author: Donohue, J.:

text:
    JOHN T. GALLUP, Respondent, v. WILLIAM R. BABSEN and others, APPELLANTS. WILLIAM H. WELLS and another, Respondents, v. ISAAC S. HOLBROOK, WILLIAM R. BABSEN and another, Appellants.

      Appeal—when case wMl not he reviewed upon the merits—paints not taken at the trial cannot he raised on appeal.

    When, upon' the trial of an action, certain points are insisted upon by the defendant’s counsel, the attention of the court being called to no others, and an appeal is taken upon a record, not assuming to contain all the evidence, the defendant’s counsel cannot, upon the hearing of the appeal, insist upon a new defense, viz., that the plaintiff's case was not made out upon the merits, at the trial.

      Appeal from a judgment entered in favor of the plaintiffs upon the trial of each of the above entitled actions by the court without a jury.

      A. 8. Diossy and B. 8. Guernsey, for the appellants.

      Wm. Wickham, for the respondents.
   Donohue, J.:

These cases are in the main substantially alike. They are to enforce .a mechanic’s lien ; and, after the plaintiff rested, the defendants asked a dismissal on the grounds: 1. That the lien had not been prosecuted within one year; 2. That the notice was not filed with the town clerk; 3. That the summons was served too late. The cause was tried by the court without a jury, and the attention of the learned judge was not called to any other defect of proof, which might have been supplied. It was apparently admitted and taken for granted, that the only .grounds of defense were those stated. The judge overruled the points raised, and we think correctly, and the defendant, having appealed, now makes a new ground, not made before the court below, that the case on the merits was not made out.

The defendants below did not sum up the case, or request any findings, so far as the record shows, that could call attention to the point now made, and it does not appear even that the case on the appeal contained all the evidence on the trial-. The proof shows the judge right on the points made. The sole question presented here, is, can the defendant try' his case on certain points of fact, calling the attention of the court to no other, admitting in fact that all others are proved, and then appeal on a record not necessarily containing all the evidence, take the point that the plaintiff has failed to make out an issue, perhaps really admitted. We think this cannot be done, It does not appear on the record, that, had the point now raised been taken at the trial, it could not (if it really exists) have been cured. Experiments are not to be encouraged, nor is the record on questions of fact to be critically examined, where no point below was taken to call attention.

Present — Barnard, P. J., and Donohue, J.

Judgment affirmed, with costs.

       Price v. Keyes, 3 N. Y. S. C., 730; Cox v. James, 45 N. Y., 557.

       Ingersoll v. Bostwick, 22 N. Y., 425; Johnson v. Whitlock, 13 id., 345; Douglass v. Day, 3 Keyes, 434.


source: Caselaw Access Project

author: Tappen, J.:

license: Public Domain

text:
    JAMES FULLAGER, Appellant, v. EMILY REVILLE, Respondent. THE SAME v. THE SAME.

      Contract—rescission of—effect of.

    A contract rescinded, waived or abandoned, cannot be resuscitated by the act of one party to it.
    A contract rescinded *in part is rescinded in toto, unless some other intent be manifested.
    A party who agrees to, and accepts a rescission, without reserving, any claim under the rescinded contract, cannot hold the other party bound thereby.
    Appeals by the plaintiff in two actions brought by plaintiff; one to recover the sum of $500 liquidated damages, under a contract, the provisions of which are stated in the opinion of the court; the other, to recover certain interest and taxes. In the first action, the plaintiff’s complaint was dismissed; in the second, he recovered but twelve dollars, the remainder of his claim having been disallowed by the referee before whom the action was tried.

      W. G. Anthony, for the appellant.

      Gassedy <& Brown, for the respondent.
   Tappen, J.:

The plaintiff agreed to sell, and the defendant to buy, a house and lot in Newburgh, on certain terms. The agreement was in writing, and the defendant went into possession as vendee under a contract for the sale of lands. The first installment of $450 was paid by the defendant, but- she failed on the other payments of principal. She made certain payments toward the interest, insurance and taxes, but, on the 12th of May, 1873, she was in arrears to the plaintiff for these items, to the amount of $339 for interest, and thirty-nine dollars for taxes. The contract contained a clause by which the sum of $500 was declared fixed and agreed upon as liquidated damages, to be paid by the party failing to perform.

On the 12th of May, 1873, the defendant executed and delivered to the plaintiff, indorsed upon the contract of purchase, the following instrument:

I, Emily Reville, within named, in consideration of one dollar to me paid by James Fullager, the receipt whereof is hereby acknowledged, do hereby quitclaim, release and surrender to said Fullager, all my right, title and interest in the property within described, and in the within contract; and I do hereby yield up and surrender possession of said property to said Fullager, and direct all tenants in possession under me, to pay the rent to said Fullager, and surrender possession to him at the expiration of their lease.
“Witness my hand and seal, May 12, 1873.
[l. s.] “EMILY REYILLE.”

And the plaintiff thereupon retook the premises, and went into possession free and discharged from any contract with the defendant. Thereafter the plaintiff brought two actions against the defendant; one to recover the sum of $500, as liquidated damages under the contract. The action was dismissed at the trial. The other action was to recover the interest and taxes, before stated, which the defendant had neglected to pay the plaintiff. In this action the plaintiff had a recovery of twelve dollars, being for rent which defendant had collected of a subtenant for the month of May, 1873, and which she had agreed to pay the plaintiff. The remainder of the plaintiff’s demand was rejected by the referee, on the decision of the case. The opinion will apply to both actions.

The defendant’s liability depends upon the original contract of purchase, and the plaintiff’s claims against the defendant arise entirely out of that contract, and it was subsequently mutually rescinded. This rescission destroys the contract, and terminates the liability of either party to the other, unless some right he reserved in the terms of rescission. We use the term “ mutually rescinded,” because, while the agreement of rescission was signed by the defendant (the vendee) only, it was accepted by the plaintiff, the vendor, and the rescission, surrender and release accepted by the plaintiff put an end to the contract.

A contract rescinded, waived or abandoned, is dead, and cannot be resuscitated by the act of one party to it.

That the rescission of an executory contract destroys it as to both parties, is decided in Healey v. Utly, De Peyster v. Pulver, and cases cited; and in Battle v. Rochester City Bernik.

It is held in a number of cases, that if a contract be changed, the action must be upon the modified contract.

In the case at bar, the contract of rescission reserved no rights to the plaintiff against the defendant, and was fully performed by the defendant. It is said in Raymond v. Bearnard, that an agreement rescinded in part is rescinded m toto, unless some other intent be manifest. From all the authorities and the reason of the case, it is clear that one party, who agrees to and accepts a rescission without reserving any claim under the rescinded contract, cannot hold the other party thereto.

The decision in each of these cases was, therefore, correct, and the judgment in each of them should be affirmed, with costs.

Present—Barnard, P. J., Tappen and Donohue, JJ.

Judgment affirmed, with costs.

       Wood v. Perry, 1 Barb., 114, and cases cited.

       1 Cow., 354.

         3 Barb., 284.

       3 Com., 88.

       Baldwin v. Munn, 2 Wend., 399, 587; Philips v. Rose, 8 Johns., 392; Freeman v. Adams, 9 id., 115.

       12 Johns., 274.


text:
    JAMES H. MORAN and another, Assignees of MATTHEW D. BOGERT, Respondents, v. CATHARINE BOGERT, Appellant.

      Sale by assignee in bankruptcy — what constitutes a counter-claim, in action to recover pwrchase-price — Arbitration — when invalid.

    In this action, brought to recover the purchase-price of certain live stock sold by the plaintiffs, as assignees in bankruptcy, the defendant set up, as a counterclaim, a demand for services rendered by her in keeping the stock before and after the time at which the plaintiffs acquired title thereto. Held (1), that so much of the claim, as'related to services rendered before the plaintiffs acquired title, was a claim against the estate of the bankrupt, and could not be set up as a counter-claim in this action; (2), that so much thereof as related to services rendered after that time, could be so set up.
    Defendant’s account was, by agreement, left for adjustment to the register in bankruptcy, who determined that $250 would be a proper allowance for her, which sum was deducted by the referee from the purchase-price of the cattle. Held, that such agreement would constitute a common-law arbitration, and would be binding; but, that as it appeared that the arbitration was conducted in an informal manner, without hearing the claimant, or appointing any time for such hearing, it was irregular and not binding on the defendant, and that she was entitled to prove her claim anew.
    Appeal from a judgment in favor of the plaintiffs, entered upon .the report of a referee.

      James A. Seaman, for the appellant.

      Abbott Brothers, for the respondents.
   Opinion by Tappen, J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Judgment reversed, and new trial granted at circuit, unless plaintiff stipulate to deduct $159.50 from amount of judgment; and if such stipulation be made, then judgment affirmed as modified. No costs to either party.


text:
    ALFRED M. WILES and another, Respondents, v. LAMBERT SUYDAM, Appellant.

      Joinder of carnes of action—stockholder and trustee of insolvent corporation—causes of action against, as trustee and stockholder may be joined.

    This action was brought by the plaintiffs, to recover the amount of a judgment against an insolvent corporation, from the defendant, a stockholder and trustee. The complaint charged that the defendant was liable to the extent of his stock, by reason of the non-filing of the certificate as to payment in of the capital of the company, and as trustee, by reason of the failure to make and publish the report required by law. Defendant demurred on the ground of an improper joinder of causes of action. Held, that the demurrer was properly overruled.

    Appeal from a judgment in favor of the plaintiffs, entered upon an order overruling a demurrer.

      A. H. Hitchcock, for the appellant.

      Geo. W. Weiant, for the respondents.

       Durant v. Gardner, 10 Abb., 445; Sipperly v. Troy and Boston Railroad Co., 9 How., 83

   Opinion by Donohue, J.

Judgment affirmed.


text:
    WILLIAM McCAFFERTY, Appellant, v. NICHOLAS H. DECKER, Respondent.

      Money had and received, for plaintiff’s use—when action lies for.

    The defendant, who had contracted to construct a portion of a railroad, sublet a part of the contract to Fisher & Hart, who employed laborers who worked for them upon the road. Subsequently, Fisher & Hart having absconded, the defendant paid to the laborers the amounts due to them. It appeared that, in paying the laborers, it was customary to deduct from the wages due to each laborer the amount due from him to his hoarding-house keeper, or to persons who had sold goods to him, or his boarding-house keeper for him. In pursuance of this custom, the defendant retained §458.16, being the amount due to the plaintiff for goods sold by him to laborers and boarding-house keepers. In an action brought by the plaintiff to recover such amount, held, that he was entitled to recover the same from the defendant, as money had and received by him for plaintiff’s use.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      William Barney, for the appellant.

      J. H. G. Blythe, for the respondent.
   Opinion by Donohue, J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Judgment reversed, and new trial granted, at the circuit.


text:
    MERWIN S. HAWLEY, Respondent, v. ARTEMAS E. SACKETT, Administrator, etc., and others, Appellants.

      Deed—-when fraudulent as against creditor.

    Where one F., who was about to go into business, executed a deed of certain real estate to his father-in-law, without any money consideration therefor, intending to retain the property for his own use in case he should be unfortunate in business, which deed was not recorded, nor was the trust made public: held, that the conveyance was void as against subsequent creditors of F.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    - -, for the appellant.

      Spencer Clinton, for the respondent.

       Case v. Phelps, 39 N. Y., 164; Carpenter v. Roe, 10 id., 227; Fox v. Moyer, 54 id., 125.

   Opinion by Donohue, J.

Present — Tappen and Donohue, JJ.

Judgment affirmed with costs.


text:
    JAMES E. WATTS, Respondent, v. WILLIAM B. HILTON, Appellant. JOSEPH M. WOODS, Respondent, v. WILLIAM B. HILTON, Appellant.

      Complaint—when, facts showing ccmse of action, for libel and malicious prosecution may be joined in.

    Where the complaint set forth a series of acts on the part of the defendant, all aimed at,, and seeming and charged to be for effecting, one object, the different acts being the publication of a libel against the plaintiff, and maliciously causing his arrest: held, that a demurrer interposed to the complaint, on the ground that there was an improper joinder of causes of action, and that the complaint did not stale facts sufficient to constitute a cause of action, was properly overruled.
    Appeal from orders, made at the Special Term, overruling demurrers to the complaints in the above entitled actions.

      George W. Parsons, for the appellant.

      Trea&well ds Cleveland, for the respondents.
   Opinion by Donohue, J.

Orders affirmed, with costs.


text:
    GEORGE SHERWOOD, Respondent, v. WILLIAM L. FISCHER, Appellant.

      Negligence of apprentice — bond given by master for damages occasioned by—when liable on.

    An apprentice in the employ of the defendant, with his assent, took defendant’s > horse and wagon for a ride, and, by his negligence, injured the assignor of the plaintiff. The apprentice was arrested, and, while he was in custody, the defendant appeared, and, after a full statement of the facts had been made, entered, into an engagement in writing, by which he promised to pay a certain sum for the injuries so occasioned. In an action upon this agreement, held, that the defendant was liable thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict' of a jury, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the case was tried.

      Otto Meyer, for the appellant.

      J. 0. DyTcmam,, for the respondent.
   Opinion by Donohue, J.

Present — Babnabd, P. J., and Donohue, J.

Judgment and order affirmed, with costs.


text:
    STEPHEN C. LUSK, Respondent, v. JOHN C. CAMPBELL AND ANOTHER, APPELLANTS.

      Alternative defenses—effect of one leing sustained— Usury.

    In this action, brought to recover the amount due on a promissory note for $550, given by the defendant to the plaintiff, the defendant set up in his answer that the note was, by mistake, drawn for fifty dollars too much, or that, if there was not a mistake in drawing it, it was usurious. The referee found that it was by mistake drawn for fifty dollars too much, and deducted that amount from the recovery. Seld, that this result sustaining one branch of the defense, precluded the defendant from insisting upon the other, as usury cannot be founded on a mistake.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Ralph E. Prime and E. R. Keyes, for the appellants.

      J. P. Sanders, for the respondent.
   Opinion by Tappen, J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Judgment affirmed, with costs.


text:
    CHARLES H. MEAD and another, Respondents, v. THE WESTCHESTER FIRE INSURANCE COMPANY, Appellant.

      Policy of Insurance — when action to reform, cannot be sustained.

    One Foley applied to the agent of the defendant to insure “ my house.” In the year preceding the application, Foley owned and resided in a dwelling-hou%e on the Oornwall road, but at the time of the application he resided in and owned a two and a half story frame building, occupied as a dwelling and paint shop. The policy issued covered the house on the Cornwall road, the agent testifying that he thought that that was the house Foley wished to insure. In an action brought to reform the contract, held, that the minds of the parties never met in an agreement, and that the action could not be maintained.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      O. Frost, for the appellant.

      Qassedy & Brown, for the respondents.
   Opinion by Barnard, P. J.

Present— Barnard, P. J., Tappen and Donohue, JJ.

Judgment reversed and new trial granted at circuit, costs to abide the event.


text:
    HOWARD ALLISON, as Receiver, etc., Respondent, v. WILLIAM E. WELLER, Impleaded, etc., Appellant.

      Action by receiver to set aside fraudulent conveyance —judgment debtor proper pa/rty to.

    In an action brought by a receiver, appointed in supplementary proceedings, to set aside a conveyance, as fraudulent as against creditors, the judgment debtor is properly made a party defendant

      Appeal from an order made at the Special Term, overruling a demurrer to the complaint.

      Hulse, Little <& Finn, for the appellant.

      L>. D. MoLKoon, for the respondent.

       Vanderpoel v. Van Valkenburgh, 6 N. Y., 190; Bostwick v. Menck, 40 id., 383; Shaver v. Brainard, 29 Barb., 25.

   Opinion by Donohue, J.

Present — Tappen and Donohue, JJ.

Order affirmed.


text:
    JOHN A. NICHOLS, Respondent, v. THOMAS IREMONGER, GEORGE IREMONGER and WILLIAM IREMONGER, Impleaded with CHARLES A. HILL and others, Appellants.

      Purchasers under execution sale—•defense by, to prior incumtyrances.

    Purchasers under an execution sale may set up any defense to a lien prior to that under which the execution sale was had.
    Appeal from a judgment of foreclosure and sale, entered on the report of a referee in favor of the plaintiff.
    The action was brought to foreclose a mortgage on premises sold on an execution sale, to the defendant, Iremonger, under a judgment subsequent to such mortgage.

      Jolm H. Bergen and Phili/p Reilly, for the appellants.

      BL. W. Johnson, for the respondent.
   Opinion by Baenabd, P. J.

Present—Baenabd, P. J., Tappen and Donohue, JJ.

Judgment reversed, and new trial granted at Special Term, costs to abide the event.


text:
    GEORGE W. COLE and others, Appellants, v. MATTHIAS DENUE, Respondent.

      Evidence—Oode, see. 899.
    Where in an action of ejectment, in which plaintiffs and defendant claim title from different owners, evidence is given on the part of the plaintiffs as to certain admissions made by a grantor of the defendant, the testimony of such grantor is properly admitted to rebut this evidence, even though it relates to transactions had with a deceased person, through whom the plaintiffs claim title.
    Appeal from an order made at the Special Term, denying a motion for a new.trial made on a case and exceptions.

      A. L. Martin, for the appellants.

      J. W. Elseffer, for the respondent.
   Opinion by Donohue, J.

Present — Tapper and Dorohue, JJ.

Judgment and order denying new trial affirmed, with costs.


text:
    LEWIS BEACH, Respondent, v. JOHN EAGER, Appellant.

      Complaint foi' fraud—camse of action on conti'act cannot be proved under.

    Under a complaint for fraud, it is not sufficient to prove a cause of action upon contract.

    Appeal from a judgment in favor of plaintiff, entered at the County Court of Orange county.
    The complaint alleged a cause of action arising from fraudulent representations as to the defendant’s power to sell a mortgage, and as to the amount due. thereon. The case went to, the jury under a charge of the judge, that the plaintiff was entitled to recover if the employment was not within the scope of defendant’s agency. The jury were not required to find fraud on the part of the defendant.

      Allertm & Mills, for the appellant.

      John R. Bergen, for the respondent.

      Degraw v. Elmore, 50 N. Y., 1.

   Opinion by Babnabd, P. J.

Present—Babnabd, P. J., Tappen and Donohue, JJ.

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


text:
    JOHN HIGGINS, Respondent, v. THE NEWTOWN AND FLUSHING RAILROAD COMPANY, Appellant.

      Implied assumpsit—when special contract is made measure of damages.

    A. party who has performed a special contract, may sue upon an implied assumpsit, and, upon the trial, give in evidence the contract-price as the measure of damages.

    Appeal from a money judgment, entered on the verdict of a jury at the Queens County Circuit.

      Riñas J. Beach, for the appellant.

      James W. Oovert, for the respondent.

      Farron v. Sherwood, 17 N. Y., 237; Fells v. Vestvali, 39 id., 152.

   Opinion by Babnabd, P. J.

Present—Babnabd, P. J., and Donohue, J:

Judgment affirmed, with costs.


text:
    GEORGE N. COX, Respondent, v. THERON N. WELLER, Appellant.

      Statute of frauds.

    A verbal agreement between W. and F., whereby W., for a valuable consideration, agrees to pay a claim due from F. to 0., is not within the statute of frauds, and may be enforced by 0.

    Appeal from a judgment entered in favor of the' plaintiff, at the Orange County Circuit.
    Mulse, Little <& Finn, for the appellant.

      L>. JD. McKoon, for the respondent.

       Lawrence v. Fox, 20 N. Y., 268.

   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Judgment affirmed, with costs.


text:
    JAMES H. RAYMOND, Respondent, v. CAROLINE H. HANFORD, Appellant.

      Implied, assumpsit—measure of damages.

    An executed contract may be sued upon, on an implied assumpsit, and the contract-price will be the measure of damages,

    Appeal from a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial.,
    The action was brought upon a quantum meruit, for work and labor done for defendant.

      T. Q. Swaptwout, for the appellant.

      L. T. Yale, for the respondent.

       Farron v. Sherwood, 17 N. Y., 227; 39 id., 152.

   Opinion by Barnard, P. J.

Present—Barnard, P. J., Tappbn and Donohue, JJ.

Judgment affirmed, with costs.


text:
    CHARLES H. VAN SIZE, Appellant, v. THE LONG ISLAND RAILROAD CO., Respondent.

      Trespasser—effect of putting fixtures on the land of another.

    The 'defendant being in occupation of a strip of land, with its track thereon, took proceedings under the general railroad act to acquire title.
    It appeared that when the track was laid, the farm, embracing this strip of land, belonged to one Stewart, and that he conveyed to Van Size, who was the owner when such proceedings were taken. Van Size sought compensation, not only for the land, but for the improvements put thereon by the company. He offered to prove that its entry on the land was without the owner’s consent, and also the value of the rails, ties, etc., on the strip in question. The commissioners refused to allow proof of these facts, and Van Size appealed from the order confirming their report.
    The court was of opinion that the railroad company, if it entered without consent, was a trespasser as to the then owner, and as to Van Size who acquired title from him; and that any fixtures it placed on the land while its occupation thereof was that of a trespasser, belonged to the owner who was such at the time of the making of the valuation ; and that the commissioners therefore erred in rejecting the testimony offered by Van Size. The railway track, composed of rails and ties, was a fixture of the land, and its value as a fixture, enhancing the value of the land for the beneficial enjoyment thereof, was the measure of compensation.

      Thomas Yoitng, for the appellant.

      Benjamin W. Downing, for the respondent.
   Opinion by Tappbn, J.

Present — Tappbn and Donohue, JJ.

Order reversed, with costs.


text:
    ELIZA A. DENHAM and others, Appellants, v. SAMUEL F. JAYNE and GEORGE W. MERCER, Impleaded, etc., Respondents.

      Evidence—Code, § 399. 1

    Appeal from an order of the Kings.county Special Term, confirming the report of a referee.
    The defendants held certain lands in trust for Maria, the wife of Mark Cornell, and to secure to the defendants certain advances of money made by them from time to time for account of Mrs. Cornell. A reference was ordered to determine the amount of these advances, and from an order of the Kings Special Term, confirming the referee’s report thereon, the plaintiffs appeal. The referee found $4,700 due the defendants; the plaintiffs conceded that the advances, with interest, amounted to $3,262, and disputed the balance. Mrs. Cornell was the original plaintiff in this action, the present plaintiffs having, on her decease, been substituted as her representatives. Mrs. Cornell signed and verified the first complaint, in which it was set forth that the amount due the defendants was $5,000; this complaint had been prepared under the direction of the defendant Jayne, who, as a witness before the referee (Mrs. Cornell being then deceased), testified that she signed the affidavit in his presence; he also gave testimony going to show generally that he was acquainted with her handwriting. The first complaint had been amended, and the amended pleading did not contain the admission relied upon by the defendants; the testimony of Jayne failed to show that he was acquainted with Mrs. Cornell’s handwriting. The referee admitted the complaint as evidence of the amount due the defendants Jayne and Mercer. Held, that the evidence of Jayne, a party to the action, that he had seen Mrs. Cornell sign it, was evidence of a transaction between them, and was not admissible under section 399 of the Code.

    Miller, Peel & Op dyke, for the appellants.
    •, for the respondents.

       Resseguie v. Mason, 58 Barb., 89.

   Opinion by Tapper, J.

Present — Barnard, P. J., Tapper and Donohue, JJ.

Amount found due reduced to $3,262, with interest, and the order as modified affirmed.


text:
    JOHN SHAFFER Appellant, v. JOSEPH RICE and others, Trustees, etc., Respondents.
    Appeal from a judgment of the Queens County Court, reversing a judgment of a justice of the peace, in favor of the plaintiff.
    The trustees of a school district issued a warrant to collect a'tax, including a tax against the plaintiff as a resident of the district, and there was a levy and sale of plaintiff’s property to satisfy the tax. He brought an action of trespass against the defendants, claiming to be a non-resident of the district, and not liable to be assessed therein, and on a trial before a justice of the peace the plaintiff had judgment for damages. On appeal the County Court reversed the judgment, for errors of the justice in admitting and rejecting testimony.
    This court was of opinion that such errors were committed, and, without any discussion of them in the opinion, decided that the reversal was right.

      Theodore J. Qogswell, for the appellant.

      James W. Covert, for the respondents.
   Opinion by Tapper, J.

■ Present — Barnard P. J., Tapper and Donohue, JJ.

Judgment affirmed, with costs


text:
    THE GUARDIAN MUTUAL LIFE INSURANCE COMPANY, Respondent, v. ELEANOR KASHOW and others, Appellants.

      Usury.

    Appeal from, a judgment in favor of plaintiffs, entered on the report of a referee.
    The action was brought to foreclose a mortgage given by defendants to the plaintiff. The defense set up was usury, defendants having given a bonus of $3,000 in mortgages to get a loan of $7,000.
    The court after a review of the evidence, was of opinion that the plaintiff took the mortgages thus given to procure the loan, and that the defense was therefore sustained by the proof; and it reversed the judgment, and ordered a new trial, costs to abide the event.

      Smith <& Btanbrough, for the appellants.

      Livingston K. Miller, for the respondent. ‘
   Opinion by Barnard, P. J.

Present—Barnard, P. J., Tappen and Donohue, JJ.

Judgment reversed, and new trial granted at Special Term, costs to abide the event.


text:
    WILLIAM H. HALLOCK and another, Appellants, v. J. ORLANDO RANDALL, Respondent.

      Gross-examination —power of judge at circuit to limit.

    Appeal from a judgment in favor of the deféndant, entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    The only question presented by the appeal, related to the exclusion of a question; asked upon the cross-examination of. a witness. The General Term held, that “ The question referred to, is one of that class which it is not error to admit or reject; there was so much testimony in the case, from different witnesses, that the judge at circuit might exercise the power in his judicial discretion, of limiting all examinations and cross-examinations within reasonable bounds.”

      Miller da Tuthill, for the appellants.

      Strong da Spear, for the respondent.
   Opinion by Tapper, J.

Present — Barnard, P. J., Tapper and Donohue, JJ.

Judgment and order affirmed, with costs.


text:
    SAMUEL R. BRICK and others, Appellants, v. JULIA E. BRICK and others, Executrix and Executors, etc., Respondents.
    Appeal from a decision of the Surrogate of the county of Kings, admitting to probate the will of Joseph K. Brick, deceased.
    The principal question raised by the contestants, was'as to the testamentary capacity of the deceased. Mr. Justice Barnard, in delivering the opinion at Greneral Term, says: “ From a very careful reading of the evidence, I can discover no ground upon which the will or codicil can be successfully questioned.”

      Henry H. Hmies and H. H. J agues, for the appellants.

      Samuel Hand and William M. Ingraham, for the respondents.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tapper and Donohue, JJ.

Decree affirmed, with costs.


text:
    JAMES E. BUDLONG, Respondent, v. ROBERT F. WESTCOTT, as President, etc., Appellant.
    This was an appeal from a judgment, entered on a verdict rendered in favor of the plaintiff, and from an order denying a motion for a new trial, made on the minutes and certain affidavits claiming to set forth newly discovered evidence.
    The action was brought to recover $5,000 damages, claimed for injuries to plaintiff from being run against by a vehicle of defendant, through the negligence of the driver, while the plaintiff was crossing South street, over the cross-walk from Fulton Market to Fulton Ferry, Eew York.
    The court, after reviewing the evidence, was of opinion that the verdict' was against the weight of evidence, and granted a new trial, with costs to abide the event.

      Luke A. Loekwood, for the appellant.

      E. New, for the respondent.
   Opinion by Tapper, J.

Present ■—Barnard, P. J., Tapper and Donohue, JJ.

Judgment and order reversed, and new trial granted, with costs to abide the event.


text:
    JOHN WARREN, Appellant, v. STEPHEN MEKEEL, Respondent.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The action was brought for an adjustment of the accounts between the parties. The court, after a review of the evidence, discovered no finding, so unsupported by evidence as to afford a ground for reversal of the judgment. J

      Silas J. Owen, for the appellant.

      Samuel J. Owen, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Judgment affirmed, with costs.


text:
    MARY A. WOODGATE, Individually and as Executrix, etc., and another, Respondents, v. MELANCTHON FLEET and others, Appellants.
    Appeal from a judgment in favor of the plaintiff) entered upon the trial of this action by the court without a jury.
    This case has already been passed upon by the General Term (11 Abb. Pr. [R. S.], 52), and the Commission of Appeals (44 R. Y., 1). The General Term held that the only question presented upon this appeal—the validity of a trust deed — had been already passed upon, and affirmed the judgment.

      Wm. II. Onderdonk, for the appellants.

      Dennis McMahon, for the respondents.
   Opinion by Donohue, J.

Present —Barnard P. J., Tappen and Donohue, JJ.

Tappen, J., dissented.

Judgment affirmed, with costs.


text:
    HOWARD ALLISON, as Receiver of, etc., Respondent, v. WILLIAM E. WELLER, Impleaded with THERON WELLER, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon ' the trial of this action by the court without a jury.
    The General Term held that the facts were properly found by the court below, and that there was no me^it in the objections made to the form of the decree.

      Hulse, Little da Finn, for the appellant.

      D. JD. McKoon, for the respondent.
   Opinion by Donohue, J.

Present — Tappen and Donohue, JJ.

Judgment affirmed, with costs.


text:
    MARIA T. LORETZ, Respondent, v. JOHN M. LORETZ, Jr., Impleaded, etc., Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This appeal presented only questions of fact, and the General Term held, that the findings of the court below were fully sustained by the evidence, and affirmed the judgment.

      Tenney dé Holt, for the appellant.

      S. D. Morris, for the respondent. •
   Opinion by Donohue, J.

Present — Barnard, P. J., and Donohue, J.

Judgment affirmed, with costs.


text:
    JOHN J. RIDER and EZRA W. CONKLIN, Appellants, v. CORNELIUS S. STRYKER, Respondent.
    Motion for a reargument on the ground that the decision of the court on this appeal was put mainly on the ground that the commissioner for laying out and mapping the towns in Kings county, had not made a map of the premises upon which the wood in dispute was cut, and that this point was not taken in the court below. The court, after considering the proceedings had in the lower court, was of opinion that the point had been raised there.

      Benjamin G. Hitchings, for the appellant.

      D. P. Ba/rnard, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Motion denied.

       See 2 Hun, 115, for decision on the appeal.


text:
    PATRICK FORD, Appellant, v. THE BROOKLYN GASLIGHT COMPANY, Respondent.

      Oha/p. 811 of file Lomos of 1859.
    Appeal from a judgment of the County Court of Kings county, and from an order denying a new trial.
    The action was brought in the Justice’s Court of the city of Brooklyn, for damages for cutting off plaintiff’s gas, and resulted in a judgment for the plaintiff for $150. On appeal to the County Court a new trial was had, on which the plaintiff’s complaint was dismissed. The plaintiff made a deposit of fifteen dollars with defendant, October, 1872. A bill for gas was rendered 11th January, 1873, by which it appeared that plaintiff was consuming gas at the rate of forty-five dollars per month. Plaintiff was requested to pay the bill, and also to increase the amount of his deposit. The request was 'repeated, January thirteenth, and being refused, the gas was cut off. The court was of opinion that chapter 311, of the Laws of 1859, authorized the act of the defendant, and affirmed the judgment, with costs.

      T. O' Connor, for the appellant.

      Winchester Britton, for the respondent.
   Opinion by Tappen, J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Barnard, P. J., dissented.

Judgment affirmed, with costs.


text:
    GERMAN SMITH, Respondent, v. E. P. BELDEN, Impleaded, etc., Appellant.
    Appeal from a judgment in favor of the plaintiff, entered on an inquest at the Westchester County Circuit. The action was for goods sold, and the defendant, Belden, was soug’ht to be charged as a-partner. The defendant moved to postpone the trial when the case was called, showing the absence of material witnesses. The motion was denied, and the case went over to the next day, when an inqu'est was taken. The defendant then moved, at Special Term, to open the default, which motion was denied. On appeal to the General Term the denial was affirmed. On this appeal from the judgment, it was held that the adjudication on the former appeal prevented further review, and that in any event the discretion of the circuit judge was properly exercised.

      BE. Brewster, for the appellant.

      W. H. Townley, for the respondent.
   Opinion by Tappen, J.

Present — Tappen and Donohue, JJ.

Judgment affirmed, with costs.


text:
    EDWARD W. VANDERBILT and another, Appellants, v. MARGARET E. ARMSTRONG, and others, Respondents.
    Appeal from a decree of the surrogate of Kings county. The question presented on the appeal was one of fact. The court modified the decree by striking out that provision which fixed the amount in the hands of the county treasurer of Richmond county at $666.02, leaving that amount to be ascertained. As modified the decree was affirmed.

      Richard H. Huntley, for the appellants.

      Dermis McMahon, for the respondents.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Decree modified, and as modified affirmed, with costs to respondents.


text:
    In the Matter of the Petition of JAMES W. KIERNAN, to Vacate an Assessment for Grading and Paving Grand street, Brooklyn. In the Matter of the Petition of CHARLES H., ALBERT M. and FRANKLIN H. KALBFLEISCH, Executors of MARTIN KALBFLEISCH, Deceased, to Vacate an Assessment for Grading and Paving Grand street, Brooklyn. In the Matter of the two Petitions of CHARLES H., ALBERT M. and FRANKLIN H. KALBFLEISCH to Vacate an Assessment for Grading and Paving Grand street, Brooklyn.
    Appeal from an order denying a motion to confirm the report of a referee, and for a judgment vacating certain local assessments.

      The court, at General Term, was of opinion that, under the provisions of chapter 338 of Laws of 1858, amended by chapter 63, Laws of 1862, section 43, the assessment should be vacated; chapter 169 of 1861 requiring that a petition for the work should be signed by a majority of the land owners, and such petition not having been so signed. That the defect was not remedied by chapter 589 of 1874, as the assessment had not been confirmed; and for the further reason that so far as it relates to these assessments the act is local, and its title does not embrace this subject.

      F. P. Bellamy, for the petitioners.

      Wm. O. De Witt, corporation counsel.
   Opinion by Barnard, P. J.

Present—Barnard, P. J., and Donohue, J.

Orders reversed, and report of referee confirmed, with costs.'


text:
    WILLIAM CAMPBELL, Respondent, v. HEZEKIAH L. FERGUSON and another, Appellants.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The General Term held that the evidence in the case was sufficient to sustain the findings of the jury, and that the judgment should be affirmed.

      George W. Greene, for the appellants.

      Burt d¿ Beattie, for the respondent.
   Opinion by Barnard, P. J.

•Present — Barnard, P. J., and Donohue, J.

Judgment and order denying new trial affirmed, with costs.


text:
    E. A. WOODWARD, Appellant, v. HENRY BUGSBY as the Administrator, etc., of ISAAC BUGSBY, Deceased, Respondent.
    Appeal by plaintiff from an order appointing a receiver in proceedings supplementary to an execution issued against plaintiff on a judgment recovered by the defendant in the above entitled action.
    The plaintiff offered to show, by a witness called in the proceedings, that one Finn was the partner of the special county judge, before whom these proceedings were had; that said Finn owned the judgment, and had employed Dill & Royce to institute the proceedings before the special county judge.
    The General Term was of opinion that the object for which the witness was called, did not prevent the opposite party from proving by him any fact material to such party or the investigation, and that the rejection of the evidence was error.

    J). D. McKoon, for the appellant.

      Dill (& Royoe, for the respondent.

       Chapter 280, sec. 82, Laws of 1817.

   Opinion by Barnard, P. J.

. Present — Barnard, P. J., Tappen and Donohue, JJ.

Order reversed, with costs.


text:
    REUBEN H. MAPLESDEN, Respondent, v. G. TEN EYCK, SHELDON AND ANOTHER, APPELLANTS.
    Appeal from a judgment, entered on the report of a referee. The action was brought to foreclose a mortgage, and the principal question involved was, as to whether the time for its payment had been extended. The referee found, as a fact, that the plaintiff never agreed to extend the time. The evidence was conflicting upon this point, and the General Term affirmed the judgment.

      H. Brewster, for the appellants.

      George A. Brwndreth, for the respondent.
   Opinion by Barnard, P. J.

Present — Barnard, P. J., Tappen and Donohue, JJ.

. Judgment affirmed, with costs.


text:
    THOMAS W. SOLOMON, Respondent, v. JOHN A. MIDDLETON, Appellant.
    Appeal from a judgment of the County Court of Kings county, in favor of plaintiff, in an action for work, labor and services.
    The court, after examining the evidence in the case, was of opinion that the verdict of the jury should not be set aside.

      William Sutphen, for the appellant.

      Westervelt & Greenfield, for the respondent.
   Opinion by Tappen, J.

Present — Barnard, P. J., Tappen and Donohue, JJ. '

Judgment affirmed, with costs.


author: Davis, P. J.:

text:
    TRUST FELIX GOURAUD, Respondent, v. ANDREAS H. TRUST and others, APPELLANTS.

      Trade mark—infringement of.

      ■ Plaintiff sold a cosmetic as “ Gouraud’s Oriental Cream or Magical Beautifier.” Defendants, Ms sons, advertised and sold the same preparation as “ Creme Oriéntale, by Dr. T. F. Gouraud’s Sons.” Seld2 that it was an infringement of the plaintiff’s trade mark.
    Appeal from an order of Special Term continuing an injunction order.
    The plaintiff was the inventor and owner of a cosmetic known as “ Gouraud’s Oriental Cream or Magical Beautifier,” and claimed those words as his trade mark, and that the defendants infringed Ms rights by using the words “ Creme Oriéntale,” and adding thereto, “ by Dr. T. F. Gouraud’s Sons.” The plaintiff was known by the name of Dr. J. W. Trust for a number of years, and the defendants, his sons, were known by that name. About three years before the commencement of this action, by virtue of certain proceedings in the New York Common Pleas, plaintiff’s name was changed to Trust Felix Gouraud.

      A. G. Hull, for the appellants.,
    Plaintiff cannot appropriate a common or proper name as a trade mark. (Tower v. Stetson, 5 Abb. Pr. [N. S.], 218; 7 Bos., 222; 28 How. Pr., 206; 18 id., 64; 25 Barb., 417; Burgess v. Burgess, 17 Eng. Law and Eq., 257, in point; Faber v. Faber, 49 Barb., 357; id., 588; 3 Sanf., 725; 4 Abb. Pr. [N. S.], 410.) One cannot be enjoined ffom using bis own name, merely because it is similar to that of a rival. (Faber v. Faber, 3 Abb. Pr. [N. S.], 115; Burgess v. Burgess, 17 Eng. Law and Eq., 257; 50 Barb., 236.) Courts will not sustain an imposition on the public. (See note to case of The Empire Spring Co. v. High Rock Spring Co., in Court of Appeals, as published in 10 Abb. Pr. [U. S.], 349.) Courts are not bound to interfere where ordinary attention will enable a purchaser to discriminate. (Upton on Trade. Marks, 218, 219, 220; vide Partridge v. Mencks, 2 Sandf. Ch., 622.)

      O. O. Egan, for the respondent.
    In the case of injunction and other provisional orders, the right of appeal, by section 349,. is simply secured, and is only to be entertained by the courts, so far as to see that the order was made in a case entitling the party to it within established principles, and that the, discretion was not arbitrarily exercised. (Forrest v. Forrest, 25 N. Y., 520; Vandewater v. Kelsey, 1 id., 533.) The facts found by the court below, upon which the right rests, are conclusive, and the order not reviewable. (Voorhis v. Voorhis, 50 Barb., 119; Durant v. Einstein, 5 Robt., 423; 6 Bosw., 213; 8 id., 574; Loeschizk v. Peck, 3 id., 700.) As to the right of the plaintiff to protection in his trade mark. (Taylor v. Carpenter, 11 Paige, 292; Burnett v. Phalon, 3 Keyes, 594; 5 Abb. [N. S.], 218; affirming, 9 Bosw., 192; Amoskeag Manf. Co. v. Spear, 2 Sand., 599; Curtis v. Bryan, 36 How., 14-33; 2 Daly, 312; Meserole v. Tynberg, 4 Abb. [N. S.], 410; Newman v. Alvord, 49 Barb., 588; affirmed in Court of Appeals, 51 N. Y., 189; 35 How., 188; Faber v. Faber, 49 Barb., 357; Howe v. Howe, 50 id., 236; Gillott v. Easterbrook, 47 id., 455; Smith v. Woodruff, 48 id., 438.) The prior use of a device or trade mark, to avail as a defense, must extend to and include the defendants. (Newman v. Alvord & Bailey, 49 Barb., 588,.Erie Gen. Term, per Daniels, J.)
   Davis, P. J.:

A careful examination of the pleadings and affidavits on which this motion was made and opposed, leads me to the same conclusions reached by the court below. The form adopted by appellants, to name and advertise their preparation, which it is conceded, is identical with that made by respondent, seems prima facie, to be a studied effort to mislead the public into the belief that the article is prepared and sold by respondent, or perhaps that the appellants are his successors to the business and reputation, or good will, that respondent has during the last twenty-five years established.

It is true the appellants are the sons of the respondent, but their name is Trust, and not Gouraud. They have the right to describe themselves as Dr. Gouraud’s sons, when any question of genealogy or legitimacy arises, or when their identification as his children becomes important; but they have no legal or moral right to connect that description in the form they have done, with the name of his preparation, changed so slightly as it is in name, for the purpose of misleading the public, and securing a trade designed for, and supposed by purchasers to he given to him. It seems to me that this is the violation of his right and property to which their conduct tends, and they cannot shield themselves from the consequences, by any pretext of filial respect for the name to which in law the father is alone entitled.

For these reasons and those given in the opinion of the court below, the order should be affirmed, with ten dollars costs, besides disbursements.

Daniels and Beady, JJ., concurred.

Ordered accordingly.


text:
    THE HANOVER FIRE INSURANCE COMPANY, Respondent, v. THEODORE E. TOMLINSON, Appellant.

      Judgment of foreclosure— Code, § 71 — what judgment may he sued upon under its provisions.

    A judgment of foreclosure, directing a sale of mortgaged premises, and the payment, by the defendant, of any deficiency, which might arise on such sale, is not such, a judgment as is contemplated by section 71 of the Oode, relating to the bringing of actions on judgments.
    On such judgment, further proceedings, such as the confirmation of the referee’s report, etc., must be had before a personal judgment can be entered.
    Appeal from an order of the Special Term, granting a motion for leave to sue on a judgment.

      T. E. Tomlinson, appellant, in person.

      Charles Tracy, for the respondent.
   Davis, P. J.:

This action was brought for the foreclosure of a mortgage, executed by defendant, Tomlinson, to the plaintiff. The papers show that judgment of foreclosure and sale was rendered in the action, on the 10th day of October, 1862; that the mortgaged premises were sold under the direction of a referee; that the proceeds were insufficient to pay the costs and expenses of the suit, the taxes on the property, and the amount of the mortgage; that the report of the referee, filed with the clerk, showed the amount of the deficiency to be $2,051.36, on the 3d day of December, 1862; that the judgment directed the deficiency to be paid by the defendant, Tomlin-son, and that the same remains wholly unsatisfied. It does not appear that the report of the referee was ever confirmed by order of the court; and the certificate of the clerk, produced by the defendant, shows that no judgment for the deficiency was ever docketed.

This motion is founded upon section 71 of the Code, which provides that no action shall be brought upon a judgment rendered in any court of this State, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown, on notice to the opposite party. We think this section contemplates the case of a judgment, not only jmal, within the technical sense of that term, but one which has been duly docketed, and upon which an execution may be issued. The judgment in this case, which directed the foreclosure of the mortgage and a sale of the premises, and the payment of any deficiency that might arise upon such sale, by the defendant, was final for certain purposes ; but it contemplated further steps to be taken, before the order for the payment of the deficiency should ripen into a personal judgment against the defendant. One of these steps was the confirmation by the .court of the report of the referee showing such deficiency. That report was open to exceptions, to be filed by the defendant sought' to be charged personally, who, if he had appeared in the action, could in that manner contest the correctness of the report in respect of the deficiency. Another, we think, was the docketing of a judgment by the clerk for the amount of the deficiency. . No execution could issue till such docketing was made, because the execution must be against property only, and, in such case, must issue to the sheriff of a county in which the judgment has been docketed. We are of opinion, therefore, that in this case there was no judgment which could be subjected to the provisions of section 71 of the Code. The remedy of the plaintiff was to proceed and perfect the judgment for the deficiency, and not resort to an action therefor. If the plaintiff have the right to confirm the report of the referee, and docket judgment thereon, it has now a more speedy and efficient remedy than by suit. If it have not that right, it is not entitled to the order of the court, under section 71, to give color to other proceedings which it may be advised to take.

We- think the order was improvidently granted and should, be reversed, with ten dollars costs of this appeal besides disbursements.

Daniels and Brady, JJ., concurred.

Ordered accordingly.

       Code, § 287.


text:
    JAMES COWAN, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant. W. J. FINNEGAN, Respondent, v. THE SAME, Appellant.

      What courts will take judicial notice of—-Extra compensation — not allowed to salm'ied office!'—Power of supermsors of New York to audit claims — sec. 7 of chap. 190, Laws of 1870 — Legal claim—what is.

    This court is bound to take judicial notice that furnishing naturalization papers by the clerk of a court, and indexing naturalization books when necessary, are a part of the duties devolving upon the clerk by law.
    This action was brought by the plaintiff, a salaried clerk and assistant in the Marine Court of the city of New York, to recover compénsation for extra work performed by him in furnishing naturalization papers and indexing naturalization books in the said court. After the services were performed, a resolution was passed by the board of supervisors directing the comptroller to pay him $1,000 for such services. Held (1), that the plaintiff had no legal claim against the, county for such services, as the law imposed them upon the clerk as part of his duties; (2), that, as the board of supervisors were forbidden by law from auditing any not legal claims, they had no authority to direct the payment of the plaintiff’s claim, and that the resolution was unauthorized and void.
    A legal claim is one which the party asserting it may enforce by action, or some proceeding at law or in equity.
    Appeals ■ from judgments in favor of the plaintiffs, entered on verdicts directed by the court. The facts and questions of law in each of these cases, are precisely the same, and they were accordingly heard together.

      D. J. Dean, for the appellant.

      Doit. H. Strahan, for the respondents.
   Davis, P. J.:

The complaint of the respondent Cowan alleges that on . or about the 19th day of June, 1870, he was duly appointed a clerk and assistant in the Marine Court of the city of New York, and that from the date of his said appointment, up to the 17th of February, 1874, he continued to do and perform the duties incumbent upon him as such clerk and assistant., That while so employed as such clerk and assistant, he did' and performed extra work, labor and services for the county of New York, in furnishing naturalization papers and reindexing naturalization books, etc., in the said Marine Court. The specification by the complaint of the extra work, labor and services,” shows that they were clerical work pertaining to the office of clerk of the court, and to be performed by the clerk, his deputies and assistants. This court is bound to take judicial notice that “ furnishing naturalization papers ” by the clerk of a court, “ and indexing naturalization books ” when necessary, are part of the duties devolving upon the clerk by law; and extra work, labor and services thereupon, can mean nothing more than meeting the exigencies of some unusual pressure of that class of duties upon the officer, either by working out of ordinary office hours, or with greater skill and diligence during such hours. The answer alleges in substance, that the plaintiff was, as such clerk and assistant of the Marine Court, a salaried officer, and that it was his duty to perform the services mentioned in the complaint, without extra charge or compensation beyond the salary appurtenant to his office, and that all the salary appurtenant to his office has heretofore, and before the commencement of this action, been paid to him in full. And it was admitted on the trial, that the plaintiff had received his salary as alleged in the answer. The plaintiff on the trial put in evidence a resolution of the board of supervisors, adopted August 23, 1871, in these words: “ Resolved, That the comptroller be and he is hereby authorized and directed to draw his warrant in favor of James Cowan, third assistant clerk of the Marine Court of the city of New-York, for the sum of one thousand dollars ($1,000), for extra services, viz., for furnishing copies of naturalization papers, and reindexing naturalization books, etc., of said court, and charge the same to the proper appropriation.” This resolution shows a little more clearly that the work done pertained altogether to the office of the clerk, as part of his official duties. The first point made by the appellants, is, that the respondent had no legal claim against the county for the services alleged to have been rendered; and this point is based upon the ground that he was a salaried officer, and bound to perform such official duties for the salary pertaining to his office, and without additional compensation. A legal claim is one which the party asserting it may enforce by action, or by some proceeding at law, or in equity. We think the plaintiff’s claim was not of that character. In Bright v. The Supervisors of Chenango, it was held, that where services were rendered specially for the benefit of the county, and for which other provision had not been made, they formed a proper subject of compensation by the board of supervisors; but, in Matter of Mallory v. The Supervisors of Cortland County, it was held that the county clerk, who was by law clerk of the Courts of Oyer and Terminer and General Sessions, was not entitled to fees for services as clerk of such courts, because the course which the legislature had taken with the revised fee bill, evinced that they did not mean to allow any compensation ” for such services.

In the People ex rel. Phoenix v. The Supervisors of New York, the relator was district attorney of the county of New York. The statute provided that the district attorney of the city and county of New York, shall receive for his services an annual salary of not less than $2,300, nor more than $3,500, to be fixed and' paid by the common council of that city. The salary was fixed at $3,000. Subsequently, the legislature devolved upon him new duties -before then pertaining to the sheriff of the county. It was claimed that he was entitled to additional compensation for such new duties, beyond the amount of his salary. The court held otherwise, Bronson, J., by whom the opinion was pronounced, saying: By charging the attorney with the duty of suing for fines, without making provision for the payment of costs, the legislature has, in effect, declared that the salary of the officer is to be deemed the compensation for these as well as for other services. It is impossible for a salary officer to make title to an increased compensation, on the sole ground that a new duty has been cast upon him by the legislature.”

And, in Palmer v. The Mayor it was held that an officer had no valid claim for extra remuneration, for services required and rendered in the duties of his office, on a day (Sunday) on which he was not legally bound to work; and see Hatch v. Mann. As it cannot be doubted that the services rendered by the respondents were within the scope of the official duties of the clerk, it seems very clear that no claim for extra labor and services, in performing them, could have been enforced by suit or mandamus. But it is argued that the questions, whether these services were rendered, whether they were extra, whether they should be paid for, and what compensation should be paid for them, belonged to the board of supervisors, who were sole judges in respect of them, and that their action was in the nature of a judicial determination, and was conclusive. Conceding the argument to be sound, in the absence of any statutory prohibition or restriction, the question cannot be the same ••where such a statute exists. By section 7, of chapter 190, of the Laws of 1870, it is declared, that “no allowance or payment, beyond legal claims, shall ever be allowed by the board of supervisors.” This provision is only applicable to the board of supervisors of the county of New York. It is insensible and idle unless it operates to take away from that body all jurisdiction and authority to allow and pay claims which are not legal; and especially is this so, when the amount demanded and attempted to be allowed is beyond the legal claim of the party for the services embraced in his claim. Without doubt, the plaintiff had an entirely legal claim for the services mentioned in his complaint, and all other services rendered by him in the discharge of the duties of the clerk of the court. That.claim was his salary; and, since it appears that it was paid to him, we must assume that it was lawfully audited and allowed. When, therefore, the supervisors undertook, upon their own sense of propriety or justice, to direct $1,000 more to be paid to him, for a part of the same services which would otherwise have been covered and compensated by his salary, they were attempting to allow and pay an amount beyond his legal claim, because, as we have seen, no law awarded it to him, and no court, by any suit or proceeding, could have adjudged it to him. This was, in our judgment, an excess of authority, in plain violation of a statute; and, if the acts of supervisors are, when within their jurisdiction, to be deemed judicial, this was extra judicial because beyond such jurisdiction. We do not consider these views at all in conflict with Outwater v. (Green, or the People ex rel. Brown v. Green for the question whether the supervisors could audit and allow a claim not legal, or an amount for ofBcial services beyond the legal claim of a'salaried officer, in violation of an express statute of prohibition, was not before the courts in either of those cases. Without considering the other questions raised in the ease, we think the one discussed fatal to the plaintiffs recovery, and therefore reverse the judgment and direct a new trial, with costs to abide the event.

Daniels and Brady, JJ., concurred.

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

      18 Johns., 242.

       2 Cowen, 531.

       1 Hill, 362, 367.

       1 R. S., 383, § 95.

       Statutes of 1830, chap. 320, § 52.

       2 Sandford, 318.

      15 Wend., 44.

      2 N. Y. S. C., 18, 23.


text:
    In the Matter of RICHARD B. KELLY.

      Attorney—improper conduct of—UaMHiy of, for costs imposed on account qf — Precept for collection of—form, <f— when may direct the confinement of attorney.

    Where an attorney, from improper motives and without just cause, institutes proceedings to procure the removal from the bar of another attorney, he is . properly chargeable with the costs and disbursements incurred in such proceedings; and upon his failure to pay the same, a precept may lawfully issue, committing him to the county jail until such payment be made.
    It is not necessary that the amount of the costs and disbursements should be specified in the order imposing the payment of the costs upon the attorney; it is sufficient that the same should be duly taxed upon notice to him. The order and the adjustment of the costs are to he read together, and are a sufficient specification of the sum ordered to be paid.

      People v. PFevins (1 Hill, 154) followed.
    Appeal from an order of the Special Term, denying a motion .to set aside a precept granted for the collection of costs, ordered by the General Term to be paid by Henry H. Morange, an. attorney of this court.

      H. H. Morange, in person.

      Wm. H. Arnoux, for the respondent.
   Davis, P. J.:

The appellant, Henry H. Morange, an attorney and counselor of this court, made a motion at the last October term of this court, to strike Richard B. Kelly, another attorney and counselor, from the roll. The motion was founded upon affidavits and an order to show cause, and was met by opposing affidavits. Mr. Morange was heard fully in favor of his motion; but, it satisfactorily appearing to the court that the conduct of Mr. Kelly in the matter mentioned in the affidavits had been strictly honorable, and in entire good faith, the court declined to hear counsel on Mr. Kelly’s behalf, and denied the motion, with ten dollars costs of opposing same and disbursements; and, it appearing to the court that the proceedings had been prosecuted by Mr. Morange with improper motives, the court ordered that the costs and disbursements be paid by him personally. The costs and disbursements were afterward duly taxed by the court at $115.30, upon due notice and the appearance of Mr. Morange on such taxation. A copy of the taxed bill was served, and payment demanded and refused. Thereupon, application was made and granted, on the 17th day of November, 1874, at Special Term, that a precept issue to the sheriff', commanding him to take the body of said Morange and commit him to the county jail, and keep and detain him in custody until he should pay the said sum of $115.30, and ten dollars costs of the application. Precept was accordingly issued, and Morange was taken into custody thereon. He then moved at Special Term on affidavit to vacate and set aside the precept, which motion was denied with costs, and from the order denying the same this appeal is taken. The only questions made here are as to the regularity of the mode adopted to enforce payment of the costs, and the alleged informality of the order of the General Term, in not specifying the amount of costs and disbursements to be paid. We think the second of these points is disposed of by People v. Nevin, which substantially holds, that the order and the adjustment of the costs are to be read together, and are a sufficient specification of the sum ordered to be paid. In this case the taxation was made by the court at the sum named in the precept, and Morange not only attended such taxation on notice,' but was served with a copy of the taxed bill. It is provided by the Revised Statutes, that, “when any rule or order of the court shall have been made for the payment of costs, or any other sum of money, and proof by affidavit shall be made of the personal demand of such money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison, until such sum and the costs and expenses of the proceeding be paid.” This provision was materially modified by chapter 390 of the Laws of 1847, which declares that, “No person shall be imprisoned for the non-payment of interlocutory costs, or for contempt of court in not paying costs, except attorneys, solicitors and counselors, and officers of court, when ordered to pay costs for misconduct as such.” The exception, we think, leaves the Revised Statutes in full force in the excepted cases. Mr. Morange, as,an attorney of the court, instituted proceedings against a brother lawyer for his removal from the bar, in a case where it appeared to the court that there were no grounds whatever for such proceeding, and, as recited by the order of the court, it still further appeared that the proceedings had been prosecuted with improper motives. It is not necessary, and perhaps not proper, to set out here the facts upon which the court so adjudged. That order is not under review, and, for the purposes of this motion, was óonclusive on the Special Term. To institute such a proceeding without grounds, and to prosecute the same with improper motives, is misconduct in an attorney, for which the court may visit him with the costs of the injured party. The court, for that reason specially assigned in the order, did impose on,Mr. Morange the costs and disbursements, to be paid by him personally. We think the mode pursued for the collection of such costs is allowed by statute, and that the party entitled to them is not limited to the precept in the nature of an execution against personal property, provided for by the act of 1847.

The order of the Special Term should be affirmed with ten dollars costs of this appeal, besides disbursements.

Daniels and Beady, JJ., concurred.

Order affirmed with ten dollars costs, besides disbursements.

      1 Hill, 154.


text:
    THE BOWERY NATIONAL BANK, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Contract—certificate of third person as to fulfillment of—when dispensed, with— conditions of contract—what will excuse compliance with.

    The plaintiff’s assignor entered into a contract with the defendant for paving a street in the city of New York, by the terms of which he was not entitled to payment until the completion of the work had been duly certified by the water purveyor of the city of New York. After the completion of the work an action was commenced, and an injunction procured restraining the defendant, its officers and servants, from taking any proceedings to lay or confirm the assessment for paving, in consequence of which the water purveyor refused to give the certificate required by the contract. In an action brought upon the contract, held, that, as the certificate required by the contract had not been obtained, the plaintiff was not entitled to recover. The refusal of the water purveyor to give the certificate was not illegal or unreasonable within the meaning of the rule which excuses the performance of such a condition precedent.
    By the terms of the contract the plaintiff was not entitled to be paid until the assessment had been confirmed; and, at the time of the commencement of this action, the suit in which the injunction restraining the defendant from confirming the assessment was granted, was still pending. Held, that, as the event had not occurred upon which the money was to become due, and as the delay was not shown to have been caused by the collusion, negligence or fraud of the defendant, the plaintiff was not entitled to recover.
    Appeal from a judgment entered at the circuit, dismissing the plaintiff’s complaint.
    This action, which was brought to recover the amount claimed to be due on a contract for paving a street in the city of New York, has already been before the General Term, where the following opinion was delivered at the January Term, 1874:
    Davis, P. J.:
    The plaintiff sues as assignee of a contract for paving One Hundred and Twenty-eighth street from Second to Sixth avenues. The contract was made between Charles H. Green, president of the Hamar Preserved W ood Pavement Company, and the defendant. Among other provisions, the contract provided that the contractor “shall not be entitled to demand or receive payment for any portion of the aforesaid work or materials, until the same shall be fully completed in the manner set forth in this agreement, and each and every one of the stipulations hereinbefore mentioned are complied with, and such completion duly certified by the inspectors employed on the work, and by the water purveyor or other officer designated by the said commissioner of public works; whereupon the parties of the first part will pay, and hereby bind themselves and their successors to pay, to the said party of the second part, in cash, on the confirmation of the assessment to be laid for said work, the whole of the moneys accruing to him under this agreement,” etc.
    It was also provided in said agreement, “ that nothing herein contained be construed to affect the right hereby reserved of the said commissioner of public works to reject the whole or any portion of the aforesaid work, should the said certificate be found or known to be incpnsistent with the terms of this agreement, or otherwise improperly given.”
    On the trial, it appeared that William M. Tweed was commissioner of public works, and, on behalf of the defendants, executed the said contract; that a certificate of the completion of the work had been given by the inspector, but that no such certificate had been given by the water purveyor, nor by any other officer designated by .the commissioner of public works, and that no assessment laid for such work had been confirmed. It appeared, however, that Mi1. Tweed, the commissioner of public works, had certified that the work “ has been returned as properly completed, and has been accepted by this department.”
    It was also shown that the completion and confirmation of the assessment had been restrained by a temporary injunction, issued by the Court of Common Pleas, in a suit brought by one Tooker, as plaintiff, against the defendant, and various officers of the city.
    Upon these facts the' defendants moved to dismiss the complaint, on the grounds, first, "that no money is yet payable under the contract, and, second, that there is no certificate of the water purveyor as to the acceptance of the work. The court denied the motion, and the defendants duly excepted.
    The court thereupon directed a verdict for the plaintiff for $22,958.63, and defendants duly excepted.

      The conditions relied upon by the defendants, in their motion, are very plainly expressed in the contract. It is stipulated that the evidence of the completion of the contract shall be the certificate of the inspector in charge of the work, and the water purveyor (a well known officer of the city), or such other officer as might be designated by the commissioner. No designation of any other officer having been shown to have been made, the requirement of the contract is the certificate of the water purveyor. It was clearly competent for the contracting parties to make these provisions as to the mode of determining whether or not the contract had been performed according to its stipulations; and, having done so in express terms, the obtaining of both certificates became a condition precedent to any right of recovery on the part of the contractor, unless waived or otherwise disposed of. The decision of the question of completion having been referred by the contractor to the inspector and purveyor, it cannot now be withdrawn and referred to the decision of a court or jury, without showing impossibility of performance, or that the certificate has been unreasonably and in bad faith refused. No evidence on these subjects was given; but it was shown that Mr. Tweed, the commissioner of public works, had himself certified, as such commissioner, that the work had been performed and accepted. It is claimed that this was a sufficient compliance with the terms of the contract, because the commissioner, being the officer who might, under the contract, have designated another officer than the purveyor to make the certificate, had, for that reason, power to perform the act required of such officer himself. But this position cannot be sustained. The power to designate an officer to perform the act by no means includes authority in the designating officer to do it himself. It was the judgment of the water purveyor, or officer to be designated for that special purpose, for which the defendants contracted. It often occurs that power to select officers or persons to perform specific duties is conferred upon a board or officer, but it is seldom true that the authority to select includes also the power to perform the acts to be done by the officer or person chosen. Courts are authorized to appoint commissioners to estimate and assess damages, but it by no means follows that the estimate or assessment can, for that reason, be made by the courts; and so in agreements of arbitration, it frequently occufs that some third person is named to choose an umpire, but the power to choose in that case does not carry to such person the right to be umpire himself.
    Besides, Mr. Tweed’s duty as commissioner was quite inconsistent with his assumption to perform that which the contract referred to the water purveyor, because, as such commissioner, the law and the contract provide that he shall exercise ultimate supervision so far as, not only as commissioner to determine whether the work is in fact done according to the contract, but to decide whether the certificates required have not been improperly given. To allow him, therefore, to substitute himself for the water purveyor — to perform the subordinate duty'—is to deprive the defendant of his final supervision and judgment. To allow this practice would be to open an easy door to a long line of frauds upon the city.
    But, by the terms of the contract, if the certificate had been given, the money was not payable till the assessment laid should be confirmed. The assessment had not been confirmed. It was shown that its confirmation had been prevented by the injunction, pendente lite, of a court of competent jurisdiction. No proof was given that the suit was collusive, or that the defendants were otherwise connected with it than as litigants, whose action was temporarily restrained against their will. Under such circumstances, there is no ground for saying that the sidt and injunction weré anything more than incidental embarrassments in the way of the confirmation of the assessment, for «which neither party was in fault, and which may have been as well in the contemplation of one as the other when the contract was made. It by no means followed that the assessment would not be confirmed, nor that the injunction would not be removed at .the hearing. It was, therefore, no answer "to the objection that the money was not yet due, for the plaintiff to show the pendency of the suit and injunction.
    The judgment must be reversed and a new trial ordered, with costs to abide the event.
    Daniels and Donohue, J"J., concurred.
    Upon the second trial the complaint was dismissed.

      Geo. W. Wingate, for the appellants.
    The water purveyor having refused to give a certificate upon unreasonable grounds, the plaintiffs were thereby absolved from producing it. (Thomas v. Fleury, 26 N. Y., 33, 34. See, also, McMahon v. N. Y. & Erie R. R. Co., 20 id., 463, 467; U. S. v. Robeson, 9 Peters, 319, 327; Devlin v. Second Ave. R. R., 44 Barb., 81, 84; Smith v. Smith, 45 Vermont. 433.) When the performance of a condition is rendered impossible by the act of God, or of the law, or of the other party, the contractor is excused. (People v. Manning, 8 Cow., 297; Jones v. Judd, 4 Comst., 411; Higgins v. Solmen, 2 Hall, 482; Farnham v. Ross, id., 167; People v. Bartlett, 3 Hill, 570; Stewart v. Keteltas, 36 N. Y., 388; Allerman v. Mayor, etc., Albany, 43 Barb., 43; McComb v. N. Y. & Erie R. R., 20 N. Y., 495; Blight v. Ashley, Pet. C. Ct., 25; Niblo v. Binesse, 3 Abb. App. Dec., 375; Howell v. Gould, 2 id., 418.) A party who prevents or dispenses with the performance of a condition in a contract, cannot take advantage of the non-performance. (Devlin v Second Av. R. R., 44 Barb., 81; Blacksmith v. Fellows, 3 Seld., 416; Butler v. Tucker, 24 Wend., 449; Smith v. Gugerty, 4 Barb., 614; Resenger v. Cheney, 2 Gilman [Ill.], 84; Ruble v. Massey, 2 Ind., 637; Pond v. Wyman, 15 Md., 175; Grove v. Donaldson, 15 Pa., 128; Ketcham v. Zeilsdorff, 26 Wis., 514.) The contract itself prevents the existence of this injunction, from being used by the defendants as a defense to the plaintiff’s claim. If they are prevented from confirming the assessment by the act of a third parky, it forms no excuse as between them mid the cont/i'actor for failing to perform their part of the contract. If they desired to have such delay constitute an excuse, they ought to have put it in the contract. (Giles v. Crosby, 5 Bosw., 389; Baker v. Johnson, 2 Robt., 570, 580; affirmed, 42 N. Y., 126; Christ v. Armour, 34 Barb., 378, 385, 387; Reid v. Edwards, 7 Port. [Ala.], 420; Cobb v. Harmon, 23 N. Y., 148, and see citations at p. 152.) The court erred in refusing to allow the jury to consider the question as to whether or not the water purveyor’s refusal to give the certificate was unreasonable or in bad faith. Whether any act is or is not “ reasonable,” is a question for the jury and not for the court. (Thomas v. Brackney, 17 Barb., 654, 659; Green v. Hennis, 1 Hilt., 254; Conger v. Hudson R. R. R., 6 Duer, 375; Lawrence v. Ocean Ins. Co., 11 Johns., 241; Gilhooley v. N. Y. and Savannah S. N. Co., 1 Daly, 197; Tone v. Doelger, 6 Rob., 256; Harris v. Northern Ind. R. R., 20 N. Y., 232, 239.)

      E. Delafield Smith and D. J. Dean, for the respondent.
    The plaintiff cannot be excused from compliance with the terms of the contract, unless such compliance has been rendered impossible by act of the defendants, or such certificates are unreasonably or in bad faith refused. (Smith v. Brady, 17 N. Y., 173; Butler v. Tucker, 24 Wend., 447; Thomas v. Fleury, 26 N. Y., 26; United States v. Robeson, 9 Pet., 349.) An officer acting or refraining from action in obedience to the order of a court of competent jurisdiction, cannot be said to be acting or refusing to act, unreasonably and in bad faith. By the contract, no money could become payable until an assessment for the expense named should be confirmed. The plaintiff’s assignor, the contractor, is chargeable in law with knowledge of the limitation imposed by law upon the powers of the corporate officials. (Fairtitle v. Gilbert, 2 Durnf. & East, 169; Hodges v. Buffalo, 2 Denio, 110-112; Brady v. The Mayor, 2 Bos., 173; S. C., 20 N. Y., 312; Appleby v. The Mayor, 15 How., 428; Supervisors of Rensselaer v. Bates, 17 N. Y., 242; Smith v. The Mayor, 14 Sandf., 227; S. C., 6 Sold., 508; McDonald v. The Mayor, 4.Sup. Ct. R., 177.)

       Smith v. Brady, 17 N. Y., 173; Butler v. Tucker, 24 Wend., 447; Thomas v. Fleury, 26 N. Y., 26.

       Butler v. Tucker, 24 Wend., 447; United States v. Robeson, 9 Pet., 319.

   Davis, P. J.:

It appears on the retrial of this case, that no certificate of the water purveyor was given, and that, when that officer was called upon for one, he declined to give it, saying that, owing to some injunction that had been got on the work by the property owners, he was debarred from the right of giving it.” This court held, on the former appeal, that the certificate of that officer was a condition precedent to the obligation of - the defendants to pay. It might perhaps be held, that what took place in the water purveyor’s office in respect to the completion of the work, as testified to by the clerk of the water purveyor, was equivalent to the certificate; but the plaintiff showed by another witness (Daniel Owen), that that testimony was incorrect. Owen was the general superintendent of the contracting company, and on their behalf called for the certificate of the water purveyor; and he says that the company had got the certificate the year before on every work they had done, and adds : “ I called for it naturally to get a settlement; that appeared to be the difficulty. We had done some other work, and he had given certificates for it.” This shows that the entry in the book and the memorandum sent to the contract clerk, etc., were not understood by either the company or the purveyor, to be the certificate required by the contract. But it is insisted that the excuse given by the purveyor, was an unreasonable one. The injunction order restrained the defendants, their officers and servants, from further proceeding under an ordinance, passed, etc., for paving One Hundred and Twenty-eighth street, “ to lay, and from confirming any assessment therefor, for paving said so called street, etc., and from doing any act or thing toward making or confirming such assessment, or making the same a lien on any property,” etc. The water purveyor was an officer and servant of the defendants, and, it seems, had notice of this injunction, and supposed himself bound to regard it. His official action was a step toward making or confirming such assessment, because the assessment could not be laid till the work was completed, and his certificate was part of the evidence to show such completion to the assessors. His refusal was not illegal or unreasonable, we think, within the meaning of the rule which excuses the performance of such a condition precedent.

The stipulation of the contract as to the time of payment, to wit: that the defendants should pay on the confirmation of the assessment to be laid for said work ” (which, in connection with the subsequent provisions of the contract, must be construed to apply to the balance remaining unpaid after the payment of the monthly installments of seventy per cent), has not in our judgment been obviated. It is undisputed that the assessment had not been laid when this suit was commenced, and of course it had not been confirmed. This suit appears to have been commenced in March, 1873. The suit and injunction to restrain the officers from making and confirming the assessment was then pending. It does not appear to have been collusive, nor to have been delayed by defendants for the purpose of preventing plaintiffs from receiving their money. We see no reason to change the views expressed on this point in the former opinion. The event had not occurred upon which the money became due and payable, and the delay in its occurrence is not shown to have been caused by the collusion, negligence or fraud of the defendants.

The action was prematurely brought, and the judgment must be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


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    JAMES L. TREAT, Respondent, v. ERASTUS H. HATHORN, Appellant.

      Replevin—when demand must he alleged and proved.

    Where property comes rightfully into the possession of the defendant, to maintain replevin for the wrongful detention thereof, a demand and refusal must be alleged and proved.
    Where, in an action of replevin to recover four horses which the defendant claimed to detain by virtue of a lien acquired by him for their keep, the complaint alleged that the defendant “wrongtolly detains from the plaintiff the following articles of personal property belonging to said plaintiff,” and, after describing the articles and their value, proceeded, “in which the said plaintiff claims property and demands their immediate possession: ” held, that, as no question was made upon the trial as to the sufficiency of the complaint, and as a demand and refusal before suit brought was then proved, the defendant could not insist, upon appeal, that such demand and refusal should have been alleged in the complaint.

      Scofield v. Whitelegge (49 FT. Y., 259) distinguished; Levin v. Russell (42 id., 251) followed.
    Appeal from a judgment, in favor of the plaintiff, entered on the report of a referee.

      William H. Gale, for the appellant.

      Daniel B. Ohilds, for the respondent.
   Davis, P. J.:

This action was brought to recover possession, and damages for the detention, of four horses, which are admitted by the pleadings to be the property of the plaintiff. The defendant is a livery stable keeper, and received the horses in question in the month of April, 1873, to board. He was paid for their board (as found by the referee), up to the 3d day of July, 1873, on which day, it is claimed by plaintiff, that an arrangement was made between himself and one Pelton, under which the horses were to remain in defendant’s stable at the expense of Pelton, who was to pay for their keep until a specified time, unless sooner sold, and that defendant was cognizant of the agreement, and assented to it, with the understanding that the horses were, from that time, to be kept by him on Pelton’s account. The defendant claimed to detain the horses by virtue of a lien, under the provisions of the act, entitled, “ An act for the protection of livery stable keepers, and other persons keeping horses at livery or pasture,” passed May 3, 1872.

The defendant’s counsel insists that the complaint fails to state a cause of action, for the want of an averment of “ a demand and refusal before suit brought.” The complaint alleges that the defendant “ wrongfully detains from the said plaintiff the following articles of personal property, belonging to said plaintiff,” and then proceeds to describe the horses and their value, and then to allege, “ in which the said plaintiff claims property and demands their immediate possession.”

Undoubtedly, where property came rightfully into the possession of the defendants, to maintain replevin for a wrongful detention, a demand and refusal must be shown. It seems to have been held in Scofield v. Whitelegge that they must also be averred But this case does not fall within the decision in Scofield v. Whitelegge, because here was a distinct averment of ownership, and because no question was made upon the trial as to the sufficiency of the complaint, and there was distinct proof given by plaintiff- of a demand before suit brought, and a refusal by defendant to let the horses go unless the bills were paid. In other words, the defendant put himself upon his alleged lien. That brings this case within Levin v. Russell, which was not intended to be overruled by Scofield v. Whitelegge. There is, therefore, no force in the objection raised here, because it is manifest, if it had been made before the referee, it would have been promptly cured by an amendment of the complaint.

Ho exception taken in the progress of the trial is urged upon our attention. The case turned upon the question, whether the evidence established such facts as entitled the defendant to a lien under the provisions of the act of 1872. The referee, as shown by his opinion, gave the evidence a careful consideration. There was much cotiflicting testimony, and the findings of the referee depended upon the credibility of conflicting witnesses. We are satisfied with the reasons assigned by the referee for his findings of fact, and his conclusions of law upon such findings are, in our opinion, correct. The judgment should be affirmed.

. Daniels and Beady, JJ., concurred. ’

Judgment affirmed.

       49 N. Y., 259.

       43 N. Y, 251.