text:
    Delos E. Culver, Appellant, v. Daniel de Noyelles and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


source: Caselaw Access Project

author: Gilbert, J.;

license: Public Domain

text:
    William H. Catlin, Respondent, v. Alembert Pond, Winsor B. French and The Adirondack Company, Appellants.

   Order reversed, with ten dollars costs and disbursements, and mot'on granted. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


author: Dykman, J., not sitting.

text:
    William S. Scott v. Charles Morgan.
   Motion denied.

Dykman, J., not sitting.


author: Barnard, P. J.;

text:
    John L. Brownell, Plaintiff and Appellant, v. Elisha Ruckman, Defendant and Respondent.

   Part of order appealed from by defendant affirmed, with costs and disbursements. Part of order appealed from by plaintiff dismissed, without costs. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


author: Dykman, J.

text:
    The Bowery Savings Bank, Plaintiff, v. Robert W. Foster and others, Defendants. Theodore Nichols, Appellant, Henry C. Foster, Respondent.

   Order reversed, with costs and disbursements, and order granted for writ of assistance, with Costs. Opinion by

Dykman, J.


author: Barnard, P. J.

text:
    Catharine Schaeffer, Respondent, v. Antonio Tesoriere, Appellant.

   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


author: Dykman, J.;

text:
    Mary V. Ayers, as Administratrix, Respondent, v. The City of Brooklyn, Appellant, impleaded with others.

   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Gilbert, J., dissenting.


author: Gilbert, J.

text:
    Jemmima C. Larkin, Administratrix, v. William Hardenbrook.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.


author: Gilbert, J;

text:
    In the Matter of the Probate of the Will of George Ross.
   Decree of surrogate affirmed, with costs. Opinion by

Gilbert, J;

dissenting opinion by Barnard, P. J.


text:
    Florence Verdin and Daniel de Noyelles, Respondents, v. The Jersey City and Albany Railway Company, Appellants.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    Francis B. Wallace and John F. Phillips, Respondents, v. Robert H. Berdell, Charles P. Berdell and Lizzie A. Berdell, Appellants.

   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Isaac F. Tysen, Appellant, v. The Gibbs Manufacturing Company and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    George W. Fletcher, Respondent, v. Joseph Foxell and Thomas Jones, Appellants.

   Exceptions overruled and judgment and order denying new trial affirmed, witb costs. Opinion by

Barnard, P. J.


text:
    Ann Eliza Timson, Appellant, v. Edward Goodchild, Respondent.

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

Barnard, P. J.


text:
    Ira B. Tuthill, Appellant, v. James Wilson, Respondent.

   Judgment affirmed, witb costs. Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    Mary Ann Dobiecki v. Thomas Sharpe, Receiver, etc.

   Judgment and order denying new trial affirmed, witb costs. Opinion by

Dykman, J.


text:
    Mary Talip, Respondent, v. Philipp Hans, Appellant.

   Judgment affirmed, witb costs. Opinion by

Gilbert, J.


text:
    John Karst, Respondent, v. Charles McCutchen, Appellant.

   Judgment affirmed, witb costs. Opinion by

Barnard, P. J.


text:
    The Brooklyn Park Commissioners, James S. T. Stranahan and others, Respondents, v. William Vanderveer and Lucy Vanderveer, Appellants.

   Judgment affirmed, witb costs. Opinion by

Gilbert, J.


text:
    William Lowerre, Appellant, v. Maria Butler and Mary Butler, Respondents.

   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    Robert Hall, Respondent, v. Benjamin F. Sherman, Appellant, impleaded with others.
   Judgment affirmed, witb costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Henry Etherington, as Administrator, etc., Respondent, v. The Prospect Park and Coney Island Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J,.

text:
    In the Matter of the Assignment of Henry C. Stone to Hubert Gardiner.
   Order reversed, witb costs and disbursements. Opinion by

Dykman, J,.


text:
    Leatham E. Teaz, Respondent, v. Frances E. Payne, Appellant.

   Judgment affirmed, witb costs. Opinion by

Barnard, P. J.;

Gilbert, J., dissenting.


text:
    Herman L. Thieme, Administrator, etc., Appellant, v. William Gans and others, Respondents.
   Judgment reversed and new trial granted, costs to abide event, unless the parties consent to a modification of the judgment in conformity with opinion, in which case judgment modified .without costs to either party. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J., and Gilbert, J.

text:
    Richard B. Marks and Elester Rose, as Overseers of the Poor, etc., Appellants, v. John Connell, Respondent.

    (No. 1.)
   Judgment of County Court reversed, and that of Justice affirmed, with costs. Opinions by

Barnard, P. J., and Gilbert, J.


text:
    Same v. Same.
    (No. 2.)
   Judgment reversed, and that of Justice affirmed, with costs. Opinion by

Gilbert, J.


text:
    William Riley, Appellant, v. Allen Taylor, Respondent.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    James Henry, Respondent, v. Staten Island Railway Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    William H. Burbank, Respondent, v. Michael Reed and James Chambers, Appellants.

   Order reversed, with ten dollars costs and disbursements. Opinion by

Gilbert, J.;

Barnard, P. J., dissenting.


text:
    The People of the State of New York ex rel. John Mullaney v. Matthew H. Ellis, City Judge, etc.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

dissenting opinion by Barnard, P. J.


text:
    Jane Dockety v. Andrew Miller.
   Judgment affirmed, with costs, no papers having been submitted by appellant by 10th January, 1881, according to order of General Term.


text:
    Robert H. Berdell, Respondent, v. Harriet B. Berdell, Appellant.
   Order affirmed, without costs.

Barnard, P. J., not sitting.


text:
    The Williamsburgh City Fire Insurance Company, Respondent, v. Antoinette L. Gilbert and others, Appellants.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Ambrose S. Murray v. Rorert H. Berdell.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Stephen M. Ostrander, Respondent, v. Paul McArdle, Appellant, impleaded with Clements Trimble.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    Joseph J. Smith, Appellant, v. Theodore F. Cheritree, Respondent.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    David G. Bryant, Respondent, v. Lloyd Stevens and others, Appellants.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Thomas A. Reitz v. Francis J. Reitz.
   Appeal withdrawn.


text:
    Ludovic Bennett, as Executor, etc., Respondent, v. Charles Zust, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    The Board of Education of Union Free School District No. 2, of the Town of New Lots, Appellant, v. William Hickcox, Respondent.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Gilbert, J.


text:
    Matter of Max Hubner.
   Motion denied.


text:
    Devine v. The Tarrytown and Irvington Gas Light Company.
   Motion granted.

Dykman, J., not sitting.


text:
    D. C. Davison v. Oliver Brisborn.
   Motion granted.


text:
    Caroline J. Liegeois v. John McCracken.
   Motion granted.


text:
    Mary S. Kneeland v. Hannah B. Merritt.
   Motion granted.


author: Davis, P. J.:

text:
    THOMAS J. POPE and JAMES E. POPE, Respondents, v. THE TERRE HAUTE CAR AND MANUFACTURING COMPANY, a company incorporated and organized under the Laws of the State of Indiana, Appellant.

      Service of summons upon the president of a foreign corporation, in this State— Code of Civil Procedure, § 1780.
    In this action brought by the plaintiff against the defendant, a foreign corporation, to recover for goods sold and delivered to it, the summons was served upon the defendant’s president in the city of New York, while he was passing through the State, with his family, on his way to a watering place in another State.

      Held, that this was a good service of the summons, under section 1780 of the Code of Civil Procedure, although the president was not in the State upon any business of the corporation or in any official capacity.
    Appeal from an order of the Special Term, denying a motion to set aside the service of the summons in this action.

      Alexander B. Crane and Stephen O. Lockwood, for the defendant, appellant, for the purposes of the motion.

      Niles & Bagley, for the respondents.
   Davis, P. J.:

It is not controverted that the plaintiffs have a cause of action against the defendant, arising upon the sale and delivery of property made by their brokers, nor that the plaintiffs are residents of this State and the defendant a foreign corporation.

Section 1780 of the present Code provides that an action against a foreign corporation may be maintained by a resident of this State for any cause of action. The provision, in this respect, is the same as that of section 427 of the former Code. Section 432 of the present Code, amongst other modes, provides that personal service of the summons upon a foreign corporation may be made by delivering a copy within the State, to the president of such corporation. In this case the summons was served by delivering a copy to the president of the defendant, in the city of New York. It appears that the president was not in the State upon any business of the corporation, or in any official capacity, but was passing through the State, with his family on his way to a watering place in another State. The fact that he was the president of the corporation is conceded, as well as the actual personal service of the summons. The service is good under the Code, although his presence here had no relation whatever to the corporation or to his official duties. Under the provisions of the present Code such a service upon the president of a foreign corporation is a commencement of the action, irrespective of the question whether or not the corporation has property within the State, or whether the cause of action arose therein. Those questions are important under the third subdivision of section 432 only when no designation of a person for service has been made by the corporation, and the service is made upon the cashier, a director, or the managing agent of the corporation.

It is not important to inquire what will be the effect of a judgment recovered upon the service of a summons in the form in which the service in this case was made, as that question does not arise at this stage of the proceedings. It may be that property will be found and attached in this State, or that sufficient property of the corporation will be found and levied upon to satisfy the execution. It is not necessary therefore to anticipate those questions, because under the provisions of the present Code, the service and the manner in which it was made in this case were sufficient to commence the suit.

The contract in this case was made with the defendant by Millard & Combs, who were brokers at St. Louis. The proposition of sale submitted by them in their letter of January 31, 1880, bears sufficient evidence on its face that they were not acting as principals but on behalf of other parties, and the final sale note or memorandum executed by them disclosed their principals. The acceptance of this sale note by the defendant completed the contract between it and the plaintiffs.

The iron was in process of importation and was sold for cash to be delivered in bond, at New Orleans. No place of payment is otherwise specified, and as the delivery was made without payment, it is to be presumed that cash was to be paid within some time established by the usage on such sales. At all events, not having been paid or tendered on delivery, it was payable to the plaintiffs at their place of business which was in the city of New York.

We do not deem it important, in determining this appeal, whether the contract was to be regarded as one made in this State, nor whether it should be held that the defendant’s president came into this State for the transaction of business in making such contract. There was enough, we think, to give a right of action under the laws of this State against a foreign corporation to a resident of this State, in the facts as they appear in the papers before us; and that action has been commenced in the form prescribed by the Code. Those facts, under the present Code, dispose of the motion.

The order must therefore be affirmed, with ten dollars costs and the disbursements of the appeal.

Brady, J., concurred.

Present — Davis, P. J., and Brady, ■ J.

Order affirmed, with ten dollars costs and disbursements.


text:
    THE FIRST NATIONAL BANK OF MEADVILLE, PENNSYLVANIA, Respondent, v. THE FOURTH NATIONAL BANK OF THE CITY OF NEW YORK, Appellant.

      Draft — negligence of agent in collecting it — measure of damages.

    The Crawford County National Bank of Pennsylvania being indebted to the plaintiff drew a draft upon its correspondents in New York city to the order of the plaintiff, and delivered it to him. The defendant to whom it-was sent for collection took the drawee’s check in payment thereof, but did not present the check for payment or certification until the next day after receiving it, when payment thereof was refused, the drawee having failed in- the meantime. Thereafter the draft was duly protested and notice thereof given to the drawer. The drawer of the draft had at the time moneys in the hands of the drawee, and the check would have been paid if presented on the day it was drawn.
    Upon the trial of this action, brought by the plaintiff to recover the damages occasioned by the negligence of the defendant in failing to collect the draft:'

      Held,, that if the delivery of the draft to the plaintiff by the drawer was to be considered as a payment of the indebtedness, the failure of the creditor to collect the same from the drawee, who then had funds of the drawer in his hands, released the drawer from all liability for the debt.
    That if it was delivered to the plaintiff to collect the same, as the agent of the drawer, then the plaintiff was responsible for the acts of its sub-agent, the defendant, and was liable to the drawer for the negligence of the defendant in failing to collect it.
    That in either event the plaintiff was entitled to recover as damages the face of the draft with interest.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    On March 22,1866, the Crawford County National Bank, a corporation located and doing business in the State of Pennsylvania, being indebted to the plaintiff, a national bank located at Meadville, in the same State, delivered to it a draft upon Culver, Penn & Co., bankers and brokers doing business in the city of New York, for $6,000, payable, at sight. The draft, which was sent to the defendant for collection, was received on the morning of March twenty-sixth, and on that day presented for payment and surrendered to the drawees upon receiving their check upon the Third National Bank for the amount thereof. The check was presented to that bank, through the clearing-house, on the next day and payment thereof refused, the drawees having failed in the meantime. If it had been presented on the day it was drawn it would have been paid.
    Upon the first trial a judgment was recovered by the plaintiff which was affirmed by the General Term (16 Hun, 332), but reversed by the Court of Appeals. (77 N. Y., 320.)

      B. II. Bristow, for the appellant.

      G. A. Black, for the respondent.
   Davis, P. J.:

The principal questions in this case were disposed of on the appeal to the Court of Appeals from the former judgment. (77 N. Y., 320.) The case was sent back for a new trial solely upon a question of damages, the court holding, upon the facts as they appeared at that time, that the plaintiffs were entitled to nominal damages only.

The only question that we are at liberty therefore to consider, so far as relates to the right to recover, is whether, upon the present trial, sufficient facts have been shown to entitle the plaintiff to the damages which have been adjudged to it by the learned referee.

There seems to us to be no difficulty upon this question on the findings of the referee. It appears by his second finding of fact that the Crawford County National Bank “ being indebted ” to the plaintiff drew its draft upon Culver, Penn & Co., bankers and brokers doing business in the city of New York, to the order of the plaintiff for $6,000 payable at sight, and delivered the same to the plaintiff. The delivery of the draft by the Crawford County National Bank was, according to well settled authorities, a payment sub modo of its indebtedness to the plaintiff to the amount of the draft. (Smith v. Miller, 43 N. Y., 171; Hill v. Beebe, 13 id., 566; Bradford v. Fox, 38 id., 289; Story on Bills, 419; Turner v. Bank of Fox Lake, 3 Keyes, 425; Burkhalter v. National Bank of Erie, 42 N. Y., 538.) There is no pretense that the drawer had not funds in the hands of the drawees. Nor can there be any question but that the neglect of the defendant, by means of which these funds were lost by the failure of the drawees, is chargeable'upon the plaintiff as between it and the drawer.

As was said by Allen, J., in Smith v. Miller (supra), “A creditor may so deal with negotiable securities received from his debtor for collection, and to be placed to his credit when paid, as to discharge the debtor from all liability whether the securities are in fact paid or not. He may make them his own so as to substitute the parties to the securities his debtors, in place of his original debtor, by his dealings with those parties, as by giving time for payment or by any other act prejudicial to the interests of the debtor. (Southwick v. Sax, 9 Wend., 22; Vernon v. Brown, 2 Shaw, 296.) The same result will follow any neglect or laches of the creditor in obtaining payment of negotiable instruments transferred, from which loss and injury ensues. By receiving the securities and assuming the collection, or, as here, receiving the bill and consenting to present the same for payment, he undertakes to do all that the law requires to be done to obtain payment; and if he fails in the performance of that duty the debtor is discharged. (Camidge v. Allenby, 6 B. & C., 373; Story on Bills, § 109.) laches which would discharge the drawer or indorser of a bill of exchange will as effectually extinguish the debt, for payment of which a bill or other negotiable instrument is transferred. (Story on Bills, supra, and note; id., § 419, and note.) This was decided in Kobbe v. Clark (Selden’s Notes, October, 1853, p. 165). If by the acts or omission of the creditor thus receiving negotiable instruments for collection a loss occurs, it should fall upon him who is the cause of the loss rather than upon the distant and innocent debtor. (Bradford v. Fox, supra.)

If there had been such a finding of fact when the case was before the Court of Appeals as that now made, to wit, that the Crawford County National Bank being indebted to the plaintiff made its draft and delivered the same to the plaintiff, we can conceive of no reason that would have called for a new trial upon the mere question of damages.

No exception was taken by the defendant to this finding, and must assume that it was based upon sufficient evidence given case. As the case now stands it follows that the plaintiff by reason of the neglect of the defendant a loss equal to the amount of the draft and was therefore entitled to a judgment for that amount under the adjudication of the Court of Appeals in this case.

All the other evidence supposed to bear upon the question of the amount of damages becomes quite immaterial when the new element of indebtedness of the Crawford County Bank to the plaintiff, at the time of the making and delivery of the draft, appears.

But we are unable to see why the plaintiff was not entitled to recover the full amount of the draft, in any aspect of the case, under the rulings of the Court of Appeals. If the draft was delivered to the plaintiff by the Crawford County National Bank merely as its agent for collection, it became thereby not only responsible for any negligence which it might itself commit, but also for any that might be committed by the sub-agent which it employed. As between the plaintiff and the Crawford County Bank the negligence of the defendant was chargeable to the plaintiff. The loss which ensued from that negligence, when it appears that the Crawford County Bank had sufficient funds in the hands of its drawee to pay the draft, and that those funds were lost by the neglect of the defendant and the subsequent insolvency of the drawee, is of necessity the full amount of the draft, for that is the measure of the liability of the plaintiff to the Crawford County Bank assuming that the plaintiff was merely the agent of that bank.

Upon the facts found in the former as well as in the present case, that liability became a fixed and absolute one, because the defendant was chargeable with the consequences of the negligence of its own servant which had resulted in the loss of the fund out of which the draft was payable. Under the circumstances of this case the fact that the legal formalities, sufficient to charge the drawer of a draft where liability exists, were taken by the defendant became of no moment. Those ceremonies were utterly idle and useless, for no liability whatever existed on the part of the-Crawford County Bank to the plaintiff when it is shown that the funds of that bank were lost by the negligence of the plaintiff’s agent. According to tho law of this case, as established by the Court of Appeals, it would have been a work not merely of supererogation, but of idle folly for the plaintiff to have attempted by suit to compel the Crawford County Bank, the drawer of the draft, to respond to it for the amount, whether it had been taken upon an indebtedness or merely for the purpose of collection. In oür view, therefore, the evidence introduced for the purpose of showing that the drawer had been legally charged under the laws of Pennsylvania was altogether unnecessary and immaterial.

But assuming that it was necessary, we do not see why it was not proper to prove the fact that a suit had been brought between the plaintiff and the Crawford County Bant, and upon substantially the same facts now found by the learned referee in this case, adjudged by the court of Pennsylvania adversely to the plaintiff. It showed at least that the rights of the drawer and the plaintiff, as between themselves, had been finally settled by the adjudication of a competent tribunal; and whatever doubts there may be as to the right of the plaintiff to prove the law of Pennsylvania by producing the judgment in that action, we do not see any ground for holding that it was a fatal error on the part of the referee to receive the evidence.

We do not consider the effect of the evidence or the propriety of the finding of the referee on the subject of the custom or usage of business in respect of the collection of such drafts, because we consider the materiality of that question to have been, of necessity, disposed of by the Court of Appeals.

f Our examination of this ease leads us to the conclusion that under the law, as settled by the Court of Appeals, the report of the referee and the judgment entered thereon must be affirmed.

Brady, J., concurred.

Present — Davis, P. J., and Brady, J".

Judgment affirmed.


text:
    In the Matter of MAX STEINERT, an Attorney, Appellant.

      Failure of an attorney to pay over money to his client — proceedings to commit him for contempt— the court may shorten the lime prescribed by Bule 30 — The escape of the attorney does not prevent him from moving to vacate an attachment because

    Where upon the return of an order requiring an attorney to show cause why he should not be punished, as for a contempt, because of his failure to pay over to his client moneys collected for him, a reference is ordered, the court may, upon the coming in of the report, appoint a day for the hearing thereon, and direct that an attachment issue against the attorney, returnable upon the day of the hearing for the purpose of securing his presence thereon.
    The court may direct the hearing to be had within a shorter period than that prescribed by General Rule No. 30.
    The fact that the attorney has evaded the service of the attachment and other papers, and neglected to appear on the return day, will not authorize the court to refuse to entertain a motion made by his counsel to set aside the order directing the attachment to issue, on the ground of alleged irregularities in the proceedings.
    Appeal from two orders made at Special Term denying motions to set aside two orders previously made in this matter.

      L. C. Waehner, for the appellant.

      W. C. Clifford & Henry Bischoff, Jr., for John Simmermeyer, the respondent.
   Davis, P. J.:

This was a proceeding against the appellant, an attorney of t-his court, for alleged misconduct in not paying over moneys which he had collected for his client and for improperly withholding the same.

An application was made for an order, upon affidavits, that the attorney show cause why he should not be punished as for a contempt in not paying over such moneys. TJpon the return day of the order to show cause the attorney came in by his counsel and filed a number of affidavits, denying in all respects the allegations upon which the order was obtained. The court thereupon, after hearing counsel, ordered a reference to the Hon. Joseph S. Bosworth to take proof of the facts and report the same with his opinion, to the court.

The parties appeared before the referee and proofs were taken at very considerable length, which he reported with his opinion; the latter finding substantially all the charges against the attorney to have been proved, and in substance, that he had been guilty of several criminal offenses in his efforts to retain the moneys collected by him.

Upon the coming in of this report, application founded thereon was made to the court that an attachment issue against the attorney, returnable at a future day set down for the hearing of said report for the purpose of securing his presence to abide the order of the court, and an order to show cause was also made why the hearing should not be had upon the return day of said attachment, and such order made in the premises as to the court should seem proper. These papers were served on the attorney and counsel who appeared for the appellant, and efforts were made to serve the same upon the appellant, but without success.

Upon the day named in the order for the hearing, the counsel for the respondent appeared, and no one appearing to oppose an order was made by the court confirming the referee’s report, and upon ascertaining the actual loss and injury to the respondent by the misconduct of the attorney, the court made an order to the effect that he be fined the amount of such loss and injury, and that he be committed to jail until the same be paid. An attachment was issued upon the order, but the appellant could not be found; the sheriff’s affidavit on that subject showing his efforts to find him, and in substance, that he had absconded from the State.

Separate motions were made to set aside the order granting the interlocutory attachment and the order upon the final hearing of the motion, upon the ground of alleged irregularities. These motions were both denied by the court. From the opinion given by the judge it would seem that they were both denied upon the ground that the appellant was in contempt for having evaded the process of the court and escaped beyond its jurisdiction.

The reason assigned by the learned judge in his Qpinion was not a sufficient one to justify the denial of the motions. They were not applications for favor, but were motions made for alleged irregularities in granting tbe orders. Both of tbe orders were based on the alleged contempt of the defendant, and his motions were made to set them aside as improperly made because of irregularities. ‘The true rule in such a case as this, is laid down in Brinkley v. Brinkley (47 N. Y., 49), to the effect “ that a party in contempt, and until he is purged of it, will not be permitted to ask for the favor of the court, nor to take any aggressive proceedings against his adversary, but that it is his right to take measures to protect himself, and to make any motion designed to show that the order adjudging him in contempt was erroneous. He may move to discharge the order, though in contempt for not obeying it.”

In Odell v. Hart (1 Molloy, 492), which is one of the cases cited by the court in Brinkley v. Brinkley, it was held that “ a party in contempt may move by counsel to set aside the order against him, by which he is declared to be in contempt, for irregularity in that order, without coming m vineuUs, but for no other purpose without submitting himself to custody.” In several cases in which this court has lately had occasion to pass upon the question the same rule was laid down.

But it does not follow that the orders now appealed from should be reversed because they were made upon erroneous grounds, unless it appears that the motions should have been granted for the alleged irregularities. We have looked into the papers and are satisfied that no irregularity which is now of any serious prejudice to the defendant was committed. The first order sought to be set aside was an interlocutory one granting an attachment because the court upon examination of the report of the referee and his opinion, considered the case to be one requiring that process, in order to secure the presence of the appellant in the future proceedings. We do not think the court was wrong in exercising its power over the attorney in that manner. An attachment could have been issued originally under the statute (2 R. S. [Edmonds’ ed.], 554, § 5). That statute permits proceedings to be instituted either by an order to show cause, or by the issue of an attachment to arrest and bring the party charged with contempt before the court to answer for his misconduct. In cases of this kind the usual course is to proceed with the order to show cause; and that is the better course. After that method of procedure has been taken, and the proofs are before the court, and they disclose such criminal misconduct that the court has good reason to believe that the party against whom the proceedings were taken will evade justice and render nugatory the orders of the court by escaping from its jurisdiction, we see no good reason why the court may not then and upon that state of facts issue its warrant of attachment to compel the party to be present and submit to its orders.

But if that practice be not correct, and if the order of attachment was irregular, it nevertheless has ceased to be of any materiality in the case. The appellant, when arrested thereon, gave bail in accordance with its requirements, and then fled from the jurisdiction of the court. The subsequent proceedings which were regularly taken resulted in the final order, and may be said to have merged the interlocutory attachment, so that it is no longer of any importance whatever in the case; whether set aside or not is a matter of entire indifference, so far as it affects the appellant, and an order setting it aside would be of no practical value to him.

There was, in our opinion, no irregularity in the proceedings which resulted in the final order adjudging him in contempt, and imposing a fine upon him and committing him until it be paid. The order to show cause was duly served on his attorney; and it appears that the appellant himself could not be found to make personal service. The court undoubtedly had the power to make an order shortening the time of hearing in this matter, because the case was not one coming under Bule 30 of the general rules, and it was not necessary to delay for any time for the filing of exceptions, as provided for in that rale. The testimony coming in together with the opinion of the referee thereon, w^fe not taken in an action, or in any such special proceeding as called for such exceptions, but on a mere motion pending at chambers, to be heard on such testimony and opinion, in connection with the affidavits which had already been filed. It was, therefore, to be heard like other motions made in that branch of the court, and was subject only to the review given on appeals from orders thus made. Every objection that the appellant was entitled to make to such testimony and opinion and affidavits was to be urged orally upon the argument of the motion, without his having previously filed written exceptions. It was clearly in the power of the court to make the order shortening the time for the hearing, or, rather, fixing the time for the hearing, and the appellant had all the notice to which he was entitled, and all that under the circumstances could be given him.

. "We see no reason for interfering with that order on the ground of irregularity, and as the previous one granting the interlocutory attachment was merged in the second order, the appellant cannot be prejudiced in anywise by it.

We think the proper course to dispose of the appeals is to affirm the orders made in the court below, with ten dollars costs of one appeal, besides disbursements.

Beady, J., concurred.

Present — Davis, P. J., and Beady, J.

Orders affirmed, with ten dollars costs of one appeal and disbursements.


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    CORNELIUS J. BERGEN, Respondent, v. CHARLES G. PATTERSON, Appellant.

      Discharge in bankruptcy — what debts a/re discharged by — when the debt is not created by the fraud of the bankrupt.

    The plaintiff having incurred certain liabilities for the defendant’s benefit, the latter executed a bill of sale and chattel mortgage of certain personal property to him to secure him against loss therefrom. Thereafter, the defendant having failed to pay the indebtedness for which plaintiff was liable, the plaintiff brought this action to recover the possession of the property covered by the bill of sale and mortgage. The sheriff having been unable to find the whole of the property, the plaintiff procured an order of arrest, under section 179 of the Code of Procedure, upon the ground that the defendant had concealed, removed or disposed of the property with the intent that it should not be found or seized by the sheriff. The plaintiff thereafter recovered a judgment and collected a portion thereof under an execution issued thereon, but never obtained the possession of that portion of the property in respect to which the order of arrest was made.

      Upon a motion made by tbe defendant, under section 1268 of tbe Code of Civil Procedure, to have the judgment canceled on the ground of his subsequent discharge in bankruptcy:

      Held, that the debt upon which the judgment was recovered was not created “by the fraud” of the defendant within the meaning of that term, as used in section 5117 of the United States Revised Statutes, exempting debts so created from the effect of a discharge in bankruptcy, and that the motion should be granted.
    Appeal from order made at Special Term, denying the appellant’s motion that the judgment in this action be canceled and discharged of record.

      A. J. Vanderpoel, for the appellant

      A. N. Weller, for the respondent.
   Davis, P. J.:

This motion was made upon two grounds:

First. That the defendant had been discharged in bankruptcy.

Second. That the judgment had been paid.

As to the second of these grounds, on a careful examination of the voluminous papers contained in the case, we are unable to satisfy ourselves that the judgment has been paid in full. To entitle the appellant to the order sought on this ground, it was his duty to show affirmatively and clearly that the judgment has been wholly paid, because the motion for the discharge on the ground of payment must necessarily be denied if any portion of the judgment remains unsatisfied. He did not ask to have the question of payment sent to a referee where the conflicting statement would perhaps have been settled by proper testimony and the amount unpaid ascertained, but left its determination to depend upon the confused and conflicting affidavits which the case contained. The conclusion of the court below upon that question cannot be disturbed.

The principal question in the case is, whether the appellant was entitled to the order because of his discharge in bankruptcy.

Section 1268 of the Code of Civil Procedure provides that at any time after two years have elapsed since the bankrupt was discharged from his debts, pursuant to the acts of congress relating to bankruptcy, he may apply on proof of his discharge to the court in which judgment was rendered against him for an order directing the judgment to be canceled and discharged of record. The appellant moved under this section. The fact of his discharge was not disputed; but it is claimed by the respondent that the discharge has no effect upon this judgment. That claim is based upon section 5117 of the Revised Statutes of the United States, which is in these words :

“No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy, but the debt may be proved and the dividend thereon shall be a payment on account of such debt.”

The sole question is whether the debt sought to be discharged was “ created by the fraud ” of the bankrupt. The word “ fraud,” as used in this section, is defined by the Supreme Court of the United States to mean “positive fraud, or fraud in fact involving moral turpitude or intentional wrong.” (Neal v. Clark, 5 Otto, 704.) This construction was adopted by the Court of Appeals in Hennequin v. Clews (77 N. Y., 427), as, indeed, it must be, under the authority of Neal v. Clark, by all inferior courts. The judgment in this case was recovered in an action brought to recover possession of personal property. The facts out of which the action arose were briefly these: The plaintiff in the judgment had incurred certain liabilities for the defendant, and as collateral security against such liability the defendant executed to him a bill of sale and a chattel mortgage of the personal property, the possession of which was sought to be recovered in this action. The defendant failed to meet the indebtedness for which the plaintiff had become liable, and afterwards, being entitled to the possession of the goods and chattels described in the mortgage, the plaintiff brought his action to recover such possession. The sheriff was unable to find the whole of the property described in his process, and pending the action upon an affidavit showing, as required by section 179 of the former Code, that a portion of the property had been concealed, removed or disposed of so that it could not be found or taken by the sheriff, with the intent that it should not be found or taken, the plaintiff obtained an order of arrest under which the defendant was arrested and held to bail for $8,000, the supposed value of the property alleged to have been so secreted or disposed of. Upon the consent of the defendant duly accepted by the plaintiff judgment was afterwards entered in the action in the form required by the Code, to wit, that the plaintiff recover possession of the property alleged to have been unjustly detained, or in default of such possession that he recover the value of the same. The value was assessed at $11,000, with $350 damages for detention. Execution was afterwards issued and a part of the judgment collected by levy and sale of property. The possession of that portion of the property, in respect of which the order of arrest was made, was not obtained.

Under this state of facts the question whether the debt was “created by fraud” is certainly a debatable one. The act of congress has in view a fraud which enters into the creation of the debt, and not one subsequently committed that may injuriously affect the plaintiff in his right to collect or enforce the debt.

The debt in this case, for the purposes of this question, must be considered to be the cause of action on which the recovery of the judgment was had. That cause arose upon the refusal or neglect of the defendant to deliver to the plaintiff the possession of the property covered by the bill of sale and chattel mortgage given as collateral security. "What constitutes the wrongful detention mentioned in section 207 of the Code-of Procedure which prescribes what must be shown to entitle the plaintiff to claim the delivery of the property? A refusal or neglect to deliver upon proper demand gave to the plaintiff a right of action either for the value of the goods, if he had chosen to pursue that remedy, or for the recovery of actual possession of the property mortgaged. In either form the cause of action grows out of the wrongful act of the defendant in withholding possession of the property. Su<eh wrongful act is a tort, but it is not necessarily a fraud within the meaning of the act of congress. If it be so every wrongful conversion or trespass affecting personal property is a fraud, and a discharge in bankruptcy cannot be held to extend to any tortious cause of action of that nature. It has often been held that a judgment of a court of law obtained in an action of tort is a debt dischargeable under the bankruptcy act. (Manning v. Keyes, 9 Rhode I., 224; In re Beck, 3 McLean, 317; Cole v. Rich, 37 Texas, 413.) And it seems quite clear, under the principle of the numerous authorities construing the words “ while acting in any fiduciary capacity,” as used in the bankruptcy act, and which hold that it is not enough to show a merely implied fiduciary relation, but that special and declared trusts must be shown to prevent the operation of the discharge (Chapman v. Forsyth, 2 How. [U. S.], 202 ; Neal v. Clark, (supra), that in respect of torts it must also be shown to bring them within the exception of the bankruptcy act, that they involved positive fraud, or fraud in fact, evincing moral turpitude and intentional wrong; or in the words of Church, Oh. J., in Hennequin v. Clews (supra), “ It must be an active, express fraud, and not one implied from an unjustifiable or illegal act.” As in this case the debt, or in other words the judgment recovered in the action, was created solely by the wrongful detention of property, no express or intentional fraud within the meaning of the act can be implied merely from the recovery itself. The complaint alleges no fraud; it merely asserts the title of the plaintiff to the property and his right of possession, and the wrongful detention by the defendant, so that upon the face of the record we are unable to find that degree of fraud which the act of congress requires. Nor does the fact that an order of arrest was obtained after the commencement of the action establish the requisite fraud. That was a subsequent and interlocutory proceeding or process resting upon some act of the defendant in relation to the property, prejudicial to the plaintiff, merely entitling him to a special and additional remedy. The right of action remained the same whether that remedy were taken or not, and the recovery was neither greater nor less because of the remedy having been taken. In short, the subsequent conduct of the defendant in concealing or withholding the property, so that the sheriff could not reach it, was not a fraud which created the debt, although it might have been one which embarrassed or hindered its enforcement. A similar question under our insolvent laws has lately been decided by this court.

The result of these views is that the discharge of the defendant in bankruptcy operated upon the judgment, and that the court below erred in not granting the motion upon that ground.

The order must be reversed, but without costs, and an order entered directing that the judgment be canceled and discharged of record.

Beady, J., concurred.

Present — Davis, P. J., and Beady, J.

Order reversed, without costs; order entered directing that the judgment be canceled and discharged of record.


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    WILLIAM RYLE, Appellant, v. ALBERT FALK, Appellant. BERNARD REILLY, late Sheriff, Respondent.

      Execution against the person — right of the sheriff to receive poundage upon it.

    The defendant in this action having been arrested by the sheriff under an execution against his person, issued upon a judgment recovered against him, the plaintiff served upon the sheriff the following notice: “You are hereby authorized and requested to release and discharge from imprisonment the defendant Albert Falk, in the above entitled action, upon his paying and satisfying all your legal fees, charges and expenses, under and upon the orders of arrest and execntion herein under which the defendant Albert Falk is now in your custody.”

      Eeld, that the sheriff was entitled to his poundage upon the execution, and that the defendant was not entitled to be released from custody until he had paid the same.
    Appeal from an order made at Special Term, taxing poundage in favor of tbe late sheriff Reilly, upon an execution issued against the body of the defendant upon a judgment recovered herein.

      William G. Wilson, for the plaintiff, appellant.

      J. D. Quincy, for the defendant, appellant.

      A. Goodwin, for Bernard Reilly, late sheriff, respondent.
   Davis, P. J.:

The defendant, Albert Falk, was arrested, upon an execution against the body, and held by the late sheriff pursuant to the exigency of the writ. On the expiration of the sheriff’s term his custody was transferred to the incoming sheriff, and he is still held under the execution and arrest. The plaintiff in the action, while the defendant remained in such custody, directed and delivered to the late sheriff and to the present sheriff a paper, entitled in the action, and in the following form:

You are hereby authorized and requested to release and discharge from imprisonment the defendant Albert Falk, in the above entitled action, ujion his paying and satisfying all your legal fees, charges and expenses, under and upon the orders of arrest and execution herein, under which the defendant Albert Falk is now in your custody. ’

Dated New York, May 21, 1880.

It seems to be well settled in this State upon authority that upon the arrest under a body execution the judgment is satisfied so long as the defendant continues in custody under the arrest, and the sheriff is entitled to his poundage on the execution whenever the defendant is discharged by the payment of the judgment, or under the act for the relief of debtors, or by the consent of the plaintiff. (Adams v. Hopkins, 5 Johns., 252; Scott v. Shaw, 13 id., 378; Campbell v. Cothran, 56 N. Y., 279; Cooper v. Bigalow, 1 Cow., 56; Chapman v. Hatt, 11 Wend., 41; Koenig v. Steckel, 58 N. Y., 475.)

In this case the defendant has not been discharged by payment, nor under any legal proceedings; nor has he been discharged at all by the plaintiff’s consent, except upon the condition expressed in the instrument above quoted, to wit, upon his paying and satisfying the sheriff’s legal fees, charges and expenses upon the execution under which he is held in custody.

A sheriff who has taken a defendant in custody, on execution against the person, has incun’ed all the risks and liabilities that, attend the execution of the process in that form. He is ready and willing to perform and is performing his duties in respect of the process, according to its exigency. An absolute discharge of the defendant by satisfaction of the judgment, or by an unqualified direction of the plaintiff, would undoubtedly leave the plaintiff liable to the sheriff for his poundage upon the execution, such poundage being the sheriff’s legal fees. The defendant has no right to demand, therefore, that he is entitled to be relieved from custody without such payment under this conditional discharge.

’•It is, however, insisted that, under the Code, the rules and provisions that govern executions against the body under the former statute have been changed, so that now the sheriff is entitled to no fees, unless the judgment on which the process issued has actually been collected by him. Our examination of the Code leads us to no such conclusion. The change in the form of the execution does not change its substance.

The effect of the arrest of the defendant under such a writ still operates as a satisfaction so long as such custody continues, and the fees of the sheriff and his right to poundage do not seem to have been changed or. affected by the provisions of the Code referred to.

We are therefore of opinion that the taxation of costs by the court below was correct, and that the appellant, is not entitled to his discharge until either he or the plaintiff shall have paid the poundage, as taxed in favor of the sheriff.

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

Beady, J., concurred.

Present — Davis, P. J., and Beady, J.

Order affirmed, with ten dollars costs and disbursements. •


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    JOHN G. SMITH and others, Plaintiffs and Respondents, v. JONATHAN LONGMIRE and others, Defendants, WILLIAM TAYLOR and another, Appellants.

      Attachment — choses in action in the hands of a fraudulent assignee for the benefit of creditors are not subject to.

    Clioses in action in the hands of an assignee for the benefit of creditors cannot be levied upon under an attachment issued in an action brought against the assignor by one of his creditors, even though the assignment was made to defraud the assignor’s creditors.
    Appeal from an order made at Special Term denying a motion made by William Taylor & Oo., attaching creditors, for a reference to determine the priorities of the liens upon the funds in the hands of the receiver appointed by the decree in this action.

      William Blaikie, for Taylor and Brandon, appellants.

      J. J. Adams, for the plaintiffs and respondents.

      Adolph Ascher, for William H. Ricketts, Receiver.
   Davis, P. J.:

The plaintiffs were judgment creditors of the defendant Long-mire, and as such brought this action to set aside an assignment for the benefit of creditors made by Longmire to the defendant Pinkney. Upon the trial of the case a decree was made setting aside the assignment as fraudulent, and appointing a receiver and directing the assignee to turn over the property and the proceeds thereof to such receiver. The assignment to Pinkney was made on the 28th of November, 1819, at or about which time Pinkney took possession of the assigned property. On the ninth of December following, Taylor & Co! commenced an action against Longmire upon an indebtedness to them, and at the same time issued an attachment against the property of Longmire, and on or about that day the attachment was levied by the sheriff upon the books of account, documents, papers, credits and effects of Longmire; and a copy of the warrant with the notice required by law was delivered to Pinkney, the assignee of Longmire. Subsequently the plaintiffs, Smith and others, recovered judgment against Longmire, and after execution returned nulla hona, and in March, 1880, filed their bill against Longmire and the assignee in this action, and obtained a judgment declaring said assignment fraudulent, and vacating and setting the same aside and appointing a receiver as before stated.

The question presented by this case is whether Taylor & Co., as attaching creditors of Longmire, acquired any lien upon or interest in the choses in action, in the hands of the assignee of Longmire, by virtue of their attachment. There was, formerly, upon this question, much conflict of opinion in the courts, and, if the question had not been authoritatively disposed of, we should have been strongly inclined to consider the able argument of the learned counsel for the appellant as satisfactorily establishing the lien of the attaching creditor. This question was before the Court of Appeals in Thurber v. Blanck (50 N. Y., 80), which court held, in effect, that choses of a debtor in the hands of his assignee, under an assignment for the benefit of creditors, could not be attached so as to establish an enforcible lien against the same. That decision was in direct conflict with the decision of the Commission of Appeals in The Mechanics and Traders' Bank v. Dakin (51 N. Y., 519). In that case, on its second appeal (8 Hun, 431), this court had occasion to consider which of these decisions was the controlling law, and it was held that, even in that particular case, this court was bound to consider the rale laid down in Thurber v. Blanck as the controlling one. The decision in Thurber v. Blanck was substantially reiterated in Lynch v. Crary (52 N. Y., 183), and is now, undoubtedly, the law of this State.

The principle upon which the rule of these authorities rests, is that by such an assignment the legal title vests in the assignee, and that the interposition of such legal title prevents the acquirement of a lien in favor of creditors by attachment or execution against the assignor and that no lien can be created except by a judicial determination removing the obstruction, which determination can only be obtained by such creditors as are in position to assail the • validity of the assignment.

With the law thus settled, we are unable to see that the appellants in this case acquired by their attachment any lien upon the choses in action which, or their proceeds, are in the hands of the receiver. Having no lien, they are not entitled to a reference to ascertain any question of priority as between themselves and the respondents.

The order of the court below was, therefore, right, and should be affirmed, with ten dollars costs and disbursements.

Brady, J., concurred in the result.

Present — Davis, P. J., and Beady, J.

Order affirmed, with ten dollars costs and disbursements.


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    THE NATIONAL SHOE AND LEATHER BANK OF THE CITY OF NEW YORK, Respondent, v. MARTIN HERZ, Appellant, Impleaded with IGNATZ ROSENBERG.

      Dissolution of a firm. — a bank, with which it has Icept its deposit, is entitled, to actual notice of it.

    A bank witb which, a firm has for several years kept an account, wherein the firm is credited with the amounts deposited by it, and charged with the amounts withdrawn, is a dealer with the firm, within the meaning of the rule requiring actual notice of the dissolution of a firm to be given to all persons who had previously been dealers with it.
    This is especially so where on the dissolution of the firm (Martin Herz & Co.) Martin Herz retires and by agreement his former partner carries on the business under the former firm name.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      Charles P. Crosby, for the appellant.

      Geo. C. Lay, Jr., for the respondent.
   Davis, P. J.:

This action was brought upon four promissory notes indorsed by the firm of Martin Herz & Company, and discounted by the plaintiff in the months of February and March, 1876. Prior to the 15th day of September, 1875, Martin Herz & Company were a firm doing business in the city of New York as dealers in kid gloves. The firm was composed of Martin Herz and one Ignatz Rosenberg. For several years prior to September 15, 1875, the firm, under its name of Martin Herz & Company, kept a continuous account in the plaintiff’s bank in which their deposits were credited and their checks debited. This account was produced upon the trial and put in evidence but its contents are not stated in the case before us except in general terms. On the 15th of September, 1875, the firm was dissolved, and it was arranged between its members that Rosenberg should continue the business, using the same firm name. ■

Notice of the dissolution was published in two newspapers, one in the city of New York and one in Albany; and a printed notice was deposited in the New York post-office directed to the plaintiff. Evidence was given on the part of the plaintiff tending to show that the notice mailed was not received by the plaintiff, and that the plaintiff had no knowledge of the notice of dissolution advertised in the newspapers, and no notice or knowledge otherwise of such dissolution. On the part of the defendant evidence was given tending to show that the plaintiff had such notice in fact.

The first question made by the appellant is that the firm of Martin Herz & Company were not dealers with the plaintiffs within the meaning of the rule that requires actual notice of the dissolution of the firm to all parties who had previously been dealers with it.

The learned referee has found as a matter of fact that the firm were dealers with the plaintiffs. We see no reason to question the correctness of this finding. The firm opened a bank account with the plaintiff several years before the dissolution. The account was continuous, and occupied several pages of the book produced. It was composed of debits and credits, and although the precise contents are not given, no question being raised at the time, there is no reason to doubt that it was the ordinary bank account .of a depositor consisting of the usual items of' accounts between merchants and the banks in which they deposit. Even if its items were altogether of credits of money and debits of checks still it would be established that the firm were dealers with the bank within the meaning of the rule. The bank, on receiving deposits, became debtors to the firm, and the checks of the firm were drawn and paid in diminution of the indebtedness. Beyond all doubt these acts were dealings between the plaintiff and the firm, and entitled it to actual notice of dissolution, and especially so as to any transaction that was to enter into such account of debit and credit. It appears that no change had been made in the account subsequent to the 15th of September, 1815, and down to and including the times at which the notes on which the action was brought were discounted and the proceeds placed to the credit of the firm. The law is abundantly well settled that such dealers are entitled to hold the several partners of the firm liable for subsequent dealings, unless they have actual notice in some form, of the dissolution of the firm. (Ketcham v. Clark, 6 Johns., 144; Graves v. Merry, 6 Cowen, 701; Vernon v. Manhattan Co., 17 Wend., 524; National Bank v. Norton, 1 Hill, 572; Clapp v. Rogers, 12 N. Y., 287; City of Brooklyn v. McChesney, 20 id., 242; Mechanics' Bank v. Livingston, 33 Barb., 458.)

It is enough to discharge the retiring partner for him to show that knowledge of the dissolution of the firm was in some form brought home to the dealer. But that is a question of fact upon which the alleged partner holds the affirmative and is to satisfy a jury or referee.

We think in a case like the present, where the only individual name in the firm is that of the retiring partner and, by agreement with his co-partner the business is to be carried on by him alone, with leave to use the same firm name, the rule which requires proof that dealers had actual notice of the dissolution should not be subjected to auy relaxation. It became, in this case, purely a question of fact whether notice of the dissolution had been given to the plaintiffs, or in any manner brought to their notice, and upon that subject the evidence was strongly conflicting. The learned referee, in a very careful analysis of the evidence as appears by his opinion came to the conclusion that it was his duty to find on this question adversely to the appellant. We have gone through the evidence aided by the brief of the appellant’s counsel, and our conclusion is that the findings of the referee ought not to be disturbed.

It follows that the judgment must be affirmed.

Brady, J., concurred.

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

Judgment affirmed.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN RYAN, Appellants, v. STEPHEN B. FRENCH and others, Commissioners of Police of the City of New York, Respondents.

      Board of police commissioners of the city of New York — may regulate the salaries of disabled policemen — Bemedy.

    The hoard of police commissioners of the city of New York has power to determine and regulate the compensation which shall he allowed to sick or disabled policemen, who are unable to perform their duties by reason of such disability, and the court will not interfere by mandamus to compel the board to pay a full salary to a policeman, to whom a smaller amount has been allowed, in pursuance of its rules, on the ground that he is unable to discharge the duties of his office.

      Semble. That if the police commissioners had not such power the remedy would be by action and not by mandamus.

    Appeal from an order made at Special Term, denying a motion for a ma/ndamus to compel the payment to the relator of his full salary as a policeman, he having received but one-quarter of such salary in pursuance of a resolution of the board of police commissioners allowing one-quarter of his pay to a policeman for time lost by sickness arising from or during the ordinary discharge of his duty.

      Townsend & Weed, for the relator.

      David J. Dean, for the respondents.
   Davis, P. J.:

The relator asserts an absolute title to be paid the salary attached to the office of policeman because of his appointment to that office, without regard to services rendered. This position cannot be maintained. It was settled in Smith v. The Mayor (37 N. Y., 518) that an office in this country is not property, nor are the prospective fees or salary of an office the property of the incumbent. The right to compensation does not grow out of any contract between the officer and the government, but arises from the rendition of services. (Conner v. The Mayor, 1 Seld., 285; People v. Warner, 7 Hill, 81; S. C., 2 Denio, 272.) If, however, the position of the appellant’s counsel were sound, that fact would be an abundant answer to the application for a mandamus, because the relator would then have a clear and plain right which could be enforced by action, and it is settled that a writ of mandmnus will not be granted in any case where the relator has an adequate remedy by action. (People v. Thompson, 25 Barb., 73; Matter of Shipley v. Mechanics' Bank, 10 Johns., 484; Swift v. The Mayor, 17 Hun, 518; New York Balance Dock Co. v. Mayor, 8 Hun, 247; Maximilian v. The Mayor, 2 id., 263.)

We think there can be no doubt that the board of police commissioners is clothed with power to determine and regulate the compensation which shall be allowed to sick or disabled policemen who are unable to perform their duties by reason of such disability; and the rules adopted by the board, as set forth in the appeal papers in this case, seem to us to be a proper and reasonable exercise of their powers in that behalf. The relator in this case claims that on the 21st of July, 1876, while engaged in making an arrest, he was injured by some person throwing a stone which inflicted a severe blow upon his back. He continued, however, to perform his duties until the 17th of May, 1877. He then became unable to perform any duty until the 1st of September, 1877, when he- resumed his duties, but was again compelled to give them up on the sixteenth of October following; and since that time his inability has increased and he has become, to a great extent paralyzed as he alleges, in consequence of the injury received in July, 1876. Several physicians make affidavit that in their opinion the relator’s present paralysis is the result of the injury received at that time.

On the other hand it appears, from the records of the department, that no complaint or report of the alleged injury was made by the appellant at the station-house, and that no entry thereof was made according to the requirements of the department; and that his sickness between May and September, 1877, was pronounced and reported by the attending surgeon of the police as a chronic catarrh, and that it was not until January, 1878, that the relator claimed that his disease, which had then become incipient paralysis, was the result of the injury in July, 1876.

The case was brought before the board of police surgeons on June 17, 1878, who pronounced the opinion that the relator was suffering from chronic catarrh and paralysis of the lower extremities, but that there was no evidence whatever to show that his paralysis was caused by any direct injury to the spine; and their opinion was decidedly adverse to any such theory. These conflicting facts and opinions show that the ease was one calling for a determination by the board of police commissioners upon the question, whether or not the total disability of the relator was of a kind that required, or would justify, them in paying to him full pay as a member of the police. "We are unable to see that their determination adversely to the appellant’s claim was not fully justified by the facts before them; and as their determination as to the extent of the compensation that should be allowed under the circumstances was one that pertained, as already suggested, to the duties and powers with which they are clothed by statute, we think for the court below to have interfered with it would have been an improper exercise of its discretion.

We are, therefore, of opinion that the case was properly disposed of by the court below and that the order must be affirmed.

Brady, J., concurred.

Present — Davis, P. J., and Brady, J.

Order affirmed.


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    MAXIMILIAN FLEISCHMANN and CHARLES FLEISCHMANN, Survivors, etc., Appellants, v. EMIL STERN, Respondent.

      Representations that a note is a business note — when a pa/rty making them, is estopped from pleading usury as against one receiving the note in payment of an account— right to recover for goods for which such a note was given.

    The complaint in this action alleged, that the respondent, being indebted to the plaintiffs for goods sold, delivered to them a promissory note made by Z. Stern & Oo., and indorsed and guaranteed by the respondent. It then alleged the non-payment and protest of the note and demanded judgment for the amount due thereon. The defense was that the note was made for the accommodation of the respondent and discounted by the plaintiffs at a usurious rate of interest. Upon the trial the court refused to allow the plaintiffs to show, that at the time the note was delivered to them the respondent stated and representated that the note was a business note, given by the makers to him for bills receivable.

      Held, that the court erred in excluding the evidence, as such representation would, if proved to have been made, have estopped the respondent from disputing the validity of the note.
    That in any event the plaintiffs were entitled to recover the value of the goods, sold and delivered to the respondent, for which the note was given.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed at the Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought upon a promissory note made by the firm of Z. Stern & Co. to the order of Emil Stern, who had indorsed the same and guaranteed the payment thereof, upon transferring it to the plaintiffs. Emil Stern alone defended, and succeeded on the trial. A separate judgment was entered in favor of the plaintiffs against the makers of the note, an order of severance having been made.

      C. Bainbridge Smith, for the appellants.

      A. R. Dyett, for the respondent.
   Davis, P. J.:

By the default of the respondent’s co-defendants, and the judgment entered thereupon, and the order of severance pursuant to section 456 of the Code, this action is to be treated as though the respondent had been sued alone. The complaint alleges that the respondent, being indebted to the plaintiffs for goods and merchandise in the sum of about $1,000, delivered to the plaintiffs therefor a promissory note of Z. Stern & Co., a copy of which note is set out in the complaint, and that the respondent thereupon indorsed and guaranteed the payment of the note; that when the note became due it was presented at the place where it was payable and payment duly demanded and refused, and thereupon the note was protested and the respondent duly notified. It then alleged that there was due and owing to the plaintiff on the note the sum of $1,000, and interest from the 16th of January, 1878, and proceeded to demand judgment for the sum of $1,000 with interest. The answer admits, by the absence of denial, the several allegations of the complaint. It sets np as a defense to the note that it was made by Z. Stern & Oo. without any consideration whatever, for the accommodation of the respondent, and that the respondent indorsed and delivered the same upon a usurious agreement, under which the plaintiffs are alleged to have discounted the note at a greater rate than seven per cent per annum, wherefore the respondent insists that the note was usurious and void. On the trial the respondent' having" the affirmative under the pleadings, put in evidence and proved the account of the plaintiffs against him for goods sold and delivered amounting to $941.92, and that the note of Z. Stern & Oo. was discounted by the plaintiffs by the application of the same as a credit upon said account at a discount of nine per cent for interest thereon for the time the note had to run; that the amount of the account was $942.92, and that the proceeds of the note at such discount were $977.75, leaving a balance in favor of the respondent over and above the account of thirty-five dollars and eighty-three cents, for which he was then credited in the books of the plaintiffs, and that subsequently that balance was applied in part payment of another bill of goods sold to him by the plaintiffs.

It was shown that the note was in fact accommodation paper for which the makers received no consideration. On the part of the plaintiffs, evidence was given tending to show that the note was represented by the respondent as business paper given by. the makers to him for bills receivable then delivered by the respondent to them.

At the close of the testimony the court ruled that there was no question of estoppel to be submitted to the jury, the respondent having assented to the direction of a verdict for the plaintiffs for thirty-five dollars and’ eighty-three cents and interest, which was the balance credited to him and subsequently applied as aforesaid. To this ruling the plaintiffs excepted. The plaintiffs asked the court for a direction that they were entitled to a verdict for the amount or value of the goods sold ; and the plaintiffs also asked to go to the jury on the question as to whether the respondent represented to the plaintiffs, at the time the note was discounted, that it was a business note. Both these requests were overruled and due exceptions taken.

The court then directed a verdict for the plaintiffs for thirty-nine dollars and sixteen cents. Afterwards, upon due notice, a motion was made upon the grounds specified in the notice for a new trial upon the minutes of the court. The motion was afterwards heard and denied, and an appeal is taken from such denial.

The court held that there was no room for the application of the doctrine of estoppel in this case, because the existing indebtedness of the plaintiffs could not be considered as an advancement in reliance upon the representations of the respondent. This ruling was based upon Payne v. Burnham (62 N. Y., 69) where the court held that the payment of a part of the purchase money on the usurious sale of a mortgage, which had been paid before any representation as to the character of the mortgage had been made, could not be considered as having been induced by the representations and, therefore, was not affected by the doctrine of estoppel in pais. That case is not however an authority for the .lulling of the court below, for it does not hold that a representation as to the character and validity of a note payable in futuro, which is delivered and received to apply upon a prior indebtedness, and which operates of necessity as a payment sub modo of such indebtedness until the maturity of the note, cannot be an estoppel against the allegation of usury. What the party who makes the representation gains, and induces the other party to part with, is the extension of the time of payment; for it is settled that a party receiving such a paper, though it be usurious, cannot avail himself of that fact to enforce the original indebtedness until after the instrument matures, or until it be repudiated as usurious by its makers or indorsers. Billington v. Wagoner, 33 N. Y., 31, and cases there cited.) The respondent, therefore, in this case, assuming that the representations claimed by the plaintiffs were in fact made, gained, according to these authorities, the absolute right to insist that the original indebtedness to the plaintiffs on the account was extinguished or its payment extended until the note should become due and be dishonored; and having secured to himself and enjoyed the benefits which were according to the authorities a valuable consideration, it is difficult to see why the doctrine of estoppel ought not to prevent him from asserting the falsity of the representations by which he accomplished that purpose.

But, whether this be so or not, we think the case was clearly one in which upon the facts before the court the plaintiff was entitled to recover the amount of his account for goods sold and delivered. He had set out the indebtedness upon the account in his complaint, and the facts in respect of the giving of the note for that indebtedness, and the non-payment of the note at its maturity, and he demanded judgment for a sum about the same as the amount stated in the complaint; and the respondent, in making his alleged defense, established the fact that such an account actually existed and was owing, and that the note was delivered and applied upon the account, and other facts upon which the court held that the note was usurious and void. There was enough therefore before the court, assuming that the rulings were right in the exclusion of the estoppel, to have justified and required the court to direct a verdict for the amount of the account. Ve think the cases go fully far enough to uphold such a ruling, and, as the action had by the severance become one solely between the plaintiffs and this defendant, who was the original debtor, there was no difficulty in our judgment if an amendment of the complaint were deemed necessary, to have directed it upon the spot, so that the plaintiffs could recover, upon the averments and proofs, what they clearly were entitled to receive from the defendant, to wit, the amount of their account. The cases on this subject are numerous and would, in our judgment, have upheld such a ruling upon the part of the court. (Farm. and Mech. Bk. v. Joslyn, 37 N. Y., 353; Gerwig v. Sitterly, 56 id., 214; Jagger Iron. Co. v. Walker, 76 id., 521; Patterson v. Birdsall, 64 id., 294; Cook v. Barnes, 36 id., 520; Winsted Bank v. Webb, 39 id., 325; Hill v. Beebe, 13 id., 556; Conlan v. Wood, 6 Weekly Dig., 379; Rice v. Welling, 5 Wend., 595, 597.)

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

Brady, J., concurred.

Davis, P. J., and Brady, J., concurred.

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


author: Barrett, J. :

text:
    FRANCISCO A. R. SANABRIA and JONAS B. BEVILQUA, Plantiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment — court will not take judicial notice of foreign coins — what objections to an indictment may he taken after verdict and judgment.

    The plaintiff in error was convicted of forgery in the third degree in attempting to forge an instrument purporting to be a pecuniary obligation of the Empire of Brazil. The instrument which was set forth in the indictment in the Portuguese language, with an English translation, states that “ the national treasury will pay to bearer this quantity of twenty mil-reis, value received.”

      Held, that as the mil-reis was not money of this country, and as the court could not take judicial notice that .it was a coin at all, it did not appear that the instrument involved any pecuniary demand or obligation upon the part of the Empire of Brazil, and that the indictment was insufficient.

      Held, further, that the objection might be taken after verdict and judgment thereon.
    Writ of error to tbe Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiffs in error of an attempt to commit forgery in the third degree.

      William F. Howe, for the plaintiffs in error.

      Daniel G. Rollins, for the defendants in error.
   Barrett, J. :

The plaintiffs in error were convicted of an attempt to commit the crime of forgery in the third degree. The indictment proceeds upon the theory that the instrument set out therein purports to be a pecuniary obligation of the Empire of Brazil. (3 R. S. [Banks’ 6th ed.], page 944, sec. 34, sub. 2.) Such instrument was in the Portuguese language, and was set out according to its tenor, together with an English translation, which is in the following words:

“ Empire of Brazil. The national treasury will pay to bearer this quantity of twenty mil-reis, value received.

“LINO GLZ LUZ MIZ.”

The objection is taken upon behalf of the plaintiffs in error that the instrument, as thus set out, does not show any value known to our laws.

A mil-reis is not money of this country. We cannot know judicially that it is a coin at all, nor consequently that the promise involves any pecuniary demand or obligation upon the part of the Empire of Brazil. Like some other foreign words, the term milreis may be occasionally used in our language. But it is not a term therein. By referring to the various works cited by the learned district attorney, we can doubtless be fully enlightened as to the term. But the prisoners were entitled to be thus informed upon the face of the indictment. We think the objection well taken.

It is urged that the objection comes too late after verdict and judgment, and we are referred in support of this position to Warshaner's Case (1 Moody’s C. C., 466). In that case, seven of the judges were of opinion that the statement that the notes were for the payment of money, to wit, five florins, without showing what money florins were, was insufficient. But the defect was considered to be cured by the 7 George IV (cap. 64, § 21), the offense being described in the words of the statute. The offense in that case was not the forging or attempting to forge a written instrument, but the having in possession, knowingly and without authority or lawful excuse, of two certain plates upon which were engraved, in the Polish language, a promissory note for the payment of money of a foreign prince. This of itself was made a felony by 11 George IV and 1 William IV (cap. 66, § 19). The pleader charged the felonious possession of the plate upon which the promissory note, purporting to be a promissory note for payment of money of a certain foreign prince,” was engraved. The statute was strictly followed, and consequently (7 George IV, cap. 64, § 21) was applicable. This latter section provides that “ where the offense charged has been created by any statute, the indictment shall, after verdict, be held sufficient if it describe the offense in the words of the statute.”

We, therefore, deem this case important only in the expression of opinion as to the insufficiency of the indictment befoi’e the verdict.

Nor do we think that the objection is met by the statutory provision that all writs, process, proceedings and records in any court •within this State shall be in the English language (except that the proper and known names of process and technical words may be expressed in the language herétofore, and now commonly used”). (3 R. S. [6th ed.], 439, § 23.) This refers to technical words used in legal proceedings. There is no such technical word known to the law as mil-reis. But the question is not at all as to a technical legal term. It is as to the sufficiency of the indictment in matter of substance; that is, as to the averment of an essential fact.

It is unnecessary to consider the other questions presented, as we feel constrained upon this single point to direct a reversal of the judgment, and the discharge of the plaintiffs in error.

Beady, J., concurred.

Present — Davis, P. J., Beady and Baeeett, J. J.

Judgment reversed. Plaintiffs in error discharged.


author: Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE COMMISSIONERS OF PUBLIC CHARITIES AND CORRECTIONS, Respondents, v. GEORGE H. BARTHOLF, Appellant.

      Marriage — what evidence is sufficient to establish, one — A wife is a competent witness in proceedings to compel her husband to support her.

    In proceedings to compel a husband to provide for the support of his wife, whom he had threatened to abandon, the woman testified that she had been married to him for eight years ; that during that time he had lived with her, introduced her to his relatives and acquaintances, and recognized her as his wife. Upon cross-examination she testified she was not married by any person, but that the defendant had always acknowledged her as his wife, and that they had always lived together as husband and wife.

      Held, that the evidence was sufficient to establish a marriage in fact.

      Held, further, that the wife was competent witness to prove the fact of marriage.

      Certiorari to the Court of Special Sessions of the county of New York, to review its decision compelling the relator to provide for the support of his wife.

      A. H. Purdy, for the appellant.

      William A. Boyd, for the relators.
   Daniels, J.:

The defendant was arrested upon a complaint made against him/ as a disorderly person, in support of which it was stated that he threatened to abandon, and had abandoned, his wife without adequate support, leaving her in danger of becoming a burden upon the public. Upon a hearing before the justice, and on the appeal taken to the Special Sessions, it was determined that the complaint had been sustained by the evidence, and an order was made requiring the defendant to pay the sum of four dollars weekly for the support of the complainant. This order is resisted as unauthorized for the sole reason that the evidence did not show that the complainant was in fact the defendant’s wife. That was a circumstance to be established in support of the proceedings before such an order could be made against him. It appeared in the ■ examination of the complainant that she never had been formally married to him, but in her sworn complaint she stated it as a fact that she had been married to him for eight years, and it appeared that he had during that time lived with her and introduced her to his relatives and acquaintances, and recognized her as his wife. She was asked upon her cross-examination by whom she was married, and she answered that she was not married by any one, but that the defendant had always acknowledged her. as his wife, and that they had always lived together as husband and wife. No evidence was given controverting the truth of these statements, and they must be assumed to have been correctly made, as that was done in the proceedings before the justice.

The point presented, therefore, is whether assuming that to be the case, a marriage between the complainant and the defendant was established. As the law has for many years existed in this State, it is not necessary that any formal, or official ceremony shall be performed to constitute a marriage. Marriage, on the contrary, is regarded simply as a civil contract which may be entered into by competent parties in the same manner as any other agreement may be made.

It does not appeal’ from the evidence which was given that these two persons formally treated with each other upon the subject and consented in words to become husband and wife, but that they did so in substance may be inferred from the statement made by her that she was married to him, and that she had lived with him and been acknowledged, introduced and treated as his wife. This evidence warrants the conclusion that they had lived together from the beginning upon the understanding that their relations should be, and were, that of husband and wife, and though that was not plainly expressed in words, the effect must be the same, because it was indicated to have been the intention of the parties. It is not necessary to consider the point which has been urged, that in these proceedings a marriage in fact must be shown, for the reason that the evidence directly tends to prove that these parties did, by their own acts, establish their relations to be that of husband and wife. That was a marriage in fact under the authorities as they exist in this State upon this subject. (Cheney v. Arnold, 15 N. Y., 345; Hayes v. People, 25 id., 390; Bissell v. Bissell, 55 Barb., 325; O'Gara v. Eisenlohr, 38 N. Y., 296; Clayton v. Wardell, 4 Comst., 230.) And the complainant was a competent witness to prove that the fact was as she alleged it to be. (Van Tuyl v. Van Tuyl, 57 Barb., 235.)

And in effect she has also been made so by the statute providing for these proceedings. As this objection cannot be sustained, and no other has been urged against the regularity of the determination made, it follows that the order should be affirmed.

Davis, P. J., and Brady, J., concurred.

Order affirmed.


text:
    FREDERICK A. BLOSSOM, Appellant, v. EMMA A. HATFIELD and others, Respondents.

      Action by a judgment areditor against the heirs-at-law of the debtor — what must be shown to maintain it — 3 S. 8. (6th ed.) 736, § 33.
    In an action by a judgment creditor of a deceased person to secure payment of tbe judgment from real estate which descended to the heirs-at-law, it is sufficient to allege and prove that the personal assets of the deceased were not sufficient to pay and discharge the debt, and it is not necessary to show the inability of the creditor to collect the same, by proceedings at law or before the surrogate, from the personal representatives, next of kin or legatees of the deceased.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action at the Special Term.

      A. J. Perry, for the appellant.

      Pastus S. Ransom, for the respondents Emma A. Hatfield, and Allien and Schmidt.
   Daniels, J.:

This action was brought to recover the amount unpaid upon judgments obtained against Theodore B. Hatfield in his lifetime. The defendants were alleged to have acquired real estate from him by descent which should be applied to the payment of his debts. It was alleged in the complaint that letters of administration had been taken out upon his estate more than three years before the commencement of this suit, and that he died leaving no personal assets, or that such as were left by him were insufficient to pay his debts, or to pay or discharge the judgments forming the foundation of the plaintiff’s demand.

No proof was given upon the trial, but the complaint was dismissed because it was not proposed to show, that proceedings had been taken against the administrator for the collection of these debts. But when it is proposed to be shown that the personal assets of the deceased were not sufficient to pay or discharge the demands relied upon, the statute does not appear to require that the additional circumstance shall also be established that, by proceedings before the Surrogates’ Court and at law, the creditor has been unable to collect such debt or some part thereof from the personal representatives of the deceased, or from his next of kin or legatees. (3 R. S. [5th ed.], 750, § 33; Laws 1859, chap. 110.) The statue plainly contemplates two contingencies, in either of which a liability for the debts of the deceased may he established; the first is the fact of the personal assets left by him being insufficient to satisfy his debts, and the other the inability to collect them by means of proceedings before the surrogate, or from the next of kin or legatees.

The language made use of is reasonably free from doubt and will not justify the conclusion that it was intended that the creditor should show that he had been unable to collect his debt, in addition to the circumstance that the deceased either left no personal assets to be administered, or that they were not sufficient to pay and discharge his debts, and that has been the construction which has in all instances been placed upon its terms. In Roe v. Swezey (10 Barb., 247) the plaintiff failed because neither an executor or administrator of the estate had at any time been appointed. In Butts v. Genung (5 Paige, 254) it was conceded that either the fact that the personal estate of the decedent was not sufficient to pay or discharge his debts, or that, after due proceedings before the surrogate or at law, the complainant had been unable to collect his debt would be sufficient to entitle him to maintain his action. (Id., 259.) The same point was similarly disposed of in Gere v. Clarke (6 Hill, 350-352). (Wilber v. Collier, 3 Barb. Ch., 427; Wambaugh v. Gates, 11 Paige, 505.) In the last case it was stated that to entitle a creditor to a decree against the heirs or devisees he must show, by his bill, either that the personal estate was not sufficient, originally, to pay the debts, or that such creditor had exhausted his remedy against the personal representative without being able to obtain satisfaction of his debt. Id., 515, and the case of Mersereau v. Ryerss (3 Comst., 261) is very plainly to the same effect. In Selover v. Coe (63 N. Y., 438) the same view of the statute appears to have been taken. The case of Armstrong v. Wing (10 Hun, 520) is not opposed to this construction, for the plaintiff there failed to bring himself within either of the alternatives prescribed by the statute, as he alleged that the ancestor had left personal estate, wbicli had been received by the defendant as his next of kin. While the statute was there considered as having provided for two distinct grounds upon which debts of this nature might be recovered from the heirs or devisees of the deceased, neither was established in the plaintiff’s favor, and for that reason his action was dismissed.

These authorities are all in one direction, and they combine in sustaining the plaintiff’s right to recover in this action upon the facts which, by the opening of his counsel, it was proposed to prove.

The direction dismissing the plaintiff’s complaint cannot be sustained, and the judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Beady, J., concurred.

Judgment reversed, new trial ordered, with costs to abide event.