defendant. It appeared from the evidence that on October 17, 1877, Caleb T. Smith executed a chattel mortgage to the plaintiff. This-mortgage was filed in the proper office March 11,1878. On March 11, 1879, Caleb T. Smith makes on this mortgage so filed, the following statement:

“ Smiti-itown, March 11, 1879.
“ This chattel mortgage is hereby renewed for one year from this date. As witness my hand and seal. CALEB T. SMITH. [l.s.J
“ Sworn to before me this 1 11th day of March, 1879. j
“ Jacob B. Conklin,
“Notary Public.”

The effect of this act by Caleb T. Smith was to create a new mortgage. It was in the power of the mortgagee alone to renew •.tbe old mortgage by making a statement within the thirty days next preceding the end of each year, after filing the mortgage, by ■filing a copy and making a statement of his, the mortgagee’s, interest in the property covered by the mortgage. The mortgage ■might also be kept alive by the mortgagor giving a new mortgage for the same debt and refiling it. This was the legal effect of what ■was done. By the concurrence and direction of the mortgagee, the -mortgagor re-executed the old mortgage and refiled it instead of making out a copy and executing it as a new mortgage, and refiling the same. The sheriff levied upon the property in question, after this re-executed mortgage was filed in March, 1879.

The judgment should, therefore, be set aside, and a new trial granted, costs to abide event.

Dtkman, J., concurred; Gilbert, J., not sitting.

Judgment and order denying a new trial reversed, and new trial granted, costs to abide event.


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    PERRIN H. SUMNER, Appellant, v. CORRA OSBORN, Respondent, Impleaded, &c., with HENRY HOSFORD.

      Motion by a defendant to be discharged from arrest because of the failure of the plaintiff to enter judgment — where it may be made — not necessary to show that the plaintiff hnew he was in actual custody — Code of Oivil Procedure, § 572.
    A motion under section 572 of the Code of Oivil Procedure, to discharge a defendant held in actual custody under an order of arrest, on the ground that the plaintiff has neglected to enter judgment in the action within one month after it was in his power so to do, need not be made in the judicial district or in the county adjoining the judicial district in which the action is triable, but may be made to a judge of the court in which the action was commenced, within the county where the defendant is hold in fcustody.
    ‘The right of the defendant to a discharge depends upon the fact of his being held in actual custody, and not upon the fact that the plaintiff or his attorney knew that he had been surrendered by his bail, and was so held.
    Appeal from an order discharging the defendant, Corra Osborn, from custody under an order of arrest.

      The action was brought to recover damages for an alleged false imprisonment of the plaintiff, and was commenced against the defendant Osborn by the service of the summons and complaint and an-order of arrest on September 8, 1877. The venue was laid in Kings county. On Sejitember 27, 1877, Osborn appeared in the action, and on the 29th his bail duly justified and he- ' was admitted to bail. His time to answer or demur expired on November 7, 1877, and no answer or demurrer was ever served by him. No further proceedings were had by the plaintiff against the-defendant Osborn until September 23, 1879, when notice of a motion for a writ of inquiry was served upon his attorneys by mail.. Between the last mentioned date and November 13, 1879, proceedings were had which resulted in an assessment of damages by a sheriff’s jury, which was the last act done or proceeding taken-, by the plaintiff against this defendant except to oppose the motion-for his discharge. On November 18, 1879, the order discharging-the defendant from arrest was made. Neither the plaintiff nor-his attorneys knew that Osborn had been surrendered by his bail,, nor that he was in actual custody, nor did the affidavits used in-, the latter’s behalf show how long he had been in actual custody.

      J. J. Perry, for the appellant.

      M. A. Knapp, for the respondent.
   Barnard, P. J.:

The defendant’s case falls within the provisions of section 572-' of the Code of Civil Procedure. The action was one for false imprisonment, and the order of arrest was granted by a justice of this court. The defendant Osborn put in 'no answer, and his-time to answer expired in 1877, and no judgment was entered for over a month after it., was within the plaintiff’s power to enter it. The defendant Osborn was in actual confinement in the common jail of Onondaga county,, and Justice Noxon, one of the justices of this court within that county,, upon due notice, made the order discharging him from custody. In this particular case the rule that all motions in an action must be-made in the district or in a county adjoining the district in which the-action is triable is abrogated. The motion may be made before a.. judge within the county where the defendant is in custody. No-reason was shown why the order of arrest should be used to keep the defendant in confinement under it, rather than upon an execution upon the judgment. If execution had been issued the defendant could have been released upon an assignment of his property. This section was passed expressly to prevent the continued imprisonment of persons under orders of arrest by a failure to enter judgment and issue execution thereon.' The right of the imprisoned defendant does not depend upon the fact that the plaintiff or his-attorneys knew of the actual custody of the defendant. It wholly depends upon the fact that the plaintiff neglected to enter judgment within one month after he could have done so.

The order should be affirmed, with costs and disbursements.

Gilbert and Dykman, JJ., concurred.

Order affirmed, with costs and disbursements.


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    M. V. MURPHY, Administratrix, &c. of HANNAH CARPENTER, Deceased, Respondent, v. D. M. CARPENTER and D. D. BARNS, as Administrators, &c., of L. S. CARPENTER, Deceased, Appellants.

      Mamed woman — not liable on a contract unless Tier separate estate is charged by it — inference that money not legally due from her under such a conti'act was applied as a payment on a debt due to her — presumption that her separate estate is benefited by the contract.

    The plaintiff’s intestate having during her lifetime presented a claim against the defendants as the administrators of her husband’s estate, based upon a promissory note for $500, given by him to her, it was, on being disputed by the defendants, referred, in accordance with the statute. On the trial it was shown that after the giving of the note, one Mary Murphy, who was a niece of the wife, and was sick and feeble, was taken into the family under an agreement that she should do as much work as she was able to do, and that the wife, who liad a separate estate, should pay to her husband one-half of her board, after deducting therefrom what she should earn.

      Held, that although the claim for the board of Mary Murphy could not be enforced against the wife, as she had not charged her separate estate with the payment thereof, yet, as it appeared that no payment of either principal or interest, nor any demand therefor had been made during the husband’s lifetime, and as no charge as to such board had been made by him in any of his books or papers, it was to be inferred, after the death of both of the parties, that the board was, by mutual consent, applied upon the note, and that the referee should have treated the amount found to be due therefor, as a payment upon it.

      ,Semble, that a married woman should be deemed to have benefited her separate estate by the performance of every contract she makes, and should be able to enforce it, and be liable to have it enforced against her, simply because she had made it the same as if she were unmarried. (Per Barnard, P. J.)
    Appeal from a judgment in favor of tbe plaintiffs, entered upon tbe report of a referee, appointed pursuant to tbe statute, to bear .■and determine a disputed claim against tbe estate of Leonard S. •Carpenter, deceased.
    Tbe disputed claim was based upon a note of $500, dated October 1, 1872, made by Leonard S. Carpenter, and payable to tbe order ■of Hannah Carpenter, bis wife, who died since tbe death of her husband, and after tbe commencement of this action.
    It was proved that tbe said Hannah Carpenter, at the time the note was given, owned, as her separate property, a mortgage against one ¥m. Henderson for $6,000. On September 30, 1872, Henderson, to make a payment on tbe mortgage, gave bis check for $1,200, j>ayable to tbe order of L. S. Carpenter, or bearer. Leonard S. Carpenter took the check to tbe bank and drew tbe money on it. He caused $500 to be placed to bis own credit in tbe bank and received tbe balance, $700, in money. Tbe note in question was given tbe following day. The defendants set up several alleged counter-claims, among them one for the board of one Mary Murphy, .a niece of Mrs. Carpenter, which was disallowed by tbe referee. It was not proved or claimed that Hannah Carpenter ever- charged her separate estate with the payment of this item. The referee reported in favor of tbe plaintiff for tbe amount of tbe note and interest, after deducting $112 for money advanced by tbe husband for tbe wife’s benefit, and also an item of $22 for a veil purchased by tbe administrators for Hannah Carpenter, immediately after her husband’s death.

      C. Haines and JD. JMJ. Carpenter, for the appellants.

      JE. A. Brewster, for the respondent.
   Barnard, P. J.:

The report of the referee is fairly supported by the evidence in .reference to the note in question. It was dated October 1, 1872, ;and-was given by L. S. Carpenter, who is the defendant’s intestate, to Hannah Carpenter, his wife, who is the plaintiff’s intestate, for ■$500. It was proven that Hannah Carpenter had separate property, -and that on September 80, 1872, L. S. Carpenter received from •one Henderson $1,200. $500 of this was deposited to the bus-hand’s' credit in the bank, and $700 was drawn in cash. The next day this note was given. There was proof given tending to show that the husband had paid some money for the wife, not to a large .amount. It is a fair inference that the accounts of the parties were ■settled when the note was given, especially as the $700 received hy the husband was a much larger amount than would pay all his -claims against his wife. Besides, there is no proof showing any •open account upon the husband’s books against his wife, except for a small balance of $21.60, which forms no part of the dispute in ■this case, but as to which no proof was given to establish it as a •claim against the wife.

I think the referee erred in not allowing to defendants against the .note the $285, for the board of Mary Murphy. She was Mrs. ■Carpenter’s niece. She was sick and feeble. She went into the family of the intestate of the defendants upon the request of his wife, and upon her promise to pay her husband half her board after •deducting what she could earn. One witness states that the contract was for Mrs. Carpenter to pay one-half the board to her husiband, and that Mrs. Murphy was to pay the other half by her work for him. There is nothing in the marital relation which, in equity, prevents a wife making a contract like this. This proceeding includes both legal and equitable claims. The husband’s claim against the wife was as good, so far as the marital relation affected the ■question, as that of the wife against the husband. The referee finds that there was no agreement by which the wife bound her separate estate. The law on this subject is not yet fully settled. A wife is bound when she in terms charges her separate estate. She= is bound when the contract is for the benefit of the separate estate,, without any reference to her separate estate being made in the contract. Her separate estate is benefited when she, by the contract, creates it. It is benefited when it adds to it, and when, by the-contract, she defends and preserves it. The true rale would -seem to be that a married woman should be deemed to benefit her separate estate by the performance of every contract she makes. That, she should be left free to determine when to make a contract, and that she should be able to enforce it, andbe bound to have it enforced against her, simply because she had made it the same as if she was. unmarried. Under the cases there being no contract to bind the-separate estate, the claim is probably not to be upheld. It seems,, however, that it should be 'upheld as a payment. The contract was-made after the note was given; no-interest was paid upon the note after its date. There seems to be no charge on the deceased husband’s books, or among his papers, referring in any way to this-board. There does not seem to have been any demands made by the wife for the interest or principal on the note of her husband in his lifetime; both parties are dead, and there is no better proof than an inference to be drawn from the acts of the’parties, which seems to justify the conclusion that the board was, by mutual consent, applied, in fact, upon the note. Such an inference would b& just as between the parties.

Judgment modified by deducting $285, with interest thereon from November 20,1875, and affirming it in other respects, without, costs on this appeal.

Dykman, J., concurred in the result.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment modified by deducting $285, with interest from October .20, 1875, and affirmed as to residue, without costs on this appeal.