author: Daniels, J. :

text:
    ROBERT L. CUTTING, Jr., as Receiver of the BANKERS’ AND BROKERS’ ASSOCIATION, Plaintiff, v. W. G. DAMEREL, Defendant.

      Corporation■ — liability of a stockholder who has sold his stock, where it has not been transferred on the company's books — 1867, ch. 474, § O.
    Section 0 of chapter 474 of 1867, incorporating the Bankers’ and Brokers’ Association, provided that the stockholders thereof should be severally liable for all its debts and liabilities, “to an amount equal to the amount of stock held and owned by them respectively, which liability shall be in addition to their liabilities to pay in full the stock subscribed for or purchased by them.” Section 5 of title 3 of chapter 18 of part 1 of the Revised Statutes, to the provisions of which the association was made subject, provided that where the whole capital had not been paid in, “ eacli stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share as fixed by the charter of the company.” Neither the charter nor the by-laws of the corporation declared that its shares should be transferred only upon its books, but the certificate of stock, issued by the directors-, who were authorized to make by-laws and rules for the management and regulation of its affairs, provided that the shares should “ be transferable only on the books of the association.”
    In this action, brought by a receiver of the association to recover a portion of the amount unpaid upon the shares of stock, against one in whose name certain shares of stock stood on the books of the company, it appeared that the defendant had prior thereto sold and delivered the certificate of stock to another person, who had thereafter drawn the dividends upon the stock, but had not had it transferred to his name on the books of the association.

      Held, that the liability of the defendant continued until the transfer was made on the books of the company, and that the plaintiff.was entitled to Recover.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant, ordered at the Circuit.

      John Olvnton Gray, for the plaintiff.
    All persons who were registered on the books of the Bankers’ and Brokers’ Association as holders of shares of its capital stock, when that association failed and came into the hands of a receiver, remained the legal owners of the shares, and were subject to the liability to pay the sum necessary to complete the amount of such share as fixed by the charter. (L. 1867, ch. 474, § 2; Adderty v. Storms, 6 Hill, 624; Mann v. Currie, 2 Barb., 294; Roosevelt v. Brown, 1 Kern., 148; Matter of Reciprocity Ba/nk, 22 N. Y., 9; Empire City Ba/nk Case, 18 N. Y., 200; Webster v. TJpton, ‘91 U. S., 65; Pullma/ro v. Upton, 96 Id., 329; Stanley v. Stanley, 26 Maine, 191; Castellan v. Hobson, L. R., 10 Eq., 47; Gris-sell v. Bristow, L. R., 3 C. R., 112; Odies v. Bristow, L. R., 6 Eq., 149 ; Hodgkmson v. Kelly, L. R., 6 Eq., 496; Hawkins v. Mwrthy, L. R., 6 Eq., 505; Cruse v. Bayne, L. R., 6 Eq., 641; Tennent v. City of Glasgow Bank and Liquidators, 40 Lam Times, N. S, 694.)

      Edtward E. Sprague, for the defendant.
    In an action to enforce such a liability, the receiver stands in the place of the corporation, in no better condition and with no greater rights than the corporation would have had. (Sewage v. Medbury, 19 N. Y., 32 ; Hyde v. Jbynde, 4 Idi, 387; Bell v. Shibley, 33 Barb., 610; Cutting v. Marlor 17 Iiun., 573.) In this case, the purchaser from defendant, having taken the stock with blank power of attorney, signed by defendant, took complete title to the stock. (Holbrook v. New Jersey Zinc Co., 57 N. Y., 616, 624; Driscoll v. W B. & C. M. Co., 59 Id., 96; Com. Ba/nk v. Kortright, 22 Wend., 348, 363.)
   Daniels, J. :

The plaintiff, as receiver of the Bankers’ and Brokers’ Association, a corporation ereated by chapter 474 of the Laws of 1867, brought the present action to recover the sum of $30 on each share of the corporate stock, standing in the defendants’ name on the books of the corporation. Its capital stock was declared to be $500,000, divided into shares of $100 each (1 L. 1867, p. 1168, § 2), and by the certificate of the stock in, controversy, it appeared that but fifty per cent, of the par value had been paid upon the shares. This was sufficient to make out a ease of presumptive liability, at least, in the plaintiff’s favor against the defendant. But for the purpose of relieving him from the effect of these circumstances, it was farther shown that he did in fact sell his stock to John Bonner & Co., and afterwards delivered to their agent the certificates of the shares. After the sale of the shares, the dividends upon them were credited on the books of the corporation to John Bonner & Co. But the defendant did not direct the shares to be transferred on the books of the corporation, and when Bonner, who was its president, was asked whether they should be so transferred, he. answered no, and no such transfer was made of them, but they continued to stand upon the books in the name of the defendant. The court at the trial held that he was not liable on this state of the facts, and a verdict was directed in his favor. Whether that direction was right is the only point requiring special consideration at this time.

There was nothing in the charter, or in the by-laws of the corporation, declaring that its shares should be transferred only upon its books. In that respect the case differs from many which have employed the attention of the courts, in which the point of the liability of stockholders has been considered. Where such a formal transfer has been in terms rendered necessary, there the liability of the preceding owner has been held to continue until a transfer of his shares has been actually made on the books of the corporation. (Shellington v. Howland, 67 Barb., 14; affirmed, 53 N. Y., 371.) It has been insisted that these authorities are inapplicable to the present action, for the reason that the charter of the Bankers’ and Brokers’ Association declared only those who both held and owned the stock, to be the persons who should be held liable. The provision in terms is that:

“ The stockholders of the said association shall be severally liable for all debts and liabilities of the said association to an amount equal to the amount of the stock held and owned by them respectively ; which liabilities shall be in addition to their liabilities to pay in full the stock subscribed for or purchased by them.” (L. 1867, p. 1168, § 2.)

But so restricted a construction should not be given to this act. If it were, then it would follow that a similar restriction ought to be placed on the term “ held,” and that would in all cases relieve persons from liability whose stock had in fact been sold and delivered, though no transfer was made of the certificates upon the corporate books. Literally, such shares after their sale and delivery are no longer held by the vendor, and for that reason it might be said that they are not within the terms of the statutes, by which the personal liability of stockholders have been created. That would be the case as to the large classes of persons holding stock in railroad and manufacturing and other business corporations. (2 E. S., 6 ed., 522, §,11; Id., 504, § 38 ; Id., 391, § 5.) What this provision of the charter was probably intended to accomplish was to declare, as other laws had done, the liability of that class of persons who, in legal parlance, can be designated as the owners and holders of the shares. That intent was reasonably indicated by its last section, in which it was declared that the association should be subject to all the provisions of title 3, chapter 18, of part 1 of the Revised Statutes, so far as they were applicable to, and not inconsistent with, the purposes of this special act. (L. 1861, p. 1169, § 9.) One of the provisions to which it was in this manner subjected declared that where the whole capital of a corporation shall not have been paid in, and the capital paid shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share as fixed by the charter of the company.” (2 R. S., 6 ed., 391, § 5.) That this section was intended to apply to this association is further evident from the concluding member of the second section of the charter; for the preceding personal liability created by it is stated to be in addition to the stockholders’ liability to pay in full for the stock subscribed or purchased by them. It does not, it is true, in terms define what the latter liability shall be, but it leaves that to be done by such other enactments as may be found applicable to the case. This general section, including and declaring the liabilities of all business corporations, is an enactment of,, that nature, and it is specially applicable to the case now before the court. By that the liability for the balance unpaid upon the shares is stated to be against their holder. It is the same in this respect as that contained in the statutes providing for the formation of railroad, manufacturing and other corporations. The. holder of the stock is the person declared to be liable for the amount unpaid upon it.

These provisions, and the one included in those generally enacted, are framed so nearly in the same words as to warrant the ■conclusion that they were all animated by the same intention; and .as they all apply to the same class of subjects, there is clearly no reason why that should not be the fact. "What was designed was to frame the laws in such a manner as to create substantially and .generally the same measure of liability; and its purpose should not be defeated, because in this single instance the term “ owned ” has been added to that more generally used of “ held.”

The board of trustees was empowered to make such by-laws, rules and regulations as they judged proper for prescribing the mode of admitting members, the transaction of the business of the association, and managing and directing its affairs. (1 L. 1867, 1168, § 6.) And by the terms included in the certificates issued to the shareholders, it was declared that the shares should be transferable only on the books of the association,” and on the •surrender of such certificates. This was the contract between the corporation and the individuals who became the holders of its «hares. (Angell & Ames on Corporations, 10 ed., 517.) And it imposed the same restriction upon them as the statute did upon the ^shareholders whose liability was considered in Shellington v. Howland (supra). This was such a regulation as the charter provided might be made; and while it existed it was required to be ob•served by the persons who should become the owners of stock in this association. Until that was done those persons did own and hold the stock of the corporation, for they could only part with their title legally and effectually in this manner. The defendant’s •shares were not transferred in that manner, which was the only way in which a transfer could be made, that the association had the right to recognize and accept; and he consequently continued "both to hold and own them in the sense in which those terms were designed to be understood as they were used in the second section ■of the charter, and as the term “ held ” was employed in the section ■of the general law already quoted, and made applicable by its charter to this association. By this restraint, prescribing the only mode in which the stock could be completely transferred, it continued, as to-the company and its creditors, to be held and owned by the defendant, in whose name it stood upon the books. He remained the legal owner, and the person to whom creditors were empowered to-look for the discharge of so much of their obligations as could not be satisfied by the property of the association, and was legally-chargeable against the stockholder. By the terms of the statute-each stockholder has been required to pay on each share held by him the amount necessary to complete the amount of his shai-es, or that proportion of the same as shall be required to satisfy the debts-of the company. (2 R. S., 6 ed., 391, § 5.) And to oblige the defendant to do that is the object of the present suit. His stock was not transferred, as the certificate issued to him provided that it must be, to place the title to it in another person. But for-all the purposes of an action like the present one he continued to* be its owner and holder, and the person liable to respond to the creditors, under the construction which the statutes making use of" the same terms as were embodied in his certificate have received,, and which for like reasons should control this case. (Adderly v. Storm, 6 Hill, 624; Rosevelt v. Brown, 1 Kernan, 148 ; Mann v. Currie, 2 Barb., 294 ; Worrall v. Judson, 5 Id., 210 ; Richardson v. Abendroth, 43 Id., 162; Holyoke Bank v. Burnham, 11 Cush., 183.)

A prominent object of the law has been to afford the corporate-creditors, and the persons representing their interests, a convenient mode of discovering who were the owners and holders of the company’s stock that should be made to contribute to the payment of' its debts. As it has been administered, they may safely rely upon the title as it appears by the books of the company. If they could: not, they would be subjected to investigations and contests of a fruitless nature, which in many cases would prove to be- a snare instead of the benefit the law was intended to devise; for deviceswouid be sure to be invented to elude the efforts of creditors to obtain satisfaction of their debts, which in the end would seriously impair the remedy provided for their security. Corporations and their stockholders have been sufficiently provided with peculiar-privileges and advantages, as the laws relating to them have been enacted, and it should be no part of the purpose of the courts to relieve them from restraints which have been found to be so essential in the way of subserving and promoting the rights and remedies of their creditors. As the facts appeared, the defendant was liable for the amount claimed on account of the shares standing in his name on the books of the association. But fifty per cent, had been paid upon them, and the additional thirty demanded did not transcend the liability presented by his contract as well as the terms of the general statute of the State. If he was made the subject of a wrong bydhe intentional omission of others whose duty to him it was to do it, to transfer the certificate upon the books he must seek his indemnity from the persons to whom the performance of that duty was intrusted, and not from the creditors, or the receiver, who were in no sense parties to or responsible for that wrong. The verdict should be set aside, and a new trial ordered, with costs to abide the event.

Davis, P. J., concurred; Brady, J., dissented.

Yerdict set aside; new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Davis, P. J.;

license: Public Domain

text:
    THE BOARD OF COMMISSIONERS OF PILOTS, Respondent, v. FRANCIS PIDGEON, Appellant.

      Action to recova' a penalty for illegal dumping in New York ha/rbor — the intent of the defendant must be shown — 1857, ah. 671, § 7, as amended by chapter 414 o/1876.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes.
    This action was brought to recover a penalty for an alleged violation of section 7 of the act to establish regulations for the port of New York, passed April 15,1857 (ch. 671), as amended by chapter 414 of the Laws of 1876.
    Section 7 is as follows: “ Section 7. When any slip, basin, or shoal, in the port of New York, shall be dredged or excavated, it shall be the duty of the person or persons causing the same to be dredged, to cause the sand, mud, or other materials so dredged to be towed to sea, at a point at least three miles outside of Sandy Hook, or deposited at some place above high water mark; or to be-deposited behind a bulkhead for filling ; and any person willfully violating the provisions of this section shall forfeit and pay to the said commissioners the sum of five dollars for every cubic yard removed not so disposed of, one-half of which shall be retained by the commissioners.”

      On the trial of this action, the plaintiff showed that two scows loaded with dredgings taken from the front of the dock of the defendant, were taken in tow by the tug boat Frcmois Pidgeon, Jr., belonging to the defendant, carried out, and their contents dumped at points less than three miles outside of Sandy Hook. This made a prima faoie case against the defendant, which would subject him to the penalty unless satisfactorily answered or explained by him. The defense set up by the defendant was substantially that the dumping in question was done without his knowledge or consent, and in violation of his express orders. On the part of the defendant it was proved that the dredging was done by the Atlantic Dredging Company, who were for that purpose employed by the defendant; that A. S. Packard was the agent or managing man of that company, and that he made the contract with defendant to do this dredging. The defendant, while on the stand as a witness, was asked on his own behalf, “ What was the contract between Packard and yourself in reference to that dredging ? ” ' This was objected to as immaterial and irrelevant; the objection was sustained, and the defendant excepted.
    “ Q. Do you say that you made a contract with him to do this dredging?” Same objection, ruling and exception.
    “ Q. Do you know what was done by Mr. Packard under that contract between yourself and this dredging company?” Same objection, ruling and exception.
    After testifying that the Atlantic Dredging Company owned the scows that had been mentioned by the witnesses, he was asked, “ Did you, at any time, have them under your control ? ” This question was objected to, the objection sustained and the defendant excepted. He was then aSked, “ Whose men were employed on, or had charge of these particular scows ? ” This was objected to on the grounds previously stated, and also that the scows were in tow of the ^witnesses’ tug; the objection was sustained, and the defendant excepted. The defendant then further testified, that his tug towed those scows, and that he had given the captain of the tug instructions as to where he was. to tow the scows; that the instructions were that they were to be taken to Packard’s dump, and that he did not afterwards give him any other instructions as to where the scows were to be taken. He was then asked the following question : “ Had you any knowledge of those scows being-towed to any other place than this dumping ground of Packard’s, at the time it was done ? ” This was objected to on the grounds, previously stated, and on the ground that it was a question to be-submitted to the jury. The objection was sustained, and the defendant excepted. He was then asked : “ If the scows were dumped at any other point, was it done with your knowledge or consent ? ” Same objection, ruling and exception. He testified that he was away in the country, and did not see the captain of the-, tug on the 15th of August, when the alleged violation of .the law occurred, and was then asked : “ Under whose direction was your captain at that time ? ” This was objected to, the objection sustained, and the defendant excepted.
    One Joseph Conway was called as a witness for the defendant, and was asked: “ Hid A. S. Packard, at this time in question, have a dumping ground in New York harbor?” The question was objected to, the objection sustained, and the defendant excepted.
    The captain of the tug was called as a witness, and testified that he was such captain; that Mr. Packard did the dredging; that he did the towing; that he received instructions from Mr. Pidgeon as to where the scows were to be dumped or towed, and was directed to tow them to Packard’s dump, Jersey Plats; that defendant was not present on the 15th of August when he started with the scows mentioned by the plaintiff’s witnesses; that he did not see him at all on that day or receive instructions from him ; that he received directions from other persons at that time, with reference to towing those scows to other points.
    One Charles A. Oregan was also called as a witness, and he testified that he was in the employ of the defendant, and that he gave the captain of the tug instructions in regard to where the dredgings were to be deposited ; that he was working for the defendant in the capacity of book-keeper, and when defendant was away 'in the country he did his out-door business. He was asked, “ Where-did you direct him (the captain) to take those scows to ? ” The question was objected to, the objection sustained, and the defendant excepted.

      The court, at General Term, said : “ It seems to us that in view of the testimony given on the part of the plaintiffs and of the defendant, it was palpable error to have excluded the testimony called for by the questions above recited. The defendant had a xight to lay before the jury the fact that he had made a contract with the Atlantic Dredging Company through Mr. Packard ; that Mr. Packard had a dumping ground of hi# own on the Jersey Plats, where the material to be dredged was to be dumped ; that he had given instructions to the captain of the tugboat that the scows .should be towed there and dumped, and that he had no knowledge -of the scows being towed to any other place than Packard’s dumping ground; and that if the scows were dumped at any other point, it was done without his knowledge or consent; and that at the time ■the act for which he was prosecuted was done, the directions under which the captain acted were given by other persons and not by him. All of these were facts proper for the consideration of the jury on the question whether the act was done by the defendant, .and whether it was a willful act on his part. It certainly would be a defense to this action, if the captain of the tug, in willful violation of the instructions to tow the scows to Packard’s dump, and there deposit their contents, had of his own motion towed them ■put of the harbor, to the point described, and wrongfully dumped -their contents there. A principal is not liable to a penalty incurred by his servant in willful disobedience of his orders. The' responsibility in such case rests upon the servant; and the defendant had -the right to show, if he could, such a state of facts as would exculpate him from liability, and prove that it rested properly and legally upon the captain of the tug.
    “We are unable to see any good reason for talcing from, the consideration of the jury the facts sought to be proved under the questions above recited; and we think there must be a new trial, because of the exclusion of proper evidence on behalf of the defendant.”

      J. H. Stcmbrough, for the appellant.

      Wm. Allen Butler, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Barrett, JJ., concurred.

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


author: Brady, J.;

text:
    In the Matter of the Petition of GEORGE F. GANTZ, to Vacate Assessment for paving One Hundred and Forty-fifth street.

      One purchasing premises subject to an assessment thereon cannot apply to vacate it.

    Appeal from an order denying tbe application of the petitioner to vacate an assessment for One Hundred and Forty-fifth street.
    The court, at General Term, said: “ The petitioner purchased the premises subject to certain assessments affecting them at the time of the purchase, and the assessment he seeks to vacate was one of those then existing. His application rests upon proof of ownership and the alleged invalidity of the assessment only. "We have held in several cases of a similar character that such a purchase does not establish the fact that the vendee is an aggrieved party. This application comes within the principles of these decisions. (See Matter of Moore, 8 Hun, 513 ; Matter of Sawiders, 10 Weekly Dig., 351.) The order appealed from must, therefore, be affirmed, with $10 costs, and disbursements.”

      Michael Oamfield, for the petitioner.

      E. E. Lacombe, for the city.
   Opinion by

Brady, J.;

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

Order affirmed, with $10 costs,.and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES H. GILHOOLY, Respondent, v. THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF NEW YORK, Appellants.

      Trial of offices' by board of police commissioners — testimony may be taken before one, and afterwards submitted to and acted upon by all — a change in the constitution of the board pending a triad does not invalidate a removed made by the new board.

    Appeal from an order made at Special Term, reversing the action of the board of police commissioners in removing the relator.
    The relator was charged in this case, by the superintendent of police, with conduct unbecoming an officer. The charge was accompanied with specifications setting forth the particular acts and offenses of which he was alleged to be guilty. Personal service was made on the relator, of the complaint, charges, specifications, and notice of trial. On the day specified the relator appeared, and the charges were read to him. Proceedings to take testimony in the case were then had before Commissioner Smith. One of the witnesses was examined on that day, and the relator himself was sworn in his own behalf, and his testimony, as well as that of the witness, was taken down at length, as appears by the return. Further proceedings were adjourned to June 26, 1879, at which time the testimony was continued before Commissioners Smith -and Wheeler, the relator being present and cross-examining each of the witnesses. Afterwards, and on September 9, at a meeting of the board, at which all the commissioners then in office were present, the case of the relator was taken up for consideration. A change, in the meantime, had occurred in the commissioners by the removal of Commissioner Smith, and the appointment of Commissioner McLean; what occurred on that day is to be found in the order of the board which recites the making of the charges, and of the notice in writing, and the service thereupon upon the relator, requiring him to appear and answer such charges. It then proceeds to say that “ the said James H. Gilhooly, having appeared and answered to said charges at the time and place required in and by said notice, the said board, at such time and place, publicly heard the proofs and allegations in support of said charges; and the said James H. Gilhooly, having so appeared and a full opportunity to be heard in his defense having been afforded him, and due deliberation being thereupon had, it was found that the said James H. Gilhooly is guilty of the charges so made as aforesaid.” It was therefore adjudged by the board, that he be removed from the police department of the city of New York, all the commissioners voting “ aye.”
    The court, at General Term, said : “ The court below reversed the proceedings on the ground that Commissioner Smith, who had taken the testimony on the first day, and was present at the time the testimony was taken on the second hearing, was not present at the time of the final action of the board in removing the relator. It sufficiently appears that Commissioner Smith had ceased to be a member of the board of police commissioners before the time of the final action, and his place had been filled by the appointment of another; and the question presented is whether that fact prevented the final hearing and completion of the proceedings by the board of police commissioners, constituted as it was at the time of such final hearing.
    “In People ex rel. Farrell v. Poa/rd of PoUee Commissioners (20 Hun, 402), it was said by the judge who pronounced the opinion that, under the regulations of the board, the testimony might properly be taken before one or more of the commissioners in the presence of the officer charged, and notes of such testimony submitted for final consideration to the board. The point was not distinctly settled in that case, but it seems to us beyond question that such action by the board is in conformity to the statute, and to the rules and regulations of the board made under the statute. If it was necessary that a majority of the board should always be present on taking testimony on charges of this kind, it would be difficult, if not impossible, to perform the numerous and various functions and duties devolved by law upon that board. The statute intended to relieve the board from the necessity of all, or a majority of its members being present, by clothing them with power, by their own by-laws, to regulate the mode of taking testimony in such cases. The testimony having been taken lawfully and properly, as we think, it does not follow that the proceedings must fail because there happens, before the hearing of the board, to be a change in the incumbency of the office. It is the action of the board, and its final judgment, that determines the case, and if that seems to be regular in form, based upon testimony already duly taken before a member of the board, we see no sound reason why the board may not proceed to determine the case upon the evidence. The recital of the order shows that the relator was present and had his opportunity to be heard, and there was nothing in the case tending to show that that recital was not entirely correct.”

      Douglass A. levien, for the appellants.

      Fra/nlc A. Irish, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Barrett, JJ., concurred.

Order reversed, with $10 costs, and disbursements; and order of commissioners affirmed.


author: per Curiam.

text:
    ANDREW HARRISON and another, as Administrators, &c., Respondents, v. JOHN CLARK and THOMAS BENNETT, Appellants.
   Judgment affirmed.

Opinion

per Curiam.


author: Davis, P. J.

text:
    RUSSELL SAGE, Respondent, v. ANNIE F. TRUSLOW and others, Executors, &c. of SAMUEL W. TRUSLOW, Deceased, Appellants.
   Judgment affirmed, with costs.

Opinion by

Davis, P. J.


text:
    EDWIN ROGERS, Respondent, v. JASON L. DAVENPORT, Appellant.
   Order modified as directed in opinion, without costs to either party.

Opinion by

Davis, P. J.


text:
    WILLIAM SIEWERT, Respondent, v. DEDERICK HAMEL and others, Appellants.
   Judgment affirmed.

Opinion by

Davis, P. J.;

Brady, J., dissenting.


author: Brady, J.

text:
    In the Matter of GEORGE L. GANTZ, to Vacate an Assessment, &c.
   Order affirmed.

Opinion by

Brady, J.


text:
    MEYER THALMESSINGER, Appellant, v. THE BREWERS’ & GROCERS’ BANK, Respondent.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Brady, J.


text:
    CHARLES A. PUTNAM, Respondent, v. CHARLES K. PEABODY, Appellant.
   Judgment affirmed, with costs.

Opinion by

Brady, J.


text:
    LOEB v. WILLIS. VAN WAGENEN v. CLARK.
   Motions for re-arguments denied, with $10 costs.


text:
    In the Matter of BANNISTER.
   Motion denied, without costs.


text:
    UNION DIME SAVINGS BANK v. KOCH and others.
   Motion denied.

Opinion

per Curiam.


text:
    HOARE v. MILLER.
   Order, dismissing appeal vacated and set aside; the costs awarded on the dismissal of the appeal to abide the event; and the time within which the appellant should furnish the printed papers extended until the third Monday of January next, without costs of this motion to either party.


text:
    In the Matter of THE BROADWAY UNDERGROUND RAILWAY COMPANY.
   Motion denied, without prejudice to any further application on sufficient facts.

Opinion

per Curiam.


author: Barrett, J.;

text:
    In the Matter of HOPPER S. and ALEXANDER H. MOTT, to Vacate an Assessment, &c.
   Order affirmed, without costs.

Opinions by

Barrett, J.;

and by Davis, P. J., dissenting.


text:
    In the Matter of the Petition of the RECTOR, &c., OF THE CHURCH OF THE HOLY SEPULTURE, to Vacate an Assessment, &c.
   Order affirmed, with costs.

Opinions by

Barrett, J.;

and by Davis, P. J., dissenting.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN JOURDAN, v. CHARLES DONOHUE, a Justice of the Supreme Court, &c.
   Writ quashed, and prisoner remanded.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NATIONAL BANK OF COMMERCE and others v. THE TAX COMMISSIONERS OF THE CITY OF NEW YORK (and fifty-nine other cases).
   The costs upon the discontinuance are fixed at $10 in each case, as of costs to defendant for all proceedings before notice of trial, and $5 costs of motion in each case; in all, $15 for costs, and disbursements in each case.


text:
    In the Matter of RAYMOND.
   Order affirmed.

Opinion

per Curiam.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN RYAN, Appellant, v. STEPHEN B. FRENCH and others, Commissioners of Police of the City of New York.
   Re-argument ordered.


author: Talcott, P. J.:

text:
    CHARLES N. BAKER, as Executor, etc., of EMILY ALLEN, Deceased, Appellant, v. MARY E. BAKER, Respondent, Impleaded with others.

      Contempt — a pa/i'ty cannot be arrested as for a contempt, when penformamee of the judgment cam be enforced by execution.

    By the judgment entered in this action, brought to obtain a. construction of the will of one Emily Allen, the plaintiff, as her executor, was directed to pay to the defendant, her residuary legatee, the sum of $8,051.59, the residue of the personal estate in his hands, and to deliver to her a certain mortgage for $1,500, wit a the bond accompanying the same, if there were any such bond. Upon an affidavit showing a refusal of the plaintiff to comply with the provisions of the said judgment, after due demand made, an order was granted adjudging him to be guilty of a contempt and ordering a precept to issue to the sheriff to take the plaintiff and actually confine and detain him in the jail until he should be discharged by due course of law.

      Held, that, in so far as the order adjudged the plaintiff to bo guilty of contempt in refusing to deliver the mortgage to the defendant, it was proper and should be affirmed, but that as to the residue it should be reversed.
    A party cannot be adjudged guilty of a contempt, and confined to a jail as a punishment therefor, for any disobedience of a judgment or order, where by law an execution can be issued for the purpose of enforcing the judgment or order which has been disobeyed.
    Appeal from an order made at Special Term adjudging the plaintiff guilty of contempt.

      Wm. Tijfcmy, for the appellant.
    The judgment is for the payment of money, and the recovery of a chattel. An execution can be issued to enforce it, and a proceeding for contempt cannot be sustained. (Code of Civil Procedure, §§ 1240, 1241; old Code, § 285; Hosaclc v. Rogers, 11 Paige, 603; Lcmsmg v. Lcmsmg, 4 Lans., 377; Gray v. Cools, 24 How., 432; Randall v. JDusenbivry, 41 N. Y. Supr. Ct., 456; Matter of Abram E. Watson, 5 Lans., 466; Seamen v. Whitehead, 18 Hun, 64; Watson v. Nelson, 69 N. Y., 536 ; Fassett v. Tallmadge, 14 Abb. Pr., 188; Claris v. Bi/ni/nger 75 N. Y., 550; The People ex rel. Pease v. King, 9 How., 97, 99.)

      Gyrus Whit/ney, for the respondent.
   Talcott, P. J.:

This is an appeal from an order made at the Special Term of Jefferson county, held September 16, 1879. The order adjudged the plaintiff in contempt for refusing to deliver to Mary E. Baker the sum. of $8,051.59, found due from the plaintiff as executor of the will of Emily Allen, deceased, and also to deliver to her a certain mortgage for $1,500, with the bond, if any, accompanying the same. This amount had been found due to the said Mary E. Baker, and it was held that she was entitled to the mortgage, in a certain action, which we infer was originally commenced by the plaintiff as executor as aforesaid, to obtain a construction of the will of Emily Allen, and more particularly to ascertain and have it judicially decided whether the said Mary E. Baker was the person intended by the testator, under the description and name of “ my beloved niece, May E. Allen.”

After the principal question was decided in favor of Miss Baker, and the plaintiff, as executor of the will, was ordered to account to and pay over to the said legatee the legacy mentioned in the will, and also that the said executor account, after the entry of the judgment, before the surrogate of the county of Oswego, or before a referee appointed for that purpose, as the court should determine. The Hon. Leroy Morgan was, upon the stipulation of the parties, appointed such referee to take such accounting, pursuant to the said judgment.

The parties appeared before the said referee and an accounting was had, and the referee reported the results thereof to the court.

By the order of reference it was provided that on filing the report of the referee a judgment might be entered thereon, as in cases where the whole issue is referred without any application to the court, and it was further ordered that the judgment so entered may be enforced in the same manner as judgment in the Supreme Court; and the payment of any amount found due Mary Baker, defendant and legatee, may be enforced as fully and amply as the said Supreme Court can empower and authorize the same.” These provisions, it is presumed, were contained in the stipulation under which the matter was referred, which is not contained in the printed case submitted to us on the appeal, but was referred to on the motion.

The said referee reported a balance in the hands of the executor belonging to Miss Mary E. Baker of $9,551.59, consisting in part of a bond and mortgage described, and the residue, “ or most of it,”, on deposit in the executor’s name in some of the banks of the city of Oswego, and that “ the said Mary E. Baker, residuary legatee under the provisions of the will of the testatrix, is entitled to a judgment directing that the balance should be paid over to her, * * * and requiring and adjudging that the executor, Charles N. Baker, deliver over to the said legatee the said mortgage and the accompanying bond, if there is one, mentioned in the inventory of the estate, * * * and that said executor pay over to the said legatee Mary E. Baker, the sum of $8,051.59, balance of the legacy found due on this accounting to the said legatee Mary E. Baker, and such further sums as he may have received, or shall hereafter receive, for interest on two government bonds of $500 each, .after deducting therefrom one per cent commissions, and adjudging that all moneys received from collections of securities belonging to the estate, which have come into the hands of the said executor and which remain subject- to his order or control, be deemed and declared to be held by him in trust for the said residuary legatee Mary E. Baker, until the full amount found due her upon this accounting be fully paid and satisfied.”

Thereupon, on the 28th of July, 18J9, a judgment was entered in the Supreme Court, in the office of the clerk of Oswego county, by which, after various recitals of tbe proceedings, it was adjudged and decreed “ that the said executor, Charles N. Baker, deliver to the said legatee, Mary E. Baker, the said mortgage of $1,500 above mentioned, with the bond accompanying the same, if there is any sncli bond, and that he pay to her the sum of $8,051.59, the residue of the personal estate as above fonnd to be due to said legatee, and in addition thereto the amount of accrued interest on said two United States government bonds, less one per cent, his commission on the same.”

Afterwards at a Special Term, on affidavit tending to show a demand on Baker of the payment of the. $8,051.59 in cash and of the said bond and mortgage for $1,500, and 'his refusal to comply with the said judgment, it was ordered and adjudged “ that the said Charles N. Baker, as executor of the last will and testament of Emily Allen, deceased, be and he was thereby judged in contempt ’ for refusing to pay to the defendant, Mary Baker, the sum of $8,051.59 trust funds in his hands, and for refusing to deliver to the said Mary Baker the mortgage; ” and it was further ordered “ that a precept be issued out of and under the seal of this court, directed to the sheriff of Oswego county, commanding him to take the body of the said Charles N. Baker, executor of the last will and testament of Emily Allen, deceased, if he shall be found in your county of Oswego, and commit him to the common jail of the said county of Oswego, and to keep and detain him therein, under his custody, until he shall pay the sum of $8,051.59, as required by said judgment of July 28th, 1879, entered and docketed in the Oswugo county clerk’s office as aforesaid, and until he, said Charles N. Baker, such executor, shall also deliver to Mary Baker, defendant and legatee, the said mortgage * * * * and bond, if any accompanying the same, as required by the said judgment of July 28, 1879, etc., with ten dollars costs of this motion, together with the sheriff’s fees on such precept.”

Erom the last mentioned order and the whole thereof, this appeal is taken. It is conceded on both sides that the precept ” authorized by the order is one which will require the prisoner to be actually confined and detained witTvm the jail until he is discharged by due course of law, under section 157 of the Code of Civil Procedure; and the question arises, whether a process having this consequence, and not permitting tbe prisoner to enjoy the jail limits, upon giving security to the sheriff, as provided by law, can be issued by the Supreme Court, upon the ground that a refusal to comply with a judgment which directs the payment of a sum of money, or awards a chattel to either party, is a species of a contempt of the court of which the party guilty of such refusal may be convicted; and, thereupon, a process may issue to the sheriff of the proper county to detain him within the jail.

There is certainly some confusion upon this subject, created by the apparently conflicting decisions of the courts. But, as we understand the effect of the holding in the matter of Watson v. Nelson (69 N. Y., 536), considered in connection with the ease of The People v. Cowles (3 Abb. Ct. of App. Dec., 507) and Park v. Park (9 Weekly Dig., 391), and O'Gara v. Kearney (77 N. Y., 423), we think the law on the subject, as finally settled, is to the effect that the party proceeded against is not liable to such a precept, as it is considered the order in this case authorized, for any disobedience where by law an execution can be issued for the purpose of enforcing the judgment or order which has been disobeyed.

In the Matter of Watson (supra), Rapallo, J., says, alluding to subdivision 3 of section 1 of 2 Revised Statutes, 534, “ Proceedings as for Contempts to Enforce Civil Remedies“ This is a plain declaration that punishment as for a contempt cannot be inflicted in cases where execution can issue, viz., on a final decree for a sum of money.” And see O’Gara v. Kearney (77 N. Y., 423).

In the case of Parle v. Park (9 Weekly Dig., 391) the contempt for which the defendant was proceeded against was the disobedience of an order requiring the defendant to give security for the support and maintenance of the plaintiff,' as directed by a decree of divorce, for which execution could not be awarded. (See Strobridge v. Strobridge, 21 Hun, 288.)

As we understand this case, the finding is of a balance due from the plaintiff, as executor, to Mary E. Baker, which includes the sum of $1,500, the amount of the bond and mortgage, which he is required specifically to deliver. The judgment is therefore one, “ a part of which cannot be enforced by execution,” as prescribed in section 1240 of the Code of Civil Procedure, because, although it directs the delivery of a specific chattel, the action in which- the judgment was rendered was not “ an action to recover a chattel ” under subdivision 3 of section 1240. This circumstance, therefore, leads to the affirmance of that part of the order appealed from declaring the plaintiff in contempt for refusing to deliver to the said Mary E. Baker the mortgage, with the bond, if any, accompanying the same, and that a precept be issued, as provided in the order appealed from, until the said Charles N. Baker shall deliver to the said Mary E. Baker the said mortgage and bond, if any, accompanying the same, and the payment of the sheriff’s fees, etc.

' The order appealed from is therefore modified by affirming it so far as relates to the delivery of the bond and mortgage, and reversed as to the residue, without costs of appeal to either party.

Smith and HaibdiN, JJ., concurred.

Ordered accordingly.


author: Taloott, P. J.:

text:
    JOSEPH DART and ERASTUS D. DART, Respondents, v. WILLIAM C. FITCH, Appellant.

      Buffalo mechanics’ lien lam — chapter 305 of 1844, chapter 872 of 1871 — the notice must contain the facts required in a complaint— the lien ceases unless the judgment is ent&red within a yea/r— cowrt cannot extend, the time.

    The plaintiffs having furnished materials to one Sliker, who had contracted to erect a huilding upon land in the city of Buffalo belonging to the defendant, filed a notice of lien against the premises under section 1 of chapter 305 of 1844, as amended by chapter 872 of 1¿71. The notice served by him, as required by section 6 of the act of 1844, in instituting proceedings to foreclose the lien did not allege that there was anything due, or to become due, to Sliker on his contract with the defendant, or that the defendant was in any way indebted, or was to become indebted, to him thereon.

      Held, that the notice required by the act took the place of a complaint, and was subject to the rules governing pleadings in other actions.
    That as it did not show that the defendant was or would become indebted to Sliker under the contract, it did not state facts sufficient to constitute a cause of action and should have been dismissed.
    The notice was filed in the clerk’s office on October 25, 1877. On October 21, 1878, the report of the referee in favor of the plaintiffs was filed, and on October twenty-fifth judgment in their favor was entered therein. On November twenty-third an order was made setting aside the judgment as prematurely entered, and directing that a judgment be entered nunc pro tunc as of October 26, 1878.

      Held, that under section 6, of chapter 872 of 1871, the lien expired, unless judgment was entered within one year from the time of the filing of the notice.
    That though the court had power to order its judgments to be entered nunc pro tuna, it could not thereby extend the time limited by the statute within which the lien must be prosecuted to judgment.
    Appeal from a judgment in favor of the plaintiffs entered upon the report of a referee. The referee’s report was filed on October 21, 1878, and a judgment was entered thereon on October twenty-fifth. On November twenty-third the judgment was set aside as prematurely entered, and a judgment ordered to be entered mono pro tuno as of October twenty-sixth. The notice of lien was filed in the county clerk’s office October 25, 1877.

      W. G. Fitch, in person, for the appellant.
    The plaintiffs could not recover without affirmative proof that money had become due from the defendant to Sliker. (Gox v. Broderick, 4 E. D. Smith, 721; Ferguson v. Burke, id., 760, 766; Baily v. Johnson, 1 Daly, 61; Haswell v. Goodchild, 12 Wend., 373.) The facts necessary to be proven, in any case, must be stated in the notice or complaint. (Broderick v. Poillon, 2 E. D. Smith, 554; Quimm, v. The Mayor, etc., id., 558; Conklmg v. Gcmdall, 1 Keyes, 228; Craig v. Swim er'ton, 3 Weekly Digest, 151; Thomas v. Industrial JJnimersity, 71 Ill., 310-313; Brown v. Lowell, 79 id., 484; Gity of Grarnfordsville v. Irwi/n, 46 Ind., 439; Shorn v. Alien, 24 Wis., 563 ; Miner v. Langcm, 2 Weekly Digest, 482; Sampson y. Búfalo, eto., B. B. Co., 6 id., 74.) As, between defendant, as the alleged owner and plaintiffs as sub-contractors, the authorities hold, and they are numerous and undisputed, that no judgment can be entered after the expiration of the year. (3 R. S. [6th ed.], 810, § 3; O’Dormell v. Bosenberg, 9 Alb. Law Jour., vol. 7, p. 333; 14 Abb. [N. S.], 59; CoUe v. O'1 Keel, 3 Alb. Law Jour., 13; Huxford v. Bogardus, 40 How., 94; Benton v. Wiekwire, 54 N. Y., 226; People ex rel. v. Hall & Lamb, 3 Lans., 134; Grant v. Vanderoook, 57 Barb., 165; Freeman v. Gram, 3 N. Y., 305.)

      H. G. Bay, for the respondents.
   Taloott, P. J.:

Tbe judgment ordered by tbe referee, wbicb is appealed from in this ease, adjudges that tbe plaintiffs, wbo aré materialmen, proceeding under chapter 872 of tbe Laws of 1871, have a lien on tbe premises in question, for certain materials found to bave been furnished by tbe plaintiffs to one ITenry Sliker, under a contract made by the defendant with said Sliker, to erect a certain building in tbe city of Buffalo for tbe defendant. Tbe legislation in reference to “mechanics’ liens” is in such a confused state that it is difficult to ascertain what law creating and -enforcing such bens is in force, so far as regards tbe city of Buffalo.

Tbe first section of tbe act of 1871 (made by section 12, applicable to tbe city of Buffalo only) assumes that tbe act of 1844 is in force and purports to be an amendment of that act, and tbe counsel for both parties seem «to assume that chapter 305 of tbe Laws of 1844, entitled “ An act for tbe better security of mechanics and others, erecting buildings and furnishing materials therefor in the several cities in this State (except tbe city of New York) and tbe villages of Syracuse, 'W’illiamsburgh, Geneva, Canandaigua, Oswego and Auburn,” is applicable to tbe city of Buffalo, in connection with tbe act of 1871, before referred to, which, by section 12, is made applicable to tbe city of Buffalo alone.

By tbe act of 1844, section 1, it is provided, in substance, that any person wbo, in pursuance of an agreement with any contractor, shall, in conformity with the terms of tbe contract of the latter with tbe owner, perform any labor or furnish any materials in building any bouse, shall bave a lien for tbe value of such labor and materials, provided that such owner shall not be obliged, for or on account of such building, etc., to pay any greater sum or amount than tbe price stipulated therefor in tbe contract between tbe owner and tbe contractor; and tbe act of 1871 provides, in substance (section 1), that the filing of tbe specifications and statements, and serving notice thereof, may be made at any time, prior to four months after such labor shall bave been performed, or material furnished, for the amount of tbe labor performed or materials furnished, whether before or after such filing and service. By section 4 of tbe act of 1871 it is provided, in substance, that tbe person so furnishing material, may, at tbe time of giving tbe notice as prescribed in the act, demand of tire owner tbe terms of the contract between the owner and contractor, and the amount due and unpaid to the contractor, and it imposes a liability on the owner in case of any loss sustained by the materialman for any neglect to furnish the statement, or for any false statement. By section 6 of the same act it is further provided, in substance, that proceedings may be instituted to enforce such lien at any time after the perfecting thereof, by the filing of the specifications and service of the notice, within one yea/rfrom the time offili/ng the same, by serving the owner with a verified copy of such specifications, with a notice containing a statement of the facts constituting such lien, and gives the owner twenty days after such service to answer the same. The act of 1844, together with the act of 1871, and all other statutes intended to secure the liens of mechanics and materialmen, are intended to be so guarded as carefully to protect the owner from being required to pay to the parties furnishing labor or material for a building, any amount beyond that in tvhich he is indebted to the contractor, unless he shall neglect to make the statement of the terms of the contract, required in section 4, of the amount due and unpaid thereon, or shall make a false statement in reference thereto.

The notice required by section 6, chapter 872 of 1871, “ containing a statement of the facts constituting such lien,” answers the place of a declaration or complaint to which the owner may answer or demur. So, in section 6 of the law applicable to fifty-five counties (3 B. S. [6th ed.], 792), the proceeding to enforce the lien is called an action commenced by serving a notice containing a statement of the facts constituting the claim.”

In the notice in this case the claimants allege the furnishing the materials to Henry Sliker, and that they were used by him in the erection and completion of the defendant’s house under his contract with the defendant, but they nowhere aver that anything is due, or even to become due, to Sliker on the contract with defendant, or that the defendant is in any way indebted to, or to become indebted to, Sliker. »

The defendant in his answer denies any such indebtedness, and at the commencement of the reference moved to dismiss the complaint or notice, by the service of which the action was commenced, on the ground that it does not state facts sufficient to constitute a cause of action, for the reason that it does not show that at or since the time of filing the notice of lien a payment was or is due from the defendant to the contractor Sliker.” On the denial of the motion the defendant excepted to the decision. We think the defendant was correct in his objection to the complaint. "Before any judgment could have been rendered against the defendant establishing a lien on his property it certainly should be averred the defendant then was, or under the contract would become, indebted to Sliker, otherwise there could be no warrant for instituting proceedings against the defendant and his property more than against any other person in the community; and the want of such allegation is, we think, a fatal defect in the complaint or notice.

It does not “ contain a statement of the facts constituting ” any lien, or entitling the claimant to any judgment, but is wholly defective in matter of substance.

The complaint is subject to the rules governing pleadings in other actions. (Duffy v. Brady, 4 Abb. Pr., 432; Craig v. Swinerton, 8 Hun, 144; Bailey v. Johnston, 1 Daly, 61; Haswell v. Goodchild, 12 Wend., 373; Doughty v. Devlin, 1 E. D. Smith, 625.) Unless something is due from the owner to the contractor no valid lien can be. created. (Sampson v. Buffalo, etc., R. R. Co., 13 Hun, 280; Meyer v. Beach, 6 Weekly Dig., 409; Cox v. Broderick, 4 E. D. Smith, 721; Ferguson v. Burk, id., 760, 766; Bailey v. Johnson, 1 Daly, 61; Haswell v. Goodchild, 12 Wend., 375 ; Broderick v. Poillon, 2 E. D. Smith, 554; Quinn v. The Mayor, id., 558; Conkling v. Gandall, 1 Keyes, 228.)

The act of 1871 (§ 6) provides that proceedings may be instituted to enforce the lien “ at any time after the perfecting thereof by the filing of the specifications and serving of the notice, and withvn one year from the time offlUng the same.”

The plaintiffs in this case, as it appears, filed their notice in the clerk’s office of Erie county on the 25th of October, 1877.

The judgment was prematurely entered according to the decision of the Court of Appeals in Marvin v. Marvin (75 N. Y., 240), having been entered before the expiration of four calendar days after the filing of the decision. • On motion it was set aside on the 23d of November, 1878, but the justice at Special Term who made the order setting the same aside, ordered the judgment to be entered nunc pro tunc as of the 26th of October, 1878, at which time it could regularly have been entered. This court had decided in Colie and another v. O'Keel (3 Alb. Law Jour., 13), following the case of Freeman v. Cram (3 Comst., 305), that the lien expires in one year from its commencement, under the mechanics’ lien law applicable to the city of Buffalo. (People ex rel. Lewis v. Lamb, 3 Lans., 134; and see Mathews v. Daley, 7 Abb. Pr. [N. S.], 379; S. C., 38 How. Pr., 382.) It is stated that the order, directing the entry of the judgment nunc pro tunc as of the 26th of October, 1878, has been appealed to the Court of Appeals and there affirmed. Though the justice who made the order at the Special Term was, perhaps, moved to allow the judgment to be entered nunc pro tunc in view of the possibility that thereby the lien of the plaintiffs might be saved, yet it does not appear that either of the appellate courts entertained that supposition.

The Supreme Court had the power to order its judgment to be entered nunc pro irme, and the order would be affirmed by the Court of Appeals on the ground that it was a matter which appertained to the practice in the Supreme Court, and the order was not necessarily erroneous. But it does not appear that the affirmation of the order by the Court of Appeals involved any consideration of the supposed reason which may have induced the justice at the Special Term to order the judgment entered nunc pro tunc. It perhaps was a sufficient reason that such an order would enable the materialman to present the question as to its effect in the regular way, on a trial on which exceptions could be taken and the question be deliberately adjudicated.

That question has now arisen and is presented by this case.

It is well settled, both upon principle and by authority, that these mechanics’ liens as created by statute, are the mere creatures of the statute creating them. They confer a new right, unknown to the common law, and the statutes creating them are to be strictly construed. (Roberts v. Fowler, 4 Abb. Pr. Rep., 263; Rollin v. Cross, 45 N. Y., 767.)

This being the rule by which these statutory liens are to be construed, we are of the opinion that the limitation prescribed by the statute cannot be extended beyond the year by. the court, and what it cannot do directly it cannot do by indirection, that is, by an order which the court has the general power to make, but which, by its collateral operations would extend the time limited by the statute within which the lien must be prosecuted to judgment.

This, it has been held, the court ^cannot do in regard to the time of appealing. (Caldwell v. The Mayor, etc., 9 Paige, 572 ; Bank of Monroe v. Widner, 11 id., 529 ; Stone v. Morgan, 10 id., 615 ; Renouil v. Harris, 2 Sandf., 641; Bryant v. Bryant, 4 Abb. Pr. [N. S.], 138.)

As any new trial would be useless, the time to enter the judgment having expired, the judgment is reversed, with costs to the appellant.

Sierra and Hardin, JJ., concurred.

Judgment reversed and judgment ordered for the defendant, with costs.


text:
    WILLIAM L. JONES, as Executor, etc., of THEODORE BUTLER, Deceased, Appellant, v. THEODORE H. BUTLER, Respondent.

      Pa/rinershi/p — when one pa/t'tner is liable fot' the capital contributed by his copa/rtner and lost in the business.

    In an action for an accounting, brought by the executor of a deceased partner against the survivor, it appeared that the firm was insolvent. By the articles of copartnership it appeared that the deceased partner had contributed stock estimated to be of the value of $15,775.48, and the other partner, stock estimated to be of the value of $3,363.77. All profits were, by the terms of the copartnership agreement, to be equally divided, and “all losses happening to the said firm, whether from bad debts, depreciation of goods or any other cause or accident, and all expenses of the said business,” were to be borne equally.

      Held, that the plaintiff was entitled to recover from the surviving partner one-half of the sum by which the estimated value of the stock contributed by his testator exceeded that of the stock contributed by the defendant.
    Appeal from a judgment dismissing the complaint herein, entered upon the report of a referee,

      Wm. L, Jones, in pro. per., for the appellant.

      II. O. Day, for the respondent.
   Talcott, P. J.:

This is an action for an accounting brought by the executor of a deceased copartner against the surviving partner.

The copartnership was in the book and stationery business which had been carried on for many years in the city of Buffalo, first by Theodore Butler, deceased, who afterwards took his son, the defendant, Theodore H. Butler, into partnership, and the business was thereafter continued under the copartnership name of “ Theodore Butler & Son.” "Written articles of copartnership were executed from time to time between the parties, which provided that each party should put in as capital the amount of his then interest in the stock of goods, and other assets on hand, which were, though old and shop-worn, inventoried for the purpose of specifying the amount of capital advanced by each party at their cost price. On the 21st of February, 1873, the parties executed articles of copartnership, in which were set forth the terms of their copartnership, which it was provided should commence on the 1st day of February, 1873, and should continue for the period of three years. Each party thereby agreeing to contribute to the funds of the copartnership as follows:

Theodore Butler, stock at $13,775.48, and Theodore H. Butler, stock at $3,363.77, the same being the amount of stock, notes, accounts and cash on hand on the 1st day of February, 1873.

It was further provided by the said articles as follows: “ All profits which may accrue to the said copartnership shall be divided equally, and all losses happening to the said firm, whether from bad debts, depreciation of goods, or any other cause or accident, and all expenses of the said business shall be borne by the said partners equally.” And it was further provided that neither party should be entitled to interest on his share of the capital invested, and that at the expiration of the aforesaid term, or earlier dissolution of this copartnership, if the said parties, or their legal representatives, cannot agree in the division of stock then on hand, the whole copartnership effects, except the debts due the firm, shall be sold at public auction, at which both parties shall be at liberty to bid and purchase, like other individuals, and the proceeds shall be divided after paying the debts of the firm as per capital-invested.”

The business of the firm was carried on for nearly three months after the time fixed for the expiration of the partnership, without the execution of any new articles, when the senior partner died on the 26th of April, 1876. The copartnership was in straightened circumstances when the senior member died, and was probably insolvent at that time. After tire decease of the senior partner the survivor continued the business, closing out the-stock and collecting the accounts due the firm, and paying off the indebtedness as fast as possible. No letters testamentary were issued until some ten months after the decease, of the senior partner, and the survivor made purchases of some new goods, such as were necessary to facilitate the sale of the old stock in the name of the firm.

After letters testamentary were issued to the plaintiff, some misunderstanding seems to have arisen between the plaintiff and the survivor, and the plaintiff, as executor, on the 24th of February, 1877, gave the defendant notice that he could not consent to have the defendant continue to carry on the business of the late firm, and demanded an account of the partnership property and effects of the late firm ; and on the 26th of February, 1877, the surviving partner sold the entire balance of the stock of goods, by private sale, to one S. S. Guthrie, for the sum of $2,300.

This suit was commenced by the executor of the senior partner for an accounting and settlement of the affairs of the said copartnership. Such an accounting has been had, and is rendered by the defendant in different schedules under appropriate headings. The plaintiff neither surcharges nor falsifies any of such accounts, and takes no exception thereto.

The referee finds, on a summary of the whole accounts, that the whole amount of the assets of the said copartnership has been applied by the defendant in payment of the debts of the firm and the expenses of closing up the copartnership, and there still remained unpaid of the indebtedness of the said copartnership the sum of $160, and reports that the defendant is entitled to a judgment against the plaintiff for a dismissal of the complaint, and for the costs of the action to be adjusted, and a judgment has been entered accordingly.

It was stipulated between the parties before a referee, that, Theodore H. Butler’s services, in closing up the copartnership business, were of the value of $2,000, subject to the legal objection that a surviving partner is not entitled to compensation for his services in winding up the copartnership business. This is the general rule; and, as we understand the case, no allowance was made in this ease to the surviving partner for his services in this respect. Amongst the schedules of account rendered, it was shown what amount of new goods had been purchased by the defendant after the death of the senior partner, for the purpose of facilitating the disposition of the old stock, together with an account of the sales thereof, showing a profit made on such sales of about $1,000, which had gone into the general funds of the partnership and been used by the surviving partner in paying the debts of the firm, and in the expenses of carrying on the business. It is a rule of law that death puts an end to the authority of the surviving partners to carry on for the future the partnership business. It is, therefore, the duty of the surviving partners to cease altogether from carrying on the trade or business thereof; and if they act otherwise, and continue the trade or business, it is at their own risk, and they will be liable at the option of the representatives of the deceased partner to account for the profits made thereby, or to be charged with the deceased partner’s share of the surplus besides bearing all the losses. (Story on Partnership, § 343.)

This case, however, resulted in no surplus in which the deceased was entitled to share, and the allowance to his estate of the profit arising from the continuance of the trade, so far as it was continued, was the most beneficial disposition of the matter which could have been made.

It is, however, insisted that the referee erred in the judgment he has directed, in this, that he did not allow the plaintiff to recover judgment against the defendant for the proportionate value of the loss which was sustained by the concern from the depreciation of their stock in trade, and it seems that herein the referee erred.

The articles of copartnership provide that the profits were to be equally divided, and the losses happening to said firm, whether from bad debts, depreciation of goods, or any other cause or accident, and all the expenses of the business were to be equally borne. Tlie losses in this case probably happened from a depreciation of the old stock on hand and from sorfte bad debts. The result of the judgment ordered by the referee is to'throw the largest portion of the loss upon the senior partner, instead of dividing it equally between the two. It is to be assumed that so far as the loss was in consequence of the depreciation of the stock, it was equally distributed upon the stock contributed by both parties.

Although it is said that partners contributing capital put the amount contributed by each of them at risk, and if it be lost there is no remedy, and although this may be correct as to third persons, yet, as between the parties themselves, the agreement between them must govern.

Here was an agreement that although each party contributed the capital in different proportions, yet they were to share equally in the profits and in the losses. Here has been a loss of the whole capital. That loss, therefore, is to be equally divided between the parties, otherwise the partnership agreement is, to use the expression quoted in some of the authorities cited, construed against the party advancing the largest share of the capital, as if it was upon the principle, “ heads I win, tails you lose.”

We think, therefore, that under such an agreement, requiring that each party should bear an equal share of the losses, the loss of capital is to be distributed equally between the two; and that, if in taking an account, it appears that one party has lost more capital than the other, the only way to make an equal distribution of the loss is by charging the other with an amount which will make the losses equal. (Nowell v. Nowell, L. R., 7 Eq. Cases, 538; Whitcomb v. Converse, 119 Mass., 38; Neudecker v. Kohlberg, 3 Daly, 407; Raymond v. Rutnam, 44 N. H., 160.) Assuming the valuation at which the goods belonging to each party was estimated at the time of forming the copartnership, i. e., at the cost prices, the loss of the senior partner was $15,775.48 and that of the survivor $3,363.77. These prices at which the goods were estimated or valued, at the formation of the partnership, was probably i;esorted to as mere matter of convenience, and do not represent the actual value at that time. Yet having been estimated and agreed upon at the time, the amounts for the purpose of a liquidation of the partnership affairs, and in view of the probable impossibility at this time of ascertaining the actual value of the goods contributed by each party, must be assumed to be correct, and to aetually represent the interest of each partner in the capital of the firm.

Under the agreement, the executor of the deceased partner can require of the survivor to be indemnified for one-half of the loss sustained by the estate of the deceased, for his jiroportion of the loss sustained by the loss of the capital of the concern, and in our judgment the executor is entitled to be allowed for one-half of the amount lost by the estate of the deceased in excess of the amount lost by the survivor, in order to make an equal division between the parties of the losses sustained by the copartnership. The judgment rendered in the case, however, seems to wholly ignore that provision of the contract which provides not only that all profits, but that all losses shall be borne by the parties equally. By reason of the failure of the referee to apportion the losses equally between the partners, we think the judgment is erroneous, and must be reversed and a new trial ordered.

Smith and IíaediN, JJ., concurred.

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


text:
    JOSEPH BROOKS, RESPONDENT, v. LEVI HEY, Appellant, Impleaded, etc.

      Accommodation note — when the failure of the payee to comply with a prior agreement is no defense to the accommodation maker.

    When a note is made for the general accommodation of the payee and no restrictions are placed upon him as to its use, he may use it in any way which seems beneficial to him, provided it is not negotiated usuriously, and liis failure to apply the proceeds according to a prior agreement with the maker constitutes no defense to the latter in an action brought against him thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Osear Craig, for the appellant.

      Frederick L. Mcmnmg, for the respondent.
   Talcott, P. J.:

Tbe defendant is sued as tbe maker of a note for $500, payable to tbe order of Jobn R. Kreutter, at tbe Flour City National Bank, three months after the date thereof. Kreutter is also sued in this action as the indorser of the note, but made default, and judgment has passed against him by default. Hey sets up in his answer that the note was made by him for the accommodation of Kreutter, to enable him to procure stock in his business, and alleges that Kreutter promised if Hay would make the notes, that he, Kreutter, would send the defendant money or stock, consisting of rags, in which both parties were dealers, sufficient to enable Hey to take up the note, but has not done so. The note was negotiated to the plaintiff by Kreutter without any notice to the plaintiff of the circumstances under which it had been given, and he received it, supposing it was business paper made for a valuable consideration. The referee finds that at the time the note was made and delivered, it was agreed by Kreutter that the avails should be used in purchasing or for payment for rags, or that he would send Hey sufficient rags to meet and pay the note, or, in case he did not, that he would send money sufficient to make up any deficiency. The note was indorsed to the plaintiff before maturity, who at the time canceled an open book account he had against Kreutter for forty-eight dollars, surrendered a note of Kreutter’s for $100, and interest, indorsed by one Harrington. He also canceled a elaim for $160 and interest which he had against Kreutter, for the note of a third party, which the plaintiff had previously transferred to Kreutter, and which Kreutter had collected, and also delivered up to Kreutter certain drafts which the latter had given to certain peddlers for rags, and which the plaintiff had paid, in all amounting to upwards of $180 or $190, and paid said Kreutter the balance in cash.

The referee does not find that there was any restriction imposed on Kreutter as to the manner in which he should use the note. On the contrary, being requested on the settlement of the case to find that the note in suit was given for the express purpose of enabling the defendant Kreutter to buy new stock and for said specific purpose only,” he refused so to find, and refused to find “ that the note was diverted from said specific purpose by said Kreutter without tbe consent of Hey.” There was evidence sufficient to sustain the referee’s findings and refusals to find.

The note having been made for Kreutter’s general accommodation, and no restrictions having been placed upon him as to its use, he was at liberty to use it in any way which seemed beneficial to himself, provided it was not negotiated usuriously. (Seneca Co. Bank v. Neass, 3 Comst., 442; Comstock v. Hier, 73 N. Y., 269; Archer v. Shea, 14 Hun, 493.)

The failure on the part of a payee of an accommodation note to appropriate the proceeds according to a prior agreement, is no defense for the accommodation maker, otherwise there could bo no recovery on an accommodation note. Where there is no restriction as to the use which the payee shall make of the note, it is sufficient if he receives a full and legal consideration for it when he transfers it.

The judgment should be affirmed.

Smith and HaediN, JJ., concurred.

Judgment affirmed.


author: Taucott, P. J,. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS ECKLER, Respondent, v. ALONZO CLARK, Appellant.

      Trial by ¡¡wry — when the jxury may consist of six pei'sons — Const., an't. 1, § 3— 1884, chap. 78 — 3 JR. S. {5th ed.), 934, chap. 30, tit. 8, and. 7.
    Chapter 78 of 1884, providing that one arrested for disturbing a religious meeting may demand to be tried by a jury to consist of the same number of jurors, to be summoned in the same manner as is provided for the summoning of jurors before Courts of Special Sessions, is valid; and the fact that the jury before which the trial is to be had is to consist of six instead of twelve jurors, does not render the act unconstitutional, as in violation of section 3 of article 1 of the Constitution, providing that “ the trial by jury, in all cases in which it has heretofore been used, shall remain inviolate forever.”
    Appeal from an order made at Special Term reversing and setting aside, upon the return to a writ of certiorari, a conviction of tbe relator by a justice of tbe peace for disturbing a religious meeting.

      J. M. Thompson, for tbe appellant.

      E. R. Reynolds, for tbe respondent.
   Taucott, P. J,. :

Tbe writ of oertiorari in this case brings up proceedings against tbe relator under tbe statute providing against “ tbe disturbance of religious meetings.” As tbe statute was originally enacted it provided for tbe punishment of offenders against its provisions by summary conviction before any justice of tbe peace of tbe county, or mayor, alderman or recorder, or other magistrate of any city. In 1834, an act was passed (Laws of 1834, chap. 18) which provided in such cases that, before the court shall proceed to investigate tbe merits of tbe cause,” it shall be lawful for tbe party complained of to demand of such court that be be tried by a jury; and tbe statute goes on to provide for tbe summoning of a jury of “tbe same number of jurors, and in the same manner as is provided for the summoning of jurors before Courts of Special Sessions,” and that tbe said court shall proceed to empannel a jury for tbe trial of said cause in tbe same manner as “ prescribed in the act providing for trials by jury in Courts of Special Sessions.”

Tbe statute providing for trials by jury, when demanded in the Court of Special Sessions, provides for summoning twelve persons as jurors, out of which six are to be drawn in the manner prescribed in tbe same act, who are to constitute tbe jury to try tbe case. It appears from tbe return of tbe magistrate in this ease that, on being notified by tbe latter that be bad a right to be tried by a jury, tbe relator said that be wanted a jury trial.”

The jury having been summoned and drawn as prescribed by the statute, and some of tbe persons so drawn having been peremptorily challenged by each side, and others drawn in their places, the defendant and the counsel for the people, both having expressed themselves as satisfied with tbe jury as then drawn, the trial proceeded and resulted in the conviction of the relator, who was fined ten dollars and the costs.

The justice who held the Special Term before which the certiorari was returnable, reversed the conviction upon the sole ground that the statute under which the proceedings and conviction were had was unconstitutional, for the reason “ that it requires the accused to submit to a trial by a jury of only six persons,” whereas the Constitution secured to him the right to a tidal by a jury of twelve jurors.” The provision in the Constitution that “ the trial by jury, in all cases in which it has heretofore been used, shall remain inviolate forever,” means a common-law jury of twelve men, but does not apply to the petty offenses triable before a single magistrate or a Court of Special Sessions. Courts of Special Sessions have existed since 1744, and have been continued both under the Colonial and State governments to the present time. No jury was permitted in these courts until 1824, when the Legislature provided for a jury of six to be selected from twelve summoned. (Duffy v. The People, 6 Hill, 75; People ex rel. Murray v. The Justices of the Court of Special Sessions of the Peace, 74 N. Y., 406.)

In this fourth department, in the case of Knight v. Campbell 62 Barb., 16), Mr. Justice JoimsTON, in a very elaborate opinion, in which the right to a trial by a jury of six in an action of replevin in a Justices’ Court was challenged, said: The great point contended for is that this provision of the Constitution means the old common law petit jury of twelve men, and nothing else. The provision does not say this in terms, and constitutions, like all other laws, must be interpreted by the language used. What it says is, ' Trial by jury as it has been heretofore used.’ A jury of six men in a Justices’ Court is as much a jury in the eye of the law as a jury of twelve men in a Court of Record. The law has made it the jury for that tribunal, and it is a jury there to all intents and purposes. It is the jury which has been ‘ heretofore ’ used in that tribunal.” (See, also, Dawson v. Horan, 51 Barb., 459; The People ex rel. The Metropolitan Board of Health v. Lane, 6 Abb. [N. S.], 105-125.)

In the last cited case Mr. Justice SutherlaND says: “ The constitutional provision should be viewed as recognizing and protecting the right to a trial bj a common-law jury of twelve, in cases in courts of record in which it had been theretofore used; but the qualifying words which have been quoted imply that there were and had been trials otherwise than by a common-law jury; and the framers of the Constitution must be presumed to have had knowledge of previous legislation and usage as to trials otherwise than by a jury of twelve in inferior courts of local jurisdiction, and must be presumed-to have recognized and adopted the principle which had dictated the legislation, and which originated and undertook to authorize the usage.”

By the act of 1834, above referred to, the persons accused of disturbing religious meetings were provided with a right to a trial by a jury of six. Before that time their offense could be examined and tried in a summary manner before the magistrate alone. The extension to persons, charged with such offense, of the right to a trial by a jury of six, in the same manner as persons charged with petty offenses were authorized to be tried by a court of Special Sessions, was not, in our opinion, in conflict with the Constitution, and we think, therefore, that the justice at the Special Term erred in reversing the conviction on that ground.

Judgment reversing the conviction before Justice ClaRk and a jury, reversed. . ,

Hardin and Ramsey, JJ., concurred.

Ordered accordingly.


text:
    SAMUEL B. UPHAM and others, as Assignees, etc., Appellants, v. OLIVE A. PADDOCK and others, Respondents.

      Judgment — when a pa/rty to it is estopped, from disputing facts established try it— Collector’s bond — as to whether the lien of such bond extends to equitable interests— 1 B. 8. (5th ed.), 833, § 43.
    Prior to January, 1875, one Loveland Paddock died intestate leaving him surviving as his only heirs-at-law three children, Oscar, Edwin L. and George F. Prior to his death he had bought certain lands for a valuable consideration and paid the purchase-price thereof, and was, at the time of his death, in equity entitled to a conveyance, and had then entered into possession and received the profits thereof. In January, 1875, George F. Paddock was declared a bankrupt. Thereafter a collector, upon whose bond he was liable as a surety, having made default, an action was commenced by the supervisor, under 1 Revised Statutes (6th ed.), 833, section 43, to have the amount in which the said collector was in default adjudged a lien upon the real estate of those who executed the bond from the time of the filing thereof. The complaint therein alleged that the plaintiffs were unable to set forth a description of all the real estate owned by the said George F. Paddock and the other sureties, and prayed leave to furnish the same at or before the trial, with the same force and effect as though set out in the complaint. The court directed a judgment establishing the lien of the bond against all of the said Paddock’s real estate, and referred it to a referee to ascertain and report a description thereof, unless the parties agreed upon the same, and directed that, when so ascertained and described, it should be sold by the sheriff and the proceeds applied as therein directed. By agreement of the parties to the action a description of the above mentioned real estate was inserted in the judgment, and the same was thereafter sold by the sheriff to one who had notice of the situation of the title, and who had been notified by the plaintiffs, the assignees in bankruptcy of Paddock, who were parties to the action, that the collector’s bond was not a lien upon the premises because Paddock’s interest was only of an equitable character. Thereafter the sheriff’s report of sale was, upon due notice to all the parties, confirmed.
    In this action, brought by the plaintiffs to recover the said real estate from the purchaser, on the ground that Paddock’s interest therein being of an equitable character only, he had acquired no title upon the sale.

      Held, that they were estopped by the judgment in the former action from insisting that Paddock’s interest was not subject to the lien of the bond, or from disputing the validity of the title acquired by the purchaser at the sale had in pursuance thereof.

      Qutwe, as to whether section 43 of 1 Revised Statutes (6th ed.), 833, providing that “ every such bond shall be á lien on all the real estate held 'jointly or severally by the collector or his sureties within the county at the time of the filing thereof,” does not create a lien upon real estate of the surety held only by an equitable title, when he is in possession thereof, lawfully exercising the rights of an owner. (Per Talcott, J.)
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action by the court without a jury.

      O’Brien & Emerson, for the appellants.

      F. W. Hubbcvrd, for the respondents.
   Talcott, P. J.:

This action is brought by the assignees in bankruptcy of George F. Paddock, to reach certain alleged equitable interests of the said George F. Paddock in certain real estate situate in tbe city of Watertown.

The petition on which the decree of bankruptcy was made, was filed on the 31st of January, in the year 1875, previous to which time Loveland Paddock, the father of the said George F., had died intestate, leaving as his only heirs-at-law Oscar Paddock, Edwin L. Paddock, and the said bankrupt, George F. Paddock.

Loveland Paddock, the deceased intestate, was, at the time of his death, the sole owner of the stock of the Black Biver Bank, a bank organized under the general banking law of the State of New York. After the passage of the act of Congress imposing a tax on the capital stock, deposits and circulation of the State banks, on the 30th of June, 1864, the said Loveland Paddock gave the notice required by law through the Bank Department of the State of New York, to close out the Black River Bank and redeem its circulation ; and the said bank thereafter ceased to carry on its banking business, and withdrew, from time to time, the securities deposited with the banking department of the State, and organized the First National Bank of Watertown, under the act of Congress authorizing the creation of national banks. While the Black River Bank was in existence, and doing business, it was seized in fee of the lands in question, and Loveland Paddock had purchased the lands of said bank for a valuable consideration, and paid the purchase-price, and was, in equity, entitled to a conveyance thereof, and was in possession and occupation thereof, and paid the taxes and received the rents, issues and profits thereof; but no conveyance in form was ever made by the Black River Bank to Loveland Paddock, and the bankrupt, George F. Paddock, on the death of the said Loveland Paddock, became entitled, as one of the heirs-at-law, to an undivided one-third of all the rights and equitable interests in said premises of which his father Loveland had been possessed at the time of his death.

Said George F. Paddock, at the time of the father’s death, was liable as a surety upon the official bonds of the collectors of taxes of the town of Watertown, and the collectors of the third and fourth wards of the city of Watertown.

The moneys collected by the said collectors in their official capacity, having been deposited with a banking firm, of which the said bankrupt George E. Paddock was a partner, and which failed, the said collectors became defaulters on their official bonds; and the said bonds having been duly filed pursuant to the statute and docketed in the same manner in which judgments are entered of record, the several supervisors of the town and wards aforesaid commenced suits in this court, in equity, under the statute (1 P. S. [6th ed.], 833, § 43) to enforce the liability of the said George E. Paddock and the other sureties, alleging that none of the defendants who executed such bonds had personal property which could be reached on execution, and praying, amongst other things, that the amount in which the said collectors were in default be adjudged a lien upon all the real estate in the county of Jefferson owned by the persons who had executed said bonds, or any or either of them, from the time of filing such bonds respectively.

The complaints in each of said actions alleged that the plaintiff was imable to set forth a description of all the real estate owned by the said George F. Paddock, and the other sureties, or either of them, and prayed leave to furnish the same at or before the trial of the action, and the adjudication of the court upon the matters in the complaint contained, with the same force and effect as though set out in the oomplañ/nt. The said actions went to trial upon the other questions raised by the complaint, at a Special Term held in Jefferson county, on the first day of July, 1875, and the justice before whom the same was tried found certain facts establishing the liens of the said several bonds upon the real estate of the parties by whom they had been executed, and other facts ixpon which questions were raised by the pleadings in each case, and, amongst other things, that the plaintiff in each case was entitled to a judgment establishing the lien of the bonds against all of the real estate of the said George E. Paddock, and the others who had executed the said bonds, with costs, and ordering the sale of the real estate of such defendants to be sold by the sheriff of Jefferson county, the said real estate to be fully described im, the judgment entered in the action.

First. The real estate held or owned jointly or severally by the defendants, George E. Paddock and Merrill Andrews, subject to all prior liens thereon hereinbefore established, and it was referred to a referee to ascertain and report the description of the real estate to be sold, unless the parties agree upon the same. George F. Paddock having become bankrupt, and the plaintiffs been appointed assignees, they were, as such, made parties defendant to each of the said suits.

The whole of the final judgment, as finally entered, is not contained in the case, but as we understand the case, for the purpose of avoiding the necessity of a reference to ascertain and report a description of the lands to be sold, the several parties agreed upon a description of the lands to be sold by a stipulation fully describing such lands, but which stipulation is not contained in this case, but it formed the authority upon which that part of the judgment by which the sale of the particular lands was directed.

The case being imperfect in not setting forth fully the judgments recovered on the collectors’ bonds, perhaps we ought to send it hack to the appellant’s attorney to have the defect remedied, but in view of the delay to be occasioned thereby we have thought it best to assume, as against the appellant, what we understand to be the fact, that the judgments in the several suits on the collectors’ bonds did contain a full description of the particular lands which are sought to be recovered in this action, declaring them to be owned by George F. Paddock, with a direction to the sheriff to sell the same. The premises in question were sold by the sheriff of Jefferson county, in pursuance of the several judgments recovered on the collectors’ bonds, and were bid off and purchased at the sheriff’s sale by Edwin L. Paddock, who had notice of the situation of the title, in behalf of his wife, Olive A. Paddock, and after the plaintiffs had given notice to the effect that the collectors’ bonds were not liens upon the premises, because George F. Paddock’s interest was only of an equitable character, the legal title never having been conveyed by the Black Biver Bank. The sheriff, as lie was directed by the judgment, made his report of sale, which report was confirmed upon due notice to the defendant, and amongst others to the plaintiffs in this suit.

The plaintiffs did not appeal from the judgment, made no motion to correct the same in regard to the description of the premises to be sold, and did not oppose the confirmation of the sheriff’s sale. But the sheriff, in pursuance of the sale, conveyed the premises to Olive A. Paddock, the purchaser, who paid the amount of her bid, which was distributed pursuant to the judgment.

Tbe plaintiffs now' seek to assert a title to tbe premises as the assignees in bankruptcy of George F. Paddock, upon tbe ground that the collectors’ bonds were not a lien upon the premises in question, because George F. Paddock did not bold the legal title to his one-third of the premises, but only the equitable interest which he took by descent from Loveland Paddock.

The defendant, amongst other things, sets up the judgments on the collectors’ bonds and the sale thereunder, and her purchase and sheriff’s deed as a former adjudication and a bar to the claim of the plaintiffs, and on the trial of this cause the said judgments were offered in evidence, together with proofs of the sale and her purchase. The plaintiffs’ counsel objected to the reception of the record of the said judgments on the collectors’ bonds in evidence, on the ground that they were incompetent, which objection was overruled, and the plaintiffs excepted.

The justice at the Special Term, after a finding of the facts in the case, which were mainly undisputed, ordered judgment for the defendants, holding as conclusions of law that said George F. Paddock, “ at the' date of the filing of said collectors’ bonds, equitably held and owned an undivided one-tlfird interest in the lands described in the complaint, holding under a paid-up contract of purchase and entitled to a proper title from the Black Biver Bank, and had no legal title thereto except as aforesaid.” That said collectors’ bonds became a lien on such equitable interest, and that, “ irrespective of the existence of a lien in fact, this action cannot be maintained; that the judgments in the former actions on the collectors’ bonds adjudging the lien to exist and the land to be sold in foreclosure of the lien, the plaintiffs in this action having been parties to those actions and having acquiesced therein, and the referee’s (sheriff’s) report of sale, motion for confirmation and order for confirmation, are a bar to this action.”

The language of the statute (1 R. S. [6th ed.], 833, § 43) is: “And every such bond shall be a lien on all the real estate held jointly or severally by the collector or his sureties within the county at the time of filing thereof.” * * * *

In this case the land was held by George F. Paddock by a title and under a right under which he could have defended in an action of ejectment against the Black Biver Bank, conceding that the mere legal title yet remained in that bank and that a formal conveyance was necessary to transfer it. (Mayer v. Hinman, 13 N. Y., 180; Murray v. Walker, 31 id., 399; Story on Eq., § 790; Canrenter v. Ottley, 2 Lans., 451.)

It is by no means clear that the lien created by the filing of a collector’s bond can be defeated by the circumstance that the lands, on which the lien is sought to be enforced, are held only by an equitable title, where the surety is in possession and lawfully exercising the rights of an owner.

But in this case we do not deem it. absolutely necessary to decide that question, as we are of the opinion that the court properly held the plaintiffs to be estopped by the judgments on the collector’s bonds, particularly describing the premises, finding that they were owned by George E. Paddock, and ordering the same to be sold by the sheriff; and the sale and conveyance by the sheriff to Olive A. Paddock, to which suit in all the stages thereof the plaintiffs were parties, as assignee^ in bankruptcy of George P. Paddock. The complaint in the actions on the collectors’ bonds stated that the plaintiff was unable to seth forth a description of all the lands owned by George P. Paddock, and prayed that the same might be ascertained and appropriately described in the judgment; and the judgment did particularly describe them, as did the advertisement and report of sale.

The allegation in the complaint was sufficient to raise the issue as to what lands of Paddock’s the collectors’ bonds were liens upon. The plaintiffs, if they supposed the collectors’ bonds were not liens upon the premises in question for any reason, could and should have opposed the incorporation of the description of these lands in the judgment, and, if unsuccessful in their opposition, might have appealed from the judgment, and so had the question finally determined by the court of last resort in this State, and even by the Supreme Court of the United States. Instead of this, the plaintiffs neither appealed from the judgment, or took any other measures to have it corrected in regard to the description of the land to be sold, but suffered the sale to take place; the defendant, Olive A. Paddock, to pay her purchase-money, the Report of sale to be confirmed, and the proceeds of sale to be distributed under the decree.

We do not see why the plaintiffs are not as effectually precluded as in any other case of foreclosure, from denying the title of the purchaser at a sale on a foreclosure suit to which they were parties. (Jackson v. Hoffman, 9 Cow., 271.)

First. It is ordered that the appellant amend his appeal book by causing to be inserted therein the full form of the judgment in the case of Solon Wilder, as Supervisor of the Fourth Ward of the City of Watertown, plaintiff, v. Orrin O. Butterfield, George F. Paddock and other's, containing the full description of the land by aid judgment ordered to be sold and the adjudication that it is the land of George F. Paddock, within twenty days, and before any appeal shall be made from the decision hereupon.

Second. The judgment appealed from is hereby affirmed, with costs.

Rumsey, J., concurred; Hardin, J., not sitting.

Ordered accordingly.