text:
    CHARLES L. MacARTHUR and ARTHUR MacARTHUR, Respondents, v. THE CITY OF TROY, Appellant.

      Common Council of Troy — may fix price tobe paid for publication of its proceedings —1870, chap. 598, title 2, § 3, as amended by, 1873, chap. 813 —1869, chap. 831— to what cases it is applicable.

    The charter of the city of Troy provides that the common council shall designate not to exceed four newspapers in which the city advertising shall be done, only by the order of the common council. September 2, 1875, a resolution was passed by the common council to the effect that it would pay for publishing its proceedings five dollars for each column thereof, and that any •fficial paper refusing to publish them at that rate was notified not to publish them at all. In this action brought by the plaintiffs, the proprietors of one of the official papers of the city, to recover for publishing the proceedings of the common council from September 20, 1875, to March 7, 1876, they claimed to be entitled to recover the sum of seventy-five cents for each folio so published, though they had had notice of the passage of the resolution of September second.

      Held, that although the plaintiff might have declined to publish the proceedings at the rate fixed by the resolution, yet having published them with notice thereof, they were limited to the price therein prescribed.
    That chapter 831 of 1869, providing “ that for publishing any notice, order, citation, summons or other proceedings or advertisements required by law to be published, not more than seventy-five cents per folio for the first insertion and fifty cents for each subsequent insertion ” shall be charged, referred principally, if not altogether, to publications in actions and the like, and had no application to the case in hand.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon the report of a referee.
    The action was brought by the plaintiffs, the proprietors of the Troy Northern Budget, one of the official newspapers in the city of Troy, to recover an amount alleged to be due for the publication of < the proceedings of the common council of Troy, from September 20, 1875, to March 7, 1876.

      R. A. Parmenter, for the appellant.

      Robertson & Foster, for the respondents.
   Learned, P. J.:

No proof was given upon the trial of the value of the printing done by the plaintiffs. It was assumed by them, and held by the referee, that they were entitled to “ the statutory rate of seventy-five cents per folio.” By the words “ statutory rate” reference is made to Laws of 1869, chapter 831, which authorizes, “ for publishing any notice, order, citation, summons, or other proceeding or advertisement required by law to be published, not more than seventy-five cents per folio for the first insertion, and fifty cents for each subsequent insertion after the first.” This law was amendatory of an act passed April 12, 1859 (chap. 252), entitled “An act in relation to the publication of legal notices.”

The charter of Troy (Laws of 1870, chap. 598, tit. 2, § 3, as amended Laws 1873, chap. 813) provides: “ The common council shall designate not to exceed four newspapers * * * in which the city advertising shall be done, only on the order of the common council.” Section 22 of the same title, speaking of the duties of the city clerk, says that he is to keep minutes of the proceedings of the common council, “ and to report such proceedings for publication in the newspapers designated as the official papers.” This last section only describes the duties of the city clerk, and does not itself require the publication of the proceedings of the common council. Section 3, as above amended, leaves it to the common council, after designating the four newspapers, to order what advertising shall be done therein. Their power in this respect is of course subject to any positive requirement of law. But we are not pointed to any positive law which requires that the proceedings of this common council shall be published.

And when we examine the language of chapter 831, Laws of 1869, above quoted, it is evident that it refers to those matters of which publication is required by law; principallyj if not altogether, publications in actions and the like.

It speaks of “ notice, order, citation, summons,” words having a well-known meaning in actions and other legal proceedings. It adds the word “proceeding,” which is to be construed in harmony with the words preceding; and advertisement ” referring principally to advertisements of legal sales. And it qualifies this by adding, “ required by law to be published.” This law is for the safeguard of suitors and others who are required to make publications in the course of actions and the like. And this appears from the title of the original act, which speaks only of “ legal notices words which do not include proceedings of a common council.

We see nothing in this law which justifies the assumption that when the proceedings of the common council are published by their order, the publishers, without regard to the value of the services, are entitled to seventy-five cents per folio. In the case of People v. Board of Supervisors (58 Barb., 139), to which we are referred by the plaintiffs, it appeared that the printing consisted of legal notices required by law to be published. That case, therefore, does not apply.

We must, therefore, inquire as to the terms on which the work was done, or if there were no terms, then. as to the value of the work. This printing was done from September 20, 1875, to March 7, 1876, and the charge is for 551-J- folios of official minutes of the proceedings of the common council. On the 2d day of September, 1875, a resolution was passed by the common council to the effect that the board would pay for such publication five dollars for each column, and that any official paper refusing to publish at that rate was notified not to publish said proceedings. This was before any publication by the plaintiffs. And this very resolution was published by them. Now it is to be observed that section 3 of title 2 of the charter, as amended, above cited, says, that the city advertising is to be done “ only on the order of the common council.” There is nothing then in the mere designation of the plaintiffs’ paper (with others) as official papers, March 9, 1875, which defines the work to be done by the plaintiffs. That was to be determined by the order, express or it may be implied, of the common council. And we have seen that on the second of September, before any of the work in question was done, the common council voted that it should be done at five dollars a column or not at all. The plaintiffs were at full liberty to do the work at that rate or not to do it at all. There is evidence showing that the plaintiffs knew that the rate for official papers was five dollars per column before the work was done by them, in the testimony of one of the plaintiffs. This is corroborated by the fact of their publishing the proceedings of September 2, 1875, which contained this resolution.

It is true, as the referee finds, that in the designation of the plaintiffs’ paper as one of the official papers, no price is stipulated for services. But this was not necessary, since it still remained for the common council to order advertising to be done. And as they ordered this to be done, either at the price of five dollars per column or not at all, the plaintiffs, by doing the"* work with knowledge of these terms, accepted that rate of compensation.

"Without passing on other questions raised by the defendant, we think that, for the reasons given above, the judgment must be reversed, a new trial granted, the referee discharged, costs to abide the event.

Boardman and Bocees, JJ., concurred.

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


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    ANDREW MIAGHAN, Respondent, v. THE HARTFORD FIRE INSURANCE COMPANY, Appellant.

      Policy of insurance — the knowledge of its agent estopps the company from setting up a breach of condition — the plaintiff may claim a greater amount than that stated in the proofs of loss — when he may show that he did not read the policy — construction of a clause as to occupation of premises.

    Upon the trial of this action, brought upon a policy of insurance, it appeared that the plaintiff, who was in possession of a house and lot, under an executory contract for the purchase thereof, applied to the defendant’s agent for and received a policy insuring the building and the furniture therein, stating to the agent at the time of the application the nature of his interest in the property. The policy, however, did [not contain any statement to that effect. The defense was based upon a condition in the policy to the effect that if the assured was not the sole, absolute and unconditional owner of the property and such fact was not expressed in the written portion thereof, then the policy should he void; the policy also provided that no officer or agent or representative of the company should be held to have waived any condition of the policy, unless such waiver was indorsed thereon.

      Held, that the company was estopped by the knowledge of its agent from setting up the breach of the condition.
    [n the original verified complaint and in the proofs of loss the plaintiff stated Ms loss at $800. Upon the'trial lie was allowed, against the defendant’s objection and exception, to amend Ms complaint so as to demand the amount named in the policy, viz., $3,000. Held, no error.
    The plaintiff was, against the defendant’s objection and exception, allowed to testify that he did not read the policy when it was delivered to him.

      Held, no error ; that it tended to show that he relied on the agent’s acts.
    The policy contained a provision that, “if the premises hereby insured shall become vacant or unoccupied or, if the property insured be a mill or manufactory, shall cease to be operated and so remain^for a period of more than fifteen days, without notice to the company'and consent indorsed thereon, in every such case the policy shall be void.”

      Held, that the words, “ and so remain for a period of more than fifteen days,” applied to a case where a house became vacant or unoccupied, as well as to one where a mill or manufactory ceased to be operated.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes.
    The case has been tried twice. The General Term reversed the judgment rendered for the plaintiff on the first trial on the ground that the' evidence- authorized no reformation of the contract. On the present trial the -plaintiff was permitted to waive any reformation and recover a judgment on the contract made by the defendant.
    The action was brought upon a policy of insurance issued by the defendant to the plaintiff for $2,000 — $1,700 on his dwelling and additions thereto situated in Ballston Spa, $300 on furniture. The complaint alleges that the plaintiff’s interest in the house at the time it was destroyed by fire was upward of $800, and furniture $225. The complaint also alleges that at the time of the insurance the plaintiff was the equitable owner of the dwelling, and lot on which it stood, having a contract for the purchase thereof and that he had no deed of the same, and that these facts were stated to the defendant by the plaintiff, and were well known to the defendant when the policy was issued, and that the policy was written by the defendant without any statement of these facts, and that the plaintiff did not know of such omission until after the loss and damage, and prayed for a reformation of the policy and for judgment for $1,025 with interest from December 2, 1874.
    Upon opening the ease plaintiff’s counsel asked leave to amend the complaint by claiming the face of the policy. This was objected to by defendant, but was granted, and an exception taken by defendant. The policy contained a clause that “ if the assured is not the sole, absolute and unconditional owner of the property insured, or (if such property be a building or buildings) of the land on which such building or buildings stand, by title in fee simple, and this fact is not expressed in the written portion of the policy,” or “ if the premises hereby insured shall become vacant or unoccupied or, if the property insured be a mill or manufactory, shall cease to be operated, and so remain for a period of more than fifteen days without notice to the company, and consent indorsed hereon, in every such case the policy shall be void.”
    It also provided that “ no officer, agent or representative of the company shall be held to have waived any condition of the policy unless such waiver is indorsed thereon.”

      Samuel Hand and Matthew Hale, for the appellant.

      Esek Cowen, for the respondent.
   Learned, P. J.:

“ The principle that if the statements in the application relied upon as breaches of warranty are inserted by the agent for the insurers without any collusion or fraud on the part of the insured, the insurer is estopped from setting up their error or falsity, seems now well settled.” (Mowry v. Rosendale, 74 N. Y., 360; Whited v. Germania Fire Ins. Co., 76 id., 415; Pelton v. Westchester Ins. Co., 77 id., 606; Grattan v. Met. Life Ins. Co., 21 Alb. Law. J., 188.) In the present case the jury have found that the plaintiff told to the agent of the defendants exactly what his title was, and that the agent with that knowledge issued the policy in its present form. That brings this case within the rule of the recent decisions above cited, and others of a similar effect.

It is urged by the defendant that by the policy no agent of the company could waive any of the terms or conditions unless such waiver should be indorsed thereon in writing, and that the condition that the policy should be void if the assured was not the absolute owner, and that fact was not expressed in the written portion of the policy, had not been thus waived. But a moment’s consideration will show that this condition cannot apply. To write a waiver of the requirement that the assured should state that he was not absolute owner would only be to state in awkward language that the assured was not the absolute owner; and that is the very thing which the jury have found that the agent knew and neglected to write.

The defendant insists that the plaintiff should have been non-suited, on the ground that the premises were vacant or unoccupied at the time of the fire. Tjhis. question depends on the construction of a clause in the policy. We think that the meaning of that clause is, that the policy is to be void if the premises become vacant or unoccupied, and so remain for a period of more than fifteen days without notice, etc. If the property be a mill or manufactory, the ceasing to be operated is equivalent to vacancy, etc.

The question of fact as to whether the premises were vacant or unoccupied for fifteen days was submitted to the jury.

We do not think there was any improper use of discretion in allowing the plaintiff to amend his complaint by increasing the amount demanded. He was not estopped by his proof of loss. (McMasters v. Ins. Co. of N. Am., 55 N. Y., 222.) And evidence was subsequently given on the trial that the claim was stated at a less amount in the proofs of loss than the actual damage, in order to obtain a speedy settlement.

We know of no reason why the proofs of loss should be conclusive on the party who makes them. Of course they may be used as evidence against him, because they are his statement. But in no respect have they the qualities needed for an estoppel mpais.

Proof that the plaintiff did not read the policy was proper. It tended to show that he relied on the agent’s acts. Whether Smith was sufficiently acquainted with the property to express an opinion, was a question which necessarily rested in the discretion of the justice who tried the case, unless there were an entire absence of proof as to his competency.

The judgment and order should be affirmed, with costs.

Boakdman and Bocees, JJ., concurred.

Judgment and order affirmed, with costs.


author: Learned, P. J.: Boardman, J.: Bockes, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. JOHN McGINTY and JOHN KINSELLA, Plaintiffs in Error.

      Bobbery — what force is required, to constitute the offense

    Upon the trial of the plaintiff in error, McGrinty, for robbery in the first degree, it appeared that on the evening of January sixth one Swallow entered a saloon kept by McGfinty’s wife, and while there took out his pocket-book to put some money in it; that McGinty who stood at the end of the bar, knocked it out of his hand, and that one Kinsella, who stood behind the bar, picked it up. McGinty then seized Swallow by the shoulders, turned him around and put him out of the saloon and shut the door; that Swallow demanded his pocketbook, and was told by McGinty that he had better go away, as he would never see it again.
    The court charged that if the force used by McGinty in taking the pocket-book from the hands of Swallow was sufficient, under the circumstances, to deprive him of his property, and if it was done with a felonious intent to steal it, that then the element of violence required by the statute to constitute the offense of robbery was made out.

      Held, that this was error.
    Writ of error to the General Sessions of the county of Essex, to review the 'conviction and sentence of the plaintiff in error of robbery in the first degree.
    Hpon the trial the complainant, Guy Swallow, testified in substance that on January 6, 1880, he went into a liquor saloon kept by Mrs. McGinty, wife of one of the plaintiffs in error; that he sold the defendant Kinsella a box of catarrh medicine; that Kinsella stood behind the bar; that when he paid for the medicine he (Swallow) took out his pocket-book and put the money in the book; that McGinty stood at the end of the bar, and knocked the pocketbook from his hands on to the bar, and that Kinsella picked it up, and McGinty grabbed him (Swallow) by the shoulders, turned him around and put him out doors and shut the door; that he demanded his pocket-book, and McGinty told him he had better go away, he would never see that pocket-book again; that there were four dollars and eighty cents in silver in the book; that he gave thirty cents for the book, and that the money and wallet were his; that the defendants and Mrs. McGinty were in the bar room.

      M. D. Grover, for the plaintiffs in error.

      R. C. Kellogg, district attorney, for the People.
   Learned, P. J.:

The court charged: If you come to the conclusion that the force which was used in taking this pocket-book from the hand of Guy Swallow was sufficient under the circumstances to deprive him of his property, and if you find that the intent was felonious to steal the property, then I charge you, as a matter of law, that within that element of the statute the charge is made out.” The prisoner excepted.

Again, the court charged that the taking by violence means a taking by force which is sufficient to take the property against the owner’s will.

Again, the prisoner requested the court to charge that the striking of the pocket-book from the hand of the complainant, as testified to by him, does not constitute robbery. The court refused and charged that if the jury believed his testimony, that makes out the element of robbery. The prisoner excepted.

The testimony of the complainant was that he went into a saloon kept by Mrs. McGinty; that she and the prisoner, McGinty and Kinsella were present and no one else; that he took out his pocketbook ; that McGinty knocked it out of his hands upon the bar; that Kinsella picked it up; that McGinty grabbed the complainant and put him out of doors; that he demanded his pocket-book and McGinty told him he would better go away, he would never see the pocket-book again.

The point is whether the court properly submitted the question of violence to the person to the jury. Even if we assume that the forcible turning of the complainant out of doors might be properly considered as characterizing the act of the prisoner, the question still remains whether the court adopted the proper rule as to what constituted violence to the person. The court charged, that if the force which was used was sufficient to deprive eom'plainant of his property against his will, that would be sufficient to constitute the violence to the person, which is a necessary element of the crime. Here we think that the court erred. The language used would include any larceny from the person. The pickpocket who steals a handkerchief uses sufficient force to deprive the owner of his property, and his taking is felonious and is against tthe owner’s will.

“ The mere snatching of anything from the hand of a person without any struggle or resistance by the owner, or any force or violence on the part of the thief, will not constitute robbery.” (McCloskey v. People, 5 Parker, 299; to the same effect People v. Hall, 6 Parker, 642.)

The violence contemplated means more than simple assault and battery. “ It must be sufficient to force the person to part with his property, not only against his will Tout in spite of his resistance.” (McCloskey v. People, ut supra.)

Now, the present case was only like the snatching of a pocket-book. The complainant was not struck or held, nor was any resistance overcome on his part. The pocket-book was only knocked from his hands, just as it might have been snatched away from them.

The court below drew this distinction, that if the violence was only the result of the taking, then the crime was not robbery; but if the taking was the result of the violence, then it was robbery. There is perhaps some force in this distinction if it were properly qualified. But we think that the error was in holding that any physical act to the person of the complainant which resulted in the taking was violence within the meaning of the statute.

It is not easy, nor perhaps is it best, to attempt to make an exhaustive definition of violence as used in the statute; but we may say that it generally implies the overcoming, or attempting to overcome, an actual resistance, or the preventing such resistance through fear. It may include restraint of the person, as in Mahoney v. People (3 Hun, 202), where the complainant was held around his neck and by his arms. And it generally implies that the acts tend to produce terror and alarm in the person on whom the violence is committed. And it ought not to be held that every assault and'battery, even the most trivial, which results in the taking of property from the assaulted person, constitutes that element of violence which is mentioned in the statute. The penalty is severe; the crime aimed at is grave; and we should be careful not to magnify a less offense into one which has, and deserves so severe a punishment. In my own opinion, the facts of the present case are not sufficient to show the defendant to be guilty of this crime.

The judgment and conviction must be reversed, and the cause remitted to the Court of Sessions.

Boardman, J.:

I concur in the conclusion of the presiding justice that the charge of the judge was erroneous and was likely to mislead the jury. As this will lead to a new trial, I desire to add that the seizure of complainant, in connection with getting his pocket-book and forcibly putting him out of the house, may by possibility, upon a new trial, furnish that element of force, overcoming resistance or inspiring fear, which is necessary in robbery. In this respect I think our decision should not be deemed to be conclusive of the case, or to require the discharge of the plaintiff in error from the' indictment.

Bockes, J.:

I concur in the opinion of my brother Learned as regards the error in the charge of the court on the trial. I am also of the opinion that the facts proved do not make out a ease of robbery under the statute on which the indictment is found.

The cases cited in 5th and 6th Parker show, as I think, very clearly the insufficiency of the proof to establish the crime charged, as regards violence to the person.

Judgment and order reversed and cause remitted to Essex County Sessions, new trial granted.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE ULSTER AND DELAWARE RAILROAD COMPANY, Respondent, v. CHARLES SMITH and others, Assessors, etc., and JEREMIAH S. WHITNEY, Town Clerk, etc., Appellants.

      Review of assessment —1880, cha/p. 269 — no notice of an application for the writ of certiora/ri is required — Writ need not he served ten days before the return day —Retu/rn as to both real a/nd personal estate ma/y he required — return is to he hea/rd at Special Term — it may be contradicted — Reference may be ordered to take testimony.

    No notice of the granting of a writ of certiorcm, to review an assessment of real or personal property, under chapter 269 of 1880, need he given if the court in its discretion sees fit to dispense with it.
    The supervisor of the town is not a necessary party to proceedings instituted under the said act to review- an assessment.
    The writ must require a return to he made thereto at a Special Terni to be held within not less than ten days from the time of its allowance, hut it is not necessary that the writ should he served ten days before the return day.
    A writ issued upon the application of one assessed for real estate only, may require a'return as to assessments of both real and personal property.
    The hearing upon the return -to a writ of certiora/ri issued under the said act should he at Special Term. ,
    The return to a writ issued thereunder is not conclusive, hut is open to contradiction, and the court may appoint a referee to take and report the evidence to he produced by the parties.
    Appeals from two orders made by the Special Term at Kingston, the one from an order appointing a referee to take testimony, and the other from an order denying a motion .to set aside the order appointing the referee.
    This is a special proceeding, being a certiorari under chapter 269, of the laws of 1880, entitled “An act to provide for the review and correction of illegal, erroneous or unequal assessments.” It was instituted for the purpose of reviewing an alleged unequal assessment of the real estate of the relator.
    The relator or petitioner applied ex 'parte for the writ to Justice Westbrook at chambers, and it was allowed, no notice having been given to the defendants.
    The writ was allowed on the 11th day of September, 1880, was made returnable on September 25, 1880, at Special Term at Kingston, and was served on the assessors on the fifteenth of September.
    TJpon the filing of the return the relator’s counsel moved the court for the appointment of a referee to take testimony to contradict them.
    The defendants objected and insisted that the Special Term had no authority to appoint a referee or to entertain a hearing upon the return, but that the hearing must be had at the General Term; that a case was not presented for taking testimony; that the return was conclusive and could not be traversed or contradicted by testimony, but that .-the hearing must be on the return itself. The court overruled the objections and made an order appointing a referee, which was served and a notice of hearing before the referee was also served. The appellants then made a motion before the justice, on affidavits and on all the papers, to set aside the order of reference, which was denied pro forma.

      A. Schoonmaker, for the appellants.

      P. Cantine & S.L. Stebbins, for the relator.
   Learned, P. J.:

This is a proceeding under chapter 269, Laws of 1880, entitled “An act to provide for the review and correction of illegal, erroneous or unequal assessments.” The first section of that act authorizes the issue of a writ of certiorari on the petition of any person or corporation claiming to be aggrieved, to review an assessment of real or personal property, “ when the petition shall set forth that the assessment is illegal, specifying the grounds' of the alleged illegality, or is erroneous by reason of over-valuation, or is unequal in that the assessment has been made at a higher proportionate valuation than other real or personal property.” It is apparent from the title of the act and from the act itself, especially from sections one and four, that it is intended to give relief against certain wrongs which have been long and well known to exist, but which have been heretofore practically remediless. (People v. Dixon, 15 Sup. Ct. N. Y., 178; People v. Supervisors, 60 N. Y., 381.) The case of Youmans v. Simmons (14 Sup. Ct. N. Y., 466) affords an instance. There the assessors, after assessing the value of the land in their town, willfully inserted in the assessment roll all of the land at one-third of the value at which they had actually estimated it, excepting, however, the ground rents owned by the plaintiff, which were inserted at their full value. And in construing the present act we should have in mind the evils at which it was aimed, and should give it effect accordingly.

The first point made by the appellants is that the writ is irregular, in that it was granted without notice. The requiring of notice is discretionary. (Code Civil Procedure, §§ 2128, 3355.) The court below dispensed with it, and as the proceeding is merely a review without any stay of the action of the assessors, notice seems unnecessary.

Next, the appellants claim that the writ is defective in not making the supervisor a party. They insist that the assessment roll by law was to have been delivered to the supervisor, and that such law is not changed by section 9 of the act under consideration. It seems to us to be unnecessary to decide whether or not section 9 has changed the former law. The object of the statute is a review of the proceedings of the assessors. The statute does not contemplate a mere affirmance or reversal of the whole assessment as under a common-law certiorari (People v. Ferris, 36 N. Y., 218), but it provides for a correction, for a reassessment and the like, as if the appellate court were, to some extent, to exercise its own judgment upon the matter. No stay is to be granted, nor are the original papers to be returned. It is, therefore, of little consequence what officer has the actual custody of the assessment roll. That will remain with him. If the correction by the court is made in time for the use of the board of supervisors at its annual session it can be' acted upon. (Sec. 5.) If not made in time, the wrong done the petitioner is to be redressed at the next. (Sec. 8.) Whether it be the supervisor or the town clerk who has the assessment roll is immaterial. For if a new assessment is ordered it is not to be made by the officer in possession of the roll. His duties are in no way disturbed by this proceeding; and as a mere custodian of the papers it was not absolutely necessary, even although it were suitable, to make him a party. The matters which are to be returned are within the knowledge of the assessors, and if they should be unable to make any return by reason of an inability to obtain the papers they could make that excuse. They complain of no such inability in this case.

Next, the appellants insist that the writ was not served ten days before the return day. The Code of Civil Procedure makes a certiorari returnable within twenty days after service at the clerk’s office. (Sec. 2132.) But this statute is special, and it provides that the writ shall be returnable at a Special Term (sec. 2), and that the judge shall prescribe the time within which a return shall be made, which shall not be less than ten days. (Sec. 3.) This does not say, not less than ten days after service. It was to be made returnable at a Special Term of the com’t, and, therefore, was to be returnable at a fixed time. It could not therefore, in terms, be made returnable not less than ten days after service. The meaning of the statute is that the Special Term, at which the writ is returnable, must be not less than ten days from its issue. The court can extend the time for making a return if necessary. (Sec. 3.)

Next, the appellants insist that the writ is too broad, in that it calls for assessments on real and on personal propérty. We see no reason for this objection. Injustice may be done to á petitioner by improper assessments of personal property, although his own property is exclusively real. The same tax falls on all.

Next, the appellants insist that when the return has been made the Special Term has no further jurisdiction. The Code of Civil Procedure, section 2138, requires that the eertiora/ri therein provided for shall be heard at General Term. But that is a certiorari heard on the returns and limited as to the points to be determined by section 2140. The present proceeding is evidently different. The authority given- in section 4 to review what is erroneous and unequal and to take evidence, contemplates a very different power — a power of review and modification as above stated. For this reason we have already held, at this present term, that such a certiora/ri is to be heard at Special Term, that being the tribunal where evidence which is for the first time produced must be heard. Section 7 also confirms this view, stating that appeal may be taken “ as from an order.”

Finally, the appellants insist that the order of reference was unauthorized, because the return is conclusive. In so doing the appellants rest on the familiar doctrine that, upon an ordinary common-law certiorari, the return cannot be contradicted. Authorities are not needed on that point. But there is nothing, so far as we know, to prevent the legislature from using a writ of certiorari as the mode of review, where the return thereto is not to be conclusive ; and, on the contrary, the appellate tribunal is to receive new evidence; and 'the only question is, what the legislature meant by this present act ? And here we may repeat that the very title of the act declares that it is to provide for the correction of * * * unequal assessments. The very first section provides for cases erroneous by reason of over-valuation or unequal, in that the assessment has been made at a higher proportionate value, etc. How are these to be corrected ? Did the Legislature suppose that assessors, who had made and sworn to an assessment roll, would, on a return to a certiorari, state that they had over-valued a piece of property, or that they had valued it at a higher proportionate valué than other real or personal property in the same roll? Such a supposition is absurd. And this carefully prepared act is utterly useless if it is intended only to permit repentant assessors to acknowledge, in the return to the writ, their violations of their oaths and their duty. The present case is an illustration. The petitioners say, that on the first making out of the roll their real estate was valued at $120,000; that they submitted evidence that this was higher than other real estate, and claimed a reduction to $45,000. The assessors reduced it to $90,000. The petitioners show that other taxable real estate is assessed at only twenty-five per cent of its value, and that no considerable part of the personal estate is assessed.

The return of the assessors states that the valuation of the petitioners’ real estate bears a just and true relation to the assessed valuations placed on the residue of the real estate, and that they deny that such residue is assessed at twenty-five per cent of its value, and allege that it is, on the average and in the aggregate, assessed at its just and true and full value. Thus the return in this important-part is but a re-iteration of the assessment roll. So that, if the return is to be conclusive, this proceeding is useless.

But, plainly, the Legislature intended to provide a mode of relief which should be effectual. And therefore the act declares that if, on the return, it should appear that the assessment is illegal, erroneous or unequal, the court should have power, etc. Section 4 then proceeds: “ If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the. determination of the court shall be made.” It would be difficult to use language which should be plainer or less liable to be misunderstood. How could testimony be necessary, if the return is conclusive ? Not only may the court take testimony or appoint a referee for that purpose, but expressly such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made. That is, the court is to determine upon testimony to be taken. Thus the rule that the return is conclusive is swept away in this proceeding; and the court is to receive other testimony on which to determine whether the assessment is illegal, erroneous or unequal.

It-may be that this liberal power of reviewing assessments may throw great burdens upon the court, or even that some evils may be developed in its exercise. But we think that the intention of the Legislature is unquestionable. And whatever the evils may be, they can hardly be greater than those which have arisen from the acts of assessors, regardless of the law and of their oaths, and free from all control and responsibility. When assessors shall learn that their acts are subject to public review, they may understand that their oaths are not a mere form.

The orders appealed from should be affirmed, with ten dollars costs and printing disbursements.

Bookes, J., concurred; Boardman, J., concurred with doubt.

Orders affirmed, with ten dollars costs and printing disbursements.


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    JOEL J. ALBRO, as Commissioner of Highways, etc., Appellant, v. JOSEPH H. ROOD and others, Respondents.

      Commissioner of highways — when he should be nonsuited for failing to prove his official character — sight of, to bring an action to set aside a fraudulent conveyance made by one against whom, he has recovered a judgment.

    The plaintiff, as a commissioner of highways, having recovered a judgment against one Rood for obstructing the highway, brought this action to set aside certain conveyances of real estate made by Rood, on the ground that they were fraudulent and void as against his creditors. The defendant set up in his answer, that the plaintiff in his individual capacity had no standing in court, and that as a commissioner of highways he was not authorized by law or by vote to bring the action.
    Upon the trial the plaintiff was nonsuited because he had failed to allege or prove that at the time of commencing the action or at that of the trial he was a commissioner of highways.

      Held, no error.

      Qucere, as to whether he had in any event authority to maintain such an action, and whether it should not have been brought by and in the name of the town.
    Appeal from a judgment in favor of tbe defendants, entered upon an order dismissing the complaint, made at the Circuit.

      Waters & Knox, for the appellant.
    The cause of action which was. stated in the complaint was one in favor of the plaintiff in his official character only. 1. He is the judgment creditor in that capacity only. 2. That action was founded upon a penalty. (1 R. S., 526, .§§ 131, 132; id., 521, §102; People v. Supervisors, etc., 32 N. Y., 477; 5 Hill, 215, 217; 2 R. S., 473, § 92.) This judgment is a contract which plaintiff could enforce against Joseph Rood. (1 Parsons on Contracts [3d ed.], 7; Mahoney v. Perman, 4 Duer, 606; Barnes v. Smith, 16 Abb., 420.) The cause of action was not the property of the town, but solely the property of the officer. (The People v. Town Auditors, 75 N. Y., 316; The Town of Gallatin v. LoucJes, 21 Barb., 579; Morey v. Town of Kewfcme, 8 Barb., 645.) The plaintiff was a quasi corporation, and for the purposes of this suit a corporation, and it was unnecessary to allege or prove his official character. (Laws of 1864, chap. 422; 3 Kern., 309; 2 Kent [4th ed.], 274, 278, 279, m. p.; 1 Cow., 260; 18 Johns., 418; 8 id., 425 ; 13 Mass., 192-3; 5 Oow., 309, 311, 313 ; 2 Wend., 134.) But tlie point was waived. There was no demurrer to the complaint in this action, and the objection that the plaintiff was not the commissioner of highways was not taken by answer, and, therefore, by the express statute the objection that the plaintiff had not capacity to sue “ is deemed to be waived.” (Civil Code, §§ 488, 498, 499; White v. Low, 7 Barb., 204; Viburt v. Frost, 3 Abb., 120; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y., 648; Moak’s Van Santvoord’s PL, 743; The Phoenix Bank v. Donnell, 40 N. Y., 41®.)

      Bouton <& Gha/mpli/n, for the respondents.
    That the defendants were entitled to a dismissal of the complaint seems to be conclusively established by the following authorities : Galbp v. Bell (20 Hun, 172), Gould v. Glass (19 Barb., 184), Forrest v. Mayor, etc., of New York (13 Abb., 350), 2 Wait’s Practice, art. 3, p. 373, Sheldon, admr., etc., v. Hoy (11 How., 11), Fowler v. Westervelt (4 Barb., 374), Plumtrees v. Dratt (41 id., 333), Bonesteel v. Gasrvnghouse (60 id., 338), The People v. Nostrand (46 N. Y., 375), The People v. Hopson (1 Denio, 374), White v. Miles & Joy (11 How., 36, 46).
   Learned, P. J.:

Joel J. Albro, as commissioner of highways, recovered a judgment in April, 1879, against' Joseph Rood, in the Supreme Court, amounting to $143.48 damages and costs, for a penalty for his obstructing a highway. Afterwards the plaintiff brought this action to set aside a deed executed by Joseph Rood to Dennis Phillips, in October, 1861, and certain subsequent conveyances, as fraudulent as against creditors. The plaintiff was nonsuited on the ground that it was not alleged in the complaint, nor proved on the trial, that at the time of commencing the action or at the time of trial Albro was a commissioner of highways.

As no case is made showing the evidence, we must assume that no such proof was given. The plaintiff insists that any such defense was waived.

The answers set up that the plaintiff in his individual capacity had no standing in court; that as commissioner of highways he was not authorized by law or vote to bring the action. When the cause was brought to trial the defendants distinctly urged, among other points, that the complaint did not allege that plaintiff was such commissioner, and at the close of the trial.

We think the learned justice held correctly in nonsuiting the plaintiff. Perhaps if there had been proof to justify it, an amendment of the complaint might have been had. But there was no proof, as we must assume, that Albro was a commissioner at the time of the commencement of this action or of its trial. The cases cited by the learned justice, especially Gould v. Glass (19 Barb., 179); Bonesteel v. Garlinghouse (60 id., 338); Plumtree v. Dratt (41 id., 333), sustain his position.

This was not an objection as to mere capacity to sue,” as claimed by the plaintiff. It involved the question who was the plaintiff, the private person Albro, or the official commissioner of highways ? The cases cited by the plaintiff of actions brought in the corporate name of some corporation do not apply. (Phœnix Bank v. Donnell, 40 N. Y., 410.) There can he no question then that it is the corporation which is the plaintiff.

Nor can it be said, as claimed by the plaintiff, that the cause of action was the property of the plaintiff in his private capacity. Although commissioners of highways are personally liable for damages arising from their neglect, yet that principle does not show that penalties recovered in their name belong to them. (People ex rel. Loomis v. Town Auditors, 75 N. Y., 316.)

A more important question is, whether the plaintiff can in any event maintain this action. The power to commissioners of highways to sue is to be found in 2 R. S., m. p. 473, § (92). This gives a right to sue for penalties and “ upon any contract lawfully made with them or their predecessors in their official character.” The penalties are to be applied to improving roads and bridges. (1 R. S., m. p. 526, § [131].) They therefore, when collected, are part of the funds of the town in the commissioner’s hands. (1 R. S., m. p. 502, § 3.) Certainly the town is the person beneficially interested, as the money received for penalties directly affects the amount to be raised.

The town can bring an action at law or in equity where a cause of action exists. (1 R. S., m. p. 356, § 1.) And in all such suits, except where town officers are authorized to sue in their name of office, the town is to sue by its name. (§ 2.)

Now the argument of the plaintiff seems to be that the section (92) above cited anthorizes the commissioners to sue “ upon any contract lawfully made,” and that a .judgment is a contract. But the answer to that is that the defendants in this case, who claim the title to the land, the alleged fraudulent grantees, Dennis Phillips and Dearborn Rood, have made no contract with the plaintiff. The action to set aside their fraudulent deeds is not an action on contract. It is based on fraud. Even admitting, therefore, that a judgment might be included in the words “ any contract lawfully made” which is not quite certain.; still this action is brought to set aside fraudulent conveyances, and is not an action upon a contract, certainly not against the alleged fraudulent grantees.

And it would certainly be very doubtful whether the legislature could have intended to authorize an officer of such limited power to involve the town in actions of this character, often long and expensive. No precedent is cited.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    JUDSON S. LANDON, Respondent, v. THE BOARD OF SUPERVISORS OF SCHENECTADY COUNTY and others, Appellants.

      Injunction — when one in possession of land as tencmt, may restrain his lessor from, taking proceedings to remove him.

    In 1869 one Wingate leased certain premises belonging to tbe county of Schenectady from the board of supervisors thereof, and erected thereon certain buildings upon the agreement that he was to be entitled to remove the same at any time during the continuance of the lease. In April, 1880, the plaintiff, who had acquired the rights of Wingate in the lease and buildings, brought this action to restrain the board from entering upon the said premises, or taking any steps to remove him therefrom, on the ground that by a resolution passed in December, 1879, his lease had been renewed for one year from May 1, 1880, upon his paying therefor the sum of fifty dollars, and that he had paid the said sum to the county treasurer. The defendants denied the passage of the resolution and the payment of the rent.

      Held, that as the plaintiff relying upon the alleged passage of the resolution and the payment of the rent had, in good faith, allowed the buildings to remain upon the premises, it would not be equitable to allow the defendant to take the buildings from him, even though the resolution had not in fact been passed or the rent paid; and that as no relief in this respect could be granted, if summary proceedings to recover possession of the premises were instituted, the plaintiff should be allowed to maintain this action.
    Appeal from an order made at Special Term continuing a temporary injunction granted herein.
    The action was brought to restrain the defendants, The Board of Supervisors of the County of Schenectady and one of the committees thereof, from taking possession of a certain piece of ground belonging to the county, of which the plaintiff claimed to be the lessee.
    The ground was leased by the board, in 1869, to one Wingate, who erected certain buildings thereon upon the agreement that he should be allowed to remove the same upon the termination of his lease. In December, 1871, Wingate sold and conveyed his interest in the lease and buildings to the plaintiff, who has ever since continued in the possession thereof.
    The plaintiff claimed that in December, 1879, a resolution was passed by the Board of Supervisors extending his lease for the term of one year from May 1, 1880, at the rent of fifty dollars, and that he had, on February 27, 1880, paid the said rent to the county treasurer. The defendants denied that any such resolution had ever been duly passed or that the rent had been paid. In April, 1880, the plaintiff brought this action to restrain the defendants from removing him, and procured therein the order granting the temporary injunction from which the appeal was taken.

      S. W. Jackson, for the appellants.

      E. W. Paige, for the respondent.
   Learned, P. J.:

The first question is, whether the court has power in any case to enjoin these proceedings. (2 R. S., 516, § 47.)

I think it has. The language in Sherman v. Wright (49 N. Y., 232) implies that there are such eases. This is held in Capet v. Parker (3 Sandf., 662); Forrester v. Wilson (1 Duer, 624), and in some other cases. In many of the cases cited by the defendants the power was admitted but its exercise refused. Such is Springsteen v. Powers (3 Rob., 483). Sections 2265, subdivision 2, and 3347, subdivision 11, new Code, seem to indicate that the court has such power in a proper case.

It is not disputed that the defendants or the county are the owners of the land. Nor is it disputed that a tenant of the defendants placed on the land some buildings and that the plaintiff purchased that tenant’s rights. It seems to be admitted that the plaintiff has the right during the continuance of his lease to remove the buildings. The plaintiff urges that if he does not remove them during his possession he will lose them. (Brooks v. Galster, 51 Barb., 196; King v. Wilcomb, 7 id., 263.)

The plaintiff insists that a resolution of the board of supervisors was passed December 20, 1879, authorizing a committee to lease plaintiff the premises for one year, from May 1, 1880, at fifty dollars, of which he was notified. He thereupon paid fifty dollars to the county treasurer, of which the board was notified. This has not been repaid, but is retained by the county.

It appears that there are two matters in conflict in this respect; the one whether such a resolution was actually passed, the other whether the fifty dollars paid by plaintiff was rent for a year from May 1, 1880, or for the year ending that day.

Now it is undoubtedly true, as urged with great force by defendant’s counsel, that these matters present, if the plaintiff is correct, nothing but a legal defense to the summary proceedings; that if the plaintiff has no lease for a year from May 1, 1880, he has no rights whatever; if he has such a lease that will prevent a summary removal.

And this argument would be conclusive, if there were nothing involved here but the lease of the land. But that is not the case. The plaintiff has buildings on the lot alleged to be worth $1,200. These are his, but he must remove them while his possession remains. Under the belief that by the alleged resolution of the supervisors, and by his payment of the fifty dollars, he had obtained a right to remain in possession until May 1,1881, he has allowed the buildings to continue upon the premises. If by summary proceedings he Bhould be removed, he would lose these buildings and might not recover them even on a reversal of the order of removal.

If it should appear on the trial that the resolution supposed to have been passed had not been passed in fact, and if it should further appear that the fifty dollars must be applied on the rent for the year ending May 1,1880, still it would not be equitable that the plaintiff, having acted in good faith, should lose the buildings which belong to him. And we do not see how he could be protected in that respect under the summary proceedings.

We think, therefore, that the order should be affirmed, with ten dollars costs and printing disbursements.

Boabdman and Bocees, JJ., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


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    PATRICK LOOBY, Appellant, v. THE VILLAGE OF WEST TROY, Respondent.

      TFTten the receipt of part of a disputed claim bars an action for the residue — when the protest of the pa/rty receiving it, is immaterial — when the defenda/ntmay rely upon am, accord and satisfaction not pleaded.

    Where the owner of a disputed claim against a village, with knowledge of the fact that the board of trustees thereof has passed a resolution directing that a certain sum shall be paid thereon in full and complete settlement and satisfaction of his' whole claim, receives the said sum from the chamberlain of the village and signs a receipt stating that the same was received as a full and complete settlement and satisfaction of his claim, his claim is discharged and he cannot thereafter maintain an action against the village to recover the balance thereof.
    The fact that he stated at the time of receiving the money that he would not accept it in full payment is immaterial.
    When in an action brought upon the claim the plaintiff, as a part of his case, proves the payment and the circumstances under which it was made, the defendant may rely upon the facts as constituting an accord and satisfaction, though it has not pleaded them in its answer as such.

      Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The action was brought to recover for services rendered by the plaintiff under a contract with the board of trustees of the defendant, for lighting the streets and furnishing oil for its lamps.

      A. D. Lyon, for the appellant.

      Galen R. Hitt, for the respondent.
   Learned, P. J.:

By the charter of defendant (chap. 230 of 1850) there was to be a taxpayers’ meeting, at which the taxpayers were to direct the trustees to cause to be raised taxes for certain purposes. (Sec. 27.) By another section (37) no officer of the village has power to incur any debt or liability contrary to the act of incorporation; “ nor shall ¡my of the money or property of said village be applied to the payment of any such debt or liability, or be liable in any manner to be taken therefor; nor shall said village incur any debt or liability beyond the amount of taxes applicable to the payment of such debts or liabilities which shall have been voted to be raised at the annual meeting,” etc.

At a meeting of the taxpayers August 29, 1878, the sum of $4,990 was voted for lighting gas and oil lamps for the ensuing year. This vote was certified to the board of trustees September 4, 1878, and they, on that day, directed the levy of a tax for that amount. At the same time they authorized the lamp and gas committee to enter into contracts with competent parties to light the streets, etc. On the tenth of October this committee made a contract with plaintiff to furnish the oil, etc., for the public oil lamps, for seven months, at a certain rate therein specified. Another contract was at the same time made in regard to the gas lamps for the same time; and still another for cleaning the same and repairing.

The plaintiff seeks to recover for services performed under the contract. The referee reported in favor of the defendant on the ground that the three contracts were for a greater sum than $4,990, and also on the ground of an accord and satisfaction.

The plaintiff takes an objection to the admission of the resolution of the board of trustees of July 15,1879. The answer to this is that the plaintiff had previously given in evidence the minutes of 'the board for 1878 and 1879. The plaintiff also objects to the exclusion of evidence tending to show that of the three contracts made apparently on the same day, the plaintiff’s was signed first. Of course if that was a material matter it could properly have been proved by evidence outside the contract itself. We shall have to inquire whether it was material. The plaintiff also insists that there was no evidence that anything had been earned or done under any one of the contracts, except the plaintiff’s, and therefore that, so far as appears, the sum of $1,990 was not exhausted. On this point there is a difficulty, owing to the fact that some evidence offered and received is not printed in the case.

The plaintiff himself gave evidence that, after the commencement of this action, the defendant paid him $711.16 on this claim. On his cross-examination it appeared that he received a warrant on the chamberlain for that amount. On his cross-examination it further appeared that when he received this warrant he had knowledge of a resolution passed by the trustees, by which his bill and that of the gas company were to be audited fro rata, and that the amount paid was to be a full and complete settlement and satisfaction of all their claims. The warrant, as drawn, expressed that $711.11 is to be a full and complete settlement and satisfaction of all plaintiff’s claims for street lighting to date, August 13, 1879.

It appeared from the minutes of the board, given in evidence by the plaintiff, that the plaintiff’s bill had been audited at the amount above mentioned. The plaintiff testifies that when he received the warrant he said to the president, in substance, that he would not accept it in payment, and that he said the same to the chamberlain when it was paid. In this he is contradicted by the president and by the chamberlain.

We have, then, the case of a disputed claim against a corporation ; a resolution of the trustees to pay a certain sum in satisfaction and settlement; a warrant drawn accordingly to the order of the claimant for that sum, expressed to be in full satisfaction and settlement, and payment received by him thereon. The plaintiff was bound to accept this money on the terms upon which it was offered, or not to accept it at all. He could not impose other terms by his conversations (if any were had) with the officers. Their duty was simply to obey the orders of the trustees. Nor could the plaintiff, by a notice served subsequently on the trustees, alter the effect of his acceptance of the order. If he was not willing to take it in settlement, he should have returned it. (Palmerton v. Huxford, 4 Den., 166; Green v. Rochester Iron Mfg. Co., 1 T. & C., 5.)

The objection taken by the plaintiff that the settlement or accord and satisfaction had not been pleaded cannot prevail, because the plaintiff himself chose to prove the fact of payment in aid of his own case. This opened the subject. Indeed the plaintiff, under defendant’s objection, also proved the conversation between himself and the president before the warrant had been given in evidence. He has no right to object that all the facts connected with the payment were shown.

For this view we do not think it necessary to discuss the other question in the case, viz., that as to the validity of the plaintiff’s claim; though we see no reason to disagree with the referee in that respect.

The judgment is affirmed, with costs.

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

Judgment affirmed, with costs.


author: Learned, P. J.: Boardman, J.:

text:
    JAMES L. VAN INGEN, Respondent, v. JOHN P. SNYDER, Appellant.

      False imprisonment — when a right of action tlun'efor accrues — wTien it is barred by the statute of limitation— Code of Oiml Procedure, § 384.
    August 5, 1876, the plaintiff having been adjudged guilty of a contempt, in proceedings supplementary to execution, was imprisoned upon an order of the county judge, fining him and committing him to jail; on August tenth he gave an appeal bond, and was released. On January 25,1877, the order of the county judge was reversed, and on January 9, 1879, this action for false imprisonment was commenced.
    Meld, that the right of action accrued upon his release, upon giving the appeal bond in August, 1876, and that the action was barred because not commenced within two years from that time.

      Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action Avas tried.
    The action was brought to recover damages for a false imprisonment of the plaintiff under an order of the county .judge of Schenectady county, made in proceedings supplementary to execution instituted upon a judgment against the plaintiff herein, which had been recovered by the defendant. The order of the county judge was made on an adjudication that plaintiff had been guilty of a contempt.

      Chapman & Lyon, for the appellant.

      J. H. Clute, for the respondent.
   Learned, P. J.:

The only question on the merits is whether the action was barred by the statute of limitations.

An order was granted by the county judge August 5,1876, fining the plaintiff and committing him to jail. Upon that' he was imprisoned. On the 10th day of August, 1876, he gave an appeal bond, and by Adrtue thereof was on that day released. On the 25th day of January, 1877, the General Term reversed the order of the county judge. The present action for false imprisonment was commenced January 9, 1879. The defendant insists that it was barred because not commenced within two ,years from August 10, 1876. (Old Code, § 98; New Code, § 384.) The plaintiff insists that the cause of action did not arise until the reversal of the order January 25, 1877.

The case of Brown v. Crowl (5 Wend., 298), cited by plaintiff, holds simply that false imprisonment will not lie against a plaintiff who procures an erroneous judgment in Justices’ Court, for the reason that the judgment is a protection to the party. The case of Chapman v. Deyett (11 Wend., 31), also cited by plaintiff, is substantially to the same effect.

These cases, so far as they apply here, would tend to hold that no action whatever would lie against the defendant on the ground that the order of the county judge protected him. But that position is not taken by the defendant on this argument. Undoubtedly after the order had been reversed, it would no longer be a protection, if it had been a protection before. But the question when the defendant became liable to an action (if he was liable at all) did not depend on the subsequent reversal of the order. This is not an action for malicious prosecution. But the right of action (if any there was) began when the actual imprisonment ceased. (Dusenbury v. Keiley, 8 Daly, 537.)

The plaintiff insists that after his discharge on appeal he was still at the mercy of his bondsmen. Whether sureties on an appeal from an order have the rights of bail on an arrest upon mesne process, we need not inquire. In fact the plaintiff was not imprisoned by them.

' A point is made as to the sufficiency of the notice of appeal. By a mistake it speaks of a judgment, although none had been entered, but it refers-to the decision denying a new trial and may fairly be construed to read that the defendant appeals from the judgment and the decision denying a new trial. The meaning is apparent.

The order denying a new trial should be reversed.

Bocees, J., concurred.

Boardman, J.:

I concur, and as no recovery can be had if this opinion is sound, judgment absolute should be given for defendant.

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


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    LEVI M. BATES and others, Appellants, v. GEORGE BRADLEY and others, Respondents.

      Befusdl of assignee to sue to set aside a fraudulent transfer made by his bankrupt— a general creditor map sue on making the assignee a party.

    Upon the refusal of an' assignee in bankruptcy to bring an action to set aside fraudulent transfers of property made by the bankrupt, the general creditors of the latter may bring an action for that purpose in a State court, in behalf of themselves and all other creditors who are willing to come in and contribute, making the assignee in bankruptcy a party defendant thereto, and praying for a judgment for a sum named “for the benefit of the creditors of said bankrupts to be administered in due course of proceedings in bankruptcy.” Glenny v. Langdon (98 U. S., 20), distinguished.
    Appeal from a judgment in favor of the defendants entered upon the trial of this action by the court without a jury.
    The plaintiffs, general creditors of the firm of Bennett & Archibald, brought this action in behalf of themselves and all other creditors whose debts were provable in bankruptcy, and who were willing to come'in and contribute to the expenses of the action, to set aside certain transfers of property made by the said firm as being fraudulent and void under the bankrupt act. The firm filed a voluntary petition in bankruptcy on April 29, 1877, and the defendant Coleman was thereafter appointed their assignee. The assignee having refused, upon the plaintiffs’ application, to take steps to set aside a fraudulent preference given to the defendant Bradley, the plaintiffs commenced this action, demanding judgment against Bradley for “ the sum of $800 with the costs of this action, for the benefit of the creditors of said bankrupts, to be administered in due course of proceedings in bankruptcy, and that the plaintiffs may have such other relief as may be just or equitable.”

      Edward Fitch Bullard, for the appellants.

      U. G. Paris, for the respondents.
   Learned, P. J.:

The assignee in bankruptcy might have brought a suit for the same purpose with the present in a State court. (Kidder v. Horro bin, 72 N. Y., 159; Southard v. Benner, id., 424; Tyler v. McCollum, 26 Sup. Ct. N. Y., 622.)

The question whether the creditors may maintain such an action was considered in Dewey v. Moyer (72 N. Y., 70 at 87). In that case, as appears more clearly in 16 Sup. Ct. N. Y., 473, the assignee in bankruptcy was not made a party. But the defendant did not set up this in his answer as a defect of parties, and therefore it was not regarded on the trial. And the court sustained the action brought by creditors to set aside fraudulent transfers of property. That case and the many similar cases cited in the opinion establish the correctness of the plaintiffs’ position, unless there be some higher authority reversing the rule. Indeed, when it was established that the assignee in bankruptcy could sue in a State court to set aside fraudulent conveyances, it almost necessarily followed that, if he declined to sue, those for whom he was trustee might, on equitable principles, sue for themselves, making him a party defendant and asking that the avails of the suit be administered by him.

The case of Glenny v. Langdon (98 U. S., 20), subsequently decided in the Supreme Court of the United States, is claimed by the defendants to be conclusive in their favor. In regard to that case some facts must be noted. The debtors of the complainant had made an assignment under a State law, and subsequently had gone into bankruptcy; and one of the complainants had made an assignment under a State law, and subsequently had gone into bankruptcy ; and one of the respondents in the case had been appointed assignee in bankruptcy. The bankrupts surrendered no property. The complainant alleged that the bankrupts had fraudulently concealed property not surrendered either to the State assignee or to the assignee in bankruptcy, and alleged that the respondent assignee had been - advised of the facts and requested to adopt means to recover the property or to allow his name to be used, but refused to do so. The complainant and the respondents were citizens of the same State, but the complainant being a creditor of the bankrupt instituted this action in his own name in a Circuit Court of the United States, claiming to do so because the assignee refused to proceed or allow his name to be used.

The first point decided was that the Circuit Court had no jurisdiction on the ground of the citizenship of the parties. Next, that that court had no jurisdiction under the provisions of the bankrupt law giving it concurrent jurisdiction in certain cases with the District Courts.

The opinion then proceeds to consider the right of action, as based on principles of equity, authorizing the cestui que trust to maintain an action where the trustee is negligent. This is substantially the principle of Bate v. Graham (11 N. Y., 237), and of similar cases; and the court proceeds to say that conceding these principles the Circuit Court had no jurisdiction: 1st. Because complainant and respondents were citizens of the same State; and, 2d. Because in that view the remedy sought did not depend on the bankrupt law. And the court again say that if the remedy sought does not depend on the bankrupt act, the court below had no jurisdiction because both parties were citizens of the same State.

It will be seen, therefore, that the only point necessary to be decided in that case was whether or not the Circuit Court of the United States had jurisdiction of the action, and that the decision of that point in the negative rested on two grounds: 1st. That the parties were citizens of the same State; and, 2d. That the remedy sought did not depend on' the bankrupt law.

In examining how far that decision affects this present case we are met with the difficulty that the report does not show what relief the complainant demanded. It is said, incidentally, that it was to recover property conveyed by the bankrupt in fraud of his creditors. But whether the complainant sought such recovery for his own benefit, or whether, as in the present case, he asked to recover money to be administered in due course of proceedings in bankruptcy, does not appear.

But, at any rate, it is apparent that the question of the right of creditors in some tribunal to maintain such an action as the present was not involved. Indeed, it would be strange, when an assignee in bankruptcy refuses to bring an action to set aside a fraudulent conveyance of the debtor, that the creditors of the debtor, who are really the parties interested, might not bring such an action. If successful the result would be to add so much to the funds in the assignee’s hands. If unsuccessful the bankrupt estate would lose nothing. It is not necessary to- imply¿ as some language in the opinion above spoken of indicates, that the refusal of the assignee to bring this suit is a fraud on creditors. He may reasonably doubt its success and may be unwilling to run the risk of costs and expenses. If creditors are willing to take that risk, why should they not? "We see nothing, therefore, in the case of Glenny v. Langdon, which overrules the principles followed in this State, from Sands v. Codwise (4 Johns., 536) to the present ease.

The other points taken by the defendant relate simply to the sufficiency of the pleadings, in that the complaint did not state the facts necessary to give the Bankruptcy Court jurisdiction of the bankruptcy proceedings. But the allegations in that respect were sufficient under the present practice. (Code Civil Pro., §§ 519, 532.)

The judgment should be reversed and a new trial granted, costs to abide event.

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

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


text:
    LEVI E. GREEN, Respondent, v. JOSEPH LAMB, Appellant.

      Mortgagee in possession — light of, to commissions.

    Id this State there is no fixed rule, applicable to all cases, determining whether or not a mortgagee in possession is, upon an application by the mortgagor to redeem, entitled to commissions upon the amount received and expended by him.
    The decision of this question rests in the discretion of the court or referee trying the action, and when it is not unreasonably exercised the appellate court will not interfere therewith.
    Appeal by the defendant from a judgment entered on the report of a referee.
    October '6, 1866, the plaintiff contracted to sell to Solomon Knight a farm incumbered by five mortgages amounting to $2,461, for $6,000; $1,000 to be paid by March 1, 1867, and $500 annually thereafter. The plaintiff was to give a deed when the $1,000 was paid, and Knight to give back a bond and mortgage for the balance.
    The plaintiff being in want of money, it was agreed between the parties that the defendant should raise for him $1,000, take a deed of the farm from him and convey it to Knight and take back a mortgage from him for the balance. On the 27th day of March, 1867, this arrangement was carried ont and the deed was executed to Knight and the bond and mortgage were executed by Knight to the defendant for $2,589.
    The plaintiff went west and Knight occupied the farm during the season of 1867, and left in the winter following. He had committed waste on the premises, and in the spring of 1868 the defendant had procured an injunction and foreclosed his mortgage, bidding off the premises himself at $4,200. He occupied the farm in 1868 and had the rents and profits, etc., worth $250. October 12, 1868, defendant sold the farm to one Dye, for $4,500, subject to the above-mentioned five mortgages, then amounting to $2,361, and the balance of $2,139 Dye paid to defendant.
    This action was brought by the plaintiff to recover the balance of the money which was alleged to belong to him.
    The referee stated an-account between the parties as of October 12, 1868 (the day defendant sold the farm to Dye), charging him with the $2,139 and the use of the farm in 1868 at $250, and giving him credit for all he had paid or advanced for the plaintiff, and struck a balance of $268.07, and in his conclusions of law found the defendant liable for that amount.
    He refused to allow him commissions and allowed the plaintiff costs against him.

      S. D. White, for the appellant.
    The referee erred in not allowing the defendant some compensation for his services, either by way of statutory commissions or upon a quantum meruit. 1. He was entitled to statutory commissions. (9 Paige, 398; 23 Barb., 211; 32 id., 587; 35 N. Y., 187: 39 id., 202; 40 id., 96; 46 Barb., 579.) 2. If not to commissions he was upon a quantum meruit. (1 Johns. Oh., 27; 6 Bans., 368; approved, 56 N. Y., 668; Iddings v. Bruen, 4 Sand. Oh., 238-287; 39 N. Y., 202-3.) "When a party asks equity he must do equity. This case is not within the exceptions to the rule which allows compensation. (5 Johns. Oh., 534; 4 E. D. Smith, 534; 37 Barb., 133.) It is no answer to his right to compensation, that the proceeds of the mortgage or land was coming to himself, or that he received a benefit by getting security on the appeal bond, for that security was promised originally. (See 9 Paige, 398; 4 Redf., 405.)

      L. L. Bundy, for the respondent.
    The defendant was not entitled to commissions on the funds received or paid out. It is evident that no compensation was contemplated by or between the parties. • {Mason v. Roosevelt, 5 Johns. Ch., 534; Green v. Winter, 1 id., 27; Mcmning v. Marmvng, 1 id., 527; Perry on Trusts, §§ 904, 905, 911, 916, 918 and note; Tiffany & Bullard on Trusts, 940; Ireland v. Potter, 25 How., 175.) It is entirely clear that the defendant was not a statutory trustee, and hence not entitled to the statutory allowance. (2 Stats, at Large, 95, § 58;. 6 id., 126, § 8 ; Ogden v. Murray, 39 N. Y., 202, 204, 206; Story’s Equity Juris., § 466; Hill on Trustees, § 535).
   Learned, P. J.:

The defendant claims that he should have been allowed commissions. Now it must be noticed that this is not the case of a trustee accounting with a cestui que trust. The defendant was, on the contrary, simply a mortgagee in possession. The conveyance to him, absolute in form, was in fact to secure a debt and liability.

In Moore v. Cable (1 Johns. Ch., 385), some of the early cases are cited on this point, holding that such a mortgagee is not entitled to commissions. Among others is Bonithon v. Hockmore (1 Vern., 316). But it should be noticed that in that early case the mortgagee in possession is classed with a trustee; and it is said that neither was entitled to commissions. Plainly the law is changed as to a trustee.

In Walsh v. Rutgers F. Ins. Co. (13 Abb., 33), on an accounting between owner and mortgagee in possession, nothing is said about commissions; and they do not seem to have been allowed. In fact, this relationship does not often arise in this State. On the other hand, in Massachusetts, where a mortgagee enters after default for the purpose of foreclosure, the question as to commissions has arisen more frequently. In an action to redeem it has been held, that the mortgagee in possession, having entered for breach of condition, is entitled to ordinary commissions, and even, in special cases, to more. (Casenave v. Cutler, 4 Metc., 246; Adams v. Brown, 7 Cush., 220.)

On the whole, we are of opinion that no fixed, rule should be laid down, which would apply to every case where there is the legal relation exising between mortgagee in possession and owner. The circumstances which cause the relation may differ widely, and may make different rules as to commissions just and proper. Here the defendant, who was in fact mortgagee, entered by virtue of the conveyance and with the evident consent of the grantor. His receipt of the rents and profits was partly at least to pay the debt owing to him. He did not enter after condition forfeited, or for the purpose of foreclosure, as in the Massachusetts cases.

In the present case the referee has thought that the defendant should not have commissions ; and we think that there is nothing so unreasonable in his decision on that point that we should change it. In many matters which are discretionary, the opinion of the referee who tries a case is more likely to be correct than that of an appellate court, who only read a printed case.

So, too, on the question of costs. We suppose that the costs are of course, from the nature of the complaint, But without deciding that point, the referee, if costs were discretionary, could judge from the witnesses before him which of the parties had acted in good faith, and on which the burden of costs should be thrown.

. We see no reason to disturb the judgment and it must be affirmed, with costs.

Bookes and Boardman, JJ., concurred.

Judgment affirmed, with costs.


author: Per Curiam:

text:
    PETER MASTEN and WILLIAM M. HAYES, Appellants, v. WILLIAM B. WEBB, as Sheriff, etc., Respondent

      Action f<y>' conversion — when no previous demand is required.

    Where a sheriff has levied, under an execution, upon property belonging to a-person other than the judgment debtor, which property formerly belonged to, and had been sold under an execution against said judgment debtor, and is at the time of the levy in the possession of the judgment debtor, holding it as a servant of its owner, an action for its conversion lies by the owner against the sheriff without any previous demand made.

      Appeal from an order granting a new trial, made upon the minutes of the justice before whom the action was tried.
    The plaintiffs, composing the firm of Masten & Hayes, obtained' a judgment against one C. J. Townsend, January 12, 1877, for $6,621.89. On this judgment the sheriff of Ulster county sold, among other things, the stock of Townsend’s store and certain household furniture belonging to him. The plaintiffs claimed that after the sale, being desirous of disposing of the stock to the best advantage, they agreed with Townsend that he, Townsend, should take charge of and carry on the business for them; they were to give him fifty dollars per month and the use of the furniture they had bought at his house for his services. While Townsend was in plaintiffs’ employ under this arrangement, and on April 13, 1878, the deputy sheriff levied, under another execution against Townsend, on the household furniture which had theretofore been bought by Masten & Hayes under their execution, and which Townsend was using at his house, under the understanding made after the sale.
    The plaintiffs brought an action of replevin and recovered a verdict at the Ulster Circuit in November, 1878. Upon appeal a new trial was granted at General Term for error in the charge. (19 Hun, 172.) At January term, 1880, the plaintiffs again had a verdict, and on July 26, 1880, on a motion at Special Term, a new trial was granted on the minutes.

      J. Newton Fiero, for the appellants.

      F. L. Westbrook, for the respondent.
   Per Curiam:

The defendant moved for a new trial on two grounds:

Fi/rst. That as Townsend was in possession the plaintiff could not maintain the' action. On this ground the learned justice properly denied the motion. Townsend was not in legal possession, but was only the clerk or servant of the plaintiffs.

Second. That the action could not be maintained without a demand. On this ground the learned justice granted a new trial. In this we think he was in error. The property belonged to the plaintiffs and, as the learned justice had stated on the former branch of the motion, Townsend had no leviable interest, and was only the servant or clerk of the plaintiffs, and they were entitled to immediate possession. The defendant therefore, by his levy, took property belonging to the plaintiffs and then being in their legal possession.

Rawley v. Brown (18 Hun, 456) decided only the liability of the purchaser at a sheriff’s sale, not the liability of the sheriff.

In Williams v. Lowndes (1 Hall, 579) the court held that the goods on which the sheriff neglected to levy were in fact the property of the judgment debtor, and that the assignment by the judgment debtor was fraudulent and void. Any remarks outside of that question were obiter.

Shumway v. Rutter (8 Pick., 443) was the case where a stranger’s goods where mingled with those of the judgment debtor, so that the officer was unable to distinguish them, and it was his duty to levy on those of the debtor. In the present case, according to the finding of the jury, it was not his duty to levy on any of these goods.

We think that several cases in this State show that the sheriff who levies on goods, not the property of the judgment debtor, is a trespasser. (Allen v. Crary, 10 Wend., 349; Chapman v. Andrews, 3 id., 242; Alvord v. Haynes, 20 Sup. Ct. N. Y., 26.) And that a demand is not necessary. (Stillman v. Squire, 1 Denio, 327.)

The order granting a new trial should be reversed, with costs.

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

Order reversed, with costs.


author: Learned, P. J.: Bockes, J.

text:
    HENRY A. SEYMOUR and WALTER DORCHESTER, as Assignees, etc., Plaintiffs, v. NELSON DUNHAM, Defendant.
    Set-off— when a demand not due may he set-off against the assignee of an insolvent.

    On April 3,1880, the defendant deposited with the plaintiffs’ assignor, one Pratt, who was carrying on business as a private banker, $600, and received there for a certificate stating that the same would be paid to himself or his order on return of the certificate properly indorsed, with interest at the rate of five per cent per annum, if left four months. At that time Pratt held a note made by the defendant which had fallen due on January 38, 1880. On June 3, 1880, Pratt failed and made a general assignment to the plaintiffs. Prior to that time the defendant had made no demand for the money deposited.
    In an action by the assignees upon the note; held, that the defendant was entitled to set-off the amount deposited, against the anjount due upon the note. (Bocees, J., dissenting.) *
    Controversy submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.
    Orlow J. Pratt, on tbe 2d day of June, 1880, was and for five yearn nad been a private banker, doing business at Whitney’s Point, Broome County, N. Y. On that day he made an assignment for the benefit of creditors to the plaintiffs. At that date he held the note in question on which there was due August 5, 1880, $611.68. On the 2d day of April, 1880, defendant deposited with Pratt, at his banking house, $600, and took a certificate of deposit therefor. No part of the deposit has been paid, and on August 5, 1880, the certificate was presented to plaintiffs and claimed to be a set-off.
    The question submitted was whether the certificate of deposit would be allowed as a set-off against the note.

      David I. Maxfield, for the plaintiffs.

      W. D. Edmister, for the defendant.
   Learned, P. J.:

Pratt, a private banker, held a note of Dunham which was passed due. Afterwards Dunham made a deposit with Pratt of $600, and took a certificate therefor; the deposit being payable on the return of the certificate. Subsequently Pratt, being still the holder of Dunham’s passed due note, and having still Dunham’s money on deposit, made a general assignment to the plaintiffs, for the benefit of creditors, under the general assignment act. The question is whether Dunham’s deposit should be set-off against his note.

The argument for the plaintiffs is that such a deposit is not due until demand; that, as no demand had been made before the assignment, the deposit was not then due; while the note was due, and therefore that the deposit is not a set-off.

There is no doubt of the general principle that an auction cannot be maintained for moneys thus deposited until after demand. And the reason for this is that a right of action does not arise, until there has been a breach of contract. And in cases of such a deposit a breach of contract does not take place, until a refusal of payment.

But the plaintiffs, as I think, err in arguing that, because a demand is necessary before an action can be brought, therefore the indebtedness is not presently payable. The depositary may lawfully pay the debt at any time. He could not do this, if it were a debt payable in the future. The depositor may lawfully demand the debt at any time. He could not do this, if it were a debt payable in the future.

A debt payable in the future is one which neither the debtor has a right to pay, nor the creditor has a right to demand instantly. That is not the case with such a deposit. There is no future day, till which the respective rights of the parties are postponed. The creditor may demand payment at any time, and, therefore, the deposit is a debt payable in presentí.

Let us suppose that Pratt, instead of making an assignment, had sued D.unham on the passed due note. Can it be doubted that Dun-ham might have set-off in such an action the deposit, producing and surrendering the certificate? Could Pratt have objected in opposition to such a set-off that Dunham had not made a demand for the deposited money before the day when Pratt commenced his action ? The reply to such an objection would have been that a demand was only for the depository’s protection, when called upon to pay; but that no demand was needed when the deposit was to be used only as a set-off or defense.

In Jordan v. National S. and L. Bank (74 N. Y., 467) the notes on which the defendant claimed to apply the deposit were not payable at the death of the intestate. But- it is remarked in the opinion that, after the paper fell due, unless other rights have intervened, the bank may hold the balance of deposits and apply it on the paper. This confirms what is above shown, that deposits are debts payable in presenti, although a demand is necessary before action brought. Of course it is not meant that Pratt could have safely applied this deposit to the overdue note. Because he had given the certificate and, therefore, he could not know that other rights had not intervened by the assignment of the certificate. The remark is cited only t'o show that deposits are not debts payable in futuro, within the meaning of the matter now under consideration.

But, again, aside from the statute, equity requires that the deposit should be applied on the notes. (Lindsay v. Jackson, 2 Paige, 581.) The banker has become insolvent and made an assignment. This shows that no demand of the deposit is needed for his protection. He owed Dunham and justice requires that the mutual credits should be adjusted, one against the other. This principle is recognized. (Smith v. Felton, 43 N. Y., 419.) The plaintiffs were assignees of Rich, a private banker, and as such had come into possession of a note of the defendants which had been discounted by Rich. The defendants, at the time of Rich’s failure, had on deposit with him more than enough to meet the note. The note was not due at the time of the failure, and was made by one defendant to the order of the other, while the deposit was to the credit of defendants’ firm. It is true that, in that case, it appears that on the day the bank was closed the defendants applied to the teller and said that they wanted to draw out their deposits, and then that they wanted to apply them on the note. But the decision is placed on “the equitable rule requiring cross demands to be set-off against each other, if from the nature of the claim or the situation of the parties justice cannot otherwise be done.” The only reason why in that case this act of the defendants was important was, that their note was not yet payable; and therefore it was for them to elect to apply the deposit to a debt payable in the future. If, as in the present case, their note had been passed due, no request to apply the deposit to it would have been of any consequence. “ Technical objections which would be valid at law will not avail to defeat equitable set-off.”

Judgment should be rendered for the defendant, with costs.

Bockes, J.

(dissenting):

The defendant’s note was dated November 21, 1879, and was payable sixty days after date. It fell due, therefore, January twentieth — twenty-third next following its date. The assignment to the plaintiffs, which carried title to the note to them, was made June 2, 1880. On the second day of April last preceding, the defendant deposited with the plaintiffs’ assignor, who was doing business as a private banker under the name and style of O. J. Pratt, banker,- $600, and took therefor a certificate of deposit, as follows:

“Banking-house oe O. J. Pratt, )

“ $600. Whitney’s Point, N. Y., April 2, 1880. i

“ Nelson Dunham has deposited in said banking-house six hundred dollars, payable in bankable currency to himself or order on return of this certificate properly indorsed, with interest at the rate of 5 per cent per annum, if left four months.

“O, J. PRATT,

“ No. 2,138. Banker, D.

“You cannot draw any money on this certificate unless you bring it with you.”

The certificate of deposit was not presented for payment until August 5, 1880, when the defendant made presentation of it, demanded payment, and claimed to have it apply as a set-off against his aforesaid note. Payment was refused and the right of set-off was denied.

The claim or demand evidenced by the certificate of deposit was not due until the latter was presented for payment August 5, 1880. An action could not have been maintained upon it, nor would the statute of limitations commence to run against it until presentation and demand. The cases that hold this rule of law are numerous. (National Bank of Fort Ed. v. W. Co. N. B., 5 Hun, 605; Fort v. McCully, 59 Barb., 87; Payne v. Gardiner, 29 N. Y., 146; Howell v. Adams, 68 id., 314, 321; Sullivan v. Fosdick, 10 Hun, 173, 182; Pardee v. Fish, 60 N. Y., 265.) As regards the right of set-off here, the case of the Kingston Bank v. Gay (19 Barb., 459, 460) is directly in point. The doctrine of this case has never been questioned. There are also many cases holding the doctrine that in an action by an assignee, the defendant cannot set-off a demand against the assignor not due at the time of the assignment of the subject of the action. (Martin v. Kunzmuller, 37 N. Y., 396, and eases there cited; Murray v. Deyo, 10 Hun, 3-6; Beckwith v. Union B. of N. Y., 9 N. Y., 211.) In all the cases the rule is declared to be that an allowance to a pai’ty by way of set-off is always founded on an existing demand in presentí, and not one that may be claimed in futivro. It does not appear that any change in the law of set-off has been effected by the new Code of Procedure in a case like the present. It is suggested that the right of set-off in this case should be exercised as an equitable right, notwithstanding the law applicable to a case of mere legal right. But as was said by Judge Folger, in Jordan v. N. S. and L. Bank (74 N. Y., 473), “equity follows the statute and the law, unless there are peculiar circumstances presented.” And Judge Andrews said in Bathgate v. Haskin (59 N. Y., 533) that “ while, as a general principle, courts of equity follow the rules of law in enforcing set-offs, they exercise an original jurisdiction over the subject, and in cases of peculiar equity and under special circumstances will enforce a set-off in cases not within the letter of the law.” So in Lindsay v. Jackson (2 Paige, 581) it was held that equity would permit a set-off in a case not within the statute of set-off.

The case here before the court, however, comes within the letter of the law which declares in what cases set-offs may be allowed. (Code of Civil Pro., § 502, sub.,2.) It is there provided that “if the action is upon a negotiable promissory note or bill of exchange which has been assigned to the plaintiff after it became due, a demand existing against a person who assigned or transferred it after it became due, must be allowed as a counter-claim, to the amount of the plaintiff’s demand, if it might ha/oe been so allowed against the assignor, while the note or bill belonged to him.” It is urged that the mere insolvency of the assignor of the note raises a sufficient equity on which to ground the defendants’ claim of set-off in this case. That this has not been so regarded is evident from the cases cited. In Martin v. Kunzmuller (supra) the action was brought' by the assignees, who got their title to the claim on which they bi’ought the suit under an assignment for the benefit of creditors. The following cases were of the same character: Beckwith v. U. B. of N. Y. (9 N. Y., 211); Myers v. Davis (22 id., 489); Wells v. Stewart (3 Barb., 40); Hicks v. McGrorty (2 Duer, 295). In these cases the claim to set-off was made against the' assignees (the same as in the case in hand), and it was disallowed notwithstanding the insolvency of the assignor. . Those cases have not been overruled, nor has the doctrine there declared ever been questioned. The true rule is laid down by Judge Denio, in Myers v. Davis (22 N. Y., 493), as follows: “ Where the one claiming a set-off has a demand against the other, presently payable, and the other party is insolvent, the former may claim to have the set-off made, though the demand of his adversary against him has not become payable; but if before the demand of the party claiming the set-off becomes mature, the opposite claim has been assigned, * * * the right of set-off no longer exists.” This is the doctrine of Bradley v. Angel (3 N. Y., 475), and of Lindsay v. Jackson (2 Paige, 581). The case of Smith v. Felton (43 N. Y., 419) is not in conflict with those above cited. On page 422, Judge Allen says: Had then, the present defendants, after the failure of Rich, and- before the assignment by him, brought an action, for the equitable relief which they now claim, they would have been entitled to it within the principle of the case cited.” (Lindsay v. Jackson, supra.) In Smith v. Felton the right to set-off had become settled by the action of the defendants before the assignment. Prior to that event the defendants had demanded to have the set-off allowed. So here, if the defendant, prior to the assignment to the plaintiffs, had presented his certificate of depost for payment to their assignor, his right of set-off would have been undoubted, for in that case the counter-demand would have been due before the right of the plaintiffs’ attached. In that case the right of the defendant to a set-off would' have been, perfect under the statute. The cases in which the court will interfere to declare a set-off in equity are stated in Hatch v. The Mayor (11 W. D., 135), to be: Those, where one debt is contracted on the faith of another, or where there is an agreement between the parties that one debt shall be discounted from another, or where there is a rule of law on which to base its action, or where there is some intervening equity that renders the interposition of the court necessary for the protection of the demand.

I find no authority either in law or equity giving support to the defendant’s claim of set-off in this case. The plaintiffs are entitled to judgment on the case presented for decision.

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

' Judgment for defendant on submission that certificate of deposit is set-off against note, with costs.