text:
    Adolph Ladenberg, Resp’t, v. Old Dominion Copper Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 8, 1887.)

    Judgment—Merger of the cause of action.
    On the recovery of a judgment the cause of action becomes merged in the judgment and proceedings on the same cause of action even in other states must therefore fail. This doctrine may be avoided by an agreement staying other actions, to be controlled by the result of the one in which the judgment is recovered.

      Appeal _rom order of the special term vacating judgment in favor of plaintiffs on their motion.

      P. B. Olney & S. A. Noyes, for app’lt; W. A. Butler, for resp’t.
   Brady, J.

This action was brought to recover the amount of three promissory notes and interest, made by the defendant’s company, endorsed by the defendant Hamilton and delivered to the plaintiffs for value before maturity. A like action was brought in the territorial court of Arizona territory, in which an attachment was obtained against the property of the defendant company and still another action at Baltimore. The defense in these actions was similar.

It is alleged that the defendant company, for the purpose of preventing the plaintiffs from securing their claim, hostilely, improperly and irregularly confessed a judgment for a very large sum of money in favor of a firm who were its agents, and that the plaintiffs were about to take testimony under an open commission, which had been forwarded from the territorial court in Arizona shortly after issue was joined in the action pending there, and some time before the trial took place in this case, when, at the request of the counsel for the defendant company, the taking of the testimony was suspended and upon the understanding and agreement that the action should be tried here and not in Arizona and that the result should control the other litigation. The plaintiffs, having succeeded in this action, sent the record to the territorial court to have judgment pronounced there in accordance with the agreement mentioned when objections were raised and the legal doctrine invoked on behalf of the company that the cause of action was merged in the judgment here and the proceeding in Arizona must therefore fail. When this made known to the plaintiffs, and as soon as they were able to get all the facts bearing upon it from Arizona, a motion was made at special term to have the judgment entered against the company on the verdict vacated, and set aside before the court met in Arizona. The motion was opposed, but nevertheless granted. Hence this appeal.

There can be no question about the power of the court to set aside a judgment under the circumstances disclosed. • The adjudicated cases establishing it are numerous. Vanderbilt v Schreyer, 81 N Y, 646; Barry v. Mutual Life Co. 53 id, 536, Hatch v. Central National Bank, 78 id., 487; in re City of Buffalo, 78 id., 363; Dutz v. French, 43 N. Y. Superior Court Rep., 37.

The affidavit's of the respective counsel herein read on the motion are at variance and perhaps irreconcilable, and hence the duty of examining and deciding this appeal has been an unpleasant one. But the defendant Hamilton distinctly states that the arrangement was made, of which the motion was predicate, namely, that the trial of the issues should take place here, and the other litigations controlled by the result. This arrangement seems to have been a very proper one, inasmuch as a repetition of the trial might be well regarded by the counsel as an unnecessary procedure, Independently of the expense to which it would necessarily subject the parties: and it was one, therefore, likely to have been made a consideration, which doubtless influenced the learned justice in the court below in arriving at the conclusion which he adopted, after proper consideration of the conflicting statements and the various facts and circumstances surrounding the application.

It is true the point is made by the appellant’s counsel that the respondent’s counsel is seeking to avoid the consequences of his ignorance of the rule by which a recovery would merge the claim, but this is a theory only. The application to vacate the judgment herein seems to have been a very proper procedure, for the reason that if the arrangement made between the counsel was carried out, the judgment would be the same in Arizona as here, and the plaintiff’s counsel justly relying upon it could not have anticipated the objection made to its attempted application in that territory, while the continuance of the judgment here would, if the doctrine of merger were successfully urged, affect the security which the plaintiffs claimed to have obtained by the proceeding in Arizona. The trial here, therefore, which must at least be assumed to have proceeded upon a misunderstanding, and which involved the suspension of the preliminaries for a trial in Arizona, was properly undone, and the relief granted just.

This case illustrates, if not the necessity, at least the importance, of requiring all stipulations in a case controlling it in any sense, whether in procedure or result, to be in writing—a rule which would prevent misunderstandings kindred to that which appears - to have existed here, and relieve the court from the exceedingly unpleasant duty of deciding a question of fact • upon conflicting statements made by officers of the court of equal respectability.

Eor these reasons, thus briefly expressed, the order should be affirmed, but under the circumstances without costs

Van Brunt, P. J., and Daniels, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Ann Mallach, App’lt, v. Edward A. Ridley et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Evidence—Authority to detain suspected persons.
    Evidence going to prove that the person by whom one is arrested was a floor-walker, showing in customers, directing saleswomen and looking out for thieves and pickpockets, etc., is sufficient to go to the jury as to whether the performance of those duties did not imply instructions to detain suspected persons.
    Appeal from judgment entered on non-suit directed at the close of the plaintiff’s case.

      Ferdinand Kurtzman, for app’lt; Ediuard P. Wilder, for resp’t.
   Per Curiam.

Assuming that the rule laid down by the court of appeals in Mali v. Lord (39 N. Y., 384), still prevails, we think there was enough in the plaintiff’s case to-entitle her to go to the jury. She testified that the person through whose agency she was arrested and imprisoned was a floor-walker in the employment of the defendants;, that he showed in customers, gave directions to saleswomen, and looked out for thieves and pick-pockets, and furthermore stated that she had seen him watch people, presumbly for the purpose of ascertaining whether they conducted themselves lawfully or not. It was for the jury to say whether or not the looking out for thieves and pickpockets did not imply instructions as to suspected persons, not that they should be permitted to go away, but that they should be detained. It seems to us clear that the jury should have been allowed to pass upon this question.

The judgment should be reversed, new trial 'ordered, with costs to appellant to abide the event.


author: Brady, J.

text:
    William A. Ladd, App’lt, v. Anna L. Stevenson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Specific performance—Breach of contract—Security for same.
    When the contract provides for the giving of security for the performance of the contract, on failure to perform, this does not create any lien, mortgage or interest binding or eifectiug any of the real property belonging to the party liable for the breach.
    2. Same—3 R. S., (7th ed.), p. 2326, § 6—Statute of frauds.
    Specific performance is not decreed in doubtful cases and certainly never when a decree would be in contravention of the statute of frauds. 3 R. S. (7th ed.), p. 2326. This relief might be given on proper terms in any case and doubtless would, but whatever is done must be voluntary and not due to coercion.
    3. Same—Written contract—Paroi evidence.
    The use of the words, • ‘ satisfactory security ” in a written contract will be construed as providing for any security which ought to be regarded as satisfactory, and the words will be used in their ordinary sense. Parol evidence will not be admitted to explain- what kind of security was intended.
    Appeal from a judgment at special term.

      G. H. Forster, for app’lt; E. Ellery Anderson, for resp’ts*
   Brady, J.

The plaintiff and the defendant Willett entered into an agreement by which, under circumstances therein disclosed, the latter agreed, for certain considerations, to pay a loan made by the plaintiff to the Highland Chemical and Mining Company, and in which employment was secured to the plaintiff for a period named, at a salary specified.

The agreement then contained this clause, showing in part the obligations assumed by the defendant Willett, namely:

Third. In case he shall discharge said Ladd before the expiration of the term above mentioned, or shall otherwise fail to perform this agreement, to give said Ladd satisfactory . security for the repayment of said loan by the installments above mentioned, or to pay the same forthwith in cash.”

The plaintiff alleged that the loan was not paid; that no security was given as promised, and that he had been discharged by tne defendant Willett, thus presenting all the elements to show a breach of the contract. He also alleged that the defendant Willett had an interest in certain parcels of real estate which were described, and that this was the only property he had to his knowledge or information!

The prayer of the complaint is as follows:

“Wherefore, the plaintiff demands judgment against the defendant that he specifically perform the said agreement and that he execute a mortgage upon the above described real estate and property for the repayment of said $12,500, with- interest, by installments as aforesaid, and that the defendant and all persons claiming under him subsequent to the commencement of this action be barred and foreclosed of all right, claim, lien and. equity of redemption in the said premises, and that the said premises be decreed to be sold according to law; that the moneys arising from the sale be brought into court; that the plaintiff be paid therefrom the said sum of $12,500, with interest thereon, and the costs and expenses of this action; that the defendant be adjudged to pay any deficiency which may remain, and that a receiver be appointed of said real estate and property, and that the plaintiff have such other and such further judgment or relief in the premises as may be just and equitable.

It is not necessary in expressing the views entertained of this case to refer to the many incidents connected with its progress to a former judgment, and the proceedings for the intervention of other persons who, at their own solicitation, became defendants to protect their interests, inasmuch as the learned justice presiding in the court below dismissed the complaint upon the ground that the plaintiff was not entitled to demand as security a mortgage on the defendant Willett’s real estate or interest in it if he had any. He found, in other words, as a conclusion of law, that the plaintiff under the agreement did not acquire any lien, mortgage or interest which bound or affected any of the premises described in the complaint. This conclusion seems to be abundantly sustained by the rule promulgated in Wright v. Weeks (25 N. Y., 153), which, like this, was an action for specific performance. The agreement sought to be enforced in that case provided for the sale of the premises mentioned at.a sum stated “upon the terms as specified.” And the attempt was made to prove by paroi what the terms were, but unsuccessfully, the evidence having been rejected' and the judgment was sustained. It was held that such a contract could not be specifically enforced, unless it stated fully all the terms and subject-matter to be affected. If any of these were omitted, and resort must be had for exemplification to paroi evidence, it- could not be sustained. Foot v. Webb, 59 Barb., 38. See also Wehl v. Von Der Wahllbebe, 2 Lans., 267.

Here, although provision is made for satisfactory security, it is not stated of what it shall consist, and as full compliance with the agreement might be accomplished by some security other than a mortgage on real estate, the proposition that real estate can be demanded and enforced by a decree for specific performance, is at once and successfully answered. Indeed, in reference to transactions purely commercial, such security is rarely given. It is generally consummated by endorsement or bonds or other collaterals negotiable in character and readily converted into cash".

The mischief which'must ensue if such a provision constitute a lien on real estate has been illustrated herein by the result of lis pendens filed, which affected several pieces of property, thus creating a general and not a specific lien on one piece only. Assuming that the party contracting to secure owns or has an interest in several pieces of property, which of them has he agreed to mortgage ? If it does not appear, how can the court declare that by the agreement any one to be selected is the one referred to, or in contemplation of the parties, or indeed select any one at all on principle?

Specific performance is not decreed in doubtful cases, and certainly never when a decree would be in contravention of a statute which proclaims that no interest in lands other than leases for a term of years not exceeding one year, shall be created, granted, assigned, surrendered or declared unless by act or operation of law or by deed, or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. Section 6, page 2326, vol. 3d., Rev. Stat. (7th ed., Banks Bros.).

The plaintiff sought to establish the right asserted by paroi, and this was an admission of the omission from the written paper of a necessary element. It is true that some negotiation relating to payment of a part of the sum took place between the parties through their respective attorneys, but this was a concession only in regard to the subject embraced in the negotiation, and was not intended to enlarge the agreement in respect to the kind of security, which must be given or the plaintiff had the right to demand. It nowhere appears in the correspondence that such a change of provision was in contemplation, and if there were, it is not so stated or expressed as to avoid the effect of the Statute of Frauds. It is true that the plaintiff ought to' have the protection which security would give him, but his right to it rests upon an agreement most infelicitous and unavailable for the reason stated. The addition of a few words in the agreement would have given it to him, and the failure to insert them would seem to indicate that real estate as the object in view was not in the minds of the parties, and that the words as to security were used in their ordinary sense and provided for any security which ought to be regarded as satisfactory.

It might be said in conclusion that the assumption that there was herein such a part performance of the contract as removed it from the Statute of Frauds is erroneous.

All that was done was to obtain relief from the operation of the Us pendens which the court refused to discharge, and which as the result shows the plaintiff had no right to file. This relief might be given on proper terms in any case, and doubtless would, but whatsoever was done was coerced and therefore not voluntary, the Us pendens standing in the way of any transfer or disposition of the property offered free from encumbrances. It was said by Earl, J., in Miller v. Ball (64 N. Y., 291), That it was not always easy to determine whether there has been a sufficient part performance of a paroi agreement for the sale of land in the sense of courts of equity to free it from the operation of the Statute of Frauds, but that the general rule was that nothing is to be considered as a part performance which does not put the party in a situation which is a fraud upon him unless the agreement is performed. The payment of the consideration alone in a case where its recovery would fully indemnify the party paying, would not be a sufficient part performance within the rule and neither would mere possession be, without other circumstances of hardship or fraud

In this case none of these elements are proved, and the contract was devoid of that certainty which existed in all the cases of part performance, namely: the description, general or special, of the land sold and intended to be conveyed. Not only that, but it was marked by the uncertainty also that any land was intended to be granted or encumbered.

The only possession the plaintiff ever had of any real estate, was that obtained by filing the Us pendens—not against one piece of property, but all the defendant Willett had, and for the reason that the right to any one piece was not and could not be shown by the agreement.

The consideration of this record therefore develops no reason for disturbing the judgment, . and it should be affirmed with costs.

Daniels and Bartlett, JJ., concur.


author: Per Curiam

text:
    The New York Life Insurance and Trust Company, as Trustee of C. E. Delaplaine, Resp’t, v. The Mayor, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Ejectment—Trial by jury—Form op complaint.
    Though in form the suit is not an action of ejectment, yet if it is so in substance, the defendants are entitled to a trial by jury. This constitutional right is not affected by reason of there being a prayer for equitable relief.
    Appeal from order denying motion for trial by jury.

      F. A Irish, for app’lt; L. A. Chase, for resp’t.
   Per Curiam

The plaintiffs in their complaint allege that they are the owners in fee of a certain wharf and bulkhead, of which they nave been deprived by the action of the defendants. and which they seek to have restored to their possession. They also demand damages in the sum of $500,000 on account of the unlawful taking of said wharf and. bulkhead and $100,000 for loss of wharfage.

If this suit is not in form an action of ejectment, it is such in substance, and in view of the form of the complaint we think the defendants are entitled to a jury trial. The circumstance" that there is a prayer for equitable relief does not effect this constitutional right.

The order should be reversed and the motion granted with $10 costs and disbursements to abide the final' event.


author: Van Brunt, P. J.

text:
    In the Matter of The New York and Western Union Telegraph Co , App’lt, v. Hugh J. Jewett, Receiver of the Erie Railroad Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 8, 1887.)

    1, Receiver—Summary jurisdiction—Summary proceedings—Discharge. It is because a receiver is Hie servant of the court, and because the funds in his hands and property in his custody are in the possession of the court, that the summary jurisdiction can be exercised. The moment that the receiver is discharged and relieved from the obligation of his office, ail right in the court to proceed against him upon the application of any claimant summarily ceases, and he is no longer subject to their jurisdiction, except such as is acquired in the ordinary methods available to all suitors.
    2. Same—Claim barred by statute of limitations.
    If a proper reason is shown, the court may vacate the order discharging the receiver, and thus reinstate parties whose action is barred by the statute of limitations to the position which they occupied prior to his discharge.
    Appeal from an order and judgment of the special term overruling exceptions to the report of the referee in this matter.

      IraD. Warren, for app’lt; W. W. MacFarland, for resp’t.
   Van Brunt, P. J.

I entirely fail to see how the court has now any power to enter judgment in this (supposed to be) summary proceeding against thé receiver who has been discharged from his office by the court.

• It is because a receiver is the servant of the court, and because the funds in his hands and property in his custody are in the possession of the court, that the summary jurisdiction can be exercised.

The moment that the receiver is discharged and released from the obligations of his office, all right upon the court to proceed against him upon the application of any claimant summarily ceases, and he is no longer subject to their jurisdiction, except such jurisdiction is acquired in the ordinary methods available to all suitors.

It is urged that such a rule, if applicable to the case at bar, would work a great hardship, because the petitioner had no notice of the application for the discharge of the receiver, and that they cannot now bring an action, because the statute of limitations has attached to their claim.

This objection is not by any means insuperable, because if a proper reason is shown, the courts may vacate the order discharging the receiver, and thus reinstate the petitioners to the position which they occupied prior to his discharge.

The case of Woodruff v. Jewett (37 Hun, 205) is no authority opposed to this view.

In that case an action had been commenced against a receiver, and before the entry of the judgment the receiver had been discharged. The court held that as a judgment could only bind funds held by the defendant as receiver, a judgment entered could not do any harm, as no claim could be made against him individually thereon.

The court had acquired jurisdiction by action, and such jurisdiction did not at all depend upon the fact of his being receiver—an officer of the court, as in the case at bar. Without a vacation of the order discharging the receiver, there seems to be no way in which the petitioners herein can enforce by these proceedings any claim they may have.

The learned counsel speaks of getting a judgment in these proceedings, but we have not been referred to any authority or practice which will authorize the entry of a judgment upon proceedings of this description.

No relief could be obtained enforceable by an execution as upon a judgment. The only relief would be an order directing the receiver to payout of the funds in his hands— the authority to make which seems to depend entirely upon the fact that the receiver is but the servant of the court, acting in its stead, and that all the funds and property in the hands of the receiver are in the custody of the court, and the court is administering a trust which has devolved upon it.

For those reasons, I think that the order appealed from must be affirmed, with costs.

Potter and Lawrence, JJ., concur.


text:
    The People ex rel. John McCabe, App’lt, v. The Board of Fire Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

      1. Office and officers—Incapacity—Error of judgment.
    The rule that an officer shall be responsible for any want of judgment, skill, neglect or failure which may cause unnecessary loss of life, limb or property, does not embrace possibilities. To include possibilities it should be that he would be held responsible for any loss which might occur. Such- a rule would seem to be unreasonable. Under the rule a loss must have actually resulted for the want of judgment. To warrant a dismissal on the ground of incapacity, more than a single error of judgment must be proved. Incapacity means a general unfitness, a defect of intellectual grasp, experience, or application, a want of comprehension to appreciate surroundings and conditions and to deal with them skillfully not on one occasion, but generally.
    2. Fire commmissioners—Jurisdiction of the supreme court to review their action.
    The power of the supreme court to review and to reverse removals made by the- fire commissioners cannot be doubted.
    Certiorari to review proceedings of the fire commissioners in removing relator.

      'Elihu H. Root, for relator; D. J. Dean, for resp’ts.
   Brady, J.

The relator was the second assistant chief of the fire department and was removed for alleged incapacity. The specification accompanying the charge was that at a fire on the 5th of July, 1886, he unnecessarily sent out a signal known as the three sixes or simultaneous call, the effect of which was to put in motion more engines and trucks on the way to the fire, some of which only arrived, however, the order having been countermanded by the chief. The other charge, which was a corollary of the first, was not proved.

It is, that having given the signal mentioned, he thereby, without due cause and reason, and for want of judgment or skill on his part, which may have caused unnecessary loss of life, limb or property, uncovering and depriving of all fire extinguishing apparatus and seriously endangering life and property in a large and important section of the city and thereby leaving only two companies in quarters on Manhattan island, north of Fourteenth street, during the celebration of Independence day, when fires are invariably of very,frequent occurrence, and when it was of the utmost importance that no part of the fire extinguishing force should unnecessarily be out of quarters, and this was based upon a general order which is as follows, declaring that an officer shall “be responsible for any want of judgment, skill, neglect or failure which may cause unnecessary loss of life, limb or property.

The rule, it will be perceived, contemplates the actual happening of one of the several events stated, namely, unnecessary loss of life, limb or property, but the specifietion is “may have caused,” which is entirely different in form and substance—all the difference between the affirmative and possible. If the rule is designed to include what might happen as contradistinction from what did happen, then we are in the realm of possibilities and dealing with shadows and not substances with what might be but is not, and this the rule does not accomplish. The word ‘ ‘unnecessary” in its relation to the other words of the rule indicates clearly indeed that one of the several losses may occur, and therefore if not unnecessary it has no vitality. In other words if an error be made and it causes any of the losses designated, but not an unnecessary one, then the' officer is not •responsible. If the design were to provide against any contingency of the kind mentioned, it should have been that the officer would be held responsible for any loss of life, limb or property caused by his want of judgment or skill, neglect or failure, and if he include possibilities as well, it should be that he would be held responsible for any loss which might occur through his want of judgment, skill, neglect or failure.

The rule does not embrace such possibilities, and if it did it would seeem to be unreasonable. As the rule must be interpreted, however, the proof failed to show its violation. The charge resting upon it clearly was not established, no loss having resulted from the call made. It is not supposed that the commissioners meant to base their judgment upon the theory that, although the call might have caused a loss, but did not, the relator was responsible and must be dismissed, but that they thought his incapacity proved and his unfitness established. The alleged incapacity rests, therefore, upon a single act, yielding to the respondents all they can claim. And this act was neither a violation of duty, nor conduct injurious to the public welfare nor the cause of loss of life, limb or property, but an error of judgment, and an error of judgment only. It was not charged that the relator had failed in his efforts to subdue the fire, or that in the management or control of the different instruments and agents actually employed for that purpose he had erred or had shown his incapacity, but that he had in the exercise of his judgment, and it would seem from excessive caution or zeal called into requisition more power than the emergency demanded. It was no want of skill, therefore, in handling the apparatus at the fire, no want of judgment in commanding, directing or guiding the men under his command, but simply and only in calling out too many engines and trucks by which for a time other parts of the city might be exposed in consequence; although, in fact, they were not so exposed, no fire having occurred. The relator was not said to have been unfit for duty by any act of indiscretion or folly, or to have shown incapacity in any other respect than that mentioned namely in ordering to the fire by a signal, and on one occasion only, more engines that were needed. It must be noted also as bearing upon the subject that the chief officer who was his superior in rank, and called against him, testified that he was a fireman pf skill and experience accustomed to command and had commanded at fires, and that no complaint had ever before been made against him. It appeared, indeed, that he rose up to the position he occupied by merit, having shown the necessary capacity to warrant his advancement. And, indeed, whether his order which induced his removal was an error of judgment depended, it must be said, upon the opinion of experts who admitted that a difference of opinion on the subject might exist between firemen and firemen of skill and experience. Thus far, therefore, we have arrayed against the charge of incapacity many cogent facts namely, that the relator is a fireman of skill and experience who rose by force of his own merits to the position he occupied, and who has not only discharged the duties faithfully and well, of humbler places in the department, but also in his last and highest position, and has commanded at several fires successfully. And consequently it must be said that having so commanded he must have had the capacity to discharge that. important duty. Indeed it must be further said that he commanded at this fire successfully, inasmuch as no complaint of any result in reference to it has been made against him, and the inference fairly to be drawn from all these facts is not one of incapacity, but that a mistake was made, and that too not in the manner in which the apparatus at hand was employed as the force present was directed^ but in giving a signal for further aid, which, while it seems to have been unnecessary, might at the moment the order was given have been quite justifiable in the exercise of a vested discretion.

This last suggestion is made for the reason that after the call a change occurred in the existing conditions by the falling of beams without causing the fall of the walls, which diminished the danger of a more extended conflagration. It must be conceded in the estimate of the evidence against the relator, which consists chiefly of opinions, that the various elements which are 'to be contended with in contemplating an extensive fire, when the double purpose of extinguishing it and preventing its advance, is to be accomplished, may well lead to errors of judgment in the ablest and most experienced fireman. Indeed the testimony justifies the view that it has done so, and this conclusion alone seems to demand that more than a single error of judgment shall be proved to warrant a dismissal on the ground of incapacity. No adjudicated case bearing directly upon this subject has been found except The People ex rel. Folk v. Board of Police (69 N. Y., 411), and that is not at all analogous for the reason that there were many charges of omission and commission, which grouped together, were regarded as sufficient to justify the charge of incapacity. They were acts which affected the discharge of the relators duty in various and several aspects, and therefore entirely different from this case in which the charge rests, not upon omission of duty or error in the performance of duty or error in actually extinguishing the fire, but an error of over zeal by which too much was done to render success beyond question in combating a destroying element. The history of all struggles when subjected to criticism, whether arising in time of peace or war, reveals errors" of judgment, errors committed by commanders of acknowledged, unquestionable ability and experience, but this has not been regarded as evidence of incapacity. Indeed, it may be said truthfully that the man is yet to come who in all emergencies has not blundered, whether he be lawyer, juror or judge, major-general, minister, governor, crowned head or president, and while the error committed has demonstrated that as to the particular subject, a failure to deal with it properly could not be denied, it has not been regarded as evidence of in-

& capacity to discharge the duties of the position held or to command. Indeed, giving the full measure to capacity in its broadest sense it does not mean infallibility, and incapacity e conversa does not imply absolute fitness, unerring ana- unfailing ability. It means general unfitness to command—a defect of intellectual grasp—experience of aptitude to cope with the emergency in all its varied aspects, not on one occasion only but generally—a want of comprehension to appreciate surroundings and conditions, and to deal with them skillfully if not successfully, not on one occasion, but generally. Experience, the master teacher, often demands the occurrence of more than one incident to prepare and instruct, and rarely contributes to success, to great achievements, to grand results, except after many impressive events. In the language of a distinguished author: “ Experience, like the light in the stern of a vessel, illumines only the path that is past.

The conclusion, therefore, which impresses itself irresistibly, is that a single error of judgment by him, assuming one to have been committed, such as proved herein, is not sufficient evidence of the relator’s incapacity to warrant his removal. The power of this court to review and to reverse for this reason cannot be doubted. People ex rel. Dumahaut v. Fire commissioners, 96 N. Y., 672; People ex rel. Munday v. Fire Commissioners, 72 id., 445; People ex rel. Mayor v. Nichols, 79 id., 588.

The findings and sentence against him should therefore,be annulled and he reinstated.

Ordered accordingly, with costs.

Van Brunt, P. J., and Daniels, J., concur.


author: Bartlett, J.

text:
    Lazarus Murad, Resp’t, v. Ellis R. Thomas, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Contempt—Violation op an injunction—Discontinuance op action.
    Though an injunction has been violated, a discontinuance of the action, even if made after the alleged violation, will be fatal to a subsequent maintainance of contempt proceedings on account of such violation.
    Appeal from special term order denying defendant’s motion for a rehearing of an application to punish him for contempt, etc.

      Merritt E. Sawyer, for app’lt; S. F. Kneeland, for resp’t.
   Bartlett, J.

The defendant was charged with contempt of court ’ in having made certain transfers of property ill violation of the preliminary injunction in this cause. In the first instance the special term decided in his favor, but the general term held that he had acted in disregard of the injunction and should he punished. He was accordingly fined $6,141.50 by a special term order dated March 29,1882, and directed to be committed to the county jail until the fine should be paid. He has twice applied to the special term for a rehearing of the contempt proceeding, but has been unsuccessful. From the last order denying such an application he now appeals.

The case comes before the general term in a very different aspect from that which it presented on the former appeal. The defendant sought to excuse the transfers which he had made by saying that before he made them he was advised by his own attorney and also by the plaintiff’s attorney that the injunction order was no longer operative, and furthermore that his own attorney had previously told him the action was discontinued by' stipulation. These statements were met by denials from the plaintiff’s attorney (the late William L. Cowdrey), who swore, among other things, that he never consented to the discontinuance of the action, and never informed anyone that it wras discontinued, and that his office records contained no memorandum of a discontinuance. His affidavit to that effect was evidently regarded as very important by the general term on the former appeal, as appears by reference to the opinion of Mr. Justice Brady. The new evidence now presented to the court throws a serious doubt upon the correctness of Mr. Cowdrey’s assertions, to say the least. Among his papers there has been discovered a written consent to the discontinuance of the action, without costs to either party as against the other, bearing his own signature and that of Mr. Seth B. Cole, the attorney for the defendant. It is dated June 30, 1880, which was after the time the alleged contempt was committed, but the date is in Mr. Cowdrey’s handwriting, and there is evidence indicating that it was executed and deEvered to him much earEer, by Mr. Cole, wrho testifies positively that a settlement of the case was effected, that consents were given to discontinue, arid that he believed the order for discontinuance had been entered by Mr. Cowdrey, who had obtained his consent for the purpose. Corroborative evidence to the same effect is furnished by the by the affidavit of Mr. Cowdrey’s former clerk, which shows that Mr. Cowdrey, in his presence, notified the defendant that the suit was abandoned .and discontinued, and he would hear no more of it, and fixes this occurrence in May or June, 1880.

Taking into consideration all the new facts now disclosed, the proof indicates that a positive agreement to discontinue the action, without costs to either party, was entered into between the respective attorneys, on or before June 30, 1880. It is immaterial to determine the precise date, for a' discontinuance on those terms, even if made after the alleged violation of the injunction, would be fatal to the subsequent maintenance of contempt proceedings on account of such violation. These contempt proceedings were not instituted until May, 1881. It cannot be presumed that when a plaintiff consents to discontinue an action without costs, and furthermore takes a stipulation from his adversary, as in this case, that the papers used to obtain the temporary injunction may be removed from the files of the clerk’s office, he intends to reserve the right to prosecute the defendant for contempt in disregarding the injunction. The provision for a withdrawal of the papers would rather seem to indicate an apprehension on the plaintiff’s part that he had incurred a liability to pay damages by reason of having sued out the injunction.

As it seems probable that the special term denied the defendant’s application for a rehearing, because of the previous decision of the general term in this matter on a different state of facts, the order denying a rehearing should be reversed without costs, and the case remitted to the special term to pass upon the merits of the defendant’s application to be discharged from custody.

Van Brunt, P. J., and Daniels, J. concur.


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    Charlotte B.. Miller, Resp’t, v. The Ocean Steamship Company of Savannah, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Negligence—Duty of common carrier to passenger—Presumption of NEGLIGENCE.
    A common carrier, having «undertaken to convey a passenger, is hound to take all the care to prevent injury which the nature of their business will allow and use the greatest care and skill in the management of their conveyance. The fact that the accident happened from the breaking of a piece of machinery raises the presumption of negligence in the selection of the same for the purpose, and especially so if the soundness of this piece would have avoided the accident.
    2. Same—Contributory njbgligence—Duty of officers.
    There being no indication of danger and no warning given, a passenger cannot be presumed to know that there is danger, in wharfing a vessel in the dock, that a hawser used would break. If such danger existed it is the duty of the officers of the ship to warn the passengers and to keep them out of the reach of danger,
    3. Damages—Bodily suffering and inconvenience—Excessive damages.
    A passenger injured while being transported by a common carrier may recover for the pain and inconvenience suffered. The court has power to set aside a verdict when the damages are excessive and should never hesitate to exercise the same in a proper case.
    Appeal from judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying the defendant’s motions to set aside the verdict, and for a new trial.

      JohnE. Ward, ThomasP. Wickes and William Wheeler, of counsel, for appl’t; Luden Birdseye, for resp’t.
   Van Brunt, P. J.

The defendant is a corporation of Georgia and a common carrier of passengers for hire, and owner of the steamship City of Savannah, which vessel in March, 1885, was running between the port of New York and Savannah.

The plaintiff was a passenger upon this steamer sailing from New York, March 10, 1885, and arriving at Savannah on or about March 13, 1885; and while the vessel was being warped into her wharf was injured by a hawser which broke loose, and struck and broke her left leg.

The injury was caused by the breaking of a toggle, which was put through the strap of the block through which the hawser ran, and which strap was put through a hawser hole, the object being to keep the hawser near the bulwarks of the ship and not allow it to strike against the deck houses.

The plaintiff was standing on the deck of the ship when this toggle broke, and the hawser swept the deck, breaking the plaintiff’s leg.

The defendants claim that there was no proof of negligence upon the part of the defendants, that there was proof that the plaintiff was guilty of contributory negligence, and that the damages were excessive.

The defendants having undertaken as a common carrier to convey the plaintiff from New. York to Savannah, were bound to take all the care to prevent injury to her which the nature of their business would allow, and use the greatest care and skill in the management of their vessel.

The fact that the accident happened from the breaking of the toggle, raised a presumption of negligence in the selection of this piece of wood for the purpose, especially in view of the evidence that such a piece of wood, if sound, would have been strong enough to stop the engine before breaking.

It was therefore incumbent upon the defendants to prove that due care had been used in the selection of this toggle and that the weakness which this toggle exhibited upon being subjected to the strain on this occasion, was owing to some concealed defect which inspection would not disclose.

What the particular weakness of this toggle was, cannot be shown as it fell into the water on breaking and no effort was made to pick it up, although a boat was at hand in the water.

That the defect was a concealed one was attempted to be proven by showing that due care was shown in its selection.

The witness Hartnoll who selected the toggle swore that he went down between decks to fetch up the toggle. He says that he examined five or six pieces of wood used for dunnage, and that he selected this as the best and brought it up and used it. He says that it was not dark down there, nor was it broad-daylight; neither dark nor daylight, that it was not broad daylight even on deck, and that the ship’s sides have got dead lights which are like glass windows; it allowed a little light to break in between ship’s decks.

From this evidence the jury may very well have been of the opinion that the claim of having made any examination of this piece of wood before it was used was without foundation, as evidently there was not sufficient light to make any examination between decks at all.

It is true that this witness, upon being recalled, testified that he looked at it on deck before he rigged it, and did not see anything about the stick that led him to change his opinion of it down below; but in view of the extraordinary evidence of this witness as to the light between decks, the jury may not have considered his testimony as the most reliable.

The witness Porter, quartermaster, whom it is claimed examined this toggle before it was used, only saw it being carried along, and says he saw it was a good piece of wood. He made no examination whatever, and could form no judgment as to its fitness for use.

The witness Johnson made no examination of the toggle at all. His testimony was to the effect that a stick of wood, such as was exhibited in court upon the trial, would make a suitable and safe toggle, and the evidence shows that if the piece of wood selected was similar to the one presented in court, claimed to have been taken from the same heap of wood used as dunnage, it was entirely suitable for the purpose, and would have stopped the engine before breaking. _

_ This evidence however established that this piece of wood must have been very weak or it would not have broken, and we have no knowledge as to what had caused this weakness, whether it was a concealed defect which examination would not have disclosed, or whether the wood was rotten, it having been used in the hold of the vessel to keep the cargo out of the water, and which could have been seen upon proper examination.

The defendants have not, therefore, shown such a state of facts as relieved them from the presumption of negligence arising from the breaking of one of the implements used by them in working the ship.

The next question is, did the plaintiff show that she was free from contributory negligence ?

There was nothing to indicate any danger in being upon the deck during this time. No warning of danger was given, and the plaintiff could not be presumed to know that there was danger that this hawser would sweep the decks. If such danger existed, it was the duty of the officers of the ship to have warned the plaintiff, and to have kept the passengers out of the reach of danger. They were allowed to be on the deck—there was nothing to indicate danger to them, and the only warning was to stand away from that line, which conveyed no warning that they were in danger if they were clear of the line.

The plaintiff therefore seems to have shown that she was not guilty of contributing negligence.

The exception to the exclusion of the question as to the relative safety in being in certain parts of the vessel, whether she is at sea or not, was not well taken.

The passengers had been accustomed to be on this part of the vessel during the voyage, and if it was dangerous or improper to be in this part of the vessel while she was being warped into her dock, they should have been excluded from that part of the ship and warned of their danger, which was not done.

The evidence of the subsequent use of the capstan bar as a toggle was entirely competent, in view of the evidence showing that dunnage wood was used as a toggle, and was proper to be so used. The plaintiff had a right to show that there was other and better material within reach, which could have been used and was used.

The claim that the capstan bars were employed to work the capstan, and therefore could not be used as toggles does not seem in any way to aid the defendants’ position, because it is conceded that these bars were not in use, as the capstan was being worked by steam, and the bars were only used when steam was not employed.

There were no errors prejudicial to the defendants in the charge upon the question of damages.

The learned court charged the jury that if they found a verdict for the plaintiff, to award her such sum as in their judgment would compensate her for the pain and suffering' which she undoubtedly underwent and for the inconvenience which she does suffer and must hereafter suffer.

These were the sole elements which the court submitted to the consideration of the jury on the question of damages.

The jury, therefore, could not, unless they disregarded the charge of the court, make any compensation for loss of time, impaired capacity to earn money, cost of cure or pecuniary expenses. No such elements of damages were submitted for their consideration, and no evidence was-given tending to show that any claim for compensation upon these grounds was made upon the trial.

The court having charged the jury what they must con: sider in determining the question of compensation, was not bound to charge that they must not consider other things as to which there is no evidence that any claim was made.

In fact the? charge seems to have been less favorable to the pláintiff than she had a right to demand, as by it elements of damage were excluded which she had the right upon the evidence to have the jury consider.

The court has undoubted power to set aside a verdict where the damages are excessive, and should never hesitate to exercise the same in a proper case; but in the case at bar we do not see any reason for interfering with the verdict upon this ground.

The amount of pain and suffering which the plaintiff endured as the result of this accident, was very great—some of her sufferings being described as “horrible”—and she seems to have been permanently injured and unable to pursue her ordinary avocation, and for the rest of her life subject to suffering and pain, arising from the injuries sustained at this time. Under these circumstances we cannot say that the verdict was excessive.

• The judgment and order appealed from should be affirmed, with costs.

Potter and Lawrence, JJ., concur.


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    In the Matter of the Estate of Louisa S. Mapes, deceased, etc., Resp’t, v. Charles E. Fleming, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Executors and administrators—Proceeding; by executor touching SETTLEMENT OF THE ESTATE—ORDER FOR DELIVERY OP PROPERTY TO executor—Code Civ. Pro., § 2710, et seq.
    There must be reasonable ground to believe that the property belonging to the decedent is withheld, and the order must distinctly specify the property which there is reason to believe the party proceeded against lias in his possession belonging to the estate, and there must be a distinct^adjudication as to title, and no more than the specified property adjudicated upon directed to be given up. Qumre: Whether debts can be collected by proceedings for contempt or the validity of claims or liens upon property-adjudicated upon in this summary manner, without violating express provisions of the constitution.
    Appeal from an order of the surrogate striking out the answer of the appellant claiming a lien on certain property belonging to the estate of the deceased, in his possession.

      Alexander Thain,- for app’lt; Jerome Buck, for resp’t.
   Van Brunt, P. J.

It is clear that the order in the case at bar comes directly within the objections raised to the order made in the case of Tilton v. Ormsby (10 Hun, 7), and affrmed in the court of appeals (70 N. Y., 609).

In the case cited the surrogate found that there was reasonable ground to believe; in the case at bar that there was reason to suspect; in the case cited, the' order distinctly specified the property which there was reason to believe the party proceeded against had in her possession belonging to the estate.

The order in the case at bar is equally specific.

In the case cited the order not only required this specific property to be given up, but all other property belonging to the estate in possession of the party proceeded against. In the case at bar the order requires not only the delivery of the money specified in the order, but all other sums in the defendant’s possession belonging to the estate.

In the case cited it was held that there must be a distinct adjudication as to title, and no more than the specific property adjudicated upon directed to be given up; and because neither of those requirements had been complied with, the order was reversed, which reversal was affirmed by the court of appeals.

As this adjudication requires the reversal of the order before us, it is not necessary to decide what the powers of the surrogate are under section 2110 and the following sections, but it may be well doubted whether debts can be collected by proceedings for contempt or the validity of claims or liens upon property adjudicated upon in this summary manner without violating express provisions of the constitution. Matter of Beebe, 20 Hun, 462.

The order appealed from must be reversed, with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concur.


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    John C. Beatty, Appl’t, v. Daniel Soman et al, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Assignment for the benefit of creditors—Fraudulent preferences— Burden of proof.
    In an action to set aside an assignment as fraudulent by reason of certain preferences covering private debts, the evidence being uncontradicted, that just prior to the failure, one of . the assignors made representations that they owed no private debts, throws upon the defendants the burden of proving that the private debts preferred were lionaficle. The court will be justified in holding these preferences fraudulent where the evidence does not tend' to show their bona fides and casts a suspicion upon their validity.
    Appeal from a judgment setting aside an assignment made by defendant for fraud.

      Marshall P. Stafford, for app’lt; Joseph C. Wolf, for resp’ts.
   Van Brunt, P. J.

The learned counsel for the appellant claims a reversal of the judgment herein, upon the ground that the only witness (referring to McLaughlin) who attempted to give testimony having the slightest tendency to indicate fraud in the assignment is unworthy of belief, because although according to his evidence he understood that the assignment was intended to be a fraud upon creditors, he desired to take part in it.

In assuming that the proof of fraud depended upon McLaughlin’s evidence, testimony of a very important character has been overlooked, which alone would have justified the finding of the learned justice in the court below that the assignment in. question was made with the intent to hinder, delay and defraud creditors.

The assignment was made on or about November 28, 1884, and contained preferences to Abraham Soman, the father of Daniel, one of the defendants, to the amount of $836; to Henrietta Soman, wife of Lewin Soman, one of the defendants, to the amount of $600; to Dela Soman, wife of said Daniel Soman, to the amount of $200; and to Carl Wagner, the sum of $350.

Subsequently schedules were filed showing nominal assets of $4,793,944, actual assets of $4,463.04, and indebtedness including the above preferences of $6,237.21. The assignee appears to have realized only $2,400 from the assets.

John C. Beatty, the plaintiff, testified that one of the Somans, Lewin, he thought, called on him in August preceding the assignment, for the purpose of buying goods, and stated that the firm had $6,000 in their business, and that their indebtedness was confined to the tobacco trade.

Mr. Bunzl testified that on the 5th day of November, 1884, Lewin Soman represented that the firm was worth $2,500 over liabilities.

Mr. Alexander testified that on the 8th of November, 1884, Lewin Soman called to buy goods and stated that they owed money to the trade, nothing private.

Lewin Soman was examined as a witness, and although he denied the representations sworn to by Mr. Beatty, was silent as to those sworn to by Mr. Alexander, and no attempt was made to establish by him that the private debts preferred in the assignment were bona fide.

Upon the direct examination of Daniel Soman, as a witness for the defendants, no attempt was made to establish the bona fides■ of these preferences, No evidence was given to show that any of these parties were creditors of the firm upon the books of the firm. Indeed, when he was upon cross-examination, with the books before him, interrogated as to whether the name of Dela or Henrietta Soman appeared thereon, this course of examination was objected to by the defendants’ counsel, and it may fairly be inferred from this course of procedure that these preferences did not appear upon the books of the firm.

The representation of Lewin Soman to Mr. Alexander, just prior to the failure, that they owed no private debts, which was uncontradicted, threw upon the defendants the burden of proving that the private debts preferred were bona fide.

They do not appear upon the books of the firm so far as we know, and no evidence was offered upon the part of the defendants to show their validity.

It is true that Daniel Soman, upon cross-examination, was interrogated about them, but his evidence is so vague and uncertain, that no reliance can be placed upon it.

The preference to Dela Soman calls for interest from May 1, 1883, in the schedules. When it was loaned and in what amounts, Daniel Soman did not know, but he thought that it was not entered in the books, and finally said that it was loaned in three amounts, twice seventy-five dollars and once fifty dollars.

As to the debt to Henrietta Soman, he was even more indefinite. He said he supposed the loan was made at different dates, he could tell there was one amount -of about §300, the other amounts he could not tell, he had forgotten.

He was entirely unable to state any of the dates or particulars of the different loans constituting the $600, and nowhere states that $600 was actually loaned to his knowledge, and it does not appear that the books of the firm contain any reference to this debt.

His testimony as to the preference to Abraham • Soman was of the same character.

In fact the case contains no evidence whatever tending in the slightest degree to show that these preferences were bona fide, and what evidence there is upon the subject casts more than suspicion upon the validity of these claims.

Thus entirely independent of the evidence of McLaughlin, the learned court below was more than justified in ■holding these preferences fraudulent.

The judgment appealed from must be affirmed with costs.

Daniels and Bartlett, JJ., concur.


author: Daniels, J.

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    Lucy A. Dunham, Resp’t, v. John Townshend et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Evidence—Title to real property—Payment of taxes and assessments.
    The fact that the city authorities had for many years taxed the property as belonging to private owners and had assessed it for local improvements, and that such taxes and assessments had been paid, together with the additional fact that this property had been conveyed and dealt in and used as private property would justify the conclusion that the city had no title to the land in question.
    2. Same—Recitals in an execution—Presumption is to the regularity, of proceedings after a lapse of forty years. '
    The recital in an execution as to the recovery of the judgment on which the sheriff proceeded although evidence against the parties themselves, would not he evidence of the recovery of such judgment as against a ‘ stranger to the instrument in which it is contained. But after the lapse of forty years when it appears that no person has questioned the legality or regularity of the sheriff's proceedings or of his right to sell and convey the property under the execution and that the property has been dealt with by his grantees and others upon the assumption that his deed had conveyed the title, it may well be presumed under these circumstances as an inference of fact that a" judgment has been recovered as mentioned in the execution and that the deed by the sheriff did convey the title to the land in question.
    Motion by defendant for new trial on exceptions ordered to be first heard at the general term.

      John Townshend, defendant, in person; A. B. Tappen, for pPff.
   Daniels, J.

The plaintiff, claiming tobe the owner of an undivided half, brought this action to recover' the possession of that part of five lots of land of twenty-five feet front each, situated on the southerly side of Ninety-ninth street, 100 feet westerly of Second avenue, in the city of New York. Before and at the time when the action was commenced, the other defendants were in the occupancy and possession of the property as lessees or assignees of the defendant, John Townshend. Possession of the property was demanded from the defendants before the- commencement of the action, but it was not surrendered to the plaintiff. The defendant, John Townshend, defended the action, but he did not by his answer claim to be the owner of any interest in the property. It did appear that he had taken two deeds from other parties for an undivided one-sixth of the property, but it was not shown that either of the grantors in the deeds ever acquired or owned any interest in. the land, or had any title whatever to convey to this defendant, and for that reason these deeds had no special operative effect by way of defense in the action.

The real defense which was made was that the plaintiff was not the owner of the interest claimed by her in the property, but that it was owned either by the city of New York as land between high and low water mark, or by a general assignee for the benefit of creditors, or a receiver appointed by the court of chancery. To support the allegation of title in the city, evidence was given on behalf of the defendants tending to prove the fact to be that the land was overflowed by the ordinary full tides. This was denied by the plaintiff, whose testimony tended to prove the contrary, and that the land, with the exception of certain creek bottoms in it, was above the 01 dinary full tide. But as the case was made to appear, the title of the city to the property did not depend upon this fact, for it was shown to have disclaimed title to it, and on the application of a person acting in part on behalf of the plaintiff, it had directed a deed to be executed and delivered conveying the right, title and interest of the city in the property for the benefit of the persons for whom this, individual was acting. It was further proven that the city authorities had for many years taxed this property as belonging to private owners, and had assessed it for local improvements, and that such taxes and assessments had been paid; and this conduct would probably preclude the city from claiming title to this property upon such debatable evidence as was introduced upon the trial of this action, and the additional fact that this property had been conveyed and dealt in and used as private property justified the conclusion adopted at the trial that the city had no title to it as land between high and low water.

The general assignment which was relied upon as including the conveyance of the property to a general assignee for the benefit of creditors, was executed by Charles Henry Hall and his wife, to Daniel P. Hah and Charles Mullett Hall, on the 22d of November, 1839. This was an assignment in the ordinary form for the benefit of the creditors of Charles Henry Hall. And after that, and on or about the 24th of November, 1842, a further assignment was executed by Charles Henry Hall, to a receiver of his property, appointed by the vice-chancellor of the first circuit of the State of New Y ark. But before either of these assignments were made, the sheriff of the county of New York received an execution which he was directed to levy and collect out of the property of the judgment-debtor, Charles Henry Hall. This execution recited the recovery of a judgment against Charles Henry Hall, for the sum of $4,611.40, and directed its collection either out of the personal property of the defendant, or any real estate which he owned on" the 21st of January, 1839, or at anyT time afterwards. Under this execution the sheriff seized and sold the interest of the judgment-debtor, Hall in the land. This sale was made on the 21st day of December, 1840, and it was followed by a deed on the 22d of April, 1842. It was not made to the purchaser of the property, but to Isaac Adriance, who it is recited in the deed had, as the assignee of another judgment-creditor, redeemed the lands as he was entitled to do, under the statute, and upon such redemption and after the expiration of the statutory period, this deed was executed and delivered by the sheriff. And it was under this deed that the plaintiff in the action was held to be entitled to recover the possession of the property. For the grantee in it, after-wards conveyed the property to Lewis A. Sayre, who after-wards with his wife and another, conveyed it to Maurice Wurts. That conveyance was succeeded by another executed by Wurts and others to Oliver D. Dunham, "who was the husband of the plaintiff. He was shown to have died in 1859, leaving the plaintiff and a minor son him surviving. This son died without issue during his minority, leaving the plaintiff, his mother, his sole and only heir. And under this title, the plaintiff was entitled to maintain the action, if the sheriff’s deed as it was proven and read in evidence, conveyed the title of Charles Henry Hall in the property. For his title had been derived under Samson Benson, and it was when he owned, the land a farm connected with the place upon which McGowan and his wife then resided. This portion of the farm consisted of low lands. McGowan cultivated all the tillable lands, and the marshes or salt meadow, he is stated to have used for pasture and to cut grass. The witness who was his son, testified, “He cut the' sedge off the salt meadows, also the salt grass, which is fine grass. My recollection is, my father cut the grass on the salt meadows and pastured cattle there during all the time he lived there. * * * This occupation by my father continued down to 1833. He lived there in 1833, then he rented it out as I understand it. It was sold in 1835. Margaret McGowan, my father’s mother, gave the deed. She was the daughter "off Benson, and executed and delivered the deed of the property to Edward Sandford, which appeared to convey the title, for the occupany of McGowan under Benson was legal evidence that he and his daughter after him were the owners of this property. And Sandford in 1835, by deed conveyed the estate to Charles Henry Hall.”

The objection most strenously urged to the sheriff’s deed as a conveyance of the title, was placed upon the omission to prove and read in evidence the judgment on which the execution is stated to have been issued. For the deed did describe the land in such a manner as to locate and include the property in controversy. Whether the judgment should have been produced in evidence is therefore the important and controlling point arising in the case. The execution issued to the sheriff recited or stated the recovery of the judgment, on which the sheriff proceeded in selling and conveying the property. But this mere recital, although evidence against the parties themselves, would not under the settled principle of law, affect the defendants in this action, for a recital is not evidence against a stranger to the instrument in which it is contained. Hardenburgh v. Lakin, 47 N. Y., 109; French v. Edwards, 13 Wall, 506, 515. Proof of the judgment has been considered to .be essential to the support of a title derived under an execution sale. Jackson v. Roberts, ex’rs, etc., (11 Wend., 422, 441), and such proof has been made part of actions brought to recover on the strength of such a title. Jackson v. Vanderheyden (17 Johns., 167); Jackson v. Sternberg (20 Johns., 49). But these cases arose under the Revised Laws, which did not declare the effect of a conveyance made by the sheriff pursuant to a sale under an execution. They provided only for the course of proceeding and declared the duties and obligations of the sheriff in advertising, selling and conveying the property. 1 Rev. Laws, 500, 505.

When the Revised Statutes were enacted, it was then declared that the conveyance made by the sheriff under its provisions, “shall be valid and effectual to convey all the right, title and interest which was sold by such officer, 3 R. S., (6th ed.), 635, sec. 83. And that would seem to have been intended to give the sheriff’s deed a much greater effect as evidence, than it could have had prior to and in the absence of this enactment. This provision was not considered in Townshend v. Wesson (4 Duer., 342), but the old rule was referred to as applicable without any reference whatever to this statutory addition. It was not, however, important that it should be there considered in the decision of the case, for it appeared as a matter of fact that there was no judgment under which the sale then in controversy had been made. And it was under this state of the law that the sale and conveyance were made through which the plaintiff claims to have derived her title. And the deed certainly could not be valid and effectual to convey the right, title and interest of the debtor, unless it is to be considered as evidence of the authority, as well as of the regularity of the sheriff’s proceedings.

But it is not necessary to dispose of this case wholly upon the fact of this provision of the statute. For the sheriff’s deed was made about forty years before the commencement of this action, and it was not until the year 1876 that the defendant, Townsend, obtained the two quit-claim deeds put in evidence in the case as a portion of his defense. To that time certainly no person appears to have questioned the legality or regularity of the sheriff’s proceedings, or of his right to sell and convey the property under the execution, but the property was dealt with, by his grantee and others, upon the assumption that his deed had conveyed the title to it. And under these circumstances, with this lapse of time in his favor, it may well be presumed as an inference of fact that a judgment had been recovered as it was .mentioned in the execution, and that the deed made by the sheriff did convey the title to this land. A similar course to this was sanctioned sustaining a controverted title in Philips v. Schiffer (7 Lans., 347), and no good reason appears for now rejecting this title.

It has been objected that proof should have been made of the acquisition by.Adriance of the right to the deed to the exclusion of the purchaser at the sheriff’s sale. But what the statute provided for in that respect, was to transpire, as it is stated to have done, wholly between the sheriff and the person acquiring the right to the deed (3 R. S. [6th ed.], 634, §§ 80, 81), and even if he proceeded irregularly, or accepted evidence of the right of the vendee inferior to that provided for by the statute, the only person who could complain of his conduct was the individual who became the purchaser at the sheriff’s sale. Wood v. Morehouse, 45 N. Y., 369, 378, And the case of Moores v. Townshend (3 Cent. Rep., 441), is in no respect inconsistent with this authority. Neither are the others referred to on the part of the defendant.

This title was paramount to that conveyed by the general assignment made by Hall for the benefit of his creditors, and so it was also to every interest which might otherwise have been affected by the conveyance or assignment to the receiver in chancery.

By the evidence given upon the trial the defendants were mere intruders upon this property, having no right, title or interest whatever therein, and even though the plaintiff’s title under the sheriff’s deed may have been to some extent irregular or defective, they had no such relation to the proceeding or the property as entitled them, or either of them, to raise the objection. Jackson v. Hardee, 4 Johns., 202-210.

The title, in any view which may be taken of it, was sufficient against these defendants, and the motion made for a new trial should be denied, and judgment directed on the verdict in favor of the plaintiff.

Brady and Bartlett, J J., concur.


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    The Fall Brook Coal Company, Resp’t, v. Richard Heckscher, Jr., App’lt. Same v. Same.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Contempt—Proceedings allowed by the Code.
    There are two courses to punish for contempt. Either by an order to show cause or by proceedings commenced by an attachment On the return of the attachment, the party proceeded against has a legal right to be heard in the manner provided by the Code.
    Appeal from orders adjudging defendant guilty of contempt.

      J. L. Bishop, for app’lt; S. 0. Lockwood, for resp’t.
   Per Curiam.

The plaintiff had the right to one of two courses in his proceedings to punish the defendant for contempt; either by an order to show cause why he should not be punished for contempt or by proceedings commenced by an attachment. Neither of these courses was pursued by the plaintiff. An order to show cause why the attachment should not issue was granted and upon the hearing of that order to show cause, an attachment was issued, and upon the return of that attachment, without giving the defendant the opportunity to answer provided by the Code, the court issued an order for commitment upon the ground that he had been adjudged guilty of contempt at the time the order for an attachment was issued.

This was error because the Code provides for no such proceeding. If an order to show cause why he should not be punished for contempt had been issued in the first instance, then upon the hearing and decision of that motion, an order for a commitment might have been issued. But this course was not pursued, and upon the return of the attachment, the defendant had the legal right to be heard in the manner provided by the Code.

The order, therefore, for a commitment upon the return of the attachment was irregular and granted without authority, and must be reversed, with ten dollars costs and disbursements.


author: Macomber, J.

text:
    George F. Hecker and John Vincent, Executors and Trustees Under the Last Will and Testament of John McKeon, v. William J. Sexton and others.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Mortgages—Forclosure op—Objections to title—Improper guardians ad litem—Rule 49.
    The objection that the property to be conveyed is less nine inches in frontage than it was represented to be, will be overruled when the notice of sale containing a description of the property used the words, “be the same more or less.” A purchaser at a sale has the right to object to a judicial proceeding prohibited by the general rule of practice. Outside of Rule 49, and through the inherent power of the court to presume an appearance of fairness and justice, the appointment as guardian ad litem of an adverse party will not be tolerated. One who buys at a judicial sale may demand a title free from any reasonable doubt, as a condition precedent to the completion of his purchase. Following Rice v. Barrett, 2 If. Y. State Rep., 4.
    Appeal by Antonio Cuneo, purchaser but not a party to the action, at a sale upon foreclosure, from an order denying his motion to be relieved from the purchase.

      E. Ellery Anderson, for the purchaser; Ira Shafer, for pl’ffs.
   Macomber, J.

One of the grounds for the claim of the appellant is that the amount of land purchased at the sale was nine inches less in front on Baxter street .than it was represented by the referee at the sale to be. The affidavit of the attorney for the- appellant states that on the 14th day of September, 1885, which was two weeks after the sale, and the payment by the appellant of ten per cent of the amount of the bid, he raised this objection before the referee as a reason why his client should not fulfill the terms of the bid. It seems to have been assumed by both parties, as well as by the learned judge at the special term, that there was proof upon the motion to the effect that the land was in fact short, by this number of inches, of the amount which it was represented to be at the sale. This assumption, however, is a mistake of fact, for upon an inspection of the printed case it is found that there is not any allegation whatever that the referee made any representation at the sale concerning the amount of property. On the contrary, the notice of sale, which describes, it is true, the width on Baxter street as thirty-six feet and two inches, contains the following qualification, namely: “Thence southerly along Baxter street aforesaid, formerly Orange street, thirty six feet and two inches to the place of beginning, be the said dimensions more or less,” etc.

The purchaser was not deceived by anything done by the parties at or before the sale, and he could not llave been misled by the description contained in the notice of sale, inasmuch as it indicated that there might be some slight discrepancy in the courses and distances which the description or the premises contained.

The other ground for relief is that John Vincent, one of the plaintiffs, as well as one of the defendants, was appointed in the foreclosure suit guardian ad litem of John B. S. Kein, an infant defendant, when his interest as plaintiff was clearly adverse to the interest of the infant. Mr. Vincent is one of the trustees of the last will and testament of John McKeon, deceased, and is one of the plaintiffs in the action. He is also general guardian of the infant. He was made a party defendant as such general guardian.

His duty as executor and trustee of the will required him to bring an action to foreclose the mortgage against the infant, whose interest in the land consisted of an undivided one-half of the premises. His duty, therefore, as plaintiff against one of the principal defendants, and his duty as guardian ad litem, were wholly inconsistent and incompatible, and could not, with any propriety whatever, be exercised together.

The order making this appointment was doubtless made through inadvertence, the judge being probably misled by the failure of Vincent in his petition for his own appointment as guardian ad litem, to mention the fact that he was the same ohn Vincent mentioned in the title of the action as one of the plaintiffs. Had such fact appeared before the judge, this order doubtless never would have had an existence.

Eule 49 of the supreme court is as follows: “No person shall be appointed guardian ad litem, either on the application of the" infant or otherwise, unless he be the general guardian of such infant, or is fully competent to understand and protect the rights of the infant, and has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party.”

This_ rule was made under and in pursuance of the Code of Civil Procedure, § 17 of which declares that the convention of judges “must establish rules of practice not inconsistent with this act, which shall be binding upon all courts of record, except the court for the trial of impeachments and the court of appeals.”

This court, in my judgment, rendered the appointment .of Mr. Vincent as guardian ad litem in this action something more than a mere irregularity in practice. Even if not absolutely void, so as to render it assailable collaterally in any future judicial proceeding, yet it is so far voidable as to enable any party to the action, or any person interested therein, as, for instance, a purchaser at a foreclosure sale, to raise the objection to it by motion, and to call upon the court to undo the inadvertence which it "fell into through the concealment of one of the parties.

I am of the opinion that any person actually interested in a pecuniary way in having a clear and unassailable judgment record as-the foundation of his title to real estate, has the right to object, if done seasonably, as has been done by this purchaser, to a judicial proceeding prohibited by the general rule of practice. Indeed, outside of rule 49, and through the inherent power of the court to preserve an appearance of fairness and justice in all its proceedings, the appointment as guardian ad litem of an adverse party would not be tolerated, and if done would be undone before the rights of third parties had intervened.

The question is not whether any injury has been wrought in this particular case. There probably has not been, though of that thing no one can be sure, because the infant has not yet been heard. It is to enable him to be heard effectively that his mouth-piece should not be the adverse party.

Who, on reading the judgment roll in this action, and not seeking information outside of its wrapper, would not believe that the court had been deceived into doing a great injustice to the infant defendant ?

One who buys at a judicial sale may demand a title free from any reasonable doubt, as a condition precedent to the completion of his purchase. Rice v. Barrett, 102 N. Y., 162; 2 N. Y. State R., 4.

Suppose the infant to be dispossessed of this land by virtue of this sale. Could the purchaser, with his present knowledge of the facts, successfully resist an action instituted by the infant to protect his legal rights ? I think not. While possibly the court acquired jurisdiction of the infant sufficiently to give a good title to a purchaser who had no knowledge or notice of the facts (but of this I am doubtful), yet this purchaser, with the information acquired by him subsequently to his bid, through the diligence of counsel, could not resist the claim of the infant that he had not yet had his day in court.

The purchaser should be relieved from the purchase, and the referee be required to pay back to him the money already paid in, leaving the plaintiffs to proceed as they may be "advised.

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

Daniels, J., concur; Brady, J., concurs in the result


text:
    George F. Hecker and John Vincent, Executors and Trustees, under the Last Will and Testament of John McKeon, App’lts, v. William J. Sexton, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Mortgages—Forclosure of—Parties defendant—Objection to title.
    Where affidavits disclose the probable fact of the existence of a person who, on the supposition of his death, has not been made a party defendant the purchaser at the sale on raising this objection will be released from the purchase.
    Appeal by the plaintiffs from the order of the special term, relieving the purchaser, Antonio Cuneo, from his bid at foreclosure sale.

      E. Ellery Anderson, for the purchaser; Ira Shafer, for the pl’ffs, app’lts.
   Macomber, J.

The order relieving the respondent Cunee from his purchase made at the sale in foreclosure was based upon the fact that one, Robert Kein, had an interest in the mortgaged property, and was, therefore, a necessary party defendant.

It appears in the affidavits that John Sexton executed the mortgage in suit in 1877; that he died in 1879 intestate, leaving a widow who died shortly afterwards. His only heirs were his son, the defendant, William J. Sexton, and his daughter, Mary E. Kein, the wife of Robert Kein. She died intestate in September, 1880, after her mother’s death, seized of an undivided half of the premises sought to be foreclosed, and leaving surviving her Robert Kein, her husband, and a child John R. S. Kein, her only heir at la w. If these facts be true, as they are shown to be, then Robert Kein had an interest in one-half of the property as a tenant by the urtesy.

The foreclosure proceeded upon the assumption that . Robert Kein was not living. The evidence shows that he disappeared from the state of New York, and had not returned thereto for upwards of seven years. The affidavit, however, of Charles N. Kinney, taken in Grayson county, in the state of Texas, says that in or about the year 1875, he was in the cotton business in New York city where he was well acquainted with Robert Kein, and that “he saw said Robert Kein in Sherman, Texas, either in December, 1883, or sometime subsequent thereto, but does not remember the exact date, and that to his best recollection, said Kein then spoke to deponent of his intention to go to Dallas, San Antonia and Port Worth (all which places are in Texas), that deponent has not received any information that said Kein was not now living.”

This absent and necessary party is, therefore, by position and direct evidence, shown to have been living as late as December, 1883. The plaintiff, therefore, should have made him a party and procured service of process upon him by publication.

This renders it unnecessary to consider the appeal from the order of the judge at special term denying the plaintiff’s motion for resettlement of the order, inasmuch as there appears to be nothing in the affidavits which are not recited in the order which would vary in any respect this conclusion.

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

Daniels and Brady, JJ., concur.


author: Barnard, P. J.

text:
    Jerusha Vaughan, Resp’t, v. The Village of Port Chester, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Assessment illegal—Payment op under protest is not voluntary— Sum paid may be recovered.
    The defendant in excess of its corporate powers imposed an assessment upon the lands of the plaintiff. While this was an apparent existing lien on the land the plaintiff was bound by contract to convey to another a title thereto free and clear from all encumbrances. Under these circumstances, and protesting against the illegality of the assessment, the plaintiff paid the sum assessed to the defendant. Held, that the payment was not a voluntary one and that the sum so paid might be recovered by action.

      Appeal from a judgment of the special term of Westchester county overruling a demurrer to the complaint in this action.

      Wilson Brown, Jr., for resp’t; Mannix Dillon, for app’lt.
   Barnard, P. J.

The money in question was obtained by what is legally known as duress of goods.

The village had worked and graded two of the avenues ©f the village, Haseco and Irving avenues. The corporate power to impose an assessment on the plaintiff’s lands therefore was exceeded, and the assessment attempted to he imposed was illegal and void. The assessment remained an apparent lien on the land, and under this condition of the facts the plaintiff agreed to sell her land free of incumbrance. The purchaser refused to take title and the plaintiff was compelled by the defendant to pay the assessment or to pay damages for breach of covenant to the purchaser. The assessment was paid by the plaintiff to the defendant and received under the plaintiff’s protest, that the tax Was illegal and void and that she would sue to recover the same. The payment was not a voluntary one. “ To constitute a voluntary payment the party paying must have the freedom of exercising his will when he acts under any species of compulsion the payment is not voluntary. If a party has in his possession goods or property belonging to another and refuses to deliver such property to that other unless the latter pays him a sum of monéy which he has no right to receive, and in order to obtain possession of his property he pays that sum, that the money so paid is a payment made by compulsion and may be recovered back.” Scholey v. Mumford, 60 N. Y., 496.

This principle covers the facts in this case. The defendants held a void lien on the plaintiff’s property and used it to obtain, against the plaintiff’s will, the amount thereof or to subject her to a loss of the sale of her property and perhaps to an action upon the covenant for a clear title. Under these circumstances equity will not justify a retention of the money.

Order and judgment affirmed, with costs.

Pratt, J., concurs; Dykman, not sitting.


author: Dykman. J.

text:
    Henry Segelke, App’lt, v. Robert Finan, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Claim: and delivery—What facts sufficient to sustain action for— Dismissal of complaint when erroneous.
    In an action of claim and delivery of personal property, the plaintiff in his complaint stated that he was the owner of the property; that it was wrongfully detained by the defendant, and that the alleged cause of the detention was that the defendant claimed to have purchased the same from some person or persons unknown to the plaintiff. These allegations having been substantiated by proof: Held, that the plaintiff had made a plain case for the recovery of the property, upon which a verdict should have been directed in his favor, and that a dismissal of the complaint was erroneous.
    Appeal from a judgment entered upon the verdict of a jury at the Queens county court upon an appeal from a judgment rendered in favor of the defendant by a justice of the peace.

      Charles Reinhardt, for app’lt; Daniel Brorni, for resp’t.
   Dykman. J.

This is an action of claim.and delivery of personal property having for its object the recovery of 250 glass mineral water siphons, with the name of H. Segelke, the plaintiff, stamped upon the metal heads thereof.

The cause was commenced and tried in a court of a justice of the peace, where a judgment was rendered against the plaintiff, and it was subsequently tried on appeal in the county court of Queen’s county, where the complaint was dismissed at the close of the plaintiff’s testimony.

In this complaint the plaintiff states that he is the owner of the property, that' it is wrongfully detained by the defendant, and that the alleged cause of the detention was that the defendant claimed have purchased the same from some person or persons unknown to the plaintiff.

All this is denied by a general denial of each and every allegation in the complaint contained, and the answer sets up no other defense.

Upon the trial of the cause the plaintiff testified that he caused his siphons to be manufactured with his name and place stamped upon them, and that none others were manufactured by that name. That he saw the defendant and asked him if he had any of his siphons and he said yes, he had plenty of them. Then he said: “I told him I wanted them, they belonged to me; I had bought them and they were my property, and he said I could not get them unless I sent him some others.” He also testified that he never sold any of the siphons wearing his name.

The brother of the plaintiff testified that he counted the bottles of the defendant and that the 250 siphons were the property of the plaintiff; that he demanded them of the defendant and he did not give them up.

In none of these conversations did the defendant advance any claim to the property in any way.

When plaintiff had rested his case he had made a plain case for the recovery of his property, upon which a verdict should have been directed in his favor.

Instead of pursuing that course, however, when the plaintiff rested the defendant’s counsel moved to dismiss the complaint upon the grounds:

First. That the plaintiff had shown no cause of action, and, Second. That it appeared from all the testimony that there was no priority of contract in any shape or form between the defendant and the alleged owner, and the motion was granted and the plaintiff excepted.

The decision to dismiss was plainly erroneous and the judgment should be reversed and a new trial granted in the county court, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P, J.

text:
    Maria L. Hood, as Ex’r, etc., App’lt, v. Frederick Hood, Impl’d, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Pleading—What averments proper in complaint.
    It is not bad pleading to charge a default in general terms and follow it up by an averment that the proper court had so determined by order or judgment.
    2. Same—Joinder oe parties.
    The plaintiff who brought suit as executrix to recover the funds of the estate, recited in her complaint that the action is prosecuted by the plaintiff as the executrix of said will of Andrew Hood as well as on her own behalf and on behalf of all persons interested or claiming to be interested in said estate pursuant to the statute in such case made and provided. Held, there was not an improper joinder of parties.
    Appear from an order and judgment of the Westchester special term sustaining a demurrer to the complaint.
    The action is brought upon an executor’s bond to recover from the principal and surety the penalty thereof. The plaintiff, Maria L. Hood, together with' defendant, Frederick Hood, were executors of the estate of Andrew Hood, deceased. The letters testamentary issued to Frederick Hood were revoked and a decree obtained in 1885 charging him with a certain amount of money which he was directed to pay over “to the executrix.”
    This action was originally commenced by Maria L. Hood individually and on behalf of others interested in the estate. On demurrer to the complaint, as it then stood, the court held that the action was improperly brought, inásmuch as the representative of the estate could alone institute and maintain the action, as the amount to be recovered belonged to the estate.
    Leave having been granted to amend, an amended summons and complaint were served in the name of Maria L. Hood, individually, as before, except only that the executrix was added as co-plaintiff.

      Roe & Macklin, for app’lt; Edward P. Wilder, for resp’t, A. J. Dittenhoefer, of counsel.
   Barnard, P, J.

The complaint contains but a single cause of action. The bond on which the complaint is based is an executor’s bond. The executor and his sureties undertook an obligation that the executor would faithfully execute the trusts of the will and obey the surrogate’s orders in the course of the administration. The complaint avers a failure to do this in general terms and also charges specific instances of neglect. The complaint then goes on to state that the various neglects were presented in due form and upon notice to the executor to the proper surrogate who revoked the letters and subsequently settled the accounts of the executors thus delinquent and gave leave by order, for the plaintiff to prosecute the bond. Under the rule established in Hood v. Hood (85 N. Y., 561); Haight v. Brisbin (100 N. Y., 219), that the sureties of an executor’s bond are not liable until the default of their principal is established before the surrogate, this complaint is sufficient.

It is true it need not have set forth the defaults specifically as a preliminary averment to the surrogate’s order, .still if the order be set forth establishing the default these preliminary averments do no harm.

It is doubtful even if they would be stricken out on motion. It cannot be bad pleading to charge a default in general terms and follow it up by an averment that the proper court had so determined by order or judgment.

There is no improper joinder of parties plaintiff. The plaintiff is now the executor of the estate. • She was and is interested under the will and other legatees under the will are also. The plaintiff represents all parties. The statement that the action is brought on behalf of the estate and of all parties interested in it does not constitute what is technically known as improper joinder of parties. There is but one plaintiff and the demand cannot exceed the amount due on the bond and it is entirely immaterial to the defendant as a matter of pleading where the law sends the money.

The order sustaining the demurrer to the complaint ¡should therefore be reversed and the demurrer be overruled with costs, but with leave to defendant to answer over on payment of costs and costs of the appeal.

Pratt, J., concurs; Dykman, J., not sitting.