author: Tapp an, J.:

text:
    ALBERT C. STEERE, Respondent, v. CHARLES CHILDS, Appellant, Impleaded with ELIZABETH LAWSON, Respondent and others.

      Foreclosure sale — when sale, not made in inverse order of alienation.

    December 4,1848, A. executed a mortgage on certain real estate, which was foreclosed in this action. March 26,1859, A. conveyed a portion of the property to one Steere, and on December 1,1865, conveyed the whole thereof to him, subject to the said mortgage, payment of which was assumed by him. On December 1, 1865, Steere executed a mortgage to Lawson and another upon all the premises described in the mortgage of December 4, 1848, except that portion described in the first deed to A. of March 26, 1859. June 5, 1S68, Steere executed another mortgage to Averill upon all the lands described in the first mentioned mortgage of December 4, 1848. August 27, 1874, Steere executed a mortgage to one Childs upon the land conveyed to him by the deed of March 26, 1859.
    Upon the foreclosure of the first mortgage, given December 4, 1848, held, that the land conveyed to Steere March 26, 1859, and subsequently mortgaged to Childs, should be first sold.
    Appeal from a judgment of foreclosure and sale, entered in this action. The principal question was as to the order in which different portions of the premises, included in the plaintiff’s mortgage, should be sold.

      L. J. Burditt and N. Q. Moak, for the appellant.
    On conveyance of the house lot, covered by the Childs’ mortgage to Rufus Steere, the remainder of the real, estate covered by the prior mortgage was liable to be first sold. This was a fixed right, affecting not only the corporation but the holder of the mortgage. (Crafts v. Aspinwall, 2 N. Y., 289; Welch v. Tittswoth, 22 How. Pr., 475; Woods v. Spalding, 45 Barb., 602; Stuyvesant v. Hall, 2 Barb. Chy., 151; Gill v. Lyon, 1 Johns. Chy., 447; Clowes v. Dickinson, 5 id., 235; Trustees v. Wheeler, 61 N. Y., 88.) When the corporation deeded the remainder of the land to Rufus Steere, subject to the mortgage, and he assumed to pay it, that land became the primary fund for the payment of the debt; and as to the other land, the house lot, that was a mere security for the balance, if any. {Woods v. Spalding, 45 Barb., 607; Stuyvesant y. Hall, 2 Barb. Chy., 151; Warfield v. Crane, 4 Abb. Ct. App. Dec., 525; 2 Jones on Mort., § 1625; Chapman v. Beardsley, 31 Conn., 1; Atwood v. Vincent, 17 id., 574; Ililbourn v. Bobbins, 8 Allen, 466, 471; Welch v. Beers, id., 151; Engle Y. Haines, 1 Hals. Chy., 187 id., 632; Caruthers v. Hall, 10 Mich., 40; Ferris v. Crawford, 2 Denio, 595; 2 White & Tudor's Lead. Cas. in Eq. [4th Am. ed.], 303.) The mortgagee, in the first mortgage given by Steere, was chargeable with knowledge and notice of such arrangement affecting the title of Rufus Steere, his mortgagor. {Mason v. Payne, Walker’s [Mich.] Dig. 459; JumelY. Jumel, 7 Paige, 591; Harris v. Fly, id., 421; Brown v. Simmons, 44 N. H., 480.) Steere’s possession was constructive notice of such equitable rights. {Governeur v. Lynch, 2 Paige, 300; Trustees, etc., v. Wheller, 61 N. Y., 88.) When the second mortgagees took their mortgage upon the remainder conveyed to Steere, they knew, and were bound to know, that they took the security of a mortgage upon the land covered by their mortgage, subject to all the conditions upon which their mortgagor took title and on which his title depended. {Coutant v. Servoss, 3 Barb., 141, 142; Engle v. Haines, 5 N. J. Eq. [1 Halstead], 186; affirmed'5 id., 632; McDonald v. Whitney, 2 Weekly Dig., 529; Caruthers v. Hall, 10 Mich., 40; Mason v. Payne, Walker’s [Mich.] Chy., 461.) The agreement and equity bound the mortgagees of the second mortgage, and prevented the mere equity to ask a sale in the inverse order of alienations from attaching. {WikoffY. Davis, 4 N. J. Eq., 224, 227; Hill v. McCarter, 27 id., 41: Welch y.
      Beers, 8 Allen [Mass.], 151; Coote on Mort., 488, m. p., 562,, 2 Am. ed.; Green v. Romage, 18 Ohio, 428; Bispham Brine, of Eq., § 333, pp. -310, 311.)

      I Lawson, for the respondent.
    Steere had taken a quit-claim deed of both portions, and-both remained subject to the whole of the plaintiff’s mortgage, and liable to be sold thereon. He had assumed the payment of the whole of the mortgage debt, and had become personally liable to pay any deficiency which might arise, after the sale of both portions of the mortgaged premises. {Heart-, ley's Executor, etc., v. Harrison, 24 N. Y., 171, and cases cited; Burr v. Beers, 24 N. Y., 178; Ricard v. Sanderson, 41 N. Y., 179; Willard’s Equity [1st ed.], p 454; Ingalls et air. Morgan's Executrix, etc., 10 N. Y., 178, at p. 186; see, also, Bisley et al. v. Lawrence et al., 11 Raigo, 581; Ojpjpenheimer y. Walker, 3 Hun, 30; Clowes v. Dickinson, 9 Cowen, 402; Welch et al. v. James et al., 22 Iiow. Pr., 474; New York Life Ins. Co. v. Vanderbilt, 12. Abb., 458.) Defendant Lawson’s equity could not have been affected or impaired by the subsequent mortgages to the defendants Childs or Carter, as they took with notice of the prior equities, all the previous conveyances and mortgages having been recorded at the time they took their incumbrances, and they taking through Rufus Steere, and subject to all the equities existing against him. (Willard’s Equity, 45 and 46; Berry v. Mutual Ins. Co., 2 Johns. Ch. R., 608; Wilkes el al. v. Harjper et al., 2 Barb. Ch. R., 338; Chives v. Dickinson, 5 Johns. Ch. R., 241.)
   Tapp an, J.:

This is an appeal by the defendant Charles Childs from a portion of a judgment in an action for the foreclosure of a mortgage. Throe of the defendants answered, viz : The defendant and appellant Childs, the defendant Lawson, and the defendant Carter,, executrix, etc. The cause was tried by the court at the Otsego. Special Term March 29, 1877, when judgment for plaintiff was. ordered, with special directions for the application of certain rents, and profits of the mortgaged premises with the usual provisions, for a foreclosure and sale of the mortgaged premises in pai’cols, and for the application of the proceeds. The mortgage sought to be foreclosed herein was executed by a corporation known as the Union Cotton Manufactory, on the 4th day of December, 1848, to secure $5,000, in three equal annual installments, with interest annually on the amount thereof unpaid. At the time of the trial, there remained unpaid upon the mortgage $5,396.93. It appeared that this mortgage was the first lien upon the promises ; also, that the premises covered by the mortgage- would bring more upon a sale thereof than sufficient to satisfy the amount unpaid thereon. By the pleadings, proofs and findings it appeared that on the 26th day of March, 1859, the trustees of said corporation executed to the defendant Rufus Steere a conveyance of about seven-eighths of an acre of land, together with a piece known as the Island, particularly described in the answer of the defendant Elizabeth L. Lawson, known as the house and lot, parcel of the land covered by the mortgage first mentioned, whereby they quit-claimed the lands last mentioned. Such conveyance was duly recorded June' 29, 1863. Upon this piece of land the defendant, Rufus Steere, erected a dwelling-house in which he resided at the time of the trial; besides such land, the mortgage premises consisted of a lot used as a hop-yard; also of a cotton-factory, with store building and dwelling-houses for factory operatives, with water power, rights, appurtenances, privileges and easements connected with such factory; also of another parcel used as a farm, with a farm barn thereon.

On the first day of December, 1865, the trustees of the said corporation, by deed of conveyance by them duly made, quit-claimed and released to the defendant Rufus Steere, all the lands and premises covered by the said first-mentioned mortgage sought to be foreclosed; said conveyance was also executed by the said Rufus Steere, under his hand and seal, and the same was made subject to the • payment of the last mentioned mortgage, aud in such conveyance the said Rufus Stcere covenanted and agreed to pay such mortgage, and the moneys secured thereby as parts of the purchase-money of the lands and premises thereby conveyed, and such conveyance was duly recorded on the 24th day of January, 1866. On the first day of December, 1865, the defendant, Rufus Stéeré, for a valuable consideration, executed and delivered to the plaintiff, Albert C. Steere, and the defendant, Elizabeth L. Lawson, lxis bond, conditioned for the payment of $6,000, with interest, to be paid on the sixth day of April, 1866, and said principal sum in six annual installments of $1,000 each, and interest on all sums remaining unpaid, semi-annually; and as collateral to such bond, and to secure the payment thereof, said Rufus Steere and his wife executed to the said plaintiff, and the said Elizabeth L. Lawson, a mortgage containing the same conditions as said bond, which granted and conveyed to said last-named mortgagees, their heirs and assigns, all of the lands, premises and property covered by the mortgage herein first above mentioned and sought to be foreclosed herein, excepting so much of said lands, premises and property as had theretofore been sold and conveyed by the said Union Cotton Manufactory, or by the trustees thereof, the deeds of conveyances whereof had been recorded in the office of the clerk of the county of Otsego, prior to the first day of September, 1865, which exception included the said lands, premises and property described in said deed from said trustees to the defendant, Rufus Steere, dated March 26th, 1859, which had been recorded in said .clerk’s office, on the 29th day of June, 1863, as before mentioned. That said last-mentioned mortgage was duly recorded on the 24th day of January, 1866, and there remained due and unpaid upon the same, at the time of the trial, $8,097.70. Before the commencement of the action, the plaintiff, Albert C. Steere, had sold and assigned all his interest in said last-mentioned bond and mortgage to the defendant, Elizabeth L. Lawson, who, at the time of the trial was the owner and holder thereof. It further appeared that the defendant, Rufus Steere, was insolvent, and that said last-mentioned mortgage and the property covered and conveyed thereby was the only security that said defendant, Elizabeth Lawson, had for the indebtedness referred to in, and secured by the last-mentioned mortgage. It also appeared that since the 17th day of July, 1876, the plaintiff, Albeit C. Steere, and the defendant, Elizabeth L. Lawson, had been in possession of a portion of the lands covered by said last-mentioned mortgage, and the plaintiff’s mortgage sought to be foreclosed, and had received the rents and profits thereof as mortgagees in possession, under the two mortgages lastly herein referred to, to the amount of $350. It also further appeared, that on the 5th of June, 1868, the said defendant, Rufus Steere, for a valuable consideration, duly made to Win. II. Averill, testator of the defendant Jane R. Carter, executrix, etc., his bond, dated that day, conditioned for the payment of $14,500 and interest; that as collateral to said bond, and to secure the payment of the moneys thereby conditioned to be paid, the said Rufus Steere and his wife duly made to said Averill a mortgage, containing the "same conditions as said bond, which mortgage covered all the lands covered by the plaintiff’s mortgage sought to be foreclosed, and was duly recorded on the 17th day of June, 1888; upon which mortgage there remained due and unpaid, at the time of the trial, $21,805.08. It also appeared that on the 27th'of August, 1874, the said Rufus Steere and his wife duly made to the defendant, Charles Childs, a mortgage whereby they in terms granted and conveyed to him all the lands and premises described in the said deed from the said trustees to the said Rufus Steere, dated March 26, 1859, recorded as before mentioned, June 29th, 1863, particularly described in the answer of the defendant, Charles Childs, as security for the payment of $4,000, being the amount of certain accommodation indorsements made by said Childs for the benefit and accommodation of the said Rufus Steere; that at the time of the trial there was duo, secured by and unpaid upon said mortgage, $4,167; that such mortgage was duly recorded on the 29th day of August, 1874. It further appeared that the premises, covered by the mortgage sought to be foreclosed, could be sold in four separate parcels, and that it was for the interest of all the parties that the whole should be sold in such parcels; that the portion of such lands and premises consisting of the dwelling-house occupied by said Rufus Steere, and about seven-eighths of an acre of land adjoining the same, described in said deed from said trustees to said Rufus Steere, dated March 26th, 1859, should be sold as one parcel; that the piece known and used as the hop lot should be sold as one parcel; that the store building, the factory, the water power, rights, appurtenances, privileges and easements connected therewith, together with the dwellings for factory operatives, with so much of the land surrounding the same and connected therewith as the referee appointed to sell should determine to be necessary for the beneficial enjoyment thereof, should bo sold as one piece; and that the remainder of said lands and premises, including the farm barn, should be sold as one parcel.

The court decided and decreed that the mortgage of the plaintiff sought to be foreclosed was a lien upon the lands and premises therein described, prior and superior to the liens and interests of any and all the defendants therein; that one-half of the rents and profits received by the plaintiff and the defendant, Elizabeth Lawson, should be applied upon, and deducted from, the amount found due upon each of their said mortgages respectively; that the plaintiff have judgment of foreclosure and sale; that the said lands described in the said deed from said trustees to said Rufus Steere, dated March 26, 1859, be first sold and the proceeds thereof applied to the payment of the amount found due upon the plaintiff’s mortgage, after deducting one-half of such rents and profits; that thereafter the remainder of the premises, described in the mortgage sought to be foreclosed, should be sold in three parcels, as before stated, and out of the proceeds thereof the costs and expenses of sale, and of necessary surveys, should be paid, and with the remainder, the referee appointed to make the sale was directed to pay the costs of the plaintiff and of the defendant Elizabeth L. Lawson, and Jane R. A. .Carter, executrix, etc., to be taxed, or so much thereof as the same would pay, and out of the remainder of the proceeds said referee was directed to pay so . much of the amount found due upon the plaintiff’s mortgage sought to be foreclosed as should remain unsatisfied, after paying and applying thereon one-half of said rents and profits, and the proceeds of the lands and premises directed to be- first sold, as before mentioned, or so much thereof as such remainder of such . proceeds would pay.

The defendant Childs appealed from all that part of such judgment that directed the lands and premises conveyed to Rufus Steere by said trustees by said deed, dated March 26, 1859, to be first sold, and which directed the payment of costs to the defend- . ant Elizabeth L. Lawson, and that no costs should be paid to the defendant Charles Childs. There does not seem to be any contention between the parties upon the point that after the conveyance of the house lot to the defendant Rufus Steere, by the deed dated the 26th day of March, 1859, and thenceforward until he received the deed of the remainder of the premises covered by the plaintiff’s mortgage, given December 1, 1865, he was entitled in equity, upon foreclosure of plaintiff’s mortgage, to have had the premises, which, up to that time, remained the property of the mortgagee, the Union Cotton Manufactory, first sold to satisfy such mortgage, and that no part of such parcel, so first conveyed to him, could have been sold under that mortgage until the parcel of the mortgaged property, belonging to the mortgagors, had been .subjected to the payment of the mortgage.

' There can be no doubt of the correctness of this proposition. (Crafts v. Aspinwall, 2 N. Y., 289; Williard’s Eq. [Potter’s ed.], 154; Skeel v. Spraker and others, 8 Paige, 182; Gill v. Lyon, 1 Johns. Ch., 447; Clowes v. Dickenson, 5 id., 235; Gouverneur v. Lynch, 2 Paige, 300; Guion v. Knapp, 6 id., 35; Rathbone v. Clark, 9 id., 648; Schryver v. Teller, id., 173.)

After the execution of the deed of December 1, 1865, by the' Union Cotton Manufactory to Rufus Steere, by which the premises therein described, the remainder of the lands covered by the plaintiff’s mortgage, were granted to him subject to the payment of the bond and mortgage to the plaintiff, and wherein he assumed and covenanted to pay the same as a part of the purchase-money of the lands and premises conveyed, he became personally liable for the payment of the debt, and the plaintiff could have maintained an action against him upon such covenant without resorting to a foreclosure of the mortgage, and without joining the mortgagor as defendant. (Burr, administratrix, v. Beers, 24 N. Y., 178; Hartley v. Harrison, 24 id., opinion, 171.) If Rufus Steere had previously to the 1st day of December, 1865, conveyed the house lot, the party receiving such conveyance and holding title thereunder would without doubt have been entitled to the benefits of the equitable doctrine, that Steere had become the principal debtor to the plaintiffs for the payment of his bond and mortgage, and the mortgagor his surety, and that the land conveyed by the deed of December 1, 1865, was the primary fund for the payment of such debt, and the other land, the house and lot, was merely security for the payment of the balance, if any, remaining after exhausting the primary fund. (Woods v. Spalding, 45 Barb., 607; Stuyvesant v Hall, 2 Barb. Ch., 151; Warfield v. Crane, 4 Abbt. Court of App. Dec., 525.) Rufus Steere, however, continued to be the owner of the house lot, when he received the deed of the remaining part of the mortgaged premises. The most material point in the determination of the case in my view is the decision of the question, whether the execution of this deed by the parties operated as an agreement between them, that the land therein mentioned should be the primary fund for the payment of the debt, and that the mortgage should be enforced upon that land in the first instance, and upon the house lot in case of deficiency only. If such effect is to be given to this act, the payment of the debt, to be made in the manner before mentioned, became a permanent charge upon each of the parcels of the mortgaged premises, and the subsequent mortgagees took the premises from Rufus Steere, subject to and impressed with the equities created by the conveyance to him, with his covenant therein. Each mortgagee was chargeable with notice of the provisions of the deed to Steere, and of any equitable rights derived by him from it. (Jumel v. Jumel, 7 Paige, 591; Harris v. Fly and others, id., 421.) Steere’s occupancy and possession of the premises was constructive notice of such equitable rights. (Gouverneur v Lynch, 2 Paige, 300; Trustees, etc. v. Wheeler, 61 N. Y., 88.)

It appears to mo that, under the peculiar circumstances of this case, no such equity arises. Rufus Steere had taken a quit-claim deed of both portions of the mortgaged premises, and both remained subject to the whole of the plaintiff’s mortgage and liable to be sold thereon; he had assumed the payment of the whole of the mortgage debt, and had become personally hable to pay any deficiency that might arise after a sale of both portions of the mortgaged premises. (Hartley Ex'r v. Harrison, 24 N. Y., 170; Burr v. Beers, id., 178; Ricard v. Sanderson, 41 id., 179.) In such a case, when the successive conveyances are to the same party, all subject to the original mortgage, the title to all remaining in the grantee at the time of the foreclosure, and he personally hable for any deficiency arising after a sale of the whole, Rufus Steere, such grantee, could have no equity to have the property sold in parcels in the inverse order of the conveyances to him. The cases cited by the counsel for the appellant Childs, are cases in which the successive sales have been to different parties, and conflicting equities have arisen between such parties, and no authorities that I have been able to find recognize such a thing as a purchaser of different parcels in succession, subject to a mortgage assumed by him, having an equity to have them sold away from him in the inverse order in which he purchased. It can make no difference to him which is sold first, where the whole belongs to him, and must be sold if necessary to pay the mortgage.

We think the equities between the different parties, mortgagees of Rufus Steere, are to be determined by the principle stated in Willard’s Equity (1st ed.), 454, that “ where a creditor has a lien upon several parcels of land for the payment of his debt, and some of the land still belongs to thp person who, in equity, ought to pay and discharge the debt, and other parcels have been sold by him, the lands still belonging to such person are first chargeable with the payment of the debt; ancl upon principle, that as between equal equities, he who is prior in time is strongest in right, if the person who ought to pay the debt has conveyed different parcels of the land upon which it is a lien, at different times to different purchasers, as between Such purchasers the lands are chargeable in equity in the inverse order of their alienation.” The mortgage given by Rufus Steere to the defendant Lawson was prior in time to the mortgage given to the defendant Childs.

At the time the Lawson mortgage was given, Rufus Steere was the owner of the house and lot afterwards mortgaged to defendant Childs. When the Lawson mortgage was executed, the mortgagees therein named acquired the equitable right to insist that the plaintiff should exhaust his remedy against all the premises remaining owned by Rufus Steere, before selling the laud mortgaged to them, and also had the right to insist upon the. personal liability of Rufus Steere for the balance of the mortgage debt. The successive mortgagees took their mortgages subject to the equities in favor of prior grantees and mortgagees. (Clowes v. Dickenson, 5 Johns. Ch., 241.) For these reasons, that part of the decree which directed that the house and lot should be first sold, and the proceeds thereof applied in payment of the plaintiff’s mortgage, was right.

The allowance of costs to the defendant Lawson, and the disallowance to the defendant Childs was discretionary. (Code of Procedure, § 306, subdiv. 1; Pratt v. Ramsdell, 16 How. Pr. R., 59; Morris v. Wheeler, 45 N. Y., 711.) Tbe General Term will not reverse or interfere with such discretion, except for manifest error. (Ludington v. Taft, 10 Barb. S. C. R., 448; Belmont v. Ponvert, 38 N. Y. Superior C. R., 425.) Defendant Childs, by his answer, alleged that plaintiff claimed more than was due, and upon the trial the amount claimed was reduced. Upon the issue raised with defendant Lawson, upon her right to have the house and lot sold first, he failed. The court justly refused to award costs either for or against him, and awarded costs to the defendant Lawson, to be paid from the fund.

The decree should be affirmed, with costs of this appeal in favor of the defendant Lawson, to be paid by the defendant Childs personally.

Present —Learned, P. J., Boardman and Tappan, JJ.

Ordered accordingly.


source: Caselaw Access Project

author: Per Ouriam:

license: Public Domain

text:
    PATRICK FLYNN and MAURICE B. FLYNN, as Administrators of JOHN H. FLYNN, Deceased, Respondents, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant.

      Application for insurance — when the cmrupany is bound by the acts of its officer, in wrongfully filling in answers.

    An agent of the'defendant, doing business in New York, having authority to deliver policies and receive payment of the first premium, sent from the company’s office in New York a blank application to Dr. V., a medical examiner of the company, and requested him to take the application and make the examination of plaintiffs’ intestate. Dr, Y. went for that purpose with the blank application, put the questions and received truthful answers; but the answers as written by him were some of them untrue. The deceased signed the application, but never saw the answers. The defendant’s agent approved the risk in writing upon the application, on which he was named as the agent of the company. There was no collusion between the applicant and the doctor, or any attempt to cheat the company. By the policy, the statements in the application were made warranties. The judge charged the jury that if Dr. V. was there as the agent of the company for the purpose of receiving and preparing this application, then the plaintiff might recover. The jury found for the plaintiff.

      Held, that under the circumstances the company was bound by the acts of its medical examiner, and that the plaintiffs were entitled to recover the amount of the policy.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover the amount of a policy of ■ insurance, issued upon the life of the plaintiffs’ intestate by the defendant.
    The defense was a breach of warranty, in that certain answers to questions contained in the application were untrue. It appeared that one Corey, an agent of defendant, doing business in the city of New York, wrote to one Dr. Vodder, a medical examiner for defendant, sending a blank application, requesting him to go to the deceased and fill it up, leaving the agent’s name blank; to make the medical examination, and return the application to Corey. This was done, the application Avas approved by Corey, and a policy was issued by defendant.
    In answer to certain questions as to diseases which Flynn had had, he stated the facts truly to Dr. Yeclder, but the latter Avrote down answers Avhich were untrue, it being stated therein that plaintiffs’ intestate had not suffered from the diseases referred to in the questions, whereas, in fact, it appeared that the deceased had suffered therefrom.
    Upon the first trial the plaintiffs had a judgment, which was affirmed at General Term (7 Hun, 390), but reversed in the Court of Appeals (67 N. Y., 500.).
    Upon the second trial the plaintiffs again recovered, and from that judgment this appeal was taken.

      Ashbel Green, for the appellant.

      Robert Payne, for the respondents.
   Per Ouriam:

When this case was before the Court of Appeals, it was held, as a matter of law, that, upon the evidence, Dr. Vedder was not the agent of the company in reference to the application, and that therefore the company was not bound by anything- he did in reference thereto. (67 N. Y., 500.) In coming to this conclusion the court say, in regard to Corey, the agent of the defendant, that it does not appear where he resided, how extensive his powers were; that the utmost that can be claimed is, that he was an agent to solicit and take applications for insurance. Again, the court say that it does not appear where the blank application came from, nor whether the assured or Dr. Vedder produced it. These statements are now referred to, in order to ascertain whether the present evidence is any more full'than that of which the court then took notice, and on which they seem to have decided the case.

It appears that Corey is named as the authorized agent of the company on the application on which the company acted; that he approved the risk in writing thereon; that it was his duty to see that all the questions in the company’s form were answered; and by the policy it appears that he was authorized to deliver it and receive the first premium; and this he in fact did. It further appears that his place of business was New York, from which point he corresponded with Dr. Vedder. Letters sent by him to Dr. Vedder are dated from the office of the company. The envelope of a letter sent by him to Dr. Vedder was marked to be returned to the company, if not called for in- ten days. With the blank application sent to Dr. Vedder, was an envelope directed to Corey at New York, describing him as general agent of the Equitable Life Assurance Society. The bill of Dr. Veddcr’s charge to the defendant for his services in this matter was received by him .from Corey.

It appears, therefore, that the blank application came from Corey to Dr. Vedder, and that when Dr. Vedder called upon the insured to make out his application, the doctor had received the blank application ; that he put the questions to Flynn, and wrote down the answers, and that Flynn signed the application in his presence. These are the very questions, all of which :t was Corey’s express duty to see were answered. That Dr. Yedder was a medical examiner of the defendant does not seem to be disputed. Ho made a report, in that capacity in this case, upon which the defendant issued the policy. This is an adoption of him as medical examiner.

It appears by note to that report that if the medical examiner had not been regularly appointed, a 1 ‘ medical reference ” must be signed and accompany the application. No such “ medical reference ” is in this case. This indicates that he had been regularly appointed.

This medical examiner testifies that he was requested by Corey to go and take or fill the application, and to make the examination. Whether this was true or not, was submitted to the jury, and they have found for the plaintiff. They have found, too, that there was no collusion between Dr. Vedder and the assured.

There is no doubt that certain of the written answers in the application arc untrue; and the only question is whether the acts- and sayings of Dr. Yedder relieve the plaintiff from the effect of these untrue written answers. The court charged that if there was collusion- between the insured and Dr. Yedder, the plaintiff could not recover ; that if Dr. Vodder was there as the friend and agent of the assured, the plaintiff could not recover ; that if he was there merely as the medical examiner of the defendant, the plaintiff could not recover ; that if he was there as the agent of the company for the purpose of receiving and preparing this ■ application, then there might be a recovery. And here it should be noticed that no evidence is given by the company as to the authority granted to Corey or to Dr. Yedder. The fair presumption, then, is that they cannot deny the authority of either.

The form of the examiner’s reports states that the examiner will require the applicant to procure the family physician’s certificate, unless such certificate is clearly unnecessary. In this respect, then, the examiner acts for the company in deciding whether that certificate is necessary.

The written answers of the applicant, which are alleged to be false, are exclusively as to matters of disease. Dr. Yedder read to him the question, whether he had had any of a number of diseases. The applicant mentioned a sickness ho had had 1 ‘ down below.” Dr. Yedder told Mm it was not serious, and it was not necessary to mention it. Dr. Yedder wrote the answer “ whooping-cough, measles; no effects from them.” The applicant did not read the answer. Again, Dr. Yedder read the question, whether he had had any serious illness? The applicant told him that a physician had treated him for a slight attack of gravel. Dr. Yedder said the physician was mistaken, and wrote “no.” The applicant did not see the answer. Again, Dr. Yedder read the question, whether he had consulted other medical men? The applicant said he had, and mentioned a name. Dr. Yedder explained to him that that consultation was not sufficient to mention, and wrote “no.” The applicant saw none of the answers. The medical examination was taken by Dr. Vedder the same day.

The facts, then, are that an agent of the company, doing business in New York, and dating from the company’s office, authorized to receive the first premium of this policy, sends a blank application to Dr. Yedder, a medical examiner of the company, requesting him to go and take the application and make the examination. Dr. Yedder goes for that purpose with the blank application, puts the questions, and receives truthful answers. He is himself intrusted with the duty of examining the health of the applicant, and in several instances, where the verbal answers of the applicant relate to the applicant’s health, after hearing the verbal answers, Dr. Vedder explains. what the proper written answer should be and writes it down, and the applicant does not see any of the answers. The application is returned to the agent and approved by him. The policy is made out by the company and the insured pays the premium. He was induced to sign the incorrect answers by the statements of the defendant’s medical examiner on medical subjects, in respect to which it was reasonable to rely on him as the agent, in that respect, of the company.

It is not for us to justify the conduct of the medical examiner. The question is, who shall suffer for the misstatements made by him in writing the answers ? Shall the loss fall on the insured, who is found by the jury to have made verbally truthful answers, and who trusted a medical expert of the company’s selection, coming to take his application and to examine him ? Or shall it fall on the company, that has, by making Corey, its agent, and Dr. Vedcler, its medical examiner, been able to obtain the premium from the deceased, and to cause him to believe that his life was insured ?

The judgment and order should be affirmed, with costs.

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

Judgment and order affirmed, with costs.


author: Learned, P. J.:

text:
    THE BOARD OF SUPERVISORS OF SARATOGA COUNTY, Appellant, v. ELLA DEYOE, Respondent, Impleaded with FREDERICK T. POWELL and others.

      What facts necessary to sustain interpleader — Bill quia timet — Bill to prevent a multiplicity of suits.

    The plaintiffs alleged that, by a resoluion of their board, the county treasurer ■was authorized to borrow $20,800.44; 'that, pretending to act thereunder, he ' issued seventy-three notes in the name of the county, amounting to $138,631, that of these notes only $20,800.44 were valid; that each of the defendants held some of the notes; that several had commenced separate actions, and the others intended to do so; that the valid were indistinguishable from the invalid notes; that they were willing to pay the $20,800.44, and prayed that the defendants might be restrained from prosecuting separate actions, and for an inter-pleader between them and a surrender of the invalid notes.

      Held, That the action could not- be sustained as a bill of interpleader, because the plaintiffs denied that they owed the defendants what they severally claimed, and because the defendants did not claim the same debts, but distinct and several debts.
    That it could not be sustained as a bill quia timet¡ because the causes of action, being on notes, would be barred in six years, and plaintiffs could produce, on any trial, any evidence on which they now relied.
    That it could not be sustained as a bill to prevent a multiplicity of suits, because the defendants did not all stand in the same position toward the plaintiff, and. the success or defeat of one would not be the success or defeat of all.
    The case of N. T. and N. H. R. R. Bo, v. Schuyler (17 N. Y., 592), and $. B. (34 id., 30), distinguished.

      Appeal from an order sustaining a demurrer to the complaint.
    The complaint in this action alleged, among other things, that the county of Saratoga was a municipal corporation, and one of the political divisions of the State of New York.
    “This plaintiff further states that * * * (certain of) the defendants * * * have severally commenced actions in this court against the above named-plaintiff, as defendant, alleging in substance that the county of Saratoga is indebted unto the plaintiff in each of said actions, in various amounts from $100 to $6,000. This plaintiff further states, upon information and belief, that on the 10th day of November, 1874, the said county was indebted in the sum of $12,800.44, * * * which would become due February 15, 1875, and that thereupon the said board of supervisors passed a resolution as follows:
    “ Resolved, That the county treasurer be directed to procure an extension of the time of payment of such portion of the town bounty debt, accrued prior to February 15, 1875, as the several towns owing the same may desire to have extended, and the expense and interest upon the same to be chargeable upon the several towns respectively desiring such extension.”
    That on the 20th day of November, 1874, the said board of supervisors adopted a resolution as follows:
    “ Resolved, That the county treasurer be hereby authorized to borrow, on the credit of the county, $8,000 for one year, at.a rate not exceeding seven per cent interest.”'
    “ Which two resolutions were the only actual or apparent authority given to the county treasurer to borrow money upon the credit of said county, and the said sum of $8,000, and. said sum of $12,800.44, making $20,800.44, were the only, debts against said county which were maturing in the year 1875.. This plaintiff further states, that one Henry A. Mann was treasurer of the county of Saratoga from January 1, 1861, to December 81, 1875, inclusive. This plaintiff further states, upon information and belief, that on or about February 15, 1875,-.the said Henry A. Mann, pretending to act under the authority, of.;said resolution, signed, issued, and put in circulation notes fo an. amount exceeding fifty thousand ($50,000) dollars, all in substantially the form following:

      “No. 1. Saratoga County Treasurer’s Orrige, ) “Ballston Spa, February 15, 1875. )
    “ In pursuance of a resolution passed November, 1874, by the board of supervisors of Saratoga county, the county of Saratoga promises to pay, at the Saratoga county treasurer's office, on the 15th day of February, 1876, to John J. Sherwood, or bearer, three thousand dollars, at 7 per cent interest, for value received. “ $3,000. “ HENRY A. MANN, Treasurer.”
    “That between January 1 and August 6, 1875, the said Mann so issued and put in circulation seventy-three notes of that tenor and form, amounting in the aggregate to the sum of $138,631, or thereabouts, and each of said defendants claims to be the owner of some one of said notes. That each "of said suits has been brought upon one or more of said notes. This plaintiff further states, upon information and belief, that the said sum of $12,800.44 was paid by said treasurer out of the funds raised upon said notes, or some of them, but this plaintiff is ignorant which of said proceeds were used for that purpose. This plaintiff further states, upon information and belief, that of the above notes, only $20,800.44 are valid and legal debts against said county, and to that extent said county admits they are so valid and ought in equity to be paid to the rightful owners. That it is no fault of the county that they were not paid February 15,1876, when they became due. This plaintiff, upon information and belief, further states that said county always has been, and is now willing and ready to pay the amount of said debt to the rightful owners, as soon as the same can be ascertained and determined, but the plaintiff’ is uncertain who are the righful owners of said debt, or how much of the same is due to either of the defendants, and with due diligence has not been able to ascertain the same. This plaintiff further states, upon information and belief, that prior to February 15, 1876, the said county caused to be levied and collected, and paid into the treasury of said county, the sum of $8,800 and interest, for. the purpose of paying it toward said debt, and made provisions for raising money to pay the balance of said debt as soon as it could be ascertained who were the rightful owners of said debt. This plaintiff further states, upon information and belief, that, by reason of the negligence of said defendants, it will require a long and expensive examination to determine which of said claims are valid, and which of said defendants are entitled to said debt, and the proportion belonging to each; and if the cases already commenced are allowed to proceed, the trial of each will necessarily require nearly as much time and expense as it will to try and determine the whole of said cases in one action, and this plaintiff is advised and behoves that it has no other way to protect the county against the said expensive and vexatious litigations, except by bringing this action. This plaintiff further states, upon information and belief, that the defendants above named, who have not already commenced actions against this plaintiff, intend to do so to recover a part of the said debt owing by said county, and they severally claim that said notes held by them are valid debts against said county, that such actions, with those already commenced, will subject the plaintiff and the parties to those actions, respectively, to great and unnecessary expense, trouble and litigation; that this plaintiff is advised and believes that the l'ights of all the said holders of said pretended claims against said county may be determined and adjusted in one action without prejudice to the rights of any one of them, and so as greatly to promote the convenience and advance the interests of all persons interested in said claims, whether as holders of said genuine claims, or of the illegal claims aforesaid. This plaintiff further states, upon information and belief, that it is ignorant as to who are the true owners of said several claims against the county, and cannot, with safety, determine the same. This plaintiff further states, upon information and belief, that the said invalid notes upon their face are not distinguishable from those which are valid; that by the lapse of time it will become more difficult to determine which are valid, and the said county is liable to suffer great loss unless it shall be promptly determined which of said claims are valid, and this action is commenced for the purpose of impleading all of said holders of said notes or claims to said debt, in order that the rights and claims of said several holders and claimants may be settled in one suit, and that the delay, expense and litigation attendant on different suits may be avoided. This plaintiff further states that this action is commenced without any collusion between the plaintiff and the defendants, or any or either of them,. Wherefore, this plaintiff demands, by way of relief,
    ' First. That the defendants, and each óf them, may be enjoined and restrained from further prosecuting, the actions above mentioned, and from commencing any other actions upon or for any claims against said county for the causes above mentioned.
    Second. That it be determined which of said notes or claims are valid debts against said county, and which are spurious and invalid, and that the defendants may interplead so that the court may adjudge to whom the said valid claims belong, and that the said county may be protected and indemnified against all other claimants.
    Third. That all of the invalid notes be surrendered and canceled by order of this court, and that the plaintiff may have such further or other relief as may be just and equitable.”
    The defendant, Elia Deyoe, demurred to the complaint upon the ground that it did not. state facts sufficient to constitute a cause of action.

      Edward Fitch Bullard, for the appellant.
    This action can be maintained upon well-settled principles laid down in equity cases. (1 Story’s Equity Jurisprudence, §§ 7, 8, 10, 25, 32; The N. Y. and N. H. R. R.Co. v. Schuyler and others, 17 N. Y., 592; De Costa v. Scandret, 2 Piere Williams, 170; Bromley v. Holland, Coop., 9; Peake v. Highfield, 1 Russ., 559; Hamilton v. Cummings, 1 Johns. C. R., 517; McHenry v. Hazard, 45 N. Y., 580; Sickles v. Richardson, etc., 6 Weekly Dig., 273; Guest v. The City of Brooklyn, 69 N. Y., 506.)

      Ffeary & Martin, for the respondent Deyoe.
   Learned, P. J.:

' To state the facts briefly, the complaint alleges certain resolutions of the supervisors, authorizing the treasurer of the county to borrow on the credit of the county, $20,800.44. It alleges that the treasurer, pretending to act under such resolutions, issued seventy-three notes in the name of the county to an amount of about $140,000. It alleges (without stating any other facts as. a basis of the allegation) that of. these notes only $20,800.44 arovalid. It alleges that each of these fifty-four defendants holds-Some one of the said seventy-three notes; and 'that thirty-one of the defendants have commenced separate actions against the plaintiffs on their respective notes, and the other defendants intend to do the same.

The plaintiffs further-allege that they are.willing-to pay the $20,800.44, but they are unable to ascertain who are the rightful owners of said debt; that it will require great expense and a long examination to ascertain which of the defendants arc entitled to be paid; that the invalid notes are not. distinguishable from tho valid, and that the action is brought without collusion. They ask an injunction against the prosecution of the actions, an inter-pleader by the defendants, and a surrender of tho invalid notes. One defendant demurred. The demurrer was sustained, and the plaintiffs appeal.

The plaintiffs insist that this action should be sustained on several grounds.

First. As a bill of interpleader. The answer to. that is-, that interpleader is allowed only when the plaintiff makes no claim to the fund in dispute, and is ready to pay it, but docs not know to whom he should pay; and where the several defendants claihr the same debt. In this case, the plaintiffs deny their liability to the defendants, and insist that they do not owe-wliat the defendants severally claim. Furthermore, tho defendants do not claim the same debt, but distinct and several debts. Each sues or claims upon the note which he holds. That note may, or may not, be valid. But the debt which it represents is not the debt represented by any other note. There is no common fund to which each defendant lays claim.

Second. As a bill quia timet. But the alleged causes of action are on notes, which will be barred by the statute of limitations in-a short time. Actions are already commenced. There can be no difficulty in producing on any trial of these notes the evidence on which the plaintiffs in the present action rely to defeat a recovery. There is no need of that stringent equity remedy of compelling a surrender of the notes or of enjoining their prosecution. The plaintiffs can make their defense without difficulty whenever they shall be sued, whenever the pending actions shall be brought to trial.

Third. As a bill to prevent multiplicity of suits. Such an action lies when several defendants stand in the same relation to the plaintiffs, asserting severally, each for himself, the same right; where, for instance, the recovery of one establishes, or should establish, the right of all, and the defeat of one should be the defeat of all. But the very contrary is true here, according to the plaintiffs’ theory. They claim that the defendants do not stand in the same position severally toward the plaintiffs. On the contrary, they say that, if some of the defendants ought to recover, the others ought not. (Town of Venice v. Woodruff, 62 N. Y., 462.)

Fourth. The plaintiffs urge the so-called omnibus suit, growing out of the Schuyler frauds. (New York and New Haven R. R. Co. v. Schuyler, 17 N. Y., 592, and 34 id., 30.) That was a case quite unlike the present. A large amount of spurious certificates of stock had been issued. These certificates were, to all appearance, genuine. They could be transferred in the market. Their existence depreciated the value of the genuine stock, and they might be presented to the company and a transfer demanded at any distant day.

The present case, in the view of the plaintiffs themselves, is one where an agent has exceeded his authority, and has issued illegally notes in the name of his principal. As to some of these notes, the principal deifies any liability. It would undoubtedly be a convenience to a person who acknowledged that he owed some .claims, and who disputed other claims against him, to bring a joint action against every one who claimed to have a demand, and to ask that all his creditors should litigate their several claims in that one action. But such a suit would hardly be equitable in its effect.

The order appealed from should be affirmed, with costs.

Present — Learned, P. J., and Boardman, J.

Order appealed from affirmed, with costs.


text:
    CHARLES MAPLES, Appellant, v. ALEXANDER W. MACKEY, Respondent, Impleaded with EMORY D. ANGELL.

      Summons — admission of service of — when sufficient to support judgment.

    August 9, 1858, a summons was issued against the defendants, Angelí and Mackey, on which Angelí indorsed the following admission: “ I admit due personal service of a copy of the within summons, August 9, 185S. E. D. Angell.” August 81, 1858, a judgment was entered in the Supreme Court against both defendants on a joint liability. In a proceeding to enforce the judgment against Mackey, the court at Special Term decided that the judgment was void because of defects in the admission of service.

      Held, that it was immaterial that the admission was of the service of a copy of the summons, instead of the summons itself.
    That the admission showed sufficiently the time when the service was made, viz.: on August 9, 1858.
    That no proof of the genuineness of the signature of Angelí being required by the Code, its absence would not render the judgment void.
    That the judgment being that of the highest court of original jurisdiction, the fact that the admission did not show the place of service did not render the judgment void.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court, without a jury. The court found as facts : From the fall of 1855 until the 4th day of August, 1857, the defendants were co-partners, doing business as such in the village of Owego, in the county of Tioga. That they kept and carried on a drug store at that place under the firm name of Angelí & Mackey. That on the 3d day of January, 1857, the said 'defendants as such co-partners, drew their draft on the plaintiff, payable sixty days from date, to their own order. Which draft was duly accepted in writing by the plaintiff, for the benefit and accommodation of the defendants, and was by him paid at maturity, no funds having been placed in his hands by the defend-1 ants for the payment thereof. That said draft was drawn in the firm name by the defendant Angelí, and endorsed in the firm name by the defendant Mackey. That the firm of Angelí & Mackey was dissolved August 4th, 1857. That on or before the 9th day of August 1858, the plaintiff issued a- summons-against both defendants, and the defendant Angelí made the following admission which was endorsed thereon: .
    “I admit due personal service of -a copy of the within summons.
    “E. D. ANGEL.L.
    ' “August Wi, 185-8.'”
    ' That-said summons was not served upon .defendant Mackey, and no other .proof of service upon-the defendant Angel!.was¡filed with 'the. clerk-of Tioga county .before entering judgment'as hereinafter .-stated'. That,-on'the 31st of August,'1858, the clerk of Tioga county, upon the plaintiff’s filing the summons, with the foregoing-admission .indorsed thereon, an unverified complaint, said draft, statement of judgment and affidavit that no;answer or demurrer '■had been received therein, or appearance in any manner made by the defendants, entered a judgment in form-against both said defendants for .$220.94 damages, and $13184 costs and disburSe-¡merits. That said judgment has never been .paid or satisfied. "That, on or about the 11th day of April, 1876, the,plaintiff instituted these proceedings, and caused to be personally seryed on the 'defendant Mackey a summons -to show causé, made on an affidavit showing the entry of the judgment, and that no part of it had been paid, as required by chapter -2, title 12, part '2 of the Code -of Procedure. The defendant Mackey thereupon appeared, ..put in an answer-to the-complaint or affidavit therein,'and upon issue thus joined .the parties proceeded to trial.
    The court found as -conclusions of law, that the admission of service, signed by the defendant Angelí, was insufficient proof of .service to authorize the clerk of Tioga county to enter the judgment :in this .action. That the judgment entered by the said .clerk was a nullity and void as against the defendant Mackey, and was -insufficient as a basis upon which to institute these proceedings. That defendant was entitled to .a judgment, dismissing these proceedings -upon .the merits.

      T. <& A. More, for the appellant.
    Every judgment, however irregular .it may be, if amendable, is, unless-set-aside, to all-intents' ' and purposes, valid, and on a motion to set it aside, unless it be shown inequitable, the court will amend it nunc pro. tunc. (Jones v. U. 8. Slate Co., 16 How., 129; Mitchell v. Van Burén, 27 N. Y., 300; Ingrah'om Y. Bobbins, 33 id., 418; ChappelY. Chappel, 12 id., 222.) There are multitudes of hregularities for which judgments may be set aside upon motion; but such judgments are voidable only, and not absolutely void) and until set aside are valid. (Gere v. Gundlach, 57 Barb., 13; Hunter v. Lester, 18 How., 349; Hones v. Insurance Co., 8 Barb., 541.) Where a judgment is void or voidable, the proper way is to move to set aside or vacate it. {Gr ant Y.Vahder cook, 57 Barb., 175; Lambert y. Converse, 22 How., 265; Watkins v. Abram, 24 N. Y., 72; Wait’s Practice, vol. 3, p. 732.) Such a judgment as this is neither void nor voidable, and had a motion been made to set it aside as irregular, the court would have ordered'it amended nunc pro ’tunc. (.Mitchell v. Van Burén, 27 N. Y., 300; Farmers' Loan Co. v. Dickson, 17 Iiow., 477; Jones v. Slate Co., 16 id., 129; Peck v. Bichardson, 9 Iiun, 567; .Heesy. Hellis, 1 S. C. [T. & C.], 121; Foster v. Wood, 30 How., 284; 3 E. S. [5th cd.J, 637; Code, § 174; Williams v. Wheeler, 1 Barb., 48; Cooper y. Shaver, 41 id., 157.) The admission shows the time — “August 9, 1858.” Judgment was entered twenty-two days thereafter. (2 N. Y. S. C. [T. & G], 668.) The words “ due” and “ duly,” used in this and similar connections, have ‘ a well-defined legal meaning. A “ due personal service” can be nothing less than a regular service. {People y. Walker, 23 Barb., 304; Wynehamer y. The People, 13 N. Y., 395; Tollman v. Barries, 12 Wencl., 227.)

      S. L. & F. M. Mayham, for the respondent.
   Learned, P. J.:

This is a proceeding, under section 375 of the Code, to enforce . against the defendant Mackey-a judgment recovered by the plain- • tiff in form against both defendants, Mackey and Angelí, upon a joint liability. Mackey was not served with process in the original action. Mackey set up several defenses to this proceeding, and thé cause was tried before the court without a jury. The court rendered a decision in favor of the defendant, and the plaintiff appeals.

The court decided that the judgment against Angelí, the other defendant, was void. The only question before us is as to the, correctness of that decision. The facts bearing on that question are: That the plaintiff, on or before August 9, 1858, issued a summons against both defendants, upon which the defendant Angelí indorsed the following admission: “I admit due personal service of a copy of the within summons; Aug. 9, 1858. E. D. Angelí.” On filing this proof, and no other, of service; an unverified complaint; the draft on which the action was brought; an affidavit of no answer, etc., the clerk entered a judgment in form against both defendants, on the 31st of August, 1858. The court held the judgment void, because the admission of service did not show the place where it was served.

The defendant Mackey insists that the judgment was void for several defects in the admission of service.

First. Because it is the admission of the service of a copy of the summons instead of an admission of the service of the summons. We do not think that this was a matter of any consequence. The admission was indorsed on the summons •— the original summons, if there was an original as distinct from a copy; and because a copy is handed to the party served, it is not unusual to speak of serving him with a copy. The language is not strictly accurate; but the meaning is plain. So is this admission.

Second. Because the time of service is not expressed. But the time is expressed sufficiently. The defendant admits that the personal service was made the 9 th of August, 1858. The object of expressing the time is to show when the plaintiff will be entitled to judgment. It would be hypercritical to say that the day mentioned is the date of the admission, and not of the service.

Third. Because there was no proof of the genuineness of the signature of Angelí. This was not expressly required by the Code. ■ True, the court cannot' take j udicial notice of the signatures of • parties; and it was a very proper practice, even under the old Code, to verify signatures in such cases by affidavit. But, as a matter of fact proved on the trial, this was Angell’s signature. We cannot say that the judgment was void for want of a proof which was not required by the Code.

Fourth. Because the admission does not state that a copy was delivered to the defendant. It is sufficient that it admits due and personal service. That admits all which is necessary to constitute such service.

Fifth. Because it does not state the place of service. This is the ground relied upon by the learned justice who tried the case.

' Now, we must notice that this is a judgment of the highest court of record having original jurisdiction. The argument of the defendant’s counsel seems to' treat it as a judgment of the clerk ' of Tioga county. But that clerk is only the officer of the court, and the judgment is rendered not by him, but by the court.

Is there any question that the defendant Angelí was in fact properly served ? It is stated he was a witness on the present trial; and it is not pretended that he denied such service. The judgment-roll is not before us (as no case was made;) but if it followed the usual form it recited service of the summons on Angelí. And it will be remembered that, before the Code, the judgment-roll contained no proof of the service of process on a defendant. The only evidence of jurisdiction of the person contained in the roll'was the fictitious statement of the defendant’s actual appearance in court.

The defect complained of is an irregularity which the court would have permitted the plaintiff to amend on motion; and it did not render the judgment void. If an execution had been issued on it and property sold by virtue thereof, the purchaser would have taken a good title. There are many cases of similar irregularities which have been held not to affect the validity of the judgment. White v. Bogart, decided by this department November, 1877, was closely analogous to the present case. (See, also, Jones v. U. S. Slate Co., 16 How., 129; Farmers’ Loan and Trust Co. v. Dickson, 9 Abb., 61; Cooper v. Shaver, 41 Barb., 157; Peck v. Richardson, 16 S. C. N. Y. [9 Hun], 567). Our statute, often called the statute of jeofails, is sufficient to authorize the amendment, if it does not in fact render the amendment unnecessary. (3 R. S., m. p. 424, § 4, et seq., and especially § 7, sub. 14.)

Some cases are cited by the defendant in opposition to this view.

(Trolan v. Fagan, 48 How., 240.) This Was a motion to vacate the judgment, and such a motion might be luado for irreg'filarity’simply, and that case is disapproved in Peck v. Richardson (ut supra.)

(Kendall v. Washburn, 14 How., 381) This ivas a motion to'-set aside a judgment recovered on service by publication. The complaint had not been filed before publication; therefore the service had not in fact been made. In the present case the sendee was m'ádc; only the proof of the fact is defective.

(Reed v. French, 28 N. Y., 295.) This was a case where an admission of service had been obtained by fraud, and a 'judgment ‘had been entered, find execution thereon had been issued prior to ' one’ on the judgment taken by the same attorneys for other parties. The leading Opinion puts the decision on this ground. I do 'not understand that the remarks in regard to the admission Of service in that case, in the second opinion, were necessary. At any rate, the criticism that the admission of service did not contain 'the word “'personal” does not apply to the present case.

We cannot pass upon the question of the statute of limitations. All the facts are'not before us.

The judgment must be reversed, and a new trial granted, costs to abide the event.

Present — Leaened, P. J;, Boakdman and Bocke's, JJ.

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


text:
    ALEXANDER C. MORRISON, Appellant, v. CHARLES S. LESTER, Respondent.

      Code. § 321, not repealed by Code of Civil Procedure, § 15 — liability conferred by, hoib enforced.

    Section 321 of the Code, rendering one taking an assignment of a cause of action, ’ after the commencement of an action thereon, liable for the costs, was not repealed by section 15 of the Code of Civil Procedure.

      '•Payment of the costs by such assignee cannot be enforced by a capiás-ad satis- . faciendum.

      ■ A bailable attachment, returnable before the court, should be issued, and upon the return thereof the court should determine whether or not he wrongfully 'refuses to pay the costs. He cannot 'be -compelled' to’ do more than to apply such property as h‘e has to their payment.
    Appeal from an order made at Special Term, authorizing an attachment to issue against Thomas J. Clarke,'the assignee of the plaintiff, to compel him to pay the costs in this action.
    The action ivas brought to 'collect a claim of $5,000, and about twenty years’ interest. After the action was commenced, and at issue, Thomas J. Clarke took an assignment of the -'action and ' cause of action'for one dollar, and continued the prosecution of it.
    The complaint aauis dismissed, and judgment entered'in favor of ■'defendant for $319196 costs, June 26, 1876. The nominal plain"tiff being wholly insolvent, a motion Avas made to compel the assignee to pay the judgment under section 321 of the Code of Procedure. An order was made at Special Term, on the 19th day of June, 1877, directing the payment of the judgment by said assignee, and authorizing an execution against his personal property to collect the same; upon its return unsatisfied, a precept Avas "issued, requiring the sheriff to attach the body of the said assignee and commit him to the common jail of the county to which'such execution was issued, and to 'keep and to detain him in custody 'until he should pay said judgment and the cost's of the motion.
    Prom the latter part of this order authorizing the attachment !of the body of the said Clarke, he appealed to the General Term of -this court, and the same Avas reversecl, on the ground that the 'same directed a process different “from 'that intended 'by the word '‘‘attachment” as used in the statute. '(11 Hun, ’618.)
    Aftenvard, and on the 21st day of May, 1878, the defendant -again moved, at Special Term, for an order authorizing an attách•inent 'to issue against said Clarke, and upon 'that motion an order was granted “ that a Avrit of capias ad satisfaciendum issue out of and under the seal of this court, directed to the sheriff of the county of Saratoga, commanding him to take the said Thomas J. Clarke, if he shall be found in the said county, and him safely Peep, so that the said sheriff may have his body before the justices 'of the Supreme Court of the State of New York, or some one of them, at a Special Term of the said court, to be held at the courthouse in Ballston Spa, Saratoga county, on the 21st day of October, 1878, to satisfy the said judgment in favor of said defendant against said plaintiff, for his costs and disbursements herein, and that the said sheriff have then and there the said writ.”

      F. F. Bullard, for the appellant.

      Oharles O. Lester, for the respondent.
   Learned, P. J.:

The first question to be considered is whether section 15 of the Code of Civil Procedure repeals section 321 of the Code of Procedure. This section 15 is only a re-enactment, not well expressed, of section 2, chapter 390, Laws 1847. Section 321 was passed long after 1847. There is no reason, therefore, to construe the re-enactment of section 2 of that act to be intended as a repeal of section 321 of the Code. Besides, section 321 of the Code has reference to final as well as to interlocutory costs; section 15, Code of Civil Procedure, refers to interlocutory costs only. ‘ Furthermore, the repealing act, chapter 417, Laws 1877, excepts section 321, thus recognizing it as in force.

When this case was here before, we decided that the word “attachment,” in section 321, meant attachment against the person, not against property. (Morrisons. Lester, 11 Hun, 618.) If section 321 conflicts with the Code of 1847, it is later and controls. The general tone of legislation at the present day is against imprisonment for mere debt. This should make us scrutinize any enactment which seems to tend in the opposite direction, but not disregard its fair meaning. Giles v. Halbert (12 N. Y., 32), arose on the provision of the Revised Statutes. (2 R. S., m. p. 619, § 47 [44].) The last clause of that section is : “ And the payment of such costs may be enforced by attachment.” It was held that the act of 1847 substituted process in the nature of a fi. fa., for an attachment. But, after the passage of the act of 1847, the Legislature, in the. Code, twice adopted again the same phrase, that certain costs may be enforced by attachment; sections 316, 321. This takes such cases out of the effect of the act of 1847. (Grantman v. Thrall, 31 How., 464.) Ariel the defendant is entitled to enforce these costs by attachment against Clarke.

The learned justice whose order is appealed from followed the decision in the case last cited, which holds that the attachment to be granted is a ca¡pias ad satisfaciendum. That point we did not decide when the case ivas here before. We are reluctantly compelled to disagree with the view taken in that case. A capias ad satisfaciendum is a species of execution, issued to imprison the debtor, after judgment recovered, until he makes satisfaction. (3 Black. Com., 414.) It is a judicial writ, issuing in the regular progress of the cause. (1 Burrill Pr., 308.) It is not, in any sense — even in theory — a criminal process. On a ca. sa., the sheriff must take the person, and keep him in custody, (or on the limits,) and an escape makes the sheriff liable. On the contrary, an attachment is a criminal process in form. It issues in the name of the people against the supposed offender. It is, in theory, granted on account of some supposed, contempt. (4 Bl. Com., 284.) It is merely intended to bring the party into court, as is expressed in 2 R. S., m. p. 536, § 5. The officer to whom an attachment is issued is bound only to have the person in court at the return-day. He could not be liable to pay the debt, as on an escape, because the person was out of custody meantime.

It is not necessary to pursue the distinctions further. An attachment is a process, in form criminal, though in fact civil, issued to bring a person before the court at a fixed return-day. It is usually bailable in an amount specified by the officer. (2 R. S., 537, §§ 13, 14, 15.) When the person has given bail, he is not restricted to the jail limits, as in the case of bail to a ca. sa.

We think, then, that the process issued should be a bailable attachment, returnable before the court. And if it be asked what further proceedings on the return of the attachment, it seems to us that the question must be then examined by the court whether the party wrongfully refuses to pay these costs. The judgment is no lien against Clarke’s real estate; nor is there any execution to create a lien on his personal property. But the Code says that he is liable for these costs; and on the return of the attachment, it should be inquired whether he wrongfully refuses to pay. That includes an inquiry as to his ability to pay, and as to his refusal to apply bis property to this debt. There is nothing unusual in such an inquiry. Similar investigations are constantly made in proceedings supplementary to execution.

We are aware that in the case of Grantman v. Thrall, above cited, it is said that the poverty of the guardian is up defense to the mqtion; and. according to the views there stated, Clarke should be imprisoned on a ca. so,., whether or not ho has any means to pay these costs. We do not think that is correct. There is no, reason why he should be subject to a greater liability than the1, plaintiff himself. His liability must be enforced differently, because there is no lien by judgment or execution. But his liability can only be this, that he must apply his property, if he has any, to pay these costs.

The order, then, should be modified so as to direct the issue of, an attachment, bailable in such amount and returnable at such time as the court below may direct. No costs to either party on this appeal.

Present — LeaeNed, P. J., Boardman and Bockes, JJ.

Ordered accordingly.


author: Bocices, J.:

text:
    MARTIN DARLING, Respondent, v. FRANKLIN PIERCE and MYRON PIERCE, Appellants.

      When surrogate disqualified from acting — Section IS, chapter 280 of 1847. •
    Smith, the surrogate of Cortland county, acting as attorney and counsel for the plaintiff Darling, in an action against the executors of one Pierce, recovered a judgment, which was entered December 28,1871. The executors were then compelled to account before the district attorney, acting as surrogate, and a distribution of the assets was ordered, the decree being made May 17,1872. On that day, the plaintiff paid the surrogate in full for his services as attorney and counsel, and he then ceased to act as such. October 12,187G, both executors having died, an administrator, with the will annexed, was appointed. On the next clay, plaintiff filed a petition before Smith, the surrogate, praying 'for a sale of the real estate of Pierce to pay the amount due on his judgment. Such proceedings were had, that an order was made requiring such sale to be made.

      Held, that, as the surrogate had acted as attorney and counsel in recovering the judgment on which the order of sale was based, he was disqualified under section 81 of chapter 2S0.of 1847 from acting in the application for such sale.

      Semble, that it would, be improper for him to act in such,a case, even though, there were no statute in express terms disqualifying a judicial officer from adjudicating upon a matter as to which he had. acted as counsel.
    Appeal from a decree of the surrogate of Cortland county, directing a sale of the real estate of a deceased person to pay his debts.
    The surrogate before whom the proceedings were had, Mr. A. P. .Smith, was attorney and counsel for the respondent Darling, in a litigated suit against the executor and executrix of the last will and testament of Albert L. Pierce, deceased, and succeeded; having secured a recovery against them as such executor and executrix for $3,590.50 damages, and $216.10 costs. The judgment was entered December 28th, 1871. Proceedings were thereafter taken for an accounting before the district attorney of the county acting as surrogate; Mr. Smith being disqualified from acting as surrogate in the matter on the alleged ground of interest. The proceeding resulted in an order or decree for the distribution of the funds of the estate, the amount to bo applied on the judgment having been found to be $245.50. The decree for distribution was made May 17th, 1872. On the same day the executor settled with Mr. Smith, and paid him $245.50, in full satisfaction of his claim as attorney and counsel in the suit so as aforesaid conducted to judgment; and he thereupon ceased to act as attorney and counsel for Darling. The executor and executrix having died, Franklin Pierce was appointed administrator with the will annexed of Albert L. Pierce, deceased. I-Iis appointment was made October 12th, 1876. On the next day, Darling, the plaintiff in the judgment against Pierce’s estate, filed his petition in the Surrogate’s Court, praying for an order requiring the administrator to show cause why ho should not bo required to mortgage, lease or sell the real estate of which the deceased died seized, to pay his debts. The surrogate, former attorney, and still attorney of record in the suit, the recovery in which formed the basis of the application, entertained the proceeding, made the order to show cause, and having adjudicated upori all questions in the proceeding demanding adjudication, finally made the order or decree requiring the administrator to make sale of the deceased’s real estate. From this decree, two persons, heirs-at-law of the deceased and interested in the premises directed to be sold, appealed to this court. The administrator, as such, has not appealed.

      Franklin Pierce, for the appellants.
    The motion to dismiss the proceedings, on the ground that the surrogate was disqualified, should have been granted. The provision of 2 Revised Statutes, chapter 3, title 1, page 275, section 8, by which the appellants claim that the surrogate was disqualified to grant this order, is a maxim of every code, and is merely declaratory of man’s instinctive sense of justice. (Revisor’s Notes, 3 R. S. [2dcd.], 694; 8 Co., 118, A; IlasJceth v. Rraddock, 3 Burrows; Judge Prescott’ Trial, 149; Washington Ins. Oo. v. Price, 1 Hop. Ch. R., 1; Commonwealth v. Ryan, 5 Mass., 92; Pearce v. Atwood, 13 id., 340; Justinian’s Institutes, book 4, title 5, law 1; French Code de procedure, part 1, book 2, title 21, art. 378; Wharton’s Legal Maxims, Max., 51; Hunter’s Roman Law, 789, 790; Kent’s Com., vol. 1 .[4th ed.], 448; Reeves’ History of English Law, vol. 2, 499-305; Wright v. Crump, 2 Ld. Ray., 766; see, also, 1 Salk., 396; Prescott’s Trial, art. 12; Prescott’s Trial, 149, 193; Massachusetts Bill of Rights, art. 29; New Hampshire Bill of Rights, art. 35; Dimes v. Grand Junction Canal Co., 3 H. L. Cas., 793; The People v. The Suffolk C. P., 18 Wend., 552; Oakley v. Aspinwall, 3 Comst., 552; People v. Dohring, 59 N. Y., 377; Morss v. Morss, 11 Barb., 515; Strong v. Strong, 9 Cush., 570; XIII Alb. Law Jour., 359 — cases there cited; Lord Chelmsford, 7 II. L. Cas., 429; Judge AlleN [Barnard’s Trial, vol. 1], 68; Ch. J. MARSHALL, see 17 Barb., 412; Chancellor SaNford, 1 Hop. Ch. R., 1; Williams v. Robinson, 6 Cush., 333; Moses v. Julian, 45 N. II. R., 57; Steamboat Company v. Livingston, 3 Cow., 724; Gibbon’s Decline and Fall of Rome, vol. 4, p. 310, note.) The surrogate was clearly incapable of making the order appealed from within the holding of each of the following decisions: (McLaren v. Charrier, 5 Paige, 530; Ten EicJc v.Simpson, 11 id., 177; Whicker v. Whicker, 11 N. H. Rep., 349;
      Moses y. Julian, 45 icL, 52, 57, 58; Williams v.. Robinson, -6' Cush., 333; 'Carrington v. Andrews, 12 Abb. Pr. Eep., 348; Freelove v. Smith, 9 Vt. E., 180; Fox v. Johnson, 3 Cow., 20;-Lovering v. Lamson, 50 Me. E., 334; Richardson y. Welcome, 6-Cush., 331; Stearns v. Wright, 51 N. H. Eep., 600; Slacumy.-Simms, 5 Crauoh, 363.) Sections 2, 3, 4, 5, 7 and 8 of the 2.'. Revised Statutes, 275, are statutes in pari materia, declaring the ' design of the common law to prevent corruption and favor in courts, and they should be construed to that end. (Carrington v. Andrews, 12 Abb. Pr. Eep., 349; Halt v. Thayer, 105 Mass., • 2.19; 7 Am. Eep., 515; Oakley v. Aspinwall, 3 Comst., 551; - Slockwell v. White Lake Township, 22 Mich., 344; Regina v. • Aberdear Can. Co., 14 Ad. & Ell. [N. E.], 854; Weekly Digest, ■ vol. 6, 452.)

      Warren (& Kellogg, for the respondents.
    The surrogate has never been attorney or counsel in this cause or proceeding. ■ (Bouvier’s Law Dictionary, 1 Yol., 211; Webster’s Dictionary • [Unabridged]; § 1210, Code of Civil Procedure.) The employ- - ment of the attorney ceased with the rendition of judgment. His relation as an attorney to the suit was then ended; for thereby, - says Lord Coke, placitwm terminatur (2 Inst., 378). (McBrath v. Cook, 1 Moore aud Payne, 513; Lusk v. Hastings, 1 Hill., ■ 656-659; Bathgate, Adm., v. Haskins et al., 59 N. Y., 533; Rice v. Floyd, 1 Comst., 608; Porter v. Kingsbury et al., 13 Hun, 33; Pratt v. Allen, 19 Howard, 450, 456; McLaren v. Charrier, 5 Paige, 530.) A judge is not incapacitated, and will not be permitted to withdraw from the decision of a cause on the ground that he has formed or expressed an opinion. • {Steamboat Company v. Livingston, 3 Com., 713, 724; 1 Yol. Bouvicr’s L. D., 675; 2 Marsh, 517; Coxe, 164; 2 Brins, 454.) A surrogate is not a judge within the meaning of the statute. (Matter of Watson v. Nelson, 69 N. Y., 536.)
   Bocices, J.:

The*sole question presented on this appeal is this, whether it Was competent and right for. Mr. Smith to act as surrogate in the . proceeding in the Surrogate’s Court to obtain a sale of the testator’s real estate to pay bis debts, f.uch proceeding being based on a judgment which lie had procured as attorney and counsel; whether he was not, for the reason stated,- disqualified from entertaining- the proceeding or acting as surrogate in the matter of tho application. . lie was not disqualified on the ground of pecuniary interest, as it appears that on the 17th of May,- 1872, several years before tho proceeding before him was instituted, the plaintiff in tho judgment (present respondent) settled with him'and paid him in full for his services as attorney and counsel • in ■ tho case, and tho relation of attorney and client, before existing between them, then ceased. This conclusion, that Mr. Smith had no pecuniary interest in the matter after such settlement and payment, renders mauy. of the cases cited by tho counsel for the appellants inapplicable to this case. But it is insisted that he could not bo discharged from bias and partiality by any arrangement or action between himself and his client, as regards tho matters involved in tho judgment - which he, as attorney and counsel, had been instrumental in procuring; hence that he was in law disqiialifiedifom acting as judge in any proceeding wherein tho claim on which the judgment was rendered, or even tho judgment itself, could bo brought in question. It is a sound principle, recognized in all enlightened countries, that all officers clothed with judicial authority should, with a view to their just and upright action, be free from all influences which might, by possibility, induce bias in tho exercise of their duties; and so tenacious are wise and just governments in this regard, that in most countries laws are enacted expressly prohibiting magistrates, having judicial power, from sitting in judgment in cases and uuder circumstances where they might be touched by sinister impulses. So in our own State it -is enacted that the sittings of courts shall be public, and that every citizen may attend them; that no judge can sit as such in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either party, and also for various other causes specified in tho statutes. (2 R. S., 275, marginal paging.) The provision more directly applicable to tho case in hand is as follows: “ No judge of any court shall have a voice in tho decision of any cause in which he has been counsel or attorney, or solicitor, or in the subject-matter of which be is interested.” (Laws of 1847, ck. 280, § 81.) It is not. disputed tliat the surrogate is a judicial officer. His functions are in general judicial. So it cannot be well disputed that he acted judicially in the proceedings here under review; and it may be well to inquire to what extent he acted, judicially in this case; just what he was called upon to adjudicate; what he was judicially to determine. He was to determine by adjudication (in this case where the application was by a creditor) whether there had been an accounting by the executor, and whether there were or wore not sufficient assets to pay the debts of the deceased. These were material averments to be made and proved, and they were in fact made in the petition of the creditor. The appellants in this case, being interested in the premises proposed to bo sold, had a right to contest these averments. They might insist that there had been no accounting, or that the pretended accounting was irregular and void., or collusive and fraudulent. So, too, they might attack the claims of creditors with a view of showing that there were, in fact, sufficient assets to pay all just debts. against the deceased. It was held in Baker v. Kingsland (10 Paige, 366), that, before a surrogate was authorized to make an order for the sale of the real property of a deceased person, he must bo satisfied on legal proof, that the debts for the purpose of satisfying which the application is made, arc justly due and owing from such deceased person, as against the owners of the real estate. The respondents then (and here is the material point in this case) might attack the petitioner's judgment, and also the claim for ■which the recovery was had. The judgment was not conclusive on the owners of the real estate proposed to be sold. (Osgood v. Manhatten Co., 3 Cow., 612; Baker v. Kingsland, 10 Paige, 366 ; Sharpe v. Freeman, 45 N. Y., 802.) The statute applicable to this proceeding is as follows: that “ where a judgment has been recovered or decree obtained against an executor or administrator for any debt, due from the deceased, and there are not sufficient assets in the hands of such executor or administrator to satisfy the same, the debt for which the judgment or decree was obtained shall, notwithstanding the form of such judgment or decree, remain a debt against the estate of the deceased to the same extent as before, and to be established in the same manner ■ as if no such- judgment or decree had been obtained ; provided • that, where such judgment or decree has been obtained upon a trial ' or hearing upon the merits, the same shall be prima facie evidence of such debt before the surrogate.” (Laws of 1843', ch. 172 ; 3 : R. S’., 6th ed., 117, § 60 ; see, also, cases above cited remarking ' on this statute.) Nor is this statute repealed by section 1210 of ' the present Code of Procedure, which was intended to supercede : section 8 as incorporated into the Revised Statutes. (3 R. S., 618, § 8, 6th ed.) It is not repealed in terms or by direct reference ; and it will not be deemed repealed by implication when both may stand and have due effect. The petitioner’s claim against' the estate, therefore, was to bo determined on adjudication by the surrogate in the proceeding before him, and - to be established in the same manner as if no judgment thereon had been obtained, except that in its establishment the statute made the judgment prima facie evidence of its integrity. Still the integrity of the claim was to be determined by the adjudication of the surrogate, as was also that of the judgment when offered in evidence to prove its rightfulness. Now, the surrogate had been the attorney and counsel of the creditor in prosecuting the claim to judgment. He had been employed to advise as to its justice and legality. As attorney and counsel, he had labored to establish it in cory.-t; and now, in the proceeding before him, he was called upon to decide the same case as judge. Could he fi;ee himself from a very natural bias in favor of the justice of the claim; a bias engendered by his former position as counsel and attorney in the case? This cannot, be presumed; the contrary is amecessary legal inference. Very plainly his case came within tl).e spirit of the statute, which declares that “ no judge of any court shall have a voice in the decision of any cause in which he has been counsel, or attorney, or solicitor; ” and this provision is here given emphasis by its substantial repetition in the statute, which declares that whenever any surrogate of any county shall be precluded from acting as such in any case by reason of * * * having acted as counsel in any cause, and there shall be like disability attaching to the local officer (if there be one) authorized to discharge! the duties of surrogate, and also to the county judge, then . the district attorney of such county shall possess the powers and exercise the .jurisdiction in all respects iu such case as the surro- .■ gate of such county would be authorized to possess and exer- ; cise, were it not for such disability.”' (Laws of 1847, chap. 470, § 32; 3 Ii. S., 86, § 78, 6th. ed.) This statute contemplates ,. a disability of the sun’ogate in a' “ case” before him, because of ; his having acted as counsel in a cause.” 'So here the surrogate , :had a case before him for adjudication, as to which he had acted , as counsel and attorney in’ a cause. As counsel and attorney, he had advised that The claim of the creditor was just and legal. ; The question came before him again as judge in a case requiring vits adjudication. He then had a “case” before him as to which -ho had acted as counsel in a “ cause.” But in a just and liberal ■sense,'the cause before the surrogate for his adjudication was a -cause in court as to which he had acted as counsel and attorney. 'The question in the Supreme Court was the same in the Surro- • gate’s Court, to wit: Was the creditor’s claim a just and legal one -against the estate of the deceased? The question was open to adjudication, alike in both courts. In a fair sense, therefore, the .surrogate was called upon to act as judge in a cause as to which -he had acted. as counsel and attorney. The case in hand falls Avithin both the spirit and the letter of the larv, in its just import, which declares that “ no judge of any court shall have a voice in the decision of any cause in Avhich he has been counsel or attorney ,or solicitor.”

But Avcre there no statute in express terms disqualifying a judicial officer from adjudicating -upon a matter as to which he had acted as counsel, Ave should be inclined to hold such action improper, and good ground for alleging error. Such action is repugnant to one’s sense of justice and right, and brings the administration of the law into disrepute by throAving strong suspicion upon the officer’s impartiality. This doctrine is recognized in many cases. (McLaren v. Charrier, 5 Paige, 530; Ten Eick v. Simpson, 11 id., 177; Whicher v. Whicher, 11 N. H., 348; The People v. Suf. C. P., 18 Wend., 550; Oakley v. Aspinwall, 3 N. Y., 549, 550; Moses v. Julian, 45 N. H., 52, 58.) To adopt the language of Judge BeonsoN in one of .the cases cited,“next in importance to the duty of rendering a righteous judg- ■ meat is that of doing it in such a maunsi as will beget no suspicion of the fairness or integrity of the judge.” In another of the cases cited, the court remarked that if a judge has acted as attorney, counsel, law advisor or advocate, in relation to the business in hand, that furnishes just cause of exception without reference .to the time when such aid or counsel was given. And Judge UuRlbux remarked, in Oakley v. Aspinwall (supra), that “the first idea in the administration of justice is that a judge must ■.necessarily be free from all bias and partiality. He cannot be both judge and party, arbiter and advocate in'the same cause. ••Mankind are so agreed in this principle, that any departure from it : shocks their common sense and sentiment of justice.” Now, prior to ¡May 17, 1872, it was admitted that the surrogate had a pecuniary interest in the judgment. To that time, then, he had the bias of ’ attorney and counsel in favor of its maintenance; also a bias growing out of pecuniary interest. He might and did relieve himself :.from the bias of direct pecuniary interest, by accepting payment in .satisfaction of his claim. . But the bias of his position as attorney ■ and counsel remained. There was an honorable and honest obii■gation still resting upon him to support a result he had secured to ,;his client, for which' lie had accepted compensation. Recognizing this obligation, can it be maintained, in theory at least, that he-■stood an impartial judge without bias between parties, one of •whom was his former client, where the question of the justice of the claim, as to which he had advised, and the integrity óf the judgment based thereon, which he Had procured, should come in question? We are of the opinion that the surrogate was disqualified from entertaining the application for a sale of the decedent’s real estate in. this case; hence the decree appealed from must be. reversed. The proceedings before the surrogate should also be dismissed, as it would be unavailing to send back the case for further or other .action before that officer.

,, The reversal of. the decree and dismissal of the proceedings should be, as wo think, without costs. It does not appear bid that the creditor and surrogate acted in the utmost good faith'. The record discloses nothing personally reprehensible on the part of either. It seems hard to punish the creditor with the payment of costs, when It is quite manifest that he must bé a considerable loser on his claim. Besides, while the reversal of the decree is necessary for the vindication of a principle of the greatest importance in the administration of justice, still, in this case, it is perhaps proper and right to make the reversal without costs. •

Decree appealed from reversed, and proceedings dismissed without costs.

Learned, P. J., and Boaedman, J., concurred.

Decree reversed, without costs, and proceeding dismissed.