author: Bockes, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN M. FRANCIS and HENRY O’R. TUCKER, Respondents, v. THE COMMON COUNCIL OF THE CITY OF TROY, Appellant.

      Common council of Troy — when compelled to designate official papers.

    By tlie charter of the city of Troy, the common council is required to “ designate; not to exceed four newspapers having the largest circulation in the city, m which the city advertising shall he done.” The common council designated four papers, hut did not include that of the relators, which, eoncededly was. one of the four having the largest circulation.

      Held, that a mandamus was properly granted, requiring the defendant to designate the relator’s paper as one of the four official papers.
    Appeal by the common council of the city of Troy from an order of the Special Term allowing a peremptory mandamus, and therein commanding the council to designate the relator’s newspaper, known as the Troy Daily Times, as an official paper for the city of Troy.
    On the 12th day of March, 1878, the common council of the city of Troy, at a reguiar meeting thereof, designated as official newspapers, for the then ensuing year, four newspapers published in said city and known as the Troy Daily Press, the Troy Morning Whig, the Trojan Observer, and the Troy Evening Standard. These newspapers and their proprietors severally accepted the. appointment, and ever since have done the city advertising. The designation by the common council of official papers for the year ending on the second Tuesday of March, 1879, was made under and pursuant to section 3 of chapter 813 of the Laws of 1873, the •city charter, which reads as follows : “ The common council shall designate not to exceed four newspapers, having the largest circulation in the city, in which the city advertising shall be done, only •on the order of the common council.”

      JR. A. Paiwienter, for the appellant.

      JEsek Gowen, for the respondents.
   Bockes, J.

The papers read at Special Term leave no reasonable doubt, that the action of the common council of the city of Troy, in omitting and refusing to designate the Troy Times” as one of the official papers in which the city advertising should be published, was in flagrant violation of official duty. The provision of the city charter is unmistakable in its language and meaning. It required the common ■council, acting through its members, to designate, not to exceed four newspapers having the largest circulation in the city, for the publication of the city advertising. That body was required to make the designation under this provision, in good faith, with a view to answer the very reasonable and obviously beneficial purpose suggested by it; it was left to the common council to fix the number in its discretion, not exceeding four, and this duty was performed in effect, the number being fixed at four. To this extent that body acted in accordance with the law. But the common council did not, as it should have done, designate the relator’s newspaper, the Troy Times, as one of the four. That the “ Times ” was one of the four newspapers having the largest circulation in the city stands, on the papers presented to the court in this case, as an indisputable fact. No attempt is made to controvert it. So it should be assumed that the common council knew the truth when it took action, based on a fact which the law required that body to learn and know. The violation of law and duty is therefore patent to the court. It then only remains for the court to see to it that the law is obeyed; and on an admitted or uncontroverted state of facts, in a case where public officers are charged with a duty, performance of which is omitted or willfully refused, proceeding by mandamus is the appropriate remedy.

It is no sufficient answer for the common council to say that it has already made a designation of four papers, when it appears that in so doing that body disobeyed the law in designating others than those it was commanded to designate. It should be able to answer that it had designated the number determined upon, not exceeding four in number, which number had the largest circulation in the city. It is suggested that the court has no power to' direct the common council, by mandamus, to designate any particular newspaper as an official paper. The city charter leaves it with that body to designate the number, and then prescribes of what papers they shall be composed, to wit: Those “ having the largest circulation in the city.” Those, and those only, must the common council select. In this regard their duty is ministerial. To say that that body may select in disregard of this provision, is to declare it nugatory in the discretion of the common council. The provision is of value and can neither be ignored or disobeyed; nor can the common council be heard to aver a want of information and refuse to examine or accept the truth from others when proffered. This course is but a factious disobedience of the law and a willful disregard of official duty.

The fact stated in the affidavit of Mr. Ross that Mr. Tucker, one of the relators, was a commissioner of deeds, hence disqualified from contracting for services with the city authorities, is not urged upon our consideration by the appellant.

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

Learned, P. J., and Boardman, J., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


source: Caselaw Access Project

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

license: Public Domain

text:
    CHRISTINA HATFIELD, Respondent, v. FREDERICK LASHER, Appellant.

      Facts to be available in mitigation of damages, must have been known at the time of uttering the slande>'om words

    In an action for slander or libel, the defendant may set forth in his answer, and prove on the trial, facts and circumstances tending to establish the truth of the defamatory words, by way of mitigation, with a view to disprove malice; but to be available to him in mitigation it must be made to appear that he knew or had information of these facts and circumstances when he uttered the words, and that he spoke them under a belief in their truth.
    Such facts might be so notorious as to create a fair presumption that they had come to the defendant’s knowledge, although he could not prove this by direct evidence. (Per Learned, P. J.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was one of slander, to recover for words spoken by the defendant imputing unchastity to the plaintiff.

      F. Jacobs, Jr., for the appellant.

      W. H. Johnson, for the respondent.
   Bockes, J.:

On a careful reading of all the testimony, it must be conceded, I think, that the verdict cannot be disturbed on the ground that it is, unsupported by, or against the evidence. Very plainly a case was made for the jury, and that too either aggravated or mitigated in character, accordingly as the jury should place reliance on the proof submitted by the respective parties. Assuredly the verdict cannot be set aside, save it be done arbitrarily in violation of sound rules of propriety, on the ground that the evidence is insufficient to sustain it; and after examination of the exceptions to the admission, and rejection of evidence, in those instances as to which the appellant complains of the rulings of the court, I am of the opinion that the record is free from error.

In the course of the charge the learned judge, after calling the attention of the jury to the evidence given by several witnesses showing acts of impropriety and indelicacy on the part of the plaintiff, tending to prove her a person of licentious inclination, if not actually unchaste, remarked as follows : But gentlemen, in taking into account the weight which that evidence shall have, if true, you must take into account that in order to amount to mitigating facts they must have been known to the defendant at the time he uttered the charges,” and again, “ mitigating facts in the eye of the law are such facts and circumstances as would induce á person of ordinary understanding to believe the charge which he made to be true; and in order to operate as mitigating facts, it must further appear that the facts which he spreads before you and asks you to take in mitigation were known to him at the time he made the charges; that he believed those facts and circumstances to be true, and relied upon them in making the charges.” To these remarks of the learned judge, by way of instruction to the jury, the defendant’s counsel excepted. It seems to have been conceded on the trial that the defence of justification was not relied on, at least no exception was taken to the charge of the judge to that effect. Thus we are to consider the question presented as one relating to the rule of law, applicable to a case of attempted mitigation merely as stated in the exception ; whether the facts and circumstances claimed as mitigating should only be accepted in mitigation where it appears that they were known to the defendant at the time of the speaking of the words, and that he believed them to be true and relied on such belief in their utterance. The question seems to be determined against the exception on authority. (Bush v. Prosser, 11 N. Y., 347; Bisbey v. Shaw, 12 id., 67; Dolevin v. Wilder, 7 Rob., 319; Gorton v. Keeler, 51 Barb., 475.)

The change in the rule of evidence effected by the Code in cases of attempted mitigation of damages, in actions for libel and slander, was first considered by the Court of Appeals in Bush v. Prosser, where it was settled that facts and circumstances tending to disprove malice might be given in evidence in mitigation of damages, although they should tend to establish the truth of the defamatory charge. In this case the facts and circumstances offered in mitigation were known to the defendant, and were alleged to have been uttered without malice towards the plaintiff, or design to do him injury in his good name or otherwise; and they were held to be admissible, because they tended to repel the legal presumption of malice. So Judge Allen, speaking for a majority of the court, said-: “ Probable cause for making the charge, especially when that cause has been induced by or necessarily results from the acts of the plaintiff, together with entire good faith of the defendant in making it does, in my judgment, show an absence of malice and * * * should be taken into account, not as a full defence, but in mitigation of damages.” Here good faith, which implies knowledge of, or information as to facts and circumstances giving just ground for belief in the truth of the charge, is made an important matter in determining the question of the admissibility of the evidence. So, too, Judge Selden, in the same case, says : ‘ It is clear, therefore, that the defendant has a right to prove the absence of malice in mitigation of the verdict; and to do this it is, of course, indispensable to prove that he believed, and had some reason to believe, the charge to be true when it was made,’ and he adds, ‘ there are but two conceivable modes of doing it; one by proving that he had received such information from other persons as induced him to believe the charge to be true ; the other, by showing the existence of facts and circumstances within his knowledge calculated to produce such a belief.’ ” It seems that the decision in Bush v. Prosser proceeded upon this line of reasoning.

In Bisbey v. Shaw, the matters proposed to be proved were such as were known to the defendant when he uttered the defamatory words ; and they were held admissible as in Bush v. Prosser to repel the presumption of malice ; because the defendant might have honestly thought and believed on his understanding of the facts, that the words spoken and complained of as defamatory, were true. The cases above cited were considered by Jones, J., in Dolevin v. Wilder, in an able opinion, and their binding authority was recognized. Here the learned judge examined the question at considerable length on principle (the question coming up on a motion to strike out certain allegations of the answer, put forward as mitigatory in an action for slander), and expressed his conclusion favorably to the motion, for the reason that the answer neither averred that the defendant knew of the fact alleged in mitigation at the time he made the charge, nor was it averred that by it he was induced to believe the charge true at the time he made it. The same conclusion was reached in Gorton v. Keeler, founded on principle and authority ; and it was there held that mitigatory facts and circumstances, to be available to the defendant, must be such as tended to produce a belief in the truth- of the defamatory words existing in the mind of the party when he uttered them. Reference may also be made to the recent decision in Willover v. Hill (5 W. Dig., 551), in the Court of Appeals, not yet reported in the regular series of the New York Reports. It seems that the mitigatory fact there offered and rejected was not set up in the answer, and the offer may well have been rejected for that reason. But as the case is reported in the Weekly Digest, force was given to the fact, that the alleged matter offered in mitigation had not been communicated to the defendant before she uttered the alleged slander. These several decisions fully vindicate the remarks of the learned judge in this case, made in the course of his charge to the jury, and to which exception was interposed.

It seems that in an action for slander or libel the defendant may set forth in his answer, and prove on the trial, facts and circumstances tending to establish the truth of the defamatory words, by way of mitigation, with a view to disprove malice ; but to be available to him in mitigation it must be made to appear that he knew or had information of these facts and circumstances when he uttered the words, and that he spoke them under the belief in their truth. There has been no change in the law effected by the new Code of Civil Procedure (sections 535, 536). It may not be out of place here to observe that evidence of general bad character may be given in evidence, in mitigation of damages, in actions for slander ; but not a general report that the plaintiff has been guilty of the offence imputed to him, unless accompanied with the further proof that such report had come to the knowledge of the defendant before the speaking of the words, and that he uttered them in good faith, without malice, relying upon their truth.

I am of' the opinion that the record discloses no error, and that the judgment should be affirmed with costs.

Boardman, J., concurred.

Learned, P. J.,

concurring.

Facts might be so notorious as to create a fair presumption that they had come to the defendant’s knowledge, although he could not prove this by direct evidence. If the defendant had claimed to present to the jury this point, and to urge them to consider whether the defendant, under the circumstances had not heard the circumstances which might mitigate the damages, he should have called the attention of the court specially to that point, and should have requested a charge thereupon.

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

Judgment affirmed, with costs.


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

text:
    WILLIAM WALSH, Appellant, v. WILLIAM CORNETT, Respondent.

      Amendments to pleadings — when a refusal to allow them is reviewable on appeal.

    In an action, in a justice’s court, by the payee of a promissory note against the maker, the latter, on the return day, set up a general denial, payment and set-off. On the adjourned day he asked to amend, his answer by alleging that the note was given on the sale of a horse by the payee to him with a warranty, and setting up a breach thereof, which request was denied. On his application the case was again adjoiu-ned. On the next hearing he renewed his motion, which was again denied, and judgment rendered against him.

      Held, that as there was nothing to show the proposed defence to be false, untrue, or put in for delay or vexation, it was error to deny his motion to amend, and that such error was reviewable on appeal.
    Appeal from a judgment of the County Court of Clinton county, reversing a judgment of a justice of the peace in favor of the plaintiff.
    The action was on a promissory note made by the defendant to the plaintiff. The answer interposed on the day of the return of the summons was : (1.)' General denial. (2.) Payment. (3.) Set-off for property sold and delivered, and for work, labor and services. On the adjourned day the defendant moved to be allowed to amend his answer by setting up the further defence, that the note was given on the purchase of a horse by the defendant from the plaintiff; that the horse was warranted by the plaintiff on the sale to be true in harness and but nine years old; whereas the horse was not true, and was nineteen years old and not worth to exceed ten dollars. The motion to amend was denied. Thereupon another adjournment was granted on the defendant’s application; on the second adjourned day the defendant again moved to be allowed to amend his answer as on the former day. The motion was again denied. The plaintiff had judgment before the justice, which was reversed on appeal to the County Court. The plaintiff thereupon appealed to this court.

      B. M. Beckwith, for the appellant.
    The motion to amend is addressed to the sound discretion of the court and is not a matter of right. {Hatfield v. Secar, 1 Hilt., 536; Jackson v. Smith, 6 Cow., 39; White v. Stevenson, 4 Den., 193; Mosher v. Lawrence, 4 id., 419; Tatter sail v. Hase, 1 Hilt., 56; 2 Wait’s Law and Practice, 76.)

      Wm. B. Jones, for the respondent.
    The judgment of the County Court reversing the judgment of the justice was right, and should be affirmed by this court. (§ 64, sub. 11, old Code; Wood v. Shultis, 4 Hun, 309; Leonard v. Foster, 7 id., 464; Bigelow v. Bunn, 36 How., 120; S. O., 53 Barb., 570; Brown v. Leigh, 49 N. Y., 78!)
   Bockes, J.:

. The amendment of the pleading asked for presented a meritorious defence, and the court was not at liberty to say that it could not bel'establishcd by proof on the trial. It was equally meritorious as a defence as would have been an answer of payment or set-off. The admission of the alleged defence was therefore in furtherance of justice; and the amendment should have been all owed. The authority for allowing amendments is unquestionable. This authority has always been recognized, and is expressly con-fen-ed on the court, when substantial justice will be promoted by the proposed amendment. (See Code, sec. 64, sub. 11.) It is urged that the allowance or disallowance of the amendment was in the discretion of the justice, hence cannot be made ground of error on appeal. Whatever may have been the rule prior to the Code, it is now settled that an amendment of a pleading is not only authorized, but must be granted by the court if it can be seen that substantial justice will be promoted thereby. This is decided in Wood v. Shultis (11 N. Y. S. C. [4 Hun], 309). It is there decided that the word ‘1 may ” should be construed to mean 1 ‘ shall in subdivision 11 of section 64 above cited. The learned judge there says: That where a power is conferred by the statute for the promotion of justice, suitors have a right to insist upon the exercise of it in a proper case, that in such case the exercise of the power is not wholly discretionary. In most cases where discretion is given, it must be exercised according to legal and just rules, and in a proper case an unjust exercise of it is error.

If it be made apparent that the application is not bona fide, or will work injustice in any way, it should be denied absolutely, or granted on such terms as would fully protect the rights of the objecting party. It is here urged that the application to amend was interposed merely for delay. This suggestion is not supported by the record. It does not appear- that the px-oposed amendment would, if granted, have caused delay. No delay was asked for in connection with the offer to amend. Besides an adjournment was granted following the motioxx to amend. But delay might have been refused on allowing the amendment if the circumstances indicated sinister action in that regard. The amendment, then, should have been allowed, and delay denied if unfairly claimed. The case comes directly within the decision in Wood v. Shultis (supra), with which decision we are entirely satisfied.

The judgment of the County Court must be affirmed, with costs.

Learned, P. J.:

I concur in the result of this opinion, but I cannot say that a justice is always obliged to permit a party to amend a pleading. It does not follow that substantial justice will be promoted by allowing a defendant, whenever he chooses, to set up any new matter which he may wish, without giving any respect to the question whether the new matter is alleged for delay or in good faith. If such were the rule there might be no end to the delay which could be caused by ingenious counsel.

Boardman, J.:

I concur in the result on the same ground as Judge Learned. There was nothing in this case to show the proposed defence false, untrue or put in for delay or vexation. On the slightest evidence of that character I should sustain the justice in rejecting the amendment. Otherwise parties should be allowed to make the pleadings according to facts.

Judgment affirmed, with costs.


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

text:
    GEORGE D. SEYMOUR and others, Appellants, v. RICHARD R. NEWTON and HENRY A. REED, Respondents, Impleaded with others.
    Constable— cannot levy upon property, ab’eady levied upon by the sheriff.

    Where a sheriff has made a valid levy under an execution and taken the property into his possession, a constable, to whom executions against the same defendant are subsequently issued by a justice of the peace, cannot make any levy on such property, nor can he sell the same subject to the levy made by the sheriff.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    On March 27,1876, the plaintiffs recovered two judgments against one E. A. Watrous, in a justice’s court, amounting to $307.54, and at the same date executions thereon were issued to the defendant Newton, a constable. On the same day the defendant attempted to levy upon certain property of Watrous, indorsing on the executions the time of levy and a description of the property. The executions were renewed several times and were returned unsatisfied November 21, 1876. ,
    The defendant Newton justifies his return upon the fact that on March 17, 1876, the sheriff of St. Lawrence county, by virtue of an execution in favor of John D. Judson, for $2,937.44, levied upon the property of said Watrous, and on the 27th March, 1876, the sheriff had received other executions in favor of Judson, amounting in all to $5,157; that the property was sold under these executions and the moneys realized was insufficient to pay the executions prior to plaintiffs. The property was inventoried by the sheriff and the goods in the.store valued at $14,704.91, and other property at $549.50. The sheriff charges the fund $355.15, paid for taking inventory ; $500 rent, and $30 insurance, all of which charges against the fund the court was requested to disallow. On the 30th March, 1876, the sheriff was enjoined by an order in bankruptcy from selling or disposing of any of the property.' The property was sold in a lump August 26, 1876, and was bought by Mr. Ashley, who bid forty-one per cent of the inventory value. This action was brought against Newton and his bondsmen. The justice held on the trial that the property having been levied upon by the sheriff, the defendant could make no valid legal levy thereon, because he could not take the property from the custody of the sheriff. Judgment was rendered in favor of the defendants for costs.

      William Peters, for the appellants.
    The levy by the constable, on March 27, 1876, was a good and valid levy, although the goods were then held by the sheriff under other executions, there apparently being sufficient property to satisfy all the executions. {Benson v. Berry, 55 Barb., 621.) The levy of the sheriff was excessive, for which the constable had a remedy against him, but not the plaintiffs. {Howlands. Willetts, 9 N. Y., 173-174; Barker v. Matthews, 1 Den., 335.) The constable should have sold the property subject to the prior levies. {Betts v. Hoyt, 19 Barb., 412.)

      Magone t(? Holbrook, for the respondents.
   Bockes, J.:

The sheriff had made a valid and effectual levy upon all the property of Watrous, under execution against the latter, and had tbe property in Ms actual possession under such levy. The defendant Newton, a constable with two executions in Ms hands, issued by a justice of the peace against the property of Watrous, went into the building where the property was kept by the sheriff, and formally entered a levy thereon by indorsement on the execution. Afterwards the property was sold by the sheriff under the execution in his hands, and Newton the constable being unable, either to obtain the property or any of the avails from the sheriff, returned Ms executions unsatisfied. This action is brought by the plaintiff in those executions against Newton, the constable and Ms bondsman, to recover the amount of those executions. The learned judge held that no valid levy could be made by the constable upon the property while in the hands of the sheriff under levy by the latter. This ruling is sustained by authority. (Hartwell v. Bissell, 17 John., 128; Dubois v. Harcourt, 20 Wend., 41; Gilbert v. Moody, 17 id., 358; Acker v. White, 25 id., 614; Hagan v. Lucas, 10 Peters [U. S. R.], 400.) In the last case cited, Justice McLean, speaking for the court, remarks as follows: “ In Holt, 643, and 1 Show., 174, it was resolved by Holt, Chief Justice, that goods bemg once seized, and in custody of the law, they could not be seized again by the same or any other sheriff; nor can the sheriff take goods which have been destraiued, pawned, or gaged for debt (4 Bac. Ab., 389), nor goods before seized on execution, unless the first execution was fraudulent, or the goods were not legally seized under it.” In this case, as in the case at bar, the authority for the seizure of the property came from different jurisdictions. After an execution has been levied by a sheriff, the receipt of a second execution by that officer against the same defendant operates as a constructive levy upon the property previously levied on by him. (Birdseye v. Ray, 4 Hill, 158, 160.) In such case the property is in the actual custody of the officer, hence the lien by levy attaches without further action. To constitute a valid levy, the officer must bring the property under his dominion and control. This he cannot do while it is in the hands of another officer under levy, for he could not lawfully obtain any domimon over it while thus in the custody of the law. Property m pledge could not at common law be levied on under execution against the pledgor, and it requires a statute to give such right. (2 R. S., 366, § 20; Bakewell v. Ellsworth, 6 Hill, 484; Hull v. Carnley, 11 N. Y., 507, 508; Harris v. Murray, 28 id., 576; Stief v. Hart, 1 id., 20.) In the case at bar the constable, by levy, could not obtain any dominion or control over the property in the sheriff’s hands under valid levy by him. It is suggested that the constable might have sold the property subject to the levy by the sheriff; not so, however, unless he might control its possession. Even the advertising it for sale would have been equivalent to divesting the sheriff of his possession (Hull v. Carnley, 11 N. Y., 508); and this he could not lawfully do. He could not take the property from the sheriff; nor as against that officer could he have any dominion over it, and, of course, could not sell it under his execution. It follows, therefore, that the defendant Newton, the constable, had no valid levy upon the property of 'Watrous in the sheriff’s hands, which he could enforce, and it is not pretended that he omitted to levy upon any from which satisfaction of the executions in his hands, or of any part of them, could have been made. But it further appears that the sheriff exhausted the property in making satisfaction of the executions which admittedly had priority over them held by the constable. Without elaborating this point, it is sufficient to say that it is not made to appear that the sheriff realized from the property more than was required to pay the prior executions with the necessary and proper disbursements in taking needful care of it, with the fees and poundage to which he was entitled.

The judgment must be affirmed, with costs.

Learned, P. J.:

I concur in the result of this decision; but under the decision in Crofut v. Brandt (46 How. Pr., 481); affirmed in 47 id., 263, and of White v. Madison (26 N. Y., 127), I don’t think that the sheriff exhausted the property in making satisfaction of the execution in his hands. He appears to have retained money for charges Avhich he Avas not authorized by law to make.

Boardman, J., concurred.

Judgment affirmed, with costs.


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

text:
    GEORGE PERRY, Respondent, v. PHILIP LANSING, RANSOM H. GARRETT and EGBERT N. BROWN, Appellants.

      Negligence — rule as to the effect of the contributory negligence of a co-s&i'Dant — not applicable to an action against a third person, not the employ err.

    The plaintiff, a pilot of a tug-boat, was injured in consequence of a collision with a boat owned by the defendant, and by reason of the negligence of the latter. In an action brought by him to recover damages therefor, it was claimed the other employees of the tug were guilty of negligence contributing to the collision.

      He Id, that although the contributory negligence of the other emxoloyees of the tug would bar an action by the owner thereof for injuries to it, yet it would not prevent a recovei'y by the plaintiff if he himself were free from all personal negligence. (Bocees, J., dissenting.)
    The rule preventing one servant from suing the master for an injury, occasioned by the negligence of a co-servant, does not prevent a recovery against a third person for the damages occasioned by his negligence, though the negligence of a co-servant may have contributed thereto.
    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 on the ground of the insufficiency of the evidence, made on the minutes of the court.
    This action was brought to recover for injury to the respondent, caused by the steamboat of the appellants running into a steam tugboat, of which the respondent was pilot, through the negligence of the persons in charge of the appellants’ boat. The respondent was the pilot of the tugboat William Bliss. On the 11th day of August, 1873, the boat Bliss towed the barge Harvest Homo, with an excursion party on board, from the city of Hudson to the city of Troy. From a short distance below the city of Albany the steamboat Stone helped tow the barge to Troy, being engaged for that .purpose by the excursionists on the barge. The Bliss and the barge left Troy on the return down the river about six o’clock in the afternoon. Upon leaving Troy the Bliss hauled the barge out into the river, then the steamer Stone took the barge in tow by a hawser fastened to the barge. When near Albany the steamboat J. P. White, belonging to the appellants, .and the Gardiner, a small tugboat, were coming up the river. Through the negligence of the White it collided with the Bliss and injured the plaintiff. At the time of the collision Alonzo .Sickles was at the wheel of the Bliss. The defendants claimed that the Stone did not stop at the time of the occurrence, and insisted that this was negligence on the part of the Stone, which •contributed to the injury, and that by reason thereof plaintiff cannot recover. The court held that the plaintiff was not responsible for any negligence of those in charge of the Stone in not stopping, except so far as the same was caused by the want of » prudence, care or proper skill of the plaintiff as pilot of the Bliss. And also that any negligence on the part of the crew of the Bliss, •other than the personal negligence of the plaintiff or of Sickles, whom he had put at the helm, would not defeat the plaintiff's action.

      IÍ. F. Andrews, for the appellants.

      FTewkirJc & Ghcice, for the respondent.
   Boardman, J,:

An examination of the evidence satisfies me that the question of the negligence of the defendants was properly submitted to the jury and its verdict must be conclusive. We cannot say the verdict was not in accordance with the truth, and hence on this ground we cannot reverse the judgment below under the decision of Finch v. Parker (49 N. Y., 8).

The more important and difficult objection relates to the charge of the learned judge on the subject of concurrent negligence of the plaintiff and those on board of the tug Bliss. It was held that plaintiff was not responsible for any negligence on the part of the tow boat Stone. This exception is not urged upon the argument, nor •do I see that it could be successfully, since I find no proof of any negligence on the part of the officers of the Stone, unless it was due to, and arose from, the acts and negligence of those on board ■of the Bliss.

The learned judge then holds “ that the negligence and carelessness of the Stone will not prevent the plaintiff from recovering, except so far as the negligence of the Stone was occasioned by the' want of pirudence and care or proper skill, on the part of the plaintiff, as the pilot of the boat Bliss.” And again “the question is, whether there was any omission on the part of this plaintiff as the-pilot of the boat, or of Sickles, who it seems to me was in the same position of the plaintiff, having been placed there by his direction.” The exceptions to these portions arc especially urged upon our consideration.

It must be remembered that the Stone had been hired by the excursionists on the barge Harvest Home. The Bliss was not aiding in the towing. She was lashed to the Harvest Home, and. both were being towed by the Stone. Hence I think it follows, that the officers of the Stone were not the servants of the plaintiff or of the owners of the Bliss, and the latter were not responsible for the negligence of the former. (Silliman v. Lewis, 49 N. Y., 384.) The jury by its verdict has determined that neither the plaintiff nor Sickles were guilty of personal negligence.

If the other persons in the employ of the Bliss were guilty of negligence contributing to the injury, would such fact prevent a recovery by plaintiff ? In other words, were the employees on the Bliss, so far identified with, and under the control of, plaintiff as to make him liable for their negligence ? The rule applicable as between servant and master is well known. The servant cannot recover of the master for injuries occasioned by a co-servant in the same general employment. That risk he assumes when he enters iuto' the employment. But has this principle any application to an* action for injuries against a third person not the master ? Though the servant may not maintain an action against his master for an injury arising from the negligence of a fellow servant, does it follow that he may not have an action against a third person for au injury occasioned by such third person’s negligence, because some co-servant has been guilty of negligence contributing to the injury ? No such rule can be found so far as I have been able to discover. Between the master and servant there is an implied, contract that the servant shall assume the risks of the employment. For this reason the liability does not exist. But there is-no such relation between the servant and a stranger. As between them, the servant has not waived his remedy, if a co-servant has. been guilty of contributory negligence. The proximate cause of the injury is the act of the stranger. Why should he be shielded from damages because some person, no way related to him, has failed to exercise the requisite care to prevent plaintiff's injury ? The owner of the tug might not be able to recover for its injury, because the negligence of his servants contributed thereto and their negligence is imputed to him. But the plaintiff does not stand in the same relation to the party doing the injury to him personally as well as to the tug. The employees of the Bliss are not co-servants of, or as to the defendants. They are strangers to defendants, and each is entitled to protection against the negligent acts of defendants unless he personally has done, or failed to do, some act which has aided in producing the injury. (Smith v. N. Y. and H. R. R. Co., 19 N. Y., 127, 132; Young v. N. Y. C. R. R. Co., 30 Barb., 229.)

The other cases cited do not seem to me to solve the difficulty. In the Arctic Ins. Co. v. Austin (69 N. Y., 470), it is held that the owner of a cargo in a canal boat, being transported for hire by a carrier, cannot recover against a third party for loss occasioned by his act, where the carrier is guilty, of contributory negligence. The reasons given for this decision plainly distinguish it from cases of injury to innocent third persons, as to whom no ■opinion is expressed. In Robinson v. N. Y. C. and H. R. R. R. Co. (66 N. Y., 11), a female sustains an action against the defendant for an injury caused by its negligence, though the person with whom she rides by invitation was guilty of contributory negligence. The negligence of the driver is not imputed to the passenger. To the same effect are Chapman v. New Haven R. R. Co. (19 N. Y., 341); Webster v. Hudson River R. R. Co. (38 id., 260); Colegrove v. New Haven and N. Y. & H. R. R. Co.’s (20 id., 492); Metcalf v. Baker (11 Abb. [N. S.], 431); affirmed in Com. of Ap., Apl. 1874, 57 N. Y., 662). An intimation to the contrary, in Brown v. N. Y. C. R. R. Co. (32 id., 602) is obiter and explained in Robinson v. N. Y. C. and H. R. R. R. Co. (supra). The case of Armstrong v. Lancashire, etc., R. R. Co. (12 Eng. Rep. [Moak’s], 508; Law, Rep., 10 Ex., 47) is decided on the authority of Thorogood v. Bryan (8 C. B., 115). But this latter ■case is questioned in its important aspect in Webster v. Hudson R. R. R. Co., and in Chapman v. N. H., etc. (supra); Sh. & Red. on Neg., § 46, n 5. So far as Armstrong’s Case conflicts with our own authorities above cited we cannot follow it. After all it was in efiect decided that the defendant in that case was not guilty of negligence upon which the action could be sustained.

Without further reference to the authorities, I am of the opinion the judge’s rulings and charge were in strict accordance with the decisions of this State, and that no error was committed in those respects. It was proper to prove that plaintiff was a man of family. It is proper for-the jury to know, in a general -way, the situation and condition in life of a party or a witness. The reception of such evidence is uniform and constant, within the experience of every lawyer accustomed to try causes.

The questions put to Brown and Gardner were improper for two reasons: First, because, as we have seen, the conduct and management of the Stone could not impair the plaintiff’s right of recovery in the absence of negligence on his part; and secondly, because the question to Brown called for his opinion as to the proper verdict to be rendered by the jury, and neither question involved any scientific or technical inquiry requiring the opinions of experts or others. (Carpenter v. East. Tr. Co., 71 N. Y., 574, 579.)

The other exceptions to the rulings upon admission or rejection of evidence are not of a character requiring special notice. I am of the opinion that no errors were committed in the ruling upon the trial or in connection with the charge, for whiclTa new trial should be granted.

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

Learned, P. J., concurs; Bocees, J., dissents.

Learned, P. J.:

When a person is injured by the negligence of another, he ought to recover the damages he has sustained. To this rule there is the exception that, if the injured party has by his own negligence helped to cause the injury, then he shall not recover. The reason for this exception appears to be plain, and ought to be distinctly understood. It is that a person should not be compensated for injury which he has himself caused. If his own negligence, therefore, was one of the causes (in the legal sense of that word), which produced the injury, he is himself to blame. If he had not been negligent, he would not have been injured. This, I understand to be the reason for the doctrine (so called) of contributory negligence. That doctrine does not mean that, when the negligence of each of two persons contributes' to injure a third person, he has no right of action against either. It means that one shall not be compensated for injury to which his own negligence contributed.

On the trial of this case the learned justice charged that negligence on the part of the crew of the Bliss, other than the personal negligence of the plaintiff, or of Sickles, whom he had put at the helm, would' not defeat the plaintiff's action. The plaintiff was pilot of the Bliss. Personal negligence on his part would of course include any negligence in giving .proper orders to the crew, or to such of the crew as were under his control. It would include every failure of duty of the plaintiff. It would not make him responsible for what he could not prevent, or for what he did not cause.

It seems to me that this is sound. I cannot see why the negligence of some one of the crew of the Bliss (which, by the supposition, the plaintiff could not prevent) should prevent him from recovering against the defendants for the injury occasioned by their negligence.

It may be true that the plaintiff could not recover against the owners of the Bliss for the injury caused, in part, by one of his co-employees. That is, because the maxim, respondeat superior, as a general rule, does not apply between co-employees. But if an employee, by his negligence, injures a co-employee, the one who docs the injury must himself be liable; although the common master of both may not be liable. If the plaintiff's injury had been occasioned, exclusively, by the negligence of some one of the crew of the Bliss, I do not see why that one of the crew would not be liable. It is only as regards the liability of the common master that an employee is said to assume the risks of the business. The actual negligence of a co-employee must make such co-employee himself liable for the injury which he has occasioned.

If the injury to the plaintiff came from the joint negligence of the defendants and of one of the plaintiff’s co-employees, without any negligence on his own part, there is no reason why the defendants should not be liable for their wrongful act. See on this point Massoth v. D. and H. C. Co. (64 N. Y., 524); Dyer v. Erie R. R. (5 W. D., 430); Robinson v. N. Y C. and H. R. R. Co. (66 N. Y., 11).

The appellant insists that the rule, above referred to, that an employee cannot recover against his employer for injury by a co-employee covers this case, and urges that the policy of the rule is to enforce greater caution on the part of employees. But, as I think, that rule has no application directly, or by way of argument.

It must be noticed that it has never been hold .that an employer is not liable for his own negligence. The question is, when shall he be made liable for the negligence of others •— that is, for the negligence for those under him ? Generally, as to outsiders, he is liable for the negligence of his employees. But, as to employees, he is generally not liable for the acts of their co-employees. This is a limitation of his liability for the acts of others — a limitation of the rule respondeat superior. That rule never meant that the inferior was not himself liable for his own acts of wrong-doing..

If the plaintiff was injured by the negligence of the defendants, and of one of the crew of the Bliss, then we have a case where two or more persons have contributed to cause the injury to the plaintiff, himself free from blame. His right of action against one of these persons is not taken away by the fact that he cannot sue the master of the other — that master being himself entirely without fault. For these reasons I agree with the conclusion of the foregoing opinion of my brother Boardman.

Bockes, J.,

dissenting.

There was no error in the refusal of the court to nonsuit the plaintiff; nor in the denial of the motion for a new trial made on the minutes of the court on the ground of insufficiency of evidence. There was proof sufficient, as I think, to require a submission of the case to the jury. But there is a question of law in the case, arising upon the rulings of the court, of grave import. The plaintiff was the pilot of the steamtug “ William Bliss” at the time of .the collision between that vessel and tbe steamtug “ J. P. White,” which collision caused the injury to the plaintiff for which the action is brought. During the trial a question arose as to whether there was any negligence which contributed to the injury on the part of those having the Bliss in charge. The court ruled in effect that negligence on the part of the crew of the Bliss, other than the personal negligence of the plaintiff himself, or of Sickles whom he had put in charge of the helm, would not defeat the plaintiff 's action ; so in furtherance of this ruling the jury were instructed, in effect, that a different rule of law Would control the case from what would prevail, if the action were brought by the owners of the Bliss to recover for injuries to the vessel growing o.ut of the collison, and the learned judge added, in substance, that in such case the owners would probably be responsible for any negligence on the part of those having the Bliss in charge. The ruling that negligence on the part of those in charge of the Bliss, other than the plaintiff and Sickles, would not defeat the plaintiff's action, although contributing to the injury, is challenged as erroneous. Had the plaintiff been a mere passenger on the Bliss the ruling would be vindicated by numerous decisions. (Chapman v. The New Haven R. R. Co., 19 N. Y., 341; Colgrove v. The N. Y. & N. H. and N. H. & Hartf. R. R. Co., 20 id., 492; Webster v. The Hudson River R. R. Co., 38 id., 260; Barrett v. The Third Ave. R. R. Co., 45 id., 628.) There are other cases of similar import with those cited. The decision in Mooney v. The Hudson River R. R. Co. (28 N. Y. Superior C. R. [5 Rob.], 548) is doubtless unsound. There have been cases holding that passengers on a stage coach could not recover for an injury resulting from the negligence of a third party, in case the negligence of the driver of the coach contributed to the injury. It was so ruled at the circuit in Brown v. The N. Y. C. R. R. Co. (32 N. Y., 597, 601); but the point was taken from the case by the finding of the jury that there was no negligence imputable to either the plaintiff or the driver of the coach. The question was somewhat discussed by Davis, J., in this case, and he remarked that ho could see no difference whatever between the case of a passenger by a stage coach and a passenger on a train of cars. It was then added, however, quite significantly, that a majority of the judges were of the opinion that the true rule in the case of a p assenger by stage coach-was laid down at the circuit in that case. This opinion, I think, has not yet been adopted as settled law. In speaking of this case, Church, C. J., remarked in Robinson v. N. Y. C. and H. R. R. R. Co. (66 N. Y., 11), that the opinion said to have been expressed in Brown’s Case (supra) had not the weight of authority. The principal recognized and adopted in the Robinson Case seems in hostility to such opinion. The decision in Beck v. East River Ferry Co. (29 N. Y. Superior C. R. [6 Rob.], 82) was vindicated on the ground that the plaintiff, with others in the boat, were engaged in a joint enterprise, and therefore he was responsible for the negligence of his associates. In Massoth v. The D. and H. C. Co. (64 N. Y., 524) the plaintiff’s intestate was riding on a load of hay with his employer Smith at the time of the injury. In referring to the point under consideration, Allen, J., remarked (page 529): “Were it necessary to pass upon the question, I should hesitate, as did the learned judge upon the trial, in holding that the consequences of Smith’s negligence could be visited upon the plaintiff and defeat the action.” The case of Dyer v. The Erie R. R. Co. (5 W. D., 430), recently decided in the Court of Appeals, seems precisely that of the Robinson Case (supra). The syllabus in Dyer’s Case is this : That where the plaintiff was injured while riding in a wagon by permission of the owner, who was driving, negligence of such owner is no bar to an action for the injury. (See, also, Metcalf v. Baker, 34 N. Y. Superior C. R. [2 Jones & Spencer], 10, 12;. Knapp v. Dagg, 18 How., 165; per contra Payne v. The C. R. I. and P. H. R. Co., 39 Iowa, 523.) In this connection, mention should be made of the case of Armstrong v. The Lancashire and Yorkshire Railway Co. (10 Eq., 47; also reported in 12 Eng. Eq. Rep. [Moak’s notes, 508]). In this case the plaintiff was a traveling inspector of the carriage and wagon department of the London and Northwestern Railway Company, and was traveling on a pass from this company in one of its cars, when a collision occurred between the train in which he was riding and some loaded wagons in motion on the defendant’s road. The jury found that the accident was caused by the joint negligence of the two companies. It was held that the plaintiff was so far identified with the company carrying him that he could not recover. This decision was based on the case of Thorogood v. Bryan (8 Com. Bench R., 115), which case has been greatly criticised, and which it is quite possible may be ultimately overruled in our own courts; in which case it will carry with it Armstrong’s Case. Without special examination of these cases here, or attempting to collate them with the decisions in our own State, it will suffice to say that if sound they are favorable to the defendant in this case, if not decisive of the question under examination. But it seems that the question before us may be determined without the benefit of those cases.

On principle and on intimations given in the recent decisions in this State, the conclusion of Mr. Justice Davis in the Brown Case (supra) seems to be a sound exposition of the law applicable to the point under immediate examination, to wit, that there is no difference whatever between the case of a passenger by stage-coach and a passenger on a train of cars or on a boat. They stand alike in law as to contributory negligence in those having charge of the means of conveyance. As is well said by Judge Davis, whatever difference there may be is one of fact merely, growing out of a difference in motive power, and the corresponding necessity for more stringent rules and greater vigilance in one case than in the other. In neither has the passenger any control or management or even advisory power over the management of the vehicle in which he is being conveyed. In Beck’s Case (supra) the ground of decision against the plaintiff’s right of recovery was this, that, although himself free from fault, yet he participated with others in the management of the boat whose negligence contributed to the injury complained of. His action was defeated because he was not a mere passenger. He was assisting in the management of the boat. So in the case in hand, the plaintiff was not a mere passenger on the Bliss, he was her pilot, and with others had the vessel in charge. Those cases which give an action to passengers, where those in charge of the means of conveyance, by their negligence contribute to the injury, are put upon the ground that the passenger has nothing to do with the management of the conveyance ; and it is the logical inference from them all that if the party claiming to recover has the management of the vehicle or means of conveyance conjointly with others, by whose negligence he is injured, his right of action for the injury is barred against third parties whose negligence may also have contributed thereto. An agent or servant cannot have an action against his principal for an injury sustained by him, caused by the negligence of a. fellow-servant of the same principal engaged in the same employment, save where such fellow-servant was negligently appointed or retained in place, or holds the position of his principal. (Malone v. Hathaway, 64 N. Y., 5, 8; Hofnagle v. N. Y. C. and H. R. R. R. Co., 55 N. Y., 608; Fort v. Whipple, 18 N. Y. S. C. R. [11 Hun], 586.) In the .case at hand the plaintiff could have no action against the owners of the Bliss for the injury of which he complains. Nor could the owners of the Bliss have an actiou for negligence against the owners of the White, in case those in charge of the Bliss were guilty of negligence, contributing to the injury. It seems to follow that the plaintiff’s action was barred, in case the injury complained of was caused in any degree by the negligence of those in charge of the Bliss. The ruling, therefore, that negligence on the part of those in charge of the Bliss, other than the plaintiff, would not defeat the plaintiff’s action, although contributing to the injury was erroneous. No note is here taken of the ruling as to the negligence of those having charge of the steamtug “ Stone ; ” nor as to some rulings on questions of evidence, to which exceptions were entered. The conclusion above reached renders an examination of those rulings unnecessary.

Judgment should be reversed, new trial granted, costs to abide the event.

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

Judgment and order affirmed, with costs.


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

text:
    JOSEPH C. ALGER, Respondent, v. BEMAN S. CONGER, Administrator, and ELLEN A. ALGER, Administratrix, etc., of SILAS J. ALGER, Deceased, Appellants.

      Suit by trustees — when, an execution against them, personally is improper.

      Alger and Stanton, describing themselves as trustees, presented a written claim to the defendants, as administrators, stating that the claim was held by them as trustees. The claim was, by consent, referred; the answer 'of the defendants was entitled, in the name of Alger and _ Stanton, trustees, against Conger and Alger, administrators. The referee in his report stated that plaintiffs were duly appointed trustees, found against them and directed that the complaint be dismissed, with costs. Upon motion, the report was confirmed and judgment was directed “against the plaintiff Joseph E. Alger, as survivor,” for costs. Judgment was accordingly entered against him in the same form, and an execution was issued against him personally. In the title of the report of the referee, the motion for judgment and the judgment itself, the word “trustees” was omitted.
    A motion was made to set aside the execution issued against plaintiff individually, on the ground that it was unauthorized; held, that the motion was proper and should be granted. (Bockes, J., dissenting.)
    Appeal from an order made at Special Term, setting aside an execution issued upon a judgment entered herein;

      Waters & Knox, for the appellants.

      Buell & Benedict, for the respondent.
   Learned, P. J.:

Joseph C. Alger and William C. Stanton, describing themselves as trustees, etc., presented a written claim to the defendants, administrator and administratrix, stating the claim to be held by them in their right as trustees. The parties agreed to refer under the statute, and a reference was had. The answer of the defendants is entitled in the name of said Alger and Stanton, trustees, against said Conger and Algers, administrators, etc. The report of the referee states that the plaintiffs were duly appointed trustees, 'and finds against them. On the usual notice the report was confirmed with costs,, and the defendants were granted judgment against the plaintiff, Joseph C. Alger, as survivor. Thereupon a judgment was entered. In the title of the referee’s report, and hi all the subsequent proceedings, the names of the plaintiffs are given without the addition of the word, trustees. There was no order that the plaintiff should pay costs personally. Before the entering of the judgment, the plaintiff’s attorneys notified the defendants that they objected to the entry of any personal judgment or execution against the plaintiff. But an execution was issued against the plaintiff personally. This the Special Term set aside on motion; giving leave, however, to the defendants to apply for an order charging the plaintiff, personally, or for an order under section 317 of the Old Code.

I think the order of the Special Term was right. We must take the whole judgment-roll together. And then it clearly appears that this was an action prosecuted by the trustee of an express trust. (Old Code, 317.) The claim is stated to be held by the plaintiffs, as trustees. That claim is attached to the agreement to refer and is a part thereof. The referee’s report finds that the plaintiffs were appointed trustees, and that the trustees received and hold the money in question.

Now, in such a case the Code says that costs shall be recovered as in an action by or against a person prosecuting or defending in his own right. But these costs are chargeable only upon, and to be collected of, the estate represented ; unless the court shall, for mismanagement or bad faith, direct them to be paid by the party personally.

And, therefore, although the defendants neglected to add the word “trustees” to the title of their judgment, that neglect did not make the plaintiff personally liable. The judgment could be only against the estate or fund, whatever might be the title, because it was the estate or fund which presented the claim. To hold the plaintiff personally the court must, on due proof, find mismanagement or bad faith. Nothing of this kind was done. Very possibly it was correct practice to enter a judgment in form against the plaintiff; though it would have been more accurate to add the word “trustees.” But whether that word were added or not, the fact appears on the roll that the plaintiffs were acting as trustees of an express trust; and the costs are recovered against the estate or fund.

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

Bockes, J.,

dissenting.

This is an appeal from an order of the Special Term, setting aside the execution issued upon the judgment in favor of the defendants in the action.

The motion was granted by the Special Term on the ground that the judgment entered herein did not authorize the issuing of an execution against Alger personally. The question whether or not the judgment gives support to the execution against Alger must be determined from an inspection of the judgment as entered. The record itself must control. If the entry of judgment be improper or irregular in form, it should have been corrected by the party injured by the irregularity. Thus, then, we must make inspection of the judgment as entered, and as it now stands. This is the authority for the execution, and must control so long as it remains the record of the adjudication of the court in the case.

Then is the judgment as it is entered against Alger (survivor) personally for the costs of suit ? Does the judgment so declare ?. First. The title of the cause heading the entry of judgment is “Joseph C. Alger and William Stanton” as plaintiffs, against “Beman S. Conger, administrator,” etc., as defendants. The plaintiffs are not here represented on the record as trustees, but occupy the position of plaintiffs in their own right. Second. The entry of judgment then recites proceedings taken by the plaintiffs personally; the decease of Stanton leaving Alger survivor; the reference to Judge Shankland to hear and determine the case ; his decision of it in favor of the defendants, with costs and disbursements; then a motion to the court for the confirmation of the referee’s report and for judgment thereon ; the granting of the motion on argument before the Special Term, and the ordering of judgment in favor of the defendants “ and against, the plaintiff Joseph C. Alger, as survivor;” the taxation of the costs against him pursuant to this order; and then follows the judgment — the adjudication — of the court, as follows : “That the defendants recover of the plaintiff Joseph G. Alger, as survivor, the sum of $106.85, costs and disbursements, and that the defendants have execution therefor.” This is manifestly a judgment against Joseph C. Algor personally. It is an authority for a docket of judgment against him, not in a representative character, but personally j and no other execution than one against his property could be property issued thereon. Stopping here and resting upon the final adjudication, as entered in the record, the execution issued upon it against the property of Alger was well authorized.

But let us travel back on the record, and we find the order of the Special Term entitled like the entry of judgment. It is entitled “Joseph C. Alger and William Stanton” as plaintiffs, not in a representative capacity, but in their own right. The order, as it appears, was made after argument of counsel. The referee’s report was confirmed and judgment was directed as follows : “That phe defendants have judgment against the plaintiff Joseph G. Alger, as survivor, for their costs and disbursements to be taxed,” etc. Here was the express adjudication of the court, after argument of counsel, awarding judgment against Joseph C. Alger, personalty. This order stands in full force, not vacated, modified or reversed ; and it authorized the entry of judgment as in this case it was entered and docketed. The record, as made up, would sustain the legal conclusion that the questioh of Alger’s personal liability for the costs was discussed and determined. Such is the purport and effect of this order and of the judgment entered thereon, and the record of the court imports. absolute verity. The order for judgment was made on notice to the plaintiff’s attorney, the notice being entitled the same as was the order, and as was also the entry of judgment. The entitling of the papers would not be controlling against explanatory recitals and specific declarations, and conclusions contained in them; but the entitling becomes significant, if in consonance with all that follows. Here the order for judgment and the formal entry of judgment are in harmony in all their parts. Then, too, we find the report of the referee entitled in the same manner as the order and entry of judgment, and judgment is awarded by the referee’s direction in favor of the defendants, with costs. The answer to these suggestions is that the proceedings were, and are irregular, formally erroneous. If that be so, the irregularity should have been corrected. So long as the record remains in its present form, it is controlling, according to its purport. The judgment stands against the plaintiff Alger for the costs of suit, and the execution against his property was authorized by it. As the record is made up and presented in this case, the question of Alger's personal liability for the costs of the action is determined.

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

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

Order affirmed, with ten dollars costs and printing disbursements.


author: Tappan, J. : Learned, P. J.,

text:
    WILLIAM H. CROMWELL, DAVID W. CROMWELL and ALBERT CROMWELL, Appellants, v. ALBERT GALLUP, as Sheriff of Albany County, Respondent.

      Appointment of an assignee in banb’uptcy — avoids an attachment levied within four months.

    Plaintiffs commenced an action against the firm of Jordan & Clark, residents of Boston, bnt doing business and having personal property in Albany, by service of the summons by publication. January twenty-eighth, 1876, an attachment therein was issued to defendant and a levy was made thereunder. January twenty-ninth, the said firm filed a voluntary petition in bankruptcy, and on the ninth of February were adjudged bankrupts. On March eleventh the creditors filed a petition for a composition, under section 17 of the bankrupt act, and on March thirtieth a resolution accepting the offer of the bankrupts was passed and signed by the requisite number of creditors, and the same was, on April second, duly filed and recorded in the bankruptcy court.
    April eleventh, notice was given of a meeting of creditors, to be held on April twenty-first, to elect assignees. This notice was given because of the judge of the bankruptcy court having held that the composition would not dissolve plaintiffs’ attachment. On April twenty-first, at a first meeting of creditors held pursuant to notice under a warrant issued therefor, the same committee, appointed by the creditor’s to see to the fulfillment of the composition, were elected assignees. On April twenty-second, the composition was ratified and confirmed by the court. The assignees, on April twenty-second, demanded the property, theretofore attached, of the defendant, and thereafter conveyed all the property of the bankrupts to a new firm, the formation of which had been provided for in the composition. On demand of this firm defendant surrendered to it the property. April twentieth plaintiffs had entered judgment in their action and issued an execution to defendant to sell the property levied upon.
    In an action by them against defendant for failing to collect the execution, held, that the appointment of the assignees being within four months of the issuing of the attachment, avoided it; that the judgment entered bound only what was held under the attachment and fell with it.
    That the fact that the composition was assented to before the appointment of the assignees, and was subsequently carried into effect, did not alter the effect of their appointment upon the attachment. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of tlie defendant, entered upon a verdict directed by the court.

      Pdw. P. Wilder, for the appellants.

      Nathaniel O. Moale, for the respondent.
   Tappan, J. :

Appeal by the plaintiffs from a judgment in favor of the defendant upon a verdict, entered by direction of the court.

The action was brought against the defendant as sheriff of Albany county for false returns upon two attachments and two executions, issued to him upon judgments in the attachment suits, in favor of the plaintiffs against Thomas B. Jordan & William F. Clark.

There was no dispute about the facts, and at the close of the evidence both parties moved the court to direct a verdict in their favor. The court reserved the case for further consideration, and finally, by consent of the parties, as to the formal regularity of the proceedings, directed a verdict for the defendants as of the day of the trial at the circuit.

The facts which appeared at the trial, chronologically stated, were as follows :

The plaintiffs commenced two suits against said Jordan & Clark, which for convenience of statement may be designated suits Nos. 1 and 2.

On January 28, 1876, defendant as sheriff, as aforesaid, received an attachment in suit No. 1 against said Jordan & Clark, directing him to attach sufficient of their property to satisfy $1,434.40 and costs and expenses, and immediately attached sufficient of their property to do so.

On January 29, 1876, Jordan & Clark filed a petition in bankruptcy in the District Court of Massachusetts, in which William H. Cromwell & Company of New York, plaintiffs firm, were included among the list of creditors, for the claim in said action No. 1, and also for the claim in action No’. 2 hereinafter mentioned.

On February 1, 1876, the defendant as such sheriff received an attachment in favor of plaintiffs in suit No. 2 against said Jordan & Clark, requiring him to attach sufficient of their property to pay $1,305.14, with interest from December 31, 1875, and costs and expenses, and he immediately attached sufficient of the property, which belonged to said Jordan & Clark on January 28, 1876, and which but for the bankruptcy proceedings would have remained theirs.

On February 4, 1876, proof of residence of the bankrupts was filed in the bankruptcy court, and the matter of the bankruptcy of said Jordan & Clark was referred to a register in the district of Massachusetts, and on February 9, 1876, they were adjudged bankrupts, and the next day such adjudication was filed in the proper court.

On February 16, 1876, the register issued a warrant for the first meeting of creditors for March sixth, next thereafter. On the day last mentioned the register held that the notice given to the creditors of the first meeting was insufficient, and adjourned the meeting to March 30, 1876, and issued a new warrant for that time.

On March II, 1876, the creditors filed a petition for a composition at fifty per cent under section 17, chapter 390, Laws of the United States (18 U. S. Stat. at Large, 182) to be secured by one or more new partners coming into the firm to bring in at least $50,000 additional capital, upon which said petition the bankruptcy court made an order for a meeting of creditors March 30, 1876, to act upon the proposition for a composition, and that the creditors of said Jordan & Clark be notified of such meeting by sending to each of said creditors a notice of the substance of the order by mail, postpaid, at least ten days prior to the said day appointed for such meeting.

On March 13, 1876, the clerk of the bankruptcy court returned that he had so served such notice on all the creditors whose names were in the schedule previously filed, which included Cromwell & Company, the plaintiffs herein.

On March 16, 1876, on application of the bankrupts, the said court made an order that their business be continued under the supervision and control of a register in bankruptcy until otherwise ordered.

On March 30, 1876, proofs of debts were made and filed, and the register held that the notice of the first meeting of creditors to choose assignees was insufficient, and adjourned such meeting to April 21, 1876, and issued a new warrant for such a meeting for that time.

On March 30, 1876, the meeting of creditors to determine whether they would accept the proposal for a composition was held, and at such meeting the bankrupts produced a statement claiming to show all of their assets, and the names and addresses of the creditors to whom such debts respectively were due, including Cromwell & Company (plaintiffs) as creditors for the amounts stated in both attachments, with their residences. The requisite number of creditors, holding the requisite amount of debts against the bankrupts, resolved that the composition proposed by the bankrupts should be accepted, and such composition was confirmed by the signatures thereto, of the bankrupts, and two-thirds in number and one-half in value of all the creditors of the bankrupts, the fifty per cent to be paid by the new firm in four installments in four, six, eight and ten months from March 1, 1876 ; the new partners were to furnish and put into the new firm $50,000 in cash. The meeting provided that when H. A. Gowing, Charles B. Barnes and Henry F. Cloe, a committee of the creditors, should certify that this had been done, the property of the bankrupts should be transferred to the new firm.

This meeting then adjourned to March 31, 1876, at which time the register certified to the passage of the proper resolution for the composition and the confirmation thereof by the signature of the bankrupts, and. the requsite number of their creditors, and the same was filed with the register and presented to the court April 1, and recorded April 2, 1876.

On April 1, 1876, the bankruptcy court made an order reciting that the resolution for a composition had been duly passed, and directing notice to be given to all the known creditors of the bankrupts, by mail, at least five days before the time that a hearing would be had on the confirmation and acceptance of the resolution before the court on the 8th of April, 1876.

On the 1st day of April, 1876, the clerk returned that he had so served such notice on all the creditors, including the plaintiffs.

On April eighth, the bankruptcy court ordered that the hearing on such motion be posponed until April 22, 1876.

On April 11, 1876, the aforementioned committee of creditors addressed a printed notice to the plaintiffs, wherein they stated that owing to the attachments on stock oi the bankrupts, which Judge Lowell of the United States Court held would not be dissolved by composition, it would be necessary to hold, first, meeting of creditors and elect assignees ; that such action would not interfere with the completion of the composition at fifty cents, and interest from March first; that they hoped to have the whole matter closed on April twenty-second.

On April 11, 1876, the marshal returned due publication and service of notice under the warrant for the first meeting of creditors to choose assignees, April 21, 1876, including plaintiffs; also a copy of the notice served in the usual form on all the creditors, including plaintiffs.

On April 20, 1876, judgment was entered in action No. 1 for $1,621.73 damages and costs. The judgment directed that plaintiffs have execution thereon against the property attached on the 28th day of January, 1876, under the warrant of attachment to him issued and delivered. There was no appearance by the defendants in such action, and service of the summons was made by publication only.

On April 20, 1876, the defendant as sheriff received air execution upon such judgment, directing him to make the amount thereof with interest from the property attached as before mentioned. By direction of the plaintiffs’ attorney the sheriff levied the execution upon such property.

On April 21, 1876, the first meeting of the creditors in bankruptcy was held under the warrant directing the same ; debts to a largo amount were proven, and the creditors elected Henry A. Cowing, Charles H. Barnes and Henry F. Cloe assignees, who accepted. the trust, and the register approved and affirmed the choice of such assignees, and conveyed and assigned to them all the estate, real and personal, of the bankrupts, including all property, of whatever kind, of which they were possessed, or in which they were interested or entitled to have on the 29th day of January, 1876, except the property exempt by the provisions of the statute, to have and to hold the same pursuant to the conditions and limitations therein set forth. The same day the register ordered the assignees to give notice of their appointment by the usual publication, for three weeks, in two newspapers.

On April 22, 1876, the assignees served upon the sheriff, the defendant, a copy of the register’s assignment and demanded the property; the defendant replied that he would consult counsel and follow his advice. April 22, 1876, the committee of creditors, appointed at the composition meeting, reported to the court that a partnership had been formed, composed of the above-named Thomas B. Jordan, and William F. Clark, and Rodney McLaughlin, Rufus P. Kingman, Henry K. Keith and Columbus C. Luce, under the firm name of Jordan, Clark & McLaughlin, and that the new partners had paid $50,000 in cash as capital of said partnership. On the same day the court made an order reciting that the canse come on to be heard upon the resolution for composition theretofore presented to the court, and that upon hearing all persons desiring to be heard thereon, it appearing to the court that said resolution was duly passed in the manner directed by the statute, and that the court being satisfied that said resolution was for the best interest of all concerned, it was ordered that the resolution be forthwith recorded, and the statement of the debtors as to their debts and assets presented with said resolution be forthwith filed, with liberty to any person interested to apply to the court at any time for further directions, as provided by law ; such statement was also filed and recorded.

On the 22d of April, 1876, the assignees upon their petition, duly verified, obtained from the District Court of the southern district of New York, where the plaintiffs resided, an order requiring them to show cause on the 29th of April, 1876, why proceedings in these two actions should not be stayed until the determination of the court in bankruptcy on the question of the discharge of the bankrupts, and why the attachments issued in each of said actions should not be vacated and set aside, and the petitioners have such other relief as might be proper, and in the meantime, and until the decision of the motion, staying all proceedings in said actions. Such order, and the petition upon which it was granted, were served upon plaintiffs and they made answer thereto, and upon such petition aiid such answer a hearing was had May 24, 1876, before said court, when the petition was denied, and the injunction and stay of proceedings vacated and set aside. ■

On April 2S, 1876, the said assignees presented to the bankruptcy court in Massachusetts a petition showing their appointment and that they had qualified ; that the resolution of composition had been proved and complied with, and that on the twenty-second of April the court had approved the same ■ and ordered it and the papers to be recorded and filed, and prayed that an order be made, authorizing and directing the assignees to convey the property assigned to them by the register,' in the bankruptcy proceedings, to the said members of the said new firm under the name of Jordan, Clark & McLaughlin, except so much of said property as might be required to pay the expenses of said estate in bankruptcy.

The said court then made an order for the clerk to give notice to the bankrupts, anil to all known creditors of said bankrupts, to airpearat a court of bankruptcy on the 6th of May, 1876, and show cause, if theró was any, why the prayer of such petition should not be granted ; such notice to be given by sending to said creditors by mail, postpaid, a statement of the substance of said petition and ordei*.

On April 29, 1876, the clerk returned that he had duly served said notice as therein directed. On the 6th day of May, 1876, the court ordered that the prayer of the petition be granted, and directed said assignees to convey the property of the bankrupts to the said new firm, except so much as might be required to pay the expenses of said estate in bankruptcy, and on the same day said assignees made such conveyance to said parties as ordered. About May 15, 1876, the new firm served upon defendant, as sheriff, a copy of such assignment and transfer and demanded a surrender of the property attached, which he, subsequently to May 26, 1876, surrendered to their agent. On May 26, 1876, judgment was entered in action No. 2 for $1,447.36 without appearance or personal service, and said judgment directed execution in the same form as the judgment in action No. 1, and on May 29, 1876; an execution in the same form was issued to defendant and received by him as sheriff. On June 13, 1876, the defendant, as sheriff, returned on the several attachments and executions the foregoing facts, and that by reason thereof he could not make the amounts thereof, or any part thereof. Por making such returns this action was brought.

The bankruptcy court in Massachusetts had jurisdiction of the subject-matter, and of the proceedings in bankruptcy. Its orders and determination are binding and conclusive on all parties, until set aside or vacated in that court by direct application for that purpose in that court, or upon appeal to the proper circuit court. So long as they stand, having been granted on notice to all parties, including the plaintiffs, they cannot be attacked collaterally. (Bump, on Bankruptcy [9th ed.], 735-736; Michener v Payson, 13 N. B. R., 49; S. C., 8 Chicago Legal News, 17.)

The decrees of the bankruptcy courts rendered pursuant to the acts of Congress are entitled in every other court to the same force and effect, as the judgments or decrees of any domestic tribunal, so long as they remain unreversed and are not annulled. (Lamp Chimney Co. v. Brass and Copper Co., 91 U. S. R., 650; Shawhan v. Wherritt, 7 How. [U. S.] R., 645; Huff v. Hutchinson, 14 id., 588; Parker v. Danforth, 16 Mass., 299; Peeks v. Barnum, 24 Vt., 76; 2 Smith’s Leading Cases [7th ed.], 622, 814; Palmer v. Preston, 45 Vt., 159; Miller v. U. S., 11 Wall., 300; Hampton v. McConnel, 3 Wheat., 234; Gelston v. Hoyt, id., 312; Slocum v. Mayberry, 2 id., 1; Nations v. Johnson, 24 How. [U. S.], 203; Webster v. Reid, 11 id., 437.) Such orders and decrees can only be attacked collaterally, when they appear to be void in form, or that due notice of the petition was never given. (May v. Howe, 108 Mass., 503; Ocean Bank v. Olcott, 46 N. Y., 15.) If it appears that the bankruptcy court had jurisdiction, the subsequent proceedings are presumed to be regular, and the decision of that court whether correct or otherwise, upon every question properly arising in the case, is binding and conclusive until reversed on appeal. (Smith v. Engle, 14 N. B. R., 481, 484; S. C., 44 Iowa, 265, 268.) Bankruptcy proceedings are in rem, and actual notice to the creditors is not essential to the jurisdiction of the court. The public notice required by the act will be deemed notice of the proceedings to each creditor and affords sufficient opportunity to make objections to them. (Shawhan v. Wherritt, 7 How. [U. S.] R., 643.) The plaintiffs attachments were proceedings in rem, giving no rights except as against the very property seized and brought within the jurisdiction of the court. The defendants in the judgment could not be sued thereon in the same or in any other State. (Schwinger v. Hickok, 55 N. Y., 280; Bartlett v. McNeil, 60 id., 53; Force v. Gower, 23 How., 294; Bicknell v. Field, 8 Paige, 400; Fiske v. Anderson, 33 Barb., 71; Fitzsimmons v. Marks, 66 id., 333.) And this is so even where the party appeared in the special proceeding for a specific purpose. (Hoffman v. Hoffman, 46 N. Y., 30; McDermott v. Clary, 107 Mass., 501.)

In such case the execution is required to be special, and to recite the issuing and levy of the attachment, the recovery of the judgment based thereon, and to require the sheriff to sell the specific property attached by virtue of the attachment. (Code, § 237; McKay v. Harrower, 27 Barb. S. C. R., 463; Lamont v. Cheshire, 6 Lans., 246.) The right to sell the property depended upon the attachment; as soon as that was dissolved, the right to proceed upon the execution fell with the dissolution. (Lyon v. Yates, 52 Barb. S. C. R., 237; Kerr v. Mount, 28 N Y., 659.) And the effect is the same where the attachment is dissolved after judgment. (Thompson v. Culver, 38 Barb., 442; Bowen v. First National Bank, 34 How, Pr. R., 408.) If, after the attachment is dissolved, even after judgment and execution, the officer refuses to deliver the property attached to the party entitled thereto, he is liable for such refusal. His assertion that he refused under the plaintiffs’ direction is no defence. (Drake on Attachment [4th ed.j, §§ 306, 411.)

The assignment made by the register to the assignees, who had been appointed and qualified, conveyed to such assignees all the estate, real and personal, of the bankrupts, and such assignment related back to the commencement of the proceedings in bankruptcy, and by ojieration of law vested the title to all such property and estate in the assignees, including the property seized as the property of said Jordan & Clark by the sheriff under the attachments issued out of this court in favor of plaintiffs, and as such attachments had issued within four months next preceding the commencement of the bankruptcy proceedings, such assignment, by operation of law, dissolved such attachments, and such assignees held such property divested of any lien by reason thereof. (U. S. R. S., § 5044, p. 980; Bracken v. Johnston, 15 N. B. R., 106, 109; S. C., 4 Cent. L. J., 9, 10; 3 Am. L. Times Rep. [N. S.], 537; Miller v. O'Brien, 9 N. B. R., 26; King v. Loudon, 14 id., 383; Kaiser v. Richardson, id., 391-392; Hatch v. Seely, 13 id., 380; Zeigler v. Shomo, 78 Penn. St. R., 357, 363; Miller v. Bowles, 58 N. Y., 253; Duffield v. Horton, 10 Hun, 140; Dickerson v. Spaulding, 7 id., 288; Matter of Broich, 15 N. B. R., 16; Jones v. Beach, 1 Mich. N. P., 91; Morris v. First National Bank, 68 N. Y., 362.) In this case the assignees did not need to intervene in the attachment cases ; the attachments were set aside by operation of law. The attachments were the foundation of all the other proceedings taken in the actions instituted by the plaintiffs, and where rendered void by the bankrupt act, all proceedings in such actions became ineffectual to give jDlaintiffs any lien or right to the jnoperty attached. If the plaintiffs had acquired a lien which could not have been extinguished by the bankruptcy proceedings, then either they or the assignees would have had a right to choose the forum in which the lien should be enforced. If the plaintiffs had exercised their right to choose the forum in that case, the assignees would have been compelled to intervene or be bound by the lawful enforcement of the lien. The plaintiffs exercised their rights as creditors" of the bankrupts by taking their attachments, without which this court had no jurisdiction to render their judgments in rein. They did so with knowledge of the federal statute, enacted by virtue of the' authority of the Constitution, by which it was declared that if the bankruptcy proceedings progressed to the appointment of an assignee, their attachments were thereby per se dissolved. After the commencement of the bankruptcy proceedings, within four months of. the time the attachments issued, they could not, by their own acts, by the entry of the judgment therein pending such proceedings, acquire any additional rights. (Clark v. Rowling, 3 N. Y., 216; Dresser v. Brooks, 3 Barb., 430; Morris v. First National Bank, 68 N. Y., 362.) Plaintiffs were legally bound to take notice of such proceedings. (Matter of Daniels, 13 N. B. R., 46; S. C., 8 Chicago Legal News, 17.)

If the composition proceedings had been perfected before the appointment of an assignee, the pending attachments would not have been -dissolved, because the state of facts ■ which the statute declared should so operate would never háve existed. (Matter of Clapp, 14 N. B. R., 191; Matter of Lytle, 14 id., 457; Wield v. Boshart, manuscript opinion by Donohue, J.

The composition did not take effect until the court approved the resolution of the creditors providing for the same, and caused the same to be recorded, and the statement of assets and debts to be filed. (18 U. S. Stat. at Large, 183.) Before then, the assignees had been appointed and the register had conveyed to them. By this proceeding, through the assignees, the creditors had acquired the property for the purpose of having the same subjected to the payment of their debts. Such action did not prevent the requisite number of creditors, holding the required amount of debts, from agreeing to a composition with the bankrupts, whereby all the creditors, by consent of part and the compulsory operation of the law, should surrender the property to the new firm, and take in place and stead thereof the notes of such firm for such property in satisfaction of their debts, and it was, without doubt, competent for the bankruptcy court, in pursuance of such composition, to give the bankruptcy proceedings such direction as to preserve the general object and purpose of the act; namely, to give each of the creditors of the bankrupt his ratable share of the avails of such property by directing the assignees, when such composition had been perfected, to convey the property which they had acquired by the assignment from the register to the new firm.

The composition was not invalid because the payments were to be made in installments, secured by notes of the new firm. (Matter of Ewing, 17 N. B. R., 109; Matter of Reiman, 11 id., 21.) Irrespective of the election of assignees and the assignment to them by the register, it would seem that the effect of the acceptance of the' composition by resolution bound all the creditors whose names and addresses, with the amount of the debts due to them, were shown in the statement of the debtors, produced at the meeting at which the resolution was passed. (18 U. S. Statutes at Large, 182; U. S. Statutes of 1874, chap. 390, § 17.) Plaintiffs’ debt was, by these proceedings, barred and extinguished. The' attachments and executions depending upon the existence of the indebtedness fell with it. (Miller v. McKenzie, 43 Md., 404; Ocean Bank v. Olcott, 46 N. Y., 12, 16; American Exchange Bank v. Brandreth, 12 Hun, 384; Wells v. Lamprey, 16 N. B. R., 205, 207; Claflin v. Seessel, 5 N. Y. W. Dig., 257; Matter of Bechet, 12 N. B. R., 201; Beebe v. Pyle, 5 N. Y. W. Dig., 198.) The proceedings before the District Court of the southern district of New York are not res adjudicata, except to bar another summary application for the relief asked in such proceedings.

It is contrary to the policy of the law to allow grave and weighty questions requiring a development of all the facts to be conclusively determined, except in the usual manner, when both parties have an opportunity to present all the facts of the case. (Van Rensselaer v. Sheriff, 1 Cow., 502; Pendleton v. Weed, 17 N. Y., 77; Snyder v. White, 6 How. Pr. R., 321; Smith v. Spalding, 30 id., 339; Hoffman v. Hoffman, 46 N. Y., 30; Simpson v. Hart, 14 J. R., 63; Belmont v. Erie R., 52 Barb., 637, 641-642; Howell v. Mills, 53 N.Y., 323.) The application made by the assignees of the bankrupts was summary ; they submitted to the jurisdiction of the court in that proceeding only ; submitting to such jurisdiction did not enlarge the character, or effect of such determination when made. The District Court of the southern district of New York was not tire court having jurisdiction of the bankruptcy proceedings ; that court could only taire control of the property of the bankrupts estate by a suit at law or equity, to which the sheriff was a party, and not by a mere rule. (Marshall v. Knox, 16 Wall., 551; Smith v. Mason, 14 id., 419; Dickerson v. Spaulding, 7 Hun, 288.)

Upon the facts conceded at the trial the new firm, after the transfer to it by the assignees, became entitled to the property which the sheriff had attached by virtue of the plaintiffs attachments issued to him, and to avoid an action which would have accrued in favor of such firm had he refused to deliver the property upon demand, he had the right to deliver the property to the parties thereto entitled. When he did so he assumed the burden of litigating the questions showing such rights, in the parties to whom he assumed to surrender the property. (Lummis v. Kasson, 43 Barb. S. C. R., 373; Wehle v. Conner, 69 N. Y., 546, reversing same case; 8 J„ & Spencer, 31.) Any matter that could have defeated the right of such parties, had they brought suit against the plaintiffs, the latter could give in evidence in this case.

We do not deem it necessary to discuss any other points, as these views dispose of the case. The court below properly directed the verdict. The judgment entered thereon should be affirmed, with costs.

Learned, P. J.,

dissenting.

The point,where I am unable to assent to the opinion oí my brother Tardan is on the composition proceedings. The United States Statute of 1874 added to the forty-third section of the bankrupt act certain provisions, by which the creditors might accept a composition from the debtor. (Stat. at Large, vol. 18, § 17, p. 182.) Such composition, if made and approved, takes the property of the debtor from the control of the court and out from all bankruptcy proceedings. By the terms of the act the composition is binding on all creditors whose names and addresses, and amount of debts, are shown in the statement of the debtor It is to be passed by a majority in number and three-quarters in value of the creditors.

In estimating the value secured, creditors are to be estimated at the amount of their debt above the security. If fully secured, they cannot vote. The composition leaves the security held by the creditors severally unaffected. I should have thought that it was a necessary part of every bankruptcy proceeding that the court should divide the bankrupts assets among the creditors; and that a law authorizing three-fourths of the creditors to impose any terms of composition which they might choose on the remaining fourth was no proper part of a bankrupt law. Nor should I have thought that such a law for voluntary compositions could be brought within a bankrupt system, by being enacted as an amendment to a bankrupt law. I should not have thought it to be within the power of Congress to enact that three-fourths of a debtor’s creditors could fix the terms on which he could be discharged from his liability to the others, without even requiring a surrender of his property. In* the present case, the whole of the bankrupts property was, under this composition,, conveyed to other parties, and none of it was applied to the payment of the bankrupts debts. But the decision in the Matter of Reiman (12 Blatch., 562) holds this composition act valid; and even holds that a payment in notes complies with the act, which requires a payment in money.

But, passing this, the composition law excepts debts which are secured, and evidently applies only to unsecured debts. It is not so unjust as to permit a part of the creditors, by their mere voluntary agreement, to take away from, other creditors the security which they have. It is only the unsecured creditor, or the secured creditor to the extent that his debt exceeds his security, who can join in, and who is affected by, this voluntary agreement. JFor this composition is a voluntary agreement. It is a substitute for, not a continuance of, the proceedings in bankruptcy. (Mudge v. Wilmot, 124 Mass., 493.)

The creditor who has, by attachment, obtained a lien on his debtors property is a secured creditor. (Frost v. Mott, 34 N. Y., 253.) He has a specific lien. (Rinchey v. Stryker, 31 N. Y., 140.) I see no reason why he is not as much a secured creditor, within the language of this composition act, as if the debtor had given him a mortgage upon the same property. The fact of security, not the mode in which it was obtained, is the important thing. And the secured creditor is not affected by the composition, to which he does not consent. (In re Lytle, 14 Nat. R. R., 457.)

This seems to have been admitted in the present case. For it was conceded that the composition would not dissolve the attachment, or discharge the property from the plaintiffs’ lien. (Sage v. Heller, 124 Mass., 213.) After a meeting of creditors had been had, at which the composition proposed was accepted by the requisite number and value of creditors, and approved by the register, a committee of the creditors, favorable to the composition, sent out a circular stating that Judge Lowell had decided that the composition would not dissolve the attachment; and that it, therefore, became necessary to elect assignees ; which proceeding would not interfere with the composition. For the purpose, then, of indirectly accomplishing what the composition act forbade, they proceeded to elect assignees. The assignees were elected one day ; the composition agreement was filed the next; a new firm (proposed in the composition agreement) in a few days after applied for the transfer to them by the assignees of all the debtors property; and this was done.

Thus it is apparent that the creditors chose to adopt the plan of voluntary composition, in the place of the distribution of assets by the bankrupt court; and that what was done, by. way of appointing assignees, was done simply for the purpose (if possible) of dissolving the attachment, and not in good faith for the distribution of the assets in bankruptcy.

It seems to me that what the statute forbids cannot thus be accomplished by indirection. If the creditors compound, they must, in so compounding, leave the secured debts to remain secured. The act authorizing compounding, in speaking of debts secured, is general. It does not limit its language to debts which had been secured four months or more previously. But it leaves all securities undisturbed. And when, therefore, the creditors in this case accepted the composition, they relinquished any effect which the appointment of assignees might otherwise have had. The composition paper was signed before the appointment of the assignees. The proceeding was pending, and was at once completed by the eijtry in the records.

It may be said that the appointment of the assignees has discharged the attachment, and thus that the lien has gone altogether. But the object of the appointment of the assignees ceased with the composition ; and, therefore, with the ceasing of their trust, ceased all the powers necessary thereto. The composition superceded the assignees’ rights ; and with them those provisions of the act which are a part of the plan of distribution by the assignees. The assignees never claimed from the defendant in this action the property in his hands. The new firm, who did claim the property, were not purchasers from the assignees. It would be idle to call them so. . They merely took the property under the composition deed ; upon the abandonment by the assignees of all their rights, duties and powers. If they had taken under the assignees, then the assignees would have received from them the purchase-money of the property, which would have been a fund for distribution. But they took title, not through the assignees, but through the composition deed; and they cannot claim the benefit of the assignees rights.

I, therefore, think that the judgment should be reversed.

Present — Learned, P. J., Boakdman and Tappan, JJ.

Judgment affirmed, with costs.