author: D aniels, J.:

text:
    GEORGE ROSS, Appellant, v. LUCY M. BOARDMAN, Respondent.

      Action for a strict foreclosure — when it may he maintained — when an accounting of the rents amd profits received Try the mortgagee should he ordered.

    The plaintiff’s grantor purchased, in 1808, certain premises, at a sale under a decree in an action brought to foreclose two mortgages thereon, given by the defendant and her husband upon property belonging to the husband, to which action the defendant had not been made a party. The amount realized upon the sale was more than sufficient to pay the amount due upon the two mortgages, together with the expenses of the proceedings. The holder orf a third mortgage, given by tbe defendant and her husband, was made a party to the action.
    .In this action, brought by the plaintiff for a strict foreclosure of the two mortgages as against the defendant, Held, that the purchaser at the sale, and the plaintiff as his grantee, acquired the interest of the husband in the premises released from the lien of the third mortgage, and also so much of the two mortgages as remained unforeclosed.
    That the premises were incumbered by the defendant’s contingent dower interest therein, which interest, however, was subject to the two mortgages, which in respect thereto were unforeclosed and were held by the plaintiff.
    That as the purchaser, and the plaintiff, as his grantee, had been for years in the possession and enjoyment of the property and the receipt of its rents and profits, an accounting should be had to determine the amount which the defendant should be required to pay to redeem and protect her interest in the premises.
    That the judgment should provide that upon her failure to pay the same within the time therein prescribed, all her interest in the property should be extinguished.
    That the question as to whether costs should be awarded for or against the plaintiff, should be reserved' until the coming in of the referee’s report.
    Appeal from an interlocutory judgment directing an accounting entered herein, and from an order denying a motion for a new trial, made pursuant to section 1001 of the Code of Civil Procedure.
    The action was brought to procure the strict foreclosure of two mortgages executed by the defendant and her husband to one James Meinell. The mortgages were foreclosed, and a sale had in 1863, but the defendant had not been made a party thereto.
    The court held that the foreclosure proceedings, so far as respects the defendant, Lucy M. Boardman, were altogether void and a nullity, and ordered an interlocutory judgment to be entered in her favor against the plaintiff, declaring that the relief demanded in the said complaint be denied, with costs of this action to be paid by the plaintiff to the defendant, and directing a reference to take evidence as to the rents and profits of the said mortgaged premises, and to state an account to the court, to the end that a final judgment might be made enabling the defendant (by virtue of her inchoate right of dower) to redeem the mortgaged premises from the lien and effect of the said mortgages, upon such terms and conditions as might hereafter be determined by this court to be just and equitable in the premises.

      Richard O’ Gormcm, for the appellant.

      Albert Matthews, for the respondent.
   D aniels, J.:

The mortgages were executed by the defendant and her husband, upon property owned by him, to secure, together, the sum of $15,000. One was given on or about June 27,1860, and the other on January 29, 1862. After they became due, the mortgagee and holder of both mortgages commenced an action for their foreclosure.

This action proceeded to judgment, under which a sale was made •of the mortgaged property to a person named Powell. He continued to own the property from the time of this purchase in 1863 until 1869, when he conveyed it to the plaintiff in this action.

The defendant in this suit was not made a party to that action, •and for that reason it has been brought to obtain a strict foreclosure of her interest. At the sale máde under the judgment .the property brought the sum of $17,775, which was more than was Required to pay the amount due upon the two mortgages, together with the expenses of the proceedings. The effect of the omission to make the defendant a party to the first foreclosure suit, was to leave her contingent right of dower still a substantial incumbrance upon the property. It was a subsisting and valuable interest, which could only be discharged or extinguished by a release of it under the statute, or a proper judgment, and no such judgment could have been or was recovered in the foreclosure suit, as she was not made a party to it. The effect of the omission was to leave her interest in the property substantially the same as though no action had been prosecuted for the foreclosure of the mortgages. This was held to be the law’applicable to such a state of facts in Smith v. Gardner (42 Barb., 356), Peabody v. Roberts (47 Id., 92), Mills v. Van Voorhies (20 N. Y., 412), Simar v. Canaday (53 Id., 298-303), where in general terms it was held, that a wife who executes -a mortgage jointly with her husband is nevertheless entitled to •dower in the equity of redemption of which her husband is seized, notwithstanding the mortgage, which right is not affected in equity unless she is made a party to the foreclosure. If .omitted, she can at any time redeem, notwithstanding a decree and sale in the foreclosure suit. It is for the purpose of extinguishing this right of the defendant in the property that the present action, for a strict foreclosure of the mortgages in favor of the plaintiff, has been instituted, and the fact that a larger amount was realized upon the sale of the property than was necessary to pay what was then due upon, the mortgages, will not prevent him from maintaining the action.. For, by the terms of the statute declaring the effect of a foreclosure by action, the deed given upon the sale was attended with the effect of a conveyance executed by both the mortgagor and mortgagee of the property. (3 R. S., 5 ed., 273, § 88.) The result of this provision was to render the deed, given to the purchaser at the sale, a conveyance of the interest of the husband in the property released from a third mortgage given by the same parties, and also to transfer so much of the two mortgages, as. remained unforeclosed by the judgment under which the sale was made, to the purchaser at that sale.

Substantially he acquired the title to the property, incumbered by this contingent dower interest, and an assignment of the mortgages so far as they remained unforeelosed, upon this outstanding interest. That such was the effect of the judgment and sale was substantially what was held in Robinson v. Ryan (25 N. Y., 320). It is true, that was a foreclosure by advertisement; but, under the terms of the statute already referred to there seems to be no good reason on which this case, in that respect, can be distinguished from that one. When the purchaser at the foreclosure sale afterwards conveyed the property to the plaintiff in this case, he by that conveyance transferred to him his title, together with this interest in the unextinguished mortgages, and for that reason he had such a title to the incumbrances as entitled him to maintain an action for their strict foreclosure, and he was not precluded from doing so, because the amount realized from the sale under the judgment, exceeded that which was due upon the mortgages. For that amount was paid not only for the title itself, but in part also it formed a consideration for the transfer of these two mortgages so far as they had not been at that time foreclosed. Under such circumstances the settled rule seems to be that the purchaser* or his subsequent grantee, may maintain an action of this description, for the purpose of completing his title by securing a strict foreclosure of the incumbrances, or their redemption by the person whose interest still subsists in the property. (Benedict v. Gilman, 4 Paige, 58.) This subject was considered in Bolles v. Duff (43 N. Y., 469, 474). In that case it was stated that strict foreclosures are now rarely pursued or allowed in this State, except in cases where a foreclosure has once been had and the premises sold, but some judgment-creditor, or persons similarly situated, not having been made a party, has a right to redeem. As to him a strict foreclosure is proper. The facts shown by the plaintiff npon the trial of this action brought it plainly within this principle, and for that reason the relief demanded by him should not have been denied, ■but judgment should have been directed to that extent in his favor, and the effect of that would have been that the defendant’s interest in-the property would be extinguished at the expiration of the time designated for the purpose of enabling her to redeem, unless the amount required for the protection of her interest should be paid. What that amount might be, did not, and could not, appear in the case, for the reason that the purchaser at the foreclosure sale, and the plaintiff as his grantee, had been for years in the possession and enjoyment of the property and the receipt of its rents and profits. For those they were both legally and equitably liable to account, and the amount received from that source and applicable for that- purpose, should be first' deducted from the mortgage debts. The practice upon this subject was indicated in the case of Benedict v. Gilman, already cited, and the principles upon which the accounting should be had, were then substantially settled. The same subject was considered in the same manner in Hubbell v. Moulson (53 N. Y., 225, 228, 229), and the reference ordered in this case appears to have been properly adapted to that end. The defendant could redeem her interest by paying to the plaintiff whatever should prove .to be the proportionate part of the mortgage debts which her interest ought to contribute, but the amount required for that purpose can in no way be ascertained, without such an accounting as was directed in this case The judgment, so far as it provided for a Fearing oif that nature, was'in conformity with these authorities, and it should for that reason be sustained. As judgment should not have been denied to the plaintiff, but a strict foreclosure in his favor should have been directed, he could not properly be charged with the costs of the action. Who may be entitled to costs in the case, whether the plaintiff, or the defendant, or neither, can only be equitably ascertained when the result of the accounting shall become known and final judgment be directed in the action. In this respect, therefore, the judgment should also be modified and costs should be reserved until the final determination of the action. With these two modifications the direction given in the case appears to have been proper. It has been claimed, on the part of the plaintiff, that proof of the third mortgage should have been received upon the trial, but that mortgage formed no part of the foreclosure proceedings in the first action, and certainly no interest in it was transferred to the purchaser under the judgment, or to the plaintiff in this case. It was extinguished as a lien on the property, because the holder was made a party to the first action, but as it formed no part of the title or interest which was sold, the plaintiff, acquired no right to rely upon it as a basis of his right to relief in this case. So far as it may not have been fully paid, the holder of it may. still be entitled to foreclose it against the defendant’s contingent interest in this property. If its existence and the balance still remaining unpaid on it shall have any pertinency to the inquiry, or the investigation, required to be made by the referee, proof of these facts will undoubtedly bo received; but the circumstance that they were rejected upon the trial, and the complaint was not allowed to be amended, so as to include a statement of them, can have nothing to do with the disposition which should be made of this case at the present time. The judgment should so far be modified, as to direct a strict foreclosure of the mortgages against the defendant, unless she shall redeem her contingent interest in the property, by paying the amount whicli may be found necessary for that purpose on the confirmation of the referee’s report, and within such a period of time as may then be designated by the court; and so much of the judgment as provides for the recovery’ of costs against the plaintiff should be reversed, and as so modified the judgment already in the case should be affirmed.

Brady, P. J., and Barrett, J., concurred.

Judgment modified as directed in opinion by Daniels, J.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY C. OHLEN, Appellant, v. THE NEW YORK, LAKE ERIE & WESTERN RAILROAD COMPANY and others, Respondent.

      Common carrier — the remedy of a person, aggrieved by its refusal to transport freight, is by an action at law, and not by.mandamus — measure of damages in action.

    Where a railroad company wrongfully refuses to receive and transport goods, tendered to it by one who offers to comply with the terms established by it in reference thereto, the remedy of the party aggrieved is by an action at law, to recover the damages sustained thereby, and as the remedy afforded to him by such action is an appropriate and adequate one, a mandamus compelling the company to receive and transport such goods will not be granted. /
    In an act^jdn at law against a common carrier for a wrongful refusal to receive and transport property, the party aggrieved is entitled to recover, as damages, the difference between the value of the property at the place where it was tendered to the company, and its value at the place to which it was to be tafeen, less the expenses of transportation.
    Appeal from an order quashing a writ of alternative mandamus, issued to require the defendant to receive and carry crude oil for the relator, on its tank cars.
    A writ of alternative mandamus was issued on the application of the relator, Olden. A motion to quash was made at Special Term, and granted. The relator in his application says, in substance, that he had crude petroleum oil at a place called Carrollton, for which he desired transportion to a place called Weehawken Docks; that the railroad company had the means of transporting it, and that the' transportation of such oil, between the points specified, was a part of its business; that the relator requested the railroad company to transport the oil, and the company declined.

      S. Jones, for the appellant.
    The duty to transport relator’s goods is imposed by statute on the respondent. (Laws of 185.0, ch. 140, § 36, p. 232; State v. Ha/rtford dk New Nmen JR. JR. Co., 29 Conn., 547 ; Vincent v. C. dk A. JR: R. Co., 49 111., 40; Chicago dk Northwestern R. R. Co. v. People, 56 111., 365; People v. Albany dk Vermont R. R. Co., 24 N. Y., 261-269.) The remedy for neglect or refusal to perform a duty imposed by statute on a corporation, is by mandamus to compel its performance. {Blalcemon v. Glamorganiston Canal Co., 1 Mylne & K., 154, 162-168, per Lord Eldon ; Queen v. Eastern Counties R. R., 2 Perry & D., 648, 655, 656; per Denman, Ch. J.; Reg. v. Trustees Teuton Roads, 1 Q. B., 800; Reg. v. Bristol Railway Co., 2 Q. B. 64 ; Reg.s. Bury Roods, 6 D. & R., 368; King v. Justices of CumJberlcvnd, 1 Maulé & S., 190,196; Rex v. Severn dk Wye R. R. Co., 2 B. & A., 646 ; Rex v. York dk North Midland R. R., 16 Eng. L. & E., 299; State v. Hartford dk New Hamen R. R., 29 Conn., 547; Chicago dk North-western R. R. Co. v. People, 56 111., 365 ; Peoples. Albany dk Vermont R. R., 24 N. Y., 261-267; McC%dlough v. Mayor of Brooklyn, 23 Wend., 458; People v. Mead, 24 N. Y., 120; People v. Supervisors Chenango Co., 1 ICern., 574; People s. Hawes, 47 Barb., 457.) The other remedy to bar this writ, must be a legal, specific and adequate remedy, and equally as convenient and efficacious. (Tapping on Mandamus, 18, 19; High on Extraordinary Remedies, § 17; Overseers v. Overseers, 82 Pa. St., 279; Fish v. Weatherwax, 2 Johns. Cas., 217; People v. Mayor, 10 Wend., 395; Exp. Lynch, 2 Hill, 45 ; People ex rel. Ryan v. Green, 58 N. Y., 295 ; People v. Hawkins, 46 Id., 11; People v. Green, 1 Hun, 1.) An action on the case against a corporation to compel it to perforin a statutory duty is not such a remedy by action as will prevent the allowance of a mandamus. {McCullough s. Mayor, 23 Wend., 461; People v, Meade, 24 N. Y., 120; People s; Hawkins, 46 Id., 11; People v. Green, 58 Id., 305, 306; Chicago & N. W. R. R. Co. v. People, 56 111., 365; Queen v. Bristol Lock Co.,A Q. B., 70; Queens. Eastern Counties R. R. Co., 10 Adolph. & Ellis, 565.)

      W. D. Shipman and W. W. Macfarland, for the respondent.
    A writ of mandamus cannot issue to a common carrier to compel the carrier to perform an alleged common law duty. (.People ex rel. Walker v. Babcock, 16 Hun, 313.) Nor will the writ of mandamus issue in any case where there is an adequate remedy by action. (Tapping on Mandamus, 3; People v. Green, 1 Hun, 1; •Commonwealth v. Possiter, 2 Binney, 360; Overseers v. Overseers, ■82 Pa. St., 279; Exp. Lynch, 2 Hill, 45; Exp. Firemen's Ins. Go., ‘6 Id., 243; People v. Mayor, Sc., 10 Wend., 395; People v. Breen, 58 N. Y., 306; JST. J. Steam Wav. Co. v. Merchants' Bank, ’6 How. U. S., 382; Angelí on Carriers, ch! 5, § 123, et seep; 3 Kent’s Comm., 599; Laws of 1850, ch. 140, § 36.)
   Daniels, J.:

It was shown by the statements in the writ that the defendant was a 'corporation formed in 1878, under and in pursuance of chapter 430, -of the Laws of 1874. That chapter, as it was amended by chapter 446 of the Laws of 1876, which was enacted before, and was in force when the corporation was formed, provided for the formation of railroad companies, upon the sale, under a judgment or decree of a court of competént jurisdiction, of the railroad property, privileges and franchises of any other railroad corporation. ' (Laws 1876, ch. 480, § 1.) It is to be inferred, from the statement made in the writ, that the same railroad property, franchises and privileges acquired by the defendant, were, before its formation, vested in another corporation, and from the points presented in favor ■of the relator, that such other railroad company was that known as the New York & Erie Railroad, or Erie Railway Company. But, oven if that were the case, no different disposition of this appeal would probably be required to be made, because of that circumstance. It is not claimed that any distinction should, on that account, be made, and the propriety of none has been perceived, for the reason that in the carriage and transportation of persons .and property, the duties and obligations of all railroad companies are, under the laws of the State, substantially the same. A company formed as the defendant was, has in terms been vested with and becomes entitled to enjoy all the rights, privileges - and franchises which, at the time of the sale under the judgment or decree, belonged to, or were vested in the corporation which last, owned,the-property sold, or of its receiver. And it was made subject to all the duties and liabilities imposed by the act authorizing the formation of' railroad corporations, enacted in 1850 (ch. 140), and the acts amendatory thereof, except where they may be inconsistent with the laws of 1874 and 1876, or with the rights, privileges, or franchises of the-corporation whose property and franchises were made the subject of' the sale. (Laws 1876, 481, ch. 446, § 1, subd. 4.) The act of 1850 provided that, “ Every such corporation shall start and run their cars, for the transportation of passengers and property, at regular times, to be fixed by public notice; and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for-transportation at the place of starting, and the junctions' of other railroads, and at usual stopping-places established for receiving and discharging way passengers and freights for 'that train; and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of' the freight or fare legally authorized therefor; and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premiises.” (Laws 1850, ch. 140, § 36.) In terms, this included only the railroad corporations formed under its own provisions. But by section 49 of the same act, this section was rendered applicable to^ all existing railroad corporations, so far as it was not inconsistent with the charter of such colorations. (Id., 235, § 49.) And no such inconsistency appears between the duties and obligations imposed by this section, and the provision contained in the charter of the New York & Erie Railroad Company, by which it was empowered to regulate the time and manner in which goods 'and passengers should be transported, taken and carried on its railroad. (Laws 1832, ch. 224, § 1.) For that included no such power of discrimination, as it was the design of section,36 of the act of 1850 to prevent. Under these acts, it was the duty of the defendant to furnish sufficient accommodation for the transportation of all such property as should, within a reasonable time previous thereto, be offered for transportation, at the place of starting, or at the junction! of other railroads, or at usual stopping-places established for receiving and discharging freight for the trains, and to take, transport and discharge property at, from and to such places, on the payment of the freight legally authorized therefor. (Laws 1850, ch. 140, § 36.)

And that was no more than what the common law had prescribed on the same subject for many years before railroads were either used or known. This business was then carried on by a different class of vehicles on the land. The persons who were engaged in it were known as common carriers of property for hire. And they were legally obligated to carry all such property as should be offered within a reasonable time previous to the commencement of the trip, and for which a fair and proper compensation might be offered or paid. If they refused to receive and carry property so offered, without any justifiable reason for doing so, they became liable to-the party injured by the refusal. (New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. U. S., 344, 382-3; Angell on Carriers, 5 ed., §§ 124, 418.) In a case decided many years since it was held that a common carrier was liable by law to carry everything which was brought to him, for a reasonable sum to be paid for the carriage, and not to extort what he will. (Harris v. Packwood, 3 Taunt., 264, 272.) His prices must be reasonable. (Id.r 271.) And since the construction of railways and the transaction of this business by the companies owning or operating them, they have been held to be common carriers of property for hire, and for that reason the same principles have been applied to the conduct of their business. (Crouch v. Great Northern Railway, 34 Eng. Law & Eq., 573; Thomas v. Boston, &c., R. R., 10 Met., 472.)

Whether the obligations resting upon the defendant are to be derived from the common law, or the statute, they are substantially the same. In either case it was obliged to provide reasonable vehicles for the carriage and transportation of the property offered to ii' for that purpose, and to cany it for a reasonable compensation. It could not unreasonably or unjustly discriminate between persons whose property was offered for transportation, but it was bound to deal with them substantially alike. The law requires equal justice-to all. (Fitchburg R. R. Co. v. Gage, 12 Gray, 393.) This equality, it was held in. that case, consisted in the restricted right to charge in each particular case of service a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can. be done, and no cause afforded for complaint. If, for special reasons in isolated cases, the carrier sees fit to stipulate for the carriage of goods or merchandise of. any class for individuals for a certain time, or in certain quantities, for less compensation than what is the usual, necessary and reasonable rate, he may undoubtedly do so without thereby entitling all other persons and parties to the same advantage and relief.”

These principles of the statute, and of the common law, are relied upon by the relator in support of his right to the writ which the. order,.from which the appeal has been taken,.has dismissed.. It. is alleged by him that they have been disregarded by the defendant to his injury, and that it should be required specifically to perform the obligations existing in his favor as the owner of property presented for transportation over its railroad. This property consists of a large quantity of crude oil. How much, has not been made to appear. But on June 1, 1878, and from thence to the issuing of the writ, he had tins property and desired to have it carried and transported over the defendant’s road. The property was offered to its officers and agents for that purpose, and i t declined to receive ■or transport it, although it had the necessary tank cars unemployed by which that could have been done. And they were detained unemployed until they were devoted to the transportation of the same nature of property, afterwards offered by other parties, for a less rate of compensation than the established rate offered by the relator. 'These facts are not controverted, and they must therefore be accepted as the truth. And considering them as established in the case, as they must be, the defendant has violated its obligations and ■dirties to the relator. He had the legal right to have his property carried as long as the defendant had the unemployed vehicles by which it could have been transported, and 'he was ready to pay the ordinary compensation for the service. This legal obligation existed in his favor, and, by the circumstances appearing, it was violated by the defendant’s refusal to receive and carry his property. "What has been- said upon this subject in another case is especially "apposite to the one now before the court. And that is, that “ if those in charge of the company’s cars, whose duty it was to assign, or give them out to be loaded with grain, through trickery or from motives of partiality or oppression, gave them to persons by the course and usage of the company, or, in fact, not rightfully entitled to them, and thereby deprived the plaintiff below of the facilities of shipping his grain he should have had, he is entitled to such damages as he may have sustained therefor.” (Galena & Chicago R. R. Co. v. Rae, 18 Ill., 488, 490.) And the same considerations have been applied to the recovery of excessive charges beyond those reasonably required to be paid. (Crouch v. Northern Railway, supra.) In that case it was said by Martin, B., that if the defendants designedly refused to carry parcels which they were bound by law to take, for the purpose of getting a monopoly in their hands and destroying the plaintiff’s trade, under such circumstances I am not prepared to say that a jury might not give very heavy damages. (Id., 588.) The purpose of the law is to secure a reasonable degree of equity in the business of railways, and to require them to afford the use of their facilities for the transportation of property to all who may have occasion for their employment, and without any urn-just or unreasonable discrimination as to the terms of compensation. Where that is denied or refused, an action for damages has been prescribed as the remedy. In that action complete redress can be obtained, for the law has fixed the measure of compensation to be the difference, less the expenses of transportation, between the value of the property at the place where it may be offered and that to which it was intended to be taken. . (Galena & Chicago R. R. Co. v. Rae, 18 Ill., 491.) That will fully compensate the owner for the loss sustained by him because of the unlawful refusal to carry his property. And ■ it has also been prescribed by the statute as sufficient to redress the injury sustained: for that has rendered the company liable to the party aggrieved, in an action for damages, for any neglect or refusal in the performance of the duty enjoined. (Laws of 1850, ch. 140, § 36.) Where the rights and obligations relied upon by the relator concededly exist, and they are violated as they appear to have been in this case, this action for damages has at all times been considered to be the appropriate remedy. It is compíete and adequate for that purpose. And where that is the case,, the law has confined the party to that remedy. An exception, exists where a public officer ref uses, to discharge his duties, and where a corporation suspends the exercise of its franchises. (McCullough v. Mayor, &c., 23 Wend., 458; People ex rel. Fiedler v. Mead, 24 N. Y., 114, 120; People ex rel. Ryan v. Green, 58 N. Y., 295, 305, 306.) But neither exception includes the present case, for the defendant has in no way suspended the operation of its franchises, but what it has done has-been a refusal to employ them in the service of the relator. That, is a private injury capable of being fully compensated by an action for damages, and for that reason does not depend upen the writ of mandamus. The case of Chicago & Northwestern R. R. Co. v. People (56 Ill., 365), does not extend far enough to justify the-present application of this remedy, although it seems to have gone beyond what has usually been considered as the settled law on this-subject. The authorities existing against the plaintiff’s application for this writ are clear and explicit. The rule which they sustain is that “ where there is a plain and adequate remedy by action for the party aggrieved, the writ of mandamus does not lie.” (Exp. Lynch, 2 Hill, 45; Exp. Fireman's Ins. Co., 6 Id., 243; People v. Green, 1 Hun, 1; Commonwealth v. Rossiter, 2 Binney, 360; Overseers v. Overseers, 82 Penn., 275; People ex rel. Walker v. Babcock, 16 Hun, 313.) The object of this writ is to enforce and protect legal rights existing without any other appropriate or adequate remedy. It is resorted to for the prarpose of preventing a failure of justice, and not as a substitute for a well-defined legal action. For that reason alone, while the relator had a clear right to have his property carried on the terms with which he offered compliance, and has been injured by the refusal of the defendant and its officers to receive and transport it, this appeal cannot be sustained. His remedy is by an action to recover damages, and not by the intervention of the writ of mandamus.

The order made should be affirmed.

Davis, P. J., and Barrett, J., concurred.

Order affirmed.


text:
    JAMES L. PHIPPS and MARY A. PHIPPS, Appellants, v. WILLIAM H. VAN KLEECK and others, Respondents.

      Will — when probate thereof will be refused, on the ground that it was procured by undue influence.

    Circumstances under which the court will refuse to admit a will to probate, on the ground that it was procured by undue influence, considered.
    The decision of the surrogate in refusing probate to the will in question affirmed, on the ground that the illness and mental condition of the testator at the time of its execution, imposed upon the legatee the burden of establishing, by clear and satisfactory evidence, that she had not unduly used her influence in procuring its execution; and that she had failed to give such evidence.
    Appeal from a decree of surrogate of the county of New York, admitting^ to probate a will, executed by James D, Ingersoll, •deceased. It was claimed by the appellants that another instrument, executed by the testator subsequent to the will admitted to probate, was his will, and should have been admitted to probate in place thereof.

      John, Halloek Drake, for the appellants.

      J. A. Shoudy, for the respondents.
   Daniels, J.:

The testator was a bachelor, owning an estate at the time of his -decease, on May 23, 1876, amounting to the sum of about $30,000. The will which was admitted to probate was drawn by the testator himself and executed on April 28,1874, when his health was unimpaired and his mind was sound. By its terms he provided for the distribution of his estate, chiefly among his relatives. Before that time he sustained intimate and friendly relations with the contestaras of this will, but he made no provision whatever in favor of either ,of them by its terms. It is to be inferred from that omission that he did not regard the existence of this very friendly intimacy as a sufficient reason for making either of these persons participants in the estate which he should leave at the time of his decease. Near the end of December, 1875, he left the city of New York, where lie bad been living at tbe St. Nicholas Hotel, and went South. But tbe afternoon and evening before bis departure, and at his own invitation, one of bis executors visited and dined with him. During their interview this will was made tbe subject of conversation between them, and was referred to by tbe testator as containing a satisfactory disposition óf bis estate. There is nothing in tbe case tending to discredit this evidence in tbe least, or to indicate tbe remotest probability that at tbe time be left New York' be was in any respect disposed to change tbe terms of bis will. But, on tbe contrary, tbe presumption is warranted by tbe circumstances, that they met bis complete and perfect approval. And for those reasons it cannot be inferred that be could have been influenced or induced, merely by bis friendship for tbe contestants afterwards, to make them, or either of them, tbe recipients of bis estate.

About tbe middle of February, 1876, tbe contestants went to Jacksonville, and tbe testator called at tbe hotel where they then were, to visit them. They remained there several weeks and be called upon them in a friendly and famibar way every day. From there all three went together to Savannah. Tbe testator preceded tbe contestants from that place to Augusta, where be secured quarters for them at the same hotel, and met them at tbe depot upon their arrival there a short time afterwards. They continued there until tbe latter part of March, when tbe testator, who was then nearly seventy years of age, was attacked with paralysis. Tbe evidence shows this to have been very severe in its effects upon bis mind as well as his body. Practically it rendered him helpless and dependent upon tbe friendly attentions and offices of tbe contestants. They, and particularly Mrs. Phipps, kindly watched him and cared for bis wants. Tbe services rendered were those which bis condition needed, and be appears to have been conscious of bis dependence upon these two friends. "When they concluded to return to New York, by bis request be was taken with them, and to their residence, instead of tbe hotel where be bad previously made bis home. They reached New York on May 1, and on tbe 3d of that month, and only twenty days before bis own decease, tbe testator made another will, giving all bis property to Mary A. Phipps, one of these friends, and appointing tbe other, her 1ms-band, Ms sole executor. To this will he did not subscribe Ms name, as he had to the one of 1874, which had been framed and written by himself. And no reason seems to have arisen rendering any change in the disposition of Ms property proper, beyond the care and attention bestowed upon the testator during Ms illness, extending then but little beyond the period of one month. During the short interval between his return to New York and the execution of this second will he had no intercourse with either of the persons who were to be made participants in Ms estate, under the terms of liis preceding will; and for that reason no cause could have arisen for dissatisfaction with them. They must then have accordingly remained as justly entitled to participate in his estate, as they were in his own judgment when these provisions were so deliberately made by him in their favor, and wMch he regarded as so satisfactory in his last proven allusions to them, as he was about to leave for the South. It was not shown that he was apprehensive that his disability and illness would be long-continued, as they were not, and for that reason should be provided for by any radical change in the disposition of his estate. And if it had been, the attention and services required by his condition could' have been adequately and fully recompensed, without the consumption of the mass of his estate.

The change which was made cannot be accounted for by reason of his circumstances. Neither gratitude nor justice required so much from Mm. And as no cause for dissatisfaction had arisen on the part of the relatives designed to be provided for by the terms of the will of 1874, no special reason for the direction last given appeared in the case. It is probable that the testator understood that he was making this will. That he had sufficient capacity for that purpose was shown by the evidence of Dr. Marcey, his attending physician; and that he understood the contents of the instrument subscribed by him, appeared from the evidence of the counsel who drew it. But these circumstances are not sufficient to secure it legal validity, if the testator was improperly influenced to withdraw his property from Ms relatives and bestow it upon a stranger to his blood, whom he had not previously considered to be an object of his testamentary bounty.

Up to the time of the commencement of his fatal illness, his design was firmly established that his relatives should receive the bulk of his estate. Immediately after that occurrence he became much enfeebled, both bodily and mentally, and, with slight improvement, so continued until the will of 1876 was made. His condition was such that the vigor, which was shown to have characterized him in health, had disappeared. The emotions exhibited by him indicated that he had, without any other reason than that of his sickness, become capricious, and the dependence he felt upon the contestants rendered him a plastic instrument of even slight influences exerted over him on their part. Whát would not have affected him in health, would then prove entirely controlling over his conduct. As the evidence stands, there is no reason for presuming the exercise of that influence by the executor himself. What he did was to procure the counsel to draw the will and the witnesses to attest its execution, and in both he seems to have acted under the directions of the testator. But how the purpose was brought into existence which rendered these acts necessary, did not positively appear. The circumstances shown rendered it evident that the testator had been under the care 'and attention of the contestant, Mary A. Phipps, during the entire period of his illness. His condition was such as would not probably have suggested the expediency of another will, wholly different in its provisions from the one already so carefully made. There was no other person than her from whom the suggestion of such a change would have been likely to have originated. And on one occasion, while he was still in Augusta, a change of that nature was stated to have been suggested by her. His dependence upon her had become such as to render him subject to her influence ; and that she availed herself of her opportunities for its exorcise is reasonably evident from the circumstance that he became willing to bestow all his property upon her, when he had deliberately designed that it should have been otherwise disposed of, while he was in the full possession of his health and mental faculties. What transpired between this contestant and the testator can only be inferred from circumstances, but they are such as to exclude the conclusion that he so far changed his previously fixed intention, as to withdraw his property wholly from the control of his preceding directions, and devote it to her, without some controlling influence over him on her part.

Whether this were so or no, formed no part of any interview "with the testator when the last will was subscribed by him; he ■appeared generally to understand the import of his act, so far as it •affected her, and at the time to intend what he did. But how that state of mind had been brought about was not shown. It was probably one of the caprices of his condition, created and controlled, as the surrogate found it had been, by the exercise of an Improper degree of influence over him. The will was not natural In its provisions. It gave his estate a direction, which, according ■to his own probable volition, it would not have received. And by that it was assigned to the person upon whom he had become mainly dependent, and who chiefly had his care and custody. For this purpose he was practically in her power, and it was incumbent upon her to show, under the circumstances, that this will in her ■favor was his free, uninfluenced, as well as voluntary act, before she could be entitled to have it legally sustained. That she did not do, but left the case as it was, affected by the facts indicating a different and adverse presumption. Upon this subject it has been held, that in proportion as the infirmities of the testator expose him to deception, it becomes imperatively the duty, and should be .■anxiously the care, of all persons assisting in the testamentary transaction, to be prepared with the clearest proof that no imposition has been practiced, but that the testator did, in fact, fully understand every portion of the paper which he executed as his will (1 Jarman on Wills, 39), and when the existence of undue influence is affirmed, it may be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person.” If one takes advantage of the affection or gratitude of another, to obtain an unjust will in his favor, using his position to subdue .and control the mind of the testator, so as substantially to deprive him of his free agency, then the fact that affection or gratitude was the moving cause makes it no less a case of undue influence.” (Rollwagen v. Rollwagen, 63 N. Y., 504, 519, 520; S. C., 3 Hun, 121; Blewitt v. Blewitt, 4 Hagg., 410.) In this last case it was decided that “ the strong presumption of law is always adverse to an instrument materially altering and controlling a will deliberately framed, regularly executed, recently approved, and supported by previous acts of disposition ; and it is difficult to conceive a case in which that presumption would exist with more force than in the present, looking to the former wills, to the condition of the deceased, to the parties in whose favor the codicil was to be made being at the time about the person of the deceased, and to the absence of other parties to whose prejudice these alterations were to operate.” This, will was written in the interest and probably at the instance of the sole legatee named in it, before he had seen either of his relatives after his return, when the testator was mentally and physically enfeebled and personally helpless, for the purpose of bestowing all his estate upon her, and without reason excluding those who had been the preceding objects of his bounty from all participation in it, and after he had been subjected to her influence through all the time of his illness. Before it could properly be admitted to probate, it was necessary that some satisfactory evidence should have been given, warranting the conclusion that she had not so used opportunities as to produce this testamentary result in her favor. (Crispell v. Dubois, 4 Barb., 393; Lake v. Ranny, 33 Barb., 49; Tyler v. Gardiner, 35 N. Y., 559.) No such proof was given in this case, and for that reason the surrogate was justified in deciding that the circumstances so far indicated the existence of undue influence, as to render the will relied upon by the contestants invalid.

The objections taken to the rulings of the surrogate, as to the admissibility of evidence received and excluded, do not seem to rest upon any substantial foundation. There was an abundance of evidence showing what the condition of the testator was, without that which has been drawn in controversy. • The case was not dis posed of upon that ground, but because there was reason to believe that the will was obtained by means of undue influence, and the rulings made as to the evidence had no special relevance to the existence of that circumstance. As long as that was made out, whether the evidence objected to should be received or excluded was not of the least practical consequence. Upon that subject the surrogate was sustained by the well established facts, in his conclusion, and for that reason- the decree appealed from should be affirmed.

Davis, P. J., and Barrett, J., concurred.

Decree affirmed.


text:
    JOHN HULL BROWNING, Respondent, v. OLIVER W. MARTIN, Appellant.

      Bankruptcy of one member of a firm. — right of the survivor to transfer the assets thereof — an objection to the non-joinder of pa/rties must be taken by answer or demurrei'.

    After one member of a firm lias been adjudged a bankrupt and has executed an assignment to his assignee, the solvent partner and such assignee must join in an action to collect a claim due to the firm.
    This action was brought to -collect a claim due from the defendant to the firm of Domett & Nichols, to which the plaintiff claimed to have acquired title by virtue of a transfer thereof made to him by Henry W. Domett, one of the members of the firm, on March 26, 1877. Upon the trial, the defendant, who denied the assignment in his answer offered to prove that Nichols had, in November, 1875, been adjudged a bankrupt and made an assignment to the assignee appointed in the bankruptcy proceeding.

      Held, that the court erred in rejecting the evidence.
    That as the plaintiff had not shown that he had taken the assignment of the claim in good faith, without notice of the bankruptcy of Nichols, and for . a valuable consideration or in satisfaction of some adequate partnership demand existing in his favor, he had no right to sue to enforce the payment thereof.
    That if upon a new trial he should show that he had so taken the assignment, he would be entitled to recover the interest of his assignor in the claim, as no objection to his omission to join the assignee in bankruptcy of Nichols as a party had been taken by the answer.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    • Tbe action was brought upon an assignment of a claim existing in favor of; tbe firm of Domett-& Niebols, a portion of -which was embraced in a promissory note for $375, made by the defendant to the order of one H. W. Domett, a member of the firm of Domett & Nichols. The claim was for overdrafts of his salary, made by the defendant, a clerk in the employ of the said firm. The plaintiff claimed title to the claim by an assignment made by Domett in the firm name, and to the note by virtue of an assignment thereof made by H. W. Domett, on March 26, 1877. The defendant by his answer denied, among other things, that the plaintiff was the holder and owner of the note, or that the same had been assigned to him.

      Henry G. Wileox, for the appellant.
    Under a general denial the defendant is always at liberty to disprove anything which the plaintiff is required to establish to maintain his action. {AlUs v. Leonard, 46 N. V., 688; And/rews v. Bond, 16 Barb., 633; Robinson v. Frost, 14 Id., 536; Wheeler v. BilUngs, 38 N. Y., 263; Greenfield v. Massachusetts Mutual Life Lns. Go., 47 Id., 430; Brown v. Elliott, 4 Daly, 329; $chame v. Mcunhattam, Gas Go., 45 How Pr., 418, 482; Miller v. Declcer, 40 Barb., 228; O’Brien v. Me Gann, 58 N. Y., 373.) Domett could not deal with the partnership property after the adjudication in bankruptcy, nor make any valid assignment or transfer thereof. (3 Kent’s Comm., 12 ed., 59, 63, 64; Story on Partnership, § 336; Bcmford v. Mickles, 4 Johns., 224, 228; Gertlvier v. Trustees, dec., 2 Barb., 625.)

      Joshua M. Van Oott, for the respondent.
   Daniels, J.:

The first objection taken to the judgment is that the demands in suit had been purchased for the benefit of an attorney, who was interested in the prosecution of this action for the recovery of the amount of them. Evidence was given, indicating the fact to be, that the attorney had exerted himself in obtaining the purchase of the demands in suit. But neither that which was given, nor that which was offered and rejected, nor both together, were sufficient to show that the demands were in fact purchased by the attorney, or that he was in any way or manner interested in them. But the evidence was really the other way, showing that the attorney had no interest whatever in either of the demands.

They were owing to the firm of Domett & Nichols, and in their joint names the demands were assigned to the plaintiff by Henry W. Domett, one member of the firm. This assignment was executed on March 26,1877, and the defendant, who denied the assignment by his answer, offered to show that Nichols, the other member of the firm, had been adjudged a bankrupt, and on November 26, 1875, made an assignment to the assignee appointed in the bankruptcy proceedings. This was rejected, and the defendant excepted to the decision excluding the evidence. A further offer was made to prove that Domett, the other partner, had also been adjudicated a bankrupt on June 1, 1876, and that an assignee of his estate had been appointed on that day. But what since then has become of this last proceeding was in no manner disclosed by the offer.

That taken against Nichols was clearly effective, and vested his interest in the firm property in his assignee, before the assignment of these demands was made to the plaintiff. And if the assignment had not been made, an action for their recovery could only have been maintained in the joint names of the other partner and the assignee of Nichols. (Graham v. Robertson, 2 Durn. & East, 282; Eckhardt v. Wilson, 8 Id., 140; Murray v. Murray, 5 Johns. Ch., 60.) The principle is briefly and concisely stated in the last case, that the solvent partner and the assignees of the bankrupt cannot sue alone, but they must unite in actions at law. (Id., 70.) It is a legal consequence of the fact of the bankruptcy of one of the members of the firm, which has the effect of dissolving the partnership, and vesting his interest in the property in his assignee. (Story on Partn., 6 ed., §§ 313, 337, 338.)

By the dissolution, the existence of the firm for new transactions Avas at an end. And neither of the members after that could transfer the firm property by any act of his own, unless it should be done bona fide, and to a person entitled to notice, but who received none, prior to the making of such transfer. (Sanford v. Mickles, 4 Johns., 224; Geortner v. Trustees of Canajoharie, 2 Barb., 625; Lusk v. Smith, 8 Id., 570.) The most that has been affirmed, asto the power of a solvent partner after the bankruptcy of his associate is, that he may still proceed in the settlement and distribution of the assets of the firm, and sell its effects for a valuable consideration, without fraud. (Murray v. Murray, supra.) This was held, on the authority of Fox v. Hanbury (Cowp., 445), when certain consignments of partnership property, made after the commission only, of an act of bankruptcy, by one of the partners to a purchaser for value, having no knowledge of notice of the act, but who acquired the property in good faith, were maintained. Neither the principle stated nor this authority extends far enough to sustain the assignment made to the plaintiff. For it did not in any manner appear to have been made for a valuable consideration, or that he received it without knowledge or notice of the bankruptcy of the other member of the firm, or the proceedings consequent upon it. And no authority has extended so far as to sustain a transfer of partnership effects by one partner, upon such a state of the proof. Neither a bona fide sale was shown, nor an application of these particular demands to the satisfaction of partnership obligations, which possibly might be sufficient to sustain the assignment. (Amsinck v. Bean, 22 Wall., 395, 403.) The validity of the assignment stood upon the simple fact of its execution and delivery by one of the members of the firm, and the proof offered, if it had not been rejected, would have shown that the partnership had previously been dissolved, and the interest of the other partner in its assets had passed to the official assignee provided for by the bankrupt law. That would have exhibited a state of facts rendering the assignment the act only of the partner by whom the firm name was subscribed to it, and for that reason, ineffectual as a complete transfer, without further evidence sustaining it, and showing the plaintiff to have been a bona fide purchaser, for a valuable consideration, or to have received it in satisfaction of some adequate partnership demand, existing in his favor.

The evidence which the defendant offered was admissible under the issue, for that controverted the plaintiff’s right as the assignee of the demands in suit. If it had been received, it would have shown that the plaintiff had no such title as would authorize him to recover any greater interest in the demands in suit than the partner executing the assignment could himself transfer. And, from the nature of the allegations made concerning it in the complaint, that was legal evidence under the denials contained in- the defendant’s answer. (Robinson v. Frost, 14 Barb., 536; Andrews v. Bond, 16 Id., 633; Allis v. Leonard, 46 N. Y., 688.) Tbe right of the plaintiff was put in issue, and this was pertinent evidence to prove that it did not exist. If it had been received, the case might still have been maintained if the plaintiff could establish the facts which would entitle him to the protection of the legal principles already stated. But without that, his recoyery would be reduced to whatever he might appear to be entitled to, as the assignee of the individual by whom the assignment was executed. 'To that extent a recovery can in any event be had, for the reason ■that no objection to the omission to join the assignee in bankruptcy was taken by the answer. That failure formed a waiver of the objection that there was any defect of parties in the action. (Code Civ. Pro., §§ 498, 499.) But it did not deprive the defendant •of the right to insist that the recovery should be restricted to the •extent of the interest actually secured by the plaintiff, by means of the assignment made to him. The judgment should be reversed and a new trial ordered, with costs to defendant to abide the event.

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

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


author: Barrett, J.: Babeett, J.:

text:
    WILLIAM M. FLIESS, Individually, &c., and others, Respondents, v. JOHN C. BUCKLEY and others, Appellants.

      ■Surplus moneys on a sale on foreclosure, to he regarded as realty — where an action: relating to them must he brought — Code of Civil Procedure, § 982.. ■ •
    Surplus moneys arising upon a sale had under a decree entered in an action brought to foreclose a mortgage, after the death Of the mortgagor and' owner of the premises, are to be regarded as realty, and an action brought, by one claiming to have a lien thereon, to have the same established and; the moneys divided among those entitled to receive them, must, under section 982 of the Code of Civil Proceduj-e, be brought in the county in which-the premises were situated and the surplus moneys deposited.

      Judgment creditor's action — inability to collect the judgment from the personal estate must be shown.

    One who, in an action brought to foreclose a mortgage, has recovered a judgment for a deficiency, arising on the sale, against the executor of the deceased mortgagor, cannot maintain an action to secure and apply to the-payment thereof surplus moneys arising on the foreclosure of another mortgage, given by the same mortgagor upon different property, without alleging his inability to collect the judgment out of the personal estate of the deceased.
    Appeal from an order made at Special Term, denying a' motion, to change the place of trial of this action from New York to Kings-, county, and also from an order restraining, the appellants and the-other defendants in this action from prosecuting, in the County Court of Kings county, proceedings to obtain a surplus arising on the sale of certain real property in the. city of Brooklyn, in an action brought by the Brooklyn Savings Bank against John C-Buckley and others, in which action the plaintiffs herein were defendants.
    The complaint alleges the foreclosure by the Brooklyn Savings Bank of a mortgage made to them by John Buckley, now deceased,, on premises in Myrtle avenue, Brooklyn; the decree therein and the sale of the mortgaged premises thereunder on April 23, 1880 that a surplus of $6,868.29 arose thereon, which,. in accordance, with the said decree, had been deposited with the county treasurer of Kings county; the commencement of proceedings under rule 68 to reach the said surplus in the said County Court, and an order of reference to William Ii. Greene, Esq., to ascertain and-report the amount due to Jane E. Buckley, or to any other person,, which is a lien upon such surplus. The plaintiffs were parties defendant to that action, filed their claim to such surplus and attended on such reference. The plaintiff, William M.. Fliess, alleges that he has a second mortgage for $2,000, on the said premises from the sale of which this surplus arose, made by John Buckley, now deceased, December 1, 1871; that he commenced an action to foreclose the same, November 26, 1879, in the New York Supreme Court, Kings county, and that on April 6, 1880, he obtained a, decree of foreclosure and sale, showing $2,385.01 to be due, but no-sale was made. This bond and mortgage are alleged to be his-individual property.
    The complaint further alleges that the plaintiffs, Sarah H. Fliess- and William M. Fliess, executors, &c., of Robert A. Fliess, deceased, were the owners of certain other mortgages on property in Brooklyn,, dated April 21, 1815, and a certain other mortgage, dated December 12, 1813, on property in said city of Brooklyn, corner of Stuyvesant avenue and Quincy street, all made by John Buckley, now deceased. That, in September and November, 1819, they foreclosed the said mortgages, in the New York Supreme Court, Kings, county, and recovered judgments for deficiencies therein against John C. Buckley, as administrator with the will annexed of John Buckley.
    That the mortgagor, John Buckley, died at Brooklyn, May 21,, 1815, leaving a last will and testament, which was admitted to probate by the surrogate of Kings county, June 10, 1815, by which he appointed his wife administratrix, and left her- the use, enjoyment and benefit of his property, both real and personal, during her life, and, at her death, to his sons, Caleb F., Ephraim G. and John C. Buckley. That his widow died July 5, 1818, and letters of administration with the will annexed were issued to Caleb F. Buckley. That Ephraim G. died, unmarried and intestate, after his father, and Caleb F. Buckley died, October 2, 1819 ; and thereafter letters of administration with the will annexed were issued to John C. Buckley. That Caleb F. Buckley conveyed his interest in the property devised to him by his father-to Joseph S. Hunt, April 23, 1819, and the said Hunt simultaneously conveyed the same to Jane E. Buckley, the wife of said Caleb F. That Howard & Fuller recovered a judgment against John C. Buckley, March 8„ 1810, and, on January 13, 1880, issued execution thereon, and the-sheriff of Kings county sold to them, under said execution, March 6, 1880, the right, title and interest of said John C. Buckley, in all the above described property. That the defendants other than John C. and Jane E. Buckley, are judgment creditors of John C. or Caleb F. Buckley; that they have filed claims to said surplus, and that they are all -the .parties having any claim thereto. The plaintiffs further alleged that the claims of defendants are disputed and will be contested, and that It is necessary that issues should be framed and tried in order that said claims- may be properly adjudicated by this court, and that the proceedings under rule 68 are not intended to apply to disputed and contested claims, and they are informed and believe that their claims in this action will be vigorously and determinedly contested, and demand judgment.
    The said William M. Fliess, individually, that his decree of foreclosure' and sale be adjudged a first lien upon said surplus.
    And Sarah H. Fliess and William M. Fliess, executors, &c., that their judgments against the administrator be decreed the second lien upon said surplus.
    That, in the meantime, the defendants be restrained and enjoined from commencing or prosecuting any other action or proceeding for the distribution of said surplus, or in any way affecting the same or the rights of the various parties to this action, and from proceeding with or in any way pursuing the reference now pending under the order of the County Court of the city of Brooklyn, ■dated June 12, 1880.

      F. E. Dama, for the appellants.

      Osborne E. Bright, for the respondents.
   Barrett, J.:

We think this case comes within the spirit of section 982 of the ’Code of Civil Procedure. It has been repeatedly held that the surplus is to be regarded as realty. It goes to the heirs or devisees, not to the administrator. (Dunning v. Ocean National Bank, 61 N. Y., 497.) There is no difference in principle between such surplus and a parcel of the realty remaining unsold, after the sale of enough to satisfy the' judgment of foreclosure. If the surplus be thus regarded as between the heirs and personal representatives of the deceased, it is but reasonable and productive of harmony to take the same view of the expression used in section 982. If, in theory, the surplus be treated as real estate, why not in practice ? If with regard to the’ rightj why not- with regard to the remedy?

Then, to establish a' right therein, or to determine a lien thereon, necessarily involves the establishment of such right or determina tion of such lien 'upon the property covered l>y the mortgage. The policy of the law, too, favors the retention within the local jurisdiction of the supplemental litigation with regard to the surplus. Under the rule, it is usually administered and distributed by the court in which the foreclosure proceeded. If the character of the claim thereto be such as to require an original suit, it would seem to be eminently proper that such suit should be instituted in the same court, or at least within the same local jurisdiction. This was doubtless the intention, in part, with which the very broad and comprehensive language of section 982 of the Code of Civil Procedure was substituted for section 123 of the Code of Procedure. ~We áre, therefore, of opinion that the action- should have been brought in Bangs county, and that the order appealed from should be reversed, with $10 costs, and disbursements of the appeal, and the motion to change the place of trial to the proper county be granted.

Present — Davis, P. J., Beadt and Babeett, JJ.

Order reversed, with $10 costs, and disbursements, and motion to change the place of trial to the proper county granted.

Babeett, J.:

The injunction should not have been granted. The plaintiffs did not make out a prima facie case. So far as Mr. Fliess individually is concerned, there was no necessity for an original suit. His remedy under the order of reference was ample and complete. Thé. referee was regularly appointed, and Mr. Fliess had no right to remove the proceedings from his jurisdiction. It may be that the representatives of Kobert A. Fliess would, in a proper case, have' been entitled to file an original bill. The question, whether their claims to the surplus moneys could have been duly litigated before the referee, may admit of doubt; but it is unnecessary to pass upon that question definitely, for the reason that the complaint, so far as they are concerned, -is wholly insufficient. A fatal defect is the failure to allege inability to collect the judgments out of the personal estate. (Butts v. Genung, 5 Paige, 254; Selover v. Coe, 63 N. Y., 438.) The absence or insufficiency of personalty is not even suggested. Nor is it claimed that these creditors have exhausted their remedy against the personal representatives of the deceased. The plaintiffs should at least have made out a case sufficient to have entitled them to a sale of the realty. That is what was contemplated by the act of 1867, chapter 658 (as amended, Laws of 1870, chapter 170, and Laws of 1871, chapter 834). The surplus is undoubtedly liable for John Buckley’s debts. So far, we agree with the plaintiffs. But how liable ? Plainly, as real estate is liable. As was said by Dwight, C., in Dunning v. Ocean National Bank (61 N. Y., 506): — “ The terms of the statute show that the surplus is regarded as real estate. The most careful precautions are taken to prevent • the heirs from being deprived of it, except in the same manner and to the same extent that would be permitted in case the land had remained unsold. ” In every provision of the Revised Statutes upon this general subject it will be found that extreme care has been taken to require the complete exhaustion of the personalty before permitting a resort to the realty. We feel constrained, therefore, to direct a reversal of the order appealed from, with $10 costs, and disbursements of the appeal, and a dissolution of the injunction, without prejudice to another application for such injunction, upon an amended complaint and further papers, if plaintiff be so advised.

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

Order reversed, with $10 costs, and disbursements, and injunction dissolved without prejudice to another application for an injunction on further papers.


author: Davis, P. J.:

text:
    WILLIAM A. SUTTON, Appellant, v. JOHN SABEY, Jr., Respondent.

      .Motion to vacate an order of arrest — iohere it must be made — Code of Civil Procedure, §§ 568, 70S).
    Section 568 of tie Code of Civil Procedure, authorizing a motion to vacate an order of arrest, founded upon proof by affidavit on the part of the defendant,to be made “to tile court, or,if the order was granted bya judge out of court, to any judge of the court upon notice,” is not-in conflict with, nor does it abrogate the provisions of section 769 of the said Code, which requires all motions, upon notice, in an action in the Supreme Court, to be made within the judicial district in which the action is triable, or in a county adjoining it, except that when'it is triable in the first judicial district, the motion must be made therein.
    Appeal from an order vacating an order of arrest.

      Isaac L. Miller, for the appellant.

      Oowles <& Wright, for the respondent.
   Davis, P. J.:

■ The place of trial of this action is the city and county • of New York. An order of arrest was granted therein by one of the justices of this court, out of court, in the city of New Y"ork. An application was made to one of the justices of this court, at his chambers in the city of Syracuse, in the fifth judicial district, to vacate the order of arrest. This application was founded upon proofs by affidavit on the part of the defendant; and the only question presented to the justice was, whether such a motion could be made before him elsewhere than in the city of New York.

Section 568 of the Code of Civil Procedure, so far as it applies .to the question now before us, is as follows:

An application ” for vacating the order of arrest, “ specified in the last section, may be founded only upon the papers upon which the order was granted, in which case it must be made to the court; or, if the order was granted by a judge out of court, to the same judge in court or out of court, and with or without notice, as he deems proper, and the application must be made upon those papers only; or it may be founded upon proof by affidavit on the part of the defendant, in which case it must be made to the court, or, if the order was granted by a judge out of court, to any judge of the court, upon notice.”

The error into which the learned judge has fallen is, in supposing ■that the provisions of this section, allowing the motion to be made to any judge of the court upon notice, abrogated, or are in conflict with other provisions of the Code, in respect to the place where motions can be made, and the time of notice to be given. Section 769 enacts that a motion upon notice, in an action in the .Supreme Court, must be made within the judicial district in which the action is triable, or in the county adjoining' that in which it is triable, except that where it is triable in 'the first judicial district, the motion must bo made in that district. There is nothing in this section at all inconsistent, with the provisions of section 568, which allow a motion to vacate an arrest, under certain circumstances, to be made to any judge of the court as well as to the judge who granted the order. The sole object of the provision was to declare that such a motion might be entertained by any other judge of the court. The question of the place where the same is to be heard is not involved in section 568 at all, and the two must be collated and read together in order to get at the true meaning of the former section. So, also, in respect' to notice. This section provides that it may be made to any judge of the court upon notice. What notice 2 Certainly that described by other provisions of the Code, which fix the time of notice to be given, unless it be shortened by special order. These sections are all consistent with each other; and it follows that the true construction of section 568 is, that a motion to vacate an order of arrest, granted by a judge out of court, may be made before any other judge of the same court within the judicial district in which any other motion in the action can be made, upon the notice prescribed by law. If, therefore, the learned judge who sat in this case had been in'the city and county of New York, he would have had' full power to have heard and disposed of this motion ; but ho is not.authorized to entertain it out of the district composing the city and county of New York, because section 7 69 expressly declares that the motion must be made in that district when the cause of action is triable there. If this be not so, it would be in the power of. the defendant, in any action of this kind, where the parties all resided in the city of New York, to move to vacate such an order before a judge of the court in the most distant county of the State, without regard to the question where the action was triable by law, and in direct disregard of the provisions of section 169. Such a construction would lead to great abuse and embarrassment, and therefore, ought not to be adopted unless absolutely necessary. We. think it is not in this case.

The order should be reversed, with $10 costs.

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

Order reversed, with $10 costs, and disbursements.


author: Barrett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRANCIS HIGGINS, as Receiver, &c., of JOHN H. McCUNN, Deceased, Respondent, v. DAVID McADAM, one of the Justices of the Marine Court of the city of New York, Appellant.

      Summary proceedings — ch. 101 of 1879 — who is not subject to removal under, by a purchaser at a sale under an execution — when such proceedings will be rest/rained by a writ of prohibition.

    A tenant, in possession under a lease executed by a receiver, appointed in an action brought against executors holding as such a leasehold interest in the premises, is not a tenant of such exeputors, so as to authorize one who has purchased their interest in the premises at a sale- thereof, under an execution issued on a judgment recovered against them, to institute summary proceedings to remove him therefrom, under chapter 101 of 1879.
    Where proceedings to so remove such tenant from the possession of the premises are instituted by such purchaser, the court will, on the application of the receiver, grant a writ of prohibition, restraining the justice before whom the proceedings are instituted, from hearing or determining the same.
    Appeal from an order made at Special Term, sustaining the deinurrer of the relator to the return of the defendant to an alternative writ of prohibition granted by this court, and from the judgment thereon awarding to the relator an absolute writ of prohibition, restraining the defendant from hearing and determining certain summary proceedings commenced before him.
    J ohn II. McOunn died in 1872, possessed, among other property, of a leasehold interest in the premises No. 305 West Twenty-second street, New Y ork city. His will was duly proved December 4,1872, and James M. Gano, Thomas McCunn and Jane W. McCunn were appointed and qualified as executors and executrix thereof. 'On December 11, 1875, Francis J. Parker recovered a judgment in this court against said executors and executrix for the sum of $12,209.03, which judgment was docketed on the same day in the city and county of New York. On March 28, 1876, a receiver of the property of said John H. McCunn was appointed by this court, by an order made in two pending suits, one of them an action brought by Gano, executor, to have the will construed, and the other a suit in partition, brought by Patterson, an heir at law. The receiver so appointed took possession of the property of the •deceased. He subsequently resigned, and the relator, Higgins, was appointed and qualified as his successor. On May 1, 1876, after the receiver had taken possession, the surrogate of this county made an order granting leave to Parker to issue execution on his judgment. On September 2, 1876, execution was issued to the ■sheriff of the county of New York. On September 11, 1876, this court made an order giving leave to the sheriff to levy on assets in the receiver’s possesion, but not specifying any particular property •or description of property. On March 19, 1877,-the sheriff sold the leasehold interest in question, under the execution, to James A. Flack. A certificate of sale in the usual form was executed and filed, and on June 20, 1878, a deed of conveyance of said interest was executed and delivered by the sheriff to Flack, which deed was thereafter recorded. On September 19, 1879, the relator, Higgins, as receiver, leased' the premises in question to Virginia Herring, who entered into possession. On January 12, 1880, Flack demanded possession of the premises from Mrs. Herring. On J anuary 21, 1880, he obtained an order of this court allowing him to •commence and prosecute such actions or proceedings in any court having jurisdiction thereof, as he might be advised, to obtain possession of said premises. On January 29, 1880, he filed with the defendant, Mr. Justice McAdam, of the Marine Court, an affidavit setting forth in substance the facts above stated, and obtained from the said justice a summons, under the statute relating to summary proceedings, returnable on February 2, 1880. On the day appointed, Mrs. Herring and the relator appeared by counsel, and a, motion was made to dismiss the proceeding, on the ground that •the justice had no jurisdiction, which was denied. The proceedings were then adjourned by consent to February 14, 1880. On February 12, 1880, the relator procured and served an .alternative writ of prohibition, directed to Mr. Justice McAdam ■and to Flack, restraining the prosecution of the proceedings. Flack made no return to the writ, but wholly made default. Mr. Justice McAjdam made a return, which consisted in substance of a statement of the foregoing facts. To this return the relator demurred. The court, after argument, sustained the demurrer.

      Alfred McIntyre, for the appellant.
    A writ of prohibition ■cannot take the place of a writ of error or other proceeding for the review of judicial. actiou. (People ex rel. Smith v. Bussell, 19 Abb. Pr., 136-139; People ex rel. Bona v. Seward, 7 Wend., 518; People ex rel. Greeley v. Oyer c& Terminer, 27 How. Pr., 19; People v. Court of Common Pleas, 28 How. Pr., 477; People ex rel. Bean v. Bussell, 3 Abb. Pr., N. S., 232; People ex rel. Broionson v. Marine Court, 14 Abb. Pr., 266; McAdam, Landlord & Tenant, 317, and cases there cited; Thompson v. Tracy, 60 N. Y., 38; People v. Stwyvesamt, 9 Id., 263; Gignon v. Astor, 2 How. H. S., 338.) The justices of the Mar nine Court have jurisdiction under the act in relation to summary proceedings. (3 E. S., 6 ed., p. 824, § 28 ; Birdsdll v. Phillips, 17 Wend., 475.) The relator, if aggrieved, had an adequate remedy by certiorari to review the proceedings of the justice. (People ■ex rel. Thacher v. Clute, 42 How. Pr., 157; People v. Supervisors of Ulster Co., 31 How. Pr., 239; Exp. Brmdlacht, 2 Hill, 367; McAdam, Landlord & Tenant, above cited.)

      Butler, Stillman <& Hubbard, for the respondent.
    The remedy by writ of prohibition was the relator’s proper remedy. (People ex rel. Wheeler v. Cooper, 57 How. Pr., 416, and cases there cited.)' The defendant waived any objection to-the propriety of the remedy by filing a return, without, making a motion to quash the writ. The justice had no jurisdiction to hear or determine the summary proceedings in question. (2 B. S., 513, 2 ed., 529; L. 1879, ch. 101.) This statute, being in derogation of the common law, must be construed strictly. It gives a new remedy and creates a new jurisdiction, unknown to the common law. (Miner v. Burling, 32 Barb., 540; Farrington v. Morgan, 20 Wend., 207 Campbell v. Mallory, 22 How. Pr., 188; Deuel v. Bust, 24 Barb., 438 ; Hill v. Stoehing, 6 Hill, 314; People v. Boardman, 4 Keyes,. 59; 2 Crary, Spec. Proc., 281 ;■ Potter’s Dwarris on Statutes, 240— 259; Van Horne v. Dorrance, 2 Dali., 316; Brown v. Barry, 3 Id., 367.)
   Barrett, J.:

1. The tenant against whom these proceedings were instituted was not “ A person holding over and continuing in possession of real estate which had been sold by virtue of an execution against such person.” Her tenancy was not under McCunn’s executors, but under the receiver. No execution had been issued against her, nor against, the receiver under whom she holds. This receiver did not take under McCnnn’s executors, but under the order of this court in. certain actions pending therein. Nor was such receiver the servant or agent of the executors. Nor was there collusion between the person in actual possession, and the persons against whom the execution ran. The magistrate was, therefore, without jurisdiction. Prohibition will lie, because, although there was jurisdiction in summary proceedings in general, there was none upon the facts set. out in the applicant’s affidavit. It is said that as the magistrate had jurisdiction in summary proceedings generally, he necessarily had jurisdiction to decide whether the case was within the statute. This argument is fallacious. The jurisdiction is special and limited, and the magistrate is strictly confined to the terms of the act. The original application and affidavit must show a case within the statute, before tbe magistrate bas authority even to issue the original summons to show cause. Under any other view, these proceedings, which are useful enough if strictly pursued, would become a subject of grave apprehension. Ordinarily, ejectment is-the'natural and appropriate common-law remedy to recover the possession of lands, and we should not favor any attempt to effect the purposes of such an action, under the forms of these summary proceedings. The object of the statute was to afford the vendee of real estate, sold under execution, a summary remedy against the judgment debtor in possession. It was not intended further to extend the summary jurisdiction of magistrates in these proceedings.

In this connection, the fact should not be lost sight of that these proceedings cannot be stayed, and that there is no redress for the defeated and ejected tenant, save restitution after judgment of reversal on certiorari, followed by an action for the damages sustained.

2. The receiver was authorized to institute the present proceedings. It was his right and duty to protect and defend his tenant. As an incident thereto, he could institute a proceeding looking to that end.

■ For these reasons, as well as those assigned by Mr. Justice Beach, we think the order should be affirmed, with costs.

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

Order affirmed, with $10 costs, and disbursements.


author: Pee Coeiam :

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

      Costs — when the unsuccessful pan'ty on an appeal is not entitled to the costs-of it, though he finally succeeds.

    When the Court of Appeals reverses a judgment in favor of the plaintiff, and orders a new trial, with costs to abide the event, and on the second trial the plaintiff again recovers a judgment, he cannot tax, in his favor, the costs of the reversal by the Court of Appeals.
    Appeal from an order made at Special Term, refusing to allow the plaintiff to tax the costs of the reversal of a judgment in his favor, in the Court of Appeals.

      George A. Black, for the appellant.
    • Ba/oid J. H. Willcox, for the respondent.
   Pee Coeiam :

The Court of ¡Appeals reversed a judgment in the plaintiffs favor, with costs to abide the event.

The plaintiff, upon the second trial, having again prevailed, seeks to tax against the defendant the costs of the reversal. This he cannot dp. These costs were not awarded to him, but to the defendant, in case of the latter’s success upon the new trial. The following authorities are decisive of this question: Howell v. Van Siclen, 8 Hun, 524; affirmed, 70 N. Y., 595; Union Trust Co. v. Whiton, 17 Hun, 593; appeal to Court of Appeals dismissed, 78 N. Y., 491.

The orders appealed from should be affirmed, with $10 costs, and the disbursements of the appeal.

Present — Davis, P. 3., Beady and Baeeett, JJ.

Order affirmed, with $10 costs, and disbursements.


author: Per Curiam : Mr. Justice Lawrence :

text:
    JOHN BAXTER, Respondent, v. WILLIAM F. DRAKE, Appellant.

      Code of Civil Procedure, § 552 — when a defendant may be arrested in an action brought here on a judgment obtained in a foreign State.

    Under section 552 of the Code of Civil Procedure, a defendant may be arrested in an action brought in this State upon a judgment recovered in a Circuit Court of the United States, provided he might have been so arrested had the original action been brought here.
    Appeal from an order denying a motion to vacate an order of arrest.
    In the years 1871 and 1872, the Exchange and Deposit Bank of Knoxville placed in defendant’s hands certain bonds of the Wilcox Mining Company, he agreeing to sell them upon commission and account to the bank for the proceeds, or upon demand to return the bonds. He refused, however, to account for eighteen of the bonds, or to return the same. The bank thereupon brought suit against the defendant in the United States Circuit Court for the Eastern District of Tennessee, to recover the value of said bonds, alleging that the defendant promised and agreed that he would redeliver the bonds to plaintiff whenever thereunto requested, and that, although demand had been duly made, the defendant refused to redeliver the same. The bank recovered a final judgment in that suit for $13,318.50. The complaint in the present action sets forth the recovery of the judgment, and its assignment to this plaintiff. The answer consists merely of a denial of any knowledge or information sufficient to form a belief as to the assignment, and of a denial of any indebtedness.

      Sullmcm <& Cromwell, for the appellant.

      Beach <& Bemcm, for the respondent.
   Per Curiam :

This case only involves the construction of section 552 of the Code of Civil Procedure.

We are of opinion that the construction given by tbe court below is correct. And on tbe grounds stated in tbe opinion of Mr. Justice Lawrence, we tbinlc tbe order must be affirmed.

Tbe following is tbe opinion of

Mr. Justice Lawrence :

Tbe order of arrest seems to bave been authorized by tbe provisions of section 552 of the Code of Civil Procedure. Tbe note to that section states that it is new, and is intended to settle a question upon which tbe decisions conflict. The authorities relied upon by tbe counsel for tbe respective parties in this case are cited in tbe note, and I do not see bow it can be argued that the section was not intended to change tbe law as declared by tbe Supreme Court, in tbe case of Goodrich v. Dunbar (17 Barb., 644). If that is not the effect of tbe section, it has no meaning whatever. Motion denied, with costs.

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

Order affirmed.


author: Per Curiam :

text:
    SPENCER ERVIN and others, Respondents, v. THE OREGON RAILWAY & NAVIGATION COMPANY and others, Appellants.

      Foreign corporation — order for the inspection of its hooks — what it should require.

    An order for the inspection of the books and papers of a foreign corporation should not require it to produce books, kept and in constant use in its office in a distant State, before a referee in this State,- but should direct it to produce and deliver to the plaintiff sworn copies of so much of their contents as relates to the subject-matter mentioned in the order, within a reasonable time, to be designated by the order.
    Appeal from an order made at Special Term, directing an inspection of the books and papers of tbe defendant, tbe Oregon Railway and Navigation Company.

      A. H. Holmes, for the appellants.

      T. H. Hubbard, for tbe respondents.
   Per Curiam :

We axe of the opinion, that the order made in this case is altogether too broad and general in its character. The appellant is a corporation created under the laws of the State of Oregon, having its principal office and carrying on its business in that State. It is not shown that the books mentioned in the order, or any portion of them, were at the time of making the same within this State, although it does appear that the company has an office in the city of New York for some purpose not specifically shown. Although we .are of opinion that the case made was a proper one for an order, it should have been, we think, of a different character from that entered in the case. Oregon is an extremely distant State. Such of the books as are at the office of the company in that State are probably'in daily and frequent úse, and should not have been required to be produced before a referee in this city, because such an order might be the cause of great and unnecessary embarrassment and injury to the defendant. Orders of this character should only be made against corporations of distant States, with great care to see •that they are not used or abused to the prejudice of the defendants, ■and for purposes outside of the legitimate objects of the litigation. We think the order in this case is not sufficiently guarded to prevent such possible abuse. It should have directed that the hooks then within this State should be produced before the referee for •the purpose of the inspection named in the order; and that in respect to the books at the office of - the -company in Oregon, sworn •copies of their contents which relate. t.o the subject-matter mentioned in the order, should be produced and delivered to the plaintiffs by the defendants within a reasonable time, to be designated by the order. ■ ' ■

The order of the court below should be modified so as to accomplish these results only, and with such modification, it should be affirmed without costs of the appeal.

The order to be entered hereon may be settled before one-of -the judges who heard the argument, by either party, on five days’-notice to the other.. ,

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

Order for inspection of books and papers modified as directed in opinion, without costs. Order to be settled upon five days’ notice.


author: Pee Curiam:

text:
    THE DIRECT UNITED STATES CABLE COMPANY (Limited), Appellant, v. THE DOMINION TELEGRAPH COMPANY OF CANADA, GEORGE G. SAMPSON and THOMAS T. BUCKLEY, Respondents.

      Injunction — when proceedings in this State before arbitrators, appointed under a-submission entered into under a foreign statutebebween two foreign corporations, will not be restrained.

    Where two foreign corporations, created under statutes of Great Britain, have- ■' entered into an agreement, which provides that certain matters shall be: submitted to arbitrators, to be appointed and to act in New York, and that .all questions as to the regularity or validity of the proceedings shall be determined by the English Court of Queen’s Bench, the Supreme Court will not restrain either party from proceeding before such arbitrators because-■the other party alleges that the said arbitrators were not properly and legally appointed.
    Appeal from an order made at Special Term, denying a motion, for an injunction restraining the defendants from prosecuting a. certain arbitration, or from taking any proceedings or steps therein.
    The plaintiff and the defendant the telegraph company, who are: incorporated under the laws of Great Britain, entered into a business agreement which provided among other things that, in case of differences, each party should appoint an arbitrator in. New York; that, the two arbitrators so appointed “ and acting in the arbitration shall, within ten days after the appointment of such'one of them as shall be last appointed, appoint an umpire, who shall meet the arbitrators in New York, and if either of the parties in difference shall refuse- or neglect to appoint an arbitrator for the space of ten days after-being requested so to do by the other party, or shall appoint an arbitrator who shall, refuse or neglect to act as such,” then the; arbitrator chosen by the party making such request shall appoint an. arbitrator in place of the arbitrator refusing or neglecting to act. The award made shall be final -and conclusive, and shall be made au
      rule of the Queen’s Bench. The arbitrators are to have all the powers given to arbitrators by the Common Law Procedure Act of 1854.
    This action was brought to restrain the defendants from proceeding before certain persons claiming to act as arbitrators, on the ground that they had not been appointed as required by the agreement. ■

      Lewis L. Delafield, for the appellant.

      W. Dorsheimer, for the respondents.
   Pee Curiam:

The contemplated arbitration was between two foreign corporations, under a statute of Great Britain. New York happens to be-the place specified, in the contract for the submission. But all questions as to the regularity or validity of the proceedings are -to be determined by the English Court of Queen’s Bench. The parties have contracted for the exclusive action of that court, under what is known as the Common Law Procedure Act of 1854. Erom this there can be no deviation. Any interference on our part would be subversive of the contract, and an unwarrantable intrusion, into matters without our jurisdiction.

Again, there is no ground for an injunction. For, if Mr. Buckley’s appointment as arbitrator was unwarranted, the award will be a nullity, and the English court will refuse to execute it. If, on the other hand, the appointment was valid, we certainly should not attempt to stop the arbitrators in the due performance of their functions.

The order was right and should be affirmed, with $10 costs, and. the disbursements of the appeal.

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

Order affirmed, with $10 costs, and disbursements.


author: Pee Ouriam :

text:
    ETTA ARMSTRONG, Appellant, v. WILLIAM A. CUMMINGS, Respondent.

      Oosts awarded on sustaining a demurrer to apart of a pleading — assignability of them.

    Costs awarded upon sustaining a demurrer interposed by the plaintiff, to parts of an answer, are not'interlocutory, but final costs, and the plaintiff cannot recover nor assign them until judgment is rendered upon the issues in the action generally.
    Appeal from an order setting off certain costs awarded to the plaintiff by the court, on sustaining a demurrer interposed by her to parts of the defendant’s answer in this action, against an equal amount of a judgment for costs,-recovered against her by the defendant in another action in this court.
    • The plaintiff commenced, on December 19, 1879, an action in this court against the defendant and Mr. Justice Charles D. Ingersoll, then presiding in the Seventh Judicial District Court, to restrain certain proceedings instituted for the purpose of removing the plaintiff from premises owned by the defendant Cummings, for npn-paymont of rent. That action proceeded to trial, and judgment dismissing the complaint upon the merits, and for $104.52 costs, was entered in favor of the defendants, Cummings and Ingersoll, and against the plaintiff, on July 31, 1880.
    On March 10, 1880, after the commencement of the last-mentioned action, but before the trial thereof, plaintiff commenced this present action against the same defendant, William A. Cummings, for $20,000 damages for an alleged slander. The defendant answered the complaint in this action by a general denial, and by setting up various circumstances in mitigation of damages, as well as in justification. The plaintiff demurred to certain defenses of that answer. On June 22, 1880, an order was made sustaining that demurrer, “with costs,” which were taxed by the clerk on June 25, at $65.27? but no judgment has been entered therefor. The defendant duly appealed from that order to this General Term. On July 31 the said order was resettled so as to permit the service of an amended.answer, “ on payment” of the aforesaid costs. The.defendant then made this present motion to offset the costs due to the plaintiff under the order of July 31, against an equal amount of the judgment recovered by the defendants in the equity suit on the same day, and to be allowed thereupon to serve an amended answer, and to withdraw the appeal taken from the order sustaining the demurrer. On the argument of the motion, the plaintiff’s attorney produced what purported to be an assignment to one Hertzfield, of the costs awarded to plaintiff on her demurrer, and which purported to have been executed on June 23, 1880.

      Henry H. Morcmge, for 'the appellant.

      Thomas dk Wilder, for the respondents.
   Pee Ouriam :

We are of opinion that the costs of the demurrer were not capable of assignment at the time when such costs are said to have been assigned. They were not interlocutory, but final costs. They could not be enforced by precept or otherwise at this stage of the action. The plaintiff cannot recover them until judgment is rendered upon the issues in the cause generally. (Palmer v. Smedley, 13 Abb. Pr., 185; Mora v. Sun Mutual Ins. Co., Id., 304.)

Order affirmed.

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

Order affirmed, with $10 costs, and disbursements.


author: Per Cdriam:

text:
    SAMUEL H. RANDALL, Appellant, v. JOSIAH CARPENTER and others, Respondents.

      Injunction — insolvency of one of the sureties to an undertaking, given on the granting of an injunction — remedy of the pa/rty enjoined.

    The insolvency of one of the sureties to an undertaking given by the plaintiff, upon procuring an injunction, furnishes no ground for the granting of an order staying generally all proceedings on the part of the plaintiff in the: action; the order should direct that the injunction be dissolved, unless the plaintiff file a new undertaking, within a specified period, ■:
    Appeal from an order made at Special Term, staying all the plaintiff’s proceedings in the action, until he should file a new undertaking in lieu of the one heretofore filed by him, on the ground that one of the sureties thereto had became insolvent, and left the State.

      Samuel H. Pcmdall, for the appellant, in person,

      Ed/wa/rd P. Wilder, for the respondents.
   Per Cdriam:

The defendants mistook their remedy. The ■ insolvency of one of the sureties upon the injunction undertaking, was no ground for staying plaintiff’s proceedings generally. The temporary injunction could have been dissolved, unless a new and sufficient surety were supplied. But that was all. The action was not dependent upon the provisional remedy. The granting or withholding of the latter was a matter of discretion. But the prosecution by the plaintiff of his action was a matter of right.

The order should have directed that the injunction be dissolved, unless the plaintiff file a new undertaking as directed in the present order, within a specified period. A modification to that effect may now be made, and the order is so modified without costs of the motion, or of this appeal.

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

Order modified as directed in opinion, without costs of the motion, or of the appeal.