author: Smith, J.:

text:
    CAROLINE P. DIXON and others, Respondents, v. MARTIN C. RICE, Appellant.

      Specific performance not enforced, where a wife not a party to a contract to sell land refuses to join in the deed thereof.

    In an action to compel the specific performance of a contract to convey land entered into by the defendant, the court found in favor of the plaintiff’, and directed that the wife of the defendant join with him in executing the deed, and that if she refused the value of her inchoate right of dower he retained out of the purchase-inice, and the balance paid to the defendant.

      Held, that a court of equity will not comx>el specific performance of a contract to convey land where a wife, not a party to the contract, refuses to join in the deed, and that plaintiff must either take the title subject to the claim of the wife, and pay the stipulated price, or resort to his legal remedy for the damages sustained by the defendant's breach of the contract.
    Appeal from a judgment in favor of the plaintiff, entered upon the decision of the court, at the Chautauqua Special Term.
    The action was brought to compel specific performance of an alleged agreement to convey land.
    ■ M. G. Rice, appellant, in person.
    • Smith & Tenant, attorneys for the respondents.
   Smith, J.:

The agreement, sought to be enforced in this action, was made by Abram Dixon and the defendant (who were law partners), in writing, as follows :

“Westfield, April 6, 1874.

“We hereby agree that we will look over our old partnership accounts, and our North Portage street lot shall be used to adjust the balance, as far as it will go, at such a figure as we may agree upon ; or if we cannot agree upon any figure, the party who will pay the highest for it shall have it by accounting to the other for it; and in consideration hereof wo each agree to pay the balance due the other party that appears against either of us on the law register in which our business was kept. Our present object is to arrange the North Portage street lot, and the party purchasing the interest of the other shall have the advantage of applying the consideration of such purchase to the balance to be found on the settlement of private accounts. Duplicate.

(Signed), “M. C. EICE.

“A. DIXON.”

On the same day, the parties executed another writing, indorsed on the same piece of paper, upon which the foregoing was written, of which the following is a copy :

“ Westfield, April 6, 1874.

“ A. Dixon agrees to take M. C. Rice’s interest in the North Portage street lot, referred to in the stipulation on the other side of this paper, at $100, and M. C. Rice agrees to let him have it at that figure. Duplicate.

(Signed), “A. DIXON.

“ M. C. RICE.”

A question is raised as to the construction of the agreement thus made. The appellant contends that the two writings must be construed together, and that so construed, they amount to a conditional agreement of sale, that is an agreement to sell when the state of the partnership accounts shall have been ascertained, and the balance adjusted. The plaintiff’s counsel insist that the agreement, as modified by the indorsement, is absolute, Nice agreeing to sell on being paid the stipulated price. We think tbe latter construction is correct. Doubtless, the two writings, bearing the same date, are to be read together, in order to ascertain the meaning of the parties. If it is apparent that the parties intended the indorsement should control or modify the agreement on the face of the papers, that effect must be given to it. That such was the intent cannot be doubted. The object ef the parties, throughout, was to arrange the Portage street lot, but the modes adopted in the two writings were essentially different. By the agreement written on the face of the paper, the questions, which of the parties was to purchase, and what price he was to pay, were left to be determined by themselves, to aid in adjusting the balance that should be found clue on a settlement of accounts. That arrangement clearly contemplated that a settlement of the accounts should precede a sale. But by the indorsed agreement those questions were settled. Dixon was to buy at a fixed price. The occasion for waiting for an adjustment of the partnership accounts was ended. ' By the arrangement the land was taken out of the partnership property, and Dixon became its sole owner, in equity, on paying or tendering the stipulated price. And, of course, on paying or tendering the price, he had the right, in equity, to enforce the contract.

It is insisted by the appellant that there is no evidence to sustain the finding of the court that Dixon took possession of the lot after making the contract. We think sufficient evidence of the fact is to be found in the circumstance that, soon after the contract was made, Dixon made considerable repairs on the premises, at his own expense, and that he let the place to tenants, who attorned to him during his lifetime, and to his executors, after his death. But, however that may bo, the contract being in writing is not within the statute of frauds, and the fact of the vendee’s possession is immaterial, except as a circumstance tending to confirm the construction of the contract adopted by the trial court. And as that construction is warranted by the language, the finding that Dixon went into possession, even if erroneous, did not prejudice the defendant, and the error should be disregarded. (Code of Civil Procedure, § 1003.)

The appellant insists that the plaintiffs are concluded from assorting that Dixon repaired the promises at his own expense, by the report of the referee in proceedings had, after the death of Dixon, to determine a claim made by the defendant as a creditor of his estate. It is enough to say, in addition to what has been said already, that so much of the report as relates to the ownership of the lot, was excepted from the operation of the order by which the report was confirmed, and has not passed into judgment.

On the death of Mr. Dixon the right to a specific performance of the contract passed to those who succeeded him in the title to the land. The plaintiffs brought this suit in the triple capacity, of executors, devisees and hcirs-at-law. There are difficulties in the way of their succeeding in either of the first two characters, growing out of the fact that the will of Mr. Dixon, which purports to dispose of his real as well as personal estate, has been .proved as a will of personal property only, owing to the circumstance that all the witnesses to the will were either dead or absent from the State and it was impossible to procure the attendance of any one of them. The case is therefore to be treated as if Mr. Dixon had died intestate as to the laud in question. The plaintiffs, being his heirs-at-law, are vested with the equitable title, and can maintain the action.

The only remaining question requiring a statement of our views arises upon a direction in the judgment that the wife of the defendant join with him in executing the deed, and that if she refuse, the value of her inchoate right of dower bo retained out of the purchase-price, and the balance be paid to the defendant. The land was partnership property. It is, perhaps, questionable whether the wife of a partner has a dower interest in the partnership lands. Her right to dower may depend upon the solvency of the partnership. But the question whether the wife of the defendant is entitled to dower in the land in question cannot be determined in this action; at least, it cannot be determined adversely to her, as she is not a party ; nor, in the view we take of the case, is it necessary to decide that question. A court of equity will not compel specific performance of a contract to convey land, where it is necessary that a wife join in the convey-anee and she refuses. (Fry on Spec. Perf., p. 293, § 666, and ' cases cited in note jj.) Is this a case in which the defendant should be required to p'erform, as far as he is able, with an allowance to the plaintiffs for the value of the inchoate right of dower belonging to the wife ? The doubtful character of the right seems to furnish a good reason for refusing to cut down the price to be paid to the vendor. Unless the plaintiffs are willing to take the title subject to the claim of the wife, and pay the stipulated price, they must be turned over to their legal remedy for the damages sustained by the defendant’s breach of the contract. (See Sternberger v. McGovern, 56 N. Y., 12.)

Jhe result is that the judgment should be reversed and a new trial granted, costs to abide event, unless the plaintiffs will stipulate to modify the judgment by striking out the direction that the wife join in the conveyance, or if she refuse, that the value of her right be retained out of the purchase-price; in which case, the judgment so modified, should be affirmed, with costs to the plaintiffs.

MulleN, P. J., and Talcott, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff v. JOB JAMES, Defendant.

      City of Syracuse — powei' of common council to pass ordinances — police justice — one accused of violating a city ordinance entitled to a trial Toy jury.

    Under the charter of the city of Syracuse, the common council has power to pass an ordinance prohibiting- the use of any wagon or other vehicle upon any paved, macadamized or improved street in the city, carrying a weight of 3,000 pounds or upwards, unless the tires of such vehicle are at least three inches in width.
    A xwovision of the charter makes an offense against any ordinance a misdemeanor. Section 2 of chapter 360 of 1869 provides that the police justice of the city, “ while holding courts of Special Sessions, shall, in addition to his other powers, have power to try the following offenses committed within his jurisdiction, viz.: * * * * All violations of the laws and ordinances of the city of Syracuse, when such violation is a misdemeanor.”

      'Held, that the police justice, acting as a court of Special Sessions, was governed by all statutory provisions applicable to those courts generally, except as otherwise provided in the charter, and that tile accused was entitled to be tried by a jury. m

    CERTIORARI to review the conviction of the defendant, before the police justice of the city of Syracuse, for a misdemeanor in violating an ordinance of said city.

      M. A. Knapp, for the plaintiff.
    The charter of the city of Syracuse confers upon the common council ample authority to make regulations of this character, and the ordinance in question is, therefore, valid. (Charter of Syracuse, §§ 4, 6, 9, tit. 4.) If authority to pass the ordinance in question cannot be inferred from the specific powers granted by the charter, it is amply conferred by this general provision. (Dillon on Man. Corps., §§ 93, 250 — 264; People ex rel. Gox v. Justice of Special Sessions, 7 ITun, 214; Blazier v. Miller, 10 id., 435; Staler. Ferguson, 33 N. H., 424; State v. Qlark, 28 [Foster] N. H., 176; Oollins v. Hatch, 28 Ohio, 523; Williams v. Augusta, 4 Ga., 509; City of Utica, 46 How., 165.) The defendant was not entitled to a trial by jury. (Duffy v. People, 6 Ilill, 78; Williams v. Oily Council of Augusta, 4 Ga., 506; Carr v. State of Georgia, 14 id., 358; Byers & Bavis v. Commonwealth, 42 Penn. St., 94; People ex rel. Murray v. Justices of Special Sessions, Alb, Law J., Sept. 28, 1878.)

      Irving G. Vann, for the defendant.
    The presumption is always against the exercise of any unusual power by the corporation, and the burden of showing the authority is upon the corporation, and not upon the person proceeded against. (Dillon, 89; Hodges v. The City of Buffalo, 2 Denio, 111; Cowan v. Village of West Troy, 43 Barb., 48.) Any fair, reasonable doubt concerning the existence of the power is resolved by the court against the corporation, and the power is denied. (Dillon on Corp., 102; Min-turner. La Hue, 23 How. [U. S.], 435; Thompsons. Lee Co., 3 Wall., 320; Thompson v. Schimmerhorn, 6 N. Y., 92; People v. Hochester, 21 id., 656; Kyd on Corps., 104, 156; Glover on Corps., 297; Kowlinson on Corps., 165-.) The right to license and regulate vehicles carrying merchandise exhausts the power of the common council. It can go no farther upon that subject. The subject of vehicles carrying merchandise being mentioned in the charter, and power being given to license and regulate them, all other powers over them as carriers of merchandise are impliedly excluded. (Dunham v. Trustees of Rochester, 5 Cow., 462; The Mayor, etc., of Hudson v. Thorne, 7 Paige, 261; The Mayor, e.t.r... v. Second, Ave. R. R., 32 N. Y., 261; The • Mayor, etc., v. Third Ave. R. R. Go., 33 id., 42; Hart v. Mayor, etc., of Albany, 6 Wend., 571; BabcoclcY. Buffalo, 56 N. Y., 268; Mayor, etc., of Rochester v. Rood [Lalor’s Supplement], 146; Mays v. Oity of Cincinnati, 1 Ohio St., 268; Commonwealth v. Turner, 1 Cush., 493; Mt. Pleasant v. Breeze, 11 Iowa, 399; State v. Perguson, 33 N. II., 424; Ilayes v. City of Appleton, 24Wis., 542; Barling Y.yvest, 29 id., 307; Garisider. West St. Louis, 43 Ill., 47; Hagle v. Augusta, 5 Geo., 546; Commonwealth v. Stadler, 2 Cush., 562, 568; Napruan v. People, 19 Mich., 352; Comm’rs, etc., v. Northern Gas Co., 12 Penn St., 318; Hayden v. Nagus, 5 Conn., 391; Lamed v. Trustees of Syracuse, 5 Wend., 166.) The defendant had a right to a trial by jury. Every person charged with an indictable offense is entitled to be tried by a jury; and not only this, but by a common-law jury of twelve men. This right is secured by the constitution of the State, and cannot be taken away by the Legislature. (People v. Carroll, 3 Park. Cr., 22; People v. Kennedy, 2 id., 312; People v. Johnson, id., 322; Wynehamer v. People, 13 N. Y., 378, 425, 458, 484; S. C, 2 Park. Cr., 421.) This last case overrules People v. Quant (2 Park. Cr., 410), and S. C. (12 How., 83), and Peoples. Fisher (2 Park Cr., 402), and S. C. (11 How., 554); Const, of 1846, ai’t. 1, § 2; Const, of 1777, § 41; Coast, of 1822, art. 7, § 2.) The Legislature cannot make an offense Avhieh was indictable at common law, as all misdemeanors were, triable by a summary ju’oceeding, or subject a person guilty of such an offense to summary punishment, without a trial by jury. (Warren v. People, 3 Park. Cr., 544; IHUy. People, 20 N. Y., 363.) This is also the general doctrine in all the States. (Green v. Briggs, 1 Curtis C. C., 311; Work v. State, 2 Ohio [W. S.], 296; Burns v. Le Grange, 17 Texas, 415; Bullock v.
      Grambee, 45 Ill., 218; Thomas v. Ashland, 12 Ohio [N. S.], 124; Colby’s Criminal Law, 137; Barbour’s Criminal Law, 586; Bailey on Convictions, 1; Sedgwick’s Constitutional Law, 482; Wood v. City of Brooklyn, 14 Barb., 425; People v. Toyndee, 20 id., 168, 212; Warren v. People, 3 Park. Cr., 644; People v. Ber-berrich, 11 How., 289, 336.)
   Smith, J.:

The ordinance, for violating which the defendant was convicted, prohibits the use of any wagon or other vehicle upon any paved, macadamized or improved street in the city of Syracuse, carrying a weight of 3,000 pounds or upwards, unless the tires of such vehicle are at least three inches in width, under a penalty of five dollars for each offense. A provision in the charter makes an offense against any ordinance a misdemeanor. (Laws of 1857, chap. 63, tit. 4, § 7.) The defendant contends that the common council, in passing the ordinance referred to, exceeded their ¡Dowers.

The charter contains no specific grant of the power in question. If the power exists, it is to be found in the general powers over streets and highways, vested in the mayor and common council, who are made commissioners of highways of the city, with the powers of commissioners in towns, supplemented by the power of the common council to make all such ordinances, not in violation of the laws of this State, or of the United States, as they shall deem necessary or proper. (Title 4, § 6.)

Certain rules of construction invoked by the defendant’s counsel are well established, to wit: That the charter of a municipal corporation is its constitution, and every act beyond the charter is void; that the presumption is against the exercise of any unusual power by the corporation, and the burden of showing the power is upon the corporation; and that any fair, reasonable doubt concerning the existence of the power will be resolved by the courts against the corporation and the power denied. But if, in the present case, the power in question, although not given in specific terms, is embraced in a general grant of power, the rules above stated do not stand in the plaintiff’s way.

There is no subject upon which it is more common for the Legislature to confer very extensive powers upon municipal corporations than that of streets and public highways within their limits, and the uses to which they may bo appropriated. The grant of power on that subject in the charter of Syracuse is very broad. The general authority to regulate, repair and improve streets, as well as to lay out, make and open them (charter, title 4, § 9), in connection with the power of caring for and superintending them, which is vested in the city authorities, as commissioners (1 E. S., 501, § 1), gives, as we think, all needed authority to prevent improper use of the streets, and to adopt reasonable ordinances to that end (2 Dillon on Munic. Corp., 642, § 538, and cases there cited in notes). The ordinance in question is reasonable. Its object is to preserve the surface of the city streets, which have been improved at great expense, from injury by the use of heavily-loaded vehicles. It regulates, but does not prohibit, the use of the streets by vehicles of that description.

The counsel for the defendant contends, however, that as the charter enumerates certain powers upon the subject of carriages or vehicles used to transfer merchandize in the city, this is an implied exclusion of all other authority upon that subject, notwithstanding the general powers above referred to. It is, undoubtedly, a general rule of construction that the enumeration in a charter, of certain powers upon a particular subject, is an implied, exclusion of all other powers upon that subject, oven although the charter contains a general clause permitting the common council to pass all such other ordinances, as they shall deem proper and necessary. The enumerated powers in the charter of Syracuse, to which the counsel refers, are the following : “To license and regulate cartmen, porters, hack, cab, truck, omnibus and stage owners and drivers, and all carriages or vehicles used for the transportation of passengers or merchandize * * * and fix the rates to be paid to or by them; to prohibit unlicensed persons from acting in either of such capacities ; * * * and to require the owners to mark carriages or vehicles in such manner as the council may designate.” (Title 4, § 4.) These powers are vested in the common council alone. They have no reference to the authority of the mayor and common council to regulate the use of the streets. In respect to such use, persons licensed have no exclusive or peculiar right. The ordinance in question applies to them as well as to all others using the streets. We think that the adoption of the ordinance under which the defendant ivas convicted was a valid exercise by the common council of powers included in, or necessarily implied from, their general authority to care for, superintend, regulate and improve the streets. The existence of such powers is as clear as that of the power to pave or macadamize the streets, which is undoubted, but is found only in the same general grant of power over the streets.

A more serious question is raised by the exception taken to the refusal of the police justice to allow the defendant to be tried by a jury. The charter of the city provides that the police justice, while holding courts of special sessions, shall, in addition to his other powers, have power to try certain offenses committed within his jurisdiction, therein specified, including all violations of the laws and ordinances of said city, when such violation is a misdemeanor.” (Laws 1857, ch. 63, title 5, § 3, as amended by Laws 1869, ch. 360, § 2.) As we read the charter, the police justice had no jurisdiction to try the defendant for the offense charged, except as a court of Special Sessions. The counsel for the people takes the position that the right to a jury trial is not secured by the Constitution in cases of misdemeanor, and that the Legislature has power to authorize courts of special sessions to try offenses of that grade, without a jury. It is not necessary to express an opinion as to the correctness of that position, since we think the Legislature has not given such authority to the magistrate by whom this case was tried. Our opinion is that the police justice of Syracuse, acting as a court of special sessions, is to be governed by the provisions of statute applicable to those courts generally, unless the charter has otherwise provided. The charter is silent as to whether a defendant in a court of sessions held by the police justice, may elect to be tided by a jury. Since 1824, that right has existed in all courts of special sessions in the State, except those held in the city and county of New York. (Laws of 1824, ch. 238, § 47.) The present charter of Syracuse, adopted in 1857, preserved in force all the provisions of law then existing, in reference to the police justice of the city, except such as were inconsistent with that act. We have not boon referred, to any previous statute which took away the right in question. On the contrary, the earlier statutes indicate very clearly that the courts of sessions held by the police justice were to proceed according . to the general statute. The original charter continued the police justice of the village of Syracuse in office as police justice of the city, but made no change in his powers or duties. (Laws 1847, ch. 475, § 22.) The police justice of the village had the powers of justices of the peace in towns. (Laws 1840, ch. 270.) In 1849 it was provided that the police justice of the city might be associated with justices of the peace, in the same manner as any justice of the peace might be, and for the same purposes and with the same effect. (Laws 1849, ch. 236, § 7.) That provision seems to imply that at that time the police justice could not hold' a court of special sessions alone. Five years later the police justice was authorized to try and dispose of, according to law, all complaints before him of offenses of the degree of misdemeanor or less. (Laws 1854, ch. 305, § 5.) By the same act it was provided that such complaints should not be removed to any other court for trial, and that bail should not be interposed or received therein, except to insure the attendance of the person arrested, before the police justice, at a future day of trial. (Id.) ' But it was not provided that the trial should be without a jury; on the contrary, the provision that the justice was to proceed according to law had reference to the law then existing respecting the trial o.f similar complaints, not removed to the Court of General Sessions. That meaning is made quite clear by the amendment of 1869, already referred to, which gives the police justice power to try certain enumerated offenses while holding courts of special sessions. It is not necessary to decide whether the Legislature has power to direct that all complaints for misdemeanor shall be tried before a court of special sessions held by a single justice, without a jury; but in view of the uniform course of legislation to the contrary, an intent to interfere to that extent with the rights that have heretofore been secured to persons charged with offenses of that grade ought not to be adjudged except upon clear and unambiguous language. Before the act of 1824, as well as since, the accused had the right to remove his case to tbe general sessions, -where he would have the right to be tried by a common law jury. The same right exists in New York, where, as has been said, no jury is allowed in the special sessions. The statute which was the subject of adjudication in The People ex rel. Stetzer v. Rawson (61 Barb., 619), cited by the counsel for the prosecution, which gave to the courts of special sessions in the county of Monroe, exclusive jurisdiction to try cases of misdemeanor therein specified, expressly saved to the accused the right to demand a trial in said courts according to law. (Laws 1870, chap. 47.) The case just referred to, and that of The People ex rel. Murray v. Justices of Special Sessions (18 Alb. L. J., 254), also cited for the prosecution, recently decided by the Court of Appeals, do not touch the question. The counsel for the people argues that as the misdemeanor with which the defendant was charged is a new offense, ■unknown to the common law, a jury trial cannot be demanded, as no express provision for that mode of trial is made by the charter in such case. The reverse, we think, is the law. As there is no provision that the trial shall be without a jury, the right to a trial by a jury of six, selected as provided by the general statute, exists.

The point is made by the defendant’s counsel that his client had a right to give bail for his appearance before the grand jury. We think that right was cut off by the statute of 1854 above referred to ; but for the error involved in the denial of a jury trial in the court of sessions held by the police justice, the conviction should be reversed.

The defendant having given bail before the justice for his appearance at the next term of the Court of Sessions of Onondaga county, the judgment is to be remitted to that court, to be by it carried into effect. (2 E. S., 719, § 54.)

Talcott, P. J., and HardiN, J., concurred.

Conviction reversed and proceedings remitted to the Court of Sessions of Onondaga county.


author: Smith, J. :

text:
    JAMES S. FOX, Administrator, etc., of WILLIAM E. CARR, Respondent, v. THOMAS B. CARR, Appellant.

      Simple, contract debts — assets in the State of the debtor’s residence — effect of the removal of the debtor after the creditor’s death.

    Plaintiff’s intestate and defendant were domiciled in North Carolina, where, on the death of the intestate, administrators were appointed, upon whose application the plaintiff was appointed administrator by the surrogate of Ontai'io county in this State, there being assets of the deceased in said county This action was brought to recover certain moneys alleged to have been received by the defendant in the lifetime of the deceased and for his use. The action was commenced by personal service of the summons upon the defendant while he was in this State for a temporary purpose.

      Held, that although, as a general rule, simple contract debts were assets at the place where the debtor resided at the time of the death of the creditor; yet, as the debtor had voluntarily come into this State and as there was no intent to defraud the North Carolina administrators, and as he had not paid the debt or been sued upon it in North Carolina, the debt became assets in this State and the plaintiff was entitled to sue for the same.
    Appeal from an interlocutory judgment in favor of the plaintiff, entered upon the decision of the court, rendered in a case tried at the Ontario Circuit, without a jury.
    The action was brought to recover a claim, resting in simple contract, for certain moneys alleged to have been received by the defendant in the lifetime of the plaintiff’s intestate for the use of the latter. The intestate and the defendant were domiciled in the State of North Carolina, whore, on the death of the intestate, letters of administration upon his estate wore issued to administrators, who were then, and now are, residents of that State. Subsequently, there being assets in Ontario county, New York, letters of administration were issued by the surrogate of that county to the plaintiff, on the application of the administrators appointed in North Carolina, The plaintiff then commenced this action. It is not expressly stated in the case how the suit was begun; but it is to be inferred from the papers and the arguments of counsel, that the defendant was served personally with a summons, while he was in this State for a temporary purpose. The moneys, for which the suit is brought, rvere received by the defendant in this State and were immediately taken by him to North Carolina, where he then resided and has ever since continued to reside. By the judgment, it was ordered, that the plaintiff recover the amount of the claim, to be fixed by a referee appointed for that purpose.

      H L. Comstock, for the appellant.
    The administration in North Carolina is the principal administration, and the administration in this State is ancillary or auxiliary to it. (Suaves v. Mayor, etc., of New York, 2 Sand. Ch., 173; Churchill v. Prescott, 3 Brad. Sur., 233; Clark v. Clement, 33 N. H., 563; Williams v. Williams, 5 Md., 467; Pay v. Haven, 3 Mote., 109, 114; Dawes v. Head, 3 Pick., 141; Stevens v. Gaylord, 11 Mass., 256.) As both the defendant and the plaintiff’s intestate resided in North Carolina at the time of the death of the latter, and the money sought to be recovered ivas not in this State, at the time of the death of the intestate, and never has been since, the money, or the cause of action for its recovery, is assets in North Carolina, and nowhere else. (Chapman v. Pish, 6 Hill, 554; Attorney-General v. Dimond, 1 C. & J., 356; Attorney-General v. Hope, C., M. & R., 580; Attorney-General v. Bouwens, 4 M. & W., 171; Parsons v. Lyman, 20 N. Y., 102; Yaugn v. Barret, 5 Vt., 133, 137; Sill v. Worswick, 1 H. Black., 690; Wilkins v. Pllett, 9 Wall., 740; Yin. Abr., Executors, P., 79; Com. Dig., Administrators, A. B.; Embry v. Miller, 1 A. K. Marsh., 221; Sedgwick v. Ashburner, 1 Brad. Sur., 106.) The surrogate of Ontario county has no jurisdiction over this demand, and, therefore, he could not confer any title or authority upon the plaintiff to collect or to administer upon it, jurisdiction over which belongs, exclusively, to the courts of North Carolina. (Lyman v. Parsons, 28 Barb., 564; Parsons v. Lyman, 20 N. Y., 102; Lines v. Coley, 1 Red. Sur., 405; Selectmen of Boston v. Boylston, 2 Mass., 334; Banta v. Moore, 2 McCarter [N. J.], 97; Doolittle v Lewis, 7 John. Ch., 45; Burbank v. Payne, 17 La. Am, 15; Holcomb v. Phelps, 16 Conn., 127; Morthband v.Wireman, 3 Penn. R., 185; Carmichael v. Bay, 1 Rich. [S. C.], 116; Story on Con. of Laws, § 554; Attorney-General v. Dimond, C. & J., 356; Attorney-General v. Hope, 1 C., M, & R., 530; Riley v. Mosely, 44 Miss., 37; Anderson v. Gregg, 44 id., 171; Williams on Executors, 261-263; Attorney-General v. Bouwens, 4 M'. & W., 171; Wool-ley v. OlarJe, 5 Barn. & Aid., 744.) The principal administrators appointed in North Carolina, the place of the domicile of the intestate, in the absence of any conflicting administration elsewhere, have the legal title to all the personal property of the intestate wherever the same may be. (Parsons v. Lyman, 20 N. Y., 102; Petersen v. Chemical Bank, 32. id., 21; Wilkins v. Ellett, 9 Wall., 740; Middlebroolc v. Merchants' Bank, 41 Barb., 481; Same Case on Appeal, 3 Keyes, 135; M’Vauters v. Elder, 2 Brevard, 307; Makepeace v. Moore, 5 Gilman, 474; Jewett v. Smith, 12 Mass., 309; Lawrences.Wright, 23 Pick., 128; Gayle v. Blackburn, 1 Stew., 429.) Hence, it is that an executor or administrator appointed at the domicile of the testator or intestate, may assign a demand due to the deceased from a debtor residing in another State, provided no letters testamentary or of administration have been granted in the State where such debtor resides. (Petersen v. Chemical Bank, 32 N. Y., 21; Middlebroolc v. Merchants' Bank, 41 Barb., 281; Same Case on Appeal, 3 Keyes, 135; Lakey, Gilchrist, 2 Dev., 73; Makepeace v. Moore, 5 Gil-man, 474; Harper v. Butler, 2 Pet., 239; Hutchinsy. State Bank, 12 Mete., 322; Andreiosy. Gane, 26 Miss., 577.) If the defendant should pay this debt to the plaintiff and procure a discharge from him, such payment and discharge would be no defense to an action by the principal administrators appointed in North Carolina. (Ohapman v. Fish, 6 Hill, 554; Stoney. Scripture, 4 Lans., 186; Du Val v. Marshall, 30 Ark., 230; Crosby v. Gilchrist, 7 Dana, 206; Moore v. Tanner, 5 Mon., 42; Kennedy v. Kennedy, 8 Ala., 391; Willing v. Perot, 5 Rawle, 254.) If the plaintiff should recover judgment in this action, against the defendant, it would be no bar to an action by the principal administrators, prosecuted in North Carolina, to recover the same debt; nor woidd a judgment in favor of the defendant in this action be binding upon, or afford any evidence against the principal administrators in North Carolina, for there is no privity between them and the plaintiff. (Story on Conflict of Law, § 522; Stacy v. Thrasher, 6 Hów. [U. S.], 44; Aspden v. Nixon, 4 id., 467; McLean v. Meek, 18 id., 16; Hilly. Tucker, 13 id., 458; Lowy. Bartlett, 8 Allen, 259; Ela v. Edwards, 13 id., 48; Lightfoot v. Bichley, 2 Rawlo, 431; Jones v. Jones, 15 Texas, 463; Slauter v. Chenowith, 7 Ind., 211; Dent v. Ashley, 1 Hemp., 54.)
    17. J£ Field, for the respondent.
    The respondent, by virtue of his appointment by the surrogate of Ontario county, acquired full title to any and all of the personal estate of the intestate; and his title relates bade to the death of the intestate, and he, in fact, stands in the place of the decedent. (Redf. on Sur., p. 199; Valentine v. Jackson, 9 Wend., 302; 3 R. S. [6th eel.], 89, § 6; also, p. 90, sub. 8.) This court has jurisdiction over the person of the defendant. (Churchill v. Prescott, 3 Bradf., 238; Shultz v. Pulver, 3 Paige, 182; Brown v. Brown, 1 Barb. Ch., 217.) The defendant, as a simple debtor to this estate, is estopped from denying the authority of the plaintiff, and cannot attack the title of this administrator collaterally, as the surrogate of Ontario county had jurisdiction to appoint him. (Farly v. McConnell, 52 N. Y., 630; Be-lden v. Meeker,■ 47 id., 307; Welch v. Administrators, 53 id., 610; Vanderggool v. Van Valkenberg, 2 Selcl., 190; JRoderigas, as Am’r v. East JRiver Savings Institution, 63 N. Y., 460.)
   Smith, J. :

The single question in this case is whether the claim in suit is \ assets within this State. If it is, the judgment appealed from ! should be affirmed; if it is not, the plaintiff, as administrator appointed by a surrogate in this State, has no title to the claim, and for that reason cannot maintain the action.

It may be premised that the succession to the personal property of the plaintiff’s intestate, and the distribution of the same among the next of kin, are to be governed by the law of North Carolina, m which State the intestate had his domicile at the time of his death. But the question to be decided is not one of succession or distribution. It is a question whether the New York administrator has power to collect the claim in suit.

It is held, in numerous cases, that simple contract debts; (unlike specialties, which are assets where they be) are assets where the debtor resides at the time of the death of the creditor. The rule, we apprehend, has this extent, that simple contract debts follow the person of the debtor. The object of the rule is to prevent conflicts of jurisdiction. (Att’y-Gen. v. Boumens, 4 M. & W., 171.) In Wentworth on Executors, the rule is thus stated: As to specialties, “the law hath been taken, that because the persons of the debtors be moveable, passant and transitory; therefore, these debts shall bo said to be and to make bona notabilia whore the bonds or other specialties be, and not where the debtors inhabit'and dwell. * * * But incase the debts bo only by contract, without specialty, then indeed they are to be esteemed bona notabilia there, and in that place where the debtor is." (Phil. ed., 1832, p. 109.) But if, after the death of the creditor, the debtor transfers his domicile to another State or country without having paid the debt, or having been sued for its recovery, it can hardly bo doubted but that the demand against him would become assets within the State or county to which he removes. That such would bo the case in this State seems to follow from our statute, which provides that a surrogate shall have power to grant letters of administration where an intestate, not being an inhabitant of this State, shall die out of the State, not having assets therein; but assets of such intestate shall thereafter come into the county of such surrogate. (2 R. S., 73, § 23, subd. 4.)

We think it very clear that" if the defendant had removed his domicile to this State, the debt owing by him, not having been paid or sued upon in North Carolina, would have become assets m this State, so that the surrogate of the county in which he took up his domicile would have had jurisdiction to grant letters under the statute referred to. What difference does it maleo, so far as the question of jurisdiction is concerned, that he came into this State without the intention of changing his domicile? He thereby voluntarily subjected himself to the courts of this State. Jurisdiction over the demand owing by him to the estate had not been exercised in North Carolina. He had not paid the debt, nor had ho been sued upon it. The case was as completely within the letter of the statute above referred to, as if he had removed permanently. Was it not within its meaning? Suppose he had been in this State several years for a temporary purpose, without the intention of making bis domicile here, would not the claim have been assets here, notwithstanding his domicile continued to be in North Carolina? If not, he could successfully avoid paying the debt as long as he should choose to remain here, unless there should be other assets in this State; for foreign admiuistrajBÉj cannot sue in our courts without talcing out letters here, and^BI surrogate in this State can grant letters, without assets in his county, upon the estate of a deceased person, not an inhabitant of his county, dying without the State. (2 R. S., 73, § 23; see Hollister v. Hollister, 10 How. Pr. R., 532.) If the stay of the defendant in this State, for .a temporary purpose, however pro-' tracted, could have the effect to make the claim against him assets here, the length of his stay is immaterial. It is enough that he is within the State a sufficient length of time to be sued by an administrator of the estate duly appointed here, and that such suit is actually brought in good faith. We have not been referred to any caso, and are not aware of any, in which the precise question before us has been adjudged. The result of such examination as we have been able to give to the subject is, that the claim in suit was assets in this State, the defendant not having paid it or been sued upon it in North Carolina or elsewhere, at the time when the plaintiff took out letters here and commenced the present action.

• This result involves no conflict of jurisdiction. If the views above expressed are correct, the claim in suit ceased to be assets in Noi’th Carolina and became assets here by the voluntary act of the debtor in coming into this State, followed by suit, brought in good faith, against him here. Being assets in New York and not in North Carolina, a judgment in favor of the administrator here will be a bar to a future action by the administrators in the latter State.

As has already been suggested, the case would have been different if the defendant had paid the claim to the administrators in North Carolina, or had been sued by them. (Stevens v. Gaylord, 11 Mass., 256.) So, also, it would be materially different if the debtor had left North Carolina and had come into this State with the intent to defraud the North Carolina administrators. In such case, a recovery here would not bar an action against the debtor in North Carolina., But in the present case, no fraud upon the administrators in North Carolina is, or can be, suggested. The plaintiff was appointed administrator here upon the application of the administrators hi North Carolina, and that fact warrants ÉHjpresumption that this action was brought with their concur-RSffie. Under chapter 403 of the Laws of 1863, letters of, administration may bo granted in this State to administrators appointed in á foreign domicile, or to any person or persona authorized by them to receive the same.

The rights of creditors in North Car olma cannot ho invoked by the defendant, for several reasons. In the first place, those creditors, if any there be, are represented by the administrators in that State, and are to be held to have concurred with them in the bringing of this action. In the next place, the right of creditors in that State will not bo prejudiced by a recovery here. The administration in New York is ancillary to that in North Carolina, the latter being the domicile of the intestate at his death. If there arc no legal claimants in this State, in the character of creditors or next of kin, the administrator here will be bound to remit the assets collected by him to the administrators in North Carolina, to be by them administered according to the law of the intestate's domicile,. (2 Kent’s Com., 434.) If there are creditors hero, it -will probably be his duty to apply the assets in his hands to their payment, but that will work no injustice to foreign creditors. If the estate be solvent, all will be paid in full; if not, the proper course would seem to be to pay the creditors here, pro rata, having regard to all the assets, and the whole amount of debt here and abroad (Dawes v. Head, 3 Pick. R., 128; 2 Kent’s Com., 434.) And in either case, it would seem that the surplus should be remitted to the principal administrators for distribution, unless in the exercise of judicial discretion it shall bo thought that the circumstances of the case require that it be distributed here. (Harvey v. Richards, 1 Mason, 403; Parsons v. Lyman, 20 N. Y., 103; Despard v. Churchill, 53 id., 192.) What circumstances bearing upon that question may appear when the question of distribution shall come up before the proper tribunal, we cannot anticipate. It is enough that nothing now appears which would require the surplus to be retained here, and the existence of facts of that nature cannot be assumed in order to defeat the present action.

The suggestion of the appellant’s counsel that his client has a defense to the claim in suit, growing out of transactions in North Carolina, is foreign to the question. Whatever defense he may have will be available to him in this action, and the circumstance that he will be subjected to the inconvenience of going to a foreign State for testimony is no answer to the plaintiff’s suit. In fine, the defendant, who confessedly owes the debt, stands as a mere volunteer in behalf of the foreign administrators and the creditors represented by them, with whose consent, presumptively, this action is brought.

The judgment should be affirmed, with costs of appeal.

MrjTjovr, P. J., and Talcott, J., concurred.

Judgment affirmed, with costs of appeal.


text:
    EVAN R. JONES, Appellant, v. THE CITY OF UTICA, Respondent.

      Hepairs of roach running between towns — City of Utica, a town within the meaning of 1H. 8., 516, §§ 73-76 —Allotment of districts not avoided by afallure to file it— Chap. 311 of 1870.
    Under the charter of the city of Utica (chap. 19 of 1832, and chap. 18 of 1862), that city is to be regarded as a town, so far as to render applicable thereto the provisions of the Revised Statutes relating to the dividing of a road running between two towns into districts, and requiring each town to maintain and keep in repair the portion assigned to it.
    Certain officers of the city of Utica and the town of New Hartford, assuming to act under the provisions of the Revised Statutes (1 R. S., 516, •§§ 73-76), made an agreement by which Pleasant street, which runs between the town and the city, was divided into districts, certain of which were assigned to the city and others to the town. The agreement was filed in the office of the clerk of the city of Utica, but was neither filed nor recorded in the town clerk’s office of New Hartford. Held, that the agreement was valid, and that the fact that it was not filed or recorded in the office of the town clerk of New' Hartford, as required by the Revised Statutes, did not render the city of Utica liable for an injury occasioned by reason of the district assigned to the town of New Hartford being out of repair.
    The provision of the Revised Statutes referred to was not repealed by chapter 311 of 1870.
    Appeal from a judgment entered upon a nonsuit, granted at the Oneida Circuit.
    The action was brought to recover damages sustained by the plaintiff, by reason of his horse stopping into a hole in the covering of a culvert while being driven in Pleasant street in the city of Utica. The centre of Pleasant street is the boundary line between the city of Utica and the town of New Hartford. On 10th April, 1855, certain officers of the city and town, assuming to act under the statute (1 E. S., 516, §§ 73 to 76), made an agreement by which Pleasant street was divided into two parts or districts, one of which was allotted to New Hartford, and the other to Utica. The point at which the horse was injured was on the Utica side of the centre of the highway, but within that portion of the highway allotted to New Hartford. The agreement was filed in the office of the city clerk of Utica ; but there was no evidence as to whether it was filed or recorded in the town clerk’s office of New Hartford. The plaintiff was nonsuited on the ground that the agreément was valid, and the city was not liable.

      Wm. Kernan, for the appellant.

      A. Coburn, for the respondent.
   Smith, J. :

The statute under which the agreement was made, upon which the defendant relies, provides that “whenever it shall become necessary to have 'a highway upon the line between two towns, such highway shall be laid out by two or more of the commissioners of highways of each of said towns,” etc. (1 K. S., 516, § 73.) The next section makes it “ the duty of the same commissioners, when they lay out such highway, to divide it into two or more road districts, in such manner that the labor and expense of opening, working, and keeping in repair such highway, through each of the said districts, may be equal as near as may be, and to allot an equal number of the said districts to each of said towns.” The following section provides that “ each district shall be considered as wholly belonging to the town to which it shall be allotted, for the purpose of opening and improving the road, and for keeping it in repair ; and the commissioners shall cause such highway, and the partition and allotment thereof, to be recorded in the office of the town clerk in each of their respective towns.” There is also a provision that all highways heretofore laid out upon the line between any two towns shall be divided, allotted, recorded, and kept in repair in the manner above directed.” (Section 76.) These provisions are but little more than a transcript of section 19, chapter 33 of the Revised Laws of 1813. (Volume 2, p. 276.) No question is made by the appellant’s counsel but that an agreement made and recorded, as provided by the statute, is valid, and has the effect to make each town liable to third persons for injuries caused by the negligent condition of those portions of the road allotted to it, although not lying within the boundaries of such town, and to exempt it from liability in respect to the portion allotted to the other contracting party.

It is objected, however, that the agreement on which the defendant relies is void, for the reason that the statute, under which it is assumed to have been made, applies only to highways between towns, and not' to a highway between a city and a town. It may be conceded, for the purpose of this case, that the statute is so limited; but the city of Utica, by virtue of certain provisions of its charter, is to be regarded as a town within the provisions of the statute.

The original charter of the city (Laws of 1832, ch. 19) made the common council commissioners of highways in and for said city, and clothed them with the powers of commissioners of highway in towns. (§ 46.) It also provided that the city should be considered one of the towns of the county of Oneida, for the purposes therein specified, among which were all the purposes contemplated in part 1, chapter 16, title 1 of the Revised Statutes, entitled “ of highways and bridges,” which title embraces the provisions under which the agreement in question was made. (Charter, § 64.) The powers thus conferred were subject to the other provisions of the act, but our attention has not been called to anything in the act which excluded from the grant the powers vested in town commissioners respecting a highway on the line between their respective towns.

The provisions of the original charter are also contained in the act of 1862 (Laws of 1862, ch. 18, § 79, p. 59), by Avhich the charter ivas revised, and appear to be yet in force. The officers who entered into the agreement on the part of the city were designated by the common council for that purpose. We see no reason to doubt that the officers thus acting on the part of the city had authority to do so, and that the agreement was valid as between the city and the town.

It is also objected that the agreement is of no validity, at least as to the public, because it ivas not recorded. That raises the question whether the provision of the statute, which requires the commissioners to cause the partition and allotment of the highway to be recorded in the office of the town clerk in each of their respective towns is directory merely. The question is not free from doubt. On the part of the appellant it is urged that the object of the provision is to give notice to the public, and that it is essential to the rights of third persons that the provision be complied with. On the other hand, it is to be observed that there are no negative words in the statute.

The’ officers acting for the common council of the city scorn to have done all in their power by way of causing the agreement to be recorded in the office of the clerk of the city, for the agreement having been shown to have been deposited there, it is to be presumed that it was done by them for the purpose required by the statute. The omission to record it is presumptively chargeable to the clerk. Besides, the agreement being filed in the clerk’s office was accessible to the public. Furthermore, it appears that after the making of the agreement the city and the town took charge of the respective portions of the highway allotted to them, and want of actual notice is not alleged by the plaintiff.. The right of the city of Utica can hardly be affected ,by the omission of the authorities of New Hartford to record the agreement in the clerk’s office of then town. On the whole we incline to the opinion that tbe omission to record tbe agreement does not affect its validity.

Tbe only other position of tbe appellant’s counsel requiring comment is that tbe statutory provision above referred to, if applicable to tbe case of a highway between a city and a town, was repealed by chapter 311 of the Laws of 1870. It is unnecessary to refer particularly to tbe words of tbe act. Tbe ground taken is, that it is inconsistent with tbe former statute, and impliedly repeals it. We think it is consistent with it. It extends tbe remedy to tbe case of a highway between villages and a town or city, and provides for a division and allotment of districts annually. But we apprehend that if the parties to a valid agreement omit to agree annually, their rights and obligations are not affected by the omission so long as both are willing to abide by the existing allotment.

We think the agreement with the town of New Hartford exempts the city from liability, and that the judgment should be affirmed.

MulliN, P. J., and Talgott, J., concurred;

Judgment affirmed.


author: Smith, J-:

text:
    IN THE MATTER OF THE APPLICATION OF THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, Appellant, v. THE ONTARIO SOUTHERN RAILROAD COMPANY and others, Respondent.

      Right of one company to cross the tracks of another — when an agi’eement as to, binds the successors of the respective companies.

    In 1872 two railroad companies, A. and B., by their respective presidents, entered into an agreement by wMch A. granted to B., and its successors, the right to intersect and cross the tracks of A., upon complying with certain conditions, and upon payment of §800 a year on account of the expense of keeping a flagman at such crossing, B. agreeing to comply with such contract on its part. Subsequently each company’s road was sold under the foreclosure of mortgages prior in date to said agreement, neither company, however, was made a party to the action for the foreclosure of the moz’tgage on the other company’s road. The company organized by the purchasers of company B. ’s road subsequently consolidated with the appellant under chapter 917 of 1869. The title to company A.’s road passed to the respondent. The agreement was carried into effect, and complied with after the foreclosure of both mortgag-es by the pai-ties acquiring title to the respective ímds.
    These proceedings were instituted by the appellant, under chapter 140 of I860, to acquire a right to cross the track of the respondent at the points provided for by the agreement. Held, that the agreement made by the original companies was valid and enforceable in equity; that it was binding upon the parties to this action as the successors of the said companies, and that the application was, therefore, properly denied.
    Appeal from an order of the Monroe Special Term dismissing the petition of the appellants to acquire title to a crossing on the line of the respondent’s railroad at Wallington, Wayne county, pursuant to the provisions of chapter 140 of the Laws of 1850.
    The respondents set up, as a bar to the proceeding, an agreement in writing made on the 1st November, 1872, between the Sodus Point and Southern Railroad Company, and the Lake Ontario Shore Railroad Company, by their respective presidents, respecting the crossing referred to. By the agreement the first named company granted to the company last named, and its successors, the privilege of crossing its track, the track of the first named company at Wallington, at grade, upon certain-conditions therein expressed, and the company last named agreed among other things to pay to the first named company, on account of the expense of a flagman at said crossing, to be provided by the first named company, $800 a year, in half-yearly payments, and to construct a building for a flagman to live in, and a suitable signal-pole, with its necessary fixtures, at said crossing.
    The Special Term referred the matter to a referee to take proofs,' and by his report it appeared : That prior to the making of the agreement m question, the Sodus Point and Southern Railroad Company executed a mortgage of their road and its appurtenances acquired, or to be acquired, which mortgage was foreclosed subsequently to the making of said agreement, and the title to the mortgaged property passed to the respondent November 30, 1875. The Lake Ontario Shore Railroad Company also, prior to making said agreement, mortgaged their road and its appurtenances. The mortgage was foreclosed after said agreement was made, and the title to tbe property covered, thereby became vested in another corporation, entitled “The Lake Ontario Railroad Company,” which latter company afterwards was consolidated, pursuant to the statute, chapter 917 of the Laws of 1869, with the Rome, Water-town and Ogdensburgh Railroad Company, under the name of the latter company. The company formed by such consolidation is the petitioner and appellant herein.
    Immediately after the making of said agreement the Lake Shore Company, by virtue of the privilege thereby granted, constructed a crossing at the point specified in the agreement, which has ever since been used by said company and its successors, and the sum of $800 yearly was paid by the company using the same down to the time of the consolidation. Since the consolidation the petitioner has paid $200 on account of the use of the crossing and the expense of a flagman, but with the express declaration that it did not thereby recognize said agreement, and with the mutual understanding that neither party were to be prej '.¡diced in respect to such agreement by the payment or receipt of the money.
    The referee decided that the agreement binds the successors of the contracting parties, and is a bar to the proceeding. Ilis report was confirmed at Special Term.

      G. T. Richardson, for the appellant.
    The contract, as between the parties to it, was not a lease; if a lease, it is in perpetuity and a freehold estate. Bouvier Law Die., tit. Freehold, and is void, not being under seal. (3 R. S. [6th Banks ed.], 141, § 6; 2 id., 119, § 158.) The stipulations on the part of the Lake Ontario Shore Railroad Company were “to pay on account of the expenses of a flagman,” “and to construct a house suitable for a flagman’s residence,” neither of which would be covenants running with the land or which would bind assignees. (Cole v. Hughes, 54 N. Y., 447; Harsha v. Reed, 45 id., 415; Wheeloclc v. Thayer, 16 Pick., 68; 3 T. R., 402, 1 H. Blackstone; Gojjin v. Taiman, 8 N. Y., 465; Armstrongs. Wheeler, 8 Cow., 98; Thompson v. Rose, id., 266; Newmans. Wells, 17 Wend., 136, 147-148; Bouvier s Law Die., title Covenant, and cases there cited.) An assignee of a vendee cannot be compelled to pay the money due on contract, or to perform the contract. (Champion s. Brown, 6 J. C. E., 398; Adams v. MoTUieiser, 40 Barb., 225: Mills y. Watson, X Sweeney, 374.)

      J. B. Briggs, for the respondent.
    By operation of tlie agreement under tlie statutes (2 E. S. [Bank’s ed.], 1553, §§ 39, 110, 111 121-132), tbe same became and was a complete franchise to each corporation, inseperably connected with each railroad property and road, and similar to a covenant running with the land, and in fact and in law was such. (1 Washburn on Eeal Property [4th ed.], 495 [Marg. p. 327], et seq.; 2 id., 16, 17 [Marg. p. 452], et seq.; id., 390-1-1 [82], et seq.; 2 E. S. [B’s 6th ed.], 1128, §§ 20, 21; 1 Smith’s Leading Cases, 141-147.) In one of the above cases the word 11 assigns ” was wanting, but “ acceptance of possession ” alone was held sufficient to bind him. The covenant to pay rent or “dues” of itself raises the liability of petitioner or its assigns to pay to the other company. (1 W. on E. P. and statutes above cited; Astor v. Turner, 11 Paige, 336; OhasmY. Qarley, 5 Sandf., 547; ThursbyY. Plant, 1 Saund., 240; Petton v. Deshon, 1 Gray, 3-25; 1 W. on E. P., 497, and cases there cited; id., 501, par. 11, and cases there cited; also section V, commencing on page 507.) The covenants of the lease or agreement arc a part of the estate and franchise of each party ; at all events of the franchise. (2 W. on E. P., 286-287, and cases cited; also, Hooper v. Qlarlc, L. E. 22, B. 200.) The agreement gives to petitioner’s grantor and its successors a right to cross at grade under the protection of a flag or signal at Wal-lington, at a stipulated price, to be paid for the daily and hourly recurring responsibility, danger and expense to respondent, the conveyances of both railroads to the present owners carry with them to each the burdens and to each the benefits, and each present party is bound by the covenants and conditions of the agreement. (2 W. E. P., 303-304; Kent\. Waite, 10 Pick., 138; 2 Eolle’s Abr., 60 PL 1; Underwood v. Oarney, 1 Cush., 285; Webster v. Stevens, 5 Duer, 553.)
   Smith, J-:

Each of the corporations, parties to the agreement of November, 1872, was organized under the general railroad act of 1850. That act gives power to every corporation formed under it to cross with its track any other railroad before constructed at any point on its route, and provision is made for ascertaining and determining the amount of compensation to be made therefor, in case the two corporations cannot agree in respect to it. (Laws 1850, chap. 140, § 28, sub. 6.) That in every such case the two corporations have power to make an agreement respecting the amount of compensation, is clearly to be implied from the provision referred to. No question was made on the argument, as to the power of the president of each corporation to bind his corporation by the agreement in question.

We may assume, therefore, that the agreement was not ultra vires. It secured to the Lake Shore Company a perfect right to cross the track of the Sodus Point Company, and its provisions were such that the former company was enabled to enjoy the right in perpetuity, by performing its part of the agreement. Even in case of the default of the Lake Shore Company the agreement would not have been terminated, unless the other party had chosen to consider it forfeited. (Folts v. Huntley, 7 Wend., 210.) If, therefore, the Lake Shore Company had instituted a proceeding, under the statute, against the Sodus Point Company, after the making of the agreement and while the two companies owned and operated their respective roads, it can hardly be doubted but that the agreement, and the acts of the parties under it, would have been a bar to the proceeding. Not only would the petitioning corporation have been in the enjoyment of all which it could acquire by the proceeding, but the essential jurisdictional fact of inability to agree would have been lacking.

The important question, therefore, is whether the corporations now litigating, having acquired respectively the roads of the Lake Shore and Sodus Point Companies, are bound by the agreement. Had the agreement been under seal it would have been a grant of an easement, liable to be defeated by the default of the grantee to perform the covenants on its part; and in such case the semi-aimual payment reserved would have been rent ( Van Rensselaer V. Ball, 19 N. Y., 100), the right to recover which would have passed to the grantee of the servient estate. (1 R. S., 747, 748, §§ 23, 24, 25; Van Rensselaer v. Ball, supra.) So, too, the burden or obligation to pay rent, as well as the benefit, would have run with the easement, both being so inseparably connected as that each would have been necessary to the existence of the other. (1 Smith’s Lead. Cases [5th Am. ed.J, 143, and cases there cited.) The same would have been true of the covenant on the part of the grantor to furnish a flagman at the crossing, and of the covenants on the part of the grantee to build a house at the crossing for the flagman to live in, and a signal pole to be used by him in signalling trains approaching the crossing, each of which conditions directly touched and affected the thing granted. (Norman v. Wells, 17 Wend., 136.) This is upon the assumption that covenants will run with inheritances incorporeal — a position which, although it has been controverted (Wheelock v. Thayer, 16 Pick., 69), seems to be supported by authority. (Bally v. Wells, 3 Wilson, 26; 1 Smith’s Lead. Cases, 161, and cases cited.)

Although the agreement, not being under seal, is not at law a technical grant; yet it vested in the Lake Shore Company substantial legal and equitable rights and interests, appertaining to their road aud essential to its use. It gave them the legal right to enter upon the road of the Sodus Point Company, and there construct, maintain and use a crossing so long as it performed its share of the agreement, and that right it availed itself of and fully enjoyed, under the agreement, so long as it continued to own and operate its road. The agreement is one which a court of equity would have enforced, if performance had been withheld; and in equity part performance would supply the want of the corporate seal of the contracting parties. (Pry on Spec. Prop., 255.) The agreement being such as a court of equity would enforce, the rights of each party for that purpose, and to that extent, were capable of being transferred (Murray v. Jayne, 8 Barb., 612, 617), and would have passed, under a deed of the road of such party, as appurtenant to the road. (Id.)

The appellant claims title to the road which belonged to tfie Lake Ontario Shore Railroad Company, under a mortgage executed by the latter company, which described the property and rights thereby mortgaged and conveyed, in language sufficiently broad and comprehensive to mclude the rights and interests which the mortgagor acquired under the agreement in question, although executed subsequently to the mortgage. It expressly conveyed “the railroad constructed and to be constructed * * * and the rights, privileges and franchises now owned by the said company, or which shall hereafter lie owned by it, forming a part or appertaining to, or necessary or convenient to or about” said railroad By the foreclosure and sale the property, rights, privileges and franchises covered by the mortgage passed to the purchasers and to the corporation formed by them and their associates, under the name of the “ Lake Ontario Railroad Company.” (Laws 1854, ch. 282, § 1; Laws 1857, ch. 444, § 1.) That company used the right of crossing and paid at the stipulated rate for the same, pursuant to the agreement, until it was consolidated with the Rome, Watertown and Ogdensburg company. The consolidation was effected under chapter 917 of the Laws of 1869. The fourth- section of that act provides that ■upon the consummation of the act of consolidation of two or more corporations under said act, “all and singular the rights, privileges, exemptions and franchises of each of said corporations parties to the same, and all the property, real, personal and mixed * * * shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed; and all claims, demands, property, rights of way, and every other interest, shall be as effectually the property of the new corporation as they were of the former corporations,” etc. By the fifth section it is declared that “ the rights of all creditors of, and all liens upon, the property of either of said corporations, parties to said agreement and act shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same, and all debts and liabilities incurred by either of said corporations, except mortgages, shall thenceforth attach to such new corporation, and be enforced against it and its property to the Same extent as if said debts or liabilities had been incurred or contracted by it.” The mortgage executed by the Sodus Point and Southern Railroad Company also conveyed its railroad and all things pertaining to it 1 acquired or to be acquired and they became vested in the Ontario Southern Railroad Company. That company acquired title on November 30, 1875, and its right to receive the payments provided for by the agreement in question was recognized by the Lake Ontario Railroad Company, the latter company having made the payment which fell due on December 1, 1875. By that act, the latter company recognized its liability to the same extent as if it had been a party to the agreement. The statute subjected the consolidated company to the liabilities of the Lake Ontario Company in respect to the agreement and the rights enjoyed under it, to the same extent as if such liabilities had been contracted by it. Its position was very different from that of an assignee of a vendee of land, to which it is likened by the appellant’s counsel. We think that by the operation of the several statutes to which we have referred, the appellant is bound by the agreement, so long as it enjoys the right created by it, and that it may enforce the agreement in equity, against the respondent, in case of its refusal to perform.

The case is not affected by the circumstance that the road of each company was under mortgage before the agreement was made, and that the mortgages have been foreclosed. Neither the Sodus Point Company nor its successor was made a party to the foreclosure of the mortgage executed by the Lake Ontario Shore Railroad Company, nor was the latter company, or either of its successors made a party to the foreclosure of the mortgage given by the Sodus Point Company. As to the parties to this proceeding, the mortgage lien upon their respective rights and interests under the agreement are unforeclosed, and the mere existence of the lien does not affect the present question.

The order should be affirmed, with costs.

Mullik, P. J,, and Talcott, J., concurred.

Order of Special Term affirmed, with ten dollars costs and disbursements.


author: SMITH. J. :

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    ASHER GUCKENHEIMER and others, Appellants, v. JACKSON ANGEVINE, Impleaded, etc., Respondent.

      Motion for new trial ■— reargument ordered — two argument fees may he taxed — Motion for relaxation ■ — what laches a defence — when waived by taking an appeal.

    The plaintiff having recovered a verdict, defendant moved for a new trial on a ' case at Special Term. The justice heard the motion but did not decide it, and ordered a roargument before another justice, by whom the motion was denied. In taxing- costs, plaintiff was allowed two argument fees.

      Held, that as the necessity of a rearg-ument was not caused by any act or omission of the plaintiff, such allowance was proper.
    Plaintiffs entered judgment upon the verdict, which included the costs, and defendant appealed therefrom, giving an undertaking for their payment. Pour months afterwards defendant made a motion for a retaxation of the costs.

      Held, that the defendant was guilty of laches, and that the appeal was a waiver of the right to move for a retaxation.
    Appeal from an order of the Erie Special Term, granting a motion made by the defendant for a readjustment of costs.
    The plaintiffs recovered a verdict, and the defendant moved for a new trial on a case. The motion was argued and submitted at a Special Term hold by a justice of this court, who did not decide it, but subsequently ordered that it be reargued before another judge, and it was so reargued at a subsequent term, and the motion ivas denied.
    The clerk on taxing the costs alloAved the plaintiff tivo argument fees, to which defendant objected. The Special Term held that the plaintiffs were entitled to but one argument fee.
    The defendant had allowed four special terms in Erie to pass without moving for retaxation, and no excuse Avas shown for the delay. Ho had also appealed from the judgment more than four months before this motion Avas made.

      Delavan F. Clark\ for the appellants.

      Horatio FT. Griffith, for the respondent.
   SMITH. J. :

It is well-settled that laches in motions for retaxation is a defence. (McLean v. Forward, 1 Cow., 49; Morris v. Mullett, 1 Johns. Ch. R., 44.) It appears that the costs had been put into judgment, and that the defendant appealed from the judgment and gave an undertaking for their payment. We think the appeal was a waiver of the right to move for a retaxation; and on the merits vve are of the opinion that the plaintiffs were entitled to the argument fee given by statute for each argument. It does not appear that the necessity for a reargiunent was caused by any act or omission on their part, and two arguments having been in fact made, we think the items were properly taxed.

Order reversed, with ten dollars costs and disbursements.

Talcott, P. J., and IIardiN, J., concurred.


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    MARY M. RITTEN, Respondent, v. GRIFFITH J. GRIFFITH, Appellant.

      Sei'viee of sv/mmons on non-resident — copies of papers must always be mailed — form of order — Code of Civil Procedwe, § 440.
    Under section 440 of the Code of Civil procedure, providing- for the service of the summons upon a non-resident, the order must direct a publication, and must also contain the alternative direction that sei’viee may he made on the defendant personally out of the State, at the option of the plaintiff, and must also, in all cases, notwithstanding personal service may be made, contain a direction for mailing copies of the summons, complaint and order, or a statement that such mailing was dispensed with, as is in said section provided. '
    An order directing simply that the summons, with a copy of the complaint and order, be served upon the defendant.personally, without the State, is void.
    Appeal from an order of the Oneida Special Term, denying defendant’s motion to set aside the judgment entered herein by default, upon service of the summons without the State.
    The defendant was a resident of the State of New Jersey. The summons was served upon him personally, within that State, on the 13tb of June, 1878. Such service was made in pursuance of an order granted by the special county judge of Oneida, upon an affidavit, which stated that the defendant resided in New Jersey, but did not show that service of the summons could not, with diligent effort, be made upon him within this State. The order simply directed that the summons, with a copy of the complaint and of said order, be served upon the defendant personally, without the State of New York. Judgment by default ivas entered against the defendant on the twenty-first of August. On the sixteenth of November, defendant obtained an order requiring plaintiff to show cause why the judgment should not be set aside as irregular or void, for the reasons, among others, that the affidavit on which the order directing service of the summons without the State was granted was irregular, in not stating whether due diligence had been used to effect personal service on defendant within this State, and that the defendant had not been properly served with the summons. The motion was denied on the twenty-ninth of November.
    John G. Jones, for the appellant.

      II. J. QooJcingham, for the respondent.
   Smith, J. :

The affidavit on which the order directing that the summons be served without the State was granted was irregular, in not complying with the requirements of rule twenty of this court. The judge at Special Term held that the defendant was too late to avail himself of the irregularity. The motion was made about three months after the judgment was entered, and the defendant had not appeared in the cause for any other purpose. As the defendant was a non-resident of the State, we hardly think his delay for that period of time was sufficient to preclude him from questioning the regularity of the judgment. But it is not necessary to decide that point, as we are of the opinion the judgment was a nullity, for the want of a sufficient order authorizing a constructive service of the summons.

The power to make an order of that nature is given by sections 438 and 440 of the Codo of Civil Procedure. Section 438 provides that an order, directing the service of a summons upon a defendant, without the State, or by publication, may be made in either of the cases specified hi that section, one of which is where the defendant is not a resident of this State. Section 440 provides that such order must direct that service of the summons be made by publication ; or, at the option of the plaintiff, by service of the summons, and of a copy of the complaint and order, upon the defendant personally, without the State. It must also contain, either a direction to mail a copy of the summons, complaint and order, directed to the defendant, at a place specified in the order ; or a statement that the judge, being satisfied that the plaintiff cannot, with reasonable diligence, ascertain a place where the defendant would probably receive matter sent by mail, dispenses with such mailing. Every order, made under that section, as we read it, must direct a publication, with the alternative direction that service may be made on the defendant personally, without the State, at the option of the plaintiff, and it must also direct that the papers be mailed, or it must state that mailing is dispensed with by the judge. The late Code of Prodcedure provided that when publication is ordered, personal service out of the State is equivalent to publication and deposit in the post-office. (Section 135.) The section of the present Code, above construed, retains that provision, so far as to make personal service out of the State, 'when publication is ordered, equivalent to publication. But under the present Code, as under the former, personal service without the State, is a nullity, unless publication has been ordered. Under the present Code, however, personal service out of the State, when publication has been ordered, is not equivalent to a deposit in the post-office. Whether publication or personal service out of the State be resorted to, the proper papers must also be mailed, unless the mailing is dispensed with by the terms of the order.

The respondent’s counsel contends that it is enough if the order directs either one of the modes of service specified in the first clause of the section, to wit, publication ; or, if the plaintiff prefers, personal service without the State, and that if the order contain the latter direction, it need not direct that the papers be mailed, nor need it state that tbe judge bas dispensed with the mailing of them. That interpretation, we think, violates the sense of the section as well as its grammatical construction. It makes a personal service without the State, with no order for publication, and no deposit in the post-office, equivalent to a personal service within the State. That, we are confident, was not the design of the section. In providing that the order must direct personal service to be made without the State at the option of the plaintiff, it was not intended to dispense with the order for publication, but the intention was to have the order for publication so framed as to permit personal service out of the State in lieu of publication, if the plaintiff should find it more convenient to adopt that course under the order.

If our views of the section are correct, the order made in this case was a nullity. First, because it did not direct in the alternative, both a publication and personal service out of the State, at the option of the plaintiff; and, secondly, because it did not contain either a direction for mailing, or a statement that the mailing was dispensed with. The latter statement it could not have contained properly, as the defendant’s residence was stated in the affidavit.

The position is taken by the appellant’s counsel that the special county judge of Oneida had not power to make the order, but we do not express an opinion on that point, as we hold the order void for the reason above stated.

The order of the Special Term should be reversed, and the judgment, the order directing the service of the summons, and all proceedings in the action should be set aside, with ten dollars costs of the appeal and disbursements.

Talcott, P. J., and IIaediN, J., concurred.

Order appealed from reversed, ana order of publication and judgment set aside, with ten dollars costs and disbursements.


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    THE CITY BANK OF ROCHESTER, Respondent, v. DAVID H. WESTBURY, Appellant. IGNATZ THALIMER, Respondent, v. DAVID H. WESTBURY, Appellant.

      Chattel mortgage— mid, when the mortgagor is to remain in possession and sell on credit.

    The defendant, a manufacturer of boots and shoes, being largely indebted, mortgaged to one of his creditors all his stock and goods manufactured and to be manufactured; it being agreed that he should remain in possession, continue to manufacture and seíl, either for cash or on credit, in his discretion. The cash and the accounts, when sales were made on credit, to be transferred to the mortgagee, and applied on the debt; the accounts, however, only when they were collected.

      Held, that the mortgage was fraudulent as to creditors and void.

      Hwd v. Williams (24 ÍT. Y., 359); Conkling v. Shelley ( 28 N. Y., 360), distinguished.
    Declarations of the mortgagor, while in possession, are admissible upon the question of intent as part of the res gestw.

    Appeal from an order of a Special Term in Monroe county, denying defendant’s motion to vacate a warrant of attachment in each of the above entitled actions.
    The attachment was issued upon the ground that the defendant had made a fraudulent disposition of his property. The affidavit on which the warrant was granted tended to show that the defendant, who was a manufacturer of boots and shoes, was largely indebted on 17th May, 1878, and on that day mortgaged to Casing, Weicher & Co. all his stock and goods manufactured and to be manufactured, and that by agreement with the mortgagees he continued in possession of said stock and goods, and continued to manufacture and sell the same for his own use. The affidavit in support of the motion to vacate the attachment undertook to show that the mortgagor continued in possession as the agent of the mortgagees, to sell the property and apply its proceeds to the the payment of debt due to them, and not for his own benefit, and that the arrangement was made in good faith and without intent to defraud other creditors. The plaintiff read answering affidavits, and the judge at Special Term held that, upon the whole case, as disclosed by the affidavits, the presumption of a fraudulent intent, arising from the continued possession of the mortgagor, was not repelled, and was conclusive, and upon that ground he denied the motion.

      J. 8. Garlock, for the appellant.

      J. B. Perkins, for the respondent.
   Smith, J. :

The bóna fides of the indebtedness which the mortgage in this case was given to secure is not questioned. The case of Ford v. Williams (24 N. Y., 359) is therefore an authority for holding that if the parties to the mortgage had agreed that the mortgagor should keep possession and sell the goods for cash, paying over the moneys to the mortgagees, the agreement would not have been fraudulent in law, and if in fact made with au honest intent would have warranted the conclusion that the mortgage was valid as against the claims of other creditors. To the same effect is Conkling v. Shelley (28 N. Y., 360).

The counsel for the appellant relies upon those cases, but we do not think they aid him. This case differs from them in some material particulars. By the agreement in this case, as we gather it from the testimony, the mortgagor was not restricted to sales for cash, but he was at liberty to sell on credit at his unlimited • discretion. That the parties so understood the agreement, and so acted upon it, is plainly to be inferred from the statement in the affidavit of the defendant that he assigned to the mortgagees accounts as fast as made by sales,” which statement is confirmed by the affidavit of Weicher, one of the mortgagees. Perhaps this would not have taken the case out of the doctrine of Ford v. Williams, if the agreement had provided that the accounts should be applied at their face in payment of the mortgage debt at the time of transfer. But that does not appear to have been the case. It is to be presumed that the parties to the agreement have stated it as favorably for themselves as they could do truthfully. We may therefore assume that the terms of the agreement did not require that accounts transferred to the mortgagees should be applied in extinguishment of their debt till actually collected in. If such was the arrangement with the mortgagees it enabled the mortgagor to sell his entire stock on credit, and keep his other creditors at bay. In that aspect the transaction was fraudulent per se. But the actual conduct of the parties was worse for creditors than even that arrangement would have been if it had been lived up to. There is evidence tending to show that in several instances accounts for sales on credit were not transferred to the mortgagees, but were kept by the mortgagor and collected by him. Furthermore, the evidence discloses certain other indicia of a fraudulent intent, which did not attend the cases above cited. . It showed that the mortgagor ostensibly carried on the business after the execution of the mortgage, in the same manner in all respects as before ; that he did not profess to be acting as the agent of the mortgagees, but conducted the business in his own name and apparently on his own account; that he paid his hands with money received from sales of goods ; and that the sales he made on credit were in his own name.

The acts and declarations of the mortgagor while in actual possession were competent evidence upon the question of intent, as part of the res gestae. (Newlin v. Lyon, 49 N. Y., 661.) Even treating the question of fraud as one of fact, depending on the intent, we think the evidence warranted the conclusion of the judge at Special Term. We lay out of view the statements in the affidavit, on the part of the plaintiff, that the mortgagor deposited moneys received from the business in bank, in his own name, and drew against them, and that he procured discounts at bank for his own credit, of notes given by his customers, as those statements seem to be based wholly on information derived from entries in the bank books, which are not evidence as against the parties to the mortgage. The order should be affirmed.

The like result in the case of Ignatz Thcdimer, respondent, against the same defendant, appellant.

MulliN, P. J., and Talcoit, J., concurred.

Orders denying motions to vacate attachments affirmed, with ten dollars costs, and disbursements in each case.


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    PEOPLE OF THE STATE OF NEW YORK ex rel. ESTHER VAN ALLEN, Appellant, v. WILLIAM H. PERRY, Respondent.

      Swmmary proceedings —■ renewable on certiorari, though no appeal talcen — Writ may be issued within two years — is properly made returnable at Special Term — copy of affidavit need not be served on respondent.

    Section 15 of 2 R. S., p. 391, providing that “no certiorari shall he allowed to remove into the Supreme Court any matter which may he brought before the county court by appeal from a justice, until after a final determination thereon by such court,” only applies to those cases in which an appeal has been taken, and not to those in which an appeal might have been but was not taken.

      Ce¡’tiorañ will issue to review summary proceedings before a justice of the peace, although no appeal has been taken.
    The party may resort to an appeal or procure a certiorari,, at his election.
    The time of limitation to writs of certiorari, in the absence of special circumstances, is two years.
    Vhen a certiorari is issued, it is not necessary that a copy of the affidavit on on which it was allowed be served on the respondent.
    A ceiidorari to review summary proceedings is properly made returnable at a Special Term.
    Appeal from an order of Oneida Special Term quashing a writ of certiorari allowed by a justice of this court, ex parte, to review certain proceedings had before a justice of the peace, under the statute authorizing summary proceedings to recover possession of land.
    The proceedings were instituted by the respondent against the relator, to remove her from certain premises purchased by the respondent at a mortgage sale under a statutory foreclosure. On March 3d, 1877, the justice rendered judgment in favor of the present respondent, and issued a warrant by virtue of which the relator was put out of possession. No appeal was taken to the county court. On 12th August, 1878, the relator obtained the writ of certiorari. The order quashing the same was granted by the Special Term on two grounds. First. That no appeal having been taken to the county court from the judgment of the justice, and no reason for the omission to take such appeal having been shown, the allowance of the writ was contrary to the statute. (2 R. S., 391, § 15.) Second. That the unexcused failure to appeal, and the subsequent delay constituted laches. The respondent’s counsel also contended that the writ was properly quashed for the further reasons, that the affidavit on which it was granted was not served upon the respond-7 ent; that the writ was improperly made returnable at a Special 1 Term, notwithstanding rule 44, and that the relator had an adequate remedy by appeal.

      Pkigene JE. Sheldon, for the appellant.

      It. H. Smith, for the respondent.
   Smith, J. :

The statute which appears to have been mainly relied on by the Special Term provides, that “ no certiorari shall be allowed to remove into the Supreme Cosrt any matter which may be brought before the county court by appeal from a justice until after a final determination thereon by such court.” The Special Term held, in effect, that as the case was one in which an appeal might have been taken tot the county court, though none was taken, a certiorari could not be allowed. We think the meaning of the statute is that in a case where an appeal lies to the county court, if such appeal shall have been taken in fact, no certiorari shall be allowed until a final determination by the county court. If the construction of the Special Term is correct, a certiorari cannot be directed to the justice to review summary proceedings in any case, and the only remedy, in the first instance, is by appeal to the county court. But the cases are numerous in which the writ has been directed to the justice. (The People ex rel. Daniels v. Cushman, 1 Hun, 73 ; The People ex rel. Grissler v. Stuyvesant, id., 102; S. C. affirmed, 58 N. Y., 323; The People ex rel. Murphy v. Lockwood, 3 Hun, 304; The People ex rel. Hughes v. Lamb, 10 id., 348.) And it has been held that the remedies are concurrent, and a party may resort to either at his option. (Williams v. Bigelow, 11 How., 87.) We do not think the statute referred to stood in the way of granting the writ.

Neither do we think there was such laches as would warrant the quashing of the writ on that ground. The writ was applied for about seventeen months after the judgment was rendered. The time of limitation to writs of certiorari which, in the absence of special circumstances, has been usually adopted by this court, is two years, in analogy to the limitation fixed by statute upon writs of error before those writs were abolished. (People ex rel. Ackerly v. Brooklyn, 8 Hun, 56, and cases there cited by Gilbert, J.; People ex rel. Corwin v. Walter, 4 N. Y. Sup. Ct. [T & C.] R., 640; S. C., 2 Hun, 385.) The Code of Procedure substituted appeals for writs of error, and fixed two years as the limitation for bringing appeals to the Court of Appeals. The Code of Civil Procedure has reduced the time to one year. But it does not necessarily follow that the courts should now adopt one year as the limitation to writs of certiorari in all cases. The granting of the writ is, now as heretofore, in a great measure matter of discretion. In most of the cases in which two years wrore said tó be the limitation, public interests were involved, or private rights had intervened, which Avould be prejudiced by delay. But this case presents neither of these features, and we cannot say that the discretion of the judge who allowed the writ was improperly exercised.

We are not aware of any reported case holding that a copy of the affidavit on which the writ was allowed must be served with the writ on the respondent. In Wait’s Practice (vol. 5, p. 490), it is said the affidavit should be served, but no authority is cited in support of the position. If it is necessary to serve the affidavit on the respondent, it seems equally necessary to serve it upon the officer or tribunal to whom the writ is directed; but there does not seem to be any necessity for serving it on either. The office of the writ is not to compel a return upon certain points pointed out in the affidavit, but to remove the entire proceedings specified in the writ or the record thereof into the court to which the writ is returnable. The judge, to whom an ex parte application for the writ is made, may in his discretion require notice of it to be given to the adverse party ; and if, after the writ is allowed, the respondent deems it to have been inadvertently issued, he may move to quash or supersede it. It may be judicious practice to serve a copy of the affidavit with the writ, but we are not prepared to say that an omission to do so furnishes ground for quashing the writ, when it appears to have been regularly and providently granted in all other respects, and there is no evidence that the respondent has been harmed by the omission.

The respondent’s counsel seems to suppose that notwithstanding rule 44, the writ should have been made returnable at the General Term. He bases his argument upon section 47 of the act authorizing summary proceedings (2 R. S., 516), as amended by chapter 828 of the Laws of 1868. The section, as amended, provides that the Supreme Court may award a certiorari, etc.; that the judgment of the Supreme Court at a General Term shall be final, unless an appeal be allowed to the Court of Appeals; and that the appeal upon any judgment rendered upon any such certiorari may be brought on for argument, etc., at any term of the Court of Appeals, etc. His position is that the section allows only one appeal, and if the writ were made returnable at a Special Term, an appeal would lie from the judgment of the Special Term, directly to the Court of Apjaeals, contrary to the evident intention of the statute. The answer to this is that an appeal to the General Term from an order made by a Special Term in every special proceeding is given by section 1356 of the Code of Civil Procedure.

The respondent’s counsel cites the cases of Saratoga and W. R. R. Co. v. McCoy (5 How., 378); In the Matter of Mount Morris Square, (2 Hill, 27), and The People ex rel. Noble v. The Board of Comrs. (37 Barb., 126), in support of the position, that when a remedy is given by appeal a certiorari should not be granted. Many more cases might be cited to the same effect. They are all cases of a common law certiorari. Here the writ is given by statute, and as we have already seen the remedies are concurrent.

The order of the Special Term quashing the writ should bo reversed with ten dollars costs of appeal and disbursements, and ten dollars costs of opposing the motion at Special Term.

Talcott, P. J., and Hardest, «J., concurred.

So ordered.