text:
    JOSEPHINE HULL, Respondent, v. JEREMIAH S. HART, Appellant.

      Action in the first judicial district — the proceedings in it may he staid, pending appeal, by a judge in any part of the State.

    A judge out of court in any part of the State may make an order staying all proceedings in an action brought in the first judicial district, during the pend ency of an appeal taken from an order there made denying a motion to change the place of trial.
    Appeal from an order of the Special Term vacating an order (made by a justice of the Supreme Court in Saratoga county) staying the plaintiffs proceedings in this action during the pendency of an appeal from an order made in the first judicial district denying a motion for a change of venue.

      A. 8. Bwrdiehfor the appellant.

      A. II. Reamey, for the respondent.
   Per Curiam :

In this case the defendant moved to change the place of trial from the city and county of New York to the county of Saratoga. This motion was made at the Special Term, and denied. From the order denying the same the defendant took an appeal to the General Term, and obtained from a justice of the court residing in Saratoga an order staying proceedings pending the appeal. On motion, at the Special Term in this district, that order was vacated on the ground, apparently, that the justice residing in Saratoga had not power to grant the same.

We think the decision was erroneous. By section 1351 of the Code, a judge of this court anywhere in the State may make an order staying proceedings under the judgment or order appealed from; and by section 775 of the Code, a judge out of court may make an order staying proceedings, for a longer time than twenty days, under the order or judgment appealed from ; and by section 112, it is provided that where an order may be made by a judge of the court, out of court and without notice, and a particular judge is not particularly designated by law, it may be made by any judge of tbe court in any part of the State.

The provisions of section 769, which requires that motions in actions triable in the first district shall be made in that district, only apply to motions made upon notice. The order of stay made by the justice at Saratoga was an exporte one, and, as. we understand the Code, within his power to make. It should not, therefore, have been set aside on the ground of want of power.

The order should be reversed, with ten dollars costs and disbursements.

Present — I)avis, P. J., Brady and Ingalls, J J.

Order vacating stay reversed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    In the Matter of the Petition of the MUTUAL LIFE INSURANCE COMPANY OF NEW YORK to Vacate an Assessment, etc.

      Streets in Newfork — power to fix a/nd establish their grades — 1871, chap. 336, sec. 4.

    Section 4 of chapter 336 of 1871 authorized the commissioner of public works to establish and fix the grades of the streets extending to the East river, north of East Fourteenth street and east of First avenue, “where the same have not been heretofore fixed and established by law.”

      Held,, that the restriction imposed upon the commissioner by the concluding words of the section did not relate to streets the grades of which had been established by ordinances of the common council, passed in pursuance of the general laws relating to that subject, but only to those streets the grades of which had been fixed and established by express legislative acts.
    Appeal from ah order of the Special Term vacating an assessment.

      J. A. Beall, for the city of New York, appellant.

      O. E. Miller, for the petitioner, respondent.
   Per Curiam :

The petitioner’s property was assessed in this proceeding on July 3, 1875. In August, 1880, the petitioner sought to vacate the assessment, upon the ground that the street was regulated upon an unlawful grade ; that the contract therefor was illegal, and that the-flagging should have been laid twelve feet in width instead of four feet, as it was in fact laid.

The change of grade was made under the act of 1871. (See § 4, chap. 226, Laws of that year.) The commissioner of public works was authorized, within six months after the passage of that act, to establish and fix the grades of the streets extending to the East river north of East Fourteenth street and east of First avenue, “ where the same have not been heretofore fixed and established by law.”

The theory of the petition rests upon the concluding words, namely, where the same have not been heretofore fixed and established by law; ” and it insists that, as the grade of One Hundred and. Sixth street was fixed and established by the common council in December, 1853, that street was not one of which it could be said that the grade had not theretofore been fixed and established by law. We think that this construction of the section referred to was erroneous, and that the legislature meant to confer the power upon the commissioner to make the change of grade in cases where they had not directly interfered by direct statute for the particular purpose designated. The .instances in which the common council, under the general laws relating to the subject, had established the gi’ade, were not those contemplated by the language upon which the petition relies, namely, where the same have not been heretofore fixed and established by law.”

We are unable to perceive how the petitioner could be injured by the omission to lay the flagging twelve feet wide instead of four.

The expense must have been diminished by such a proceeding, and the petitioner therefore benefited.

The subsequent flagging of twelve feet must necessarily, in such a case, be paid for by general taxation.

For these reasons we think the order appealed from should be reversed.

Present — Davis, P. J., and Brady, J.

Order reversed.


author: Per Curiam:

text:
    CHARLES P. BERDELL, Appellant, v. JULIA C. BERDELL and Others, Respondents.

      Examination of a party before trial — when it does not preclude the examination of the prn'ty at the trial.

    The plaintiff examined the defendant as a witness before the trial, He subpoenaed her as a witness upon the trial, and, without having read her deposition taken before the trial, sought to have her sworn in order to prove facts about which she had not been examined, and to ask some questions inadvertently omitted on the prior examination. The court ruled that the plaintiff, having examined the defendant as a witness before the trial, could not call her as a witness, and refused to allow her to be sworn.

      Held, that this was error.
    Appeal from a judgment in favor of the defendants, entered upon tbe trial of this action by the court without a jury.

      A. Taylor, for the appellant.

      Niles <& JBagley, for the respondents.
   Per Curiam:

Our examination of this case upon the merits leads to the impression that the complaint was properly dismissed. But we are not disposed to pass upon that question distinctly, because we think a new trial must be granted upon exceptions taken to the rulings of the court.

The plaintiff had examined the defendant, Julia C. Berdell, under the provisions of the Code. He subpoenaed kirs. Berdell and brought her into court as a witness at the trial, and asked that she be sworn. The counsel for the defendant objected to her being sworn, on the ground that she had been examined before the trial at the instance of the adverse party. The court thereupon ruled that, having been examined before trial at the instance of the adverse party, she could not be called as a witness at the trial by the adverse party. To this ruling the plaintiff duly excepted.

The following further proceedings'were, then had, as appears in the case:

Plaintiff’s Counsel. — I propose to call Julia C. Berdell to prove additional facts about which she was not examined before the trial. (Objected V>.)

The Court. — You cannot call her as a witness, having examined her before the trial. To which ruling plaintiff duly excepted.

Plaintiff’s Counsel. — This examination was taken at the office of the defendant’s counsel, and no judge was present, and I desire to ask her some questions inadvertently omitted to be asked on the examination.

The court refused to permit her to be called as a witness, to which ruling counsel for plaintiff duly excepted.

Plaintiff’s Counsel. — I desire to prove by her some facts not included in this examination, and on which she was not examined.

The court refused to permit her to be called as a witness, to which ruling of the court plaintiff duly excepted. Under this ruling of the court plaintiff’s counsel read the examination of Julia C. Berdell taken before trial.

"We are of the opinion that the rulings of the court, in disposing of the several offers of the counsel, and in refusing to permit Mrs. Berdell to be sworn as a witness, were erroneous. • The Code does not, by any of its 'provisions, preclude a party who has examined his adversary in an action, out of court, from calling him at the trial as a witness, especially when the object of so calling him is declared to be to prove additional facts about which he was not examined, and to ask questions inadvertently omitted to be asked on the examination. "Where an examination taken out of court has been read upon the trial by the party in whose favor it was taken, the court may properly preclude that party from further examinátion upon the subjects embraced in the deposition. But even in such case, it was said in Wilmont v. Meserole (40 Superior Court Rep., 321), that the party would be at liberty to examine as to new matter, or as to matters which, by inadvertence, had been omitted.

But when an examination taken out of court is not used, or sought to be used, by the advei’se party, we do not think the Code precludes the calling of the witness by such party on the trial in court for a general examination. But if this be not so, that is certainly no ground for holding that an examination cannot be had as to new matter, or as to subjects inadvertently omitted.

For these reasons we think the judgment must be reversed and a new trial granted, with costs to abide the event.

Present — Davis, P. J., Brady and Ingalls, JJ.

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


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

text:
    THERESE SCHULTZ, Respondent, v. THEODORE SCHULTZ, Appellant.

      Ma/rried woman — may sue her husband for an assault and batte/i'y — an crrder for . his a/rrest may be granted in such suit.

    Under section 7 of chapter 90 of 1860, authorizing a married woman to “ bring and maintain an action in her own name for damages, against any person or body corporate, for any injury to her person or character, the same as if she were sole,” a wife may bring an action against her husband for an assault and battery, and may procure therein an order for his arrest. (Davis, P. J., dissenting.)

      Freethy v. Freethy (42 Barb., 641); LongendyJee v. LongendyJee (44 id., 366), not followed.
    Appeal from an order made at Special Term denying a motion to vacate an order of arrest.

      Benno loewy, for the appellant.
    /

      L. Ansbacher, for the respondent.
   Brady, J.:

This is an action for assault and battery; the parties are husband and wife. There is no doubt that the papers presented upon the motion contain a sufficient statement of the cause of action; and the question is, therefore, whether the defendant, being the husband of the plaintiff, can be arrested and held to bail in such an action as this.

The Code (sec. 549, sub. 2) authorizes the commencement of an action to recover damages for a personal injury, and the granting of an order of arrest therein generally, containing no provision as to the suitor who asks for the remedy. It presents nothing, therefore, upon the question suggested. There is nothing either contained iu the acts of 1848 and 1849 in relation to married women (see Laws of those years; chap. 200 of 1848 and chap. 375 of 1849) bearing upon the subject here to be discussed.

In I860, however, an act was passed by the legislature (see Laws of that year, chap. 90) which seems to be an independent act, having no relation whatever to the acts of 1848, 1849.

It was provided by section 7 as follows:

“And any married woman may bring and maintain an action in her own name for damages, against any person or body corporate, for any injury to her person or character, the same as if she were sole.”

That section was amended by an act passed in 1862 (See Laws of that year, chap. 172), but not in respect to the provision relating to her right to bring an action, as provided by the act of 1860.

These acts in express terms, therefore, conferred the right and they were acts that treated of the property and rights of a married woman as if a feme sole and unmarried, to maintain an action against any person for any injury to her person or character. And it was declared in both acts that the money received upon the settlement of any such action should be her sole and separate property.

There are some adjudications which are supposed to have interpreted the intention of the legislature in regard to the effect of the provision referred to in the statutes of 1860 and 1862, which are not in harmony.

In the case of Freethy v. Freethy (reported in 42 Barb., 641), it was decided that a wife could not maintain an action against her husband to recover damages for slander uttered by him, and it was declared that the legislature did not intend by the laws of 1862, to which reference has been made, to change the common law rule as to the disability of husband and wife to sue each other at law. It was admitted in that case that the words “ any person ” in the acts of 1860 and 1862, were very comprehensive, and might, in a proper case, be held to include a husband; but it was said that the question was “ whether in view of all that the act contains, and of all the surrounding circumstances, we can infer that the legislature intended that a wife might bring such an action,” and further, “ if the words used necessarily included the husband, we should not be at liberty to say that they were inoperative.” But the court said, they do not, and it is our duty to ascertain, if we can, whether the legislature meant to include suits against him.”

This is a very well considered case, but it is supposed that the devotion to the rigorous rule of the common law governing the relation of husband and wife, controlled the learned justice, and influenced his decision. He is not the only learned writer who has yielded to the influence of that same emotion and thus circumscribed the objects and purport of the acts of 1848, 1849, 1860 and 1862.

In the case of Longendyke v. Longendyke (reported in 44 Barb., 366) it was held that a married woman could not sue her husband in an action for assault and battery. The learned justice delivering the opinion in that case commenced by saying that it was conceded by counsel that by the rules of the common law husband and wife could not sue each other in a civil action, and that the question presented was whether that right had been conferred by the statutes of 1860 and 1862, to which reference has been made. It wras said also in that case that the right to sue the husband in an action for assault and battery might, perhaps, be covered under the literal language of the section, but the learned justice said that he thought that such was not the meaning and intention of the legislature and should not be the construction given to the act for certain reasons which he assigned, one of which was that it was contrary to the policy of the law and destructive of that conjugal union and tranquillity which it has always been the object of the law to guard and protect. And he said that the act of 1862 conferred the power to sue and be sued in somewhat broader forms than those contained in the act of 1860, but not in a manner, he thought, to lead to the implication that the husband wfas intended to be permitted to be sued by the wife for injuries to her person and character as in an action for assault and battery or slander.

It is not regarded as discourteous to say that the ill treatment of the wife by the husband, which consists in the violence of an assault and battery, is more destructive to conjugal union and tranquillity than the declaration of a right in the wife to maintain an action against her husband for an assault and battery upon her would be. It is not at all unlikely that it would operate as a restraint upon militant husbands disposed to indulge in such evidence of conjugal J union and tranquillity. I

No husband, either by the laws of God or man in any civilized community, has the right to abuse his wife, although it was, perhaps, : recognized in earlier times as a principle of the Saxon law and was as contemptible as it was barbarous. But that view no longer prevails. If the husband be disposed to indulge in violence against . his wife lie should be restrained by all the rules designed to prevent brutality. This class are the only persons who would be affected by the enunciation of the right of a wife to maintain such an action. Men who have no kindréd propensities would not fail to recognize the rule as a just one. It would be a condemnation of barbarous / acts as well as an expression of the right to indemnity for their i commission.

In the case of Perkins v. Perkins (reported in 62 Barb., 531) it was declared that a husband could not maintain an action at law against his wife to recover pay for services rendered, any more than he could before the acts under consideration were passed. The learned justice who delivered the opinion in that case exhibited his devotion to the common law doctrine which prevailed in this State prior to the passage of the acts mentioned. He said that at common law the husband and wife by marriage became one person. The very being or legal existence of a woman was by the common law suspended during the marriage, or at least was incorporated and consolidated into that of the husband under whose wing and protection she performs every act.

It may not be improper to say that she could not derive any particular benefit from being under the wing and protection of a husband who commits an assault and battery upon her.

It may possibly be that the husband in performing such an act designs to exercise in anticipation all the privileges that might be assumed by any man over a woman, and by committing it, to anticipate as well a similar act by any other person, and from the proud conscientiousness of being the absolute possessor of the woman, to whom he was united by the marriage tie. It may possibly be that ' the incorporation and consolidation spoken of is of such a character 1 that any husband beating his wife must necessarily beat himself. This is certainly a logical result.

These statutes, it was also declared, were in derogation of the common law, and were to be construed with reference to that law as it existed when they were passed. The answer to this is, that the object of these statutes was to invade the common law and dispel it, which they have successfully done. If the common law was to be preserved, then it was not necessary to pass any statutes in reference to the subject. The statutes were presumably intended to overcome' in many respects the disability which the common law had created and to remove the impediments by which married women.were surrounded and their rights subverted. The learned justice admitted that the statute of 1862 conferred in general terms upon a married woman the power to sue and be sued in all matters having reference to her sole and separate property, and also to recover damages for injuries to-her person, which damages, he stated prior to the passage of the act, belonged to her husband. Then giving evidence of the influence upon his mind of the rules of the common law to which he so frequently refers, he concluded by saying that until the highest court of review should determine otherwise, he felt bound to hold that the unity of person created by the mafriage contract between the husband and wife had been no farther severed than the statutes in express terms, or by necessary implication, had effected that purpose.

It is respectfully insisted that the statute of 1862 conferred in express terms the right to maintain,an action against any.person for a personal injury, and by implication, if implication were necessary to be invoked, against her husband, who has no more right to beat her than a stranger. The marriage tie conferred no such power, no such right and no such privilege. It is, on the contrary, founded, or supposed to be, if not in fact, upon the proposition of love and affection, which would not only repudiate, but look with abhorence upon any such treatment.

In the case of Berdell v. Parkhurst (reported in 19 Hun, 358), however, it was held in the second district, that a husband might maintain an action at law against his wife to recover property belonging to him which had been forcibly seized and carried away by her. The learned justice who delivered the opinion in that case, said: “ The plaintiff is entitled to his own property and so is his wife. He can bring an action for a conversion against any one who violates bis right, to have and possess his own property, unless his wife be a person excepted by the relation of husband and wife. She has the same right of action against all trespassers, unless her husband is the sole exception.” And he further said : “ It has been decided that a wife may not sue her husband for slander nor for assault and battery, nor for wages,” referring to' the cases which have been cited herein and criticised, and also the case of Shuttleworth v. Winter (55 N. Y., 625), which has no bearing upon the subject under consideration, no reference is otherwise made to the acts of 1860 and 1862, in the opinion of the court. •

In the ease of Jamieson, reported in the 11th of Hun (page 38),' and decided in this district and in this court, it was held that in an action by a wife .for a limited divorce on account of cruel and inhuman treatment by her husband, an order of arrest could be maintained under section 179 of the Code, and there is no substantial difference between that section and section 549 of the Code of Civil Procedure, to which reference has been made. They both provide for orders of arrest in actions for a personal injury.

The learned justice who delivered the opinion in that ease said, that the relief in the action must be strictly equitable, but that there was nothing inconsistent between that fact and /the fact that the action was for an injury to the person. That the cause of action as alleged and as required by the statute relating to divorces of the kind sought, sprang out of direct personal injury by the husband of his wife, which must be of such a character as to prove cruel and inhuman treatment, or such conduct on his part as to render it unsafe and improper for her to cohabit with him, and further, that upon the facts alleged, the acts of the husband were in part criminal assaults and batteries, frequently repeated, and which inflicted serious repeated injuries upon the person of the plaintiff, which injuries gave her the right of action for the remedy which she pursued,- and that her cause of action might be properly described in the language of the Code as one of pure injury to the person. If so, the right of arrest against the defendant was given by section 179 of the .Code, on showing that the cause of action existed in the manner described.

This case, therefore, decides that in an action equitable in its character resort might be had to a provision relating to actions at law for an injury to the person to secure the application of a provisional remedy, namely, the right to arrest; and as the right to arrest is predicated in that case, of the assaults, and batteries committed, and which could not be resorted to except in an action relating to them, no difference in principle is discovered between that action and the present except in the prayer for judgment.

In an action for limited divorce the plaintiff, if - successful, would obtain a decree of separation, and also a money judgment directing the support and maintenance of the wife. The court would in such a case order the payment of a sum of money for the support and maintenance of the wife unless there was some special circumstance in the case which would prevent such a decree.

. The legislature did not fail in the laws passed in 1848 and 1849 to exclude the husband from transactions with which it was deemed just or proper he should not be connected, and it was accordingly provided that any married woman mignt take by gift, grant, devise or bequest from any person other than her husband and hold to her own use, etc. If the words “ other than her husband ”■ had not been inserted the act would have authorized the gift or grant from the husband directly, and this was foreseen and prevented because it was not then so intended.

In the act of 1860 (supra), by the seventh section, the right was given to any married woman to sue and be sued on all matters having relation to her property which might be her sole and separate property, or which might thereafter come to her by descent, devise, bequest, or the gift of any person except her husband, in the same manner as if she wei’e sole, but in the amendatory act of 1862 (supra) the words “except her husband” were omitted thus revoking all restrictions and giving a right unlimited. These features of legislation in the State on the subject of a married woman’s disabilities arising from the strict rules of the common law are referred to only for the purpose of showing that when the husband was to be excepted from the provisions expressed it was so declared. The legislature, therefore, proclaimed its own intention in its own form. Nothing of this kind was done in conferring upon a married woman the right to sue and be sued, and if any argument is to be indulged on the question of intention then the result is in favor of the proposition that the husband was not to enjoy amenity from arrest in any action the wife might bring against him in which the right to arrest was allowed.

Bnt without pursuing this subject further, it is considered quite' sufficient to say that the language of the statute is, as conceded by some of the learned judges to whose opinions reference has been made, quite comprehensive enough to include the husband as one of the persons against whom the wife may bring an action for an assault and battery, and who has been relieved from liability under the language of the statute only by judicial resort to what is-declared to have been the intention of the legislature on the subject. To allow the right in an action of this character, in accordance with the language of the statute, would be to promote greater harmony by enlarging the rights of married women, and increasing the obligations of husbands, by affording greater protection to the former, and by enforcing greater restraint upon the latter in the indulgence of their evil passions. The declaration of such a rule is not against the policy of the law. It is in harmony with it, and calculated to preserve peace, and in a great measure prevent barbarous acts, acts of cruelty, regarded by mankind as inexcusable, contemptible, detestable.

It is neither too early nor too late to promulgate the doctrine that if a husband commits an assault and battery upon his wife, he may be held responsible, civilly and criminally, for the act, which is not only committed in violation of the laws of Grod and man, but in direct antagonism to the contract of marriage, its obligations, duties, responsibilities, and the very basis on which it rests. The rules of the common law on this subject have been dispelled, routed, and justly so, by the acts of 1860 and 1862. They are things of the past, which have succumbed to more liberal and more just views, like many other doctrines of the common law which could not stand the scrutiny and analysis.of modern civilization. They have gone . to that bourne from which no traveler returns, where they must rest forever, undistinguished by a single tear shed over their departure.

The order appealed from should therefore be affirmed, with ten dollars costs and disbursements.

DáNIEls, J., concurred.

Davis, P. J.,

dissenting :

Several authorities cited by my learned brother Beady, show that it has been adjudicated by the Supreme Court of this State, that actions of assault and battery and of slander cannot be brought by a wife against her husband. Those adjudications necessarily involved the construction of the statute under which the right to bring such an action is now claimed.

I think they should be accepted by us (after they have stood unreversed for so many years) until the question is otherwise decided by the court of last resort.

There was nothing in conflict with those decisions in holding as ' this court did, that in an equitable action for limited divorce on the ground of cruel and inhuman treatment, rendering it unsafe for the wife to live with the husband, he could, on a proper case shown, be arrested and held to abide the judgment, because the nature of the action was one for injury to the person.

The order of arrest in such case was in lieu of the old writ of ne exeat, by which the court of Chancery held the husband to await its judgment within the jurisdiction of the court.

I heartily concur in the unbounded detestation of wife beaters which my brother Beady has so forcibly expressed; and I think the legislature might well provide a carefully prepared statute giving direct personal remedies by suit in such cases.

But the court has decided that that has not yet been done, and the doctrine stare deeisis requires us to leave to the Court of Appeals, or to the legislature, the gallant duty of setting the law free to redress, by civil actions, all the domestic disputes of husband and wife, whether committed by unbridled tongues or angry blows. Their rights, however, to such redress ought I think to be mutual; and to have due regard to the fact that many acts, words and things which would be assaults and, batteries and slanders,between other persons have no such character between husbands and wives. And perhaps some provision should be made for reasonable opportunities for the restoration of domestic peace by amicable settlements free from the liens of litigious attorneys. I must, therefore, in the present state of things, dissent from the conclusion of my brethren.

Order affirmed, with costs and disbursements.


author: Beady, J. : .Davis, P. J.: DaNiels, J.:

text:
    JOHN SULLIVAN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Reversal of a conviction — when a new trial may he directed — 3 R. 8. (6th ed.), 995, sec. 49.
    The plaintiff in error was tried upon an indictment charging him with burglary in the first degree, and convicted oí an attempt to commit that crime. The evidence was not sufficient to justify his conviction of burglary in the first degree, or of an attempt to commit that offense, but would have justified his conviction of burglary in the second degree. Upon the argument at General Term the counsel for the plaintiff in error claimed that a new trial of the plaintiff was forbidden by section 49 (3 R. S. [6th ed.], 995), which provides that when a defendant shall be acquitted or convicted upon an indictment for an offense consisting of different degrees, * * * he shall not thereafter be tried or convicted for a different degree of the same offense, nor shall he be tried or convicted for any attempt to commit the offense charged in the indictment, or to commit any degree, of such offense.

      Held, that the conviction should be reversed and a new trial ordered. (Brady, J. dissenting, and holding that the conviction should be reversed and the prisoner discharged.)
    Writ of eeeoe to tbe Court of General Sessions of tbe city and county of New York, to review tbe trial of the plaintiff in error and bis conviction of an attempt to commit burglary in tbe first degree.

      John 0. Mott, for the plaintiff in error.

      John Vincent, for the defendant in error.
   Beady, J. :

The prisoner was indicted, charged with burglary in tbe first degree, in having broken into and.entered tbe dwelling-house of Nicholas Smith, by means of forcibly breaking open an outer window of such dwelling whilst there was then and thgre some human being within it, to wit, the said Nicholas Smith. On the trial Smith was called as a witness, and testified that on the night of the burglary he shut up the house; that there was a window leading to the roof which was large enough for a person to get through if it was open ; and if a person did get through it, he would immediately enter the sleeping room where some of his boarders slept; and that that was the only window in that room which opened out upon the roof, but he did not know whether it was open or shut on that night. He testified further that there was no place broken down stairs, to use his own language; and that no person could get into the house unless he got on the roof; and, further, that when he went up stairs on being alarmed, the first thing he heard was the breaking of glass, and although he did not at that time look at the window spoken of to see if the glass was broken, he after-wards saw that it was broken. It further appears that the prisoner was seen going out through the window, and that he was found on the top of the house by the officer who went in search, of and arrested him, and that upon being asked what he was doing there said, “I was led into this.” He made no explanation. The indictment, as already suggested, was for burglary in the first degree, and upon the conclusion of the case on the part of the people the prisoner’s counsel requested the court to charge that there was no evidence of burglary and that the jury could not convict the prisoner on the first count in the indictment, to which the court responded: There is very little evidence of the breaking. There is some evidence tending to show that the prisoner broke a pane of glass. I will leave it to the jury to determine the facts.” The prisoner’s counsel thereupon said: Give me the benefit of the exception.” The request to charge seems to be infelicitous in form; it is that the jury should be instructed that there was no evidence of burglary. This is clearly inexact because the evidence shows that the prisoner entered the house without permission, without right, unlawfully, and undoubtedly through the window to which reference has been made. And the request was also based on the supposition that there was more than one count in the indictment, which was erroneous as there was but one count in that pleading. Perhaps it may be said the design of the request was to assert that there was no evidence of burglary in the first degree, and that the prisoner could not therefore be convicted of that offense. The jury, however, found the prisoner guilty of an attempt only to commit burglary in the first degree and he was thereupon sentenced to the State prison for the term of seven years and six months. It is quite apparent that the evidence was not sufficient to establish a forcible breaking and entrance. All that appears on that subject is the breaking of a pane of glass, and that does not appear to have resulted in making an opening through which the prisoner could enter the premises, whilst it does appear that the window may have been open, and if so that the entry may have been effected without any breaking, in which case the offense was not burglary in the first degree. (People v. Burt, 3 Alb. Law Jour., 96; People v. Fillinger, 24 How. Pr., 321; People v. Bush, 3 Parker, 552.)

It was the duty of the court, therefore, to have instructed the jury that the evidence was not sufficient to prove the crime of burglary charged. If the prosecution fail in some element of proof necessary to constitute the crime it is a clear case for the interposition of the court. (People v. Bennett, 49 N. Y., 137.) Here the proof of the breaking in was an element necessary but wanting. The learned recorder, as already shown, entertained the view himself that there was very little evidence of the breaking, there being only some tending to show that, the prisoner broke a pane of glass. But as already suggested it does not appear that the glass broken covered a space sufficient to admit the prisoner’s body, and if any presumption is to be indulged in it is that a pane of glass in such a window as that described would be too small to allow any such performance. The breaking should be sufficient to allow an entrance to be made, otherwise it would amount to an attempt only. The case was submitted to the jury, therefore, upoii the single fact in reference to the breaking in, if that were sufficiently proven, that the prisoner broke a pane of glass and which was to be inferred from the fact that the breaking was heard, and not from his having been seen committing the act of breaking. The prisoner could have been convicted nevertheless of burglary in the second degree under the statute, because the evidence conclusively established that he had burglariously entered the premises. (3 E. S. [6th ed.], 940, § 14, 995, § 48.) But he could not be convicted of an attempt, because the statute declares that no person shall be convicted of an attempt’ to commit any offense unless it shall appear that the crime intended or the offense attempted was not perpetrated by him. (3 E. S., supra, 994, § 47.) In this case the crime of burglary in tbe second degree on tbe evidence, was accomplished. Tbe prisoner bad unlawfully entered the premises with a felonious intent and was seen therein, and under such circumstances as to leave no doubt of his intention feloniously to appropriate property. Tbe prisoner can be convicted of an attempt only when be shall fail in tbe perpetration of tbe crime intended, or shall be prevented or intercepted in tbe execution of tbe same. (3 E. S., supra, 988, § 3.)

The offense charged being burglary in the first degree, and tbe evidence showing tbe commission of the offense of burglary in tbe second degree, the jury could not convict him of an attempt, and the conviction was therefore erroneous.

The learned counsel for the plaintiff in error insists that the effect of this conviction is that his client should be discharged from further imprisonment absolute^. This proposition rests upon the provision of the statute (see 3 E. S., supra, 995, § 49), which declares that when a defendant shall be acquitted or convicted upon an indictment for an offense consisting of different degrees, as prescribed in the chapter, he shall not thereafter be tried or convicted for a different degree of the same offense, nor shall he be tried or convicted for any attempt to commit the offense charged in the indictment, or to commit any degree of such offense; and he relies upon the adjudication in the case of The People v. Dowling (84 N. Y., 478), and in the case of Guenther v. The People (24 N. Y., 100).

There is, as already suggested, but one count in the indictment, which is for burglary in the first degree, and the verdict being for an attempt to commit that crime, is, under the authorities named, an acquittal upon all the degrees of burglary charged or of which he could be convicted.

Under the provisions of the statutes and these authorities, therefore, the logical result is that he cannot be tried upon any other charge connected with the transaction than an attempt to commit burglary in the first degree, of which he was convicted. He can be tried again for that same offense, but under this indictment and the proof, as already demonstrated, he could not be convicted of an attempt to commit burglary in the first degree. To recapitulate, he has been indicted for burglary in the first degree, he has been acquitted of burglary in all the degrees and he has been found guilty of an attempt to commit burglary in the first degree, which the evidence does not sustain. Under the provisions of tbe statute he cannot be tried again for any offense of a higher grade. He can only be tried again for the same offense, which would be for an attempt to commit burglary in the first degree; and the evidence in this ease sustains the proposition that he could not be convicted of that offense, because he was guilty of burglary in the second degree. Hence his discharge seems inevitable..

The judgment should therefore be reversed and an order entered discharging him.

Ordered accordingly.

.Davis, P. J.:

I agree to the reversal of the judgment, but not to the discharge of the prisoner. I think a new trial should be ordered. Upon the reversal and venire de novo or error brought by the prisoner the case stands precisely as though no trial had ever been had. The prisoner has in legal contemplation been neither convicted nor acquitted of any degree of burglary. On his new trial he can be convicted of any offense lawfully embraced within the indictment, and all that has taken place on the former trial goes for nothing, either for or against him.

I am not able to agree to the conclusion of Beady, J”., that the prisoner must be discharged absolutely.

DaNiels, J.:

I agree that the conviction must be reversed, but it is not so clear that the prisoner cannot again be tried as to justify a direction for his discharge. A new trial should accordingly be ordered.

Judgment reversed, new trial ordered.


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

text:
    MARTIN V. B. SMITH, Respondent, v. JOHN MAHON and Others. RICHARD W. EMERSON, Appellant.

      Service of the summons by publication — inability to serve the defendant within this State — what proof of it is sufficient— Code of Civil Pivcedure, secs. 488, 439,
    Upon an application made under sections 438 and 439 of the Code of Civil Procedure to procure an order for the service of the summons by publication upon a non-resident defendant, the affidavit alleged “ that deponent knows the defendants personally, and knows that they are not residents of this State, but reside at Lynn, in the State of Massachusetts, and have engaged in business • there under the firm name and style of J. Mahon & Sons. That plaintiff will be unable, with due diligence, to make personal service of the summons herein upon the defendants within this State.”

      Held, that the affidavit was sufficient to give the court jurisdiction over the matter. That a motion made by a subsequent attaching creditor to vacate an attach- . ment granted in the action, upon the ground that the said affidavit was insufficient to sustain an order for the service of the summons by publication subsequently made therein, should be denied.

      Qumre, as to whether the order would have been sustained if the motion had been made by the debtor himself.
    Appeal by Richard W. Emerson, a non-resident and junior attaching creditor, from an order denying his motion to vacate the plaintiff’s attachment herein.

      Jamies Armstrong, for the appellant.

      JEustis Yalentine, for the respondent.
   Brady, J.:

Although the application to vacate the attachment was predicated of several grounds, the appellant waives all of them except that which is based on the invalidity of the order of publication.

To sustain the objection made, the appellant assails the sufficiency of the affidavit upon which the order of publication was granted. The affidavit, follows, on the subject of diligence, the language of section 439 of the Code, as amended by chapter 542 of the Laws of 1819, in the respect, namely, that the plaintiff will be unable, with due diligence, to make personal service of the summons herein upon the defendants within this State.

Tbe contention is, that in order to confer jurisdiction the facts and circumstances from which this conclusion is drawn should be stated in detail; otherwise it is the statement of the mere conclusion itself, in the language of the statute, and which, by analogy to the provisions of section 135 of the old Code as interpreted, would be insufficient.

Under sections 438 and 439 of the Code of Civil Procedure, as originally adopted, it was not necessary to make any affidavit showing an effort to serve the defendant within the State; and in a note to that section, to be found in Throop’s Code, it is said that the sections contained a substitute for the language at the commencement of section 135 of the Code of Procedure, namely, where the person on whom service of the summons is to be made cannot, after due diligence, be found within the State, and further, “ evidently this clause was too broad, and, in some respects, obscure. Why should a plaintiff be compelled to use diligence to serve a summons upon a resident of a distant State, whom there is no reason to suppose absent from home, or upon a fraudulent debtor who has-absconded, or is known to be concealed ? ”

But this provision was not, as already intimated, permitted to remain as originally passed, because of the amendment referred to by the act of 1879, by which section 439 was so amended as to require, where the application was made upon the ground that the defendant was a foreign corporation, or not a resident of the State, an affidavit that the plaintiff has been or will be unable, with due diligence, to make personal service of summons. The effect of this amendment was to create, in some respects, a provision similar to that contained in section 135 of the old Code, and to restore the rules applicable to such a provision. In other words, it became necessary not only to show that the defendant was a non-resident, but in addition thereto that the plaintiff was or would be unable, with due diligence, to make personal service of the summons.

In the rules adopted by this court in 1881, rule 20 in relation to this subject of the rules in force in 1877 was' abolished, and it would seem upon the proposition that it was no longer necessary to provide by rule for an affidavit of due diligence in the effort to serve a non-resident defendant, as required by that rule; although it may be that the rule was abolished because of the language of section 43,9, as amended in 18T9, and by which such publication was declared to be necessary. Assuming, however, that the absence of any proof relating to the subject of diligence in the effort to serve the summons would be fatal to the jurisdiction, nevertheless the affidavit presented to the learned justice who granted the attachment which has been assailed herein, was sufficient, in consequence of the allegations in the following words: “ That deponent knows the defendants personally, and knows that they are not residents of this State, but reside at Lynn, in the State of Massachusetts, and have engaged in business there under the firm name and style of J. Mahon & Sons; that plaintiff will be unable, with due diligence, to make personal service of the summons herein upon the defendants within this State.”

These allegations bring the case within the adjudication of Von Rhade v. Von Rhade (2 N. Y. Supreme Ct. Rep. [T. & C.], 491). The application in that case was made under section 135 of the old Code, to which reference has already been made, and the affidavit stated that the defendant could not, after due search, be found in the State, and was in fact a resident of Berlin, in the Empire of Germany, where he then actually resided. And the court held, recognizing all the requirements of the Code and of the legal rules declared in reference to them, that the defect was not of so serious and important a nature as to deprive the justice who made the order of the power of making it, “ for,” said the learned justice in delivering the opinion, from the statement that the defendant was at the time when the affidavit was made actually residing in Berlin, he can infer that no diligence could result in personal service upon him. At least the inference deduced from the statement of that fact would not be so entirely unsupported as to be without colorable evidence to sustain it; and further, where that is the fact, a case of simple error is shown, and not an absence of jurisdiction.”“

And so it may be said of this case that, from the statement that the defendants reside at Lynn, Massachusetts, and have been engaged in business there, the inference could be drawn that no diligence could result in a personal service upon them within this State. At least such an inference could be deduced from the statements of non-residence, as well as to domicile as to place of business.

It may be said, with very great propriety, that when it appears that the defendants are non-residents of the State, and engaged in business at their residences, a statement of such facts would warrant the inference that no personal service could be made upon them of papers in this State by due diligence.

It must be presumed that unless called into the State by the requirements of their -business, or visiting for pleasure, they would not come within its territory. These presumptions can be properly indulged in on an application for an attachment without doing violence to any rule of law.

For these reasons the application to discharge the attachment was properly denied, and the order made in reference to it should therefore be affirmed.

Davis, P. J.:

If this motion were made by the debtors, or on their behalf, I should have grave doubts of the sufficiency of the affidavit to uphold the order of publication against them. But in this case another creditor is attacking proceedings for his own benefit, to which the debtors do not object. In such a case, a more liberal rule of construction to uphold the proceedings of the first creditor, when no fraud or collusion is alleged or pretended, may well be adopted.

I therefore concur in the conlcusions of my brother Beady.

Present — Davis, P. J., and BRAdy, J.

Order affirmed, with ten dollars costs and disbursements.

r


author: Per Curiam.

text:
    PATRICK McEVOY, Respondent, v. JACOB CHARLES APPLEBY and Others, Executors and Trustees, etc., of LEONARD APPLEBY, Deceased, Appellants, Impleaded with REMSEN APPLEBY.

      ■Judgment creditor — when he may bring an action to reach the income of a trust fund created for the debtor by a third person.

    Appeal from a judgment, entered upon an order .overruling a demurrer interposed to tlie complaint on the grounds that the court had not jurisdiction of the subject of the action, and that the complaint did not state facts sufficient to constitute a cause of action.
    The complaint alleged that the plaintiff recovered a judgment against the defendant Remsen Appleby, and .that an execution was , issued thereon to the sheriff of the city and county of New York, where the said Remsen Appleby then resided, and that the said execution was returned wholly unsatisfied.
    That thereafter, on the 17th of March, 1879, Leonard Appleby, father of said Remsen, died leaving a last wi!l and testament.
    That the defendants Jacob Charles Appleby, John S. Sutphen and Charles Edgar Appleby were appointed trustees in and by the said will; that the said Leonard Appleby died seized and possessed of a very large estate, consisting of both real estate and personalty, and that a large portion of said real estate is situate in the city and county of New York, where said defendants reside and have a place of business, 'and that a large income is derived from the rents and profits of said real estate.
    That by the tenth clause of said will the said testator, after making sundry specific bequests, devised and bequeathed the rest, residue and remainder of his estate, both real and personal, and of every-name and description and wheresoever situated, to his trustees above named “ to receive the rents, issues and profits, dividends, interest and income of the said trust estate, and after deducting all necessary and proper charges and expenses to apply the net income as the same shall from, time to time accrue, but not by way of anticipation as follows, viz.: * * * to the use of my son Eemsen for life one-seventh part thereof.”
    That the trustees have assumed the trusts imposed upon them by the will; that the income derived from the one-seventli part of the estate given to said Eemsen Appleby is much greater than is. necessary for his support and maintenance, and the support and maintenance of those dependent on him, and that said trustees have in their hands a surplus over and above what is needed for his support and maintenance, and the support and maintenance of those-dependent on him, and over and above what is sufficient for the. payment of the plaintiff’s judgment, with interest and costs.
    Tlxe Court.at General Tei’m said: “We are of opinion that this case is controlled by the case of Williams v. Thorn (70 N. Y., 270), and that the provisions of the Code, sections 1879 and 2463, relied upon by the appellant have not changed or affected the rule established in that case. The Court of Appeals held in Williams v. Thorn that ‘ the remedy of the creditor is not confined to a surplus which has accrued and accumulated in the hands of trustees; provision may be made in the judgment determining what will be a. reasonable allowance for the cesimi que trust, and directing the-application toward the payment of the judgment of any future sui’plus until the same is. fully paid.’
    “ If this can be done as thus declared by the court, there seems, to be no fox-ee in the distinction sought to be made by the appellant between this case, in which the trustees are directed to apply-the fund and a case in which they are directed to pay over the fund to the beneficiary. In either case the power of the court to determine a reasonable allowance for the cesimi que trust while the fund is in the hands of the trustee ought to be and is equally operative.” We think the judgment should be affimed, with costs, and with, leave to answer over upon the usual terms.

      A. H. Wagner, for the appellants.

      Dennis Quin, for the respondents.
   Opinion

Per Curiam.

Present — Davis, P. J.; Brady and Ingalls, JJ.

Judgment affirmed, with costs, and with leave to answer over od the usual terms.


text:
    HENRY A. WILSON, Respondent, v. CHARLES H. FIELD and THOMAS BROWNE, Appellants, Impleaded, etc.

      Undertaking given upon p/'ocuring an order/' of arrrest— no demand need be made before sueing the sureties — they are not relieved by the bankrruptey of thei/r principal— no order of the bankruptcy courtis needed to authorize an action against the sureties.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of the action before a judge without a jury.
    One Alexander Burns commenced an action in the Marine Court of the city of New York, against the plaintiff, and obtained an order of arrest in such action. The present appellants executed the usual undertaking upon the granting of such order. Such proceedings were had in the action that the respondent Wilson recovered a judgment against the plaintiff, Alexander Burns, in the sum of eighty-five dollars and sixty-three cents for costs and disbursements. •In the meantime Alexander Burns had been declared a bankrupt, .and an order was obtained by him from the court in bankruptcy restraining the enforcement of the judgment against him for costs. The respondent obtained a modification of the order of that court, allowing him to prosecute the sureties, and this action was brought upon the covenant given by them. At the trial the plaintiff recovered judgment for $100 and interest on the same. Proof was given that the plaintiff in this action sustained damages to the amount of $150 for counsel fees and expenses in the action over and above the costs recovered by him against Burns.
    The court at General Term said: “ Several questions were raised •upon the trial below and are brought up on this appeal, the first of which is whether the action could be maintained against the sureties on the undertaking without demand.
    There is nothing in the nature of the contract which requires a demand. Their undertaking was an original contract as between themselves and the defendant in the action, under which they became personally liable, that the plaintiff in the action in which the order of arrest was issued should pay the amount of costs and damages. There is no obligation to pursue Burns before charging these defendants with their liability on the undertaking.

      Secondly. It is urged that the proceedings in bankruptcy against Burns operated to relieve the sureties. This is not true, for the reason already assigned that the defendants entered into an independent contract which is not affected by the insolvency or bankruptcy of the plaintiff in the action.

      Thirdly. It is claimed that the amount recovered must be limited to the amount of the costs in the action, because the modification of the court in bankruptcy, it is claimed, only gave leave to sue for such amount of costs. There was no necessity for any order from the court in bankruptcy to enable the respondent to bring his action on that undertaking, and that court had no power to limit the amount of the recovery on the undertaking. The costs recovered by the plaintiff against Burns, and such proportion of the damages which he sustained by reason of the arrest as would not exceed the sum named in the undertaking, were properly recoverable.”
    The judgment should be affirmed.

      B. Paine, for the appellants.

      8. Brown, for the respondent.
   Opinion

Per Curiam.

Present — Davis, P. J., Brady and Ingalls, JJ.

Judgment affirmed.


text:
    DAVID D. ACKER and Others, Respondents, v. JACOB HAUTEMANN, Appellant, Impleaded, etc.

      Action to recover the possession of .personal property — a seizwre of the chattels gives the court juiisdiciion of the action — When the service of an order of arrest before the service of the summons will be sustained — Oode of Oivil Procedure, secs. 416, 1698.
    Appeal from an order made at a Special Term denying a motion to vacate an order of arrest against Jacob Hautemann, one of the defendants above named.
    This action was commenced on the 5th day of December, 1881, by the issuing of the summons herein, and by the seizure in replevin of certain goods which the plaintiffs claim as belonging to them. The sheriff who made. the seizure was provided with copies of the summons for service on both of the two defendants herein. Such service was made on defendant Gottschalk on the 5th day of December, 1881, and on the defendant Hautemann on the 17th day of December, 1881. On the 12th day of December, 1881, an order of arrest was granted by Hon. Charles Donohue against said defendant Hautemann, and on the same day said Hautemann was arrested, and gave bail in the sum of $1,500. On the 15th day of December, 1881, an order to show cause “ why said order of arrest should not be vacated for non-service of summons ” was granted, returnable on'the 19th day of December, 1881; but the motion to vacate was in fact heard on the 20th day of December, 1881.
    The court at General Term said: “ The error of the sheriff in not delivering the summons with the other papers was not fatal to the jurisdiction of the court. That jurisdiction is preserved by section 1693 of the Code, when read in connection with section 416. The action was brought to recover possession of personal property, and the effect of the neglect of the sheriff to make seivice of the summons wras that the chattels were replevied before the service of the summons. The seizure, therefore, must be deemed as equivalent to the granting of a provisional remedy for the purpose of giving jurisdiction to che court and enabling it to control the subsequent proceedings in the action, and as equivalent to the commencement of the action for the purpose of determining whether or not the plaintiff had a right to maintain the action, or the defendant is liable thereto.
    “Section 416 provides that from the time of granting a provisional remedy the court acquires jurisdiction of the case, and has control of all the subsequent proceedings.
    “ The summons in this case was afterwards served by the sheriff, and the defect was thereby cured. It had previously been served on the other defendant.
    “We see no reason to doubt that the provisions of the sections quoted uphold the ruling of the court below. The order should be affirmed.”

      Geo. W. Galinger, for the appellant.

      David D. Aclcer, Jr., for the respondents.
   Opinion

Per Curiam.

Present — Davis, P. J.,. Ready and Ingalls, JJ

Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of Pablo Battle.
   Order affirmed, without costs. Opinion

Per Curiam.


text:
    James Scott, Appellant, v. Frederika Mendelbaum, Respondent.
   Order modified by reducing the amount ordered to be paid to $100, and as modified affirmed, without costs to either party. Opinion

Per Curiam.


text:
    Henry Y. Attrill, Appellant, v. The Rockaway Beach Improvement Company (Limited), Respondent.
   Order modified as directed in opinion, and affirméd as modified, without costs of appeal to either party. Opinion

Per Curiam.


text:
    John Hallock Drake, Respondent, v. Susan Rice, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Ella L. Winton, Respondent, v. Walter W. Winton, Appellant.
   Order affirmect, with ten dollars costs and disbursements.


text:
    In the Matter of Henry La Farge.
   Order affirmed, with ten . dollars costs and disbursements.


text:
    Mary A. Parisen Appellant, v. John Townshend and Patrick Gilfoyle, Respondents.
   Judgment affirmed, with leave to serve amended complaint within twenty days after service of a copy of the order to be entered hereon, on payment of costs of appeal and of the demurrer.


author: Per Curiam,.

text:
    Henry Y. Attrill, Respondent, v. The Rockaway Beach Improvement Company (Limited), Appellant.

   Order affirmed, without costs. Opinion

Per Curiam,.


text:
    William E. Williams, Respondent, v. Frank R. Sherwin, Appellant.
   Appeal dismissed, with ten dollars costs and disbursements.


text:
    The Southern Inland Navigation and Improvement Company, Respondent, v. Frank R. Sherwin, Appellant.
   Order reversed, without costs and motion granted to increase the security to $1,000.


text:
    John W. Bigelow, Appellant, v. Life Association of America, Respondent.
   Judgment reversed and new trial ordered, costs to abide the event. Opinion

Per Curiam.


text:
    Thomas Canavan, Appellant, v. John McAndrew and others, Respondents.
   Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    Henry Hilton, Respondent, v. The Bank of Dansville, Appellant, Impleaded, etc. Same v. Same.
   Judgment affirmed, with costs, on the opinion of. Beach, J., in the court below.'


text:
    Thomas Rock, Respondent, v. Neal O’Donnell and Hugh O’Donnell, Appellants.
   Judgment affirmed.


text:
    Edward H. Dederick, Respondent, v. Moreau Morris, Appellant.
   Judgment affirmed, with costs. Opinion

Per Curiam.


author: Davis, R. J.

text:
    George C. Harrington, Administrator, etc., of Harriet E. Christy, Deceased, Respondent, v. Eugene M. Keteltas and Henry W. Clark, Executors, etc., of William A. Keteltas, Deceased, Appellants.
   Judgment affirmed, with costs. Opinion by

Davis, R. J.


text:
    John V. White v. Furman Pearsall.
   Order resettled.


author: Davis, P. J.

text:
    In the Matter of James L. Barclay to vacate an Assessment.
   Order reversed; petition denied,'with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Lewis S. Chase, Respondent, v. James Bennett, Appellant.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


author: Davis,

text:
    Daniel J. McCarthy, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondents.
   Judg- ■ ment ordered for the defendant on verdict. Opinion by

Davis,


text:
    Marcus T. Hun, as Receiver of The People’s Savings Bank, Respondent, v. John W. Salter, Appellant.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    John Collins, Appellant, v. Sarah J. Collins and others, Respondents.
   Decree affirmed, with costs. Opinion by

Davis, P. J.


text:
    Augustus D. Juilliard, as Receiver, etc., Appellant, v. Zachariah Chappee, as Trustee and Assignee, etc., Resppndent.
   Judgment and order affirmed. Opinion by

Davis, P. J.


text:
    In the Matter of Emma Bartlett.
   Default opened on condition that the appellant print and serve papers in time for May Term, and pay ten dollars costs.


text:
    In the Matter of Bowden.
   Order on reargument affirmed, without costs.


author: Brady, J.

text:
    The New York and Western Union Telegraph Company, Appellant., v. Hugh J. Jewett, as Receiver, etc., Respondent.
   Order affirmed. Opinion by

Brady, J.


text:
    In the Matter of the Probate of the Last Will, etc., of Edward Hewitt, Deceased.
   Decree affirmed on opinion of surrogate, without costs.


text:
    Richard H. Disosway, Appellant, v. Jedediah K. Hayward, Respondent, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    Anne Lavalle, Appellant, v. Patrick Skelly, Respondent.
   Motion denied.


text:
    Jesse Peck, Appellant, v. Patrick Callaghan, Respondent.
   Decree affirmed on the opinion of the surrogate, with costs.


author: Per Guriam.

text:
    Elizabeth Langdon, Respondent, v. Landon C. Gray and Elizabeth B. Phelps, Appellants.
   Order reversed so far as appealed from, and order made directing referee’s fees to be adjusted upon notice, without costs. Opinion

Per Guriam.


text:
    Sherman Conant and Alexander B. Hawkins, as Receivers, etc., Appellants, v. Milton S. Littlefield and Aaron Barnett, Respondents.
   Order modified so far as to allow service of the amended complaint on payment of ten dollars costs of opposing the motion in the court below, and fifteen dollars costs of proceedings after issue joined and before trial, ten dollars costs of one term fee and the disbursements of this appeal.


text:
    Catherine Lachenmeyer v. August Lachenmeyer.
   Order modified so as to reduce the alimony to fifty dollars per month and the counsel fee to $125, without costs of appeal to either party.


text:
    Gustave White and others, Respondents, v. Emanuel Reichart, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Guriam.


text:
    The German Savings Bank, Appellant, v. James H. Carrington and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    William Kelly, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
   Judgment affirmed. Opinion

Per Guriam.


text:
    Elizabeth A. Greer, Respondent, v. Lucius E. Chittenden and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Guriam.


author: Per Guriam..

text:
    Stephen Cutter and others, Executors, etc., Appellants, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondents.
   Judgment affirmed. Opinion

Per Guriam..


text:
    Mary Ann Campbell, Executrix, etc., Appellant, v. Charles L. Beaumont, Respondent.
   Judgment affirmed, with costs.


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    The People of the State of New York ex rel. William H. Leonard and others, Appellants, v. The Commissioners of Taxes and Assessments in the City of New York, Respondents.
   Judgment affirmed, with costs on the opinion of the court below.


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    Andrew E. Williams v. Terence Kernan and others
   Order affirmed, with ten dollars costs and disbursements on the opinion of the court below.


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    Josephine Hull, Respondent, v. Jeremiah S. Hart, Appellant.
   Order denying motion to change the place of trial affirmed, with ten dollars costs and disbursements, to be set off against the costs allowed on the other appeal. Opinion

Per Curiam.


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    Moses May, Respondent, v. Isaac Lauterbach, Appellant, Impleaded, etc.
   Judgment affirmed.


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    Sylvester H. Kneeland, Respondent, v. Daniel F. Sullivan, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


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    Charles A. Warner, Appellant, v. Feodore Mierson, Respondent.
   Order modified by striking out allowance of costs, and, as modified affirmed, without costs of this appeal. Opinion

Per Curiam.


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    In the Matter of Sarah M. Sandford to Vacate an Assessment, etc.
   Order affirmed, with ten dollars costs and disbursements.


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    Etta Armstrong, Respondent, v. William A. Cummings and others, Appellants
   Order reversed, with ten dollars costs and disbursements.


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    The John Hancock Mutual Life Insurance Company, Respondent, v. Julius Loewenberg, Appellant.
   Judgment reversed, new trial ordered, costs to abide the event. Opinion

Per Curiam.


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    Darley Randall, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellants.
   Judgment affirmed.


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    George G. Gantz and others, Respondents, v. John W. Holgate, Appellant.
   Judgment reversed, with costs; motion to strike out answer denied, with ten dollars costs. Opinion

Per Curiam.


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    The People of the State of New York ex rel. David F. Ryan v. The Board of Police Commissioners of the Police Department of the City of New York.
   Order affirmed and writ quashed, with costs. .


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    John H. Starin, Jr., Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellants.
   Judgment reversed, order of reference vacated, new trial ordered before a jury, costs to appellant, to abide event.


author: Per Owriam.

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    William Barr and another, Appellant, The New York, Lake Erie and Western Railroad Company and others, Respondents.
   Judgment reversed, demurrer overruled, with leave to defendants to answer over on payment of costs of the demurrer and of appeal within twenty days. Opinion

Per Owriam.


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    The National Shoe and Leather Bank, Appellant, v. The Mechanics’ National Bank of Newark, New Jersey, Respondent. The People’s Bank of the City of New York, Appellant, v. The Same, Respondent. Corn Exchange Bank, Appellant, v. The Same, Respondent. West Side Bank, Appellant, v. The Same, Respondent.
   Orders affirmed, with ten dollars costs and disbursements on appeal.


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    Catharine Martin, as Administratrix, etc., Respondent, v. The Dry Dock, East Broadway and Battery Railroad Company, Appellant.
   Judgment affirmed. Opinion

Per Curiam.


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    Egbert Seymour and James H. Noe, Appellants, v. Everard D. Benjamin and William H. Benjamin, Respondents. Robert F. Austin and others, Appellants, v. The Same, Respondents.
   Orders affirmed, with ten dollars costs and disbursements of one appeal.


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    Mahlon C. Martin, Respondent, v. Albert G. Thorp, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


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    Solomon Adler and Isaac S. Adler, Respondents, v. Mina Simon, Appellant, Impleaded, etc.
   Order reversed and motion to open default granted, without costs to either party of appeal, or of motion below. Opinion

Per Curiam.


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    Henry A. Burr, Appellant, v. Charles S. Spencer, Respondent.
   Order reversed, with ten dollars costs and disbursements to abide event.


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    Arthur M. Dodge and another, Appellants, v. John McDermott and others, Respondents.
   Order reversed, with ten dollars costs and disbursements to abide event.


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    John Peter Stremmel, Appellant, v. Henry Ries, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


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    John W. Warner, Appellant, v. Catharine Swanton and William Dibblee, Respondents.
   Judgment reversed, new trial granted, costs to abide event. Opinion

Per Curiam.


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    The Market National Bank of New York, Appellant, v. The Pacific National Bank of Boston, Massachusetts, Respondent.
   Order reversed, motion granted, with ten dollars costs and disbursements. Opinion

Per Curiam.


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    John Bottomley, Respondent, v. Michael Lane, Appellant, Impleaded, etc.
   Order reversed and motion granted, with ten dollars costs and disbursements.


author: Barnard, P. J.:

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    In the Matter of the Estate of DAVID YOUNG, Deceased. HENRIETTA E. YOUNG, Respondent, v. WALTER D. HICKS and EDWARD YOUNG, Executors, etc., Appellants.

      Ante-nuptial agreement — when valid — a wife may renounce thereby her right to a/rtiales of personal property given by law to the widow — 2 It. S., 83, sees. 9, 10.
    In 1864 the respondent entered into an agreement, under seal, with her proposed husband, which, after reciting that he desired to make a fit and proper settlement for her use and benefit, provided that she should retain all the property, both real or personal, which she then had or might thereafter receive, and might dispose of the same during her life or by her will, and, in case of her surviving him, she was to receive $1,500 from his estate “ in consideration of said marriage, and also in lieu of dower, or her rights as widow in his estate;” she agreeing that “she will accept and receive the same in full satisfaction of her dower in his estate, and shall bar her from claiming the same, either in his real or personal estate. ”

      Held, that the instrument was a good and valid ante-nuptial agreement; that the wife had power to, and by the said agreement did, waive all right to the articles of personal property directed by the Revised Statutes (2 R. S., 83, §§ 9, 10) to be set apart for the widow, in case there is no minor child at the time of the husband’s death. ('flurry v. Ourry, 10 Hun, 366, criticised.)
    Appeal from an order made by the surrogate of Dutchess county, directing the appellants, as executors of David Young, deceased, to set apart to the respondent Henrietta E. Young, the widow of said David Young, the articles specified in 2 Revised Statutes (p. 83, §§ 9, 10), as amended by the Laws of 1874, chapter 470.
    On the 25th day of February, 1864, the deceased and respondent entered into the following ante-nuptial agreement:
    “ That, whereas a marriage is about to be had and solemnized between the said parties, and the party of the first part is desirous of making provision for a fit and proper settlement to and for the use and benefit of the said Henrietta E. .Tripp', his intended wife; now, therefore, the said party of the first part doth hereby agree, that if the said marriage shall be had and solemnized as aforesaid, that the said Henrietta shall receive, have and be provided for as follows, to wit:

      First. She shall have, hold, retain and dispose during her life, or by will, of any and all property, real or personal, which she now has or may hereafter receive, or become entitled to as her own.

      Second. In case she should happen to survive the said David Young, he hereby agrees to make provision by his last will and testament, or otherwise, that she shall have and receive out of his estate the sum of $1,500, with interest from the day of his decease, in consideration of said marriage and also in lieu of dower, or her rights as widow in his estate; and in case no such provision is made as aforesaid, then such sum is to be paid out of his estate at all events by those who shall administer the same.

      Third. And the said Henrietta E. Tripp, in consideration of the premises, hereby" covenants and agrees that in case such sum of $1,500 shall be paid to her as aforesaid, in the event of her surviving said David Young, that she will accept and receive the same in full satisfaction of her dower in his estate, and shall bar her from claiming the same, either in his real or personal estate, and that she will execute and deliver any release or releases of such dower right to his heirs-at-law, devisors or legal representatives on demand thereof.”

      Daniel W. Guernsey, for the appellants.

      AlUson Butts, for the respondent.
   Barnard, P. J.:

By chapter 375, Laws of 1849, all contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.

The agreement in the present case is a good ante-nuptial agreement even under the case of Curry v. Curry (10 Nun, 366). It makes a provision in lieu of dower and of the rights of the widow in the husband’s estate. The principle decided in that case that such a consideration must be proven to uphold an agreement made in contemplation of marriage does not seem to be supported by any good reason. It was an agreement under seal. It was an instrument containing mutual covenants. It was in contemplation oí marriage. It was declared good after marriage by the statute between the parties. Ante-nuptial agreements in favor of the wife have always been favored in equity. ■

The Court of Appeals, in Pierce v. Pierce (71 N. Y., 154), say that “ ante-nuptial contracts whereby the _ future wife releases her claim to her right of dower, and all other rights to the estate of her husband upon his decease, are fully recognized in law. When fairly made and executed without fraud or imposition they will be enforced by the courts.”

The only remaining question is as to the force and construction of the agreement. It is providód by statute that “.if there be a widow and no minor children certain articles specifically mentioned shall belong to the widow.” The dispute is as to these articles.

The agreement is plain. The husband covenanted that upon his death the widow should have $1,500, with interest from the day of his decease, “ in lieu of dower or her rights as widow in his estate'.” The widow covenanted that she would receive the same in full satisfaction of ¡her dower in his estate, “ either in his real or personal estate.”

She was to retain her own property with power to dispose of the same by will or during her life. The will makes the provision for the $1,500. It also gives certain furniture and an annuity of $100 during widowhood. The case is not one involving the rights of any person excejrt the widow. There is no minor child, and the cases holding that an exemption law cannot be waived have no application. The sole question is, can a widow release for a good consideration a title to become vested in her on her husband’s death.. She can as well release this provision as she can dower.

That the agreement is drawn so as to include this property there can be no reasonable doubt, if the same effect is to be given to the paper as is given to other agreements, for a certain sum, the covenant is “in lieu of her rights as widow” either'“in his real or personal estate.” My conclusion, therefore, is that the 'widow is not entitled to the articles in question.

Decree modified accordingly.

Dykman, J., concurred ; Gilbert, J., dissented.

Decree of surrogate modified in accordance with opinion. ■


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    In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILROAD COMPANY, Respondent, to Acquire Title to Lands of ELIZABETH WALSH and Others, Appellants.

      Land under water— when it may be taken by a railroad, company for the construction of its road —1850, chap. 140, sec, 28, sub. 5 ; 1864,c7iap. 582 ; 1880, chap. 138.
    A tract of land under the waters of the Hudson river was granted by the commissioners of the land office to the owners of the adjoining uplands, upon the condition that they should fill in the same and construct docks , thereon. The grantees neglected to do this, but did construct docks on the bank of the river, and shipped therefrom large quantities of bricks, made at brick yards situated upon their lands, by both steam and sailing vessels, which passed over the land under water so granted to them.

      Held, that subdivision 5 of -section 28 of chapter 140 of 1850, as amended by chapter 582 of 1864, and chapter 133 of 1880, providing that “nothing in this act contained shall be construed to authorize the erection of any bridge, or any other obstructions, across, in or oyer any stream or lake navigated by steam or sail boats, at the place where any bridge or other obstructions may be proposed to be placed,” did not prevent a railroad company from acquiring title to a strip of the said land under water and constructing its road thereon, even though the said steam and sailing vessels were accustomed to pass to and fro over -the place where the road was to be located.

      Appeal from an order, made at Special Term, appointing commissioners to appraise the value of land to be taken by the applicant.
    It appeared that the strip of land described in the petition was proposed to be taken for the purpose of constructing thereon an embankment for a-railroad without a draw-bridge.
    The land proposed to be taken is under the waters of the Hudson river, and was granted to the 'owners of the adjoining uplands September 3, 1868, upon the condition that the same should be filled in and a dock erected thereon within five years. If a railroad be constructed thereon, it will stretch across a bay on the west shore of the said river in such a way as will prevent vessels going in and out of the said bay.
    The Hudson river is navigated by steam and sail boats at the very place where the obstruction of the proposed railroad is proposed to be placed, viz: on the said strip of land described in the petition.
    The appellants, Elizabeth Walsh and her tenants, have extensive brick yards and docks upon the inner side of the said bay, and ship their brick'to market from them, and receive wood and coal for the same, by both steam and sailing vessels, which are obliged to pass directly over and across the place where the said railroad is proposed to be constructed.
    The owner and tenants of the lands proposed to be taken put in their answer to the petition, setting up' the above facts, and claiming that the railway company has no right to construct its railroad at the place and upon the land described in the petition, and therefore no right to have commissioners appointed to appraise such lands.
    The petition on which the order appointing the commissioners was made contained the following: “ That in the construction of its railway the said New York, West Shore and Buffalo Railway Company will construct a draw-bridge on said railway, by which drawbridge free and uninterrupted access may be had from the river to the said docks, and from said docks to the river, with vessels at all times.”
    After the order was made and the appeal tnerejLrom perfected, an order was made on application of the railroad company and against the opposition and objection of the owner and persons interested, amending the petition by striking ont the words above quoted. From the latter order an appeal was also taken.

      Cassidy & Brown, for railroad company.

      E. A. Brewster, for Walsh and others, appellants.
   Barnard, P. J.:

The lands proposed to be taken are situated under the waters of the Hudson river. The commissioners of the land office have granted the same to the predecessors in title of the appellants. The docks required by the terms of the grant have not been built within the time specified therein.

The proposed road-bed of the railroad company is over one hundred feet in the river, leaving a strip of water inside of the track, but the proposed road-bed is all within the grant of the land commissioners to Walsh. Under this state of facts the appellants claim that the railroad company have no power to construct their road; that the'case is one which is covered by a portion of the eighteenth section, subdivision 5 of the general railroad act. These words are now as follows: “ Nothing in this act contained shall be construed to authorize the erection of any bridge, or any other obstructions across, in or over any stream or lake navigated by steam or sail boats at the place where any bridge or other obstructions may be proposed to be placed.” These words ■ were designed without doubt to cover the case presented. There should be no obstruction placed in waters actually navigated at the proposed place of obstruction by steam or sail boats. The legislature in the same act provided, however, that the commissioners of the land office might convey to railroads lands under water required for the purpose of the road. (Sec. 25 of chap. 140 of the Laws, of 1850.) (

The lands granted to Walsh are still his, because no breach of a condition subsequent of itself divests the title. There must be a re-entry. The case is therefore one where the land taken is the private land of Walsh, granted for purposes of commerce. The State, through its authorized agents, have determined that the part granted under water is not needed for purposes of navigation. They have authorized and required it to be filled up and docked out for the purposes of commerce. It does not, therefore, come under the section of the general railroad act which prohibits obstructions in navigable waters. The obstruction is legalized, and Walsh may sell the right to any one to destroy navigation within the limits of the grant. What Walsh can sell can be taken from him by condemnation upon payment of its value.

This view of the case seems to be in harmony with the case, Matter of New York Central and Hudson River Railroad Company (77 N. Y., 248). In that case the railroad company took lands under water which had been granted to private individuals. The court held that the lands might be taken under the general railroad act, it being necessary to the purposes of its incorporation. . The taking in that case was under a section providing for the same after a railroad is built, but the prohibition which is cited as to obstructions in navigable waters is general and applies to all railroad companies which take land under it. If the-present appellants had their track upon the shore it could, under the authority of that case, take these lands under water and dock them out to the extent of the lands taken. There is no error in striking out of the petition the clause as to a drawbridge. It was no part of the petition. The company, if the lands are taken and the road built, must do whatever the law imposes upon it to do. If the case is one calling for restoration of the stream, that must be done. If the appellants tract of upland and land under water is such, that the ' company must pay for all damage to the entire piece, that must be done. The question is not before us, and the facts from which it could be determined are not presented.

We think the land may be taken, and therefore the order should be affirmed, with costs and disbursements.

Gilbert, J., concurred so far as petitioners’ right to acquire interests of appellants, and, as regards costs, is affirmed.

Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


author: Barnard, i?. J.:

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    JOHN F. TALMADGE, Respondent, v. THE THIRD NATIONAL BANK OF THE CITY OF NEW YORK, Appellant.

      National banks — actions against them in State courts need not be brought in the county where they are located.

    A national bank can be sued in any State courts, having general jurisdiction, in which an individual can be sued for the same cause. It is not necessary to bring the action in the county in which the bank is located.
    Appeal from an order made at Special Term, denying a motion to change the place of trial of this action from the county of Kings to the county of New York. .

      WilUam H. /Scott, for the appellant.

      William- N. Dyhman,- for the respondent. ,
   Barnard, i?. J.:

This is a personal action against the defendant, and the place of trial demanded in the complaint is the county of Kings.

The defendant is a national banking corporation, located in the city of New York. The defendant claims that the action is triable only in the city of New York, and asks an order removing the place of trial to the county of New York. An order was made at the Special Term denying this motion, and an appeal is taken from this order to this court.

There are two sections of the national banking act involved in the determination of the question presented. Section 5136, United States Revised Statutes, gives power to those corporations “ to sue and be sued, complain and defend in any court of law and equity as fully as natural persons.” By the latter part of section 5198, as amended by chapter' 80 of the Laws of 1875, it is provided “that suits, actions and proceedings against any association under this act may be had in any circuit, district or territorial court of the United States held within the district in which such association may be established, or in any State, county or'municipal court in the county or city in which said association is located, having jurisdiction in similar cases.”

To restrict the operation of section 5136, the word may, in section 5198, must be read must. While it is an admitted rule of construction to hold that the word may means must, when so intended, there are grave reasons why such a construction is not proper in this case. It would give a special privilege to a defendant national bank. It would curtail the general right to sue and b5 sued like a natural person in all courts. If a national bank cannot be sued except in the county where it is located, a national bank having a claim against another, and it may be a district national bank in the same State, must go to the place of location of the debtor bank to sue it; and this would be imperative, even if the business was done and all the witnesses lived at the place of the location of the creditor bank. There could be no change of the place of trial, because jurisdiction is given to try only in the place of location of the bank so sued. I do not think this was the design of this section. The intent seems to have been to give the power to sue the banks in the United States, or the State courts. While the United States courts are specified, there is no limitation upon the State coui’t, other than they should have jurisdiction in such cases.

The words of restriction to the place where “said association is situated,” apply to the county and municipal courts, and not to the State courts. In the State courts of general jurisdiction a national bank can be sued wherever an individual can be for the same cause.

The order should be affirmed, with costs and disbursements. -

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

Order denying motion to change place of trial affirmed, with osts and disbursements.


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    JOHN H. DRAKE, Respondent, v. ROBERT SEAMAN and HENRY W. SHEPHERD, Appellants.

      Statute of frauds — the entire agreement must be contained in the writing.

    The plaintiff, a resident of Syracuse, was a traveling salesman engaged in the business of selling a certain kind of tin-ware; the defendants manufactured the same kind of ware in Queens county. In January, 1875, the following memorandum was signed by one of the defendants:
    “ Memorandum.

    “Iron Clad Can Co., January 9, 1875.
    “ The understanding with Mr. Drake is as follows: 2,000 dollars for the first year; 2,500 dollars for the second year, sure, and provided the increase sales shall warrant it he is to have $3,000; 3 year in proportion to business as above.
    “IRON CLAD CAN CO.
    “H. W. SHEPHERD.”
    The plaintiff having entered into and continued in the service of the defendants for two years, and being then discharged, brought this action to recover the amount agreed to be paid for his services in the third year.

      Held, that as the memorandum did not show that the plaintiff was to render personal services to the defendants as a salesman, it did not contain the entire agreement between the parties and was not sufficient to take the case out of the statute of frauds.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

      H. Sheldon, for tbe appellants.

      Waters, McLennan dc Dillaye, for tbe respondent.
   Barnard, P. J.:

Tbis action is brought to recover upon an agreement which would be void under tbe statutes of fraud if there was no written agreement. There was a paper writing in these words :

Memorandum.

“Iron Clad Can Co., January 9, 1875.

“ The understanding with Mr. Drake is as follows; 2,000 dollars for the first year; 2,500 dollars for tbe second year, sure, and provided the increase sales shall warrant it he is to have $3,000; 3 year in proportion to business as above.

“IRON CLAD CAN CO.

“IT. W. SHEPHERD.”

The plaintiff entered into the service of the defendants early in 1875, and worked for one year and was paid $2,000. In the second year there was dissatisfaction expressed and the plaintiff agreed to work that year for $2,000, and did so. There is a serious difference whether the entire agreement was not terminated resulting in a new hiring, but the referee has passed upon the question in favor of the plaintiff’s claim that the modification was only for the second year, to be made up the next year provided business was better. At the end of the second year the plaintiff was discharged and left the service of the defendant. He seeks to recover for this year, and the only question presented is as to the sufficiency of the note or memorandum to take the ease out of the statute.

The law in reference to this subject is well settled. The entire agreement must be contained in the agreement, and parol evidence is not admissible to add to it. (Blossom v. Griffin, 3 Ker., 569; Wright v. Weeks, 25 N. Y., 153; Peabody v. Speyers, 56 id., 230; Stone v. Browning, 68 id., 598.)

The present case L not similar to any reported case. The case of Weeks v. Wright was upon a memorandum for the sale of lands. The agreement was full, except that it was stated therein that the sale was to be upon the terms as specified,” not in the agreement itself, but which were orally agreed upon. The Court of Appeals held the paper void. In the case of Hagan v. The Domestic Sewing Machine Co. (9 Hun, 73), the writing on which the action was brought was much nearer the present case. The defendant agreed to pay the plaintiff the amount stated in it as full compensation for his services to be rendered.” In the present case no subject of the contract is mentioned. If parol evidence of the surrounding circumstances are admissible, the case would have to be considered with reference to these circumstances. It would then appear that the plaintiff was a traveling salesman of tin-ware o£ a certain kind, *- and that the defendants were manufacturers of such ware. That the plaintiff lived in Syracuse and that the defendants’ place of • manufacture was in Queens county and their residence was in New York. The contract in question could then be applied to any subject with equal propriety. It might be for rent as partner- of defendants’ or as employe. Without parol evidence the contract could not stand alone. It needs parol evidence to show that the plaintiff was to render personal service as a salesman to sustain an action. If the agreement in question had stated that the payments were to be made according to a parol agreement between the parties, it would have been void under the case of Wright v. Weeks (supra). If it had stated that it was in consideration of personal services to be rendered, it would have been good under Hagan v. Domestic Sewing Machine Co. (9 Hun, 73). If parol evidence was inadmissible to show the terms as specified ” in Wright v. Weeks, where there was no doubt but that the parol terms were full and complete, it does not seem admissible in the present case. The only difference seems to be that parol evidence is received to show what the contract was in this case, without- its appearing by the paper itself that there was such a parol contract as did appear in the case, of Wright v. Weeks.

My conclusion therefore is that the writing does not ta,ke the case out of the operation of the statute of frauds, and is therefore not made out.

The judgment should therefore be reversed and a new trial granted at circuit unless the plaintiff stipulates to reduce the judgment to the sum of $111.12, with interest from January 21, 1877, besides the costs of the action up to the entry of judgment, without costs of appeal to either party. If stipulation not given, then new trial to be granted, with costs to abide the event, and no costs of this appeal unless the plaintiff recover a greater sum than .$111.12 upon the new trial.

Dykman, J., concurred; Gilbert, J., dissented.

So ordered.