author: Bockes, J.:

text:
    THE BOARD OF SUPERVISORS OF THE COUNTY OF SCHENECTADY, Respondent, v. DANIEL P. McQUEEN, APPELLANT.

      Action on bond —• counter-claim — when plaintiff cannot set up want of power to contract — performance of condition.

    On May 17, 1873, plaintiff orally agreed with defendant to convey to him, July 1, 1S73, sixteen lots, part of the Poor-house farm, and to remove the poor-house within three years from the date of the contract, defendant agreeing to ixay therefor §5,145; ten per cent on July 1, and the balance in five years, to be secured by a bond and mortgage. The defendant paid the ten per cent. July first, received a conveyance and gave back a bond and mortgage to secure the remaining payments. The mortgage was foreclosed, but there was not sufficient realized on the sale to pay the amount secured thereby. In an action brought xxpon the bond defendant set up, as a counter-claim, the failure of plaintiff to remove the poor-house within the three years, and claimed damages therefor.

      Held, That the plaintiff, having accepted performance of the contract by defendant, could not set up its want of power to agree to remove the poor-house, in answer to plaintiff’s claim for damages for its failure to do so.
    That, as the poor-house was to be removed before the bond became due, it was not necessary to first pay the bond in order to enable defendant to set .up plaintiff’s failure to remove the poor-house.
    That plaintiff having brought an action upon the bond given pursuant to the oral agreement, would not be permitted to deny its validity under the statute of frauds.
    That such oral agreement was made valid as a contract for the sale of land by the payment of the ten per cent and the giving of the bond and mortgage.'
    That the contract of sale was not embraced in the deed and bond and mortgage, ■which were only given in pursuance of some of the many provisions of the parol contract, and therefore the provision as to the removal of the poor-house insisted upon by the defendant was not objectionable, as modifying or varying a written agreement.
    Appeal from a judgment in favor of the plaintiff, entered upon - a verdict directed at the Schenectady Circuit. The plaintiff, in his complaint, alleged that, on July 1, 1873, the defendant covenanted with the plaintiff to pay it the sum of $3,858.75; that he had failed to do so; that a mortgage, given as collateral security for the performance of such obligation, had been foreclosed, and only $1,360 realised on the sale of the mortgaged premises, and asked judgment for the residue. The defendant answered, setting up a. prior oral agreement, in pursuance of which the bond and mortgage were given, which agreement is fully set up in the opinion.
    ' E. W. Paige, for the appellant.
    The answer sets forth a good counter-claim. The plaintiff had abundant power to make the agreement. (1 R. S., 364, part 1, chap. 12, tit. 1, art. 1, chap. 194, Laws of 1849.) It was valid under the statute, although by parol; for it did not convey any interest in lands. It was not an agreement which, by its terms, could not have been performed within a year. (Plimpton v. Curtiss, 15 W. R., 336; ArtelLer v. Zeh, 5 Hill, 200.) If it were void when made, the full performance by the defendant has taken it out of the statute. (Hess v. Fox, 10 TV. R., 436; Hobbes v. Wetherwax, 38 How. Pr., 385; Hodge v. Crandall, 30 N. Y., 294; Johnson v. Hathom, 3 Keyes, 126.) Proof of it is not obnoxious to the rule that parol evidence cannot be admitted to vary a written contract. (Barnes v. Perine, 15 Barb., 250; Frink v. Green, 5 id., 450; Barker v. Bradley, 42 N. Y., 316; Brewster v. Silence, 8 id., 213; Potter v. Hopkins, 25 TV. R., 419; 1 Greeni. Ev., § 284, a.)

      Austin A. Pates, for the respondent.
   Bockes, J.:

The action was brought to-recover for the breach of a bond for the payment of money. The amount unpaid and due, according to the condition of the bond, was not disputed. The question on the appeal arises on the offer of the defendant to establish his claim,, as made in his answer by way of recoupment.

On the trial, the defendant offered to prove all the facts set out in his answer, and asked- to have the case submitted to the jury on those facts. The ruling of the court was against the offer, to which ruling there was an exception; a verdict was i thereupon directed for the amount duo according to the condition ,,of the bond.

It is stated in the defendant’s answer, which under the ruling . must be accepted as true, that the bond in suit, with the mortgage accompanying it, was given by the defendant on the purchase by him of sixteen lots of land, part of a farm owned by the plaintiff, known as the Poor-house farm, and on which the poor-house of Schenectady county was situated. It is further averred in the ¡answer, that the agreement to purchase was made between the par.-ties on or about the 17th of May, 1873, and was as follows : (1) that the plaintiff should, on the first of July then next following, convey to the defendant the sixteen lots of land; and (2) should, within three years from the making of the contract, remove the poor-house from the Poor-house farm; (3) that the defendant, in consideration thereof, should pay $5,145 for the lots, ten per cent thereof down; fifteen per cent on the first of July, and should secure the balance by his bond and mortgage, conditional for the payment of such balance in five years from the last-mentioned date. It is further averred, that the defendant made payment of the money agreed by him to bo paid on and prior to July first;, and also then gave the bond and mortgage as ho had agreed. As a breach of this agreement, it is averred that the plaintiff omitted to remove the poor-house within three years from the making of the contract to his great damage, and he claimed to have such damages allowed him by way of deduction from the amount due according to the condition of the bond.

Admitting the agreement set up in. the answer to be valid and binding on the plaintiff, the defendant states good ground for an' allowance, by way of recoupment or counter-claim, for such damages as he may be able to establish by legal evidence, growing out of its breach by reason of the omission on the part of the plaintiff to remove the poor-house within the specified time. It is urged by the respondent's counsel that the agreement is void, because of . the want .of power .in the plaintiff to enter into it, in ,so far as it relates to the provision sought to be enforced by the defendant, on which the alleged breach is.based. .This .objection is answered by the decision,in De Groff v. The American Linen Thread Co. (24 Barb., 376; same case an appeal, 21 N. Y., 124). It was there held, that even if a corporation has no power to enter into the contract, viewed as a mere corporate power, yet having- undertaken to do so, and having accepted performance by .the other party, it cannot .be permitted tq set up an excess of. authority, in excuse of its own non-performance. It was valid, too, as a .contract for the sale, of lands, although by parol, as it had been performed by the defendant, by the payment of the money agreed to be paid on and prior to July 1st, and .on. that day giving the bond and mortgage as he had agreed. Besides, the action is brought in enforcement of the bond given pursuant to the contract of, sale ; hence the plaintff cannot Ire permitted to. disjiute its validity, basing an objection either on its own want of power to enter into it, or on the statute of frauds. , The agreement on the facts stated in the answer was binding qn the plaintiff. , .........■

, It is also urged, in support of the ruling at the Circuit, that payment of the money secured by the bond and mortgage was a condition precedent to performance of the provision for the removal of the poor-house ; hence that .the letter could not be enforced without showing payment of. the bond. This is. manifestly a mistaken view of the provision, as five years' credit was given for the payment of the money ; yet fit. was .agreed, on th&. part of the plaintiff, that the poor-house should bo removed within three years from the making-of the contract. The obligation to remove the poor-house was. not .dependent on the payment of the money secured by the bond and mortgage ; .but it was an entirely independent obligation. The claim for damages .growing- out of. its breach was not, therefore, barred by reason- of the non-payment of' the bond according to its condition.

...It is further insisted, in vindication of the ruling on the trial; that the defendant seeks to.interpose a parol agreement to modify and vary a written one under seal; not so, however. The contract of sale, which, contained, as is averred in the answer, the 'provision set up by the defendant, rested wholly in parol. This we are to assume from the course pursued at tho trial and the arguments submitted on the' appeal. The contract of sale was not, nor was any part of it, reduced to writing. The .deed of conveyance and the bond and mortgage were given in performance of two of the provisions of the parol contract; but they^ constituted no part of the contract itself. The provision insisted on by the defendant was, therefore, but one of several that wore agreed upon by the parties, all resting in parol; hence the objection that it adds to, modifies, or varies a written agreement is not well based in fact. It may be here added, that such provision neither modifies nor varies the provisions of the bond and mortgage or deed of conveyance, which are the only papers that- were ever executed having any relation to tho alleged contract of sale. On careful examination of the case, we are of the opinion that the proof offered on tho trial by the defendant and rejected, would -have established a counter-claim in his favor for such damages as he has sustained by reason of the non-removal of tho poor-house within the timo, agreed upon by the parties for its removal.

. It is somewhat difficult to perceive, however, how lie can have sustained any considei’able amount ■ of damage for tho cause assigned. The plaintiffs had, until May 17, 1876, to xxxako the .removal. The defendant could have no claim for damages ..fox1 the non-removal, save such as wore occasioned to him for that cause subsequexxt to that time. It appears that tho mortgage giveix by hinx covering tho sixteen lots was foreclosed, and that the sale thereunder took place Axigust 11, 1876, when tho premises were bought iix by the plaintiff, and that ever since then they have been owned by the county. Thus there was a period intervening between May 17th and August 11, 1876, two months and twexxty-five days, being the time after the plaiixtiff was in defaxxlt for the noix-removal and before the premises caine back to the county under the foreclosure. How tho defendant can have been seriously damaged, by the xi.on-removal after May seventeenth is not apparent. But what proof of damage he may-submit is xiot for us here to anticipate or conjecture. It is enough to control the decisioxi on this appeal, that he may have damages allowed lxixn oxx ■ legal proof in that regard, and we are not at liberty, as wo think, ' to decline, as matter of law, that he cannot establish' any damages "growing out of the non-removal of the poor-house as had been 'agreed.

' Judgment should be reversed; new trial ordered; costs to abide the event.

Learned, P. J., and Boardman, J., concurred.

Judgment reversed and'new trial ordered; costs to abide the 'event.


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES F. MATTLAGE, Appellant, v. JOHN E. POOLE, Respondent, Impleaded with ANN O’DONOGHUE.

      Sale to undisclosed agent — suit against both principal and agent on the part of the seller to hold the principal. not an election

    This action was brought against both principal and agent to recover the price
    • for goods sold to the agent, who promised payment without disclosing his principal, for whom they were bought and by whom they were used. The principal was served, but did not appear.

      'Held, that the act of the plaintiff in suing both, no judgment having been entered therein, did not .constitute an election to hold the principal and dis- .' charge the agent, and that the complaint was improperly dismissed as to the latter.
    Appeal from a judgment in favor of the defendant Poole, entered upon an order dismissing the complaint as to him.
    This action was brought against John E. Poole and Ann 'O’Donoghue, jointly, for a bill of goods amounting to $105.93, purchased by said Poole in his own name, and without disclosing to 'the plaintiff that he was purchasing the said goods for the defendant, Ann O’Donoghue. The complaint alleged that O’Donoghue received and used said goods in her business, and that the defendant Poole was her agent in the purchase and use of the same. The summons and complaint were served on John E. Poole on the 6th day of September, 1876, who duly app'eared and answered on the 19th day of September, 1876. And oil the 24th day of July, 1877, the summons and complaint were served upon Ann O’Donoghue, who neither appeared nor answered, but judgment has not been entered against her. The action was brought to trial at the October term of the Saratoga Circuit, in 1877, before Mr. Justice LaNDON, without a jury. The defendant Poole, by his attorney, thereupon admitted in open court the facts set forth in the plaintiff’s complaint, and the case was submitted to said court as follows, viz: “ That if the complaint stated a cause of action against the defendant Poole judgment may pass against him, otherwise not.” The complaint was dismissed, and judgment rendered against the plaintiff for costs.

      F. B. Benton, for the appellant.

      J. M. Andrews, Jr., for the respondent. •
   Bockes, J.:

This appeal is from a judgment dismissing the complaint as to the defendant Poole. The action was brought against both principal and agent on an alleged sale of goods to the agent. In the complaint it is averred that the plaintiff sold and delivered the goods • to the defendant Poole, who promised payment without disclosing his agency. It is also further averred that the goods were purchased for the defendant O’Donoghue, and that they came to her use in her business. On the trial, it was stipulated that if the complaint stated a cause of action against Poole, the agent, judgment should pass against him for the amount claimed. This stipulation should be construed, in connection with the fact stated in the case, that O’Donoghue, the principal, had been served with the summons and complaint and had omitted to appear and defend. Thus the action ivas against principal and agent; and so it appears from the averments in the complaint, with the admitted fact that O’Donoghue was duly served with the summons and complaint.

Now, according to the averments in the complaint, Poole, the agent, was liable originally, inasmuch as it is stated that he purchased the property and promised payment without disclosing his agency. So, too, a right of recovery existed against G’Donoghuo, the principal, when discovered; but the plaintiff, while he might elect which of them he would hold responsible, could not have a recovery against both. (Meeker v. Claghorn, 44 N. Y., 349.) In the case in hand, the plaintiff, the vendor, had, according to the statement in the complaint, an undoubted option as to which he would hold liable for the goods sold. Both principal and agent were equally responsible to him. The question then is, whether it appears that he had made a binding selection of the principal, O’Donoghue, as his debtor. Had he proceeded to judgment against the latter on the claim, he would be held concluded by his election. (Curtis v. Williamson, 11 Eng. Rep. [Moak’s notes], 149, and Priestly v. Ferrie, there cited.) But will a proceeding at law on the claim, short of judgment, be conclusive of an election?. This question was considered in the cases last cited, and it was there decided that whilst a judgment against principal or agent, even without satisfaction, would constitute a conclusive election, yet that no legal proceeding short of judgment would have that effect. So Judge Oakley said in Nason v. Cockroft (3 Duer, 368, 369), when speaking to this point, that it was clear that the mere commencement of a suit against the principal would not discharge the agent. The remark of the court iw Beymer v. Bonsall (79 Penn., 298, 300), is, perhaps, too strong. It is there said that the agent, being already liable on his contract, can be discharged only by satisfaction of it by himself or another. According to the authorities, then, the commencement of this action against O’Donoghue, the principal, no judgment having been entered against her, does not bar the ' plaintiff’s action against Poole, the agent. The plaintiff may discontinue against O’Donoghue. Strike her name from the complaint, and there remains an undoubted right of action against Poole. Again, how can it be maintained that the plaintiff, by proceeding in tüis action against both Poole and O'Donoghue jointly, elected to accept either as his solo debtor? If the commencement of the action discharged one, in like manner would it also discharge the other. It is manifest that there was no actual intent to discharge either; and it is certain that there has b.een no act on the part of the plaintiff, which in law has concluded him in his option. I think the complaint -was improperly dismissed against Poole. This conclusion is not in conflict with the decision in Rawson v. Turner (4 Johns., 469), and similar cases. (See Dash v. Van Kleeck, 7 Johns., 477; Jackson v. Bartlett, 8 id., 366; McElroy v. Mancius, 13 id., 121, 122; Littlefield v. Brown, 1 Wend., 398; Same Case, under title Brown v. Littlefield, 7 id., 454; also, 11 id., 467.) As was 'said in one. of the cases cited, the decisions in these cases were based upon the fact that the election of one remedy was incompatible with the pursuit of the other, as the one remedy was tupan the ground that the other had ceased.

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

Learned, P. J., and Boardaian, J., concurred.

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


author: Bocees, J.:

text:
    LOUIS BIERBAUER, Administrator, etc., of WILLIAM HOLDEFER, Deceased, RESPONDENT, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, APPELLANT.

      Action for negligent hilling — ■damages—when verdict not set aside as excessive.

    In an action to recover damages for the death of plaintiff’s intestate, caused by the negligence of the defendant, it appeared that the deceased was a young man, about twenty-one years of ag-e, and earning about $25 per month. He was unmarried, had no children, and left a father, mother, two brothers and a sister residing in Germany. The jury gave a verdict for $5,000.

      Held, that it should not be set aside as excessive.
    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before ivhom the action was tried.
    The action was brought to recover damages for the death of the plaintiff’s intestate,.alleged to have been caused by defendant’s negligence in altering its tracks in such manner as to leave a highway adjoining the railroad, in a dangerous condition by reason of a considerable amount of earth having been removed from such highway.
    The evidence tended to show that the deceased, on the evening of January 29, 1876, while driving his team along the Mohawk turnpike, came to a place adjoining the railroad, and excavated, to some extent, by the company in altering its tracks where the road was covered with water. Attempting to continue his way along the road, he was probably, thrown from the wagon and drowned. His body was found in the ditclnalong the road beneath the ice.
    The deceased was unmarried, and had no children. He left him surviving his father, about sixty-five years old, and mother, two brothers and a sister, all residing in Germany. The jury gave a verdict for $5,000.

      ~/3. W. Jcichson, for the appellant.
    • A new trial should be granted upon the ground of the excessiveness of the damages found. {McIntyre v. JH. Y. C. It It Co., 47 Barb., 518; 24 N. Y., 471; McIntyre v. JUST. Y. C. It JR. Co., 87 id., 28-9; Mitchell v. JST. Y. C. & II. R. R. R. Co., 2 ITow., 589.) Where the damages found by a verdict have only speculation and conjecture to sustain them, a new trial will bo granted. {Sheldon v. II. R. R. R. Co., 29 Barb., 228; Rauder y. Lasher, 5 Lans., 336.)

      II. Dunlcel and R. Countryman, for the respondent.
    The right of action is created by statute, which in the same connection prescribes the rule of damages, and confers the power upon the jury of giving such damages as they shall deem just and fair, within the rule. JExpressio unins est exclnsio alterius. Until it is apparent that the jury have violated the rule, the court ought not to. interfere with their discretion. {Coleman v. Southwick, 9 Johns., 45; Gale v. JR. Y. C. <£• II. R. R. Co., 13 Hun., 1; Ihl v. Forty-seeond Street R. Co., 47 N. Y., 317, 321; O'Mara v. Hudson River R. Co., 38 ich, 445; Oldfieid y.JST. Y. & Harlem R. Co., 14 id., 310, 317; Dr'ew v. Sixth Avenue R. Co., 26 id., 49, 52; McIntyre v. JR. Y. Central R. Co., 37 id., 287. 289, 296; Tilly v. Hudson R. Co., 29 id., 252; Sloan v. H. Y. C. & II. R. R. R.

      Co., 1 Hun, 540; 45 N. Y., 125.) In Filer v. N.Y.C.& H. B. B. B. Co. (49 N. Y., 42), the husband recovered $8,000 for loss of service from an injury to his wife, which was sustained. And iii another action by the wife, for the pain and suffering from thé same injury, she recovered $5,000, which was sot aside. (49 N: Y., 47.) On the second trial she recovered $11,000, which was also set aside. (59 N. Y., 351.) On the third trial she recovered $12,000, which was sustained. (68 N. Y., 124.) These verdicts do not appear in the reports, but have been ascertained from examination of the error books in the State library. In Shaw v: Boston <& Wor. B. B. Co. (8 Gray, 46), where a married woman was injured, there were three verdicts — the first $15,000, the second' $18,000, and the third $22,250, which was sustained as not excessive.
   Bocees, J.:

It seems quite manifest that a case was made for the jury on the evidence submitted, as well on the question of the defendant’s-negligence, as also on the question of contributory negligence on the part of the deceased. It is not disputed that it was the duty-of the railroad company to keep and maintain the turnpike in a' reasonably safe condition for the traveling public at the place" where the injury complained of occurred. So the condition of' the highway at that point, and its immediate surroundings, and the circumstances under which the deceased was traveling when' he was (probably) thrown from his wagon and drowned iu the' ditch or pit at the side of the traveled path, then flooded by a recent freshet, were laid before the jury ; and it became a question for them, whether the highway was in proper repair and reasonably safe for ordinary travelers; and also whether the deceased exercised, under the circumstances, common prudence in contiuu-. ing on over the road then completely submerged. On these questions the parties must be held to be concluded by the verdict of the jury. The questions then to be examinod are, whether the case discloses any error calling for a reversal of the judgment either in the admission or rejection of evidence, or in the charge of the judge, or in his refusal to charge as requested. Evidence was offered and admitted against the defendant’s objection,, in-regard to tbo condition of the turnpike in the vicinity of tho accident at times antecedent thereto, and also as to what changes or alterations had been theretofore made by the company. This evidence in a general sense was admissible. At the same time the examination in that regard was to be confined within proper limits, both as to time and distance from- the point- of the accident. To a very considerable extent thos'e limits were, as they must' be in all similar cases, in the discretion of tho judge who conducts the trial, and the admission or rejection of such evidence in cases of imputed negligence will not be deemed ground of substantial-error, save when it can be plainly seen that it must have operated injuriously to the rights of the party objecting. That cannot be here well maintained. Immateriality is the most that can be urged against such portions of tho evidence objected to, as can be regarded as at all improper, and in tho light of tho judge’s instructions to the jury tho admission of the evidence could not have worked any harm. No point is made that evidence offered was improperly rejected.

It is insisted that the court erred in the charge to tho jury, and also in the refusals to charge as requested. The instructions and comments of the judge in submitting tho case to tho jury were, as we think, perspicuous, full and substantially correct. The law applicable to the case was well stated, and without elaborating the several points of alleged error, both as to exceptions to portions of the charge, and also to the refusals to charge as requested, we are of the opinion that the case is free from error.

A moro difficult subject is that relating to the damages allowed by the jury. Tho action is statutory, and the law declares the rule of damages applicable to the case. The damages allowable under this statute are such as the jury should “ deem a fair and just compensation, not exceeding $5,000, with reference to the pecuniary injuries resulting from the death to the husband or widow, and next of kin of the deceased person.” The jury here allowed damages to the full extent permitted by tho statute. The deceased was a young man, about twenty-one years of age, and was earning $25 per month. He left no widow or child surviving him, his father, aged about sixty-five years, being his next of kin, and alone entitled to, claim the compensation resulting from his sou’s death. That compensation was to be awarded with reference to the “pecuniary injuries" which the father, in this case,' would receive as a consequence of such death. Such is tlie construction to be given this statute. (Tilley v. H. R. R. R. Co., 24 N. Y., 471; McIntyre v. N. Y. C. R. R. Co., 37 id., 287.); As Judge Denio remarks in Tilly’s case, not that the word! pecuniary is to be applied “ in' a sense so limited as to coniine it to the immediate' loss of money or property.” But that “it looks to prospective advantages of a pecuniary nature, which have been cut off by the premature death of the' person from whom they would have proceeded; and the word pecuniary was used in the statute in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes also ihose losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being' defined by any recognized measure of value.” This exposition of the statute is a liberal one, and has been generally accepted and adopted as sound. This, however, keeps in view the pecuniary loss resulting from the death of the person to the party or parties who, by the statute, are to have compensation. Now, the case under examination is quite different from one where a widow and children are survivors. In such case there are many elements of pecuniary damage existing which are wanting in this; especially would this be so in the case of a helpless widow and infant children. Yet here damages are given to the full extent allowed in any case. It was not intended by the statute that the full sum of 85,000 should be given in every case falling within its purview; but tiiat less or more, not exceeding that sum, should be given accordingly as the evidence bearing on the condition of the parties, and the surrounding circumstances would warrant, holding in mind, as a measure of compensation, the pecuniary injuries sustained. In this view of the case, it seems that vindictive damages must here have been given. If so, the allowance was wrong. So, too, it was wrong, if the allowance included solely speculative or conjectural damages. Lot every possible element of pecuniary injury, admissible under a fair and just construction of the statute, be here considered even in the most liberal spirit, and it seems to me impossible that this verdict can be justified. It must be that either vindictive, exemplary, or speculative damages, or such as rested in simple conjecture, were allowed in this case. Otherwise, how could the jury, in view of the evidence before-them, have reached the conclusion certified by the verdict? The probability that the father here suffered pecuniary loss to any considerable extent, from the death of the intestate, is, as it seems to me, a remote one indeed. It is'admissible to permit a reduction of damages as an alternative to the granting of a new trial. (Peck v. N.Y.C. & H. R. R. R. Co., 15 N. Y. Sup. Ct. [8 Hun], 286, 289; Whitehead v. Kennedy, 69 N. Y., 462, 470.) In my judgment, this is a proper case for the exercise of fair discretion in that regard; but my associates are' of the opinion that the court should not trench upon the right of the jury to determine the damages to be awarded in cases of this character, unless it can be plainly seen that some improper element was considered and allowed in their estimate, or that they wore influenced by passion, partiality, prejudice, or corrupt motives. In this view of the case, the verdict must be allowed to stand.

The order appealed from must, therefore, bo affirmed with costs.

Learned, P. J., and Boardman, J., concurred

Order affirm with costs.


author: Bocices, J,:

text:
    THE NATIONAL BANK OF GLOVERSVILLE, Appellant, v. JOHN W. PLACE and CALVIN W. THOMAS, Impleaded with others, Respondents.

      A usurer cannot set up his own, uswry to avoid, his agreement.

    In an action against the indorsers of a promissory note, they alleged that they had been discharged by an extension of time given -without their consent to the maker. Plaintiff claimed that the extension was invalid, because its consideration was an usurious bonus exacted from the maker.

      Held, That it could not set up its own usury to invalidate its agreement.

      Billington v. Wagoner (33 N. Y., 31) followed.

      Appeal from a judgment in favor of the defendants, entered ■ upon the verdict of a jury, and from an order denying a motion for a new trial, made upon a case ond exceptions.

      Parkhurst <& Baker, for the appellant.
    Dudley, Dennison <& Dudley, for the respondents.
    The plaintiff cannot raise the question of usury to avoid the agreement to "extend. Because only the party paying usury can raise that question. (Billington v. Wagoner, 33 N. Y., 31; Draper v. Prescott, 29 Barb., 401, 404, 405.) The plaintiff received and held :the consideration for the extension, and cannot now be heard to allege the contract void for any reason, while holding the consideration received by it, (Place v. McIlvain, 38 N. Y., 96.) The plaintiff is a national bank, organized under the laws of the United States, and the laws of this State relating to usury are not ■applicable to it. (Farmers and Mechanics' Nat. Bank v. Dearing, Thompson’s Nat. Bk. Cases, 117; 91 U. S. Rep., 29.)
   Bocices, J,:

It is, of course, admitted that the giving of time to the principal, by a valid agreement with him having that effect, without the consent of the surety, operates as a discharge of the 'latter ; and this lade of law applies as well to indorsers on commercial paper as to sureties in the strict sense of that term.

In this case the defendants, Place and Thomas, indorsers of the note in suit, set up the defense, that time of payment had been given the makers of the note without their consent. The jury found the issue in favor of the defendants.

The consideration of the agreement of extension as alleged and found was the payment, by the makers of the note, to the bank, of twenty-five dollars bonus. The court instructed the jury, in effect, that if they should find in favor of the defendants as to the alleged agreement of extension, the latter would be entitled to their verdict; and refused to instruct them that if the consideration of the agreement was a bonus over and above the legal interest on the note, then that the agreement would be void for usury, and therefore would not bar a recovery against the indorsers.

If this ruling be right, it must be justified on the ground that the plaintiff, holding the position of a usurer, cannot insist upon the invalidity of the usurious agreement. This precise question Avas determined in favor of tho defendant’s in Billington v. Wagoner (33 N. Y., 31). There the agreement, as here, >vas one of extension of the time of payment of a note ; and it was also, as here claimed by the plaintiff, that the agreement Avas void for usury. So the question there, as it is here, Avas .this: .“assuming that the agreement made by the plaintiff Avith the principal debtor Ayas usurious, and therefore, in the language of the law, void, ,c,an the plaintiff interpose that objection?” The question Avas answered in the negative; and the remark of Judge Gbidlev in La Barge v. Herter (4 Barb., 346), was quoted and approved; tq wit, that “it is the victim of the usury, and not tho .usurer himself, that can set up against a contract that it is usurious and void.’,’ This case Avas affirmed in the Court of Appeals. (9 N. Y., 241.) It Avas definitely hold in Billington v. Wagoner, that tho objection to a contract that it was void for usury, can only be set up by the party bound by the original agreement to pay the sum borrowed, or his sureties, heirs, devisees, or personal representiitives; that tho usurer himself cannot interpose the objection. It should be also here remarked, that in each of the cases above .referred to the point was taken, as it is here, that although a party to a fraud is estopped from setting it up for his oavii advantage, yet if his opponent alleges and proves it as a part of his own case, the guilty party Avill then be entitled to the benefit, Avhilq he incurs the disadvantages resulting from such a state of things.But this principle Avas held, in the case cited, to be irrelevant to a case like this for tho reasons there given. I have quoted freely from the cases cited, .as the subject here tinder consideration was there carefully examined on principle and authority, and was definitely determined. A reference to the cases theretofore decided, bearing on the question under examination, can answer no useful end here, as they are there collated and commented on. I am not aware, that the decision in Billington v. Wagoner has ever been questioned; but I do find that it has been in several cases cited with approAgil. (Williams v. Tilt, 36 N. Y., 326; Mer. Ex. Bk. v. Com. Warehouse Co., 49 id., 643, note op bottom qf page.) Also see remarks of Wpop-: ruff, J., in Winsted Bk. v. Webb (39 N. Y., 331); Fernan v. Doubleday (3 Lans., 216). The case of Fernan v. Doubleday is not in point in this case, except as it recognizes the binding authority of Billington v. Wagoner, inasmuch as in Fernan v. Doubleday the usurious agreement remained unexecuted. The court took the distinction between a case where usury is paid down, and one where it is only agreed to be paid; between a contract executed and one executory. In the case in hand, like that of Billington v. Wagoner, and of Draper v. Trescott (29 Barb., 401), the usurious contract was fully executed. The case of Church v. Maloy (70 N. Y., 65), does not conflict with Billington v. Wagoner, as will bo seen on referring to the facts and question there under discussion; although the syllabus of the case seems to roach the question here under examination. Billington v. Wagoner is not overruled by Church v. Maloy; indeed, is not referred to in the latter case, and for the reason that the question discussed and. settled in the Billington Case is not in the Church Case at all. It is suggested that the proof does not show an actual payment of the twenty-five dollars bonus in this case. We think otherwise. But certainly there was a case made for the jury on the evidence, and the verdict must be acccepted as conclusive of this question of fact. On the authority of Billington v. Wagoner the case seems to have been properly disposed of at Circuit, and the judgment and order appealed from must be affirmed, with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment and order appealed from affirmed, with costs.


text:
    WILLIAM LINN DE WITT, Appellant, v. THE VILLAGE OF ITHACA, Respondent.

      Dedication — what constitutes — what an acceptance — by the grantee — by the public authorities ■ — ■ Judgment for plaintiff in ejectment subject to an easement — when ordered.

    When the owner of a tract of land lays it out on a maj) into village lots, intersected with streets and alleys, with public squares thereon, and conveys lots designated upon it, with reference thereto, he thereby dedicates such streets, alleys and squares to public use to the extent and as designated on the map.
    As between the parties, the dedication is complete upon the delivery of the deed; as to the public, upon an acceptance by the public authorities which may be shown by a user of the lands so dedicated.
    Where, in an action of ejectment, it appears that the property is subject to an easement, judgment that the plaintiff have possession subject to such easement, is not ordered, unless it appears that the defendant has been guilty of some unlawful and unauthorized interference with plaintiff’s rights.
    Appeal from a judgment in favor of the defendant, entered upon tlio report of a referee.
    This action was brought by plaintiff to recover of the defendant the possession of three public parks in the village of Ithaca. The plaintiff claims one-fourth of these parks as one of the four heirs of Simeon DeWitt, and also an additional fourth as the purchaser of the interest of his sister, Mary Linn DeWitt. The defense was dedication.
    Simeon DeWitt, June 14, 1831, was the owner of a large amount of land in the village of Ithaca, including the rectangular piece described in plaintiff’s complaint, and which is now known as Washington Park, and at the time of his death, December 4, 1834, he was still the owner of a large amount of property in said village, including, in addition to the above, the two triangular pieces described in plaintiff’s complaint, and which are now known and described as Lafayette Park and the Clock Factory Park. In 1831 he made a map, bearing date June 14, 1831, on and by which he laid out a portion of his premises in the village of Ithaca into lots, blocks, streets and a piece of land marked on said map “Public Square,” which “public square” is now known and called “Washington Park.” This map General DeWitt used as a map of that portion of his premises until his death in 1834, during which time he executed a large number of conveyances to different parties, describing the premises therein contained by numbers of lots “ on a map” or “ on the map of the village of Ithaca,” which numbers and the other descriptions connected therewith correspond with the numbers on this map. Simeon DeWitt was at that time the Surveyor-General of the State of New York, and the most of this map was proved to be the work of his own hand.
    In August, 1831, Simeon DeWitt, for and in consideration of $250, conveyed to Bicluird Varick DeWitt a piece of land “ distinguished on the map of the village of Ithaca as lot number seventy-nine of the lots in said village, laid out north of Mill .street, bounded, etc., * * * having its southwest corner opposite to the northeast corner of the public square there located,” and which public square is now called Washington Park. After the death of Simeon DeWitt, his executor, to whom a power of sale was given by the will, conveyed other lots designated on a map made under their direction, on which Washington, La Fayette and the Clock Factory Parks, were laid out, the former being marked “Public Square,” the two latter “Public,” the deeds referring to it in. the descriptions. After the making and filing of the map the plaintiff, William Linn DeWitt, by several conveyances recognized it and made grants with particular reference thereto. It also appeared that in 1850, and subsequent thereto, the village of Ithaca fenced and filled the squares designated in the map, and improved and used the same. The referee held that there had been a dedication to the pubblic use of the Washington Park by the testator, though such dediction was not in his life-time accepted by the public. That there had been a dedication to the public by the executor, by his sales under the power given to him, of the lots constituting Washington, LaFayette and the Clock Factory Parks, and such dedication had been accepted by the public, and that plaintiff was not entitled to recover.

      J. M. Finch, for the appellant.

      8. JD. Holliday, for the respondent.
   Bockes, J.:

The question presented on this appeal relates solely to the law

of dedication, and the facts are clearly, and, as we think, sufficiently certified to us for an application of well-settled principles. First. In regard .to the rectangular piece of land described in the complaint, and known as “Washington Park,” it seems that the premises formed part of a farm or considerable tract of land owned by Simeon DeWitt, the father of the plaintiff, lying within the limits of the village of Ithaca; and that in 1831 such owner laid out a portion of the promises into lots, blocks and streets, and made a map thereof and numbered the lots, and also designated thereon the rectangular piece above referred to, very manifestly for public enjoyment as a village park. Mr. DeWitt, until his death, which occurred a few years thereafter, recognized the map, and made it a basis for conveying lots thus laid out and plotted; and afterwards, to the present time, those having charge of and owning the premises immediately surrounding said park have recognized it in its public use, and have conveyed lots as designated on the map, referring thereto in the conveyances, and this has been the general action of those claiming title from and through Mr. DeWitt, the original owner. So, too, as early as 1848 or 1850 the municipal authorities assumed possession and control of the plot for public use, and continued such possession and use to the present time, having ornamented and improved it, and in all respects controlled it and used it as a public square or park. Now, the settled rule of law applicable to the case is this, that when the owner of a tract of land lays it out into village lots, intersected with streets and alleys, and with public squares, such streets alleys and squares are thereby dedicated to public use, to the extent and as designated on the map, where conveyances are made having reference to such designation. So it was said in Post v. Pearsall (22 Wend., 425, 435), that where the owner of land has laid out village lots intersected with roads and public squares, it has been repeatedly held, and very justly, by various judicial tribunals, that such roads and public squares are dedicated to public use. (See cases cited on page 435.) In the case of conveyances referring to the map, the latter becomes an essential part of the deed itself; and as between the parties to. the conveyance the use of the streets, alleys and squares laid down on the map, becomes an easement annexed to the estate granted. (Taylor v. Hopper, 62 N. Y., 649, and cases there cited.) As between the parties, the dedication is complete ou the delivery of the conveyance. As to the public, there must be an acceptance ; and this will be held effectual on adoption and user by the public authorities. (Matter of Ingraham, 11 N. Y. Sup. Ct., 4 Hun., 495 ; Strong v. City of Brooklyn, 68 N. Y., 1; Niagara Falls Susp. B. Co., v Bachman, 66 N. Y., 269.) Here the acceptance by the municipal authorities seems quite conclusive before there was any revocation ; and indeed there is nothing before us indicating an intended revocation by any one before bringing this •action. Wo think the case very conclusively against the plaintiff’s right of action as regards the plot known as “ Washington Park.”

And so as to the other two plots known as La Fayette Park and Clock Factory Park, they were laid down on the map made in 1835, by It. V. DeWitt, executor of the last will and testament of Simoon DeWitt, deceased, who thereafter made conveyances of lots designated thereon, under a power of sale conferred on him by the will. After the making and filing of this map, the plaintiff, William L. DeWitt, by several conveyances, recognized the map and made grants with particular reference thereto. These acts, as wo have seen by the above authorities, operated as a dedication binding on him of those plots laid out on the map for public use as parks, and the dedication became binding and conclusively operative upon him so soon as the municipal authorities accepted of the dedication and adopted them by public use. Even if there were others interested in the property, he was concluded from gainsaying the effect of his own acts. We have no difficulty in reaching the conclusion that there was a dedication of the three ■plots to public use; and further, as the referee has found, that by the acceptance of such dedication by the village authorities, the same became perfected and irrevocable against any and all claim which the plaintiff can make, affecting, the easement to be enjoyed by the public.

We have not found it necessary to examine the question whether there was not a legal and effectual dedication of the second and third plots described in the complaint, by the action of the executor in his execution of the power of sale conferred on him by Simeon DeWitts’ will. It is urged that, admitting a valid and effectual dedication, then the plaintiff should have judgment for the possession, subject to the easement, and we are cited to authorities in support of this position. But it will be found that when such judgment has been allowed, there has been some unauthorized or unlawful action by the defendant against the plaintiff’s rights, some occupation greater than an exercise of lawful use of the ■premises by the defendant. Certainly here, as it was found, there .was no unlawful entry, no trespass upon the plaintiff’s proprietary rights, no unlawful occupation or withholding of posses.sion. The right of action in ejectment was not, therefore, established.

We are of the opinion that the complaint was properly dismissed, and that the judgment should be affirmed.

Learned, P. J., concurred; Boardman, J., not acting.

Ordered accordingly.


text:
    WILLIAM SCHWIER, an Infant, by FERDINAND SCHWIER, his Guardian, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Action for injuries — what not proof of negligence.

    This action was brought to recover damages for an injury alleged to have'been . sustained by plaintiff by reason of defendant’s negligence. An engineer was backing his engine northerly across one of the streets in Schenectady, at the • rate of two miles an hour, to take in water. The plaintiff, a boy under four years of age, ran easterly on the south side of the street towards the engine, approached near to it, turned northerly, ran alongside of and beyond it, then turned across the track in front of it, was struck by it and injured.

      Held, that no negligence on the part of the defendant was shown.
    • Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      The action was brought to recover damages for an injury sustained by the plaintiff, a boy under four years of age, in consequence of being run over by one of defendant’s engines.

      /S. W. JacJcson, for the appellant.

      28. W. Paige, for the respondent,
   Bockes, J.:

The claim that there was such contributory negligence chargeable to the plaintiff as must bar the action cannot be sustained. The plaintiff was a child less than four yeais of age; therefore, not responsible for personal negligence; and it seems that he escaped from his mother under such circumstances as must relieve the case from any just claim that the injury resulted from any omission of proper care of the child on her part. The question on the merits is, whether, on the established facts of the case, negligence on the part of the defendant’s servants can fairly be asserted and maintained.

The injury occurred in the city of Schenectady, at the street crossing on Front street. The track there crossed the street very nearly at right angles. The engineer was backing the engine northerly, for the purpose of taking in water, and was moving it slowly, at the rate of only about two miles an hour. The child came running from the west, on the south line of the street; approached very near the moving engine; then turned north along the side of it, still running; outstripped it in a race of fifty or sixty feet, then turned across the track in front of it, when he was struck by it, knocked down, and seriously injured.

In the first place, there can be no pretense that the engineer who had the .engine in charge acted willfully or with recklessness. Then in what particular was he negligent of duty? He was running the engine very slowly; not faster than an ordinary walk. In this respect there can be no complaint. But it is said he saw. the boy, or ought to have seen him, approaching from the west. Let this be admitted, and can negligence be predicated on his conduct in that regard? Suppose he saw the child first running toward the engine, should he have stopped it in order to determine the intentions of the child? He would have had a right to suppose that the child would stop on reaching the side of the track while the engine was passing. This would be but a reasonable supposition, as it would be in accordance with common occurrence. The engineer was not; therefore, negligent in not stopping the engine at this time. Then the child ran along at the side of the moving engine; and now suppose the engineer saw him thus running, should he then have stopped the engine? Could he reasonably suppose that the boy would spring a'cross ahead of the moving engine, even if he should outrun it? The fair supposition of a man of common prudence would be that the child would himself stop, or continue along, as he was, running at the side of the track; not that he would spring in before' the moving machine. If engineers must stop the engine when they observe a child coming toward the engine laterally, or when a child runs by its side, they will get through cities and villages but slowly indeed. The engineer could not have reasonably apprehended danger to the child on the supposition that it would spring in before the engine, although it was observed running by the side of the track. The case of Bulger v. The Albany Railway (42 N. Y., 459), is an authority favorable to the defendant. It appears quite plain, from the evidence, that the engineer was diligent in his efforts .to stop the engine as soon as ho observed that the child had precipitated itself into danger. We arc of the opinion that the evidence submitted was insufficient to uphold the verdict, and the learned judge should have nonsuited the plaintiff on the whole case as ho was requested to do.

Judgment and order appealed from should be reversed; new trial ordered; costs to abide the event.

Learned, P. J., and Boardman, J., concurred.

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


author: Westbrook, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES BAILEY and others, Respondents, v. IRA E. SHERMAN, SLUMAN L. WATTLES and WILLIAM McCLELLAND, Appellants.

      Referees to hear an appeal from an order of commissioners of highways — eannot question the jurisdiction of the commissioners — Evidence receivable by — Decision by two of thereferees — when valid — not revieicable— Ref erees cannot be' charged pm-sonally with the costs of reviewing thdr decision.

    Referees appointed to "hear an appeal from an ordei-, made by commissioners of highways, discontinuing a highway, cannot pass upon the question of the jurisdiction of the commissioners to make such order, but are confined to an' examination of the case upon the merits.
    The discontinuance of the highway was objected to by somebecause another road, which was claimed by others to have rendered the highway in question unnecessary, had upon it a steep hill. Upon the hearing, a paper, signed by the owner of the land upon which the hill was, consenting to allow the road to run through Ills orchard, if the road in question was closed, was received in evidence. Semble, that -it was conrpetent, as it tended to show that the objection made, on account of the hill, could be obviated.
    The decision of the referees, or that of any two of them, is final, and is not' subject to review either by eertierari or appeal.
    A decision made by two referees, the other being present, is valid.
    Referees are not county officers within the meaning of section 6 of 1 R. S., 384, and can in no event be personally charged with the costs of a certiorari issued to them to review their decision.
    Appeal from an-order made at a Special Term, and the judgment entered thereon, reversing the determination of the defendants, as referees appointed to hear an appeal from an order of the commissioners of highways of the town of Masonvillc, Delaware county, discontinuing a highway, and allowing costs against the referees.

      I. II. Maynard, for the appellants.
    Referees hear the matter de novo, and have no authority to inquire into the regularity of the proceedings anterior to their appointment, or to pass upon the question of the jurisdiction of the commissioners to make the order, but are confined to an examination of the case upon the merits, upon the assumption that the order is valid. (.Lawton v. Corners, 2 Caines’ Cas., 179; Com’rs v. Judges, 13 Wend., 435; People v. Van Alstyne, 3 Keyes, 35; People v. Hams, 63 N. Y., 391; Rector v. GlcirJc, 12 Hun, 189; 2 S. C.. [Thomp. & Cook], 140.) Whether the admission of evidence was error or not, the question cannot be reviewed here. The office of the writ of certiorari, in cases like the present, is merely to bring up the record of the proceedings to enable the Supreme Court to determine whether the inferior court has proceeded within its jurisdicdiction, and not to correct mere errors in the course of the proceedings. {Birdsall v. Phillips, 17 Wend., 464; Rrindle v. Anderson, 19 id., 391; The People v. Van Alstyne, 21 Barb., 132; affirmed, 3 Keyes, 35; The People v. Goodwin, 5 N. Y., 568; The Peoples. Oom’rs, etc., 30 id., 72; The Peoples. Betts, 55 id., 600.) Costs should not have been allowed against the referees. They were acting as a judicial tribunal; their good faith is unquestioned. If costs were allowable at all, they were in the discretion of the court, and it was an abuse of discretion to charge the referees personally with costs. {The People v. Board of Police, 39 N. Y., 506; The People v. Van Alstyne, 3 Keyes, 35; The People v. Robinson, 22 How., 345; The Peoples. O'Brien, 6 Abb. [N. S.], 63; The People v. Fuller. 40 How., 26; Old-Code, § 318.)

      Wm. Youmans, for the respondents.
    The admission in evidence by the referees of the “proposition” of Warren G. Willis was such an error as called for a reversal of their adjudication. The certiorari brought up this question for review. Contrary to the rule which formerly prevailed, it is now well settled in this State that under a common-law certiorari, the court of review is not confined in its investigation to questions of jurisdiction alone, but that it is its duty to also examine the evidence to ascertain whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether, in making it, any rule of law affecting the rights of the parties has been violated. {People v. ' Smith, 45 N. Y., 776; People v. Board of Police, 39 id., 506; People v. Assessors, 40 id., 154; Mullins v. People, 24 id., 404; People v. Sanders, 3 Hun, 16; People v. Eddy, 57 Barb., 593; People v. Supervisors, 8 Abb. [N. S.], 277; People v. Hillhouse, 1 Bans., 87; People v. Board of Police, 6 Hun, 229; People v. Howland, 61 Barb., 273; People v. KnisTcern, 54 N. Y., 52.) Costs were properly awarded against the defendants by the court below. There was formerly considerable diversity of opinion as to whether any costs were allowable oh a common-law certiorari; it seems now to be well-settled that such costs may bo awarded. (People v. Fuller, 40 How. Pr., .35; People v. Van Alstyne, 3 Abb. Ct. App., Dec., 575; 5 Wait’s Sup. Cfc. Pr., 482, 483; People v. Cassidy, 46 N. Y., 46, 57; People v. Barker, 48 id., 70, 74; People v. Trustees, id., 390, 398; People v. Rochester, 54 id., 507.) And the right of the prevailing party to costs, as against referees and commissioners in highway proceedings, has been repeatedly recognized by the courts. ("People v. Commissioners, 27 How. Pr., 158; People v. Flake, 14 id., 527; People v. Kniskern, 54 id., 52.) The judgment as to costs was proper in form. In some cases of this general character the courts have, in awarding costs, directed them to be paid by tax on the town where the controversy arose (People v. Flake, 14 How. Pr., 527; People v. Commissioners, 27 id., 158); while in others' the direction has been general against the defendants, as in similar proceedings against individuals. (People v. Knislcern, 54 N. Y.., 52; People v. Williams, 36 id., 441.) But if there was any formal error in entering the judgment against the defendants personally, without any direction to collect it from the town or county, it was a defect which should have been taken advantage of by motion, and does not constitute a ground of appeal. (Ingersoll v. Bostwick, 22 N. Y., 425; Johnson v. Carnley, 10 id., 570; Witherhead v. Allen, 28 Barb., 661.)
   Westbrook, J.:

On September 28, 1875, the commissioners of highways of the town of Masonville, of Delaware county, made an order discontinuing a highway in that town. On September 29, 1875, Charles V. Bailey and five others appealed to the county judge of Delaware county, who appointed the above-named appellants referees to hear the appeal. Such referees, on the 29th day of January, 1876, made an order affirming the action of the commissioners in discontinuing the road. On the 28th of March, 1876, the relators sued out a certiorari from the Supreme Court to review the decision of the referees. That court, at Special Term, reversed the order and determination of the referees, and charged them personally with costs. Judgment was perfected upon the certiorari proceedings, and thereby costs against the referees were awarded to the amount of $153.28, and execution therefor allowed. From the order and judgment of the Special Term, this appeal is taken both by the original applicant for the discontinuance of the road and the referees.

Upon what ground the proceedings before the referees were reversed the papers do not inform us, and we are, therefore, compelled to look at the points submitted by the respondents to sustain the order and judgment of the Special Term. Several of those points relate to the original proceedings before the commissioners of highways. Without alluding to them in detail, it is a sufficient answer to say that the referees, upon that appeal, “had no power to pass upon the question of the jurisdiction of the commissioners to make the order, but are confined to an examination of the case upon the merits, upon the assumption that the order is valid.” (People ex rel. Hubbard v. Harris and others, 63 N. Y., 391.)

It is also claimed that the referees erred in admitting and receiving as evidence a paper marked exhibit “ L,” which Avas a consent, signed by one Warren G. Willis, to permit the alteration of another road across his premises, so as to avoid a steep hill, provided the road in controversy was discontinued. So far as we can gather from the imperfect return of the proceedings before the referees, the discontinuance of the road was objected to because another highway, Avhich was claimed to have made it useless, had upon it a heavy hill. The paper Avas a consent by the owner of the property to chango and alter the latter road, so as to avoid the hill by taking it through his orchard. In other words, the applicants for the discontinuance met the objection that the grade of the highway, which they claimed rendered the road which AAras sought to be annulled useless, was steep, by showing that it could readily be altered and changed so as to overcome that difficulty. The evidence Avas not improper. It tended to show that the argument founded upon the grade of the other road was not unanswerable, because such grade could readily be changed, and it thus tended to present to the referees the direct question whether the road sought to be annulled had not been made useless by the other. Conceding. however, that the referees ought not to have received the evidence, there is another answer to the point. The statute (2 R. S. [6th ed.], 162, § 154), makes the decision of the referees, “or that of any two of them * * * conclusive in the premises.” If a decision of the court of dernier resort can add anything to the force of words so clear as these, it may be said that the Court of Appeals, in People ex rel. S. & U. H. R. R. Co. v. Betts and others (55 N. Y., 600), have held like words in a similar statute “a bar as well to a review by a common-law certiorari as by appeal.”

Neither is there any force in the objection that one of the referees did not meet with the others on an adjourned day — the 29th day of January, 1876. The return shows that all three of the referees did meet, 'but that two only made the order. The decision of two was all the statute requires (see section quoted above), the other meeting with them.

No other reasons than these which we have considered were urged upon the argument to sustain the order and judgment of the Special Term. The return to the writ of certiorari, so far as we have discovered, shows no error in the proceedings before the referees. There was no error affecting their jurisdiction, cither in their appointment, or in the stops subsequently taken; and if they erred as to the merits of the appeal, there is no remedy. The statute already cited makes their decision, “ or that of any two of them * * * conclusive in the premises;” and if “ conclusive;” it cannot be reviewed,' provided they were properly appointed, and in their action obeyed the statute. Having reached the conclusion that the order and judgment appealed from must be reversed upon the merits, it is, perhaps, unnecessary to say anything concerning the judgment for costs against the referees personally, as that must also fall with the general order of reversal. So grave an error, however, should not stand as a precedent. The referees Averc simply judges, and to charge them personally with costs has neither Avarrant nor precedent. The attempt to sustain it upon 1 R. S., 384, § 6 (1 Edmonds, 357, § 6), cannot be upheld. That statute enacts: “ In all suits and proceedings prosecuted by or against counties, or by or against county officers, in their name of office, costs shall be recoverable as in the like cases between individuals. Judgments recovered against counties, or against county officers, in actions prosecuted by or against them, in their name of office, shall be county charges, and when levied and collected shall be paid to the person to whom the same shall have been adjudged.” The referees were not “ county officers,” neither was the common-law certiorari a suit or proceeding “ by or against ” them. Clearly they did not sue out the writ, and hence it wras not a proceeding “ by” them. Neither was it a proceeding “ against ” them, but a writ directed to them, as inferior judical officers, to review their action. They did not become parties to the controversy, and neither by the statute relied upon, nor by any other, or by any rule of law could they be charged personally with costs. The point is too clear for discussion.

The order and judgment of the SpeciaTTerm must be reversed, with costs, and the order and decision of the referees affirmed.

Leonard, P. J., and Boardman, J., cqnqurred.

Ordered accordingly.


text:
    JAMES R. THOMPSON, Respondent, v. FREDERICK O. BURHANS and WILLIAM B. ISHAM, Executors of BENJAMIN P. BURHANS, deceased, and GEORGE RICHARDS, Appellants, Impleaded with ABRAM B. VAN BENTHUYSEN.

      J&jeetment — what possession of wild lands sufficient to maintain action against trespasser.

    The plaintiff claims title to certain lands under a comptroller’s deed, executed in 1836, which conveyed three tracts of 6,300 acres each-; one to be laid out in the northeast quarter of township No. 47, Totten and Crossfield; one in the northwest quarter, and the other in the southeast quarter thereof. At the time of thegiving of the deed, township No. 47 was an entirely wild and native forest. Actual possession was taken of four or five hundred acres in the southeast quarter, and valuable improvements made thereon. The party claiming under the deed, also, entered upon the northwest quarter, built a shanty and barn thereon, made roads and continued in the actual enjoyment thereof, cutting and getting logs therefrom.

      Held, that the possession of the plaintiff of the tract in the northwest quarter was sufficient to enable them to maintain an action of ejectment against trespassers thereon,
    Appeal from á judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to recover an undivided five-sixteenths of a parcel of land claimed by the plaintiff to be a part of township No. 47, in Totteii & Crossfield’s purchase, in Essex county, and bounded off the north by the soiith line of Macomb’s purchase, while the defendants claim it to be a gore, situated between the north line of said township No. 47 and the south line of Macomb’s purchase. The plaintiff' claimed title under a comptroller’s deed conveying three tracts, of 6,300 acres each, one to be laid out in the northeast quarter of township No. 47 — Totter & Crossfield— one in the northwest quarter, and the other in the southeast quarter thereof, and certain acts of possession thereunder more fully "set forth in the opinion.
    The action was commenced against Benjamin P. Burhans, George Richards, Samuel T. Richards and Abram B. Van Benthuysen. Benjamin P. Burhans died, and his executors in the above-named suit wore substituted in his place. Samuel T. Richards also died, and by stipulation his ñamé was struck out of the papers in the action. The defendant above named appealed from a judgment entered upon the decision of Mr. Justice Sawyer in favor of the plaintiff.
    /S'. Brown, for the appellants.

      A. Poñd and fir. F. Fowler, for the respondent.
   Westbrook, J.:

This is an appeal from a judgment rendered in an action of ejectment in favor of the plaintiff. It was tried before Mr. Justice Sawyer without a jury, at the Essex Circuit, in May, 1877, and that was the second trial of the action, which was brought to recover an undivided five-sixteenths of a parcel of land in the north part of township No. 47, in Totten and Crossfield’s purchase, in Essex county. The defendants claim that the land is not in that township, but that it is a gore lying north thereof, and between it and the south line of Macomb’s purchase. On the first trial of the cause, which was before the Hon. Platt Potter, as sole referee, it was found, as a fact, that the land in question was in township No. 47, as the plaintiff claimed, and that there was no gore, as claimed by the defendants. This conclusion was affirmed by the General Term of this court (Thompson v. Burhans and others, 61 Barb., 260), but the judgment rendered in favor of the plaintiff was reversed in the Commission of Appeals (61 N. Y., 52; see opinion of Gray, C., p. 59, and of Earl, C., p. 61), for the reasons hereinafter stated. The same fact has been again found by Justice Sawyer upon substantially the same evidence, and its correctness must now be assumed.

Upon the first trial of this causo, as upon the second, the plaintiff claimed title to the premises under a comptroller’s deed from the State to one A. McIntyre, executed in 1836, and possession under it. The judgment rendered upon the referee’s report, on the first trial, though affirmed in this court at General Term, was reversed in the* Commission of Appeals, because, whilst it was conceded the plaintiffs had shown possession to a portion of the tract conveyed, yet such possession was not sufficient to cover the whole. But, perhaps, the decision of that court is better conveyed in its own words, through Gray, C. (61 N. Y., pp. 60, 61) : “In this case, the actual possession extended over about 400 acres. The premises purporting to have been conveyed by the comptroller’s deed consisted of three several large tracts of land of 6,300 acres each; one to be laid out in the northeast quarter, one in the northwest quarter, and the other in the southeast quarter of township number forty-seven, the three parcels containing, in all, nearly 19,000 acres. The plaintiffs’ possession was in or near the southeast corner of the 6,300 acres, which, by the deed, were to be laid out in that corner of that town. This possession, if it could by possibility bo considered to have been extended, by construction, to the whole 6,300 acres, of which it was a part, cannot be extended to other subdivisions of the same town.” The point, then, which this appeal now presents is, has the plaintiff upon the second trial presented sufficient additional evidence of possession to overcome the difficulty upon which the decision of the Commission of Appeals was based ?

To understand the point more perfectly, a fuller but brief recapitulation is necessary. It appeared on the first trial, as it also does upon the second, that possession had been taken of 400 or 500 acres of lands in the southeast quarter of the township, and extensive iron-works had been erected thereon. This was held by Judge Potter (referee), as before stated, to be a sufficient possession, by the 'aid of the paper title, to cover the promises in the possession of the defendants in the northwest quarter of the town. This court at General Term (61 Barb., 260), concurred in the opinion of the learned referee; but, as has already been shown, the Commission of Appeals hold that a possession in the. southeast quarter could not be extended constructively to another and different quarter ■ — • the northwest one. Upon this question, of fact the learned judge, before whom the second trial was had, has found : ! 1 That township number forty-seven aforesaid was, at the time of the giving of said deed, an entirely wild and native forest; that the claimants under said deed have asserted a claim of title under the same, and exorcised various acts of ownership over the same since the giving thereof, and have uniformly denied the claim of these defendants that a gore of land existed, from the first assertion thereof by them; and that, in addition thereto, the plaintiff was in the actual possession of said northwest quarter, through one Ralph, so far as the same could be acquired by the building thereon of a shanty and barn, the cutting and running of some logs and timber, and the cutting of roads and lumbering thereon, shortly prior to and at the time of the entry by the defendants Richards and Van Benthuysen, and said Benjamin P, ■ Burhans, deceased, on said premises.”

The finding of Judge Sawyer is justified by the evidence, and ' the question then is when a largo traot of land purports to be conveyed by a paper title, which is subdivided into quarter sections, upon one-quarter of which actual possession has been taken of four or five hundred acres, and valuable improvements made '' thereon, and upon another quarter, which is the one in controversy, the party claiming under the deed has entered, built a shanty and barn thereon, made roads, and was in the actual enjoyment thereof jn cutting and getting logs therefrom, when others enter — can the former recover against the latter in ejectment? - Certainly; so far as this very case has hitherto been settled by authority, the question propounded must be answered in the affimative. Judge Potteb, acting as a referee, and the General Term of this court have held the possession of the plaintiff sufficient to recover, without the establishment of any actual possession in the northwest quarter of the tract. The Commission of Appeals refused to extend the possession beyond the quarter, which was in part actually possessed, thus leaving the fair inference from their opinion, that if actual possession of a part of the northwest quarter had been shown, the recovery would have been sustained. As the land in question was wild, it is difficult to see what the plaintiff could have done more. He built a barn and shanty upon the quarter in dispute. He was devoting it to all the use it was capable of, that of lumbering, when he was disturbed by the defendant. That possession as against all the world, except the true owner, was sufficient to maintain ejectment or trespass. It was open, notorious, and under a claim of right, and it was actual possession — that kind of possession which is usually and generally taken of timber land. If it is not sufficient, then in every case must the owner of wild lands be compelled to deduce, as against a mere intruder, a paper title, which, oAvingto the imperfections of records and the want of preservation of conveyances, is generally impossible. Wg fully concur with the court in Woods v. Banks (14 N. H., 101), that “an entry upon a lot, with a view of taking possession of it, under a claim of title, and marking the lines of it by spotting the trees around it, is a sufficient possession of it against one who can show no right to enter upon the land; although, without an actual enclosure, it is not such an adversé possession as against the real owner as to bar his right under the statute of limitations.” Confessedly, in this case, the acts done by the plaintiff upon the northwest quarter were done for the purpose of taking actual possession of the whole quarter. He paid taxes upon it as a whole, and .was using it so far as he could when the defendants entered. The possession which ho had was in our judgment sufficient to maintain this action against mere wrongdoers, and snch the defendants wore, as their alleged title entirely fails by the establishment of the fact that lot No. 47 covers the premises in question. As to the alleged want of evidence to establish the subsequent possession of the defendants, it is sufficient to say that such possession is not really denied either by the pleadings or proofs. They claimed it to be a gore lying north of lot No. 47. On proof of the fact that there was no gore there, but that the promises wore in the lot aforesaid, it followed that the action of the plaintiff could not be defeated by showing that the defendants claimed no part of such lot. The fact is that they did claim a part of lot 47, though not by that name, but upon an assertion that the land ivas in a gore north of the 'lot. In short, they claimed the land, though they ignored the plaintiff’s description thereof.

The result of our examination is that the judgment appealed from should be affirmed, Avith costs.

Present- — Learned, P. J., Boardman and Westbrook, JJ.

Judgment affirmed, with costs.


author: Westbrook, J.: Learned, P. J.:

text:
    HENRY C. HOLMES v. JAMES H. McDOWELL AND SARAH R. McDOWELL. JAMES TALCOTT v. HENRY C. HOLMES AND JAMES H. McDOWELL. ROBERT H. ROUNTREE v. THE SAME. ALBERT BEEBE v. THE SAME.

      Action to dissolve an insolvent partnership — appointment of a receiver therein —< Insufficient bond— Rights of subsequent judgment creditors to preference.

    Where in an action brought to wind up a partnership, and divide its property among its creditors, an order is entered, by stipulation, appointing a receiver and requiring a bond to be given with one surety only, instead of with two as required by section 715 of the Code of Civil Procedure, such order is not void; but the court may, ata Special Term, by virtue of its general equity powers, amend it so as to require a bond with two sureties to be given.

      In this action, commenced by one partner against his copartner to adjust the affairs of the partnership, which was insolvent, and to distribute its assets equally among its creditors, a receiver was by stipulation appointed. After the commencement of this action and the appointment of a receiver and during the pendency of this action, other actions were brought against the firm by certain of their creditors and judgments were recovered therein, upon which supplementary proceedings were instituted, resulting in the same person being appointed receiver therein, as in the first-mentioned action.
    Subsequently the plaintiffs in the creditors’ actions applied to have the receiver directed to pay their debts out of the assets in his hands. Held, that the judgments recovered by the plaintiffs gave them no priority over the other firm creditors, and that the order was properly denied. (Learned, P. J., dissent-
    Appeal from an order made at a Special Term denying a motion to require the receiver, appointed in the above actions,'to pay to the plaintiffs in actions Nos. 2, 3 and 4, the amounts of their respective judgments.

      Mr. Linn and Mr. Patterson, for the appellants.

      Mr. Poster, for the respondents.
   Westbrook, J.:

The first of the above entitled actions was one to wind up a copartnership, of which Henry C. Holmes and James H. McDowell had been the sole members. The object of the action was to adjust the affairs of the partnership, which was insolvent, and to divide the property equally among its creditors. The suit was commenced March, 20, 187.8, and on the twenty-sixth day of the same month by stipulation between the attorneys, an order of this court was made making Henry C. Holmes the receiver of the partnership property without security and without compensation. On the 2d day of May, 1878, also by stipulation between the parties, an order was entered making Theodore A. Claxton receiver instead of Holmes, and requiring him to give a bond with one surety.

. ,• After the commencement of the first above entitled action, and after the appointment of Holmes as receiver, the other actions were commenced. They were brought by creditors of the firm . of Holmes McDowell, and judgments were obtained in them in due time, on which executions were duly issued and' returned ■unsatisfied. By proceedings supplementary to execution, Theodore A. Claxton was made receiver on the third day of May, 1878, which was one day after he had been appointed to the same position in the suit between the partners.

The plaintiffs, in actions numbers two, three and four, after' the appointment of the receiver in their proceedings, moved this court for an order directing him to pay their judgments. The court, at Special Term, Mr. Justice Ingalls presiding, ordered the receiver to execute a new bond in action number one with two sureties, and upon his so doing the motion was to be denied without costs. The new bond was executed, filed and approved upon the same day the order was entered, and from this order the plaintiffs in the three actions (numbers two, three and four), appealed.

Action number one is at issue and undetermined. The firm of Holmes & McDowell is insolvent, and the other creditors of the firm have had no notice of these proceedings.

It is claimed by the appellants that the order of the Special Term was erroneous for two reasons. First, because the order appointing Claxton receiver in action number one was void, for the reason that his bond was required to bo with only one surety; and second, because those creditors, who had been diligent in the prosecution of their claims to judgment and execution, were entitled to priority. Each of these points will now bo considered.

It-is conceded, that the Code of Civil Procedure (section 715) requires a bond given by a receiver to bo one with two sureties, but it is also true that section 730 provides that the court “ may, on the application of the persons who executed it, amend it accordingly; and it shall thereupon be valid from tlie time of its execution.” It is argued however, that the vice inhered in the original order itself, and that was void because it provided for but one surety by the receiver. The error in this reasoning is, that it assumes the power exercised by the Supreme Court, in the appointment of the receiver was derived from the statute, and that, therefore, all its directions must be implicitly followed; whereas, the right of this court to appoint a receiver in actions to wind up partnerships is as old as the jurisdiction of the Court of Chancery, to the prerogatives of which the Supreme Court succeeds. Having this general power, it follows that the mode and maimer of its exercise, unless declared to be jurisdictional, is directory only. So far from making a failure to follow all its requirements fatal to the proceeding instituted, the Code, after enumerating several imperfections, which shall not; after “verdict or decision,” invalidate the judgmeut by section 722, expressly enacts: “Each of the omissions, imperfections, defects and variances, specified in the last section, and cny other of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or the trial, must, when necessary, bo supplied, and the proceeding amended, by the court wherein the judgment is rendered, or by an appellate court.” If it be said that this section refers to cases in which judgment has been rendered, and that in action number one there was none, the fact in the statement may be admitted without impairing the argument to bo drawn from the provision just quoted. If this power of amendment must, as the mandatory language requires, be exercised after judgment, it certainly contains no limitation upon the right of the court to exercise it before. Indeed, the whole title of the Code (title 1, chap. 8), of which the scctioh just quoted forms a part, is not an enabling statute authorizing the court to do what it was prior to its passage powerless to accomplish, but is rather a command to exercise the powers it already possessed. What the court is required to do by section 722 after judgment, it is also commanded to do, by section 723, before judgment, in these words: ‘ ‘ And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not aflcct the substantial rights of the adverse party.” It follows, then, we think, very clearly that the original order appointing Claxton receiver in action number one was not void, and that this court at Special Term, by virtue of its general equity powers, as well as by the express provisions of the Code, had the right to amend it.

From the fact, then, that the original order appointing Claxton receiver was not void, by reason either of the terms of the order, or on account of the bond having but onesux'ety as such order provided, it follows that the .plaintiffs in actioxxs mmxbers two, three and four were xxot exxtitled to be paid, because of the invalidity of the first appointmeixt of the receiver; and if they aré to succeed upon this appeal, it must be becaxxse the recovery of their judgments and subsequent proceedings entitle them to priority of payment. That position will now be examined. It will not be denied that failing debtors can, by voluntary assignment, place the title to their property in the hands of trustees, to be converted into money for equal distribution among their creditors. Whilst such a trust was being honestly administered, no creditor by suit could obtain a preference over others; nor could the parties who made the assignment, after the acceptance of the trust by the assignee, take it from his hands without the consent of creditors, and prevent its distribution. If an insolvent partnership could, by their unaided action, thus place its assets into the hands of a trustee for equal distribution, why may it not come into a. court, which has plenary power thus to distribute the estate without the consent of the partners, and ask that the order of the court should place the effects in the hands of its own officer for the same purpose ? Is not the consent of the partners in open court to an order by the coui’t, and the acceptance of the trust by the court, indicated by its order, and the appointment of its receiver, equivalent to, and as valid as the appointment of an assignee by general assignment, voluntarily made and accepted without the order of the court ? Cannot parties do, with the sanction and permission of a court of competent jurisdiction, that which they might properly do without it, and is a trust which the court has accepted by the consent of parties, liable to bo terminated at the will of those who asked its aid, whilst one taken by an individual, through force of a written consent from the same source, is irrevocable ? If these questions must, on the authority of prior adjudications, be answered in favor of the appellants, we would still be unable, by any reasoning known to us, to demonstrate the correctness of such a response. It is true, that the cause in which the appointment of the receiver was made has not yet proceded to judgment; but it is also time that the owners of the partnership properly have, by their voluntary act, placed it in the hands of this court for equal distribution, and that the court has assumed jurisdiction over it for that purpose. It has not yet made its final order of distribution, but by the appointment of its receiver it has assured all persons interested that it will make that order in due time, and until it settles the terms thereof it will hold’ it for that purpose. If one or more creditors can, under such circumstances, obtain priority by judgment and execution, then the Supreme Court is powerless to accomplish what it has undertaken to do; and if the parties to the action may discontinue it, vacate the order appointing the receiver, and resume control of the property, then a court is only the creature of the will of others, and not an independent power clothed with the authority to do what it has undertaken; and though, at the instance of owners, it has assumed a trusteeship for the benefit of all creditors, it must, nevertheless, suspend its functions at the beck and instance of those persons who first invoked them. Such a conclusion, it seems to us, must bo unsound. The court holds the property of the insolvent firm for equal distribution, and will not, and ought not to surrender its trust, or do any act viiich will prevent it from doing-full and complete justice to all parties interested. Neither can its action be unreasonably delayed. The property, or fund from its sale, is in the hands of the court, and any interested may quicken action by quoper application. There can be, it seems to us, no sound or good reason for taking ■ from the court the trust it has assumed. It holds the property in trust for the benefit of those who may be entitled to it, and all can be fully protected. Why should it, too, upon an ex parte application, without hearing and notice to all interested, grant the relief asked for by the motion of the appellants ? There may be other parties not heard who have superior equities upon the fund in its hands, even though an equal distribution is defeated. It should not, therefore, be paid out until, in some way, the rights of all are settled and ascertained. It would be manifestly unjust, as it seems to us, at this stage of the proceedings, at least, to part with the property or any part thereof.

It may, however, be argued that the principles which have been enunciated are at war with adjudged cases, and particularly with Waring v. Robinson (1 Hoff., 524); Adams v. Hackett (7 Cal., 187); Adams v. Woods (8 id., 153); Adams v. Woods and Haskett (9 id., 24), which are relied upon to sustain the appeal. If those cases do decide that insolvent partners cannot in good faith come into a court of equity and ask it to make a just and equal distribution of the partnership property among creditors, and -when the court has entered upon the execution of the trust with the consent of all the owners, by the appointment of its receiver thereof, that its jurisdiction and power can be thwarted by the action of one or more creditors seeking a priority by judgment and execution, then they cannot be acquiesced in and followed by this court. A court of equity has as full and ample power to administer and dispose of the insolvent debtor’s estate, voluntarily intrusted to it by its owner, as the federal bankrupt court had over the estate óf an insolvent debtor, who instituted voluntary proceedings in bankruptcy. An action at law in behalf of any creditor can no more take the funds and property out of the hands of the one court than out of those of the other; and •whilst, to a certain extent, it is true that in both cases the proceeding is somewhat subject to the control of the parties instituting it, yet it must also be true, that when the court has acted upon the application, and vested the property in the one case in an officer called an assignee, and in the other in one called a receiver, but both possessing the same power and appointed for the some purpose — that of holding the property pending a final decree- — -in neither instance can the pai’tics, who have placed the property in the hands of the court, by their own action, deprive the court of its power to distribute. The property, when once in the hands of the court, is pledged and dedicated to the objects of the proceeding, and in it others become interested who have a right to invoke the action of the tribunal which has assumed control over it. But the cases cited are unlike the present. In all of them, the suit was instituted by the one partner against the other for his own protection against the alleged fraudulent conduct of such other. They all lacked the elements of admitted insolvency, and the consent of all the partners to the court’s taking the property and holding it for a final, just, and equal distribution among all creditors. It is possible, though it is not fully conceded to be sound, that when one partner socks the aid of the court against the other, and the tribunal invoked simply holds the property for the benefit of its owners, it may permit one creditor to obtain priority over another. Perhaps in such a case, as the court has not taken the preliminary stop for the purpose of making a final distribution among creditors, it might be plausibly argued that the creditors seeking payment by action are not endeavoring to defeat the trust which the court has assumed. In the case before us, however, no such argument can possibly apply. The court has assumed to act, with the consent of the original owners, to make a just and equal distribution. It holds the property for that purpose. Creditors are the cestui que trusts of the court, and they cannot be defrauded unless the court lends itself to the fraud. The tribunal which has assumed to act must proceed, and such action can neither be thwarted nor defeated by the action of any creditor.

The order appealed from must be affirmed, with ten dollars costs and the disbursements for printing.

Boardman, J., concurred.

Learned, P. J.:

I cannot agree with my brethren upon the more important question presented ; that is, whether the appointment of a receiver pendente lite, in an action brought by one partner against another to dissolve the partnership, prevents a creditor from obtaining, prior to judgment in that action, a preference over other creditors. Where partners make a voluntary assignment for the benefit of creditors, they cannot afterwards revoke it. Such an assignment is, therefore, not analogous to the appointment of a receiver pendente lite. No authority is cited showing that, before judgment, the parties to such an action cannot discontinue of their own volition. Whiteside v. Prendergast (2 Barb. Chy., 471), cited by the respondent, docs not touch this point at all. And if the parties may voluntarily discontinue the action, then clearly the appointment of a receiver pendente lite is not irrevocable ; as is an assignment for the benefit of creditors.

It is true that the court will not permit the possession of its receiver to be disturbed by actions. This is because the proper mode of obtaining relief as to property held by him is to apply tq the court on motion, since he is the- officer of the court. But this principle does not determine whether liens may not be acquired as to property held by a receiver ; which liens the court will recognize and enforce. (Stewart v. Beale, 14 N. Y. S. C., 405 ; Myrick v. Selden, 36 Barb., 15.)

The case of Noe v. Gibson (7 Paige, 513) ; Bailey v. Belmont (10 Abb. [N. S.] 270), and O’Mahoney v.Belmont (62 N. Y., 133), decide nothing oii the question, whether or not a right may be acquired by a creditor, under circumstances like the present, which the court will enforce on motion.

I suppose that it cannot be claimed that any greater right was acquired by the receiver in this case, from the fact that he was appointed by consent, than would have been acquired if he had been appointed on the plaintiff’s motion, opposed by the defendant. Suppose, then, that, after such an appointment of a receiver pendente lite, the action proceeds to judgment, and it is then decided that the parties were not partners, could it be pretended that creditors of the parties had any rights in the receivership ? The receivership would necessarily be at an end. So, if in this present case the defendants in their answer should deny the existence of the partnership, and the plaintiff should make no proof thereof on the trial, then the receivership must come to an end, and no creditors of the parties could claim any rights therein.

The mistake, as I apprehend, is this : a receiver pendente lite, merely holds the property till some decision is made.' Iiis appointment decides nothing and fixes no rights. On the contrary, when a judgment is granted, as in a suit like this for dissolution of the partnership and for distribution of the assets among creditors of the partnership, and thereupon a receiver is appointed for that purpose, rights are thereby established and creditors become quasi parties; for they are then called in to prove their claims. *•

These positions are sustained by decisions, and no decisions to the contrary are cited. In Waring v. Robinson (Hoff. Chy., 524), the court refers to a decision of its own in Pratt v. Robinson, that a judgment obtained adversely to partners was entitled to priority. The court further says: “ Until decree upon a partner’s bill, the suit is wholly within the control of the parties. The complainant may dismiss his bill when he chooses; but a decree pronouncing a dissolution assumes the control of the assets.” The same view is taken in Ellicut v. U. S. Ins. Co. (7 Gills [Md.], 307), the details of which case I need not state. The subject was considered very carefully in three cases in 'California involving largo amounts. (Adams v. Hackett, 7 Cal., 187; Adams v. Woods, 8 id., 152; and Adams v. Wood and Haskell, 9 id., 27.) In the last of these cases tho court says that the case was under the plaintiff's control until a decree of dissolution. And again, in the first of the cases, “ that until a dissolution has been judicially declared, and a receiver ordered to make a pro rata distribution of the partnership assets among the creditors, they are not prevented from resorting to adverse proceedings; and that when a creditor does resort to such proceedings, he may thereby gain a preference over those creditors who are less diligent.” If anything were needed to show the good policy of this rule, I think the proceedings in the present case would be sufficient. One partner commenced an action, March twenty-second, against his copartners. On tho twenty-sixth he and they stipulated that tho plaintiff himself should be appointed receiver without giving security, and an order was actually made appointing the plaintiff receiver of his own firm, without giving security, and authorizing him to appropriate so much as might be necessary of funds arising from sales or collections, as well as money on hand, to the payment of all just claims, accounts or debts due and owing, or to become due, and owing to any person or firm. These claims, accounts and debts were not required to be paid pro rata; and the receiver was to continue the business as he might deem advisable, and reimburse himself for advances, engagements, and neces- . sary exjDenses. If such an order is to prevent a diligent creditor from acquiring rights by regular proceedings, it is certainly not because it was made in the interest of creditors generally.

I might further illustrate these views by a reference to the appointment of a receiver pendente lite in an action for foreclosure. It certainly could not be pretended that such an appointment would prevent a diligent creditor from acquiring a lien on the property in litigation, which would be recognized on the final decree. For these reasons I think that the appointment of the receiver pendente lite, in the action to dissolve the partnership, did not prevent creditors of the partnership from proceeding with their actions against the firm, and with the supplementary proceedings thereon; that while they are not to be permitted thereby to disturb the receiver’s possession, they can, by such actions and proceedings, acquire a lien on the property in his hands which the court should enforce by motion; and in my opinion the order should be reversed.

Order affirmed, with ten dollars costs and disbursements for printing.