text:
    ROBERT H. BERDELL, Appellant, v. ELIZA W. PARKHURST AND HARRIET B. BERDELL, Respondents.

      A husband may sue his wife, for his property wrongfully taken away by heir.

    A husband may maintain an action at law against his wife to recover property, belonging to him, which has been forcibly seized and carried away by her,. under a claim that it belonged to her and not to her husband.
    Appeal from a judgment in favor of the defendants, entered upon an order dismissing the complaint at the circuit.
    The complaint charged the defendants with wrongfully taking’ and converting to their own use, on November 9, 1875, the property of the plaintiff, valued at $30,000.
    It appeared, by the evidence, that the plaintiff, at the time the property was taken, resided at Goshen, with his wife, the defendant, Harriet B. Berdell, and that Mrs. Parkhurst, the other defendant, was then, and had for a long time previous been a. member of their family ; that he was in the habit of going to New York each day, leaving Goshen about seven in the morning and returning about six in the evening; that, on the said 9th day of November, 1875, he left his wife and children at his residence, as usual, and on his return in the evening he ascertained that a large-amount of property had been removed, in his absence, under the direction of the defendants; they, also, had gone, and never returned.
    The claims for articles of jewelry, and wearing apparel, were abandoned ; the value of the other property taken was about-$15,000. ’
    . At the close of the plaintiff’s evidence, his counsel requested the court to submit the question to the jury, as to whether the defendant, Plarriet B. Berdell, claimed the property taken as her separate property, and if not, whether she converted it to her own use.
    A request -was also made to submit to the jury the questions, whether there was a confederacy between the defendants to. remove the property wrongfully, and in regard to Mrs. Parkhurst’s participation in the act of reñioval, and also the question, whether or not she converted the plaintiff’s property as charged in the complaint and bill of particulars, as amended.
    This motion was denied, and the plaintiff excepted.
    The complaint was dismissed as to the defendant, Harriet B. Berdell, because she was the wife of the plaintiff at the time of the alleged conversion and at the time of the commencement of the action; and as to the defendant Parkhurst, upon the ground that the evidence was insufficient to maintain the action against her.
    The plaintiff excepted to each of these rulings.

      W. J. Groo, for the appellant.
    /S'. W. Fullerton, for the respondents.
   Barnard, P. J.:

The plaintiff, at the time of the taking of the property in question, was the husband of the defendant, Harriet B. Berdell. She left her husband’s house and took with her therefrom certain personal property of very considerable value. The plaintiff brought this action to recover its value against six persons. The action failed as to four, by consent of the plaintiff upon the trial. The court dismissed the complaint as to the defendant Parkhurst, because there was no proof making out a cause of action against her, and as to the defendant Berdell, because the action would not lie against the wife for the wrongful taking. As to Mrs. Parkhurst, I think the ruling was right. She made no claim to the property; She did not direct the taking, or assist in its removal, directly or indiroctly. The entire proof against her was, that she was an inmate of the family up to the time of the removal, and continued with the wife afterwards. She asserted a claim against the plaintiff, upon her own account, the particulars of which do not appear. She went with Mrs. Berdell, upon one occasion, to consult with her attorneys about her claim at the same time that Mrs. Berdell consulted the same attorneys about the property in question. On that occasion Mrs. Parkhurst testifies, that she pre-sumes that she said that she should take what belonged to her, speaking in reference to Mrs. Berdell’s claim ; that she favored. the taking, so far as to express an opinion, that she thought Mrs. Berdell was entitled to it. This seems to fall short of evidence upon which a jury could find Mrs. Parkhurst to be a joint actor in the taking. The opinions expressed were not uttered in proximity to the property, nor at the time of the taking, and of themselves show no assertion of the slightest dominion over the property. (Gillet v. Roberts, 57 N. Y., 28.)

As to the other questions, presented by this appeal, the law is in a very unsatisfactory state. The plaintiff is entitled to own property, and so is his wife. He can bring an action for a conversion against any one who violates his right to have and possess his own property, unless his wife be a person excepted by the relation of husband and wife. She has the same right of action against all trespassers, unless her husband be the sole exception. It has been decided, that a wife may not sue her husband for slander, nor for' assault and battery, nor for wages. (Freethy v. Freethy, 42 Barb., 642; Longendyke v. Longendyke, 44 id., 366; Perkins v. Perkins, 62 id., 530; Shuttleworth v. Winter, 55 N. Y., 625.) The Court of Appeals held that a wife did not become liable to answer her husband’s administrators for the proceeds of property disposed of by the wife, without right injthe life-time of her husband, when the property was entrusted to the wife, by the husband, for management and control. On the other hand, it has been held, that a wife could sue the husband for a conversion of her property. Some question is made, whether an action at law could be brought, but there is no doubt that a complaint which stated a conversion stated a cause of action, and that the proper relief should be given, even though it was not asked for in the complaint. (Whitney v. Whitney, 3 Abb. [N. S.], 350.) This, court has, in a late case, decided that a wife may sue her husband in ejectment to recover the possession of her property, which was wrongfully detained from her by her husband.

We upheld the action, upon the ground that whoever owned property, and was entitled to its possession, could recover it at law against any wrong-doer, including her husband. The same principle should govern this case. The evidence showed more than a mismanagement of property entrusted to the wife by the husband. It showed a tortious taking. A forcible seizure and carrying away under a claim that she owned it and that the husband did not. If he cannot challenge her act in a court of law, and recover his property, if it shall be adjudged to be his property, he has not perfect protection, in the enjoyment of his property, under the law. We deem his right of action to be clear .against his wife, if she has wrongfully taken his property under á claim that it is her separate estate.

The judgment as to Mrs. Parkhurst should be affirmed, with costs, and reversed as to Mrs. Berdell, with costs to abide event.

Pratt, J., concurred; Dykman, J., not sitting.

Judgment affirmed as to Eliza W. Parkhurst, reversed as to Harriet B. Berdell, and. new trial granted as to her, costs to abide event.


source: Caselaw Access Project

author: Barnard, P. J.,

license: Public Domain

text:
    JACOB H. TODD, Appellant, v. GEORGE C. MONELL and others, Respondents.

      Conveyance in consideration of an agreement to support the grantor — when void as to Ms creditors.

    Appeal from an order made at Special Term, vacating a. judgment entered in this action, and allowing the defendants to-appear and defend the same.
    The plaintiff had obtained a judgment by default, setting aside-a conveyance from Isaac Monell and wife, to George C. Monell, as fraudulent. Plaintiff was a judgment creditor of Isaac Monell..
    The court, at General Term, said : “The only proof of merits contained in the moving papers is an affidavit of the attorney for defendant, that George C. Monell ‘ became a purchaser for the full value of said property,’ a general affidavit of merits, by George C. Monell, and the agreement under which the sale was made. The agreement expresses, as a part of the consideration of the purchase, that the grantee, George C. Monell, shall furnish and supply to the judgment-debtor and his wife, ‘jointly and severally, a good and substantial living and support in the dwelling-house upon said premises, of good and sufficient food and -quantity, and for and during their natural lives, and the natural life of each of them ; and, also, good and sufficient clothing and wearing apparel of their own selection, and, at their option, for and during the term aforesaid, with such conveyances and reasonable and necessary traveling expenses, during such time as they or either of them may require, which said maintenance and support, as above set forth, shall be considered and is hereby declared to be a part°of the consideration of and for' the premises aforesaid,”

      “The conveyance based upon the covenant was void as against the creditors of the grantor. (Robinson v. Stewart, 10 N. Y.t 189 ; Barney v. Griffin, 2 N. Y., 365.)”

      Hulse and Taylor, for the appellant.

      E. A. Van Sickles, for the respondents.
   Opinion by

Barnard, P. J.,

Dykman, J., concurred, Pratt, J., not sitting.

Order setting aside default reversed, with ten dollars costs and disbursements.


text:
    JOHN KELLY, Respondent, v. THE NEW YORK AND MANHATTAN BEACH RAILWAY COMPANY, Appellant.

      Costs — when plaintiff entitled to, on the ground that the title to real property is involved.

    Appeal from an order vacating and setting, aside a taxation of' costs, and also vacating and setting aside a judgment herein. ' The-action was brought to recover damages for trespass upon lands.. The plaintiff recovered a verdict of forty-nine dollars, whereupon the defendant caused costs to the amount of $98.74 to be taxed in his favor, the plaintiff objecting, and entered judgment therefor against the plaintiff. The plaintiff thereupon on an order to show cause procured an order vacating and setting aside the taxation of costs and the judgment, and directing costs to be taxed', for plaintiff.
    The court, at General Term, said : “ The question of title to-land arose upon the pleadings. The plaintiff avers, in his complaint, that he is ‘ the owner in fee ’ of the premises therein described, and in possession thereof.’ The answer denied that the plaintiff is the ‘ owner in fee,’ and alleges that he was not in possession thereof. It was not an immaterial averment, necessarily, that the plaintiff owned the fee. If the plaintiff’s right was. possessory only, he could not recover for damages to the freehold beyond the injury he would sustain by the injury to his right of possession. The averment, therefore, that he was owner, as well as possessor, was probably necessary. There may, or may not, have been given formal proof of title upon the trial; proof of possession would be sufficient to have title presumed in the absence of proof to the contrary.. The case is, therefore, one in 1 which the plaintiff is entitled to costs', and the defendant is not.’ ”

      Alfred C. Chapin, for the appellant.

      Wm. B. Hurd, jr., for the respondent.
   Opinion by

Barnard, P. J.,

Dykman, J., concurred, Pratt, .J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: Pratt, J.

text:
    CONRAD KAPPEL AND CATHARINE KAPPEL, Appellants, v. CHAARI ZEDEK CONGREGATION, Respondent.

      -Action against a religions society on a covenant in its deed— bwrden of showing , irregularity in sale, e. g., that an order was not made authorizing the sale, rests on defendant.

    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit.
    The-action was brought to recover $750 damages for a breach of covenants in a deed claimed to" have been made and executed by the “ Biker Cholim Ukadisha ” congregation to the plaintiffs, on the 12th day of April, 1870.
    The congregation “ Biker Cholim Ukadisha,” and this defendant were, by an act of the Legislature, passed May 9, 1874, combined and consolidated under the name of the “ Chaari Zedek Congregation.”
    The congregation “ Biker Cholim Ukadisha,” and this defendant .are, and were religious corporations. (Chap.-403, Laws 1874.)
    The plaintiff was nonsuited, because the evidence did not show that an order was obtained from any court authorizing the making or executing of the deed or the conveying of the property.

      The court, at General Term, said : “We think it was error to nonsuit. . The conveyance to the plaintiff was apparently valid. Assuming that an order of this court, for the sale of the property mentioned in the conveyance, was an essential pre-requisite of a valid sale thereof; yet the legal presumption, in an action between, the parties to the conveyance, or their privies, is that such order was duly obtained. A corporation, which sets up alack of power to do a particular act, within the scope of its general powers, assumes the burden of proving such defence.” (Nelson v. Eaton,. 26 N. Y., 415.)

      John Fleming, for the appellants.

      Wm. J. Stanford, for the respondent.
   Opinion by

Pratt, J.

Present — Dykman and Pratt, JJ., Barnard, P. J., not sitting.

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


author: Pbatt, J.

text:
    HENRY S. NASH, Respondent, v. THOMAS R. SHARPE, as Receiver of the Long Island Railroad Company, Appellant.

      Action by professional man, to recover damages for injuries stistained on a railroad — "he may testify as to his past earnings for the purpose of showing his damages.

    Appeal from a judgment entered herein upon the verdict of a jury, rendered upon a writ of inquiry, at a Circuit Court, and also from an order denying defendant’s motion for a reassessment of damages.
    This action was brought by the plaintiff, a dentist engaged in business in New York, to recover from the defendant, as receiver of the Long Island Railroad Company, damages for injuries received by plaintiff while a passenger on one of 'defendant’s cars.
    The defendant appeared in the action, but interposed no answer.
    The plaintiff’s damages were assessed by a jury at a Circuit Court, under the direction of the justice presiding, at $6,125.00.

      Upon, tlie trial, the plaintiff was alloived to testify against the defendant’s objection and exception as to the amount of his yearly earnings for the five year’s preceding the accident.
    The court, at General Term, said: “It seems to be settled that, in an action for loss of services, evidence of the nature and extent of the parties business, or how much he ivas earning from his business, or realizing from fixed wages, is proper upon the ■ question of damages. (Masterton v. Village of Mount Vernon, 58 N. Y., 391 ; McIntyre v. N. Y. Central JR. It. Co., 37 id., 287 ; Walker v. Erie It. R. Co., 63 Barb., 260.) If there is any ■distinction between the earnings of a professional man, and a mechanic or laborer, it is a question of fact to be considered by the jury, in connection with the surrounding circumstances. There is no good reason why a professional man should not be permitted to show what he was earning from his business at the time to which the loss refers, as well as a laboring man, who is employed under fixed wages. This must be so from the nature of the case, otherwise a professional man could give no reliable and satisfactory ■evidence of his loss.”

      E. B. Hinsdale, for the appellant.

      Homer A. Nelson, for the ■respondent.
   Opinion by

Pbatt, J.

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

Judgment, and order denying motion for reassessment of dam■ages affirmed, with costs.


text:
    ALFRED T. BAXTER, Respondent, v. FRANKLIN BELL, Appellant, Impleaded, Etc.

      Demand against a firm, — when extinguished by taking a bond and mortgage from two of the three partners, and merged in swell bond and mortgage.

    Appeal from a judgment in favor of tlie plaintiff, entered upon the report of a referee.
    The action was brought to foreclose a mortgage, and the defendant, Bell, appealed from a judgment for deficiency entered against him.
    Charles H. Baxter, Alfred T. Baxter and Franklin Bell, were co-partners, and for the uses and purposes of' their business took a conveyance of the lands in question.
    Subsequently, William M. Baxter became a member of the firm. The deed continued to bo held in the name of the original grantees. In February, 1869, Alfred T. Baxter sold out to his co-partners, including William M. Baxter, all his interest in the firm property, and in pursuance of that agreement quit-claimed to ■Charles H. Baxter and Franklin Bell, this real estate, and took from them the mortgage on said property, foreclosed in this action, and transferred all the other property to his co-partners in the business.
    The new firm continued on in business, using this real estate until their failure. After the firm failed, a composition was entered into between the firm and its creditors. Alfred T. Baxter held a claim against them for $5,380, upon simple contract; he signed the composition deed, under seal, for $5,380 “ unsecured.” In this action, which is to foreclose the mortgage given upon the land, it is claimed that the composition-deed which, in its terms, releases all partnership debts, destroyed the mortgage.
    The court, at General Term, said: “ While it may be conceded that the land, as between the partners in equity, was partnership property, yet the debt secured by it was not a partnership debt. The bond was not signed by William M. Baxter, and he had no title in the land. When Alfred T. Baxter received the mortgage and the accompanying bond, the -claim which he had against the partnership as such ceased, and he could only look to his security. The specialty took the place of the simple contract claim. William M. Baxter could never have been sued by plaintiff for any part of the debt which became merged in the mortgage. (Patterson v. Brewster. 4 Edw. Chy., 352.)
    The obligor upon the bond, and the security of the real estate,, is all which the plaintiff can look to, to pay his debt. ( Williams v. Gillies, Albany Law Journal, November 12, 1878, Court of Appeals.)
    Judgment affirmed, with costs.

      Odie Close, for the appellant.

      Clement D. Newman, for the respondent.
   Opinion by

Barnard, P. J.,

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.


text:
    JAMES JOSEPH CORCORAN, an Infant, by MARY CORCORAN, his Guardian ad litem, Plaintiff, v. THE NEW YORK ELEVATED RAILROAD COMPANY, Defendant.

      Contributory negligence — when a question for the jury

    Motion for a new trial, on exceptions ordered to be heard in first instance at the General Term, after a verdict in favor of the plaintiff.
    This action was brougnt to recover damages for personal injuries sustained by the plaintiff under the following circumstances : The plaintiff, a lad of about fourteen years, went to the station, upon defendant’s road, at Fifty-ninth street, to take passage down town. At the request of a brakoman, in defendant’s employment, then present, the plaintiff took a pail and went northwardly along the track towards a hydrant, about a block distant. The track is elevated about fourteen feet above the street, and planks were placed along the west side of the rail. An engine, with steam up, ready to proceed down the railroad, stood upon the track near Sixtieth street.. The sides of the engine projected over the plank-walk, covering it all but a width of about twelve inches. The plaintiff went along the planks until he came to the engine, and then attempted to cross the track towards the hydrant where he was to procure water. The engine was started, and the plaintiff received serious injury. The engineer, in charge of the engine, saw the plaintiff coming towards the engine when he avus about 100 feet away, but saw no more of him until after the injury. The plank, beside the track, was not intended for the use of any pedestrians not employed in the business of the railroad.
    The court, at General Term, said : “I think there was sufficient evidence of negligence, on the part of the defendant, to send the case to the jury. The engineer, in charge of the engine which struck the plaintiff, saw the plaintiff approaching upon the plank-walk with a pail, and knew he was going to the hydrant; he also kneAV he would have to cross the track in front of the engine in order to get to the hydrant. It Avas negligence to start the engine without looking to see that the plaintiff had got out of the Avay, and without giving him any warning. The fact that the plaintiff went to the place where he was struck by the engine is not, in itself, proof of negligence on his part. He went at the request of the brakeman, and with the knowledge of the conductor, and for a purpose connected Avith the business of the road, viz. : to procure drinking water for use at the station. If the brakeman, by the conductor’s direction, had gone where plaintiff did, it avouM not be claimed that the brakeman was a trespasser. The plaintiff went in the place of the brakeman, at his request, and with the knowledge and consent of the conductor. It was necessary for the plaintiff to cross the track where he did in order to get to the hydrant. When ho started to cross, the engine was stationary, and it does not appear that any signal, or other indication was given that it Avas about to start.
    I am of opinion that the question as to whether the plaintiff was guilty of contributory negligence was properly submitted to the jury, and that their verdict fj, sustained by the proof.”

      A. W. Darker, lor the plaintiff.

      Dudley Field, for the defendant.
   Opinion by

Barnard, P. J.,

Dykman, J., concurred ; Pratt, J., not sitting.

Exceptions overruled, and judgment for plaintiff upon the verdict, with costs.


text:
    GEORGE S. WRIGHT, Respondent, v. ABBIE J. FLEMING and Another, Impleaded, Etc., Appellants.

      Application for probate — as to necessity of its being in writing

    Appeal from a judgment entered upon the trial of this action by the court without a jury.
    The action was brought to restrain the defendants, the next of kin ¡of John T. Wright, from entering any decree before the surrogate ■of Westchester county, in proceedings instituted therein to com¡pel the plaintiff, as administrator of the said John T. Wright, to .render a final account.- The plaintiff claimed that the estate of ■one Sarah E. Youle was interested in the said account; that the plaintiff was the executor named in her will, and had applied for •its probate and for letters testamentary ; but that the surrogate .had neglected to act. The court below enjoined further proceedings before the surrogate, until the estate of Sarah E. Youle ¡Should be represented therein.
    The court, at General Term, said : “I think the evidence fails to sustain the findings of the court, at Special Term, in this action. The plaintiff” was executor of the last will of Sarah E. Youle. It was necessary that Mrs. Youle’s executor should be represented on the final accounting of plaintiff, as administrator of John T. Wright, deceased. The proceedings for the accounting had been taken in 1873. Mrs. Youle, although cited, did not appear. She left a husband and two daughters, all of full age, and residents of this State. Plaintiff was in possession of the will of Mrs. Youle from the time of her death, or soon after, and kept it until he was subpoenaed to produce it in the surrogate’s court, and file it therein for the inspection of those interested. Mr. Thompson, the attorney for plaintiff, testifies that when he left the will he applied to the surrogate’s cleric for probate. He ‘ asked how to take the proper proceedings for the probate of the will.’ He testifies that he subsequently applied ‘to Mr. Skinner (the surro-■ gate’s clerk) for proceedings for proving the will, and for that-purpose gave to Mr. Skinner the name or names of either one or two — it is my impression of two gentlemen in San Francisco, ■California, to "whom commissions might be issued for the taking "the testimony of the subscribing witness.’
    There was no application in writing ; there were no citations .issued to the heirs-at-law ; there was no affidavit upon which the commission would be based as to the residence and materiality of the witnesses. The plaintiff had control of the will for some months before he left it at the surrogate’s office, and only left it then upon compulsion. It may not have been necessary, strictly, to have a petition in writing to set in motion proceedings to prove a- will. It is however, the general, and I believe, universal custom ; and before a surrogate should be adjudged ghilty of neglect of duty, he should, at least, have been put on his guard. He should have been informed that the plaintiff required him to initiate the proceedings to prove the will himself. I cannot believe that the plaintiff acted in good faith. He never really applied for proof of the will. He seems to me to have intended this shadowy application as a subterfuge by means of which to postpone the accounting.”

      Alex. Thain, for tne appellants.

      James' Thompson, for the Despondent.
   Opinion by

Barnard, P. J.,

Pratt, J., concurred, Dykman, •J., not sitting.

Judgment making injunction permanent reversed, and new trial granted, costs to abide event.


author: Barnard, P. J.

text:
    SAMUEL H. PALMER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    Memorandum— when a witness may use it and testify from it.

    Writ of Error to the Court of Sessions of Dutchess county to review the conviction and sentence of the plaintiff in error for forgery. The offence, as' charged, consisted in altering a real and genuine note, made by the plaintiff in error for $300, and dated November 8, 1877, to November 8, 1878. The note was made to the order of John C. Payne, and indorsed by him and. by one George W. Lamb. The claim made by those indorsers was, that they indorsed the note November 8, 1877, payable in two months, to take up another claim against the same parties, which was to mature that day. The amount of this claim was $480. The claim of the accused was, that the note alleged to have been, forged was given him long afterwards, with the date not filled up, to be used, as was customary, between the parties for any purpose that he saw fit in paying notes and claims in which all the parties were interested, and that he did pay, or secure, such a debt with one Dr. Stillman. Lamb, one of the indorsers, on his examination, testified as follows, as appears from the case :
    Q. When did you indorse that note ? [Witness refers to a memorandum. If you have any memorandum you may use it to refresh your recollection.]
    A. It refers to a payment. [The defendant objects to the witness referring to a memorandum, unless it was made at the time. Objection overruled, and defendants except.]
    A. It was indorsed to take up a note of $480.
    Q. When was that note indorsed ? [Same objection, ruling and exception.]
    A. November 8, 1877.
    Q. Who handed you this note when you indorsed it ?
    A. Samuel H. Palmer.
    Q. For what purpose did you indorse that note ?

      A. To take up $480 note at Merchants’ Bank, in this city.
    Q. When was that $480 note due; when did it fall due ?
    . [Witness again refers to said paper. Same objection to referring to the memorandum. The defendant desires to cross-examine the witness in regard to that memorandum. Counsel for the People objects to that. Testimony allowed, and defendant excepts.]
    A. It fell due the fifth of November. [Upon cross-examination the witness testified, that he could not testify to the dates without referring to this memorandum, and gives this ^further account of what this memorandum was.]
    Q. Where is that record ?
    A. Mr. Payne has got it.
    Q. Have you got it ?
    A. No, sir ; I don’t know ; I have it in my pocket home.
    Q. Did you keep the record ?
    A. No, sir ; I didn’t keep it at the time.
    Q. Then you are swearing to the date of the note from the record kept by Mr. Payne ?
    A. Yes ; he kept the record for me.
    The court, at General Term, said : “We think it was improper -to permit the witness to testily from this memorandum. A memorandum may be read in evidence, if made at the time and by the witness who made them. (Halsey v. Sinsebaugh, 15 N. Y., 487.) It is competent to read an entry made by a witness, or a witness may use one made by another, if he can testify then from recollection the fact to which the entry relates; he cannot refer to an entry not original, or to one not made at or near the time. (Marcly v. Shulls, 29 N. Y., 346; Guy v. Mead, 22 id., 462; Russell v. Hudson Biver B. B., 17 id., 134; Odell v. Montross, 88 id., 499.) The fact that the memorandum was made by the witness should be proven with a degree of certainty which leaves no room for doubt. (Gilchrist v. Broolclyn Grocers' Association, 59 N. Y., 499.) The same case holds, that it is improper to speak from a memorandum, whether it was formally offered in evidence or not. if its competency was challenged and the witness was permitted to testify from an improper memorandum.
    “The conviction should be reversed and a new trial granted in the Sessions, to which court the proceedings are remitted.”

      Dan. W. Guernsey and John Hackett, for the plaintiff in error..

      William It. Woodin, district attorney, and W. I. Thom, for' the People.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., Dykman and Pratt; JJ.

Conviction reversed, and case remitted to Sessions.


author: Davis, P. J.:

text:
    CLARENCE H. LIVINGSTON, Respondent, v. HERMAN SULZER AND AUGUSTA SULZER and others, Appellants.

      Lease — covenant to pay the tenant the value of the building erected by him— right of the tenant to the amount awarded for the building when it is taken by right of eminent domain — what are fixtures, as between landlord and -tenant.

    The plaintiff, who owned a life estate in certain land, leased the same on May 1, 1867, to one Dowdney, for five years, at the annual rent of $1,500, and agreed that Dowdney should have the privilege of renewing the lease at the annual rent of $2,500. It was also agreed that if Dowdney should, with the plaintiff's approval, erect any building upon the premises, the plaintiff would pay for the same at a fair valuation at the end of the term, and keep his life insured for a sum equal to such value, and assign the policy to Dowdney. September 12th, 1867, Dowdney assigned the lease to Sulzer. On December 12th, 1868, plaintiff and Sulzer entered into an agreement, reciting the former lease and its terms, the assignment to Sulzer, and that plaintiff had had his life insured and the policy assigned to Sulzer, and authorized the latter in case plaintiff failed to pay any premium, to pay it himself, and deduct it from the rent. In May, 1872, the renewal lease provided for in the original was given. It contained all the provisions of the former lease, except the renewal clause, including the provision as to the payment for buildings erected, the premises being described as in the original lease, with the addition of a clause “excepting such portion of said property as is owned by the party of the second part.” In 1868, Sulzer had erected a large building on the premises for the purpose of carrying on the business of selling lager beer, etc., and in 1875 the whole of the premises and the building were taken by the city for a public park, the value of the land being awarded to the plaintiff and those entitled in remainder, and $25,000 being awarded for the building to the assignees of Sulzer.
    In an action by the plaintiff to recover the amount awarded for the building which had been paid into court, held, that the buildings erected were such as were contemplated by the lease.
    That the plaintiffs approval thereof was sufficiently shown by his agreement with Sulzer, after the assignment of the lease to the latter, and by the terms of the renewal lease given after their erection.
    That the lessee’s right to be paid their fair value at the expiration of his term was not effected by his taking ak renewal of the lease.
    That the assignees of Sulzer were entitled to the whole amount awarded for the buildings.
    What fixtures, erected by the tenant for the purposes of his business, are removable by him at the expiration of his term, considered.
    How far the parties in a proceeding to take lands are bound, as between themselves, by the report of the commissioners, after it has been confirmed by the court, considered.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      Henry Parsons and Merritt E. Sawyer, for the appellants.

      Paul Tucker, for the respondent.
   Davis, P. J.:

The plaintiff in this actiou, under the -will of his father, was owner of a life estate, for his own life, in the premises described in the complaint, with remainder over to his surviving issue, or, in default of such issue, to several of the parties named as defendants in the action. On the first day of May, 1867, he demised the said premises to one Abraham Dowdney, for a term of five years', at an annual rent of $1,500, payable quarterly in advance. In that lease it was covenanted that, at the expiration of the term thereby demised, the party of the second part shall have the privilege of renewing the lease for a further term of five years, at the rate of $2,500 per year, upon the same conditions as were therein contained. Among other provisions of the lease, it was agreed that “in case the party of the "second part erect any now buildings, with the approval of the party of the first part, upon said premises, during the term of this lease, the party of the first part agrees to pay for the same at a fair valuation, at the end of said term, and to keep his life insured at an amount equal to the value of said buildings, said insurance to be assigned to the party of the second part.”

On the 12th of September the said Dowdney assigned the lease to one Charles Sulzer. On the 12th of December following, the plaintiff entered into an agreement with the assignee, Charles Sulzer, in which the lease of May 1, 1867, is recited as a lease of the promises to Dowdney, for the term of five years from the 1st of May, 1867, with the privilege to said Dowdney of a renewal thereof for a further term of five years. It also recites the assignment of Dowdney to Sulzer. It is then further recited that the plaintiff, in order to secure the full enjoyment of said lease to the party of the second part, and from all loss or damage that might arise from the termination of said lease sooner than the term mentioned therein, to wit, ten years, by the death of said Livingston, has insured said party of the first part’s life, and assigned the policy to said party of the second part.

It is then provided “that in case the said party of the first part shall neglect or refuse to pay the premium on said policy of insurance, from time to time, as it shall fall clue, then the said party of the second part shall and may pay the same and deduct the same from the rent to be paid under said lease, and the said premium, when so paid, shall be considered and allowed said Sulzer as so much paid on account of rent under said lease.”

By this agreement the rights of Sulzer in the original lease were fully recognized, and the assignment to him ratified.

On the first clay of May, 1872, the plaintiff executed to Sulzer the renewal lease, provided for in the original lease, for the additional term of five years, at the rate of $2,500. This lease described the premises in the exact language of the former lease, but adds thereto an exception in those words: “ excepting such portion of said property as is owned by the party of the second part.” The lease contains the same provisions, in all respects, as the former lease, excepting the renewal clause, and it provides. in the same language, for the payment by the plaintiff for new buildings erected with his approval during the term of the lease, and for the insurance of the life of the plaintiff, and the assignment of the policy to the lessee.

In 1868 Charles Sulzer, while holding under the first lease, erected a large building on the premises for the purpose of carrying on the business of selling lager beer, etc., and for accommodating dancers and other visitors as a place of public resort. This structure was of wood, upon a brick and stone foundation, with a frontage of 100 feet and a width of seventy-five feet. The foundation was sunk into the ground on three sides, and being on a side hill, the foundation Avail on the easterly side was much higher than the other Avails. The earth Avithin the wallsAvas not excavated, but was left on a level with the surface outside. Within the Avails and below the wooden structure a dining-room, kitchens, closets, etc., were constructed, in which were placed ranges, boilers, gas fittings, and other fixtures used for the purposes of the - building, all of Avhich Avere on a floor laid above-the surface of the ground. The appellants became the owners of all the rights and interest of Charles Sulzer in the demised premises and in the buildings, by assignment from him made in June, 1876.

In the year 1875, proceedings Avere instituted by the city of New York to acquire title to the Avhole of the demised premises, and the buildings and improvements thereon,, for a public park. In such proceedings damages were awarded to the plaintiff and the remaindermen, for the value of the land, by commissioners of estimate and assessment duly appointed by the Supreme Court, and an award of $25,000 Avas made to the appellants for the value of their buildings and improvements. This award Avas afterwards duly confirmed by the court, and after such confirmation the plaintiff' commenced this action, claiming that the said aAvard of $25,000 should be adjudged to belong to him and the persons having an interest in the remainder, and asking judgment that it be paid over by the city for their use and benefit. Pending the action the money Avas paid into court to abide the event.

The referee found, in addition to the sevei’al facts above stated. and certain facts relating to other structures on the premises, that all the buildings so erected by said Charles Sulzer, and all the-improvements and additions made by him on said premises were-so erected and made for the-purpose of enabling the said Charles Sulzer to carry on, on said premises, the trade, calling or business, of a keeper of a pleasure ground and lager beer garden, and to afford to pleasure parties visiting said premises an opportunity for amusements and recreation by dancing and otherwise, and that, all said buildings, improvements and additions were necessary and proper for the purpose of carrying on said trade, business or calling successfully.

He also found that there was no evidence before him that the plaintiff ever approved of the erection of any of the buildings by said Charles Sulzer. Ho also found in substance that the wooden structures erected by said Charles Sulzer were of the value of two-thirds of said award of $25,000, and that the foundation of the-principal building, and all therein below the floor of the wooden, structure, was of the value of one-third of the said award.

As conclusions of law he found, in substance, that the appellants-were the owners of all the buildings and erections put on said premises by said Charles Sulzer, and had the right to remove the-same, “ except the stone walls comprising the substructure of the main dancing platform, and what was inclosed within said walls, and below said dancing platform ; but that as to said stone walls- and what was inclosed therein, as aforesaid, the same belong to the-plaintiff” and his remaindermen, according to their respective.' rights and interests therein.

It -is obvious that the learned referee disposed of the case altogether upon his views of the law of fixtures, as between landlord, and tenant, where property is leased for the purposes of trade or-business.

It must be regarded as settled by Ombony v. Jones (19 N. Y., 234), that erections by the tenant, for such uses as those in this, case, come within the rule of the right of removal during the teim of the lease, whether it contains provisions in respect thereto or not. The distinction which the referee has made as to the walls on which the buildings stood seems to be justified by the remark of Grover, J., in his opinion in that case. But there is nothing, in. our judgment, assuming the distinction to be right, so far as related to the walls themselves, to sustain the conclusion of the referee, that everything within those walls and below the floor was real estate belonging to the plaintiff. He finds in substance that within the walls and below the first floor of the wooden structure were the rooms known as dining-room, ldtchens, closets, etc., and that “ within said rooms were certain ranges, boilers and the brick work sustaining them, certain plumbing, gas fittings and other fixtures, all erected by said Charles Sulzer for the purposes of and used in .his business.”

This finding is not very definite as to the particular character of the things said to be within the rooms ; but it is stated that they were all placed there by Sulzer for the purposes of the business carried on in the premises. These rooms being on a side hill were above the surface of the ground, lighted as is distinctly found, by windows which “were not obscured by any surrounding earth.” We are at loss to see why the ranges and boilers, and other fixtures, would not have been properly removable by an outgoing tenant who had placed them there for the purposes of trade or business. There is no finding of their value separately, and no means therefore of correcting the erior of the referee in respect to them by deductions from the judgment; but for the error in allowing their value to the plaintiff as his property, there must necessarily be a new trial of the case if there wore no other error to be considered.

But we think this case was not disposed of by the .learned referee upon the principles and grounds that ought to control it.

It appears by necessary implication, from the first lease, that the'property was leased with the intention that it shoiüd be used by the lessee for such or similar purposes as those to which it was afterwards applied ; and, with a view to facilitate such uses and purposes, it was covenanted that the lessor, at the expiration of the term, should pay for all new buildings erected thereon by the lcss.ee, with his approval, at a fair valuation. This covenant was made with a view also to the privilege of renewal for a further term of five years which the lease secured to the tenant. It was not the intention that this renewal should have the effect to cut off the right of the tenant to be paid for such new buildings as had been erected with the landlord’s approval, but it was obviously the design that if a renewal was made for the additional term, the time for the payment for such structures, at a fair valuation, would also be extended.

The learned referee finds that there is no evidence before him that the buildings were erected with the approval of the landlord.

We do not concur in that view of the evidence, for it appears that the landlord ratified the assignment of the lease to Charles. Sulzer, and, by express covenant, provided for securing Sulzer against all injury from his decease during the term, by the insurance of his life, which Sulzer should be at liberty to keep up. out of the rents in case of default on his part, to pay the premium ; and after Sulzer, under the lease, had erected and occupied these buildings for a period of about four years, on renewing the lease he expressly excepted from the lease “such portion of said property as is owned by the party of the second part.” This exception was inserted to prevent the words, “with the buildings, thereon erected,” contained in the description of the premises demised, from operating to indicate an intention of surrendering all the tenants’ title to the landlord in such structures as he had himself placed on the property. That exception plainly takes, the case out of Loughran v. Ross, 45 N. Y., 792, and it forcibly recognizes the right of the tenant, in some portions of the property, which would otherwise have been covered by the descriptive language.

The just and equitable construction is, that the landlord intended to preserve to the tenant his rights in the new buildings that had been erected for the purposes of the business carried on on the premises, and that construction seems to us, of necessity, to imply that such buildings were erected with his approval. There is nothing in the language of the lease te demand a written or other formal approval. It is sufficient that there was an approval of some sort on the part of the landlord; and we think that may properly be found not only in the exception contained in the renewal lease, but also in the repetition of the provision contained in the first lease, of the obligation to pay at the end of the term, at a fair valuation, for such buildings as should have been erected, with the approval of the landlord. It may also be found in the covenant to insure the landlord’s life for the benefit of the tenant, coupled with the fact that the policy so taken out by the landlord and assigned to the tenant is in immediate connection, in both leases, with the provision for the payment of buildings erected, with the approval of the landlord; and his action in entering into the new agreement with Charles Sulzor, in respect to such insurance, and in performing the requirements of that covenant, is strongly indicative of his assent to the erection of the buildings in question.

As we look at the facts of the case, it seems to us that, at the time the city took possession of the property for public use, the tenant must be regarded as the legal and equitable owner of the structures which he had placed upon the property. The covenant, in the two leases just referred to, relates to the whole building, including, as well, the foundations as the superstructure, .and there seems to us no reason to. doubt that, at the expiration of the renewal-lease, the tenants would have the right to claim payment for the entire building at such valuation as is provided for in the lease. But the, intervention of the proceedings, under which the property has been taken by the city, cuts off the exercise of such rights. The property must be taken to be, so far as relates to the respective rights of the parties, precisely as it was at the time of the taking; and, under the provisions of the lease, the rights of the tenant, as owner of the buildings erected by him, is distinctly recognized and continued until they cease by a valuation and payment at the end of the term.

Looking at the case in this light, we see no reason to doubt that the commissioners estimated correctly the respective interests of the parties in the premises. They gave, as it appears, to the plaintiff and his remaindermen the full value of the property, independently of the buildings ; they gave to the appellants the value of such buildings, doubtless, because they concluded that the ownership was in them.

We are unable to see why justice has not been done, and we think the complaint should have been dismissed by the learned referee, with costs.

We are not disposed to pass upon the question whether the decision of the commissioners, followed by the confirmation of the Supreme Court, was not conclusive upomthe rights of the parties, as held, by the Court of Appeals in the Matter of the Department of Public Parks (73 N. Y., 565). It may be difficult to distinguish this case from that, and probably it is our duty to apply .the rule there established as a final, bar to a recovery in this case.

We prefer, however, to put the case upon the grounds above suggested.

It follows that tho judgment should be reversed.

Brady, J., concurred.

Present — Davis, P. J., and Brady, J.

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


text:
    JOSEPH LEVY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Arson in the first degree — tenement house — when pi'opeiiy charged, in an indictment as the dwelling-house of any occupant.

    "The plaintiff in error was indicted and convicted as an accessory before the fact to the crime of arson in the first degree. The fire was set in a five-story tenement-house, having a common entrance upon the street, and from a yard1 in the rear; upon the different stories the apartments of the tenants, consisting of several rooms, opened upon common halls; the plaintiff in error and his wife rented and lived in three rooms on the second floor. One Koenigsberg occupied, with his wife and two children, three rooms adjoining those of the plaintiff in error, but not directly communicating with them. The fire was set in the rooms of the plaintiff in error and burned portions thereof, but not to any extent the rooms occupied by Koenigsberg. There was no one in the rooms of the plaintiff in error when the fire was set, but there were in those of Koenigsberg. The indictment charged the principal with having, in the night time, set fire to and burned a certain dwelling-house of one Koenigsberg.

      Held, that the indictment properly charged that the fire was set in the dwelling-house of Koenigsberg.

      Quaere, as to how far a judgment of conviction of the principal is conclusive evidence of his guilt, on the trial of an indictment against one charged with being an accessory, before the fact, to the crime.

      Writ of Error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of being an accessory, before the fact, to the crime of arson, in the first degree.

      John O. Mott, for the plaintiff in error.

      Daniel G. Rollins, for the defendants in error.
   Davis, P. J.:

The plaintiff in error was convicted of being an accessory,, before the fact, to the crime of arson in the first degree. The conviction of the principals was proved by the production of the judgment record of the Court of Oyer and Terminer. After proving such conviction, the People were proceeding to give evidence tending to show the commission of the crime of arson in the first degree by the persons charged as principals in the indictment forming part of tho judgment record, when the counsel for the prisoner objected to such evidence, in substance, on the ground that file record was conclusive on the prisoner, and that the People were only to establish, on this trial, that he was accessory to the crime. The court overruled the objection, and allowed the evidence to be given, .and the prisoner’s counsel duly excepted.

Evidence was then given tending to establish the guilt of the several persons named in the indictment contained in the record. It is not necessary to determine to what extent the judgment record is evidence against the prisoner, to establish the guilt of the accessory. It of course conclusively establishes that the person tried under the indictment set forth in the record had been convicted,but the question whether his guilt is conclusively established as against the person charged as accessory, who was not a party to the record, and had no opportunity to be heard upon the trial, is quite a different proposition. On looking into the evidence in this case given for the purpose of showing that tho offence had been in fact committed, it is apparent that all of it was admissible with a view to show circumstances tending to establish the prisoner’s guilt as accessory, and as it was clearly admissible for that purpose, there was no error in receiving it, even if it were not necessary to have gone beyond the record for the purpose? of proving the guilt of the persons convicted under the principal indictment. The exception was not therefore well taken.

It appears that the building, in which the fire was set, was a-five-story tenement-house, known as No. 11 Ludlow street. The building had a common entrance in front from the street, and a like entrance from a yard in the rear. The front entrance led. into a hall-way used in common by the tenants; and on the several stories of the building there were apartments consisting of several rooms with doors opening into common halls. These apartments it appears were occupied by a considerable number of persons, who severally rented them from the common owner. The prisoner had three rooms on the second floor of the building, in which he lived with his wife, having no other family.

One Isaac Koenigsberg occupied with his family, consisting of his wife and two children, three rooms adjoining those of the prisoner. There was no direct communication between Koenigsberg’s and the prisoner’s apartments. The fire was set in the rooms occupied by the prisoner, and it burned to some extent different portions of that room; but the rooms occupied by Koenigsberg were not burned to any extent. The indictment against the principals charged them with having on the 10th of November, 1878 in the night time, set fire to and burned a certain dwelling-house of one Isaac Koenigsberg, and that Isaac Koenigsberg was then and there within the said dwelling-house ; and the-indictment against the prisoner charged him with being accessory to that crime. It was objected on the trial that the proof did not support the indictment, inasmuch as there was no burning anywhere else than in the rooms of the prisoner himself, and that no> person was in either of those rooms at the time of the fire, and that therefore there can be no conviction of the prisoner as accessory to arson in the first degree. This objection was over-’ ruled and an exception duly taken.

The statute defines arson in the first degree to be the willful setting fire to or burning in the night time, a dwelling-house in which there shall be at the time some human being; and it. declares that every house or other edifice which shall have been usually occupied by persons lodging therein, at night, shall be deemed the dwelling-house of any person so lodging therein.

We think the court below was correct in its construction of the statute. The tenement-house was a building divided into a large number of apartments separately occupied by several tenants, who hold under distinct leases.

But this fact did not change its character as a single edifice within the meaning of the , statute defining the crime of arson. For certain purposes each suite of apartments may properly be held to be the dwelling-house of the occupant, and so the Court of Appeals in Mason v. People held that the breaking of an outer door leading from a common hall-way into the apartments of any tenant for the purpose of committing a crime therein, was the breaking of the dwelling-house of such tenant, under the statute defining the crime of burglary. (Mason v. The People, 26 N. Y., 200.) But in defining the crime of arson in the,first degree the Legislature intended to protect the whole building usually occupied by persons lodging therein at night, and all the occupants and lodgers therein without regard to the maimer in which it may be used, or the number of occupants. Being a single edifice such building is a dwelling-house within the moaning of the statute of arson although by its interior arrangements it may be subdivided into separate apartments constituting the dwelling-houses of the occupants for certain other purposes under the law ; and we «consider this construction to have been sustained, by the Court of Appeals, in Shepherd v. The People (19 N. Y., 537.)

In that case the prisoner was charged with the crime of arson in the first degree, in setting fire to a building belonging to himself. He and his wife occupied the second story of the building, which was reached by a staircase in the hall. One Christian Geyer -occupied the ¡Lower part of the building for a shop, and one room for a bedroom, and he habitually lodged there and was asl.eep in his bedroom when the fire occurred. The indictment «charged the prisoner with willfully setting fire to the dwelling-house of Geyer, and the court held that the building was properly laid as the dwelling-house of Geyer. The only difference between that-case and the present is we think, in the number of apartments separately occupied. In that case there were but two occupants of separate apartments, the one in the lower and the other on the second floor. In this case there were some twenty-occupants of distinct apartments on several floors. The fact that the whole building was burned in Shepherd’s case was not considered a material circumstance by the' court, so far'as relates to charging the offence under the indictment.

In Mason v. The People, the court did not refer to Shepherd’s Case, and manifested no intention to overrule it. In Dedieu v. The People (22 N. Y., 158), the prisoner was charged with setting-fire to a certain dwelling-house of Amelia Asselin, there beinthen and there, within the said dwelling-house, some human being. It appeared that the prisoner occupied apartments in the building No. 86 Leonard street, Mrs. Asselin, named in the indictment, and others occupying separately, other apartments in the building. The prisoner set fire to his own property in the apartments occupied by himself; but the fire was extinguished before any part of the building was burned.

Denio, J., in delivering the opinion in that case, says: “ The act ‘imputed to the defendant was setting fire to the dwelling-house of Amelia Asselin, situated in the Ninth ward of the city of New York. The house was properly enough laid as the dwelling of that person, the statute allowing the name of a lodger, in the same building, to be stated-as the owner.” The case did not turn upon this question ; but it seems quite clear that if the building had, in fact, been burned to a sufficient extent to constitute arson, the •offence would have been held properly charged.

These cases are sufficient to justify the construction of the statute contended for by the people, and it is manifest from the nature of things, that such construction ought to be upheld in cases like this ; otherwise any occupant of an apartment in a tenement-house by causing the fire to be set in the night on his own premises, so as to break out in the absence of all persons from such .apartments, would not be guilty of arson in the first degree, although the tenement-house and all its other numerous occupants were destroyed by the fire. What the statute means to protect is a building or edifice, occupied for the purpose of lodging therein, against nocturnal fires, dangerous to the lives of- such lodgers. It is plainly manifest that where fire is set to such, a building the danger is shared by every person, within it;

The really most important question in this ease is, whether there was evidence against the accused sufficient to justify a conviction. He was convicted as accessory before the fact. The evidence against him was purely circumstantial. We have examined it with great care, and have reached the conclusion that it was sufficient to justify the court in submitting the question of the prisoner’s guilt to the jury.

The Court of Appeals, in The People v. Case (76 N. Y., 242), went to the extremest length in interfering with the verdict of a jury in criminal cases, but we do not feel ourselves justified in applying the rulings of that case to any other, not in all respects precisely analogous. The charge to the jury was in all respects fair and impartial, and the unexplained and uncontradicted evidence leaves upon our minds, as it did upon the minds of the jury, a satisfactory conviction of his guilt. We do not feel at liberty to interfere with the verdict.

The judgment should be affirmed.

Beady J.. concurred.

Present — Davis, P. J., and Beady, J.j

Judgment affirmed.


author: ID avis, P. J. :

text:
    WILLIAM H. CATLIN AND MARIAM G. CATLIN, Appellants, v. THE ADIRONDACK COMPANY, Respondent.

      Reference — not vacated by a reversal, at the General Term, of the judgment entered on the report of the referee

    An order made at General Term reversing a judgment entered upon the report of a referee, and granting a new trial, does not, of itself, vacate the order • of reference already granted. The reference can only be vacated by an express direction entered in the order of reversal, or by an order made at “the Special Term upon a motion therefor.
    Appeal from an order of the Special Term, denying a motion Iby the plaintiffs to set aside a judgment for alleged irregularities.

      Marshall P. Stafford, for the appellants.
    All power and jurisdiction of a referee terminate with the filing of his report. {Sherman v. Justice, 22 How., 241; Piles v. Price, 23 id., 473 ; Goope v. Bowles, 42 Barb., 95.) When a referee has once filed his report he is functus officio, and cannot again act, even to correct a clerical error in his report, without a new order of authority from the court. (Piles v. Price, 23 How., 473 ; Truffaut v. Merrill, 37 Plow., 531; Richardson v. Ward, 13 Bevan, 110.) The case not being referable, except by consent, plaintiffs .had a right to a trial by jury on the second trial, and could not be deprived of that right without their consent. (Sharp v. Mayor, ■31 Barb., 579.)
    AL Pond, for the respondent.
   ID avis, P. J. :

This action by consent of the parties was sent to a referee for trial. An appeal was taken from the judgment entered on the report of the referee, and, on such appeal the judgment was reversed and a new trial ordered. No order Ayas made vacating The order of reference, and neither party took any steps to change the referee. The defendant noticed the case for trial before the same referee. The plaintiffs paid no attention to the notice and did not appear before the referee, and-the result was that the-complaint was dismissed by the referee on motion of the defendant..

The plaintiffs moved to sot aside the judgment entered on such dismissal, solely on the ground that the defendant’s proceedings were irregular, claiming that the order of new trial operated to vacate the order of reference and that the powers of the referee, under such order had been wholly exhausted. No application to open the judgment on the merits, or to be relieved by reason of mistake or misapprehension, has been made.

The sole question for consideration is therefore, whether the simple reversal of a judgment entered on the report of" a referee, operates to vacate the order of reference. We have already hold, in Phinney v. Broschell recently decided, that such was not its effect; and it seems to be well settled, by authority, that such an order is not vacated except by an express direction of the court at General Term, or upon motion, by the court at Special Term. (Billings v. Vanderbrek, 15 How., 295 ; White v. Smith, 1 Lans., 469 ; Schermerhorn v. Van Alen, 13 How., 82 ; Sharp v. The Mayor, etc., 31 Barb., 579—589 ; Murphy v. Winchester, 35 Barb., 616-620.)

The action therefore upon the reversal of the judgment and order of new trial stood referred. Either party was at liberty to move for a change of referee; and it is the established practice, whore the case depends upon questions of fact upon which a referee • has once passed, to grant such motion and send the retrial to a. new referee. Neither party saw fit to move in this case fora, change of referee, and the dofendant proceeded upon due notice to bring the case to a hearing before the referee named in the-order. This proceeding was regular. The plaintiffs have, doubtless, been prejudiced by the mistake of their attorney in supposing that the defendant’s proceedings were irregular, and that the • action of the referee was void for want of jurisdiction. The court. may with propriety perhaps relieve the plaintiffs from the consequences of such mistake, upon an application made for that-purpose : but the motion in this case upon the question presented • was properly disposed of, and the order should be affirmed with ten dollars costs and disbursements.

Beady, J., concurred.

Present — Davis, P. J., and Beady, J.'

Order affirmed, with ten dollars costs and disbursements.

       See ante, p. 116.


author: Brady, J.:

text:
    PERRY DEAN, Respondent, v. LEVI H. MACE, Appellant.

      Manufacturing corporation — chapter 40 of 1848, sections 18 and 24— complaint must show that the debt was payable within a year — a judgment must be recovered in the courts of this'State.

    In an action against the stockholders of a manufacturing corporation to enforce the personal liability for debts due to its laborers, imposed by sections 18 and 24 of chapter 40 of 1848, the complaint must show that the debt, payment of which is sought to be enforced, was to have been paid within one year from the time it was contracted.
    The provision in section 24, that no stockholder shall be personally liable “ until an execution against the company shall have been returned unsatisfied, in. whole or in part,” requires a judgment to have been recovered against the company in the courts of this State.
    Appeal from a judgment, entered upon an order overruling a. demurrer to the complaint.
    The action was brought to charge the defendant, a stockholder of the Secor Sewing Machme Company, with a debt due from. it.
    The complaint alleged, among other things, “ that during the years 3874 and 1875, one John Warburton performed work, labor and services as a laborer and servant for said company, at. its request, and at the agreed price, and of the value of $2,048.58. That said sum has not been paid, nor any part thereof, except the sum of $164.48 paid thereon ; that at the times hereinafter mentioned the Superior Court, Fairfield county, in the State of Connecticut, was a court of general jurisdiction, duly created by the laws of that State, and had jurisdiction of the subject-matter of the action hereinafter mentioned, anrl of the defendant therein.

      “ That within one year after said indebtedness became due, and -on the 24th day of June, 1875, an action was commenced thereon in said court, against the said company, the Secor Sewing Machine Company, by the issue of a summons, which summons was duly served on said company.
    “ That such proceedings were thereupon had; that on the 1st day of March, 1877, in said action, the said Warburton duly recovered a judgment, which was duly given by said court against said company, and duly docketed on said day, for the sum of $2,231.99.
    “ That execution upon said judgment was duly issued against the property of said company, on the 1st day of March, 1877, and that such execution has been returned wholly unsatisfied, and that said judgment remains wholly unpaid.
    "That said debt and said judgment, and all rights therein and thereunder, have been duly sold and assigned by said Warburton to said plaintiff, and that plaintiff is now the lawful owner and holder thereof.”

      F. A. Paddock, for the appellant.

      Hatch & Van Allen, for the respondent.
   Brady, J.:

This is an appeal from an order of the court, at Special Term, and from a judgment entered thereon, overruling the demurrer to the complaint.

The action was brought to recover from the defendant, a stockholder of the Secor Sewing Machine Company, incorporated under the general manufacturing law of this State (see chap. 40 of the Laws of 1848), a debt of the corporation. It appears from the -complaint, that one John Warburton, during the years 1874 and 1875, performed work for the company as a laborer, and at an agreed price of $2,048.50 ; and it also appears that the company was prosecuted, in the State of Connecticut, by Warburton, to recover a judgment against.it for the sum of $2,231.99, execution upon which was duly issued against the company and returned wholly unsatisfied.

It does not appear that any other proceeding, in regard to the claim, was instituted elsewhere. The liability of the defendant depends upon sections 18 and 24 of the statute, to which reference has been made, and by this latter section it is declared, that “no stockholder shall be personally liable for the payment of any debt contracted by any company formed under this act, which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall become due,” etc. It does not appear, from the complaint, that the debt, contracted by the company in favor' of Warburton, was to be paid within one year from the time it was contracted, which is essential to its validity against a stockholder. It is true that the allegations are, that during the years 1874 and 1875, the services were rendered to the company; but that is not sufficient, taken in connection with the time the suit is alleged to have been commenced against the company, to show that the debt contracted was to be paid within the year from the time it was created. The liability is one which rests upon a statutory provision, and all the facts, showing that the demand is within its provision, should be alleged specifically. It is, also, to be said that the judgment contemplated by the act of 1848 (supra), is one to be obtained, in this State, against a corporation, where it is presumed its property is situate, out of which the judgment could be collected.

For these reasons it is thought the demurrer was well interposed, and should have been sustained.

Davis, P. J., concurred.

Judgment reversed.


author: Brady, J.: Davis, P. J., and Ingalls, J. :

text:
    ADELE MILLER, Respondent, v. MONTGOMERY R. HOOPER, Appellant.

      Supplementary proceedings — pei'sonal earnings of debtor — wltat exempt front-execution as being such — Code, § 297.
    The defendant was a proprietor of a school, the tuition fees in which were payable quarterly in advance, one quarter commencing Februaiy third. On that day supplementary proceedings were instituted against him, and on Mai-ch eighth a receiver was appointed therein. The quarter fees amounted to about $600. After the commencement of the proceedings, and before the appointment of the receiver, the defendant had collected and used some $220. This application was made to restrain the receiver from collecting the balance of the accounts due for the quarter, on the ground that they were exempt from execution as personal earnings of the debtor necessary for the support of his. family.

      Held, that such application should be granted.
    Appeal from an order denying a motion to stay the proceedings of tlie receiver, appointed herein, in certain respects.
    February 3, 1879, an order in supplementary proceedings for the examination of the defendant was made herein, served on defendant, February 4, 1879, and the examination of defendant taken thereunder, from time to time, until February 21, 1879.
    The examination shows that defendant was a school-teacher, conducting a private school; that the tuition fees were payable quarterly in advance ; that the current quarter began February 3, 1879, and among other debts due defendant the fees for that quarter, amounting to about $600, were due on that day. Subsequently to the service of the order, and during the pendency of the examination, defendant received and expended a portion of said tuition fees. On March 8, 1879, two motions were made to the judge who granted the order upon the examination, and all the proceedings : First, for the appointment of a receiver; and second, to punish defendant for contempt, for having expended part of said tuition fees due February. 3, 1879.
    Upon the argument of said motion it also appeared that defendant was a householder, has a wife and five children entirely dependent upon him for support, and all of whom he supported. That the moneys so received by him were absolutely necessary for the support of his family, and were expended by him for food and necessaries in their support.
    The motion for a receiver was granted, and the motion to punish defendant for contempt was denied.
    The receiver having qualified commenced proceedings against those persons owing for tuition fees for the quarter beginning February 3, 1879.
    A motion was then made by defendant for an order .restraining-the receiver from interfering with said funds, and declaring the-same exempt under Code, § 297, and not hable to be reached by said receiver, which motion was denied, upon- the ground that, the moneys were due when the order was served, and earnings,, past or future, were not in question.

      JEllis & Sweeny, for the appellant.

      S. H. Thayer for the respondent.
   Brady, J.:

The defendant is the proprietor of a school, and his terms-require the payment quarterly, in advance, of the sums demanded for the instruction to be given. He has no other source of revenue, and depends entirely upon the profit of this business to support himself and his family. The product appears to be-about $1,200, and it appears that his family consists of himself, wife and five children.

The receiver, who was appointed, sought to recover from the debtors of the defendant the sums due in advance for the quarter which had not expired, and which, indeed, had just begun. The effect of this, if sanctioned, would be to prevent the continuance of the business, and to deprive the defendant of a livelihood. He might be able to borrow, but it must be without giving any security, and this, it is fair to presume, he would not succeed well in accomplishing.

His earnings, therefore, for the sixty days preceding the application for the order supplementary herein, being necessary for the support of his family, were exempt, and should be protected.

The service for which the moneys are paid to him are, in effect, paid each day during the quarter ; the money to carry out this theory being in his hands. If it were payable at the expiration of the quarter, it is quite clear on the evidence herein, that, under the statute, his earnings for the prior sixty days would be exempt.

I think, for these reasons, that the court below erred, and that the motion made should have been granted.

The order should, therefore be reversed, with ten dollars costs, .and the disbursements of the appeal to be deducted from the judgment.

Davis, P. J., and Ingalls, J. :

The exemption, for the benefit of the debtor, to enable him to 'support his family out of his earnings, should be liberally construed in favor of the debtor. It is a humane provision. I concur in the opinion of my brother Brady.

Order reversed, with ten dollars costs, and the disbursements of the appeal, to be deducted from the judgment.


author: Ingalls, J. :

text:
    LEOPOLD HAAS, Respondent, v. SAMUEL CRAIGHEAD AND JOSEPH TILNEY, as Executors, etc., of SAMUEL N. PIKE, Deceased, Defendants. LAWRENCE PIKE, Appellant.

      When one interested, in the controversy is entitled to he made a party to the action — Code of Civil Procedure, §§ 447-452.
    The firm of Haas, Pike & Co. transferred all its property, real and personal, to S. N. Pike, one of the partners, upon the agreement that he should sell the property, pay the firm debts from the proceeds thereof, and divide what might remain between the plaintiff and himself. Pike died in possession of the firm property, leaving a will, by which he devised his estate to the defendants, in trust, to manage the same and apply the profits thereof to the use of his children until the youngest should become of age, and then to divide the same equally among them. After all the children had come of age, the plaintiff brought this action against the defendants, as executors and trustees, to •compel them to account for the property received by their testator from the firm, and to pay to plaintiff his share thereof. One of the children applied to be made a party to the action, to enable him to protect his interest in the estate.

      Held, that the application should have been granted.
    No supplemental summons need be served, where one is made a party to an. action on his own petition.
    Appeal by Lawrence Pike from an order of the Special Term, refusing his application to be make a party to the above action.

      Fransioli & Mosher, for the appellant.

      Albert Gardozo, for the respondent.
   Ingalls, J. :

The plaintiff s alleged cause of action is the following: That the firm of Haas, Pike & Co. transferred to Samel N. Pike, one of then firm, its property real and personal, by a conveyance, general in terms, but accompanied by a parol agreement, that Pike should convert such property into money, and with it pay the debts of the firm, and whatever remained after the payment of the debts, to divide the same between the plaintiff and himself. Samuel N. Pike died in the possession of said property, not having performed the agreement. The plaintiff demands an accounting in regard to such property and to recover his share thereof. Samuel N. Pike left a last will and testament, by which he devised his estate to his executors in trust to manage and control the same, and appropriate the profits and proceeds thereof to the use, education and benefit of his children, until the youngest should become of age, and then to convey the real estate in equal parts to the children. The children, one of whom is the appellant Lawrence Pike, have all attained the age of twenty-one years. The appellant applied to the Special Term, to be made a party to said action, to enable him to protect his interest in the estate. We are convinced that the application should have been granted.

The controversy involves the real estate of which Samuel N. Pike died seized, and in which the appellant has a direct interest under the will of his father, and should therefore bo allowed to protect such interest. The question is not altogether, whether' Lawrence Pike is an indispensable party to such action, but whether he is not a proper party with a view to a final disposition of the subject of the action.

The Code of Civil Procedure (§ 447) provides “ any person may bo made a defendant who has, or claims, an interest in the controversy, adverse to the plaintiff. or who is a necessary party defendant, for the complete determination or settlement of a question involved therein, oxcent as otherwise expressly provided in this act.”

Section 452 provides, “ and where a person not a party to the action has an interest in the subject thereof, or in real property, the title to which may, in any manner, be affected by the judgment, .and makes application to the court to be made a party it must direct him to be brought in by the proper amendment.” This .statute is very comprehensive and" peremptory, and evidently intended to prevent multiplicity of actions, which is in entire harmony with the general policy of the law. We deem the application within the letter, as well as the spirit of the statute. There is no substantial reason why the entire controversy should not be determined in one action, provided the proper and necessary parties are brought into the action ; as the petitioner asks to be made a party no supplemental summons will be required. (Code of Civil Procedure, § 453.)

We think it would be judicious to make all the children of Samuel N. Pike parties to the action, so that the rights of all parties interested in the property in question may be definitively settled in this action. The order of the Special Term must be reversed, and an order entered directing that the petitioner be made a party to the action, and that the pleadings be amended accordingly. No costs of this appeal should be allowed, nor should costs be charged as a condition to such amendment, by which Lawrence Pike is made a party defendant.

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

Order reversed, without costs.


author: Ingalls, J.:

text:
    THE ROGERS LOCOMOTIVE AND MACHINE WORKS, Respondent, v. ALBERT KELLY AND LAWRENCE D. ALEXANDER, Appellants, Impleaded with Others.

      Deposit of funds by a company for the payment of coupons on its bonds — when it creates a trust for the benefit of the bondholders, and is not liable to attachment by a creditor of the company.

    The Mississippi Central Railroad Company issued its mortgage bonds, with coupons attached, and subsequently became consolidated with another corporation, payment of the bonds being assumed by the new company. On May 1, 1875, the treasurer of the latter company deposited with the defendants, Kelly & Alexander, §25,000, they signing a receipt, stating that they had received it “ in trust, to axiply the same to the payment of an equal amount of the coupons of. the first mortgage bonds and consolidated mortgage bonds of the Mississippi Railroad Conqiany * * * the said money not to be subject to the control of the said company, otherwise than for the payment of said coupons, as above described.”

      Held, that such deposit created a trust for the benefit of the holder^ of the coupons of the said bonds, and that the fund was not liable to be attached in an action brought, by a creditor of the company depositing it, to enforce a debt due from it to him.
    Appeal by the defendants Kelly & Alexander from the judgment entered herein upon the report of a referee, and also an appeal by the defendant Bills from an order granting Connor, the sheriff, an additional allowance.
    Upon certain obligations of the New Orleans, St. Louis and Chicago Railroad Company, the respondent Bills, on the 30th April, 1875, began an action in this court against the said company, a non-resident corporation, in which action a warrant of attachment against the property of said company was issued on the same day, and delivered to defendant Conner, as sheriff, for service, and was by the latter duly served upon the New Orleans, St. Louis and Chicago Railroad Company.
    At this time the New Orleans, etc., Company had assumed to pay certain bonds issued by the Mississippi Central Railroad Company, the interest coupons .upon which became payable on the first day of May, 1875.
    On the first day of May, 1875, the sheriff, in pursuance of said warrant, made the usual levy of attachment upon all the property, debts, etc., of said New Orleans, etc., Company, in the hands or under the control of, or owing by, the appellants, Ivclly & Alexander, bankers in the city of New York, and, particularly, levied upon certain moneys of the New Orleans, etc., Company, placed by it in the hands of Kelly & Alexander, for the purpose of paying-such of said interest coupons of said Mississippi Central bonds as. should be presented to Kelly & Alexander for payment.
    The total amount of this money was $25,000; but at the time of the service upon Kelly & Alexander, they had in their hands. $13,148.06 only remaining, as appears by the certificate given by them at the time to the sheriff’.
    Subsequently in June, 1876, the plaintiff in this action, the Rogers Locomotive Worles, brought this action against Kelly Alexander to have this $13,148.06, or a portion of it, applied to/ the payment of certain of these same coupons, which had become payable on first day of May, 1875, and of which this locomotive company was the owner. To this action the sheriff was made a. party defendant, as claiming a lien on this fund or indebtedness, and on application of this ^respondent Bills, the latter was by order made a party defendant to protect his interest in the attachment.
    Meanwhile, the action which Bills had brought against the New Orleans, etc., Company, and in which the attachment was levied, had been transferred to the United States Circuit Court in this city, where, on the 2d day of May, 1877, Bills recovered judgment against said railroad company for $26,904.43.
    The judgment entered upon the referee’s report in the action, brought by the Rogers’ Locomotive Works determines that at the time of service of the attachment upon Kelly & Alexander, the money remaining in their hands, to wit, the $13,148.06,. was the property of the New Orleans, etc., Company, and subject to the attachment, and directs that Kelly & Alexander pay the same to the defendant, the sheriff, who is to receive the same on behalf of defendant Bills, and apply it upon his judgment.

      Wheeler H. Peckham, for the appellants.
    The referee erred in directing any of this fund to be paid to defendant Conner, sheriff, etc. Bills’ action was commenced in this court, May 1, 1875. May 24, it was removed to the United States Circuit Court. Thereupon this court lost'all jurisdiction of that action and the attachment was vacated. (N. W. Dist. Co. v. Gorse, 4 Bissell, 514; N. Eng. Co. v. Bliven, 3 Blatch., 240; McLeod v. Duncan, 5 McLean, 342; Hatch v. R. R, Co., 6 Blatch.,- 105.) The deposit of the money, on the terms expressed, made Kelly &. Alexander trustees of the coupon holders. (Lawrence v. Fox,. 20 N. Y., 268; Burr v. Beers, 24 id., 178; Thorp v. Goal Go.,. 48 id., 253; Claflin v. Ostrom, 54 id., 581; Arnold v. Nichols, 64 id., 119; Milvain v. Tonies, 21 N. Y. Sup., 21.) The deposit and contract constituted a specific appropriation of the fund so deposited in favor of the coupon holders, and had Kelly & Alexander paid it to the sheriff, such coupon holders could have followed and recovered the fund. (Matter of Le Blanc, 21 N. Y. Sup., 9; see, also, the late case of Martin v. Funk, in Court of Appeals, reported in 7 Cent. Law Jour., 462, and the many cases cited.) The assent of the cestui qu& trust — the coupon holders — was unnecessary. (Nicoll v. Mumford, 4 Johns. Ch., 528, and cases cited; Ounningham v. Freeborn, 1 Edw. Ch., 263; 11- Wend., 249, 250; North v. Turner, 9 Sergt. & Rawle, 224; Brooks v. Marburg, 11 Wheat., 78-97; Halsey v. Whitney, 4 Mason, 207-214; 2 Kent Com., ■533, and note Burrill on Assignments, \\ 125, 284, 286.) If the-railroad company retained any control over this fund, it could not be more than a power of revocation. The title had passed. Now, a power of revocation is not an interest subject to attachment. It is a mere power which cannot be attached, and which a court of equity will not compel the holder to execute (see a full discussion in Jones v. Glifton [7 Cent. Law Jour., 89); U. S. Circuit Court for Kentucky, see, especially, second column of page 92 and second column of page 93.)

      Artemas H. Holmes and George H. Adams, for the respondents.
    The contract was not valid as to the company, and the coupon, holders had acquired no rights, nor could they have prevented the company from reclaiming the money. (Kelley v. Roberts, 40 N. Y., 432; Southern Express Co. v. Dickson, 4 Otto, 549; Ætna National Bank v. Fourth National Bank, 46 N. Y., 82, and the English cases cited and approved in that case, .viz.: Wedlalcev. Hurley, 1 C. & J., 83; Williams v. Everett, 14 East,, 582.)
   Ingalls, J.:

The facts which we deem essential in disposing of this case are substantially the following: The Mississippi Central Railroad Company, being a corporation, issued its mortgaged bonds with coupons attached. That corporation became consolidated with the New Orleans, Jackson and Great Northern Railroad Companies; and the new corporation was named the “New Orleans, St. Louis and Chicago Railroad Company.” The last named corporation assumed the payment of the bonds of the corporation first named. Certain of the coupons would become due on the 1st of May, 1875, and to provide for the payment thereof the New Orleans, St. Louis and Chicago Railroad Company, by and through its assistant treasurer, John M. C. Rodney, deposited with the defendants, Kelly & Alexander, $25,000, and the following instrument was executed, which specified the purpose of such deposit:

“ Received, New York, May 1st, 1875, from J. M. C. Rodney, twenty-five thousand ($25,000) dollars in trust, to apply the same to the payment of an equal amount of the coupons of the first xnortgage bonds and consolidated mortgage bonds of the Mississippi Railroad Company, in the order in which such coupons shall be presented to us for payment, after having been duly, identified for payment at our office by stamp impressed thereon, the said money not to be subject to the control of the said company, otherwise than for the payment of said coupons as above described.

“KELLY & ALEXANDER.”

Subsequently, an additional sum of $5,000 was placed by the same party in the hands of Kelly & Alexander for the same purpose, which deposit was accompanied by the following letter :

“ New York, May 1st, 1875.

“ Messrs. Kelly & Alexander :

“ Gentlemen — I herewith hand you my check for thirty thousand ($30,000) dollars, of which you will please place to my -credit $25,000, and which you will understand is placed with you to indemnify you and the New Orleans, St. Louis and Chicago Railroad Company, against a warrant of attachment served on. you by Orrin A. Bills, and which sum you will hold subject to any claim, against me' or said company, in favor of said Bills under said attachment, and the residue is handed to you in trust to be applied to the payment of coupons, in the same way as the sum of $25,000 handed to you this morning.

“ Yours, very respectfully,

“ J. M. C. RODNEY.”

Kelly & Alexander commenced paying the coupons, and when they had disbursed of such fund $11,851.94 they received notice of the attachment in favor of Orrin A. Bills, for a debt of $21,864, arising upon contract, against the New Orleans, St. Louis and Chicago Railroad Company.

We do not perceive that the last named company in any manner attempt to question or repudiate the deposit of the $20,000 above mentioned for the payment of the coupons, or complain of the manner Rodney accomplished the same. It appears that there are outstanding a large amount in unpaid coupons fairly within the contemplation of the trust. The evidence is too clear to admit of a doubt that McComb, the president of the railroad company, intended that the fund, created by the two deposits, should be devoted to the payment of such coupons, and there is no indication that he was particular in regard to the precise manner in which the fund reached its destination, but did desire that the money should create a fund to pay such coupons, instead of being subjected to seizure by Bills. McComb drew his checks in blank as to date and amount, thus showing clearly an intention to leave to Rodney, who was also an officer of the same corporation, the .arrangement of the details by which the fund should be placed in the hands of Kelly & Alexander for the defined purpose. All of the’ circumstances attending the transaction conspired to characterize such deposit as the creation of a trust for the benefit of the holders of the coupons. »

The receipt expressly declares that Kelly & Alexander : received the money in trust, and that the same should not be sub ject to the control of the company, otherwise than' for the payment of said coupons.

The letter which accompanied the additional $5,000 contained a declaration that such sum was delivered to Kelly & Alexander in trust, to be applied as they had been directed in regard to the $25,000. To allow the main purpose of such deposit to be defeated, and the holders of the coupons thereby deprived of the'money, because it is ascertained that there has been a slight departure-from the directions by which -the money was to be drawn and placed in the hands of Kelly & Alexander, and in regard to which the real parties interested in that transaction do not complain, would seem to sacrifice the substance to the shadow.

There is certainly no just reason shown why the holders of the coupons should not have the benefit of the fund, created, expressly for their benefit by the party which owed the.debt, instead of its being absorbed by general creditors. There seems to-be no pretence that the fund has been diverted by Kelly & Alexander from the purpose intended, or that it has been improperly managed in any way. We are satisfied that an irrevocable trust was created for the benefit of the holders of the coupons which the courts should see executed. The New Orleans, St. Louis and. Chicago Railroad Company, by the consolidation contract, assumed the payment of such bonds as a part of the arrangement, and the debt thereby became its own. The original corporation which executed the bonds became absorbed in the new corporation by reason of such consolidation, and through it properly endeavors to discharge its just obligations.

We are unable to-discover anything in the nature of the trust, or in the manner in which it has been thus far executed, which renders it illegal or inequitable. When' the money was received by Kelly & Alexander, it became sacredly dedicated to a clearly defined purpose, for the benefit of a class of persons specified, and who were entitled to the money. The parties to the transaction do not complain, and we perceive no sound reason why a general creditor should be allowed to intervene, seize the fund, and defeat the rights of the holders of such coupons. It is not a sufficient answer that some of the holders of the coupons had not presented their coupons in form, before the issuing of the attachment. The evidence shows that’ they were outstanding, uncanceled, and that payment is now sought from such fund.

If the view which we have taken of this case is coVrect, it becomes unnecessary for us to attempt to ascertain exactly what .was intended to be decided in Lawrence v. Fox (20 N. Y., 268)or how far the doctrine of that case has been defined or restricted ¡by subsequent adjudications. We have placed this case upon principles which had a clearly recognized existence long before the case of Lawrence v. Fox was decided. We conclude that the learned referee erred in the particular pointed out, and that consequently there must be a new trial, with costs to abide the event thereof before another referee, unless the parties shall stipulate to retry before the same referee. It is unnecessary to express ;any opinion in regard to the order appealed from in reference to the allowance, as that question will properly arise upon the next trial.

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

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