text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CORNELL UNIVERSITY v. IRA DAVENPORT, Comptroller of the State of New York.

      Zands given by the act of congress of 1862 to the Slate to aid agricultural colleges — liability of the State to the United States — when such liability cannot be enforced against the State either by the comptroller or a person entitled, to the income — purchase of bonds at a pn'cmium for a trust fund — rights of the tenant for life and remainderman — Act of Congress, chap. 130 of 1862 — Laws of New York, 1863, chap. 460 — 1865, chap. 585.
    By chapter 130 of 1862 congress gave to the several States certain public lands for the purpose of aiding colleges which should teach agriculture. The moneys derived from the sale of the lands were to constitute a perpetual fund, the capital of which was to remain forever undiminished and he invested in safe stocks, yielding not less than five per cent. It was further made a condition of the grant that if any portion of the fund invested, or any portion of the interest, should by any action or contingency he lost, it should be replaced by the State, so that the capital should remain undiminished and the annual interest should he regularly applied without diminution.
    By chapter 460 of 1863 the legislature of this State accepted its share of the lands and authorized them to he sold and the proceeds invested in stocks of the United States or of this State, or in other safe, stocks, yielding not less than five per cent. It declared that all the expenses of managing and disbursing the money should he paid by the State, so that the entire proceeds of the sale' should he applied without any diminution whatever to the purposes mentioned in the act of congress, and that the capital of the fund should forever remain undiminished and he deposited in the State treasury. Chapter 585 of 1865 appropriated “the income, revenue and avails which shall he received from the investment of the proceeds of the snie” to .Cornell University for the aforesaid purposes.
    Between October 1, 1883, and February, 1883, the comptroller purchased with moneys belonging to the said fund United States four per cent bonds of the par value of $300,000, payable in 1907, paying therefor $338,394.81, the sum of $38,3'.i4.8l being paid for accrued interest, premiums and commissions. He charged the sum of $300,000 to the principal and $38,394.81 to the income of the fund, thereby largely overdrawing the latter account. The University claiming to be entitled to five per cent on the principal of the fund held by the comptroller, whether the fund earned that amount or not, applied for a mandamus to compel the comptroller to pay over to it such five per cent after deducting the payments already made. The comptroller claimed that he should make no payments until the income account had made itself good.

      Held, that whatever might he the effect of the agreement entered into between the United States and the State, and whatever liability the hitter might have incurred to the former to provide for the payment of five per cent upon the principal fund received, such questions could not be considered upon this application; nor could either the comptroller or the .University compel the State to fulfill any obligation it might have assumed.
    That the University had no right or interest in the matter, except that conferred upon it by chapter 585 of 1865, viz., to receive the actual income of the fund. That the actual income of the fund was the amount which it earned, remaining itself intact.
    That the amount paid for the interest which had accrued on the securities purchased was properly charged to the income account.
    That the amount paid for commissions should not have been charged to either account but should have been borne by the State.
    That the amount paid for the premiums should not have been at once charged to the income account, hut that from the annual interest received by the State upon its investment should he deducted such a sum as, if annually added to the par value of the securities, would at the maturity thereof represent a sum equal to the amount paid for such securities, and that the annual interest received by the State, after making such deduction therefrom, should he paid to the University.
    That the residue of the interest received should he added to the principal so as to keep the amount of the original investment unimpaired.
    Appeal from an order made at a Special Term denying a motion for a writ of mandamus.

    By chapter 130 of tbe Laws of 1862 the congress of the United States gave to the several States certain public lands for tbe purpose of aiding colleges which should teach agriculture, etc. The moneys derived from the sale of these lands or land scrip were to be invested in safe stocks, yielding not less than five per cent, were to constitute a perpetual fund, the capital of which was to .remain for-fever undiminished and the income to be applied as above stated» The assent of the several States to all the provisions of this act of congress was to be signified by legislative acts.
    By chapter 460 of the Laws of 1863 the legislature of this State accepted its share of these lands. The act authorized the sale.of the lands and the investment of the proceeds in stocks of the United States or of this State, or in other safe stocks, yielding not less than five per cent. It declared that all the expenses of management and disbursements of the moneys should be paid by the State, so that the entire proceeds of the sale of the lands should be applied, without any diminution whatever, to the purposes mentioned in the act of congress, and that the moneys invested should constitute a perpetual fund, the capital of which should forever remain undiminished (with an exception which is not material to the present case). It directed- that the moneys received by the comptroller under this act should be deposited in the treasury as a trust fund.
    By chapter 585, Laws of 1865, the legislature provided, in substance, that the income, revenues and avails -should be paid to Cornell University for the purposes defined in the act of congress on certain conditions which it is unnecessary to mention. It is not disputed that Cornell University is the beneficiary of the fund under the laws now existing.
    Before October 1, 1881, the principal of the fund had become settled and fixed at $473,407.87, and it is known as the college land scrip fund.
    On the 1st day of. October, 1881, the balance of revenue in the treasury was..........•.......... $3,203 47
    The income during the year ending September 30, ■ 1882, was................................... 20,074 27
    $23,277 74
    Paid Cornell University............. $18,700 00
    Paid premium on U. S. bonds • purchased............... $718 61
    Interest accrued............ 2 47
    -- 721 08
    -- 19,421 08
    Balance of revenue in treasury, October 1, 1882 ____ $3,856 66

      Balance of revenue October 10, 1882.............. $3 901 66
    Since'tbat time there has been received as interest...1 7,280 76
    Total revenue to February 10, 1883........... $11,182 42
    On the 1st day of October, 1882, there was of the principal of the .fund a sum uninvested of $262,309.12. On the second and tenth of that month the comptroller purchased $200,000 United States four per cent bonds, for which he paid $238,394.81 as follows: .
    Face of the bonds.............................. $200,000 00
    Interest accrued.................... $131 51
    Premiums......................... 38,013 30
    Commissions..................... 250 00
    -- 38,394 81
    $238,394 81
    Since that time the comptroller has also purchased $10,00(5 Albany county three and a-half per cent bonds for $10,316.66, as follows:
    Face of the bonds.............................. $10,000
    Accrued interest................... $116 66
    Premium......................... 200 00
    316 66
    $10,316 66
    On making the aforesaid payment of $238,394.81 the comptroller charged $200,000 as paid from the principal fund, and charged $38,394.81 against the revenue account. In like manner, on paying the sum of $10,316.66 aforesaid, $10,000 was charged as paid from the principal, and $316.66 was charged against the revenue account. Thus on the 10th of February, 1883, the revenue account stood overdrawn $27,529.05, and the uninvested capital stock at $52,309.12.
    Appropriations to Cornell University were made by the legislature, payable from the college land scrip fund revenue as follows: In 1881, $25,000, and in 1882, $25,000, on which the only payment made is that above mentioned of $18,700. The comptroller refuses to make any further payments, claiming that the income of the fund must make good the amounts charged against it as above for interest, premiums and commissions.
    It is admitted that the investments above mentioned were the best that could be made by the comptroller of the moneys, and that the same draw the most interest obtainable therefrom. The relator claims that it is entitled to five per cent on the principal, whether the fund earns that amount or not, and that it is entitled to as much more as the fund actually earns. The relator asked for a mandamus requiring the comptroller to draw his warrant for $28,640.29, being five per cent on the principal for two years, less $18,700, paid as aforesaid. The motion for a mandamus was denied and an appeal was taken to this court.

      & D. Hallidon/, for the relator.

      Leslie W. Russell, attorney-general, for the comptroller.
   Learned, P. J.:

In considering the duties of the comptroller we can look only to the statutes of this State. Whatever may be the terms of the act of congress; whether, or not, the State promised by its statute to comply with those terms; whether the statutes of the State are, or are not, a substantial compliance therewith; all these are questions with which we have nothing to do. The comptroller is an officer-of the State and must obey its laws. He cannot disobey them, on the ground that, by the contract with the United States, the State should have passed a different law. That is a matter between the United States and this State. Perhaps the statute of the State does not conform to the conditions of the grant. But whether it does, or not, we must be governed by it.

The first clause of section 5 of the act of congress declares, as a condition of the grant, that if any portion of the fund invested or any portion of the interest shall, by any action of contingency be diminished or lost, it shall be replaced by the State; so that the capital shall remain undiminished and the annual interest shall be regularly applied without diminution. Now, it is urged by the relator that that condition, accepted by the State, constructively imposes on the State an obligation to make good the interest at the rate of five per cent at all hazards. If this be so, tbe question whether the comptroller should have charged premiums against the revenue account is of little consequence; since, on that theory, he is to pay the relator five per cent without any reference to his receipts. Rut certainly the comptroller has no right to compel the State to perform this contract, which it is supposed to have made with the United States. If such a'contract was made by the act of 1863, it is for the legislature alone to carry it out, by providing for deficiencies of income. The comptroller can only obey the laws already passed.

Further still, the relator stands in no position to insist on the benefit of the conditions contained in the act of congress. The relator is a mere volunteer, to which the legislature, by chapter 585, Laws of 1865, appropriated “the income, revenue and avails which shall be received from the investment of the proceeds of the sale.” The legislature did not, by that, act, or by the provisions of chapter 511, Laws of 1863, agree with the beneficiary that the income should be five per cent on the principal. It appropriated the income, such as it might be. If the State had agreed with the United States that it would replace any deficiency of the interest, lost by action or contingency, it could appropriate the amount thus replaced to any college within the intention of the act of congress. What it appropriated to the relator was only the actual income. To give the construction claimed by the relator would be to carry the doctrine of Lawrence v. Fox to a more mischievous extent than has yet been done. The legislature said to the relator we will give you the income which shall be received. The relator now says to the comptroller, give me the income which has not been received; because the State promised the United States to replace any deficiency.

We think, then, that the relator is not entitled to require the comptroller to pay five per bent on the principal, without regard to the actual income.

Another question is presented; and that is, what is the actual income ? The comptroller insists that the sums paid for premiums, -commissions and accrued interest must be made good out of the ■earliest receipts of income; and that, not until these sums shall have been made good, will there be any income from which to pay the relator. The relator insists that these sums are not chargeable against income, but that they must be taken from the principal; thus imposing an obligation upon the State to replace the deficiency, which must arise therein.

And just at this point we may say what was in substance said above. The relator has no right to ask 'the comptroller to do any act which shall diminish the principal. Even if we were to assume that, whenever premiums are paid on the purchase of investments, the State ought to pay them, as it might pay expenses of taking care of the fund, still the State has not done this. And the comptroller has no right to do it. That is, he cannot treat the premiums as an éxpenditure, which the State ought to make good, and which he will, therefore, compel the State to make good, or else to leave the principal impaired.

The sums thus charged against the income, or revenue account, are •of three kinds, viz., accrued interest, commissions and premiums.

First. Accrued interest. That is properly charged against the income account. It is the interest already earned by the security purchased, and the amount of it will be returned to the interest account when the purchased security makes its next payment of interest.

Second. Commissions.

The act of the State (chap. 460, Laws 1863, § 3) requires that all •expenses in the management and'disbursement of the moneys which shall be received from the sale of the land scrip, shall be .paid out •of any moneys in the treasury not otherwise appropriated; so that the entire proceeds without any diminution whatever shall be applied to the purposes mentioned in the act of congress. Commissions paid on the purchase of securities are expenses incurred in the management of the moneys. They are not chargeable to the income account, nor to the principal.

Third. Premiums. These present the most important and most difficult question. When- the law of 1863 was passed it was evidently thought that a safe stock, yielding five per cent on the par value, could be purchased at par. Einancial afEairs have so changed ■that a four per cent stock of the United States is worth, and was worth at the time referred to in the present papers, more than nineteen per cent premium. It has become impossible' to do what was contemplated by the act of congress and by the statute of this State, viz., to invest the fund in safe stocks at par bearing five per cent interest.

As between the State and the United States we do not think that it was intended that the State should guaranty that the fund, safely invested,- would forever produce five per cent. All that could have been intended was that the State should replace the loss of the fund,, or of part of it, arising from inability to collect and like causes. And, so far as the present question is concerned, there is nothing in the statutes, which the relator can insist upon, as a guaranty to-it that the fund shall be preserved inviolate.

The question for the relator is what, under the circumstances, is-the actual income of the fund. The income from an investment is that which it earns, remaining itself intact. Now it is plain that,, so far as the present question goes, it matters not whether the comptroller bought these United States stocks in the market, or bought them directly from the government itself. But the matter to be decided will appear more clear, if we consider the dealing to have been directly with the government. Viewed in that light the transaction was this: The comptroller loaned to the government (in round numbers) $238,000, receiving therefor its agreement to-repay, in the year 1907, $200,000, and meantime to pay four per cent annually on the latter sum. This does not present the case-of a loss, or accident, or failure to collect. It is a part of the-bargain, that, in order to secure a greater amount annually, the lender consents to take less at the end of the .loan. If the comptroller had lent to the government $238,000, to be repaid in frill, he would have received rather less than three per cent; taking as-authority for that statement the market price of stocks, and the income would have been (say) $7,100. Hence it may be seen that the whole of the $8,000 annually received on the four per cent, stocks cannot justly be considered income.

It is a,, common matter with bankers and dealers in stocks to compute, by the aid of tables, what the actual income is, of a stock running a certain definite time, for which a certain premium is-paid. That actual income is plainly less than the amount yearly received, because the premium paid must be so distributed, in the-calculation, over the time the stock has to run, thatdhe owner at the-end of the time will have his original investment unimpaired-Otherwise (though he may not notice this), he will have been gradually impairing his capital; in fact, using it up in the form of income.

To illustrate this, let us suppose a person is trustee for one for . life with remainder absolutely to another. The trustee holds $120,000. If he invests in three per cent United States bonds at par, the tenant for ]ife receives annually'$3,600 and the remainder man will (except for unforseen calamities) have the estate unimpaired.

But if, in order to give the tenant for life a better income, the trustee invests in United States four per cepts (say at 120) and pays all that is annually received to the tenant for life, then such tenant receives $4,000 annually, and the remainder man, supposing the tenant to live to the year 1907, gets but $100,000. (See Farwell v. Tweddle, 10 Abb. N. C., 94.) This would not he just. Nor on the other hand would it be just to stop all payment of income for five years, until the annual $4,000 had made up the premium of $200,000.

That the mode of charging adopted by the comptroller is not fair may be seen from this. ' In a year or two the revenue Will have paid these premiums. And at that time these United States four per cent bonds, standing in the account of principal at' $200,000, will still be worth nearly their present amount of $238,000. So that, at the expense of the income, the principal will then have been increased by about $38,000; an increase which, of course, will eventually be lost, when the bonds are paid off.

On the other hand, the rule above stated will maintain the principal and available revenues uniform. That rule is that so much only of the moneys received annually on these bonds shall be treated as income as, according to the computations and tables above mentioned, they are found to produce. (We do not attempt te make the calculation. It is probably about $7,100.) The residue belongs to the principal; and annually added thereto will make up for the gradual depreciation which must come, as the bonds approach maturity; and will keep the fund unimpaired when they are paid off.

It will be noticed that we have not been discussing the case of accidental losses, or of fluctuations in value; but only the case where a sum has been invested, upon an agreement to receive back a certain definite less sum, at a certain fixed time, and meantime a certain annual payment. In that case wc think that the whole of the annual payment cannot be treated as income ; when a question arises between the principal fund on the one hand and the income on the other. The income, as above said, from an investment is that which it earns, remaining itself intact.

The view of the matter above stated will probably entitle the relator to a mandamus requiring the- comptroller to pay a certain sum ascertainable by calculation. And that amount can be ascertained and fixed in the order.

Order denying mandamus reversed and mandamus granted ■according to above views. No costs.

Present — Learned, P. J., and Bookes, J.; Boardman, J., not acting.

Order reversed and ma/ndamus granted according to the terms of the opinion.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    ELIZABETH SNYDER, Appellant, v. SYLYESTER SNYDER and PHILIP R. SNYDER, as Executors, etc., of WILLIAM SNYDER, Deceased, Respondents.

      Executor — a claim originally existing in favor of an exeuior against the estate of the deceased must he presented to the surrogate for allowance, although it is held at the time hy an assignee — Code of Civil Procedw'e, secs. 2739, 2740.
    After the death of the defendant’s testator, one of the defendants, a son and one of the executors of the testator, assigned to the plaintiff, his wife, through a third person, all claims and demands which he had against the testator, or his estate, for services rendered, under a written, agreement entered into between him and the testator in the lifetime of the latter, in supplying the testator with necessaries, and taking care of, and nursing him. .

      Held, that the plaintiff could not maintain an action in the Supreme Court, against the executor, to recover the amount due under this agreement; but that the claim should be presented to the surrogate for allowance as provided by sections 2739, 2740 of the Code of Civil Procedure.
    Appeal from a judgment in favor of the defendants, entered upon tlie trial of this action by a referee.
    The plaintiff is the wife of Philip Snyder, one of the defendants. She brings this action to recover for services rendered to "William Snyder, deceased, the testator and the father of Philip.

      On the trial of the action the plaintiff called as a witness defendant Philip, and, under the objection of the defendant Sylvester, proved the care which his wife and daughter took of his father. He also testified, under cross-examination, that he took the care of his father nine-tenths of the time; that sometimes his sons helped — sometimes his wife and daughter; that they all lived together. He further testified that he assigned this claim to his wife after his father’s death. After some other witnesses had testified for the plaintiff she testified, under objection, that "William Snyder was sick in 1874,1875,1876,1878. The plaintiff then gave in evidence a written assignment dated February 19,1879, assigning to George Barker an agreement made by William Snyder, January 17, 1874, agreeing to pay Philip for the services of Philip and his family in taking care of William since the time when he sold Philip a part of his farm; and all moneys due under the agreement and all claims and demands against William or his estate due from him for board, care or services of Philip or his family in taking care of him. Also an assignment of the same date from Barber to plaintiff of all the said agreement made by William, dated January 17, 1874, and all claims and demands which were assigned to Barber by Philip. These were received under objection.
    The defendant then moved to strike out the evidence of Philip, as it then appeared that he was assignor to plaintiff. This was granted so far as it related to personal transactions and communications with deceased.
    A witness called for the plaintiff then proved a written agreement by William, dated January 17, 1874, promising to pay Philip for the services of himself and family in taking care of him since the time he sold to Philip a part of his farm. The claim of the plaintiff was for services from August, 7, 1874, to the death of the testator, December 4,1878.
    •The referee found that during all this time Philip provided for .the family and for the board of William, and the plaintiff and his own two sons and daughter and supplied the house, and that plaintiff performed and discharged the duties of wife, mother and housekeeper ; that the extraordinary care required by William in his sickness was rendered by Philip, the plaintiff, Philip’s two sons and his daughter; the most arduous part by the plaintiff.

      The referee found that prior to this action Philip assigned to plaintiff (through Barber) the agreement aforesaid and all his claims for compensation and services of himself and family. That several times since 1874 and prior to his last sickness William promised to pay plaintiff, Philip’s wife, for his board, when in usual health four dollars per week and from one to seven dollars per day when sick according to the services; that plaintiff had no separate estate and carried on no separate business.
    He also found that from 1864 to August 1874, William boarded with Philip and Philip furnished board, washing and lodging to him at four dollars per week, for which William settled with Philip August 4, 1874
    He held that the plaintiff was not entitled to recover for the’ value of the services rendered by her, as her services belonged to her husband, and that she could not recover as the assignee of her husband in the Supreme Court.

      Merritt Kmg, for the appellant.

      8. D. Hallidg/y, for the respondents.
   Learned, P. J.:

We think that there is no sufficient evidence that there was any contract made with the plaintiff by William Snyder. The facts are against such a theory. In the first place, down to August 4, 1874, it is undisputed that the board, etc., were furnished by Philip and Philip was paid therefor. Next the written contract of January 17, 1874 is an agreement to pay Philip for the services of himself and family (which included the plaintiff) in taking care of William.

Again there is no reason for any change in this respect after August 4, 1874. William continued to live in Philip’s house, that is, in the house which Philip occupied, the same as before. Philip and his family, including the plaintiff, continued to care for him in the same manner; although of course giving him increased ' attention, as he became more infirm. Philip, all this time, had the use of the farm; that is from 1864 down to the time of trial; without paying any rent. Or as Philip says: I, have not paid him a dollar for the use of the land, but have in services in taking care of him. This was a farm of seventy-five acres, after Philip had bought twenty-three acres from William; and Philip says his father gave him a deed of one-fifth of the seventy-five acres and of twelve acres for taking care of him and gave him also the stock and sheep. As a matter of fact, too, during'all this time, Philip supplied the provisions and necessaries of life; and without dispute the labor of his two sons and daughter in the case of his father. It is not credible that there was a bargain by which the labor of the plaintiff was to be separated out, and performed on her own account. Nor is there any evidence to justify a finding that the plaintiff was to be paid for the provisions which Philip furnished and for the labor and services of Philip and of his sons .and daughter. Yet if one construction urged by the plaintiff is to be followed, she was to be compensated, not for her own labor alone, but for that of the husband, his sons and his daughter, and for the provisions and necessaries he furnished. Because the alleged promises to plaintiff were to pay four dollars per week and extra when sick. And it is not pretended that this amount does not cover all that William received from Philip and his whole family.

There is no need of any such unreasonable construction. The testimony given that the testator promised to pay plaintiff so much is easily understood. It was a statement of the amount to be paid, not of the person to whom the amount was to be paid. The husband and wife were living together; both taking care, as was right, of the infirm father. There was no special intent to pay thé wife. 'And this is very evident from the circumstance that by giving the husband the use erf the farm the father was all the time paying him for these very services, or at least paying him in part. No one can fail to see that the use of the farm was, to the extent of its value, to pay for the care the old .man needed. And that use was all the time going to Philip.

Furthermore, the assignment by Philip to Barber, and through him to the plaintiff, is additional evidence, if any were .needed, that neither the plaintiff nor Philip considered that tl^e claim for these services was hers in any other way than by assignment from him.

Against all these circumstances we have merely the testimony of Philip, of his two sons and his daughter, that they heard the old man say he would give the plaintiff four dollars per week, and extras as above stated. Testimony to sncb conversations are of little weight, under the circumstances, against the undisputed facts. The daughter even testifies, on cross-examination, “he told my father and mother he would give them so much for taking care of him.”

The referee finds that Philip assented to the arrangement made by the plaintiff. But he seems to rest that finding upon the assignment by Philip to the plaintiff through Barber. And this assignment is, on the contrary, a repudiation of any such arrangement. Por, if the debt was contracted with plaintiff, Philip had nothing to assign.

"We are of opinion, therefore, that the referee erred in his findings of fact, so far as they imply that there was any contract with the plaintiff.

Another very important question arises, upon which unfortunately this court disagreed when the case'was here before, and that respects plaintiff’s claim as assignee of Philip. The question is, whether an executor, having a simple claim against the estate on contract, can assign that claim to a third person, and thus authorize such third person to sue the executor or the executors. The defendant insists that any claim of one executor can be collected only by its being allowed by the surrogate. (Laws 1837, chap. 460, §§ 33, 87; Code, §§ 2739, 2740.)

As is well known, the executor could formerly retain property in satisfaction of his claim. (Rogers v. Hosack, 18 Wend., 319.) N ow that right has been taken away; and the debt must be allowed by the surrogate. It would hardly be claimed that, if there were a sole executor, he could assign a claim which he had against, the testator, and permit himself to be sued thereon; or, at least, that such suit Would protect him on his accounting.

If there are two executors and one has the assets in his hands and claims a debt to be due to him he cannot retain in satisfaction; and an action against the other would be useless. If one has the assets and the other has none, and if the latter claims a debt to be due to him, the former cannot pay, because the money paid would still be assets, which the latter could not retain in satisfaction of his debt until his debt was proved before the- surrogate. The delivery of assets by one executor to the other does not even discharge the former. (Mesick v. Mesick, 7 Barb., 120.) The claim of the executor can only become effective upon allowance by the surrogate. (Kearney v. McKeon, 85 N. Y., 136.) And it is difficult to see why the assignee of an executor should stand in any better position than the executor himself. There are evident reasons why it would be dangerous to permit an executor to give, by assignment, a right of action at law upon a claim held by him against the estate.

The provisions of the Revised Statutes on this subject were intended to compel an executor to prove his claim before the surrogate on notice to the persons interested. Suppose he assigns his claim and allows himself to be sued and a judgment to be recovered against him, what would be the effect ? If the judgment is to be of any use at all, then it can no longer be necessary to pro, e the debt before the surrogate, and those interested are deprived of the opportunity given by statute.

It is claimed by the plaintiff that the Court of Chancery had (and therefore that this court has) jurisdiction of controversies between executors in regard to claims of the estate. And some cases are cited in support of this view. Decker v. Miller (2 Paige, 149) was the case of a bill filed by two executors against a co-executor to compel the payment of a bond given by him to the testator. The defendant claimed the right to retain, in preference to other bond creditors. That was before the Revised Statutes. Smith v. Lawrence (11 Paige, 207) was an appeal from a surrogate’s order and not a case of original jurisdiction. Sanford v. Sanford (45 N. Y., 123) was an action at common law on a note. The plaintiff claimed to be the owner in her own right, and the defendant insisted she was not. Wurts v. Jenkins (11 Barb., 546) held that an action may be maintained by executors against their co-executor to compel him to pay a debt which he owed the estate, necessary to pay a sum de'creed to be due them for moneys paid on account of the estate. McGregor v. McGregor (35 N. Y., 218) was the revival of a foreclosure action by one executor against the mortgagor, a co-executor.

Thus not one of these cases shows that an executor, having a claim against the estate, may bring an action therefor against his co-executor. It is undoubtedly unsafe to lay down an absolute rule that this court has no jurisdiction of this class of actions. Peculiar circumstances may arise when jurisdiction should be taken. But, take this simple case, and I think Philip should not be allowed to maintain an action against Sylvester, or against Sylvester and himself jointly. If Sylvester had voluntarily paid this claim to Philip, would not Philip have been obliged to account for the money so paid as assets ? That is, before he could retain that money, he must have proved his claim before the surrogate. And if this be true of a voluntary payment it is necessarily true of a payment under a judgment to which only the two executors are parties. The chai’acte'r of the funds, whether in the hands of one executor or of the other, cannot be changed until a decree of the surrogate is had.

The finding of fact then must be reversed, so that it shall be found that the services were not rendered by the plaintiff on her own account but on account of Philip, and the indebtedness did not accrue to her. And the judgment must be affirmed, with costs, without prejudice to the presentation of any claim by Philip on his accounting.

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

■ Judgment affirmed, with costs, without prejudice to the presentation of‘any claim by Philip in his accounting; certain findings, of fact reversed according to opinion.


text:
    HARRY JEWETT, as Receiver, etc., Respondent, v. FREDERICK H. NOTEWARE and HARRIET NOTEWARE, Appellants.

      Fraudulent conveyance — a debtor may give one creditor a preference over another, without being guilty of fraud.

    A wife loaned to her husband the sum of $1,100 belonging to her, upon the agreement and understanding that he would give her security therefor. Thereafter he executed and delivered to her a mortgage for that sum and the interest accrued thereon. The mortgage was given for the purpose of protecting and securing the payment of the said indebtedness and of preventing the plaintiff (who was appointed a receiver under a judgment recovered in an action for slander pending, at the time of the giving of such mortgage, against the husband) from taking the property by virtue of any judgment that might be recovered therein, and the same would not have heen given had not the said action heen pending.

      Meld, that the mortgage was valid, and could not he attacked by the receiver so appointed in the action for slander, after the recovery of a judgment therein.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought by the plaintiff, as the receiver of the property of the defendant Frederick H. Noteware, to set aside a mortgage given by him to the defendant Harriet, his wife, upon the ground that it was fraudulent and void as to creditors. The receiver was appointed .under a judgment recovered in an action for slander, brought by Alice E. Conant against the defendant Frederick Noteware.

      J. McGuire, for the appellants.

      Gabriel L. Smith, for the respondent.
   Learned, P. J.:

The learned justice found as matter of fact that the defendant Harriet Noteware, at the time of her marriage, had a separate estate of $1,200 in her own right; that soon after she let her husband have $1,100 . upon the agreement and understanding that he would give her security therefor ; and that the mortgage in question was given to secure that sum and the accrued interest. He further found that the mortgage was given for the purpose of protecting and securing the indebtedness which she had against her husband ; and for the purpose of thereby preventing the plaintiff in the slander suit from taking the property of her husband by virtue of any judgment which that plaintiff might obtain; that the mortgage would not have been given, had it not been for the pendency of that slander suit. He, therefore, held that the mortgage was fraudulent as to that plaintiff, and that it was given for the purpose of hindering and delaying said plaintiff; that the defendant Harriet and her husband, in giving and receiving the mortgage, had been guilty of using the valuable and just indebtedness of said Harriet against her husband as an instrument of fraud, for the purpose of cheating and defrauding the plaintiff in the slander suit, and hindering and delaying her in the collection of her judgment.

The proposition of law thus applied is this; that if a debtor mortgages land to a creditor for the exact amount of his just and lawful.debt, that mortgage is fraudulent, if the debtor and creditor intend thereby also to prevent some other creditor from collecting his debt out of that land.

We think that proposition is incorrect. A debtor has a right to prefer one creditor over another, even though the effect be to prevent that other from collecting his debt. Indeed, whenever an insolvent debtor gives a lien to one creditor, the intent must be to put the property, to that extent, beyond the reach of all other creditors.

That is the very idea of preference. There is nothing fraudulent in this. It is a well admitted right, except as against bankrupt laws. When a debtor is insolvent and a vigilant creditor obtains security for his debt, the intent of both debtor and creditor is that other creditors shall not have the property on which the lien is given, except subject to the lien. And this the debtor and creditor may lawfully do.

We find no case supporting the contrary. In Union Bank v. Warner (19 Sup. Ct., N. Y. [12 Hun], 806) the sons were not creditors of the father. Their alleged agreement to pay his debts was a part of the fraudulent transaction, and fell with it. See Keefe v. Warner (Third Dept., Nov., 1880), following the decision of Nellis v. Clark (20 Wend., 24; S. C., 4 Hill, 424).

The case of Davis v. Leopold, (87 N. Y., 620) was of similar character in this respect that the wife was not a creditor and the transfer was not to secure a debt owing to her.

The case of Crowninshield v. Kittridge (7 Metc., 520) was one where for a debt of $400 a mortgage of $600 was given, in order to cover the property, and therefore presents an entirely different question.

The case of Wadsworth v. Williams (100 Mass., 126) is not the case of a creditor to whom a debtor transferred property to secure a debt.

These are the only cases cited by the plaintiff to sustain the position taken by the learned justice, and they are not in point. We do not see how the act of a Iona fide creditor in taking security for the exact amount of his debt can be fraudulent as to other creditors, no matter what the intent may have been. The creditor might haye sued the debtor and thus might have recovered a judgment which would have become a lien. And if the debt were valid, how could another creditor have objected to the recovery ? (Beards v. Wheeler, 76 N. Y., 213.)

■We confine ourselves entirely to the facts as found by the learned justice, without examining .the question whether he might not have found that the alleged debt was not a valid claim. (See in that connection Metsker v. Bonebrake, 27 Alb. Law Jour., 471 [¶] ,S. Sup. Ct.]) ' .

The judgment is reversed and a new trial granted, CQsts to abide event.

Present — Learned, P. J., and Boardman, J.; Bookes, J.? not sitting.

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


author: Learneb, P. J. :

text:
    In the Matter of the Assignment of JOSEPH THOMPSON.

      General assignment — a .usurious debt is rendered valid by being included in the schedules made by the assignor,— a. county judge cannot set aside an assignment on the ground that it was procured through undue influence or fraud — by wiiat persons such an application should be made —1877, chap. 466, and 1878, chap. 318.
    Where within twenty days from the time pf the making of a general assignment for the benefit of creditors the assignor prepares an inventory of his .property and a schedule of his creditors, and includes .in the latter the owner of a usurious bond and mortgage given by him, he thereby recognizes the validity of the bond and mortgage and renders them valid and enforceable as against the assigned property.

      Chapin v. Thompson (89 N. Y., 270) followed.
    Chapter 466 of 1877, as amended by chapter 318 of 1878, providing for the makipg of general assignments, does not confer upon a county judge power to entertain a proceeding to set aside a general assignment upon the ground that it was procured by the undue influence of the assignee, or was made with the intent to hinder and delay the creditors of the assignor.
    In no event could an assignment be set aside as having been made- with intent .to defraud the creditors of the assignor upon the application of the latter, or of any of his general creditors who had not procured judgments against him.
    Appeal from a judgment of the County Court of St. Lawrence county

      On the 22d of October, 1877, Joseph Thompson made an assignment to Abiel E. Helmer for the benefit of creditors without preferences.
    In October, 1878, Thompson presented a petition to the County Court setting forth that at the time when he made said assignment he was not insolvent but had property sufficient to pay all his debts-; that the assignment was procured by the undue influence of Helmer without the petitioners understanding the purpose or effect thereof. The petition also set forth certain facts tending to show that Helmer had mismanaged the trust, and also that there was an error in the inventory and schedules. The petition prayed that Helmer might be removed ; the assignment canceled, the property restored to the petitioner, and Helmer be required to- account. Twenty-six of the creditors of Thompson united in the petition. Thereupon an order was made by the County Court enjoining Helmer from doing any act except to preserve the property, etc., and directing that a •citation issue to all parties interested as creditors or otherwise, to show cause why Helmer should not be removed; the assignment be Canceled; the property be restored to Thompson, etc. Many other creditors appeared upon the return of the citation and joined in the petition. Helmer and one Chapin a creditor appeared and opposed. A hearing was had and testimony was taken before the County Court. And thereupon on the 28th of November, 1879, an order was made by the County Court declaring that a certain bond and mortgage given by Thompson to Helmer and then held by Chapin was usurious and void; that the assignment thereof by Helmer to Chapin was in violation of Helmer’s duty as assignee ; that Helmer should be removed as assignee; .that the assignment was made to hinder, delay and defraud creditors, and should be set aside, saving the rights of persons dealing with the assignee in good faith; that Thompson should have a restoration of his property after his just debts, etc.,-were paid; that Stillman Eoote should be appointed receiver of the assigned estate; and that Helmer should transfer the same to him; that Louis Hasbrouck should be appointed referee to take an accounting of the assignee.
    An accounting was had before the referee and a report was made by him. Thereupon' on the 13th of July, 1880, a final judgment or order was made by the County Court confirming the report; repeating the previous finding as to the bond and mortgage, ordering Helmer to transfer to the receiver the property in his hands and a certain balance of money and allowing costs and disbursements, including $200 extra allowance to the creditors, payable by Helmer individually.
    Helmer and Chapin appeal from this judgment, bringing up also the interlocutory order of the allowance of costs.

      Magone c& Holbrook, for E. J. Chapin, appellant.

      Thomas Spratt, for Abriel E. Helmer, appellant.

      Nelson L. Hdbvnson, for Thompson, respondent.
   Learneb, P. J. :

Passing for the present the question whether this assignment was voluntary, or obtained by undue influence, we turn to the case of Chapin v. Thompson (89 N. Y., 270, at p. 275). The language there used, together with the decision of the court in modifying the judgment then appealed from, show that the making of the schedule of the creditors and of the inventory of the property of Thompson were a valid recognition by Thompson of the mortgage ; so that, as against the assigned property, it was not void for usury.

It has been urged upon us, in this present argument, that by section 3, chapter 466, Laws 1877, the schedule and inventory may be made by the assignor within twenty days after the date of the assignment, and in case of his failure then by the assignee within thirty days of the said date. And counsel have said that if the assignor (and still more if the assignee), in making an inventory and schedule after the execution of" the assignment, could include therein a usurious obligation, and could thus give it validity as against the assigned property, then the assignor (if not the assignee) could thus change the effect of the assignment after it had been executed. That is, during the twenty days after making the assignment, the assignor could include the usurious debt as one which was valid, or could assert its usuriousness. Thus the assignment would havemne effect or the other, according to acts of the assignor (if not of the assignee), done subsequent to the execution of the assignment.

There is much force in this objection.. But the opinion above cited expressly1' refers to an inventory and1 schedule’" madd pursuant to'this act, as'being* sufficient to1 cut off the defense of usury, if the debt1 wefe therein r’ecbghized;' And in the very casó(there- decided, which afose under the assignment now'in question/the inventory and schedule were executed five da/ys after the assignment. So that the bodl-t niuSt' have' held' that, by an inventory and schedule made five days after the execution-of the ^ssignmentj-the assignor could recognize a debt as valid, and could prevent the assignee from setting up usury in behalf of the assigned estate. And yet in that same opinion (at page 280) the-'court say: “The execiition and delivery of the instrument (that is the assignment) excludes the grantor from any further dominion over it or its subject matter.”

There would be no difficulty in the application of that doctrine in those cases where a schedule and inventory accompany the assignment. But where they are made subsequently and within the twenty days-,- it would seem that it must continue' for that time discretionary with the assignor" to provide for the payment of a usurious debt or not. For a general provision in an assignment to pay debts does not permit the payment by the- assignee- of a usurious debt; (Pratt v. Adams, 7 Paige, 615, cited with approval in the opinion above mentioned at page 278.) Therefore when the assignment was executed by Thompson and accepted by Helmer, October twenty-second, it did not authorize the payment of- this usurious' debt. But* the making of the inventory and schedules "October twenty-seventh' made- the debt" valid as to the assigned property.

The finding, then, of the- County Court that- Chapin is not entitled to any relief as against the property of Thompson in the hands of his'assignee is erroneous. And this is of great importance, because the County Court has appointed Stillman Foote receiver of the assigned estate; directing him, after the expenses of the receivership are paid, “ to see that the debts of the assignor Thompson, existing at the time "of the assignment, are promptly and fully paid.” Inasmuch, then",-as the decision-above cited holds that' this mortgage is- a1 debt of Thompson', so far as the assigned property is concerned, plainly this' debt' is one of those which the receiver is directed to pay. Section 6 of the general assignment act authorizes the Cóünty Court to remove the assignee and to appoint another. This has been practically done by the-removal of Heliher'and the appointment of Foote. Trué, Foote is called receiver '; probably on the theory that the assignment’ had been set aside. But he was to discharge the duties imposéd' on the_ assignee:'

A most important question- arises as to the power which the learned county judge has assumed to’ exercise in this case. He has’assumed, as a court of equity, to maintain a proceeding, not to enforce and’ carry out the trusts of the assignment, but to set the assignment altogether aside, as obtained by undue influence and as fraudulent against creditors. It is contended by the appellants that he has no such jurisdiction. All jurisdiction which he has comes from the general assignment act. There, is nothing in that act which implies a right to- set aside an assignment, unless it be the language of section 25, viz., that after the filing or recording of an assignment under this act the court may exercise the power of a court of equity in reference to th$ trust arid any matters involved therein:” The authorities cited by the respondents’ counsel are Matter of Bonner (8 Daly, 76) and Matter of Cohn (78 N. Y., 252). Both of these are cases of enforcing and carrying out; not of setting aside' an assignment; and therefore they do not aid in the decision of this point. To exercise the powers of a court of equity in reference to the trust, and any matters involved therein, by no means implies a power to' set aside an assignment as obtained by undue influence. Those words are to be construed in reference to the rest of the act. That is' plainly intended to provide a simple and inexpensive method- of enforcing and closing up assignments and of controlling assignees. But an action to set aside-an assigmhe'nt for any cause is a proceeding of a very different character. And, in our opinion, is not within the scope or intent of the act. ¥é come to this conclusion principally from an examination of the whole act; and it can be of very little use to cite and comment upon the several sections.

The powers which were exercised by the County Court in this respect were not, as we think, in reference to the trust, or to any matters involved therein. They were powers to declare that there never was a valid trust; arid such powers we triink the legislature did riot intend to give.

There is another difficulty. Supposing that this assignment was made, as the County Court held, with intent to hinder, delay and defraud creditors; who can complain? Certainly not Thompson,; the alleged fraudulent assignor. Nor can any creditor, unless he shall havé first recovered a judgment. (Southard v. Benner, 72 N. Y., 424; Spring v. Short, 90 id., 538.) Yet this assignment, is set aside as fraudulent'in respect to creditors at the instance of the assignor and of persons claiming to be creditors, no one of whom appears to have recovered a judgment, according to the schedules.

We have not considered it necessary to discuss the question of fraudulent intent. The principal argument for such intent appears to have been Thompson’s solvency. That might be a reason for thinking he was over persuaded by Helmer. But we do not clearly see how a solvent man can intend to defraud his creditors by putting all his property out of his own control in trust for their immediate payment. (Ogden v. Peters, 21 N. Y., 23.)

As we are of the opinion, above stated, that the important part, of this proceeding was not within the jurisdiction of the County Court, we think that the allowance of counsel fees and costs should not stand.

The judgment appealed from is reversed in the following particulars:

So much of the fourth item as declares that the bond and mortgage are usurious and void and that Chapin is not entitled to any relief therein as against Thompson or his property in the hands of. the assignee.

The whole of the fifth item.

The whole of the eighth item.

Without passing upon the power of the County Court to appoint a receiver, as the assignment is no longer set aside, there must be an assignee. We will not interfere with the county judge in removing Helmer. Perhaps we might appoint the present receiver assignee. But it is better to refer the matter to the County Court to appoint an assignee in the place of Helmer.

The appellants have costs of this appeal against Thompson.

"Present — Learned, P. J., Boardman and Bookes, JJ".

Order reversed as stated in opinion.


text:
    JAMES J. BLOOMER and JOHN B. SULLIVAN, as Executors, etc., of JOHN SULLIVAN, Deceased, Appellants, v. PATRICK McINERNEY and JOHN MOORE, Impleaded with Others, Respondents.

      TTmry — construction of cm agreement to pay interest in adma/nce — when such an agreement is not usurious.•
    March 27, 1876, the defendant executed and delivered a bond and mortgage conditioned for the payment of $1,500 in one year from date, with interest “semi- annually in advance.” In an action to foreclose the mortgage the defendant claimed that the agreement to pay the interest in advance rendered the instrument usurious and void. It was found that the agreement was entered into in good faith, without intent to evade the statute, and that the parties did not intend to .pay or receive, nor did they suppose or believe that the- instrument provided for the payment or reception of usurious interest.

      Held, that as there was no agreement to pay any precise sum the instruments shQuld be construed as providing for the payment of such an amount only as could be legally and lawfully charged, that is, of the sum of fifty dollars and seventy-two cents, and not of fifty-two dollars and fifty cents at the commencement of each period of six months.
    That even if this were not so, the well established rule authorizing interest and not discount to be deducted from commercial paper having a short time to run should be applied to these instruments, and that within that rule the agreement to pay full interest in advance was lawful.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.

      J. McGuire, for the appellants.

      Walter Lloyd Smith, for the respondents.
   Learned, P. J.:

This is an action to foreclose a bond and mortgage. The first and most important question is, whether the bond and mortgage are on the face usurious. It is found, and correctly found, that the parties to the instruments did not know or suppose or believe that the agreement therein contained was an agreement to pay more than lawful interest; that the borrower had no intention to pay, and the lender no intention to accept more than lawful interest. There was, then, no device or artifice to evade the statute. And the question is simply whether this contract, thus made in good faith, must, by its terms, be held to be usurious.

The bond in suit'was made March 27, 1876, by Patrick Mclnérny to Johii Sullivan, conditioned to pay $1,500 in one"year from ' date, “ with interest semi-annually iíí advaheé.”’ The mortgágé is to the same effect. And the defendant contends that these instruments are'usurious by reason of the words “in advance.”

The court held that by these' words' the plaintiff could have received, if the conditions had been performed by the mortgagor, three dollars and sixty eight cents' in excess of seven per cent,- and that the bond and mortgage' were therefore usurious.

In saying that the plaintiff would háve received three dollars and sixty-eight cents in excess of seven per cent the learned court probably did not mean that that amount would be actually received by the mortgagee, because the agreement was only for interest, that is interest at sevén per cent. And all the interest which the mortgagor agreed to pay would be at the most’ $105. But the learned court probably meant that, as this amount was to be paid in advance, the mortgagee, if he should invest the'interest paid him, might make six months’ interest thereon.

Now, to á certain extént, the sainé may be said of any contract by which interest is payable semi-annually or quarterly. On this present loan, if the interest were payable semi-annually, the interest bn the half year’s interest would add about one dollar and eighty-four cents to the amount receivable if the interest were payable yearly. If quarter yearly, two dollars and seventy-five cents. If monthly, about three dollars and thirty-six cents. But it is not usurious to agree to pay interest at _ more frequent times than annually. (Mowry v. Bishop, 5 Paige, 98; Meyer v. Muscatine, 1 Wall., 384.) It therefore' appears that the possibility that the lender may, on a contract, have the benéfit of getting interest upon interest does not of itself make the éon’tract usurious.

But we may turn to the cases which have discussed a question ■somewhat similar in regard to commercial paper. In these ■ cases the question examined has not been as to the time when interest may be taken, but as to the amount. When an accommodation note, payable at a future day without interest, is discounted at a bank, the profit which the bank is to receive for the use of its money is necessarily 'taken in' advance. The only question has been as to the proper'mode of computation-. Of course the perfectly áccurate mode is to' deduct discount. The common, perhaps' universal, practice is to deduct interest. And this is not usurioüs'. (Bank of Utica v. Wager, 2 Cow., 712; Marvine v. Hymers, 12 N. Y., 227.) The reason undoubtedly is that for the short time for which commercial paper runs' the difference' between interest and discount is small. While if a loan were for fifteen years and ail the interest (not discount) were taken in; advance there' would be nothing for the borrower to receive. This settled rule that interest' instead of discount may be taken has been recognized in chapter 409, Laws 1882,.section 68. How thén does that'rule affect this contract %

If this contract is usurious, it is so. only because by its express terms it is a promise to pay more than legal interest. But there is no promise to pay any precise sum. The contract only fixes the time when interest shall be paid, without saying how much shall then be paid. It is a fair construction then that only so much shall be paid1 as1' shall then be legally chargeable — so much a's is lawful. If the rate of interest is seven per cent (as it was at that time), and if interest is to be paid in advance for six months, how much is the borrower to pay ? According to the decision of the learned justice fifty dollars and seventy-two cents. And since there was no intent to take usury and the borrower seeks to defeat his contract on the ground that its terms expressed an unlawful contract, there is no reason why we should construe the promise to pay interest in advance to be an unlawful promise,- when it may have a lawful meaning. What the parties afterwards did .is of no consequence, as the question is not one of intent, but of construction. The question is, had the borrower tendered the lender fifty dollars and séventy-two cents for the interest in advance, would not that have been a performance of the contract ?

' But even if we were to assume that the agreement meant that fifty-two dollars and fifty cents was to be paid in advance, the contract falls within the rule above stated; that for short periods, in this case for periods of six months, the law will not make the strict distinction between interest and discount. It will permit the payment of interest, where a strict calculation would justify only discount. We ought to apply this well known rule. To illustrate, suppose a bond and mortgage were made payable in six months without interest, and the lender should deduct from the money advanced interest not discount; would it be just or reasonable to draw a distinction between such a case and the case of commercial paper given for the same length of time, and to say one transaction is valid, the other usurious ? It is true that the rule grew up in regard to commercial paper, but it has become a rule and parties are justified in relying upon it. The question never seems to have been raised as to bonds and mortgages. So the courts must now make a rule. And the rule that they make should be in harmony with that which has been made already.

In the view thus taken it becomes unnecessary to pass upon several other questions which would otherwise be important.

The judgment is reversed, a new trial granted, costs to abide the event.

Bookes, J., dissented.

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

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


author: Bocees, J.:

text:
    EMMETT O’NEIL, as Executor, etc., of JAMES E. O’NEIL, Appellant, v. WILLIAM W. BENDER, Respondent.

      Summons — contents of order directing its scrmee upon a non-resident— Code of Oiml • Procedure, sec. 440.

    Under section 440 of the Code of Civil Procedure, providing for the service o£ a summons upon a non-resident, it is sufficient if the order directs the service to be made by publication and by depositing the proper papers in the post-office. It is not necessary that it should also provide that the service may, at the option of the plaintiff, be made on the defendant personally without the State.

      Bitten v. Griffith (16 Hun, 454) criticised and distinguished; Weil v. Man-tin (24 Hun, 645), approved.
    Appeal from an order made at a Special- Term setting aside a judgment entered in the clerk’s office of Schenectady county, on the 1st day of March, 1880, in favor of the plaintiff, on the ground that the order of publication of the summons herein was void, for the reason that it did not contain a direction for a personal service of the summons out of the State in addition to that for publication.
    The order provided “ that the summons herein be served on the said defendant by publishing the same in two newspapers printed and published in the city of Schenectady once a week, for six successive weeks, to wit, the Schenectady Evening Star and the Schenectady Daily Union, and that on or before the day of the first publication of said summons, as aforesaid, the plaintiff deposit in the post-office at Schenectady a copy of said summons, complaint, and of this order, inclosed in a sealed post-paid envelope and directed to said defendant at Aurelius, in said State of Michigan.”

      D. O. Beattie, for the appellant.

      Hvm,gerford <& Hotalwig, for the respondent.

       Decided September Term, 1881.

   Bocees, J.:

The order for the service of the summons (the defendant being a non-resident of the State) directed service thereof by publication and deposit in the post-office; but the alternative, to wit, “ or, at the option of the plaintiff, by personal service of the summons and of a copy of the complaint and order, upon the defendant personally, without the State,” was omitted. (Code of Civil Pro., § 440.) Because of this omission the order was, by the Special Term, held to be defective, and for that reason the judgment against the defendant entered by default was set aside. The ruling at Special Term was put on the authority of Ritten v. Griffith (16 Hun, 454), a case decided in the General Term in the Fourth Department. It was there said tbat the order was a nullity, “ because it did not direct, in the alternative, both a publication and personal service out of the State, at the option of the plaintiff;” but such holding was not essential or necessary to the decision in that case. There the order did not contain any direction for publication, as the Code required it should, and for this reason alone, as was subsequently decided in Weil v. Martin, (hereafter cited), the order was defective and a nullity. What was said, therefore, in Ritten v. Griffith, as to the alternative clause, was entirely obiter. In the case in hand, the order directed the publication of the summons and its deposit in the post-office, .with a copy of the complaint and order in due form. This point of difference between the case in. 16 Hun' and the one before us was noticed and commented on in Weil v. Martin, decided at General Term in the First Department. (21 Hun, 615.) I can do no better than to quote from the opinion of Mr. Justice Daniels, concurred in by Davis, P. J., and Brady, J., in that case. The learned judge says as follows: “ The order made, which directed the publication of .the summons, did not declare that the summons and complaint might, at the option of the plaintiff, be served personally upon the defendants outside of .the limits of the State, and on that account .it .has been objected to as,insufficient. But as no service of that n.atupe was.made upon either of .these defendants, there does not appear to be any substantial support for this objection. The case of Ritten v. Griffith (16 Hun, 454) is not an authority sustaining the propriety of the position which has been taken, for there the order contained no direction for any publication whatever, while the provision made by the Code is peremptory that such direction must be given to warrant a substituted service of this nature of the summons and complaint. To tha,t extent the order is required to go in all , cases, in order to conform to the unqualified enactment contained in the Code upon this subject. (Code,of Civil Procedure, § 110.) It is only when the plaintiff may desire to avail himself of the privilege created of serving papers personally out of the State, that the order is required to provide for the exercise of that right. It is an alternative which he may or may not desire to secure, and when it is not expected that the papers will be served personally beyond the limits of the State, no propriety exists for the insertion of the optional right to make such service in the order of publication. For the purpose of authorizing the service, which was made, the order was entirely complete, and the objection taken to it was rightfully overruled.” In this conclusion we are inclined to concur.

The present provisions of the Code of Civil Procedure differ somewhat from the .former in the language employed; and it is supposed that the practice is thereby changed in some respects. (Ritten v. Griffith, Weil v. Martin.) According to those decisions the order should now contain the alternative provision for personal service without the State, in case that mode of service was intended to be made; but perhaps it may yet be held, when the point comes squarely before the court, that .a .party may now have .separate orders to meet the alternative.mode of service which he may choose-to adopt. It is not hereintended to.decide that this may be done, as such.decision would, seem, in conflict with Ritten v. Griffith, and with some expressions of the court in Weil v. Martin. But on reading .sections 438, 443 .and 1541 in'.connection with section 440, it does not seem entirely clear that separate orders may not be had. These sections bear o.n the subject under examination, and were, as it appears, overlooked in the cases cited. Let these four, sections be read together, as they should be in order to their fair and just construction, and it may be urged with great propriety, that a separate order may be made, directing personal service without the State. But it is not necessary here to determine the question whether separate orders, one for publication and deposit in the post-office, another providing for personal service without the State, are or are not now authorized by the Code of Civil Procedure. It is sufficient here to hold (following the decision in Weil v. Martin) that, for the purpose of upholding the service which was made in this case, the order objected to was well authorized and complete. Whatever was said in Ritten v. Griffith adverse to this conclusion was overruled by the decision in Weil v. Martin.

The point above, considered was the only one .on which the decision at Special Term was based; but it is now urged that the motion to set aside the judgment was well and properly granted, also, on other grounds of irregularity. It must be noted that the defendant does not, by his motion, ask to be allowed to defend the action on the merits. He makes no affidavit of merits, and he appears only for the purposes of the motion, not generally in the action. He bases his motion purely and entirely on technicalities. In such case he may be met, and his motion may be answered by technical objections to it. He was then bound to specify, in his notice of motion, the irregularities complained of. Now, the first ground specified in the notice is that there was no proof that the summons and complaint were served on the defendant; and the second ground specified is that the proof did not show that the summons, complaint and order for publication were served as directed in the order of publication. These specifications pointed only to the form of the order and its mode of service, and we are of the opinion that both of these grounds of irregularity were untenable, as the ease was made at Special Term. There was a third ground stated in the notice, to wit, that the order for publication was “ irregular and void, not being in accordance with the requirements' of the Code of Civil Procedure, or the statute in such case made and provided.” This specification is quite too general to meet the requirements of the rule. Why irregular and void, or in what respect not in accordance with the requirements of the Code or of the statute, is not, as it should have been, specifically pointed out. Besides, according to the decision in Weil v. Martin, in which we concur, the order was in due form to authorize service by publication and deposit in the post-office. It is also suggested that causes of action are improperly united in the complaint. But this ground of error is not alluded to in the notice of motion, and, besides, it would be more appropriately a subject of consideration on an application to be allowed to defend the action on the merits. This application is not of that character.

The order appealed from must be reversed, with ten dollars costs of appeal and disbursements, and the motion to set aside the judgment should be denied, with ten dollars costs.

Boardman, J., concurred; Learned, P. J., taking no part.

Order reversed, with ten dollars costs and printing disbursements.


author: Learned, P. J.

text:
    OLIVER PORTER, Appellant, v. WILLIAM A. ROBINSON and Others, Respondents.

      Trustees of a union school district — constitute a body corporate — 1864, chap. 555, title 9, see. 7 —meeting of the trustees — what notice thereof, must be gwen to the tnustees — when a notice need, not be given to a member who is absent from the State and. could not attend — members are presumed to have notice of a regular meeting— renewal of taw warrant.

    Appeal from a judgment of the County Court of Cortland county in favor of the defendants, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.
    In the year 1877 the defendants, acting as the trustees of a school district in the town of Homer, in the county of Cortland, made an assessment against the appellant Porter for a school tax levied for the benefit of said district. Under a warrant issued by them to collect the amount of the tax and a renewal thereof, and in virtue of the directions therein contained, the collector seized certain property belonging to the plaintiff of the value of something over- $300. A portion of the property was sold by the collector; the unsold portion he offered to return to Porter, but the latter would not accept it. Por this taking this action was brought in the County Court of Cortland county.
    Upon the first trial a recovery was had by the plaintiff for the: value of the property so taken and seized, but^upon appeal to this: court the judgment entered upon the verdictvvas reversed and ai new trial was ordered. Upon the second trial the plaintiff was non-suited, and upon a motion for a new trial before the county judge' the same was denied.
    The court at General Term said: “ The Union School District No. 1 of Homer had been duly organized under Laws 1864, chapter 555, title 9. The trustees, or board of education, were, therefore, a body corporate. (Sec. 7 of. that title; Bassett v. Fish, 75 N. Y., 303, at 311.)
    “ On the second Tuesday of October, 1877, Stone, one of the defendants, was elected a trustee. He was then in Minnesota; had gone from the State August 29, 1877, and did not return till November 14, 1877. He received no communication from the defendant Webb, who was then clerk of the school district during his absence. But he was notified by defendant Bennett October 17, 1877, of his election. The notification was by letter, received during his absence in Minnesota. After his return he acted as trustee for the first time December 20, 1877. The first question, then, jrresented is, whether the warrant, signed November 9, 1877, by eight trustees and not by Stone, and signed at a meeting, of which he was not notified, is valid.
    “As the trustees form a corporation, it may be doubted whether chapter 321, Laws of 1874, is applicable. The similar cases in which that chapter (or the section of the Revised Statutes thereby amended) has been held to apply are cases of school district officers not incorporated.. For instance, Keeler v. Frost (22 Barb., 400). But since the decision in Bassett v. Fish we must recognize the corporate character of these trustees of their school districts.
    “ To them, as a corporation, either the common-law rule or section 6 of 1 Revised Statutes, marginal page 600, seems to apply, when we consider the validity of a meeting. That section declares that a majority shall be a sufficient number to form a board for the transaction of business, and that every decision of a majority of the persons duly assembled as a board shall be valid as a corporate act. The only question, then, would be whether- an omission to notify one of the trustees would show that the majority were not duly assembled as a board, and would show that the decisions of that ■majority were not valid. I should be of the opinion that such mere ¡omission, in the absence of bad faith, would not invalidate the act ■of the majority exercising corporate powers.
    “ But in the present case it is hardly necessary to decide that question. The object of notice is to give the person notified an -opportunity to attend. There is no other virtue in the notice. Now when a person, elected as trustee, is at the time of his election in a distant State and continues there all the time until after the-meeting in question, never having had any formal notice of his election, it would be unreasonable to say that a meeting was made invalid by a failure to give him notice thereof. Must a personal notice be served on him in Minnesota ? Or if a notice left at his house is sufficient, of what use would it be to one who was beyond its reach ? It cannot be necessary to do an act which, when done, would be of no use. By remaining where he could not attend the meetings of the board of education, Stone practically waived any notice of such meetings ; and indeed put it beyond the power of the proper officer to give any.
    And it further may be noticed that, according to some of the testimony, the assessment-roll and tax list were submitted to the board and acted upon at a regular meeting. “ Of the time of holding such meetings the members are presumed to have notice. (People v. Batchelor, 22 N. Y., 128.) We think, therefore, that the objection above discussed as to the validity of the warrant is not well taken. Nor do we think that the plaintiff’s objection to the renewal is well taken. There is no reason why the board should wait until the warrant had run out before making the renewal.” (Sec. 86, tit. 7, chap. 555, Laws 1864.)

      J. McGuire, for the appellant.

      Waters c& Knox, for the respondents.

       Decided July, 1883.

   Opinion by

Learned, P. J.

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

Judgment affirmed, with costs.


text:
    ITHACA GAS-LIGHT COMPANY, Appellant, v. LEONARD TREMAN and Others, Appellants. HENRY E. BEATLEY, Respondent.

      Misnumagemmt of corporate affairs by its officers — when a stoelcholder may. bring an action against the company and them — when he may on his own motion be made a party defendant to an action brought by the company against its officers— Code of Oivil Procedure, sec. 521.
    Appeal from an order made at a Special Term, making the respondent Henry E. Beatley a party defendant in this action upon his own motion.
    Beatley, a stockholder of the plaintiff, commenced an action against the said plaintiff, a corporation, and the defendants,- who are the president and the treasurer of said corporation. The complaint in substance charged mismanagement by said president and treasurer. To the complaint the defendants in that. action demurred, and thereupon the plaintiff therein discontinued it.
    Beatley thereupon, through his attorney, informed Leonard Treman, the president, that the action had been discontinued, because no demand had been made of the corporation to bring the same; and, stating the claim of Beatley that the defendant Treman had acted wrongfully in the execution of their official duties, requested, the president to bring an action, in the name of the corporation, against himself and the treasurer for the moneys and property thus claimed to be wrongfully converted by them. The president said that he would have the corporation sue himself and the treasurer. Beatley after-wards offered to give a bond of indemnity to the corporation if the officers would permit him to conduct the action. But this they declined to do, insisting on employing their own attorney. The president of the corporation denied that there had been any such wrongful acts as were alleged by Beatley. Thereupon the corporation commenced an action by summons against the president and treasurer, in which the same attorney appeared for the plaintiff as had appeared for the president, treasurer and corporation in the action by Beatley. The president and treasurer appeared by an attorney who had acted as _ counsel for all the defendants in the said action by Beatley. Beatley then moved that he be made a party defendant, which motion was granted. From the order granting his motion both plaintiff and defendants appeal.
    The court at General Term said: “ In Robinson v. Smith (3 Paige, 233) it is said that if the directors of a corporation refuse to prosecute, by Collusion, those who have wasted the funds, or if the corporation be still under the control of those who must be made defendants, then the stockholders may sue, making the corporation a party defendant. To the same effect is Angel and Ames on Corporations, 305. On the principle thus laid down it would seem that Beatley might have maintained the action which he commenced, although he had not made a demand that the corporation should sue. For the corporation was still under the control of those who would have to be defendants and who were alleged to have mismanaged its property.

      “ But however that may be, if a stockholder, for himself and others, may sue for such mismanagement, where the directors will not, or where they are alleged to be the guilty persons, then it follows that he has an interest in the subject matter. For it is only because the stockholder has an interest in the subject matter that he is allowed, when the directors will not pursue the guilty persons, or when they are themselves the alleged guilty persons, to bring the action himself. So it is said in the case of Robinson v. Smith (ut supra): ‘ The stockholders, who are the real parties in interest, would be permitted to file a bill.’
    “ A suit brought by a stockholder in such circumstances is brought in behalf of himself and all other stockholders. But that does not show that he has not an interest in the subject matter. He has his pro rata interest with all the stockholders, and the directors are managing for him his property.

      “ This is a very proper case for the relief provided in section 452 of the Code. Whatever may be the merits of the charges made by Beatley, it is absurd to say that in an action in the name of the corporation against its president and treasurer, controlled by them, any real investigation of their alleged misconduct will be had. It may be that this result will not be thoroughly accomplished, after Beatley shall be made a party defendant. " But the foims of actions are flexible under the present practice. We are not prepared to say that Beatley, if made a defendant, may not, under section 521 of tbe Code, allege against the defendants Treman the mismanagement of which he complains. Thus he may litigate the questions in which he is interested, notwithstanding any lukewarmness which the corporation plaintiff may naturally show in conducting the action.
    “No one can be harmed by the order appealed from. And as the Tremans are practically controlling both sides of the case,' it is right that one who claims that they have mismanaged his property should be heard.”
    “ The order is affirmed, with ten dollars, costs and printing disbursements.”

      J. McGuire,• for the appellants.

      I. E. Warren, for the respondent.

       Decided July, 1883.

   Opinion by

Learned, P. J.

Present — Learned, P. J., and Boardman, «1.; Bocees, J., not acting.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    GEORGE W. McNISH, Appellant, v. CARRIE A. BOWERS, Respondent.

      Case and exceptions — the judge or referee must sign and order them to be annexed to the roll — Rule 35 — evidence must not be set forth ia base verba — Rule 34.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The Court at General Term said : “ This case is not in a condition to be heard. The case and exceptions are not signed by the judge nor ordered to be annexed to the roll. (Rule 35.) The rule forbids the clerk to annex any case or exceptions to the roll unless so ordered by the judge or referee. We have uniformly insisted that this rule be observed. Besides the case contains the evidence
      in Turn verba, contrary to Rule 34, and must be re-settled in this respect.”
    Case sent back for re-settlement and sighing.

      Dailey db Bentley, for the appellant.

      Robert Stephens, for the respondent.

       Decided July, 1883.

   Mem. by

Learned, P. J.

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

Case not settled. Sent back for proper settlement.


author: Boardman, J.

text:
    The People of the State of New York ex rel. Charles Bray, Mayor, etc., Respondent, v. The Board of Supervisors of Ulster County, Appellant.
   Order affirmed, with costs. Opinion by

Boardman, J.


author: Learned, P. J.;

text:
    Walter T. L. Sanders, as Trustee, etc., Appellant, v. Helen D. Bullard and another, Administrator, etc., Respondents.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Board-man, J., not acting.


author: Boardman, J.;

text:
    The People of the State of New York ex rel. Hiram Owen and others, Respondents, v. Arthur D. Seavey and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Bookes, J., not acting.


author: Bookes, J.

text:
    Garret Arrex, Executor, etc., v. James E. Jansen.
   Judgment reversed, new trial granted; referee discharged, costs to abide event. Opinion by

Bookes, J.


text:
    Eliza Yeddo, Respondent, v. L. Greenville Whitney and another, Appellants.

   Judgment reversed, new trial granted; referee discharged, costs to abide event. Opinion by

Boardman, J.


text:
    John C. Monty, Respondent, v. William H. Bloomingdale, Appellant, Impleaded, etc.

   Judgment affirmed, with costs, Opinion by

Bookes, J.


text:
    Giles H. F. Van Horne, Respondent, v. William Campbell and others, Appellants.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Boardman, J.


text:
    Giles H. F. Van Horne, Appellant, v. Jacob France, Respondent

   Judgment affirmed, with costs. Opinion by

Bookes, J.


text:
    The People of the State of New York, Respondent, v. The Equitable Trust Company of New London, Appellant.
   Judgment affirmed, with costs, on decision of Court of Appeals, in Home Insurance Compariy and against Fireman’s Fund Association.


text:
    Abigail R. Wilkinson and others, Trustees, etc., Respondents, v. Alice Beardsley and others, Appellants.
   Judgment affirmed on referee’s opinion.


author: Learned, F. J.

text:
    Alice Beardsley, Respondent, v. Abigail Wilkinson, Executrix, etc., Appellant, and others. Alice Beardsley, Respondent, v. George Everson, Appellant.
   In the first action so much of judgment as charges against Mrs. Wilkinson $13,256.60 reversed, with costs of appeal against plaintiff personally. In the second action, so much of judgment as charges Mrs. Wilkinson with $9,937.63 (stated to be an error for $13,256.60) reversed. So much of the judgment as directs payment to plaintiff’s attorney of costs reversed. Defendants to recover costs of appeal and of this action against plaintiff personally. Opinion by

Learned, F. J.


text:
    Dennis V. Stimson and another, Appellants, v. Frederick C. Vrooman and others, Respondents.
   Decree reversed on both points. Costs to appellant out of estate. Opinion by

Boardman, J.;

Learned, P. J., dissents as to construction of will.


author: Bockes, J..

text:
    George Peters, Appellant, v. Andrew Peters and others, Respondents.

   Decree affirmed, with costs. Opinion by

Bockes, J..


text:
    Eliza W. Pew, Respondent, v. Jane D. Robertson, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    George W. Long, Respondent, v. The Millerton Iron Company, Appellant.
   Judgment reversed, new trial granted; referee discharged, costs to abide event. Opinion by

Boardman, J.


author: Bockes, J.

text:
    The People of the State of New York, Respondent, v. Ossian Dimmick and another, Appellants.
   Judgment and conviction affirmed. Opinion by

Bockes, J.


text:
    Orville Wormuth and another, Administrators, etc., Respondents, v. David Sonburger, Appellant.

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

Learned, P. J.


text:
    Orville Wormuth and another, Administrators, etc., Respondents, v. John Hale, Appellant.

   J udgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    Milton De Lano, Appellant, v. Simon S. Harp and others, Respondents.

   Appeal of Andrew J. Harp dismissed with ten dollars costs.. In other respects order affirmed with ten dollars costs and printing disbursements. Opinion by

Boardman, J.


text:
    Augusta Edward and others, Executors, etc., Appellants, v. William B. Weaver, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.;

Learned, P. J., dissenting.


text:
    Jacobina Tietz, Respondent, v. Charles B. Du Bois, Appellant.

   Judgment affirmed, with costs. Opinion by

Bockes, J.


author: Bocees, J.

text:
    In the Matter of William Kortz, Respondent, v. The Board of Canvassers of Greene County, Appellants.
   Order affirmed, with costs against appellants. Opinion, by

Bocees, J.


text:
    Seth Parsons, Committee, etc., Respondent, v. Isaac W. Winne, and others, Appellants.

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

Boardman, J.


text:
    In the Matter of John M. Newton.
   Order affirmed, with ten dollars costs against appellant. Mem. by

Bocees, J.:

Learned, P. J., not acting.


text:
    Frederick Sheely, Respondent, v. George B. Gannon, Appellant.
   Judgment and order affirmed," with costs. Opinion by

Boardman, J.


text:
    Emeline Avery, Respondent, v. The Village of Saratoga Springs, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Bocees, J., not acting.


author: Bocees, J., and Learned, P. J.

text:
    Henry H. Nellis, Appellant, v. George H. Nellis, Respondent.

   Judgment affirmed, with costs, on opinion of Special Term» Mem. by

Bocees, J., and Learned, P. J.


text:
    The People of the State of New York v. Merchants’ Bank.
   Order affirmed, with ten dollars costs and printing disbursements, without passing on the question of right to appeal. Mem. by

Boardman, J.


text:
    The People of the State of New York v. The City Bank of Rochester.—(Matter of Sartwell and others, Appellants, v. Hobert F. Atkinson, Receiver, etc., Respondent.)
   Order affirmed,, with ten dollars costs and printing disbursements. Mem. by

Learned, P. J.


text:
    The People of the State of New York v. Knickerbocker Life Insurance Company.
   Order affirmed, witli ten dollars costs and printing disbursements against appellant.


text:
    Herman Veeder, Respondent, v. William Mudgett and others, Appellants.
   Order affirmed, with ten dollars costs and printing-disbursements.


author: Learned, P. J. ;•

text:
    The First National Bank of Ithaca v. Joseph McGraw, Appellant, and Ezra Cornell, Respondent.
   Order reversed, with ten dollars costs and printing disbursements; and motion denied, with ten dollars costs. Opinion by

Learned, P. J. ;•

Boardman, J., not acting.


text:
    Cornelia T. Davenport, Respondent, v. Lewis N. Ireland, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Asa D. Squires, Respondent, v. Chauncey L. Ward and others, Appellants.
   Order affirmed, with, ten dollars costs and printing disbursements. Mem. by

Bocees, J.


author: Board-man, J.

text:
    The People of the State of New York v. The Mutual Trust Company.
   Judgment affirmed, with, costs. Mem. by

Board-man, J.


text:
    The People of the State of New York, Respondent, v. John F. Moot, Appellant.
   Judgment and conviction affirmed. Opinion by

Bockes, J.


text:
    Canal Railroad Company v. Peter Briggs.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Lewis Brownell and others, Respondents, v. National Bank of Gloversville and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements. Mem. by

Bockes, J.


text:
    Elizabeth Snyder v. Sylvester Snyder and others.
   Order denying motion for security affirmed, with ten dollars costs and printing disbursements.


author: Board-man, J.;

text:
    Ralph Hoke, Respondent, v. Mary Jane Waldorf and another, Appellants.
   Judgment affirmed, with costs. Opinion by

Board-man, J.;

Bockes, J., not acting.


text:
    Fitch J. Swinburne, Appellant, v. James A. Stockwell, Sheriff, etc., and others, Respondents.
   Judgment reversed, new trial granted, costs to abide event. Mem. by

Learned, P. J.


text:
    John A. McVean, Respondent, v. Jerome Squires and others, Administrators, etc., Appellants.
   Judgment reversed, new trial granted, costs to abide event. Mem. by

Learned, P. J.


text:
    The Catskill National Bank, Respondent, v. William G. Fargo, President, etc., Appellant.
   Judgment and order affirmed, with costs. Mem. by

Learned, P. J.


text:
    The Importers’ and Traders’ National Bank of New York, Respondent, v. John H. Hale, Appellant, Impleaded, etc.
   Judgment and order affirmed, with costs. Mem. by

Boardman, J.


text:
    J. Franklin Barnes, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellants.
   Judgment and order affirmed, with costs. Mem. by

Boardman, J.


text:
    Maria A. Lewis, Appellant, v. Clinton F. Paige, Respondent.

   Motion for new trial denied. Judgment for defendant on verdict. Mem. by

Bockes, J.


text:
    William H. Perry, Appellant, v. Waity E. Perry, Respondent, Impleaded, etc.
   Order affirmed, with costs on opinion of Special Term.


text:
    George Reigerd, Respondent, v. The City of Elmira, Appellant.

   Judgment and order affirmed, with costs, on the opinion of the Special Term.


text:
    Stanford W. Barrett, Respondent, v. Benjamin F. Lewis, Appellant.

   Judgment, affirmed, with costs. Opinion by

Boardman, J.


text:
    Elon Slocum, Respondent, v. Milton Delano, Sheriff, etc., Appellant.

   Judgment and order affirmed, with costs. Mem. by

Learned, P. J.


text:
    William H. Peacock, Respondent, v. Daniel E. Comstock, Appellant.

   Judgment affirmed, with costs. .Mem. by

Learned, P. J.


text:
    George A. Smith, Respondent, v. Joseph Kenyon, Appellant.
   Judgment and order affirmed, with costs. Mem. by

Bockes, J.


text:
    Agnes Ann Gallup, Respondent, v. Sherman S. Jewett and others, Appellants.
   Judgment and order affirmed, with costs. Mem. by

Learned, P. J.


text:
    Betsey M. Hogg, Respondent, v. Alexander Kiersted, Appellant.
   Judgment and order affirmed, with costs. Mem. by

Learned, P. J.


text:
    Eliza Johnson v. Philip Miller and others.
   Judgment reversed. Complaint dismissed,-with costs. Judgment to be entered as of May Term, 1882, nunopm tunc.

Bockes, J., not acting.


author: Boardman, J;

text:
    Ira H. Storrs, Appellant, v. The Congregational Church, etc., Respondent.

   Judgment reversed; new trial granted. Beferee' discharged, costs to abide event. Opinion by

Boardman, J;


text:
    In the Matter of the Probate of the Will of John Darrow, Deceased.

   Decree of surrogate affirmed, with costs against appellant. Mem. by

Boardman, J.


text:
    Joseph Carman, Respondent, v. The Delaware and Hudson Canal Company, Appellant.

   Judgment .affirmed, with costs. Opinion by

Bockes, J.


text:
    Albert F. Gladding, Executor, etc., Appellant, v. Louisa F. Follett, Respondent.

   Decree affirmed, with costs, against appellant personally. Mem. by

Learned, P. J.


text:
    In the Matter of the Attorney-General v. The Atlantic Mutual Insurance Company.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railway Company, to Acquire Land of Pennock.
   Order affirmed, with costs. Opinion by

Boardman, J.


text:
    James Wheat, Respondent, v. Rosina Wheat, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Mary Carter, Appellant, v. The New York, West Shore and Buffalo Railway Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Mem. by

Learned, P. J.


author: Learned. P. J.

text:
    The People of the State of New York v. Charles G. Fairman, Superintendent, etc.
   Certiorari reversed, with fifty dollars costs . and disbursements, under section 2140. Mem. by

Learned. P. J.


author: Learned, P. J.'

text:
    Walter M. Brown, Respondent, v. The Grand Lodge Knights of Pythias.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.'


text:
    The Town of Newfield and others, Respondents, v. Merritt King, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    Emeline Lane, Executrix, Proponent, v. Henry F. Lane, Contestant.
   Motion for new trial' denied, with costs. Mem. by

Learned, P. J.;

Bockes, J., dissenting.


text:
    George Jackson and another, Respondents, v. Horace D. Tupper and others, Appellants.

   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Jane Berry, Plaintiff, v. The Village of Watkins, Defendant.

   Motion for a new trial denied. J udgment ordered for plaintiff on Verdict, with costs.


text:
    Harvey J. Cady, Appellant, v. Charles H. Wheeler and another, Respondents.

   Judgment affirmed, with costs.


text:
    Harriet A. Tracy, Respondent, v. Alvah H. Quigley, Appellant.

   Judgment and order affirmed, with costs.


text:
    The First National Bank of Groton v. Wilson Halladay and another.
   Motion for new trial denied, and judgment ordered for defendant on verdict, with costs.


author: Bockes, J.;

text:
    Gilbert Holmes, Respondent, v. Frederick J. Nodine, Appellant.

   Judgment modified by deducting thirty-seven dollars as of time of entering, and as modified affirmed, without costs. Opinion by

Bockes, J.;

Learned, P. J., dissents.


text:
       Jared Burchard and others, Respondents, v. Reuben Hale, Appellant.

         Decision in this and the following cases, to end of memoranda, handed dofvn July, 1883.

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

Bockes, J.


author: Bockes, J.,

text:
    Matter of the Water Commissioners of Amsterdam, Respondents, v. John C. Clement and others, Appellants.

   Order affirmed, with costs on appeal from judgment. Opinion by

Bockes, J.,

and by Learned, P. J., dissenting.


author: Boardman, J.

text:
    Thomas B. Holcomb, as Administrator, etc., Respondent, v. Friend H. Holcomb, Appellant.

   Judgment affirmed, with costs. Opinión by

Boardman, J.


text:
    Alexander M. Holmes, Respondent, v. D. Sackett Moore, as Administrator, etc., Appellant.

   Four cases; judgment affirmed, in each, with costs. Order appealed from affirmed, with ten dollars costs and printing disbursements in each. Opinion by

Bockes, J.


text:
    Eliza Ann Longendyke and another, Respondents, v. Charles Anderson, Appellant.

   Judgment affirmed, with costs. Opinion by

Boardman, J.