text:
    LYDIA WORMUTH, Respondent, v. A. FAYETTE TRACY and ELLEN S. TRACY, as Executors, etc., of FANNY HEARSEY, Deceased, Appellants.

      Parol evidence — admissibility of, to explain ambiguity in aii assignment of

    The plaintiff herein assigned to one Storke two bonds and mortgages, by an instrument purporting to assign them wholly, but containing the following words “ upon which there is to he credited, reducing the two mortgages to the sum of §5,500 at this date.”
    In an action by the plaintiff against an assignee of the said mortgages, to redeem the same on payment of the amount due, held, that it was competent to prove, by parol, that the mortgages were not assigned absolutely, but upon a loan of §5,000 to plaintiff upon the agreement that if this sum were not repaid in three months, the interest of the assignee therein should be §5,500.

      Held further, that the words of limitation were to be construed as a reservation to the assignor of the amount over §5,500, and not as a statement of the amount due from the mortgagors.
    Appeal from a judgment in favor of the plaintiff, entered in Onondaga County upon tbe report of a referee.
    The referee executed to one Storke an instrument by which he granted, bargained, sold, assigned, transferred and set over, and by those presents did grant, bargain, sell, assign, transfer and set over unto the said party of the second part, two certain indentures of mortgage, bearing date the 6th day of November, 1869, one made by Andrew Dardis and wife, of $5,000, and the other by William Flanagan for $1,800 ; the assignment containing the following clause: “upon which there is to be credited, reducing the two mortgages to the sum of $5,500 to this date.” Together with the bonds or obligations therein described, and the money due and to grow due thereon, with the interest. To have and to hold the same unto the said party of the second part forever, subject only to the proviso in the said indenture of mortgage mentioned. It was claimed in the complaint that the whole amount secured by the Flanagan bond and mortgage and a portion of the sum secured by the Dardis mortgage had been paid before this action was brought.
    The plaintiff, by her complaint, demanded, among other things, that the defendants, the executors of Hearsey, be required, on their receiving the sum of $1,858.69, with interest from the 17th of May, 1875, on a certain bond and mortgage of $5,000, made by Andrew Dardis to the plaintiff on 1st November, 1859, to reassign said bond and mortgage to the plaintiff, or to pay her the remainder of the sum payable by the terms thereof, being the sum of $2,064.52, with interest from 17th May, 1875. The answer of the executors alleged that their testatrix purchased said bond and mortgage, and paid full value therefore in good faith. It appeared in evidence that the testatrix claimed title to the bond and mortgage by assignment from the National Bank of Cazenovia, the bank from William L. Storke, and Storke from the plaintiff. The question in dispute depended upon the construction of the words of limitation in the assignment, that is, whether the limitation was intended for the benefit of the moi’tgagors by reason of their having paid the mortgages down to $5,500, or whether it was intended as a reservation to the assignor of the money, payable by the terms of the mortgages over and above the sum of' 1 $5,500. The referee reported that the plaintiff was entitled to relief substantially as above stated, with costs.

      B. W. Cameron, for the appellants.
    The referee erred in receiving evidence of a pretended parol agreement between Storke and Mrs. Wormuth, in relation to the assignment, made prior to or cotemporaneously with the drawing and execution of the assign-' ment. (ParJeer v. City of Syracuse, 31 N. Y., 376; Colwell v. Lawrence, 3.8 id., 71; Codes v. BaJcer, 49 id., 107; JDent v. N. A. Steamship Co., 49 id.', 390; Mott v. Richtmyer, 57 id., 49; ' Bush v. Tilley [General Term], 49 Barb., 599; Buckley v. Bentley, 48 id., 283.) The plaintiff lias been guilty of laches, which would defeat any. claim against the executors. (Finch v. Parker, 49 N. Y., 1; Platt v. Platt, 58 id., 646; Ormsby v. V. Copper M. Co., 56 id., 623; Medbury v. Swan, 46 id., 200.)

      Lansing & Lyman, for the respondent.
    The assignment upon its face is notice to any and all subsequent assignees of the extent of Storke’s interest in the two mortgages, and the remaining interest of the plaintiff in them. (4 Kent’s Com. [8th ed.], 190; Thomas on Mortgages, 149; Craig v. Tappan, 2 Sandf. Ch., 78; Acer v. Wescott, 46 N. Y., 384, and cases there cited.) The evidence as to the consideration of the assignment to Storke was competent. Parol proof of the consideration of a written instrument, when material, is always competent. (Barrett v. Carter, 3 Lans., 68; Despard v. Walbridge, 15 N. Y., 374; Hodges v. The Tenn. Marine <& Fire Ins. Co., 8 id., 416; Adams v. Hull, 2 Denio, 306; Seaman v. Hasbrouck, 35 Barb., 151; Frink v. Green, 5 id., 455, and cases there cited.)
   Smith, J.:

The written instrument, by which the Darclis bond and mortgage of $5,000 were assigned by the plaintiff to Storke, transferred also a bond and mortgage of $1,800, made by one Flanagan. The assignment described the bonds and mortgages as of those amounts, respectively, and contained words which purported to assign the whole, but those words were followed by others, which limited the assigned interest in the two mortgages to the sum of 5,500; as of the date of the assignment. The words of limitation were as follows: “Upon which there is to be credited, reducing the two mortgages to the sum of $5,500 to this date.” In addition to this, the consideration expressed in the assignment was the sum of $5,000. Thus, the assignment showed very clearly, on its face, that the interest intended to be assigned in the two mortgages, and to which alone the assignee was equitably entitled, notwithstanding the formal transfer of the whole, was only the sum of $5,500.. As Storke could not transfer any more than he owned, neither the bank nor Mrs. Hearsey acquired any greater interest than was assigned to Storke. So far, the case is plain. But, in one respect, the language of the assignment is doubtful. It is uncertain whether the limitation was intended for the benefit of the mortgagors, by reason of their having paid the mortgages down to the sum of $5,500, or whether it was intended as a reservation to the assignor of the money payable by the terms of the mortgages, over and above the sum of $5,500. The parol testimony, which was received by the learned referee against the objection and exception of the defendants, was properly resorted to, in order to clear up the obscurity of the writing. That testimony, taken in connection with the assignment, fully warranted the conclusion of the referee that the bonds and mortgages were assigned by the plaintiff to Storke, as security for a loan of $5,000, with the understanding that if the money loaned was not repaid in three months the assignment should become absolute for $5,500, thus securing to Storke a bonus of $500 for the loan, and that the plaintiff should have the residue of the two bonds and mortgages out of the avails of the Dardis bond and mortgage. The parol testimony was not received to contradict or vary the written instrument, but to explain it. We think there was no error in the reception of the testimony; and the referee having found, upon sufficient evidence, that Mrs. Hearsey, her assignees or executors, had or claimed the full benefit of the two bonds and mortgages, and that her executors refused the several propositions of the plaintiff set out in the findings, based upon his equities, as above stated, we are of the opinion the judgment should be affirmed, unless there is force in the position taken by the appellant’s counsel that the plaintiff is chargeable with laches, which should defeat her claim against the executors. The question of laches will be briefly considered. The assignment to Storke was made May 17, 1870. Mrs. Hearsey took her assignment, April 11, 1871, and she died June 9, 1873. The referee has found that the plaintiff applied to Storke, about September 1, 1870, to redeem the mortgages, but that he made no application to Mrs. Hearsey, in her life time, nor did he apply to her executors till August 12, 1875. In consequence of the delay, on the part of the plaintiff in calling upon the executors, the referee relieved them from the payment of compound interest on the principal sum, and charged them simple interest only. In view of tbat ruling, it is not apparent that her estate has suffered by the plaintiff’s delay. The acquiring of new rights by other parties, and the loss of evidence by reason of the death of Mrs. Hearsey, are suggested by the appellant’s counsel as injurious consequences of the plaintiff’s delay. There is evidence that Mrs. Hearsey assigned the mortgages, but it is not necessary to advert to it, as it does not appear that her estate is in any worse position, in respect to the plaintiff’s claim, than it would have been in if the assignments had not been made.. As to the alleged loss of evidence, it does not appear, and there is no reason to suppose that Mrs. Hearsey, if living, could testify to anything material to the issue. If the views we have expressed are correct, the extent of her rights and obligations in respect to the bonds and mortgages was fixed by the terms of the written assignment to Storke, finder which she made title. It does not appear that she had knowledge of the matters to which the parol testimony related, and the plaintiff’s case does not rest upon any transaction had with her personally.

The judgment should be affirmed, with costs.

Mullin, P. J. and Talcott, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    PETER LEARN, Respondent, v. WILLIAM CURRIER, Appellant.

      When title to real property comes in question— Pode, § 304.
    The complaint alleged that the defendant entered upon the plaintiffs close, tore away and destroyed his watering trough, diverted a stream of water running therefrom from its natural channel, and turned it upon plaintiff’s meadow. The answer alleged that there was a highway running through plaintiff’s close; that defendant entered as overseer of highways, by direction of the commissioner, and repaired the highway and watering trough, and denied that he diverted the stream from its natural channel. The referee found that the watering trough was on the side of a highway, and that defendant was overseer, but also found that defendant wrongfully diverted the stream from its natural channel, and gave judgment for plaintiff for one dollar.

      Ilelcl, that the plaintiff did not recover upon a cause of action in which a claim of title to real property came in question, within section 304 of the Code, and that defendant was entitled to costs.
    Appeal from an order made at the Erie Special Term, denying defendant’s motion to set aside a certificate of the referee before whom the cause was tried, certifying that the title to land came in question, and to vacate a judgment for costs in the plaintiff’s favor, and to direct that a defendant’s costs be adjusted by the clerk. The action was brought in the Supreme Court to recover for defendant’s alleged destruction of a watering trough on plaintiff’s land, and the diversion of a stream of water from its natural channel, and turning it upon plaintiff’s meadow.

      G. M. Osgoodby (Loveridge ■& Swift, attorneys), for the appellant.

      A. G. Rice, for the respondent.
   Smith, J.:

The complaint alleged that the defendant broke and entered the plaintiff’s close (which was particularly described by metes and bounds), and tore away and destroyed his watering trough, diverted from his barn-yard a stream of water used for watering his stock and other farm purposes, and turned the same upon his pasturing and meadow land where it was unaccustomed to flow. There were two counts, one of which alleged that the acts complained of were done willfully and maliciously. The answer alleged that there was a public highway running through the premises described in the complaint, and that the defendant, as overseer of highways and under the direction of the commissioner, repaired the highway and a certain watering trough which had theretofore been erected at the side of the highway and within its limits, and which belonged to the town and was dedicated to the use of the public traveling in the highway; and that the acts and things which he did, in and about such repairs, were the same acts, grievances and things complained of in the complaint. The answer further denied that ’ the defendant broke and entered the plaintiff’s close, or did any of the other acts specifically alleged in the complaint, as above stated. The answer also alleged that the water ivas not diverted from its natural channel. The referee found that the plaintiff owned in fee the land described in the complaint; that there Avas a public highway running through it, and that the defendant was overseer; that the water from a spring on said land iloAved to the side of the higlrsvay, and the plaintiff had conducted it into a trough constructed by him on the side of the highway and within its bounds, and from the trough the water floAved in a ditch along the side of, and under the road to the plaintiff’s barn-yard into a trough for the use of his cattle; that said channel Avas the natural course of the water, and it had flowed there a long time; and that the defendant unnecessarily and unlawfully changed the water from its natural channel within the bounds of the highway, and turned the same upon the plaintiff’s pasture lands, where it was unaccustomed to floAV, and deprived the plaintiff of the use of it in his barn-yard to his damage of one dollar, for which sum ho found the plaintiff was entitled to judgment. The referee certified that the title to land came in question at the trial. The action Avas commenced in this court. The question to be decided is, which of the parties is entitled to costs ?

Section 304 of the Code of Procedure provides that costs shall be alloAved, of course, to the plaintiff, upon a recovery * * * in an action for the recovery of real property, or Avhen a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial. In Burhans v. Tibbitts (7 How. Pr. R., 74), a construction was given to that section by the General Term in the third district. Mr. Justice Wright, delivering the opinion of the court, said, that “ Avhen the section speaks of a recovery in an action where a claim of title arises, it means that such claim of title shall arise on the entire pleadings, and that the recovery shall be in hostility to such claim.” That was an action originally commenced in this court for a wrongful entry upon, and injuries to, real property; the title Avas put in issue by the pleadings, and the jury found the title in the defendants, but also found that the plaintiff was entitled to recover fifty cents for the conversion of certain personal property of the plaintiff found on the premises. Held, that it was not a recovery within the meaning of section 304, and that the plaintiff was not entitled to costs.

In the present case it is true that the answer, by setting up the existence of a public highway, raised an issue of title; but here, as in the case of Burhans, the issue of title was found in the defendant’s favor, and the plaintiff recovered for a cause of action distinct from that of guare clausum fregit. He recovered upon the finding that the defendant had diverted a stream of water from its natural channel in the highway, and thereby cast the water upon the plaintiff’s pasture, and deprived him of the use of it in his barn-yard. The damages ‘recovered were consequential and not direct, and an action for their recovery alone would have been within the jurisdiction of a justice of the peace. (Arnold v. Foot, 12 Wend., 330.) There was no cause of action for diverting the water stated in the complaint. All that was alleged in respect to it was by way of aggravation of the damages caused by the wrongful entry, which was the gravamen of the action. (Van Leuven v. Lyke, 1 Comst., 515.) If the plaintiff had set out in his complaint the real cause of action for which he recovered, to wit, that the defendant, in repairing the highway, as an overseer, wrongfully diverted the water from the channel in which it was accustomed to flow upon the plaintiff’s land adjoining the highway, a mere denial would have been the only defense needed. No question of title would have arisen (Rathbone v. McConnell, 21 N. Y., 466), and the defendant would have been entitled to costs in case the plaintiff recovered less than fifty dollars. (Code of Procedure, § 304, sub. 4, § 305 ; Turner v. Van Riper, 43 How. Pr. R., 37.) I do not think that the plaintiff entitled himself to costs by unnecessarily framing his complaint in such a manner as to require the defendant to set up a plea of title, together with a denial, upon which plea the defendant has succeeded.

These views do not conflict with Hall v. Hodskins, decided by the General Term in the fourth district. (30 How. Pr. R., 15.) In that case the action was commenced in a justice’s court. The defendant pleaded that the locus in quo was a highway, as a full defense to the entire cause of action, and so ousted the justice of jurisdiction. The action was prosecuted in this court on the same pleadings, and the plaintiff withdrew his claim for acts done on the highway, set up by the defendant, and recovered less than fifty dollars for the other trespasses complained of on other portions of the locus in quo. It was held that the plaintiff was entitled to costs. Bocees, J., delivering the opinion of the court, said : “ The defendant had it in his power to limit his justification to such acts of entry upon the locus in quo as were protected by his right of way.” (p. 29.) In the present case, as has been seen, the acts for which the plaintiff recovered were not acts of entry. Besides, there was but one statement of defense, and the answer that the locus in quo was a highway also, deified specifically the alleged interference with the water course, so that the highway was not pleaded as a defense to the entire cause of action. It does not appear that any objection was made to the form of the answer.

The order should be reversed, and the relief asked for at Special Term should be granted, with ten dollars costs and disbursements of the appeal, and ten dollars costs of the motion at Special Term.

- Noxony-J.,..concurred.Talcott, P. J., did not sit.

Ordered accordingly.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. PHILIP GARBUTT, Respondent, v. THE ROCHESTER AND STATE LINE RAILROAD COMPANY, and others, Appellants.

      One accepting a favor, cannot appeal.

    One who has sought and enjoyed an extension of time within which to comply • with a peremptory mandamus, cannot thereafter appeal from the order directing that the mandamus issue.

      Appeal from an order of the Special Term in Monroe, directing a peremptory maridamus to issue, commanding the railroad corporation, and the other defendants composing its board of directors, to construct fences and cattle-guards on the line of its road.

      G. F. Danforth, for the appellants.

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

• The order appealed from shows, upon its face, that the only defendants who opposed the granting of it were the railroad corporation and Mr. Harris; consequently, they only can be heard on the appeal. The order also shows that Mr. Harris appeared in his own behalf, and also for the company, and that the opposition made by him consisted in his reading his own affidavit, which is contained in the appeal papers, and asking to have the motion stand over until the next Special Term. The affidavit stated, in substance, that the company was without means to complete its road, and that negotiations were then pending between the company and responsible parties for the construction of the road by the first day of January, 1877, and that, in the belief of the deponent, such contract would be made within ten days. Thereupon, in the order for the mandamus, which bears date the 29th of August, 1876, was inserted a clause giving the defendants time till the first day of January, 1877, to comply with the requirements of the writ. From this, it is to be inferred that the only opposition made by the defendants who appeared was to ask for further time, to enable the company to do what was.required of them, and the order was so framed as to comply with their request. They might have been required to proceed forthwith. In these circumstances, we think the appeal should be dismissed, on the ground that the defendants, having secured and enjoyed a favor granted them by the order, cannot now be heard to complain of it. Indeed, it is not too much to say that the motion at Special Term was not opposed by them on its merits, and that the order, as made, was with their consent, but we rest our decision upon the ground first stated. (Bennett v. Van Syckel, 18 N. Y., 481; Knapp v. Brown, 45 id., 209; Murphy v. Spaulding, 46 id., 556; McElwain v. Willis, 9 Wend., 553.)

Appeal should be dismissed, with $10 costs and disbursements.

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

Appeal dismissed, with $10 costs and disbursements.


text:
    GEORGE WING, as Receiver, Plaintiff, v. MARIA DISSE and FREDERICK DISSE, Defendants.

      Receive}' in supplementary proceedings — title of, to real estate — power of County Judge to accept resignation of, and appoint a successor.

    A receiver, appointed in supplementary proceedings under section 292 of the Code, is vested with the real estate of the debtor by virtue of his appointment, the filing of the security required, duly approved, and the entry and recording in the proper clerks office of the order of appointment, without any conveyance being made to him by the judgment-debtor.
    A county judge has power to accept the resignation of a receiver in supplementary proceedings and to appoint his successor.
    Motion for a new trial, on exceptions ordered to be heard, in the first instance, at the General Term, after a verdict in favor of the plaintiff at the Erie Circuit. The plaintiff to make out his cause of action proved, among others, the following facts, which were not contradicted by any proofs offered by the defendants or either of them, to wit: That Samuel F. Pratt and others, on or about the 15th day of November, 1854, recovered a judgment in the Supreme Court against the defendant, Frederick ’ Disse and one Louis Berg, for the sum of $166.25 damages and $10.00 costs, the judgtoent-roll being filed and the judgment being docketed on that day in the office of the clerk of the county of Erie, in which county said Frederick Disse then resided and has since resided up to this time. That thereafter an execution was issued on said judgment against the property of said defendants, and of each of them, and delivered to the sheriff of said county of Erie, which execution was by the said sheriff on the 13th day of January, 1855 returned and filed in the office of said clerk of the county of Erie, the same being wholly unsatisfied. That thereafter and on or about the 25th day of September, 1867, the said judgment-creditors commenced proceedings supplementary to said execution against the defendant Frederick Disse, by obtaining an order therefor from his Honor, Stephen Lockwood, county judge of Erie county, in which proceedings the said county judge made and entered an order, by which he appointed John Girard Johnson, Esq., then of Buffalo, receiver of all debts, property, equitable interests and things in action, of said Frederick Disse, said judgment-debtor, and which order also among other thing, required the said receiver to execute a bond. That the said Johnson as receiver executed the bond as required by the order, obtained the approval of said judge thereto, and filed the said order appointing him receiver, and the said bond, in the office of the clerk of the county of Erie, on the first day of November, 1867, on which day the said clerk recorded the said order. That at the time of the commencement of said proceedings supplementary to said execution and at the time of the recording of the order appointing said receiver, as aforesaid, the said Frederick Disse was the owner in fee of the premises described in the complaint. That said judgment-creditors and said receiver had no knowledge that said Disse was the owner of said premises, at the time of the appointment of said Johnson as receiver, or until on or about the first day of January, 1875, at which last date said Johnson was a resident of Chicago, in the State of Illinois. That said county judge, on or about the 24th day of January, 1876, John Girard Johnson having resigned as receiver, made and entered an order appointing George Wing, Esq., of Buffalo, the plaintiff in this action, receiver in said proceedings in the place and instead of said John Girard Johnson, and directing that the said Wing should execute a bond for the faithful discharge of his duties as such receiver, in the sum therein named, and with sufficient sureties, all to be approved by the said judge, and that said order and said bond be filed in the office of the clerk of the county of Erie, and further providing that the said resignation of said Johnson and the appointment of said Wing should take effect simultaneously, and upon the recording of the said order in the book of orders appointing receivers of judgment-debtors in said clerk’s office. That the said George Wing, as receiver, executed the bond as required by the said order, obtained the approval of the said judge thereto, and filed the said order and the said bond in the office of the clerk of the county of Erie on the 24th day of January, 1876, and that the said order was on the day last mentioned recorded in the book of orders appointing receivers of judgment-debtors, by said clerk of Erie county, of all which proceedings hereinbefore stated, said defendant, Frederick Disse, had due notice.
    There was no evidence introduced or offered to be introduced on the part of the plaintiff, proving or tending to prove the execution of any conveyance of said premises by said Frederick Disse or any other person or party, to said John Girard Johnson, as receiver, or to George Wing as receiver, as the substitute of said Johnson, save and except by virtue of the orders made by the county judge of Erie county, and recorded in the books of orders appointing receivers of judgment-debtors as hereinbefore stated.

      8. O. Adams, for the plaintiff.
    The county judge had power to substitute Wing as receiver in place of Johnson. (High on Deceivers, § 96; Fassett v. Tallmadge, 13 Abb., 12; see sections 298 and 324 of the Code; Miller v. Rossman, 15 Plow., 10: Bit-, ting v. Vandenburg, 17 id., 80; Smith v. Johnson, 7 id., 39; Webber v. Ilobbie, 13 id., 383; 29 id., 360.) That the court has the authority to substitute one receiver for another, when it has the power to appoint, is well' settled in practice. (See Edw. on Dec’r, 547; High on Dec’r, § 821; Beers v. The Chelsea BJc., 4 Edw. Ch. D., 278; Fassett v. TaUmadge, 13 Abb., 12; Siney v. JST. Y. Consol. Stage Co., 18 id., 435; 28 How., 481; 60 Barb., 423.) Title to the premises passed from Frederick Disse to the receiver, by operation of law, upon the filing of the bond of the receiver, and of the order appointing him, in the office of the clerk of the county of Erie, and the recording of said order by said clerk, in the book of orders appointing receivers of judgment-debtors, and without any conveyance from Disse to the receiver. (Code, § 298; Hayes v. Buckley, 53 How. Pr., 173; Rorter v.
      Williams, 9 N. Y., 148; Edmonston v. McLoud, 16 id., 544; ■Becker v. Torrance, 31 id., 640, 641; Bostwick v. Menck, 40 id., 386, 389; Baker’s Supplement to Redelles’ Supplementary Proceedings, 142; High on Rec’r, § 447; 37 Barb., 613; 41 N. Y. Sup’r Ct., 529.) A receiver may bring actions and prosecute the same to judgment, to recover property, or collect a debt from a party who claims an adverse interest to him. (Code, § 299; Porter v. Williams, 9 N. Y., 147; Seymour, Receiver, v. Wilson, 14 N. Y., 567; Edmonston v. McLoud, 16 id., 543; Rodman v. Harry, 17 id., 484; Bostwick v. Menck, 40 id., 383; Winjield\. Bacon, 24 Barb., 155; Runk v. St. John, 29 id., 585; Devendorf v. Dickinson, 21 How., 275; Underwood v. Suttcliffe, 10 Hun, 453; High on Rec’r, § 213.)

      Thomas C. Holmes, for the defendants.
    The receiver, John Girard Johnson, was not vested, by virtue of his appointment as receiver, with title to the premises mentioned in the complaint, nor was his successor, George Wing, the plaintiff in this action. {The Chautauqua Bk. v. Risley, 19 N. Y., 375; Moak v. Coats, 33 Barb., 498; Scott v. Elmore, 10 Hun, 68.)
   Smith, J.:

. This is an action to recover the possession of certain real estate in the city of Buffalo. The property formerly belonged to the defendant, Frederick Disse, who, as the jury found, was in possession of it at the time of the commencement of the action. The plaintiff claims title by virtue of his appointment as receiver of the property of Frederick Disse in proceedings against Disse supplementary to execution, had before the county judge of Erie county, under section 292 of the Code of Procedure. ■ The proceedings were commenced on September 25, 1867, upon a judgment docketed on November 15, 1854. The first receiver appointed was John Girard Johnson, who, having subsequently removed from the State, resigned his office, and thereupon the county judge of Erie accepted his resignation and appointed the plaintiff in his place. The defendant, Marie Disse, who is the wife of Frederick, claims title under a deed executed by her husband subsequently to the appointment of Johnson as receiver. No conveyance was executed by Disse to the receiver.

It is insisted upon by the counsel for the defendants, that the title to the real estate did not pass to the receiver, by virtue of his appointment, without a conveyance. We think the position is not tenable. • But as there is some apparent conflict of authority upon the question, a full expression of our views may not be out of place. Section 298 of the Code of 1849 provided for the appointment by a judge of a receiver of the property of a judgment-debtor in supplementary proceeding, in the same manner and with the like authority as if appointed by the court under section 244. The section last named authorized the court to appoint receivers according to the practice then existing, except as otherwise provided by the Code. Before the Code, a common-law receiver did not take title to the debtor’s real estate, by virtue of his appointment, nor under an ordinary assignment, except in cases where the court specially directed the debtor to convey his real estate to the receiver. (Chautauqua County Bank v. White, 2 Seld., 236.) But the word “ property,” as used in the Code, was defined in section 464 to include real and personal. In view of the statutory definition of the word, Judge Willard, sitting in the Court of Appeals, expressed the opinion that a receiver appointed by a judge in supplementary proceedings obtains title to the debtor’s real-estate as well as his personal propei’ty, by force of the order for his appointment, when the appointment is completed. (Porter v. Williams, 5 Seld., 142, 1853.) But in Moak v. Coats, decided by the General Term in the sixth district, in 1860, Campbell, J., speaking for the court, regarded the opinion of Willard, J., as obiter dictum ; and it was decided in that case that a receiver in supplementary proceedings takes the personal estate of the debtor by force of his appointment, but that the real estate vests in him only by virtue of a conveyance to him which the court has power to compel. (-3.3 Barb., 498.) That decision was affirmed by the Court of Appeals in September, 1867, but upon^ what ground does not appear. (33 How. Pr. R., 618.) The court in the sixth district relied mainly upon the case of Chautauqua County Bank v. Risley (19 N. Y., 374). But that case did not involve the construction of the provisions of the Code above referred to. The receiver, whose title was in question in that case, was appointed m an action brought by a judgment-creditor to set aside a conveyance of real estate as fraudulent, and a decree to that effect having been obtained, the creditor, through the receiver, had the real estate sold for the satisfaction of his debt. It was claimed that the purchaser from the receiver acquired a title free from the liens which had attached in favor of junior creditors, as well before as after the filing of the bill. But the court, rejecting that view of the matter, reiterated the doctrine that the receiver took title to the real estate only by force of the debtor’s own conveyance, and consequently that his title was subject to the liens that had attached before the conveyance was made. Clearly the case is not an authority upon the question, whether in supplementary proceedings under the Code the receiver takes title to the debtor’s real estate by force of his appointment. In Moak v. Coats, stress was laid upon the consideration that unless a conveyance is required to pass the debtor’s title, the provisions of the recording act for the protection of purchasers would not come into operation. Subsequent legislation has removed the force of that argument, by requiring that the order for the appointment of the receiver shall bo filed and recorded in the office of the clerk of the county where the judgment roll is filed (Laws 1862, ch. 460, § 15), and also that a certified copy of such order be filed and recorded in the office of the clerk of the county in which any real estate of the debtor sought ■ to be affected by such order is situated, and also in the office of the clerk of the county in which the debtor resides. (Laws 1863, ch. 392, § 1, p. 661.) That these two amendments, just now referred to, contemplated a transfer of the debtor’s real estate, as well as his personal property, by force of the order for the appointment of the receiver, when the appointment is completed, is apparent from their language. The amendment of 1862 provides that a certified copy of the order shall be delivered to the receiver, and ho shall be vested with the property and effects of the judgment-debtor from the time of the filing and recording of the order. That of 1863 requires the copy of the order to be filed and recorded, as therein provided, before the receiver shall be vested with any real property of the judgment-debtor, very plainly indicating that when done the real property shall vest in the receiver. These provisions are so clear to our minds that we would have been content to declare the law as we find it written, but for the fact that since those amendments were adopted the decision in Moak v. Coats has been followed by the General Term in the second department, in the case of Scott v. Elmore (10 Hun, 68). But in that case the learned judge who wrote the opinion did not advert to the amendments of 1862 and 1863. He relied mainly upon the cases of Bank v. Risley and Moak v. Coats, and he evidently yielded to the cogent argument of Judge Comstock in Risley’s case, that a court of equity has not power to cut off the right of redemption of a junior judgment-creditor, whose judgment ivas docketed before the proceedings in equity were instituted. That doctrine is not questioned. It was acted upon by this court in Dawley v. Brown (65 Barb., 107). But we are not now dealing with the ordinary powers of a court of equity. The question is, .what is the effect of an appointment of a receiver under section 298 ? The right to redeem land sold under an execution is a purely statutory right, which the Legislature may modify as they see fit.

In the present case the fee of the land was in the judgment debtor, at the time when the supplementary proceedings were commenced, it having been devised to him by a former wife, but that fact was not known to the creditors when they instituted the proceedings. .The debtor, on his examination in those proceedings, testified that he owned no real estate. The lien of the judgment and the right to issue execution upon it had expired by lapse of time, before the creditor discovered that the debtor owned the real estate. We are of the opinion that the title to it passed to the receiver by force of his appointment.

The point is taken by the appellant’s counsel that the judge had no power to accept the resignation of the first receiver and appoint a successor. We think it enough that he was expressly authorized to appoint a receiver with the like authority as if the appointment were made by the court. The court would have had authority to accept the resignation of a receiver appointed by it and to appoint a successor. It is true a receiver appointed by a judge in supplementary proceedings is subject to the direction and control of the court in which the judgment was obtained, (Code, § 298 as amended in 1862), but that provision is fully satisfied by holding that the court has the direction and control of the receiver, in respect to his discharge of the trust confided to him, and does not relate to his appointment or to the acceptance of his resignation by which he is relieved of the trust.

An exception was taken to the admission of evidence that Frederick Disse applied for a license to keep a saloon on the premises in suit, and paid the license fee. The evidence was admissible. Taken in connection with the fact that a saloon was kept on the premises, and that his name was on the sign over the door, it tended to show that he, and not his wife, was in possession of the premises.

The motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict.

Talcott, P. J., and Habdin, J., concurred.

Ordered accordingly.


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    JOHN E. JACOBS, Respondent, v. WILLIAM J. HOGAN and WILLIAM EDWARDS. FRANK H. WHITMAN and EDWIN B. WHITCOMB, Appellants, v. WILLIAM J. HOGAN and WILLIAM EDWARDS.

      Irregularity in attachment — when it cannot ~be taken admantage of by a subsequent attaching creditor.

    In the absence of fraud or collusion, any irregularity in the issuing of an attachment, which is waived by the debtor, cannot be taken advantage of by a subsequent attaching creditor.
    Appeal by the plaintiffs in the second action from an order of the Erie Special Term, denying their motion to vacate a warrant of attachment issued in the first action.
    On July 6, 1877, an attachment, under the Code, in the first of the above cases, was issued to the sheriff of Erie county against the property of the defendants, as non-resident or absconding debtors, founded upon the affidavit of one of the attorneys for the plaintiffs, and which attachment was accompanied with a summons in the action, and by virtue thereof the sheriff seized the personal property, consisting of boots, shoes, etc., of the defendants. The defendants were not served with the summons, and did not appear in the action; and, on October 8, 1877, judgment by default was got therein and an execution issued to the sheriff, which he levied upon the property which he had attached.
    On July 14, 1877, eight days after the above attachment was issued, the second of the above actions was commenced in favor of the plaintiffs, Whitman and Whitcomb, against the same defendants, in which an attachment was also issued to the same sheriff and levied on the same property. On October 20, 1877, judgment was entered in said action, and an execution issued thereon to said sheriff, and levied on the said property; after which, said Whitman and Whitcomb made a motion, at Special Term, to vacate and discharge the attachment, in the first case, on the ground of the insufficiency of the affidavit on which the same was founded, and of the summons issued with it. It was claimed that the affidavit on which the attachment issued was fatally defective, in that it did not show any cause of action, or state the grounds of the plaintiff’s claim, and that the summons was defective in not being-subscribed by the plaintiff or any attorney. The court, at Special Term, held the said affidavit' and summons to be insufficient, but denied the motion on the ground that no one but the defendants themselves could take advantage of the defects. From the decision at Special Term Whitman and Whitcomb appealed to the General Term.

      JE. B. Vedder, for the appellants.
    The affidavit on which the attachment in favor of Jacobs was issued was fatally defective in that it entirely omitted to state the grounds of the cause of action or even what the cause of action was for. (Zeregal v. Benoist, 33 How. Pr. K., 134; Skiff v. Stewart, 39 id., 385; Richter v. Wise, 6 T. & C., 70; Mantón v. Poole, 4 Hun, 638.) On motion to set aside attachment for insufficiency of affidavit on which it was granted, the defect cannot be remedied by suuolementary affidavits. (Tates v. North, 44 N. Y. E., 271; Richter v. Wise, 6 T. & C., 70.) The summons, not being subscribed by the plaintiff or his attorneys, was void. No action was commenced by it, or pending in consequence of it. (See section 128 of late Code, under which.it was issued; Farmers Loan and Trust Oo. v. Rich, son, 17 How. Pr. E., 477; Barnard v. Heydrick, 49 Barb., 62; Weir v. Slocum, 3 How. Pr. E., 397; Kerr v. Mount, 28 N. Y., 659.) The summons cannot be amended without an order of court for the purpose. Ward v. Stringham, 1 Code E., 118; Gray v. Brown, 15 How. Pr. E., 555; Walkinson v. Perzel, 32 id.. 310; A lien v. Allen, 14 id., 249; McOram v. Moulton, 3 Sand., 736; Folloiver v. Laughlin, 12 Abb., 105-6; Kerr v. Mount, 28 N. Y., 659; Wallace v. Gastle 68 id., 370.)

      W. G. Fitch, for the respondent.
   Smith, J.:

The motion to set aside the attachment in the suit of Jacobs was made upon the ground of alleged irregularities. It was properly denied, for -the reason that any mere irregularity In that action could not be taken advantage of by a subsequent attaching creditor. If the defendants in the action chose to waive it, the irregularity was of no consequence.

There is nothing conflicting with this position in the cases which hold that an attaching creditor has a specific lien on the property attached, and may attack for fraud other claims upon the debtor’s property. (Rinchey v. Stryker, 26 How. Pr. R., 75; Frost v. Mott, 34 N. Y., 253; Hall v. Stryker, 27 id., 596.) In this case no fraud or collusion is alleged. The moving party is not aided, as his counsel seems to suppose, by the fact that he has obtained a judgment in his attachment suit. His difficulty is that he has no standing in the prior action to question the regularity of the-proceedings in that action. The defendants in the action having waived the irregularities, the proceedings are valid as to creditors, there being no fraud or collusion. The proceedings complained of having been had prior to September 1, 1877, at which time the Code of Civil Procedure took effect section 682 of that Code, does not apply to the case.

The order should be affirmed, with $10 costs and disbursements.

Talcott, P. J., and Noxon, J., concurred.

Ordered accordingly.


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    JAMES E. CRISFIELD, Plaintiff, v. FRANCIS M. PERINE, Defendant.

      Post-mortem, examination — right of coroner to exclude persons therefrom — . supposed murderer no right to be present — chapter 379 of 1864 — post-mortem examination under.

    When a coroner directs a post-mortem examination to be made, he may, in his discretion, determine whether any, and what persons, may be present beside the surgeons.

      Semble, that one accused, or suspected of the murder of the person to bé examined, has no right to be present.

      Quaere, whether chapter 379 of 1864 contemplates a, post-mortem examination as a pai’t of the inquest.
    ' Motion by plaintiff for a new trial, on exceptions taken at the Livingston Circuit, and ordered to be heard at the General Term in the first instance.
    The action was for an assault and battery. The answer was a ■general denial. It appeared at the trial that the defendant was a coroner of the county of Livingston, and that March 15, 1876, he held a coroner’s inquest at the house of Charles Moose, in Sparta, in that county, on the dead body of said Charles, who died after receiving personal injuries in an affray which he had with his nephew, Peter J. Moose, a few days previously. A jjost-mort&m examination was about to be made by two surgeons employed by the coroner for that purpose. The plaintiff, who, also, was a physician and a surgeon, was in the room where the examination was about to be entered upon, and said that he wished to remain and witness it, but the coroner asked him to leave, and on his refusing, caused him to be put out of the room. For that act this suit was brought, Mr, Justice Rumsey. who presided at the trial, nonsuited the plaintiff

      Charles J. Bissell, for the plaintiff.

      John A. Vanderlip, for the defendant.
   Smith, J.:

A coroner’s inquest is a judicial proceeding, and is within the policy of the statute which declares that the sittings of any court within this State shall be public, and every citizen may freely attend the same. (2 R. S., 274, § 1). But every court has power to prevent disorder in its presence, and may therefore exclude particular individuals if good order requires it. It seems that if a judge of a court of superior jurisdiction causes an individual to be ejected from the room in which the court is held, it will be presumed that he had good cause for so doing, and no action will lie against him; it being a settled rule, of great antiquity, that an action will not lie against a judge of a court of superior or general jurisdiction for any matter done by him in the exercise of his judicial functions. (Floyd v. Barker, 12 Coke, 23; Bradley v. Fisher, 13 Wall., 351; Lange v. Benedict, 18 Alb. L. Jour., 11.) In England, a coroner’s court is a court of record, and it has accordingly been held that trespass cannot be maintained against a coroner for turning a person out of a room where he is about to take an inquisition. (Garnett v. Ferrand, 6 Barn. & Cress., 611.) But in this State a coroner’s court is not a court of record. It is a court of inferior jurisdiction. A magistrate of a court of inferior jurisdiction, not of record, when sued for an act done by him in his official capacity, in order to justify, must show that he had authority to do the act complained of. Nothing will- be implied in his favor. In the case at bar, no special cause was shown for excluding the plaintiff from the room in which the post-mortem examination was about to be conducted. On the contrary, the evidence tended to show that the presence of the plaintiff did not in any manner tend to interfere with the due performance of the examination, and that he wished to remain simply for the purpose of witnessing the operation. And the plaintiff offered to prove that he was employed to be present on behalf of the person at whose hands the deceased received the injuries which were supposed to have caused his death, but there was no offer to show that the fact of such employment was made known to the defendant.

The real question in the case, therefore, is whether a post-moi'tem, examination, conducted by surgeons employed by a coroner holding an inquest, is a part of the inquest, in such a sense as that every citizen has a right freely to attend it. We are of the opinion that it is not. The statute which authorized the coroner to cause the examination to be made provides that “ a coroner shall have power, when necessary, to employ not more than two competent surgeons to make post-mortem examinations and dissections, and to testify to same,” etc. (Laws of 1873, eh. 833, § 2; 1874, chs 535, § 2.) The intention of the statute plainly is, that the examining surgeons are to testify before the jury, upon the taking of the inquisition, as to the matters disclosed by the examination. But what necessity for their testimony, if the examination is to be had in the presence of the jury ? At common law, it was essential to the validity of a coroner’s inquisition that the jury should view the body. (Rex v. Ferrand, 3 B. & Ald., 260.) To the same effect is our statute. (2 R. S., 742, 743, §§ 2, 5.) But it was never required that the body should be dissected in any case. And, under the statute of 1873, it is discretionary with the coroner to cause a dissection to be made, and to select the surgeons. We think he has a discretion, also, to determine whether any persons, and what persons, may be present besides the surgeons. Not even the jurors have a right to witness the examination. They are to be informed of what it discloses by the testimony of the surgeons; Considerations of delicacy or respect for the feelings of relatives may often require that the public shall not be admitted to the post-mortem examination.

Chapter 379 of the Laws' of 1864, which provides that a justice of the peace may hold an inquest, in case the attendance of a.coroner cannot be procured within twelve hours after the discovery of á dead body, provides, also, that, 11 in all cases in whieh the cause of death is'not apparent, it shall be the duty of the justice to associate with himself a regularly licensed physician, to make a suitable examination for the discovery of said cause.” It may be supposed that this provision contemplates an examination as a part of the inquest. Whatever its true construction may be (a point upon which we express no opinion), the act of 1864 has no application to an inquest held by a coroner.

The plaintiff’s counsel bas argued that, as a dissection destroys the evidences of the cause of death so that they cannot be subsequently discovered, the accused or suspected person has a right to be present for his own protection. Frequently, no one is suspected till proof is elicited at the inquest. Many times it is expedient that the suspected person should not be informed of the evidence against him, while he is at large; and, whatever rights the suspected person may have, in respect to being present at the examination, they do not avail the plaintiff in this case, since he did not inform the coroner that he was employed by Peter J. Moose, and he did not put his request to be permitted to witness the examination on that ground. But we think no person has a right to be present at the post-mortem examination, upon the ground that he is suspected of having caused the death. He loses no legal right by being excluded. He has no right to dissect the body. If the coroner’s jury pronounces him guilty, the inquest, like the indictment of a grand jury, or a sworn complaint before a magistrate, simply makes him liable to arrest; it is not even prima facie evidence against him on the trial. It is true, the examining surgeons may testify at the trial of the matters developed by the post-mortem examination, but the cases are innumerable in which the results of observations and examinations by professional witnesses and other experts are received in evidence, although obtained by the procurement of the party offering them, in the absence of the opposite party, and when the latter had neither the opportunity nor the right to be present. A familiar instance is that of the testimony of a chemist as to the result of an analysis made by him, at the employment of the prosecuting attorney, of the contents of the stomach of a deceased person alleged to have been killed by poisoning. In all such cases, the party against whom the testimony is offered must rely upon his right to cross-examine the witness, and to meet any,erroneous opinions or theories they may advance by the, testimony of other exports. . . .. , ,

We think the defendant is entitled to judgment on the nonsuit.

Talcott, P. J., concurred; Harjdin, J., dissented.

New trial denied and judgment ordered for defendant on nonsuit.


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    THE CITY OF BUFFALO, Plaintiff, v. GUSTAVUS E. MACKAY and EDWARD TOBIE, Defendants.

      Title to office — how triable— “ Annually appoint.”

    In this action submitted upon agreed facts, under section 1279 of the Code of Civil Procedure, the city of Buffalo asked the court to determine which of the two defendants was entitled to the office of health physician of the city, in order that it might pay to him his salary.

      Held, that the right to the salary depended upon the right to the office, and that the right to a public' office could only be tried in an action in the name of the people.

      Semble, that under a statute providing that a Board of Health shall annually appoint a health physician, a resolution making such appointment if duly adopted, entitles the appointee to the office for one year, and a resolution adopted at a subsequent meeting of the board rescinding such first resolution, although adopted before a delivery of a copy thereof to the appointee, is void.
    Controversy submitted, without action, under section 1279 of the Code of Civil Procedure.
    Among other facts set forth in the submission, were the following : The question to be submitted by this case and the rights of the respective parties arose and accrued under chapter 519 of the Laws of 1870, known as the revised charter of the city of Buffalo, and the several acts amendatory thereof, under the facts hereinafter stated. It is stated that the common council of the said city of Buffalo met, in regular session at the council chambers in said city, on the first Monday of January, 1878, and duly elected by ballot Hon. John B. Sackett to preside over its meetings for the then ensuing year. That at all the times mentioned in this case John C. Sheehan was the comptroller and George Yon Berge was the engineer of said city. That heretofore and on the 10th day of January, 1878, the said president of the common council, comptroller and engineer, each being ex officio a member of, and the three constituting the board of health of said city, met therein and duly organized a meeting or session of the said board of health: When the following proceedings were had, viz : “ On motion of Mr. Sheehan the board of health proceeded to vote for a person to be appointed by the board as health physician of said city; when two members thereof voted for the defendant Gustavus E. Mackay and one member thereof for Dr. Lothrop, and thereupon the clerk of said board entered in his minutes as follows : “ Dr. G. E. Mackay having received a majority of the votes given, was declared duly elected health physician for the ensuing year.” The said board thereupon adjourned to the 18th day of January, 1878, and no further proceedings were had. No notice of the proceedings of such meeting or of such election was ever, by the authority of the said board of health, given to the defendant Gustavus E. Mackay, although one of the members of said board and the clerk thereof, on the day of said meeting, verbally informed him of such proceedings.
    On the 12th day of January, 1878, the defendant Mackay took the oath provided by section 21 of title 2 of plaintiff’s charter and filed the same in the office of the clerk of said city. The defendant Mackay did not notify the board of his acceptance of the office of health physician, but on the 21st day of January, 1878, he sent to the Common Council of the city of Buffalo, a notice of which the following is a copy:
    “ To the Honorable, the Common Council of the City of Buffalo : “ The undersigned was appointed by the hoard of health of the '.ty of Buffalo on the 10th day of January, 1878, to be the health hysician of that city for the ensuing year. I deem it but the •oper exercise of good faith towards the city to notify your norable body of my appointment and acceptance of the same i my readiness to perform its duties.
    “ Dated Buffalo, January 18, 1878.
    “ GUSTAVUS E. MACKAY, M. D.
    “39 Franklin Street.
    “By Walker & Titus, his Attorneys.”
    That the said board of health, pursuant to adjourment, again met in said city on the 18th day of January, 1878, all of its members being present; and having duly organized its second meeting, a resolution was introduced by one of its members in the following words :

      Resolved. That the action of the board on the appointment of Gustavus E. Mackay on the tenth instant, as Health Physician of the City of Buffalo be and the same is hereby rescinded.
    A vote of the members by ballot was thereupon taken, when two of the members voted in favor of the adoption of said resolution and one against it, and said resolution was thereupon declared adopted. A further resolution was then, and at the same meeting introduced by one of the members of said board of health in the words following:

      Resolved. That Gustavus E. Mackay be and he is hereby removed from the office of Health Physician of the city of Buffalo, and that the clerk of this board serve a proper notice of this action of the board, on the said Gustavus E. Mackay.
    A vote of the members was thereupon taken upon the adoption of said last mentioned resolution, when two of the members voted in favor of its adoption and one against it, and the said resolution was thereupon declared adopted, and notice of such action of said board was thereupon given said Mackay. That thereupon and at the same meeting thereof the said board of health proceeded to the selection of a health physician in place of said Doctor Mackay, and resolved, that one Edward Tobie be the health physician of the city of Buffalo, and declared that the said Edward Tobie having received a majority of the votes given ivas duly elected health physician for the ensuing year, which proceedings were thereupon and on the 21st day of January, 1878, communicated to the said Tobie, the person above mentioned by direction of said board, and that afterward and on the-day of January, 1878, the said Tobie notified the said board of health of his acceptance of said appointment, and ho thereafter, and on the 25th day of January, 1878, made and filed in the office of the city clerk the oath of office prescribed by section 21 of title 2 of said charter, and thereupon entered upon the performance of the duties of health' physician of the city of Buffalo, and from thence hitherto has performed and still is performing such duties, and has since that time been and now is recognized by a majority of the board of health as the health physician of the city of Buffalo, and since the appointment of the said Tobie, the said Doctor Mackay has not been recognized as such health physician by a majority of the board of health.

      Section two of title twelve of chapter 519 of the Laws of 1870, is as follows: “Section 2. The board of health shall annually appoint a health physician and may prescribe his duties.”
    P. A. Matteson (City Attorney), for the plaintiff.

      Walker (& Titus, for the defendant, Mackay.

      Delavan F. QlarJe, for the defendant, Tobie.
   Smith, J.:

This action is in the nature of a bill of interpleader, wherein the city of Buffalo asks to have it adjudged which of the defendants is rightfully entitled to the office of health physician of said city, in order that the city may pay to the defendant so entitled the salary incident to said office, which salary is claimed by both^ It is -obvious that the right to the salary depends upon the right to the office, and consequently no judgment can be rendered herein without trying the title to the office. _ The office of health physician of the city of Buffalo is a public office. The mode prescribed by law of trying the title to a public office is by an action in the name of the people of the State. (Code of Procedure, § 432.) It has been held that the provisions of the Code authorizing such action furnish the only remedy for the trial and determination of such questions, and that they prohibit their trial in any other manner. (Palmer v. Foley, 45 How. Pr. R., 110 ; see, also, Tappan v. Gray, 9 Paige, 507; affirmed, 7 Hill, 259.) The only exception is the summary remedy given by statute (1 R. S., 603, § 5), on complaint respecting the election of officers of an incorporated company. It follows that in this action the right to the office cannot be determined. The people of the State are not made a party, and their presence is necessary in a controversy in which the title to a public office is to be adjudged. It follows, also, that we cannot determine the right to the salary, which is a mere incident to the office. Any judgment we might give in this action as to the salary would be nugatory, as it would not bar an action in the name of the people to determine the title to the office. In this action we cannot oust the incumbent of the office, although we may think he is an intruder, and that his opponent is entitled to the office. So that if a valid judgment for the salary can be given in this action, the anomaly may be presented of the office being held and its duties performed by one person and its salary awarded to another. It is plain, therefore, that the question submitted to us cannot be adjudged in this case.

We infer, however, from what was. said on the argument, that an expression of our opinion as to the right to the office (a question which was argued very fully before us), may obviate the necessity for further litigation. We think it advisable, therefore, to say that we are unanimously of the opinion that the resolution adopted by the board of health, on the tenth of January, 1878, and entered by the clerk in the minutes, was, if duly signed, sufficient evidence of the appointment of Dr- Mackay ; that, in the absence of proof to the contraiy, it is to be presumed that the resolution was signed by the proper officer, so as to make the appointment valid ; that the presumption is warranted by the fact that the resolution of the eighteenth of January, treated the previous resolution as a valid appointment, and assumed to rescind it; that a delivery of a copy of the first resolution to the appointee named therein was not necessary to the validity of the appointment, and a verbal notice thereof from the clerk was a sufficient notice, if any was needed; that Dr. Mackay, by virtue of such appointment, and of his acceptance and taking the oath of office, was entitled to the office for the term of one year thereafter ; that the subsequent action of the board in assuming to rescind his appointment and -to appoint Dr. Tobie was unauthorized and void, and that Dr. Mackay is entitled to the office, and consequently to the salary.

But, for the reasons already expressed, the proceedings are dismissed without judgment and without costs to either party.

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

Proceedings dismissed, without judgment and without costs to either party.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE BOARD OF CHARITIES OF THE CITY OF UTICA, Appellants, v. GEORGE E. DAVIS, Respondent.

      Court of Sessions — appeals from, under §§ 1340, 1357, Code of Civil Procedure— Delegation of authority — when void — ehap. 30 of 1873.
    The Court of Session, is a court of original jurisdiction, within the meaning of sections 1340 and 1357 of the Code of Civil Procedure, authorizing appeals to the Supreme Court from final judgments, and orders affecting substantial rights of courts of record possessing original jurisdiction
    The Board of Charities of the City of Utica have no authority, under chapter 30 of 1873, to adopt a resolution authorizing, in advance, the clerk to commence and carry on, in its name, any and all prosecutions in cases of alleged bastardy, without further order of the hoard.
    Appeal from an order and judgment of the Court of Sessions of Oneida county, vacating and setting aside an order of filiation made by two justices of the peace of the city of Utica. And a motion to dismiss such appeal.
    The order of the justices was set aside on the ground that they acted without jurisdiction, no proper allegation having been made to authorize the issuing of the warrant against the defendant. On vacating the order, the Court of Sessions held the defendant to bail, pursuant to the statute (1 R. 'S., 650, § 39), for his appearance at the next Court of Sessions.

      J. I. Bay les, for the-appellants.

      W~, XL Matteson, for the respondent.
   Smith, J.:

A motion to dismiss the appeal is submitted with the appeal., One of the points taken in support of the motion is that no appeal lies to this court to review the order and judgment of the Court of Sessions; that the remedy is by certiorari, We think the right of appeal is given by the Code of Civil Procedure. Section 1340 . of that Code, provides that “an appeal may be taken to the Supreme Court, from a final judgment, rendered by a county court, or by any other court of record possessing original jurisdiction, where an appeal therefrom to a court other than the Supreme Court is not expressly given by statute.” A Court of Sessions is a court of record (Code of Civil Procedure, § 1, subd. 14.) Whether it is a court of original jurisdiction, within the meaning of section 1340, is not so clear. Mr. Throop, in his note to the section, says the expression “ possessing original jurisdiction” was inserted for the purpose of excluding the Court of Appeals from the broad language used in the section. Unfortunately, the section itself does not distinctly convey the meaning expressed in the note, and the only way to determine whether courts of sessions are included, is to ascertain whether they possess original jurisdiction. The inquiry has no reference, of course, to their jurisdiction in criminal matters. It is provided by statute that a Court of Sessions may make an original order of filiation, in a case where the same court has granted a justices’ order of filiation and maintenance, for any other reason than upon the merits and facts. (1 R. S., 650, § 39.) There may be other cases in which a Court of Sessions may exercise an original jurisdiction, in matters other than criminal, but none occur to us. But we think the single case of such jurisdiction, above adverted to, is enough to warrant the conclusion that courts of sessions possess original jurisdiction within the meaning* of section 1340. By the same construction, courts of sessions are included in section 1357 of the same Code, which gives the right of appeal to the Supremo Court, from an order, affecting a substantial right made by a court of record possessing original jurisdiction.

As we are of the opinion that the appeal was properly taken,, and are also of the opinion that the order and judgment appealed from should be affirmed, for reasons which will be stated presently, we do not consider the other points on which a dismissal of the appeal is asked for, but proceed at once to state our views of the questions involved in the appeal.

The application to the justice of the peace for the warrant which preceded the order of filiation was made by Martin Neejer, who described himself therein as “ Clerk of the Board of Charities of the Town of Utica.” It is contended by the appellant that Neejer had no ■ authority .to make the application as clerk of the board of charities, or otherwise, and that it did not give the justice jurisdiction. We think the position is well taken. The city of Utica was formerly subject to tbe general statute, which provides that, when a child is likely to be born a bastard, and to become chargeable to a city or town, the superintendents of the poor of the county, or the overseers of the poor of the town or city, where the woman pregnant of such child shall be, may apply to some justice of the peace to make inquiry, etc. (1 R. S., 642, § 5.) By chapter 30 of the Laws of 1873, the Legislature created “ The Board of Charities of the City of Utica,” and gave to such board the same powers as were theretofore possessed by overseers of the poor (§7); and, by the same act, the office of overseer of the poor of the city of Utica was abolished. (§ 16.) The board was authorized to elect a clerk. (§ 7.) The clerk shall not be a member of the board (§ 7), and he is required to keep a record of the proceedings of the board. (§8.) It appears in evidence that Neejer was the clerk of the board; and that, about two years before the proceedings against the respondent were instituted, the board adopted a resolution purporting to authorize the clerk to commence and carry on any and all prosecutions, in the name of the board, in cases of alleged bastardy, under the statute, without further order of the board. Whatever authority Neejer had to make the application was conferred by that resolution. Waiving the objection that his application was made in his own name, with the description of clerk, etc., added, and not in the name of the board, we are of the opinion that the board, in adopting the resolution, exceeded their powers. The act of determining whether an application should be made to a justice, in a given case, involves the exercise of judgment or discretion. The power can only be exercised by the board, when duly convened, and cannot be delegated. The board, after deciding to make such application in a particular case, may, doubtless, authorize their clerk, or any other suitable person, to make the application, in the name of the board; but they cannot, by general resolution, authorize the clerk, in advance, to make an application in any and all cases that may rise. The rule is, that an authority to do acts merely ministerial or mechanical may be delegated; but not so when the act involves the exercise of judgment or discretion. (Powell v. Tuttle, 3 Comst., 396.)

It is suggested by the respondent’s counsel that the resolution of the board was authorized by section 10 of the act creating the board. That is a misapprehension. ' Section 9 of the act authorizes the board to appoint not exceeding two persons, to aid in the discharge of the duties of the board, and that the special duty of the persons so appointed shall be to personally investigate the character, habits, location of residence, condition and necessities of all applicants to the board for assistance and relief. Section 10 provides that the board shall adopt uniform rules and regulations, by and under which such assistance or relief shall be administered. It is apparent that these provisions relate merely to the ministerial duties of furnishing relief to such applicants as may be found, on investigation, to be suitable objects of public charity, and have no reference to the duty of instituting complaints in cases of bastardy.

This construction is fortified by an act passed by the Legislature, at its last session, amending section 14 of the act creating the Utica Board of Charities. That section originally provided that all orders for assistance and relief to destitute applicants, and all commitments to the county poor-house, or to the State lunatic asylum, * * * “ shall be issued by the clerk of the board, but no such order or commitment shall be issued, except by the order of said board, under special or general rules and regulations thereof authorizing the same.” By the amendment, the section was made to include, also, “ all proceedings in relation to bastardy,” and to direct that all “orders,” “commitments” and “proceedings” therein provided for should be issued, made, instituted and had by the clerk, “ in the name of the board.” (Laws of 1878, chap. 91.) Whether the resolution of the board above referred to would have been a valid delegation of authority to the clerk, under the act as amended, it is needless to decide, as the question does not now arise. But the amendment is a very clear legislative expression, to the effect that, prior to the amendment, the board had not power, by general regulation, to delegate to its clerk authority to institute proceedings in cases of bastardy; otherwise the amendment was unnecessary.

The motion to dismiss should be denied, without costs, and the order and judgment appealed from affirmed, with costs.

Talcott, P. J., and Nonon, J., concurred.

Motion to dismiss appeal denied, without costs, and the order and judgment appealed from affirmed, with costs.


text:
    LEWIS L. FLINT, Appellant, v. ELIAS H. GAULT, Respondent.

      Failure of justice to appear within the hour— action, discontinued.

    A justice of the peace, by failing to appear -within one hour after the time to which the case has been adjourned, loses jurisdiction of the action, and the same is thereby discontinued.
    Appeal from a judgment of the County Court of Monroe county, reversing a judgment of a justice of the peace in favor of the plaintiff.

      II. D. Tucker, for the appellant.

      Townsend & Sullivan, for the respondent.
   Smith, J.:

After issue joined before the justice, the cause was adjourned, at the request of the plaintiff, to October 12, at 12.30 p. m. The justice did not appear on the adjourned day until two or more minutes after 1.30 p. m. ■ He then, in the absence of the defendant, heard the plaintiff’s proof, and rendered judgment in his favor. We think, with the County Court, that, by the nonappearance of the justice at his office within one hour after the time to which the cause was adjourned, the action was discontinued and he lost jurisdiction. (Stoddard v. Holmes, 1 Cow., 245 ; 2 Wait’s L. & P., 217.)

It is urged by the appellant’s counsel that the original return is full and complete, and shows that at the adjourned hour (12.30 p. m.) the justice was at his office. And it is contended that the County Court had no authority to entertain affidavits controverting the original return, and requiring a further return respecting the matters so controverted, and as to which the original return was full. (Barber v. Stettheimer, 13 Hun, 198.) The answer to the position is that the original return did not state specifically at what time the justice appeared at his office on the adjourned' day. At most, it merely stated it inferentially. The attention of the justice had been called to the point by the specifications in the notice of appeal, and the appellant was entitled to a further and specific return.

The judgment of the County Court should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment of County Court affirmed.


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    In the Matter of RUDOLPH ZIMMER, a Person of an Imbecile Mind and Extreme Old Age.

      Appointment of committee — when affidavit of physician not necessary.

    Although it is usual to require a petition for the appointment of a committee, of a person alleged to be of unsound mind, to be accompanied by the affidavit of a physician before the court will direct a writ de lunático inquirendo to issue, yet the court may, in its discretion, dispense with such affidavit, and issue the writ upon the affidavit of a layman.
    The sufficiency of the allegations of the petition cannot be questioned after the return of an inquisition finding sufficient facts.
    Appeal by Rudolph Zimmer from an order of the Special Term in Erie, denying a motion made by him to supersede the committee appointed herein. The proceedings in which the committee was appointed were had in the County Court of Erie, and Avere commenced on the' twentieth of December, 1866. The committee Avas appointed on the twenty-first of January, 1867, and immediately entered upon the discharge of his duties. In September, 1876, the said Rudolph Zimmer presented his petition to the County Court, verified on the twenty-first of August, 1876, in which he set forth the then appointment of said committee, and alleged that said appointment Avas made in pursuence of the verdict or inquisition of a jury, in which it Avas found that the petitioner was then, to wit, December 22, 1867, a person of unsound mind, and incapable of the government of himself or the management of his estate. The petition further represented that the petitioner was, at the time of verifying the same, of sound mind and memory, and entirely competent to manage his own business, and the petitioner therefore prayed that the order appointing the committee be superseded, and that the committee be discharged and required to account. The prayer of the petition was opposed by the committee, and a referee was appointed to inquire and report respecting the matter alleged in the petition. The referee having made his report in favor of granting the prayer of the petition, and the county judge then in office being disqualified to hear the matter, and having certified it to this court, a motion ivas made at a Special Term held in the county of Erie to confirm the report and supersede the committee. The motion was denied, and from the order then made this appeal is taken.

      George W. ,Oot7iran, for Zimmer, the appellant.

      Lewis é Gurney, for tne committee, respondent.
   Smith, J.:

The counsel for the appellant insists that the committee should be superseded, not only upon the ground that the petitioner is now sane and capable of managing his affairs, but also upon the ground that the proceedings in which the committee was appointed were void for want of jurisdiction, and that the inquisition of the jury was procured by methods which were a fraud upon the court.

The point, as to the lack of jurisdiction, rests upon certain alleged defects in the petition and accompanying affidavits by which the proceedings were instituted. The alleged defects are (1), that neither the petitioner nor either of the applicants was a physician, and consequently neither was competent to express an opinion as to Zimmer’s mental condition; and (2), that the statements in the petition and affidavit respecting Zimmer’s mental condition were not sufficient to bring the case within the statute and to give the court jurisdiction. The petition alleged that Zimmer, by reason of his extreme age (68 years and upwards), “is so far deprived of his reason and understanding, as to be altogether unfit and unable to govern himself or to manage his affairs.” The affidavit alleged that Zimmer “ for the last three years has, at times, been more or less affected by an alienation and imbecility of mind, rendering him unfit for the time being to have the government of himself and management of his affairs.” The usual practice is to require the affidavit of one or more physicians, and the practice ought net to be departed from except for very satisfactory reasons. But as the only object of the petition and the accompanying affidavits is to enable the court to determine whether the case is a proper one in which to direct a writ ele lunático inquirendo to issue, the court may order the writ in its discretion upon a petition supported by the affidavit of laymen. In other words, it is not essential to the jurisdiction of the court that the affidavits should be made by physicians, although it is good practice to require it; and it may be, that where the practice is dbparted from under such circumstances as to amount to an abuse of discretion, the order directing the writ to issue should be vacated on that ground, upon an application made in due time.

The averments in the petition and affidavits respecting the mental condition of Zimmer were not sufficient- to authorize the appointment of a committee; and if the inquisition had found nothing more, it would have been quashed on motion. (In the Matter of Morgan, 7 Paige, 236; In re Holmes,, 4 Russ., 186; In re Mason, 3 Edw. Ch., 380; In re Shaul, 40 How. Pr. R., 204.) But the inquisition found that Zimmer was of unsound mind, and incapable of the government of himself or the management of his estate. That finding brought the case within the statute, and authorized the court to appoint a committee. The appointment, thus made upon a sufficient finding of the jury, cannot be set aside at this late day and in this proceeding, by reason of the alleged insufficiency or irregularity of the petition and affidavits.

The charge of fraud, in procuring the inquisition, is based upon certain testimony which was received by the referee against the objection and exception of the committee, tending to show that the inquisition was rendered upon the consent of Zimmer, and not upon evidence of his mental unsoundness. It is a sufficient answer to the charge, to say that it is not suggested in the petition on which this proceeding is based. On the contrary, the petition impliedly assumes that the inquisition was regular, and the finding sufficient to authorize the appointment of a committee, and that the only ground on which a supersedeas is aslccd for is that Zimmer is restored to his right mind. To have made the charge of fraud available, it should have been set forth in the petition as a ground of the application.

The only question open to the petitioner, in the present proceeding, is the one already suggested, to wit: whether, since the finding of the inquisition, he has been restored to his right mind, and is now capable of the management of his affairs. On that question the burden of proof is with him. A careful reading of the testimony taken by the referee, convinces us that his conduct in permitting sharpers and adventurers to possess themselves of his property, can be accounted for upon no other theory than that he was of unsound mind, and thereby incapable of managing his-affairs, and that there is great reason to apprehend that if the remnant of his estate, which has been regained and preserved by his committee, were placed under his control, he would soon be stripped of it by designing men taking advantage of his weak and disordered understanding. We think it our duty to continue to him the protection afforded by the appointment of the committee, and we therefore affirm the order of the Special Term, and order that the committee retain out of the estate of said Zimmer, in his hands, his costs and disbursements of this appeal, and of the proceedings below; as well those in the County Court and before the referee as those at Special Term to be taxed.

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

Order appealed from affirmed, with ten dollars costs and disbursements of the appeal, and the costs of the proceedings below; as well those in the County Court and before the referee as those at Special Term to bo taxed, to be retained by the committee out of moneys of Zimmer in his hands.


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    WILLIAM WILSON, Appellant, v. THE TOWN OF CANEADEA, Respondent.

      Proceedings for bonding towns — chap. 907 of 1869, and chap. 925 of 1871 — ■ what the petition must show —■ a jurisdictional defect may be insisted upon in a collateral action..
    In proceedings for the bounding of towns, tinder chapter 907 of 1869, as amended by chapter 925 of 1871, the application to the judge -must be made by a majority of the tax-payers of the town, exclusive of those taxed for dogs or highway tax only, and such fact must appear by the petition, in order to give jurisdiction to the county judge.
    Where the petition fails to show these facts, the defect, being a jurisdictional one and patent on the record, may be set up as a defence to an action by a purchaser, in good faith, of bonds issued in such proceedings.
    Appeal from a judgment in favor of the defendant, entered on a decision made at the Allegany Circuit, on the trial of this action by the court, without a jury.
    The action was brought upon the interest coupons of certain bonds, purporting to have been issued by the defendant in aid of the construction of the Belmont and Buffalo railroad.
    The petition, upon which the proceedings in which said bonds were issued were instituted, was as follows:
    To the County Judge of the County of Allegany, in the State of New York:
    The petition of the undersigned respectfully states : That your petitioners are a majority of the taxpayers of the municipal corporation in said State, known as the town of Caneadea, county of Allegany, in the State of New York, whose names appear upon the last preceding tax-list or assessment-roll of said corporation as. owning or representing a majority of the taxable property in the corporate limits of said corporation. That your petitioners represent a majority of all the taxable property in said corporate limits appearing on said last preceding tax-list or assessment-roll of said corporation. That your petitioners desire that said municipal corporation shall create and issue its bonds to the amount of $40,000, and invest the same, or the proceeds thereof, in the stock of the railroad company in said State, known as the Belmont and Buffalo Bailroad Company, pursuant to the provisions of chapter 907 of. the Laws of the State of New York, passed May 18th, 1869.
    Dated at Caneadea, February .20th, 1871.

      G. JST. Flenagui, for the appellant.

      Hamilton Ward, for the respondent.
   Smith, J.:

The petition by which the proceedings were instituted, in which the bonds in question purport to have been issued, was presented to the county judge of Allegany, on June 20, 1871. It set forth that the petitioners were a majority of'the tax-payers of the town whose names appeared upon the last preceding tax-list or assessment-roll of the town, as owning or representing a majority of the taxable property in the corporate limits of the town. The only statute then in force, which gave the county judge jurisdiction to entertain proceedings of that nature, was chapter 907 of the Laivs of 1869, as amended by chapter 925 of the Laws of 1871, which latter chapter took effect May 12, 1871. Under the latter chapter, it was requisite that the application to the judge should be made by a majority of the tax-payers of the town, exclusive of those taxed for dogs or highway tax only, and that the petition should set forth that the petitioners were such majority. (§ 1.) Under the original act of 1869, before the amendment, it was enough that the petition was made by a majority of all the taxpayers of the town, without regard to the nature of the tax. The petition in this case and the subsequent proceedings were evidently intended to conform to the original act. But the petition was clearly defective under the act of 1871, and the defect went to the jurisdiction of the judge, and the whole proceeding was coram non juclice and void. This very point was decided by the Court of Appeals in the case of The People ex rel. Green v. Smith (55 N. Y., 135). That was a certiorari to the judge to review the proceeding.

Although the question comes up collaterally in this action, yet, as it is one of jurisdiction, and the defect is patent on the record, the proceedings must be held void, even as against a holder for value of the bonds issued by the commissioners appointed by the judge in those proceedings. As the judge was without jurisdiction, the commissioners had no authority to bind the town, and the holder of the bonds is chargeable with notice of the want of jurisdiction apparent on the record.

The case was decided, at Special Term, in accordance with these views, and the judgment should be affirmed, with costs.

MulliN, P. J., and Talcott, J., concurred.

Judgment affirmed, with costs.


author: Satmi, J.:

text:
    JOSIAH C. MILLER, Respondent, v. OGILVIE L. SHELDON, Appellant.

      Order sustaining or overruling demmrer — not appealable.

    Tinder the Code of Civil Procedure, no appeal lies from an order sustaining- or overruling a demurrer.
    The only remedy under such Code is by an appeal from the judgment, whether final or interlocutory, entered upon the decision of the demurrer, and no appeal lies until such judgment is entered.
    MotioN by plaintiff to dismiss this appeal. The affidavit of the plaintiff’s attorney, made in support of the motion, showed that this was an action in equity, and that the plaintiff in his complaint asked for an injunction against the defendant and for other relief; that the defendant demurred to the complaint, alleging, as the ground of demurrer, that the complaint did not state facts sufficient to constitute a cause of action; that on the trial of the issue of law presented by the demurrer, at the Monroe Special Term, in January last, the demurrer was overruled, and thereupon the following order was entered; “ demurrer overruled with leave to defendant to answer within twenty days on payment of costs of demurrer;” that within the twenty days, the defendant’s attorneys served a notice of appeal from the order, and subsequently they obtained a Special Term order staying the plaintiff’s proceedings pending the appeal, on condition that the defendant would make and file an undertaking as prescribed by the order, which he did not do, although the time given him by the order for that purpose had expired ; that at a Special Term, held in May last, an order was granted, on motion, giving plaintiff leave to enter judgment pursuant to the terms of the order overruling the demurrer, but that judgment had not been entered; and that the appellant’s attorneys had noticed the appeal for argument.

      JE. Webster, for the motion.

      Q. Van Voorlds, opposed.
   Satmi, J.:

The Code of Civil Procedure does not authorize an appeal from an order overruling or sustaining a demurrer. In that respect it differs from the former Code, the 349th section of which, as amended in 1851, permitted an appeal from an order of that description. The remedy under the New Code is by appeal from the judgment, final or interlocutory, as the case may be, entered upon the decison of the issue of law raised by the demurrer. (See Throop’s note to § 1350, New Code.) But whether the judgment is final or interlocutory, an appeal can not be taken till the judgment is entered. The time for appealing' is thirty days after service of a copy of a judgment and written notice of entry thereof. (Code of Civil Procedure, § 1351.) No judgment has been entered in this case, and the appeal is therefore premature. The judgment authorized by the order of the Special Term is not a final judgment, as it must give the defendant leave to answer on the terms prescribed. Consequently it' -is an interlocutory judgment (Code of Civil Procedure, § 1200), and the right to appeal from it is given by section 1349 of the. Code of Civil Procedure, and until it is actually entered, and a copy of it is served with notice of entry, the twenty days within which to answer will not begin to run, and the right to appeal will not have accrued.

I think the motion should be granted, but as the question of practice involved is new, no costs should be given.

Present Talcott, P. J., Smith and NoxoN, JJ.

Motion to dismiss appeal granted, without costs.