author: Per Curiam!

text:
    Louisa M. Gerry, App’lt, v. William H. Liddle, Resp’t.

      {Supreme Court, General Term, Fourth Department,

      Filed November, 1894.)

    Costs—Game laws.
    Costs upon recovery for the value .of the fish taken from private grounds and for the “exemplary damages provided for in § 217, chap. 488 of 1892, are not governed by § 236 of that act.
    Appeal from an order denying a motion, under § 3248 of the Code, for a certificate that the title to real property came into question.

      W. & G. W. Youmans, for app’lt; Barna Johnson, for resp’t
   Per Curiam!

The action in this case is based on the provisions of article 9 of the “ Game Law ” (chapter 488 of the Laws of 1892). That article is entitled, “ Private Grounds and Parks,” and its last section (217) prior to an' amendment in May, 1898, was as follows : “ Violations of the provisions of this article subject the person violating to exemplary damages in an amount not more than twenty-five dollars for each violation, in addition to the actual damages sustained by the owner or lessee. An attempt to violate the provisions -of this article shall be deemed a violation thereof.”

The amendment of 1893 is not important here.

In the complaint it is alleged that the plaintiff is the owner and in possession of the real estate therein described, upon which she maintains a private park for the purpose of propagating and protecting fish, birds, and game, under the statutes of the state ; that she has given all the notices required by the article of the game law above referred to; that the defendant upon four specific occasions entered upon her said premises without her consent, and unlawfully and with intent to catch fish in the waters within said private park, and did take fish from the waters thereof, the property of the plaintiff, of the value of $50, all in violation of said act. The plaintiff claimed to recover heractual damages, and also the sum of $25 additional for each violation of the act. The answer was in substance a general denial. Upon the trial the jury rendered a verdict in favor of the plaintiff for the sum of six cents. The plaintiff, however, claimed that she was entitled to recover costs under the provisions of § 3228 of the Code, which provides, among other things,- that the plaintiff is entitled to costs of course upon the rendering of a final judgment in his favor in “an action, triable by jury, to recover real property, or an interest in real property; or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial.” In this view she applied for and claimed to be entitled to have a certifipate under § 3248 of the Code. The application was denied upon the ground, as stated in the order, “ that this action was brought to recover penalties under the fish and game laws of the state of Hew York, and § 3248‘does not apply to that class of cases, special provision being made therefor.”

The special provision which the defendant claims applies to the case is in § 236 of the “• Game Law.” That section is as follows: “ Actions by persons or societies.—Any individual, upon giving security for costs, unless he shall be the owner or lessee of the premises upon which it shall be claimed the penalty was incurred; and any society or corporation or agent of any society or association for the protection of fish or game may recover in his or its name all penalties provided for by this act with costs, but on recovery by the plaintiff in such case of aless sum than fifty dollars, plaintiff shall only be entitled' to costs to the amount of such recovery. Sudh person shall be entitled to one-half of the penalty recovered, the other half to be paid to the board of commissioners but any such action shall be discontinued without costs or disbui'sements to either party, in case an action shall be thereafter brought for the same violation in the name of the people, and an order to that effect may be entered on motion of the chief protector or one*of the commissioners, on notice to all the parties thereto.. Such motion shall be entitled and made in both actions. Any person or society bringing an action under this section shall notify the chief protector thereof within fifteen days after service of the summons therein, and failure so to do shall be a defense to the action.” >

We áre of the opinion that the actions for “ penalties ” referred to in § 236, and in regard to which the matter of costs is by that section regulated, do not include actions by owners of premises for actual and exemplary damages, referred to- in § 217 of the article, as to private grounds and parks, and that the costs upon the recovery in this case are not governed by the provisions of § 236. It follows that the plaintiff was entitled to have her application for a certificate considered upon the merits. Order reversed, with $10 costs and disbursements, with leave to plaintiff to renew her motion for a certificate under § 3248 of the Code.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Hugh J. Grant, as Receiver, etc., Resp’t, v. Patrick J. Walsh, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Bills and notes—Bona fide holder.
    One who, in good faith and without notice, receives from an insolvent bank in the regular course of business a check which the bank fraudulently received from the maker for-deposit, is a bona fide holder.
    Motion for a new trial on exceptions, ordered to be heard at general term at the first instance.

      Albridge 0. Smith, pl-’ff; Thomas 0. JSnnover, for def’t.
   Parker, J.

August 8, 1893, the defendant, who for many years had been a regular depositor in the Madison Square Bank, drew his check for $1,000 to his own order on the Farmers’ Loan & Trust Company, indorsed it, ,l For deposit,” and delivered it to the bank. Later in the day the Madison Square Bank sent the check to the St. Nicholas Bank, with which it had a clearance contract binding it to keep constantly on deposit with the latter $50,000, on which the St. Nicholas Bank should pay no interest as part of the consideration for the clearance contract. This contract could be terminated on 24 hours’ notice, but it obligated the St. Nicholas Bank to make clearance for the Madison Square Bank for the day succeeding that on which the notice was given. Such a notice was given, on the 8th of August, by the St. Nicholas Bank, but, as it was compelled to make clearance for the day following, the result was that on that day it paid for the Madison Square Bank $372,806.75, although it had received no deposit from the Madison Square Bank after the 8th of August. This amount largely exceeded the deposits of the Madison Square Bank with it, but under its contract with the Madison Square Bankand the. clearing house it was obliged to clear for that bank for that day, whether it held any of its funds or not. The condition of the account between the Madison Square Bank and the St. Nicholas Bank on the 8th of August was as follows : After the clearances of the morning of August 8th were made, the Madison Square Bank owed the St. Nicholas Bank $50,006.52 over and above the $50,000 deposit, which under its contract the Madison Square Bank was bound to keep continually on deposit. Its actual indebtedness then was, on account of clearances made by the St, Nicholas Bank and its contract obligation to it, $100,006.62. Alter the clearances of the 8th of August the Madison Square Bank made deposits with the St. Nicholas Bank aggregating $78,087.24. This included the check of $1,000, which is now the subject of controversy. These deposits repaid the overdraft, but left $21,-919.38 still due to the plaintiff on account of its clearance house contract, under which it was compelled, on the day following, to pay for.the St. Nicholas Bank over $370,000. At the'close of business on August 8th, the Madison Square Bank closed its doors, and shortly thereafter, in an action brought by the attorney general, receivers Were duly appointed. When defendant ascertained the fate of the Bank, he at once stopped payment of the check, whereupon the St. Nicholas Bank commenced this action to recover thereon. Subsequently, this plaintiff was substituted in place of the St. Nicholas Bank. The answer set up that, at the time when the deposit was made, the Madison Square Bank was insolvent, of which fact its officers, agents, and employes had full knowledge, and that its acceptance of the check without notifying him of such insolvency constituted a fraud upon the defendant, and, further, that such insolvency and fraud were known to the St. Nicholas Bank at the, time it received defendant’s check and gave the Madison Square Bank credit for it. As the case stood when plaintiff rested, his right to recover on the check had been made out. When defendant indorsed his check for deposit to his account, and delivered it to the Madison Square Bank, that he might draw against it according to his usual custom, the title to the check immediately vested in, and became the property of, the bank, which title it could and did confer upon its transferee, the St. Nicholas Bank. Metropolitan Nat. Bank v. Lloyd, 90 N. Y. 530; Cragie v. Hadley, 99 N. Y. 131-133; People v. St. Nicholas Bank, 77 Hun, 159; 58 St. Rep. 843. The evidence to which we have sufficiently referred shows that the St. Nicholas Bank, upon such transfer, became a Iona fide holder of the check for value.

This brings us to the affirmative defensé pleaded, and which the defendant sought to establish on the trial. If it were a fact that the Madison Square Bank was irretrievably insolvent, and it was manifest to its officers that a condition of open insolvency must immediately ensue, the acceptance of the deposit made by the defendant constituted such a fraud as entitled its owner to reclaim from such bank the draft or its proceeds. Cragie v. Hadley, supra. It may be doubted whether defendant met the burden of proof resting upon him to establish the insolvency of the bank on August 8, 1893. People v. St Nicholas Bank, supra. And the e\ idcnce wholly fails to show that the officers, agents, and employes of the bank knew that the bank was irretrievably insolvent, and that the struggle to maintain its credit must be given up. But defendant’s evidence offered for the purpose of showing such knowledge on the part of the officers of the bank was excluded by the court, to which ruling an exception was taken, so we shall assume in the further discussion that the evidence established that fact; for, if proof of the facts would have made good defendant’s defense, it would follow that, because of its exclus-. ion, a new'trial should result. It was not shown that the St Nicholas Bank, at the time of the transfer of defendant’s check to it, had any knowledge whatever of the insolvency of the Madison Square Bank, and of the fraud which the bank perpetrated on the defendant. Proof of the fraud of the Madison Square Bank therefore, at most, burdened the plaintiff with the necessity of proving1 that the St. Nicholas Bank obtained the check in good faith and for value, without notice of fraud. Vosburgh v. Defendorf 119 N. Y. 357; 29 St. Rep. 448. If the fact be that the evidence upon this subject presented a question for the jury, it is doubtful whether the appellant is in a position to urge that the court erred in directing a verdict. At the close of the testimony, plaintiff’s counsel asked the court to direct a verdict in plaintiff's favor. Defendant’s counsel thereupon requested the court to direct a verdict in favor of the defendant. The effect of the request by counsel for both parties was to confer upon the court the authority to pass upon any questions of fact which the record presented. The court directed a verdict for the plaintiff, defendant excepting. After the court had rendered its decision, as the request made by counsel authorized it to do, the defendant asked the court to submit certain questions of fact to the jury. This request came too late; but, if it were in time, we do not think the court was in error in refusing it. It does appear from the evidence, affirmatively and conclusively, that the St. Nicholas Bank obtained the check in the regular course of business, and gave the Madison Square Bank credit for it, as by such course of business and its contract it was bound to do. That this was done in good faith, and without notice on the part of the St. Nicholas Bank of the insolvency of the- Madison Square Bank, is shown by the testimony of William J. Gfardinier, the cashier of the St. Nicholas Bank. Inquiry was made of him as to the reason for the notice given by the St. Nicholas Bank, on the 8th of August, that it would no longer act o’s the clearing agent for the Madison Square Bank. He said: “ We gave notice that St. Nicholas Bank would not clear any longer for the Madison Square Bank because they had drawn against the balance that they agreed to keep there of $50,000, and had failed to make it good. We did not do that because we considered the Madison Square Bank insolvent. I hadn’t heard rumors to that effect,—that they were insolvent. Never heard a word about it I am sure of it.”

The exceptions should be overruled, and judgment directed in favor of the plaintiff, with costs.

All concur.


author: Merwih, J.

text:
    The People ex rel. Herbert C. Sholes. App’lt, v. The Board of Supervisors of Oneida County, Resp’t.

      (Supreme Court, General lerrn, Fourth Department,

      Filed November, 1894.)
    Special surrogate—Compensation.
    A special surrogate is entitled, for performing the duties of the surrogate during the latter’s absence, only to such compensation as shall be allowed by the board of supervisors.

      Appeal from portions of a final order or judgment, entered on the decision of the court after trial at circuit without a jury.
    During the years 1888, 1889 and 1890, the relator was special surrogate of Oneida county. In each of those years the surrogate of the county was absent from the county a number of days, and during those periods of absence the relator was, by various orders of justices of the supreme court of the judicial district in which that county was situated, authorized and empowered io act as surrogate of the county, and hold the surrogate’s court therein, and held himself in readiness to so discharge the duties of surrogate of that county, and did discharge such duties and hold said court so far as he was called upon to do so. He also, during those years, acted as surrogate, and held surrogate’s court in three matters or proceedings in which the surrogate was disqualified from acting, and had filed a certificate of disqualification as provided by subdivision 1 of § 2487 of the Code of Civil Procedure. On the 13th November, 1890, the relator duly presented to the board of supervisors of the county an account and claim for services as acting surrogate during, the times above stated. The board, however, refused to audit or allow the claim. Thereupon the relator applied for a mandamus. An alternative writ was granted, to which the board made return. Hpon the issues made by the alternative writ and the return, the case was tried. Facts were found substantially as above stated, the dates of service being given in detail, all of which accrued prior to November, 1890. It was also found that on December 30, 1887, a resolution was adopted by the board of supervisors fixing at a certain amount the salary of the relator during his term of office; that the salary so fixed was paid to and received by the relator quarterly during his term; that he presented no bill for services as special surrogate, while acting as surrogate, to the board during their sessions for the years 1888 and 1889. It was also found that, pursuant to statute giving the special surrogate the same power as county judge out of court, the relator granted orders in a large number of proceedings and matters before him. As matter of law, the court decided that the relator was entitled to have allowed him a j nst compensation for his services as acting surrogate on the occasions when the surrogate was disqualified from acting, but. was not entitled to have audited or allowed his claim for services on the occasions when the surrogate was absent from the county. A final order or judgment was entered on this decision, and the appeal is from so much thereof as adjudges that the relator is not entitled to be allowed his claim for services during the absence of the surrogate.

      H. 0. Sholes, in pro. per.; Harry S. Patten, for resp’t.
   Merwih, J.

The relator was elected under the provisions of chapter 306 of the Laws of 1849, which was passed in pursuance of the authority given by § 16 of article 6 of the Constitution. By § 1 of the act of 1849, provision was made for the election of a special surrogate in the county of Oneida and seven other counties, and power was conferred on such officers to discharge the duties of surrogate in their respective counties “ in cases of vacancy or inability ” of such officer. By § 2, as amended by chapter 108 of the Laws of 1851, they were given the powers of a county judge out of court. By § 3 it was provided that: Such local officers shall receive for the services to be rendered by them under the provisions of this act, such compensation as shall be allowed to them respectively by the boards of supervisors in the said respective counties.”

It is quite clear that under this act the relator had power to perform the duties of surrogate in the absence of that officer from the county. An inability then existed, that the statute intended to provide for. If, by virtue of that act, the services in question were rendered, then the compensation provided for such services has been fixed and paid. The relator, however, claims that his services were performed by virtue of the provisions of § 2484 of the Code, and that he is entitled, therefore, for the time that he acted, to a compensation equal, pro rata, to the salary of the surrogate, under the provisions of § 2493. To this it is replied that § 2484 applies by its terms only to cases where “ special provision is not made by law for the discharge of the duties ” of the office, and that, therefore, it does not apply here, as there was a special provision for the special surrogate to act in the contingency that happened. Substantially the same question was considered by this court in Re Tyler, 60 Hun, 566; 39 St. Rep. 835. The court was then of the opinion that §§ 2484 and 2493 did not apply,, and that the officer was entitled only to such compensation as was allowed by the board of supervisors in the salary which they fixed. No good reason is apparent for now talcing a different view. Following the view taken in the Tyler Case, the order or judgment, so far as appealed from, must be affirmed.

All concur.

Order or judgment, so far as appealed from, affirmed, with costs.


author: Martin, J.

text:
    In the Matter of the Estate of Stillman B. Sanders, Deceased. In the Matter of Hudson B. Farrington.

      (Supreme Court, General Term,-, Fourth Department,

      Filed November, 1894.)

    1. Limitation—Payment.
    In order to make a payment by the principal maker effective, in stopping the running of the statute of limitations against the accommodation maker, it must, by previous autho ization or subsequent ratification, be the payment of the latter.
    2. Same.
    The question whether the principal maker, in paying interest on a note, acted as age. t for the surety, is one for the jury.
    3. Appeal—Harmless error.
    Where the evidence, to which the appellant’s exceptions are taken, relates wholly to matters that are collateral, immaterial or do not bear upon the issues between the parties, the rulings are, if erroneous, harmless.
    Appeal from a decree of the surrogate’s court disallowing a claim.

      J. A. & B. B. Steele, for app’lt; Steele & Prescott, for resp’t
   Martin, J.

A proceeding was instituted in the surrogate’s court of Herkimer county, on the application of Thomas R. Petrie and another, administrators of the goods, chattels, and credits of Stillman B. Sanders, deceased, for the disposition of the decedent’s real property for the payment of his debts. While such proceeding was pending, and on or about January 31, 1891, Madeline Harter presented a claim against the estate of .the decedent for $600 and interest from November 2, 1889. The claim thus presented was upon a promissory note dated March 8, 1875, whereby Thomas R. Petrie and the decedent promised to pay Madeline Harter or bearer the sum of $1,200, with interest one year from the date thereof. Payments had been made from time to time, so that there remained unpaid thereon only the sum of $600 and interest, as already stated. Upon the presentation of this claim, which was assigned to Hudson B. Farrington, March 10, 1891, the administrators filed an answer setting up the statute of limitations. Upon" the trial the only question litigated was whether this claim was barred by the statute. It clearly appears that more than six years had elapsed after the note became due, and before the death of the intestate. The only ground upon which the claimant sought to avoid the operation of the statute was that within six years before the death of the intestate he had made a payment upon such note. The indorsements upon this note showed that the interest in full to that time, and $600 of the principal, were paid in or prior to March, 1883. The following indorsements also appeared thereon : “ Nov., 1888, received hay, the price of the same to be applied as interest within.” “ Received on within note, Nov. 2, 1889, $91.28, as interest.” The claimant alleged, and gave evidence which perhaps tended to show, that on or about the 1st of January, 1887, the intestate sold and caused to be delivered to the then holder of the note a load of hay, and that afterwards, and in or about the month of March following, it was agreed between them that the price and value thereof should be applied in part payment of the interest due upon the note. Upon this alleged payment the claimant relied to relieve the note from the bar of the statute of limitations.. The surrogate found that the note was made and "executed by Thomas R. Petrie and the intestate, and delivered to Madeline Harter, on March 8, 1875; that Thomas R. Petrie was the principal maker and had the benefit thereof, the intestate having signed the same as surety; that the intestate died on September 18, 1890, and Thomas R. Petrie and Marietta S. Gardner were duly .appointed administrators of llis estate on or about October 9, Í890 ; that $600 of the principal, and the interest in full on such note up to March 8, 1883, had been paid ; that about January 1, 1887, Petrie delivered to Miss Harter, to apply as payment on said note, a load of hay of the value of $5 to $10, which, with other payments making $91.28, was indorsed on said note by Petrie, November 2, 1889; that no other payments had been made thereon; that the hay was delivered about January 1, 1887, was delivered by Petrie, and was'a payment made by him, and not a payment made by him as agent for the decedent, and not a- payment by the decedent upon the note; and that for six years prior to his death the intestate made no payments upon such note, or did any act to prevent the running of the statute of limitations As a conclusion of law, the surrogate held that the note and claim of the claimant was barred by the statute of limitations as against the estate of the intestate, and was not a valid claim against it. In pursuance of this decision, a decree was entered, which, among other things, ordered, adjudged, and decreed that the claim of Madeline Harter assigned to Hudson B. Farrington was not a valid or subsisting debt against the estate of the intestate, and the claimant was not entitled to have the amount due on such claim established in this proceeding as a debt due from the decedent, and the claim was disallowed and rejected. From this portion of the decree, Hudson B. Farrington, the claimant, appealed.

An examination of the evidence discloses that whether the payment of January, 1887, was made by or for the intestate, or was made by Thomas R. Petrie, one of the makers of the note, was at least a question of fact to be determined by the surrogate’s court If that payment was made by Petrie, and not by or for the intestate, it is obvious that the claimant’s^ note was barred by the statute of limitations as against his estate. The evidence upon the question whether the payment was made by Petrie or by or for the decedent was perhaps conflicting, and yet a careful examination shows that it was sufficient to sustain the finding of the surrogate’s court that the payment was made by Petrie, and not by or for the decedent. We think this finding was fairly sustained by the evidence, and hence the surrogate’s court was justified in holding that the claim of the claimant was barred by the statute of limitations. While, where a payment of interest was made upon a promissory note by the maker in the name of and as agent for another who was liable thereon, it was held that a subsequent recognition and approval of the act by the other, with full knowledge of the facts, was, as to the statute of limitations, equally binding upon him as a payment made by himself, and that it was immaterial whose money was used in making the payment (First Nat. Bank v. Ballou, 49 N. Y. 155), yet it has also been held that where one of three makers of a joint and sevéral promissory note, who in fact signed it as surety, upon being applied to for payment, requested the payee to tell the principal that he must make a payment thereon, and that he (the surety) said so, and the payee made the statement to the principal as requested, who promised to and did subsequently make a payment which he reported to the surety, who said it was all right, it was held that these facts did not show an authority conferred upon the principal to make a payment as agent of the surety, so as to take the case, as to the latter, out of the statute of limitations, and also that they failed to establish a ratification of the payment. Littlefield v. Littlefield, 91 N. Y. 203. In McMullen v. Rafferty, 89 N. Y. 456, 459, Earl, J., said: “ But it is the settled law of this state that payments made by one joint contractor cannot save from the statute of limitations a claim against another joint contractor, and that payments made by the principal debtor, cannot save from the statute. a claim against the surety; and it makes no difference that the payment' were made with the knowledge of the other party liable for the same debt. To make payments effective against a party to save a claim from the statute, they must have been made by him, or for him by his authorized agent. One joint contractor may make payments as agent for all the contractors, or the principal debtor may make payments for and in the name of his surety as his agent, or payments may thus be made in the name of all the joint contractors, or of the surety without previous authority, but be subsequently ratified, and in all such cases the running of the statute may be prevented; but in all cases, to make the payments effective, they must, by previous authorization or subsequent ratification, be the payments of the party sought to be affected by them.”

Upon the facts as found by the surrogate’s court, there is nothing in any of these cases which would have authorized the court to hold that the intestate made any payment which would relieve the debt, as against him or his estate, from the bar of the statute. Under the facts found and the principles of law applicable to this question, we think the surrogate’s court was clearly justified in its conclusion that the claimant’s demand was not, as against the decedent’s estate, relieved from the bar of the statute of limitations by the delivery of the load of hay in January, 1887.

We have examined the several exceptions of the appellant to the admission and rejection of evidence, to which our attention has been directed by him, but have found none that require a reversal of the portion of the decree appealed from. While it may be admitted that some of the rulings as to the admission and rejection of evidence are at least of doubtful propriety, still, as the only material issue which was litigated by the parties was whether the decedent made the payment of January, 1887, or procured it to be made under such circumstances as to relieve the note from the bar of the statute as against him or his estate, and as the evidence to which the appellant’s exceptions were taken related wholly to matters that were collateral, immaterial, or did not bear upon the issue between the parties, the rulings were, if erroneous, harmless, and hence do not constitute a sufficient cause for reversal. These considerations lead us to the conclusion that the decree of the surrogate’s court should be affirmed.

All concur.

Decree of the surrogate’s court of Herkimer county affirmed, with costs.


text:
    Mary M. Bingham, Resp’t, v. Daniel M. Tuttle, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1894.)

    Partnership—Payment by partner op personal debt.
    After a division of llieir assets by solvent partners, a transfer by one partner of the firm assets thus'acquired to pay his personal debts is entirely valid, as against the firm creditors.
    Appeal from a judgment in favor of plaintiff-

      Tuttle cb Ransom, for .app’lt; J". 8. Baker, for resp’t.
   Martin, J.

This is an appeal from a judgment, entered in Madison county, May 8, 1894, for $12,726.70 damages and costs. The judgment was entered upon an order of the Madison county court confirming the report of a referee appointed by that court to try the issues and report to the court upon a claim for $12,500, presented by the plaintiff to the defendant as assignee for the benefit of creditors of E. G. Stark, which was disputed bv the assignee. Prior to the time of the assignment, the firm of E. 0. Stark & Go. was composed of Elverton G. Stark and Rinaldo M. Bingham, and was engaged in the business of private bankers at Oneida, Ú. Y. They had been engaged in that business since 1875. During a portion of that time, and from 1888, they alone constituted the partnership, and during other portions there were one and part of the time two other members of the firm. The capital of the firm was $20,000. Of this Bingham furnished one-fourth and the other partners three-fourths. Elverton 0. Stark subsequently acquired the interest of the other members of such firm, so that from 1888 Bingham owned one-fourth of the capital and Elverton 0. Stark three-fourths. The business of the firm was a very profitable one. A dividend of 10 per cent, upon the capital was annually declared for the first 10 or 11 years, and the profits in excess of the amount of such dividends were carried into a surplus account. In each of the years 1887, 1888, qnd 1889 a dividend or division of profits was made between the partners to the amount of 50 per cent, upon the capital furnished by each. In 1890 a division or dividend of 100 per cent, was divided between the parties, leaving a balance of $28,000 to the credit of the surplus fund account. When these divisions were made, the firm of E. G. Stark & Co. was solvent, the condition of the firm was such as to fully warrant them, and they were made in good faith, and without intent to defraud any one. Upon making such dividends or divisions the amount due each was credited on the deposit ledger of the firm to his individual account. After these divisions or dividends were made, there stood to the credit of Bingham upon the deposit ledger the sum of $12,500, which was at all times available and subject to be drawn out by him. The other partner did draw out and use his dividends or portion of the profits. Bingham drew none, and the-$12,500 still remains to his individual credit on the books of the firm. On the 31st day of January, 1891, Bingham transferred these dividends or deposits to the plaintiff, who was his wife, as collateral security for certain indebtedness due her from him and from the firm of R. M. Bingham & Go. That he and the firm of R. M. Bingham & Go. were indebted to the plaintiff to an amount greatly exceeding the amount of such deposit was clearly proved. The proof also shows that her debt, after receiving all she could collect on other securities transferred to her, is more than the amount of such deposit. On theASth of July, 1891,—nearly six months after the transfer to the plaintiff,—the firm of E. 0. Stark & Go. was dissolved, Bingham transferring to Stark all his right, title, and interest" in the assets of the firm, subject to the payment of the debts, but without prejudice tb the plaintiff’s claim to the •deposit standing in his name upon the books of the firm. On the next day E. 0. Stark, as E. C. Stark & Go. and in his own name, made a general assignment to the defendant for the benefit of creditors, to which was attached the transfer by Bingham to Stark of his interest in the property of such firm, which contained the reservation of the plaintiff’s right to the.$12,500 in question. The assignment contained no preferences, except such as were preferred by law for work, labor, and services. Xo part of the $12,500 was separated from the funds of the firm, except by crediting the same to Bingham upon the deposit ledger. Xo checks were ever drawn against it, so that at the time of the assignment to Bingham’s wife it stood in his individual account as a credit of $12,500. At the time of the assignment made by E. C. Stark, the firm of B. M. Bingham & Co. was largely indebted to him. While the assignment to the plaintiff purported to assign Bingham’s interest in the firm of E. 0. Stark & Co. as well as the deposits standing in his name on the books of the company, yet she never made any claim to any interest in the firm or to the firm assets except to the deposit of $12,500. The referee refused to find that the firm of E. 0. Stark & Co. was insolvent from January 1, 1891, to July 14th of the same year, or that they were insolvent at any time from the year 1887 until July 13,1891, or that R. M. Bingham & Co. was insolvent at any time from the year 1886 to July 13,1891, or that Rinaldo M. Bingham was insolvent during that time. Upon these facts the referee fo'und as conclusions of law that the agreement of the members of the firm to divide a portion of the profits of the business in the several years mentioned, and the act of the firm in dividing such profits and crediting the same upon the deposit ledger to the individual members, subject to be drawn at any time by such individual members, was, in law, a separation of the joint assets of the firm, and made the dividends the individual property of the several members; that the $12,500 credited to R. M. Bingham became and was his individual property from the time it was credited, and he had a legal right to transfer the same to the plaintiff; that the transfer was for a good and valuable consideration, which remains unpaid, to an amount larger than the amount of such deposits; and that the claimant was entitled to receive and collect the amount thereof against the defendant, as such assignee, payable out of the estate in his hands.

A careful study of the evidence has led us to the conclusion that the learned referee was justified in refusing to find that E. C. Stark & Co., or R. M. Bingham & Co., or R. M. Bingham was insolvent at the" time of the assignment to the plaintiff of the deposit :in question. Therefore, in determining the validity of that assignment, it must be assumed that at the time it was made all "these parties were solvent. Assuming that E. C. Starlc & Co. and Bingham were solvent when the assignment to the plaintiff was made, the question presented is whether she was entitled to recover the amount of the deposit in question against the defendant as assignee of E. C. Stark. The appellant’s contention is that the firm of E. C. Stark & Co. was insolvent, and, being insolvent, the transfer by R. M. Bingham to the plaintiff of his individual account credited upon the books of the firm was void as against the creditors of such firm. He cites, as sustaining his contention, the cases of Ransom v. Van Deventer, 41 Barb. 307; Wilson v. Robertson, 21 N. Y. 587; Menagh v. Whitwell, 52 id. 147; Kirby v. Schoonmaker, 3 Barb. Ch. 46; Burtus v. Tisdall, 4 Barb. 571; McCall v. Moschowitz, 10 Civ. Proc. R. 140; 1 St. Rep. 99; Hewitt v. Northrup, 75 N. Y. 509, and In re Rieser, 19 Hun, 202; affirmed, 81 N. Y. 629. In the Ransom Case it was held that a division by partners of the copartnership assets between themselves, and the transfer of the same by the individual partners in payment of their private debts, when the partnership was insolvent, was fraudulent and void. In discussing this question, however, Smith, J., who delivered the opinion in that case, said: “ The division by solvent partners of their assets would be entirely valid, and the transfer by one partner of partnership assets thus acquired to pay his personal debts would also be entirely valid.”

The Wilson Case holds that the appropriation by an insolvent firm of partnership property to the payment of the individual debts of one partner is fraudulent, and avoids the deed of assignment.

In Menagh v. Whitwell is was said : “ This mortgage, if such be its true construction, having been given to secure the individual debt of the partner, even if effectual as to the firm, by reason of the concurrence of all the partners giving it, would be a fraudulent misapplication of the partnership property, and void, as to the creditors of the firm, under the principal oL" the cases of Ransom v. Van Deventer, 41 Barb. 307, and Wilson v. Robertson, 21 N. Y. 587, unless the firm were solvent at the time the mortgage was given, and sufficient property would remain, over and above that devoted by that instrument to the payment of the individual debt, to pay the debts of the firm.”

In the Kirby Case it was held that where partnership property is placed in the hands of an assignee to make distribution thereof, it is administered in courts of equity by applying the copartnership funds, in the first place, to the payment of the debts of the firm, and the individual funds of the several copartners to pay their individual debts respectively, before paying joint debts out of the same; but where the copartners are administering their own funds the copartnership creditors have no specific or preferable lien upon the joint funds, nor have individual creditors any lien or priority of claim upon the separate property of their debtors. In the opinion in that case it is said : “ The copartners certainly have the right to dissolve the partnership and divide" the property of the firm between them, provided there is no intention of delaying or hindering their creditors in the collection of debts, thereby leaving their joint as well as their separate creditors to compete for a preference in payment.”

The chancellor adds: “The case would have been entirely different if copartners, who were insolvent, and unable to pay the debts of the firm, either out of their copartnership effects or of their individual property, had made an assignment of the-property of both to pay the individual debt of one of the copartners only.”

In Burtus v. Tisdall, it was held that members of an insolvent partnership could not, by mutual consent, divide the partnership funds between themselves, so as to enable each member to apply the part allotted to him in a preferred payment of his separate debts, leaving joint debts unsatisfied. In the opinion in that case it was said: a It was contended on the argument * * * that copartners have a right to appropriate, by mutual consent, their joint property to the payment of debts owing by them individually, leaving those of the partnership unsatisfied. That may be true where the firm is solvent, and sufficient is left to satisfy the joint debts.”

The McCall Case was an action to dissolve a copartnership and ' for an accounting between the partners, and it was there said: ■ “ It is a fundamental rule of law, needing the citation of no authorities, that copartnership assets must be first applied to payment of copartnership debts.”

All that was said in the Hewitt Case that relates to this subject was that the equitable rule for the administration of the property of persons who are members of an insolvent firm, and who own firm property and individual property and owe firm as well as individual debts, is that the firm creditors are entitled to be first paid out of the firm property, and individual creditors to be paid out of individual property.

In Re Rieser, where a firm was indebted to one of its partners, for goods sold to it by him, and became insolvent and made a general assignment, and the partner also became insolvent and made a general assignment, and upon an accounting the assignee of the partner was allowed to prove the amount due from the firm to his assignee as a firm debt, and to share in the distribution of the assets of the firm with the other firm creditors, it was held that this was erroneous; that such debt could be paid only after all the other creditors of the copartnership had been fully paid.

An examination of these cases renders it manifest that they have no application to the question under consideration, as in those cases the copartnerships were insolvent at the time when the transactions occurred which were the subject of investigation. In this case, as we have already seen, at the time of the assignment of the individual credit of R M. Bingham to the plaintiff, the firm and parties were solvent. Hence we find nothing in any of the cases cited which would, under the circumstances of this case justify us in holding that the transfer to the plaintiff was invalid. These cases recognize the doctrine that a division of their assets by solvent partners is valid, and that a transfer by one partner of the partnership assets thus acquired to pay his personal debts would be entirely valid. The marginal note to the case of Crosby v. Nichols, 3 Bosw. 450, is as follows: “ When the members of a firm, by agreement among themselves, make an actual division between them of part of the firm’s assets, and allot to each, as his own property, specific portions thereof, and the division thus made is assented to and acted upon by all the partners, the title to the part so allotted to each becomes thereby his exclusive individual property. If one partner receive from a third person payment of a debt owing by him to the firm, which has been so allotted to his copartner, the latter may maintain an action against him to recover the amount so received.”

In 1 Lindley on Partnership (marginal page 334) it is said: “It is competent for partners by agreement among themselves to convert that which was partnership property into the separate property of an individual partner or vice versa; and the nature of the property may be thus altered by any agreement to that effect.”

In 2 Lawson, Rights, Rem. & Pr. § 663, it is said: “ Partners may at any time, by agreement between themselves, convert partnership property into the several property of any one or more of the partners, or the several property of any partner into partnership property. Such conversion, if made in good faith, is effectual, not only as between the partners, but as against creditors of either the-partners or of the firm.”

The doctrine of the case of First Nat. Bank v. Wood, 128 N.Y. 35; 38 St. Rep. 422, seems to be applicable to and well-nigh conclusive upon the question of the validity of the division of profits or assets of a firm and a transfer by one partner of the partnership assets thus acquired to pay his personal debts. It that case, where, in 1876, upon the settlement of accounts between the firm of O. K. Wood & Co., which was composed of three members, and the firm of Y. A.Wood & Co., composed of two members, who were also members of the former firm, a sum was found due the latter firm from the former. In the settlement it was agreed that O. K. Wood & Co. should give its notes to each of the members of Y. A. Wood & Co. for one-half the amount. At their request the note to which each was entitle was made payable to his wife. Bach received his note, and delivered it to his wife as a gift, and it was thereafter retained by her. 0. K. Wood & Co. paid interest on the notes each year up to 1884, by giving the holders its notes therefor. In May of that year it became insolvent, and made an assignment for the benefit of creditors, preferring the wives to the amount of the original notes and those given for interest. In an action by a judgment creditor of 0. K. Wood & Co., a portion of whose claim accruea In 1879, to set aside said assignment as fraudulent because of said preferences, it was held that'the action-was not maintainable; that the payees named in the notes became absolute owners upon the delivery to them, to the same extent as if they had paid value; and that such title and consequent right of recovery were in no way diminished or affected by the subsequent dealings or complications of the two firms. In delivering the opinion in that case Peckham, J., said : “ The result of the action of the parties was simply a transfer of the firm debt to the respective wives. At this time the firm was solvent. The transaction was, in substance, the same as if the makers had made the notes payable to the two members of the other firm and had thus delivered them to such members, and those members had then indorsed and delivered them to their wives as free and voluntary gifts. If the makers of the notes had thus delivered them to the other partners as payees, the title to the debt, of which the notes were evidence would have then gone to the payees; and if the payees had transferred the notes by gift and delivery to their wives the title to that debt would have been also transferred wish and followed the notes, and would have remained one-half with each of such wives. * * * The debt was an honest one. It was due, and the firm that owed it was largely solvent, and recognized its obligation, and gave the notes. It is admitted that the donees might at that time have maintained an action against the makers on the notes and recovered thereon. If so, it could only be upon the ground that they had become the owners of the notes. They became such owners only by virtue of a voluntary gift, accompanied by an immediate and unconditional delivery. This, indeed, did give to the donees a perfect title and absolute ownership to and in the notes, as there were then no equities existing between the original parties. The notes represented the original debt. How is it then that such ownership, although absolute at the time of the transfer, and giving the holders of the notes a right of action, shall nevertheless, if not acted on by collecting the money, be liable at any future time to be changed, and, indeed, extinguished, by matters subsequently arising between those original parties? * * * In this case the debt was in its origin a firm debt, and the firm gave a written obligation to pay it. By a legal transfer the debt has become the property of the wives of the then creditor members of the firm, and they became such owners at a time when there was no defense to the notes as between the original parties to them. The plaintiff, in answer to these views, claims that the notes should be treated in the same way as if they represented advances made by the partners to the firm, and he insists that they can be paid only upon an adjustment of the partnership accounts at the time of the dissolution of the partnership, and until then constitute no indebtedness. The truth is, the parties made no advances to the firm, and the notes cannot represent a substance which never existed. The makers of the notes owed the two members the sum represented by the notes, and that sum was a proper partnership debt. A partner who simply makes an advance to the firm, relying upon an implied promise of the firm to repay, occupies a totally different attitude from one member of a firm who has had an accounting with the firm, and upon that accounting has been found to be its creditor, and who has then taken from the firm a written promise to pay the debt thus found due him. In the first case the promise which is implied in favor of the partner who makes the advances is that the firm will repay such sum as may be found due the member upon an accounting, while in the other case the express promise excludes any implication whatever, and may be enforced according to its terms. The result is that in some cases the assignee of the debt can subsequently maintain an action thereon, where the assignee at the time of the commencement of the action, could not. This is not at all inconsistent with the cases which hold the principle that no one deriving under the partner [assignor] can be in a better position than such partner; that is, a better position than the partner was in when he assigned. * * * In this case, if the members of the Y. A. Wood & Go. firm had kept the notes in their own possession without assignment until the 0. EL Wood & Co. firm became insolvent, and had then by gift transferred the notes to their wives, the latter would have taken simply the right which their husbands had; and as they could not, at the time of the' transfer, have maintained an action upon the notes without an accounting and the preference of other firm debts, it would follow that their voluntary transferees could not. So the question is really reduced to the point as to what was the right of the transferee at the very moment of transfer. If at that time the.notes could have been sued upon by the transferrer, that right went to the transferee, and could not, therefore, be altered by subsequent matters between the original parties.”

We have thus quoted from the opinion in that case at considerable length for the reason that the principles enunciated and the reasoning of the court seem to be quite pertinent to, if not decisive of the question under consideration. We see no reason why, when the profits of a firm are by agreement divided between the partners, and credited to each upon the books of the company, it does not work a separation from the firm assets of the portion so divided, and pass the title thereto as completely and effectually as it would if a note or certificate of deposit was given therefor by and in the name of the firm. In the case at bar the debt of the firm of E. C. Stark & Co. to R. M. Bingham was an honest one. Profits had been earned in the business to an extent that rendered it entirely proper for the parties to divide a portion of them between the individual members of the firm. This was done. After the division, and after an individual credit was given to each, it formed between the parties a valid debt' from the firm to each of the members for the amount of the divided profits credited to him. At that time the firm was solvent, and recognized the propriety of dividing a portion of the profits of the business between its members and its obligations to pay each his individual share of the profits thus divided. If, immediately after such division, Bingham had commenced an action to recover his portion of such divided profits, there is little doubt, we think, but that he could have recovered. Cole v. Reynolds, 18 N. Y. 74; Bank of B. North Am. v. Delafield, 126 N. Y. 410; 37 St. Rep. 864. So, too, at the time when the transfer was made by Bingham to his wife, the action might have been maintained, as the firm was then solvent. This being so, it must follow that upon the assignment to the plaintiff she acquired a right to maintain such an action. There was no advance made by Bingham to the firm of such share; on the contrary, the firm was to pay him,the amount of it. The firm was indebted to him in the sum of $12,500 for such divided profits. That debt he assigned to his wife to secure valid debts which she held against him and the firm of which he was a member. Obviously, at the time of the assignment, she might have maintained an action against the firm of E. C. Stark & Co. to recover the amount of the divided profits thus assigned, without any accounting with the firm. She having at that time acquired this right, it could not be altered or changed by any subsequent dealings or complications arising between her husband and the firm of E. C. Stark & Co., or between the members of such firm. We are of the opinion that when the profits of the business of E. C. Stark & Co. were by agreement of the partners divided, and each of the partners was credited with his share, it became a debt against the firm which could have been enforced so long as the partnership remained solvent, and that either could transfer the same, and his transferee could maintain an action, and recover the amount thus credited. From these considerations it follows that the judgment appealed from should be affirmed, unless the referee committed some error in the admission or rejection of evidence which would require a reversal. We have carefully examined each of the appellant's exceptions to the rulings of the referee as to the admission of evidence, but have found none that we think sufficient to require us to interfere with the judgment, and therefore we are of the opinion that it should be affirmed.

Judgment and order affirmed, with costs.

All concur.


author: Martin, J.—

text:
    Joseph I. Sayles et al., Resp’ts, v. Nicholas J. De Graff et al., App’lts.

      {Supreme Court, General Term, Fourth Department,

      Filed November, 1894.)

    Appeal—Convicting evidence.
    A finding, based on the testimony of a party, will not be disturbed on appeal, though, directly contradicted by several of the adverse parties.
    Appeal from a judgment in favor of plaintiff

      Houston & Herrick, for app’lts O’Connor and P.erry; Ed. J. Maxwell for app’lts Clute, Siver and De Graff; Sayles, Searle & Sayles, for resp’ts.
   Martin, J.—

This action was brought to recover for professional services performed by the plaintiffs, and for disbursements made by them in the case of People ex rel. Ballou v. Wendell. The plaintiffs were lawyers doing business under the firm name of Sayles, Searle & Sayles, at the city of Borne, N. Y. The testimony of Joseph I. Sayles, one of the plaintiffs, was to the effect that the defendant Clute came to the plaintiffs’ office to consult with him in regard to that case; that he was then informed by Clute that he came as the representative of the defendants ; that they, the defendants, were prosecuting the case, and would pay him for his services ; that afterwards he saw the other defendants, and communicated to' them what Clute had said; that they practically conceded that his statement was correct, and that they promised to pay for such services and disbursements as should be rendered and made in that case. If the evidence of this witness is to control, and the referee was authorized to give credit to his evidence, notwithstanding the evidence of the defendants, which was in direct conflict with it, then he was justified in making the findings and directing the judgment herein. There was a direct and sharp conflict between the evidence of the witness Sayles and the witnesses called by the defendants. Several of the defendants were sworn as witnesses and positively denied the truth of the testimony given by the witness Sayles as to the essential facts testified to by him as a basis for the recovery herein. If the evidence of the defendants was true, then obviously the judgment in this action is wrong. On the other hand, if the witness Sayles testified correctly as to what occurred, the judgment was authorized, and should be sustained. Upon this conflicting evidence the referee has found in favor of the plaintiffs. His findings should not be disturbed unless it appears that the proof,so clearly preponderates in favor of a contary conclusion that it can be said witli reasonable certaints that the referee erred in his conclusions. Baird v. Mayor, etc., 96 N. Y. 577; Lowery v. Erskine, 133 N. Y. 52, 55; 21 St. Rep. 917; Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948; Devlin v. Greenwich Sav. Bank, 125 N. Y. 756; 35 St. Rep. 922; Phoenix Iron Co. v. The Vessels Hopatacong and The Musconetcong, etc., 127 N. Y. 206, 212; 38 St. Rep. 66; Barnard v. Gatz, 140 N. Y. 249, 253; 55 St. Rep. 541. While the evidence in this case would have fully justified the referee in finding in favor of the defendants, still we think he had the right to reply upon the plaintiff’s testimony, and that, under the rule stated, we should not disturb the findings of the referee or the judgment entered thereon.

The appellants’ claim that the defendants were acting for the veterans of Montgomery county, and that the action should have been brought, and could have been maintained, against them asan association, we think cannot be sustained: (1) The proof of the plaintiffs was to the effect that they were not employed by any association, but by the defendants, who agreed to pay them for their services and disbursements; and (2) an action could not have been maintained against the veterans of Montgomery county as an unincorporated association. McCabe v. Goodfellow, 133 N. Y. 89; 44 St. Rep. 253.

Judgment affirmed, with costs.

All concur.


author: Merwin, J.

text:
    Oneida County, Resp’t, v. Abel C. Brewer, as Committee, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1894.)

    1. Lunatic—Support.
    In the absence of an agreement, a lunatic is not liable to the county for his support at a county asylum.

      2. Same.
    The county may enforce against the lunatic’s estate a claim for money advanced to the state hospital for his support therein prior to the enactment of chap. 136 of 1890.
    Appeal from a judgment in favor of plaintiff.

      Burke & Brewer, for app’lt; Howard C. Wiggins, for resp’t.
   Merwin, J.

In November, 1883, Myron N. Bartholomew, being then insane, and having no property, was duly committed to and received at the Oneida County Asylum for the Insane. From that time to February 11, 1893, he was there supported by the county, being all the lime insane. On February 11, 1893, he was transferred, presumptively by order of the county superintendent, to the Utica State Hospital, and there supported at the expense of the county of Oneida until October 1, 1893, and for this the county paid the state hospital the sum of $82.50. The record at the county asylum states that Bartholomew was received as a pay patient. No contract with his relatives is shown. It. appears that a brother, Arthur P. Bartholomew, paid for his support up to November 1, 1886, the last payment being made in November, 1887. Nothing further has been paid the county. On October 25, 1892, Arthur P. died intestate, leaving some property. Myron, as one of the^ heirs and next of kin of Arthur, is entitled to one-fourth part of his estate. On November 2, 1892, a sister of Myron died intestate, and he, as one of her heirs and next of kin, is entitled to one-third of her estate. On October 10,. 1893, by an order of the supreme court in proceedings duly taken, Myron was declared a lunatic, and Abel 0. Brewer was appointed committee of his estate. The lunatic has no property except what may be derived from his interest in the estates above referred to. The committee has received therefrom about $900. The present proceeding was compienced on April 1, 1894, and by it the county, by its superintendent of the poor, sought an order requiring the committee to pay for the expense of support of the lunatic from November 1, 1886, to November 11, 1893, and also-pay the amount paid by the county to the state hospital. A reference was ordered to a referee to take the evidence concerning the claim, and report the same, with his opinion thereon. Upon the coming in of the referee’s report, the order appealed from was-made. It allowed as a valid claim against the estate of the lunatic the value of his support from April 1, 1888, to February 11,. 1893, being the sum of $663.20, and also the amount paid by the county to the state hospital, making altogether $745.70.

There are two questions to be considered: First, whether the-county can recover for the support of the lunatic at the county asylum; and, second, whether it can recover what it paid to the state hospital. When the lunatic was taken to the county asylum in 1883, there was no contract between him and the county by which he was bound to pay for his support. The evidence shows he was taken there by two of his brothers, and one of them for a time paid for his support. He was in fast a pauper, and there was apparently no relative who, under the statute (2 Rev. St., 6th ed., 808; Code Crim. Proc. § 914), was liable for his support. It. is very clear that after November 1, 1886, he was kept and maintained by the county as a poor person, under its general obligation to provide for the support of the poor. Under such circumstances it is claimed by the appellant that there is no liability on the part of the person receiving the support, or on his estate, to repay to the county the expense. The case of City of Albany v. McNamara, 117 N. Y. 168; 27 St. Rep. 165, is cited as sustaining this proposition. In that casa the doctrine was laid down that a person receiving aid as a poor person from the officers of the poor in a city or county, in the absence of any representations on his part as to his responsibility or physical condition, incurs no liability to repay the amount expended on his behalf. On the other hand, the respondent claims the recovery can be sustained, on the theory that there was an implied promise on the part of the lunatic to pay for necessaries furnished to him by the county. To support this view the case of Goodale v. Lawrence, 88 N. Y. 513, is cited. In that case it was held that a husband who had voluntarily permitted his insane wife to absent herself from his house, and to become a public charge, is liable to an action at the suit of the proper town or county officers for her support. It was said that the action rested upon the common law obligation of the husband to support the wife. A promise on the part of the husband to pay for necessaries furnished to the wife would be implied. The Goodale Case is not necessarily inconsistent with the case in 117 N. Y., and 27 St. Rep., but, if it were, the latter must control. The question, then, is whether the doctrine of the latter case applies to the case in hand. It would seem to do so, unless the fact that the poor person is insane changes the rule. We are referred to no statute that imposes a personal liability upon the insane person for support furnished by the county at the ■county asylum. The commitment here was under the provisions of chapter 446 of the Laws of 1874, tit, 1, art. 1. By § 12 of article 1 the duty of supporting an indigent lunatic was imposed upon certain relatives, and by § 13 it was provided that: “ The overseers and superintendents of the poor shall have the same remedies to compel such relatives to confine and maintain such lunatic, and to collect the costs and charges of his confinement, as are given by law in the case of poor and impotent persons becoming chargeable to any town.”

Section 17 of the same article isas follows: “The overseers of the poor of any city or town shall have the same remedies to compel the committee or guardian of the estate of any lunatic to confine and maintain such lunatic, and to collect of such committee the costs and charges of his confinement and support, as are given in the preceding sections against the relatives of such lunatic. And the court of general sessions of the peace of the city or county shall make orders against such, committee personally, and enforce them in the same manner as against the relatives of any poor person, so long as such committee has any property in his hands, for the support of such lunatic.”

These provisions do not give to the county, for past expenses, any right of action against the estate of a lunatic as for a debt. A special remedy is given in § 17, and in other respects the same remedy is given as in case of the ordinary poor. The remedy against relatives is statutory, and must be enforced in the manner provided by statute. Herendeen v. De Witt, 49 Hun, 53; 17 St. Rep. 298.

The respondent insists that necessaries were furnished to the lunatic, and that a promise to pay therefor should be implied. So the relief furnished to the ordinary poor consists of necessaries, and in such a case a promise to pay therefor will not be implied, according to the rule laid down in City of Albany v. McNamara. The rule laid down in that case is, we think, applicable here, and prevents a recovery by the respondent of the item for support at the county asylum.

The claim for money paid to the Utica State Hospital stands on a different basis. It is by law provided (chapter 446, tit. 3, § 30, Laws 1874) that every insane person supported in that hospital “shall be personally liable for his maintenance therein and for all necessary expenses incurred by the institution in his behalf. And the committee, relative, town, city or county, that would have been bound by law to provide for and support him if he had not been sent to the asylum, shall be liable to pay the expenses of his clothing and maintenance in the asylum, and actual and necesessafy expenses to and from the same.” By § 31 of the same title it is provided that “ the expenses of clothing and maintaining in the asylum a patient who has been received upon the order of any court or officer, shall be paid by the county from which he was sent to the asylum. * * * Said coun.ty, however, shall have the right to require any individual, town, city or county, that is legally liable for the support of such patient to reimburse the amount of said hills with interest from tlie day of paying the same.” The counsel for the appellant admits that the estate of the lunatic is liable (Supervisors v. Morgan, 2 Keyes, 277) if §§ 30 and 31, above referred to, are to be literally construed, and were in force when the payment was made. Those sections have not been repealed, but the claim is made that they were in effect superseded by the" provisions of the “ State Care Act,” so called, being chapter 126 of the Laws of 1890. It is not, however, claimed that under that act the indigent insane ceased to be a charge upon the county prior to October 1, 1893. See § 7 of the act. The claim in question is only for expense to that date. The fact that the transfer to the Utica Hospital may have been under the provisions of that act does not prevent the county from enforcing the personal liability of the lunatic. We think, therefore, that this claim was properly allowed. It follows that the order appealed from should be modified by reducing the recovery or allowance to the sum of $82.50, with interest from April i, 1894. The allowance of costs should also be stricken out, as the main item claimed is disallowed.

All concur.

Order modified by reducing the amount allowed to the sum of $82.50, with interest from April 1, 1894, and by striking therefrom the allowance of costs, and, as so modified, affirmed, without costs of this appeal to either party.


author: Dykman, J.

text:
    In the Matter of the Petition of James Moore, App’lt, for Leave to Sue The Anglo-American Dry Dock and Warehouse Company, Resp’t. Samuel K. Probasco, Pl’ff, v. The Anglo-American Dry Dock and Warehouse Company, Def’t. Thomas Cochrane et al., Pl’ffs, v. Same et al., Def’ts.

      (Supreme Court, 'General Term. Second Department,

      Filed October 26, 1894.)

    Mortgage—Foreclosure—Action for debt.
    The holder of a small portion of the mortgage bonds will not be allowed to sue thereon after they have been proved and allowed in an action to foreclose such mortgage, unless cogent reason is presented for the granting of an order under § 1628 of the Code.
    Appeal from an order denying a petition for leave to sue.

      Everett P. Wheeler, for app’lt; Luden Birdseye, for resp’t.
   Dykman, J.

This is an appeal from an order made at the special term, denying the petition of James Moore for leave to sue the Anglo-American Dry Dock & Warehouse Company. The petitioner is the owner of two bonds for $1,000 each, issued by the company. They are part of an issue of 500 bonds of $1,000 each. All of the valid bonds of this issue are secured by second mortgage to Thomas Cochrane and William W. Flannagan. In 1891 an action was commenced to foreclose this mortgage, and that action is still pending. A protracted litigation ensued respecting the validity and consideration of many of the bonds. The judgment entered was reversed in part by the general term, and a new trial was ordered before the referee.

The motion is based upon § 1628 of the Code of Civil Procedure, which is as follows: “ While an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained, to recover any part of the mortgage debt without leave of the court in which the former action was brought.”

This statute manifests the intention of the legislature to place a restriction upon holders of bonds secured by a mortgage which is in process of foreclosure, and, unless a cogent reason is presented for the signature of the court under that section, it should be denied. In this particular case our conclusion is that all the bondholders should abide the result of the foreclosure suit, and that the order appealed from should be affirmed.

All concur.


author: Erhlich, C. J.

text:
    Henry E. Walton, Resp’t, v. Margaret Mather, App’lt.

      (Neto York City Court, General Term,

      Filed November 20, 1894.)

    Pleadings—Amendment—Terms.
    The plaintiff will be permitted to amend the complaint after the reversal of a judgment in his favor, only upon the payment of all the costs to date.
    Appeal from an order, allowing plaintiff to amend his compláint on payment of $20 costs.

      Dittenhoefer & Berber, for app’lt; Nathan Lewis, for 'resp’t.
   Erhlich, C. J.

It appears that this action was tried, and a verdict rendered in favor of the plaintiff, which was, on appeal, reversed, and a new trial ordered, with costs to abide the event. The action came up for a second trial, and on account of some objection to the complaint a juror was withdrawn, to the end that the plaintiff might apply at special term for leave to amend his complaint. The application was heard, and granted upon condition that the plaintiff pay to the defendant’s attorney the sum of $20 costs of motion. The defendant appeals from this order on the ground that the terms are inadequate.

The authorities seem to be uniform that where an action has been tried once, and the judgment reversed at the instance of the defendant, with costs to abide the event, the plaintiff will not be permitted to amend his pleadings except on payment of all the costs to date. Ireland v. Met. El. R. R. Co., 8 St. Rep. 127; Cramer v. Lovejoy, 41 Hun, 581; 5 St. Rep. 190; Satterlee v. Claremont, Daily Reg. May 24, 1883; Manetta v. Naylor, 2 Law. Bui. 65, 66. It follows, therefore, that the order appealed from must, in so far as it grants leave to amend “ upon payment of twenty dollars costs,” be reversed, with costs, and that such amendment be allowed on payment of all the costs to date, and, in default of such payment, that the application for leave to amend be denied.


author: Ehrlich, C. J.

text:
    William H. Brandt, Resp’t, v. Charles Siedler, Individuall and as Receiver, etc., App’lt.

      (New YorTc City Court, General Term,

      Mled November 20, 1894.)

    Pleadings—Demurrer.
    A complaint, which charges a defendant with liability both as an individual and as a receiver for the same cause of action, is demurrable.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      Tillotson & Kent, for app’lt; George W. Carr, for resp’t.
   Ehrlich, C. J.

The plaintiff, by his complaint, seeks to hold the defendant liable in a dual capacity,—First, as an individual; and, second, as receiver of the Lorillard Brick Works Company, —on causes of action wherein he is liable individually, if at all. Ryan v. Rand, 20 Abb. N. C. 314; 9 St. Rep. 523. The defendant demurred to the complaint on the ground that there had been a misjoinder of causes of action, and for the reason that it was improper to thus join defendant as liable in both capacities in the same action. The court overruled the objection, and ordered judgment on the demurrer in favor of the plaintiff. This was error; so that the interlocutory judgment and order appealed from must be reversed, with costs, upon payment of which the plaintiff may have leave to amend by making the action one against the defendant individually or as receiver, at his option.

All concur.