text:
    S. Charles Welsh, Trustee, App’lt, v. Henry Schoen et al. Louis Ettlinger, Purchaser, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Foreclosure—Notice oe pendency—Code Civ. Pro., § 1671.
    The provisions of § 1671 of the Code do not include a case where the purchaser or incumbrancer has, in fact, become possessed of the premises.
    2. Same—Purchaser.
    Where the persons so in possession are not made parties to the action, a complete title with an immediate right of possession cannot be given to the purchaser at the sale, and hence he is entitled to be relieved from his purchase.
    Appeal by the plaintiff from an order relieving the respondent, Louis Ettlinger, from his purchase of premises known as No. 2250 Second avenue, and directing the repayment to him of the sum of $1,180 paid upon the purchase price, with the interest thereon, together with exchange and auctioneer’s fees, the expenses of searching and examining the title and for referee’s fees, with the costs of the motion.

      Grata Nathan, for app’lt; John B. Talmage, for resp’t.
   Daniels, J.

This action was for the foreclosure of a mortgage upon the premises in question. It was commenced by the service of the summons in February, 1890. The original notice of the pendency of the action was filed with the complaint on the 8th of March following, and on the 14th of April, 1890, an amended notice was also filed.

When the suit was commenced Leah Diamond appeared by the record to be the owner of the land encumbered by the mortgage. But she had in fact executed and delivered a deed of the property to Mary T. Stephens on the 17th day of December, 1889. And she also executed a deed on the 13th day of January, 1890, to Charles Griesmeyer, which was delivered on or about the 15th of April of the same year, the grantor in this deed remaining during that interval of time in the possession of the premises, and collecting the rent The parties to the last deed joined in a lease to Gfeorge A. Marz on the 14th of February, 1890, by which they leased and demised to him the store and back rooms and three rooms of the second floor of the building on the land, for the term commencing on the day of the date of the lease, and continuing to the 1st of May, 1892, and he went into possession on the 1st of March, 1890, and has since remained in possession under this lease. Neither of these three persons were made a party to the action to foreclose the mortgage, and under the judgment in which the sale was made . And the court held that to be such a defect in the title as entitled the purchaser to be relieved from his contract of purchase.

The correctness of this decision has been denied under the language of § 1671 of the Code of Civil Pro. That section has provided that a person whose conveyance or incumbrance is executed or recorded after the filing of the complaint and the notice of the pendency of the action of foreclosure, shall be bound by all the proceedings in the action to the same extent as if he was a party to the action. But this effect has been given to the filing of the notice solely on the existence, and the omission to record the preceding conveyance, or incumbrance. It includes only the class of cases where no more has been done than the making and delivery of the conveyance or incumbrance. To bring the case within this section the case must extend no further than the execution and delivery of the instruments mentioned.

That is the language, as well as the plain significance of it, as it has been employed in the section. It object was to protect the party prosecuting his action against conveyances and incumbrances of which he ordinarily could have no knowledge or information, on account of their absence from the record. And it would violate this intention to extend the provision to a case where the purchaser or incumbrancer had in fact become possessed of the premises. For that possession is notice, as complete as the recording of the instrument itself would be, to all persons dealing with or proceeding against the property. It has been uniformly held to be the equivalent of notice resulting from the recording of the ■conveyances or incumbrances. And has been so in effect declared by the case of Phelan v. Brady, 119 N. Y., 587; 30 N. Y. State Rep., 256.

Through this possession the plaintiff become chargeable with notice of the title of Mary T. Stephens, and of the tenant in the occupancy of a considerable part of the property, under the lease of herself, and her grantee, to him. And he could not be removed, and possession given to the purchaser, by any proceeding in the action, because of the omission to join him as a defendant in the action. Hirsch v. Livingston, 8 Hun, 9.

What the purchaser was entitled to demand under the terms of his purchase was a complete title to the property, together with an immediate right of possession. That he did not and could not obtain. And for want of that was entitled to be discharged from his purchase, and to be otherwise indemnified, as that has been directed by the order." The order should, therefore, be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concur.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Pleading—Amendment.
    This action was brought in 1885 to procure the cancellation oí a written contract, the transfer of certain stock and other equitable relief. After several attempts to bring it to trial plaintiff obtained permission to apply to the special term for leave to amend, and in 1888 made a motion to amend by substituting a cause of action purely legal and substantially for a conspiracy. Held, that the motion was properly denied, both on the ground of want of power to grant it and on the ground of laches.

    Appeal from order denying plaintiff’s application for leave to serve an amended complaint.

      B. J. Moses, Jr., for app’lt; M Louis Lowe, for resp’ts.
   Brady, J.

The record discloses that this action was commenced in November, 1885; the object was to written contract referred to, to compel the transfer of certain shares of stock, to procure an injunction pendente lite, and to obtain the assessment of damages according to the rules and practice of the court, and for other and further relief. The original complaint was served in December, 1885. In 1886 an application was made upon the defendants’ answers and upon the complaint and affidavits for an injunction, which was denied. The plaintiff thereupon served an amended complaint in February, 1886. The defendants Paterson, Richardson and the National Gas Saving Co. interposed separate answers. The cause was subsequently brought to trial at the equity term, and it was then and there conceded that two of the defendants, Hotchkiss and the Gas Saving Co., had not been served, had not appeared, and that no equitable relief could be granted against them. The complaint as to them was, therefore, dismissed in so far as it prayed equitable relief.

The plaintiff, notwithstanding all these circumstances, made no attempt to amend, but after waiting for nearly two years, moved the cause for trial at circuit, upon precisely the same pleadings as before. That trial was interrupted by the withdrawal of a juror, and it appears that at that time the defendant Hotchkiss had been dead for more than a year, and a discontinuance as against the Gas Saving Co. had been entered. Without an effort to amend, the plaintiff again pressed the cause for trial in November, 1888, upon the same pleadings and issues. Objection was then and there taken, however, that no relief could be granted under the complaint as it then stood, which the court sustained and gave the plaintiff permission to apply to the special term for leave to amend, which was granted, with the alternative, however, that the defendants should have judgment on the merits in case the plaintiff failed to make the application or pay the costs of the circuit within twenty days after service of the order. The plaintiff subsequently moved to amend, and, it appears, not by making alterations in or additions to the original or amended complaint, but by attempting to substitute a cause of action purely legal and substantially for a conspiracy. The motion was denied for the reason that this was an attempt to change the cause of action which, under the Code, the court had not the power to permit.

The learned counsel for the appellant is, therefore, mistaken in his proposition that there was any inconsistency or any conflict in these various rulings. These proceedings are easily understood, and are all in consonance with very well established legal principles.

Independently of this there was great delay in the application for the amendment, the necessity of which was demonstrated by the proceedings which took place before application was made to accomplish it. In seeking to substitute an entirely new cause of action, the plaintiff was endeavoring to effect a legal impossibility.

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

Daniels, J., concurs.


author: Daniels, J.

text:
    Samuel E. Huntington, Ex’r, App’lt, v. Cornelia S. Moore, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Foreclosure—Leasehold—Extra allowance—Code Civ. Pro., § 3283, sued. 1.
    A leasehold interest is not real property, even though the lease exceeds three years, and an action to foreclose a mortgage thereon is therefore not within the restriction as to extra allowances created by subdivision 1 of § 3253 of the Code.
    Appeal from an order restricting an additional allowance of costs to the sum of $200.

      Henry D. Hotchkiss, for app’lt; Wm. A. Abbott, for resp’t.
   Daniels, J.

The judgment directed is for the foreclosure of a mortgage upon a leasehold estate, created by a lease for the period^ of twenty-one years from the 1st of November, 1888, with conditions for renewals, and reserving a rent certain. The amount secured and for which a sale has been directed is the sum of $10,000. The plaintiff moved for an additional allowance of costs, stating in the affidavit presented for that object that a great deal of labor had been expended in preparing for trial, to show the facts attending the loan, the payment of which was resisted on the alleged ground of usury. The court declined to make a greater allowance than the sum of $200 for the want of power. It was held that this was the foreclosure of a mórtgage on real property, and that the allowance therefore, under subd. 1 of § 3253 of the Code of Civil Procedure, could not exceed the sum of $200. And that is the extreme limit prescribed in an action for the foreclosure of a, mortgage upon real property.

But a leasehold interest was held in Despard v. Churchill, 53 N. Y., 192, not to be real property, even where the lease may exceed the period of three years, and for that reason entitled to be recorded. Two leasehold interests were then before the court, one having about four and the other about five years to run. And they were held to be personal and not real estate. And this conclusion seems equally as applicable to the lease ¡¡affected by the result of this action. For whether the lease be for five or twenty-five years cannot affect the nature of the interest created by it, or the principle which should be applied to define it. If a lease of five years creates a personal interest only, one of a longer term will necessarily be of the same legal nature. And as the former has been established to be personal estate, the latter must be the same. These are legal phrases, and it is to be presumed that the phrase “ real property,” as it has been used in this section of the Code, has been employed in its legal sense. And that construction will exclude this action from the restriction created by its first subdivision and place it within the language of the other parts of the section, so far as that has provided the power of making additional allowances in difficult and extraordinary cases.

The affidavit as it has been made may not be deemed sufficient to prove this action to have been difficult and' extraordinary. But whether it can be so considered or not is a subject which must first be brought to the attention of the special term, which is the tribunal to first hear the motion. That has not yet been done, because this action was held to be for the foreclosure of a mortgage on real property. To afford the plaintiff the opportunity of making the application on that ground, this order should be reversed, but as the point is a new one, it should be without costs of this appeal.

Van Brunt, P. J., and Brady, J., concur.


author: Van Brunt, P. J.

text:
    Walter K. Freeman, Resp’t, v. The United States Electric Lighting Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Judgment—Dismissal of complaint.
    Where the minutes of the court show simply that the complaint in an action was dismissed, the clerk in making out the postea has no right to add the words “ upon the merits,” and a judgment so entered is unauthorized and should he set aside.
    Appeal from order granting plaintiff’s motion to vacate and set aside judgment entered in favor of defendant.

      John Noiman, for app’lt; Henry Yonge, for resp’t.
   Van Brunt, P. J.

This action was tried at the circuit before a jury, appears therein was dismissed.

Thereupon a judgment roll was filed, the postea in which adjudged that the defendant have judgment against the plaintiff upon the issues in this action, dismissing the complaint upon the merits. A motion was made to set aside this judgment as unwarranted, which was granted, and from the order thereupon entered this appeal is taken.

Without expressing any opinion upon the question as to when the court has power to dismiss a complaint upon the merits, in the disposition of this appeal it is sufficient to say that the clerk has no such power.

There was no evidence before the clerk going to show that the court had ever dismissed the complaint upon the merits. The clerk of the circuit certified simply that the complaint had been dismissed; and the clerk of the court in entering the judgment seems to have evolved out of his own imagination the idea that the complaint had been dismissed upon the merits. Clearly such a judicial function has nowhere in the Code been conferred upon the clerk. All that he could rdo in the making out of the postea to be contained in the judgment-roll -was to follow the minutes to the effect that the complaint had been dismissed.

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

Brady and Daniels, JJ., concur.


text:
    William H. Peters et al., App’lts, v. Winfield S. Chamberlain et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Appeal from order denying motion to vacate judgment

      R. L. Harrison, for app’lt; W. N. Bayliss, for resp’t, Botsford.
   Van Brunt, P. J.

The facts in this case are similar to those in the case of Freeman v. The U. S. Electric Lighting Co., decided herewith, except that the motion was denied instead of being gaanted. And for the reasons stated in that opinion the order appealed from should be reversed, with ten dollars costs and disbuasements as against the respondent Botsford, and the motion granted.

Van Brunt, P. J., and Daniels, J., concur.


author: Daniels, J. Van Brunt, P. J.

text:
    Louis Dubois, Resp’t, v. William H. H. Sistare, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Pleading—Frivolous answer—Conversion.
    The complaint alleged certain dealings between the parties in mining stocks, that defendants held possession of certain stocks belonging to plaintiff; that he had tendered the balance due to them and demanded delivery of the stock; that they had delivered a part thereof but neglected and refused to deliver the remainder. It then alleged “ that defendants have wrongfully detained and converted the same to their own use.” The latter allegation was denied by the answer. Held, that the denial created a material issue, including the liability of defendants to personal arrest, and could not be stricken out as frivolous.
    Appeal from an order striking out the defendants’ amended answer as frivolous and for judgment in favor of the plaintiff.

      Henry S. Bennett, for app’lt; Alexander B. Simonds, for resp’t.
   Daniels, J.

The complaint sets forth various dealings between the parties in certain mining stocks, and alleging that the defendants held in their possession, for and belonging to the plaintiff, 6,000 shares of the Little Chief Mining Company, 5,000 shares of the Horn Silver Mining Company, and 1,500 shares of the Iron Silver Mining Company. It was also alleged that the plaintiff had tendered to the defendants the balance due to them from him and demanded the delivery of the stock. And that they had delivered to him the 6,000 shares of the Little Chief Mining Company stock, but neglected and refused to deliver the remainder. And the averment is then made “ that the defendants have wrongfully detained and converted the same to their own use. ”

This averment has evidently been made to legally characterize the defendants’ act in neglecting and refusing to deliver the detained shares of stock. It charged a conversion, which before was at most left to mere inference, and may be presumed to have been added to avoid all uncertainty from what had been previously set forth. The object was to implicate the defendants in a positive wrong, for which, if it shall be maintained, they may be personally taken in execution. This was as pointedly denied by the answer which has been stricken out. For its third subdivision in allegation, that the defendants have wrongfully detained and converted the five thousand shares of the Horn Silver Mining Company, and the fifteen hundred shares of the Iron Silver Mining Company to their own use, has been denied. This denial created a material issue, including the liability of the defendants to personal arrest. And it could not regularly be stricken out. Farmers' National Bk, etc., v. Leland, 50 N. Y., 673. But it should be tried in the ordinary course prescribed for that object.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Van Brunt, P. J.

It seems to me that the fact that the respondent found it necessary to present so elaborate a upon this appeal shows conclusively that the answer was not frivolous. I concur in the reversal of the order, with costs.

Brady, J., concurs.


text:
    Joseph H. McDonald, Resp’t, v. Charles E. Convis, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Arrest—When order will not be granted.
    The action was brought to recover for moneys advanced to aid in the organization of a corporation, and expended in the conduct of its business. The affidavit for an order of arrest therein alleged that defendant, by false statements to the effect that the company was incorporated, induced plaintiff to be elected president thereof, to spend money in the conduct of its business and give his time and labor thereto. Held, that as to money expended prior to the time of the alleged organization plaintiff had no cause of action against defendant for fraud and deceit, and that as the complaint contained this cause óf action for which defendant could not be arrested, the order of arrest should be vacated.
    Appeal from, order denying motion to vacate order of arrest.

      Robert Sewell, for app’lt; James C. Foley, for resp’t
   Brady, J.

The ground upon which the defendant claims that this order of arrest should be vacated is that a cause of action is contained in the complaint not subjecting the defendant to arrest. The affidavit, which is supposed to contain the evidence upon which the plaintiff claims the right to arrest, contains allegations in respect to representations made by the defendant relating to the proposed organization of the company and the advance of money to aid in that organization. It also contained allegations that Don vis procured the certificate of association to be executed, which he undertook to have filed, and to have said association duly incorporated according to law; that Gonvis reported to the plaintiff that the association had been incorporated, and that thereupon a meeting of the directors was held and the plaintiff permitted himself to be elected president and treasurer of the association; that business was begun and for nearly a year was conducted by the association as though it was incorporated, the plaintiff in the meantime having advanced, paid and laid out sundry sums of money in the ■conduct of the business. The plaintiff then deposed that the alleged corporation had never been incorporated because the secretary of state refused to file the certificate, and that the plaintiff was compelled immediately to stop all business and close up the said association, whereby the plaintiff suffered pecuniary loss to a large amount besides loss of time, labor and good name and credit as a man of business. The affidavit further states that the defendant falsely and fraudulently, and with intent to deceive and defraud, stated that said corporation was incorporated, when in truth and in fact it was not, and he knew that it was not; and that by-reason of his false statements the plaintiff was led and induced to ■spend the money aforesaid, to give his time and labor, and, worse than all this, to lend his name for so long a time to an illegal enterprise.

It is clear that as to the moneys expended prior to the time of the alleged organization, the plaintiff has no cause of action against Gonvis fo*- fraud and deceit, as there is nothing contained in the affidavit tending to show that at that time the defendant had been guilty of any fraudulent representations.

It therefore appears that this action is brought to recover moneys for which the defendant could not. be arrested even if he might be arrested for the fraudulent representations in respect to the alleged incorporation of the association above mentioned.

Such being the case, the order of arrest must fail because the complaint contains claims as to which the defendant cannot be arrested.

The order should be reversed, with ten dollars costs and disbursements, and the order of arrest vacated.

Van Brunt, P. J., and Daniels, J., concur.


author: Daniels, J. (dissenting) Van Brunt, P. J.

text:
    Hugh N. Camp, Resp’t, v. Michael Redmond, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Pleading—Counterclaim—Vendor and purchaser.
    In an action for breach of a contract for purchase of land, at a sale by-auction which was to be completed at a specified time, the answer alleged, by way of set off and counterclaim, that plaintiff, a month after the specified time, sold the premises to another person, and still retained defendant’s deposit on his purchase, and asked that said sum be offset against any-recovery, if any, and for judgment for such sum if plaintiff failed to recover. Held, on demurrer, that in the absence of an allegation that he was ready and willing to perform at the time specified defendant could not succeed in his affirmative cause of action, and that the demurrer was properly sustained.
    (Daniels, J., dissents.)
    Appeal from an interlocutory judgment sustaining a demurrer to the defendant’s answer.

      Harry A. Foster, for app’lt; James C. De La Mare, for resp’t.
   Daniels, J. (dissenting)

The action is for damages for the non-performance of a contract made for the sale and purchase of land. The sale was made by auction, and it was to be completed on the 11th of November, 1889. It is alleged in the complaint that the defendant in that respect failed to fulfill the terms of his agreement to accept the deed and otherwise perform on his part. But the ability and readiness of the plaintiff to convey the property has been put in issue by the answer of the defendant.

The defendant then, by way of a set-off, partial defense, and counterclaim, further answered that the ten lots described in the complaint were knocked down to him at public auction, by the plaintiff’s agent. And the answer then proceeded to state:

That plaintiff in selling such lots agreed to convey them to-the purchaser at such auction sale on receiving the purchase money less sixty per cent, thereof, which could remain on bond and mortgage, at the option of the purchaser.

That the defendant paid to the plaintiff $300 on account of the purchase money.

On information and belief, that on December 10, 1889, plaintiff sold the property at public auction to a third person, and thus put it out of his power to perform his contract and convey the property in fee to the defendant, and that plaintiff retained and still retains $300 paid to him by the defendant on account of the purchase money.

That the defendant is entitled to have the $300 offset against any recovery that the plaintiff may obtain in this action, if any, and if plaintiff should fail to recover, defendant is entitled to recover said $300 from the plaintiff.

Wherefore, the defendant demands judgment against the plaintiff for the dismissal of the complaint, and the sum of $300, besides the costs of the action.

The plaintiff demurred to this answer, on the ground that it failed to state a cause of action, and the demurrer was sustained by the special term.

No failure to perform the contract has been in any form admitted by the defendant, nor does it appear otherwise than by the allegations of the complaint, upon which issue has been taken by the answer, how the contract was carried along to the month of December, 1889. It cannot be inferred from what has been set forth in this part of the answer, that the defendant was at any time'in default on his part For no such default has been admitted either expressly, or by implication. But it is apparent from this part of the answfer that the lots continued to be owned by the plaintiff up to the 10th of December, 1889, and that he then sold them to another person. This put it out of his power to perform the contract he had made for their sale to the defendant. And dispensed with an offer, or the averment of readiness' to perform on his part. Weeks v. Little, 89 N. Y., 566; Woolner v. Hill, 93 id., 576. It placed the plaintiff himself in default as the case has in this manner been stated and entitled the defendant to rescind, and recover back the $300 paid by him on the purchase price of the lots. And he had the right to interpose that as a counterclaim in this action. The demurrer, therefore, .should not have been sustained. And the judgment should be reversed and the demurrer overruled, with costs, but with leave to the plaintiff to withdraw it, and reply m twenty days on the payment of the costs of the demurrer and the appeal.

Van Brunt, P. J.

I cannot concur with the conclusion .arrived at by Mr. Justice Daniels that under the facts alleged in the answer the defendant would be, if they were true, entitled to recover the amount of his deposit The facts seem to be that the plaintiff contracted to convey to the defendant certain real estate and the defendant contracted to pay for the same on the 11th day of November, 1889, and paid $300 down. There is no allegation in the answer setting up counterclaim or set-off that the defendant ever was ready to take the property or that the plaintiff failed in any respect in reference to his part of the contract

It is urged by Mr. Justice Daniels that the defendant has not admitted that he was in default. This is true, but in his affirmative cause of action he has not alleged that he was ready and willing to perform at the time appointed. It is necessary for him to allege and prove this to succeed in his affirmative cause of action.

All that is alleged is that the plaintiff sold the property to somebody else on the 10th of December. Where a seller makes default the purchaser is not bound to wait forever to dispose of the property to another without giving the purchaser a cause of action.

The judgment should be affirmed, with costs.

Brady, J., concurs.


text:
    Abdel Wahed El Tazi, Resp’t, v. Abraham Stein, Imp’ld, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Discovery—Examination before trial.
    A proceeding for the examination of a defendant’s books and papers is not authorized under the provisions of the Code for the examination of a party before trial, as the Code and the rules of practice have specially prescribed other proceedings for the attainment of that end.
    Appeal from order denying motion to set aside an order forth e examination of the defendant before the trial, and directing the production by him, at the time fixed for the examination, of the defendant’s books of account, and all correspondence between them and Dombie & Levy and Edward Levy relating to the consignment of gums.

      J. Hampden Dougherty, for app’lt; Theodore H Silhman, for resp’t. .
   Daniels, J.

It is reasonably clear from the affidavits that the chief object for requiring the examination of the defendant as a witness before the trial is to oblige him to produce the books and correspondence of the defendants. It has been intimated in some-cases that this proceeding may be authorized under the provisions of the Code of Civil Procedure for the examination of a party at-the instance of his adversary before the trial. People v. Dyckman, 24 How., 222; McGuffin v. Dinsmore, 4 Abb. N. C., 241. But as the Code and the rules of practice have specially- prescribed other proceedings for the attainment of that end, these decisions were not made upon that degree of consideration which entitle them to be followed as authority. More especially also for the reason that the general term of this court and of the court of common pleas have decided directly the other way, and in conformity to the prescribed practice. De Bary v. Stanley, 5 Daly, 412; Hauseman v. Sterling, 61 Barb., 347.

So far as the application rests on the fact of the anticipated absence of the defendant when the trial shall be had, it is fully-met by his affidavit stating that he will not be absent, but will be personally present at the trial. In addition to that the affidavits are not so substantial in their statements as to support the order which has been made. The order should be reversed, with ten dollars costs and the disbursements, and the order for the examination should be vacated.

Van Brtjnt, P. J., and Brady, J., concur.


text:
    The People ex rel. Michael J. O’Connor, App’lt, v. Daniel E. Sickles, Sheriff, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Contempt—Commitment.
    A commitment for contempt in supplementary proceedings, after adjudging relator guilty of contempt and that such contempt impaired, etc., the rights or remedies of the plaintiff, imposed a fine and directed his commitment until it was paid; it also provided that if relator should appear on a day certain for examination, pay the plaintiff a certain sum as a fine for his misconduct and give a stipulation not to bring any action for damages because of such proceedings, he should be purged from contempt and discharged. Held, that even if the court had no power to insert the alternative proceedings in the order and commitment, it did the relator no harm, as he could relieve himself from imprisonment by complying with that portion of the order which the court was empowered to make.
    Appeal from order dismissing writs of habeas corpus and certiorari.

      David M. Newburger, for app’lt; J. M Weld, for resp’t
   Van Brunt, P. J.

The relator was adjudged guilty of contempt by the city court of Mew York in proceedings supplementary to execution. An order for commitment was duly made and entered on the 11th of July, 1890, and a warrant was subsequently issued and the relator arrested thereunder. Writs of habeas corpus and certiorari were obtained and it was claimed that the arrest under the order of commitment was unlawful and unauthorized because such order after having adjudged the defendant guilty of contempt and that such contempt had impaired, impeded and prejudiced the rights or remedies of the plaintiff, and after having imposed a fine, and after having provided for the payment of the costs and the sheriff’s fees, and after having ordered that the defendant stand committed to the common jail, there to remain charged upon said contempt until the said fine, together with the costs, expenses and sheriff’s fees therein be fully paid, unless he should be sooner discharged by the court, provided, that should the defendant appear on a day certain for the purpose of being examined, and pay to the plaintiff a certain sum as a fine for his misconduct, and should he also serve upon the plaintiff’s attorney a stipulation binding himself not to bring any action for damages against the plaintiff or his attorney because of any proceedings had or ordered therein, that “ thereupon said defendant should be deemed purged of said contempt, and discharged from the custody of the sheriff,” and his bond cancelled. The writs were dismissed, and from the order thereupon entered this appeal is taken.

The commitment complied with all the requirements in respect to such proceedings. The appellant was charged and punished for his failure to appear for examination, and the warrant specified the act which he was required to perform, and the sum to be paid to relieve himself from the contempt.

It is urged that neither the order nor the commitment give an-opportunity to the relator to be relieved of his contempt by the performance of the act for failure to do which he was committed; but that this liberty was restricted by requiring the stipulation not to sue.

It is clear that the court is not bound to allow a party who has willfully disobeyed its order for his examination to purge himself by submitting to examination. The court has a right to adjudicate as to what extent the contumacy of the judgment debtor has impaired, impeded and prejudiced the rights or remedies of the plaintiff and to impose a fine therefor and to direct that the judgment debtor stand committed until he pays the same. This the order and commitment in question did; and if the court should allow in the commitment the judgment debtor to purge his contempt by doing something else than this, if he complains, he need not take advantage of the privilege, such part of the order being mere surplusage. If the court had no power to insert it there, the commitment was complete without it. The judgment debtor could relieve himself from imprisonment by doing those things which the court required him to do, and which the court was empowered to require him to. do; and if he did not please to do that he need not accept the alternative; he could stay in jail.

We think, therefore, even if the court had no power to insert the alternativo proceeding in the order and commitment, it did the judgment debtor no harm, because he could relieve himself from imprisonment by complying with that portion of the order which the court was empowered to make.

The order should be affirmed, with ten dollars cost-?- and disbursements.

Brady and Daniels, JJ., concur.


author: Per Curiam.

text:
    Josephine F. Clason et al., Resp’ts, v. Elizabeth F. Baldwin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Appeal—Case.
    Where no case is filed the appeal will not be considered.
    Appeal from judgment entered on verdict and from order denying motion for new trial.
    The action was against, the executrix of a lessee’s assignee for rent of premises Ho. 42 Sheriff street, New York city, from July, 1881, to the commencement of the action, February, 1886.

      I. N. Miller, for app’lt; G. W. Stephens, for resp’ts.
   Per Curiam.

There being no case filed, this appeal will not be but the case will be stricken from the calendar.

"Van Brunt, P. J., Brady and Daniels, JJ., concur.


author: Yan Brunt, P. J.

text:
    In the Matter of the Arbitration between Filippo Di Carlo and The Williamsburgh City Fire Ins. Co.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Arbitration—Jurisdiction op court to set aside award.
    The court has no power to set aside on motion an award made on a submission to arbitration entered into by the parties without regard to the statute. If any injustice has been suffered by either party to such submission, such injustice must be redressed by action.
    Appeal from order denying motion to vacate an award of appraisers made pursuant to policies of insurance.

      R W. Todd, for app’lt; O. E. Bright, for resp’t
   Yan Brunt, P. J.

We do not see how the court can acquire jurisdiction to set aside this award upon motion. It is not the re-suit of an arbritration under the Code, and, therefore, the provisions of the Code were not applicable to it And it is only where it is expressly provided by statute that the court may acquire jurisdiction by motion that it can acquire jurisdiction otherwise than by action.

This arbitration not being a statutory arbitration which could possibly result in a judgment, as already suggested, the provisions of the Code as to motions in respect to the award do not apply. And if any injustice has been suffered upon the part of the moving party, such injustice must be redressed by action. This objection, however, lb does not appear was taken in the court below, and, therefore, we think that the order appealed from should be reversed, without costs, and the motion dismissed.

Beady and Daniels, JJ., concur.


text:
    Maria Mulock, App’lt, v. James A. Byrne, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Bankruptcy—Discharge of judgment—Fraud.
    Whatever fraud may have existed out of which the consideration of a promissory note arose, hy suing on the note simply the fraud was waived and only the debt remained, and this debt having become merged in judgment is within the operative force of a bankruptcy discharge.
    Appeal from order staying the enforcement of a judgment because of a bankruptcy discharge.

      A. 0. Fransioli, for app’lt ;• S. J. Oroohs, for resp’t
   Per Curiam.

It is claimed upon the part of the appellant, who is the assignee of the judgment owned by her, that the injunction should not be granted, upon the ground that the judgment was entered for money received by the defendant in a fiduciary capacity and embezzled by him.

It appears from the judgment roll that the judgment was entered upon a promissory note, and whatever may have been the consideration for this promissory note is entirely immaterial because if there had been any fraud out of which this consideration arose, by suing upon the note simply the fraud was waived and only the debt remained. And this debt having become merged in the judgment comes within the operative force of the bankruptcy discharge.

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

Van Bbunt, P. J., Beady and Daniels, JJ., concur.


text:
    Ambrose Thompson et al., App’lts, v. Albert C. Angell et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Ejectment—Estoppel.
    Plaintiff’s mother died possessed of certain land. Her husband subsequently married again, and he and the second wife, whose name was the same as that of plaintiff’s mother, conveyed said land to defendant’s grantor, who took in good faith and without suspicion of any fraud or claim on-the part of the first Mrs. Thompson’s heirs. Thompson with the proceeds of said sale purchased other land, which he afterward liad conveyed to the plaintiff Ambrose, who gave a declaration of trust which recited the foregoing facts and stated that he held the premises in trust for himself and his sisters. Thereafter he and his sisters conveyed the last mentioned premises and received the consideration therefor. There was evidence tending to prove that plaintiffs knew of the conveyance of their mother’s property as early as 1857. Held, that in the absence of any evidence that plaintiffs were ignorant of the facts, they were estopped from settingup title to the property conveyed to defendant’s grantor.
    Appeal from judgment entered upon verdict directed by the court and from order denying motion for new trial.

      James R. Cox, for app’lts; J. H. Choate, for resp’ts.
   Van Brunt, P. J.

This was an action of ejectment, brought to recover possession of the lot and premises known as Ho. 44 Hudson street, in the city of New York, from the defendant Angelí as tenant in possession and John H. Simpson as owner, from whom Angelí hired.

The plaintiffs claim to be entitled to possession as the heirs of Mary Evalina Thompson, the mother of some and the grandmother of others.

In October, 1835, the said Mary Evalina Thompson married one Ambrose W. Thompson, and in 1838 became seized of the property in question in her own right of inheritance.

In September, 1845, she died intestate, being then seized and possessed of the premises in question, leaving her surviving her ' husband, Ambrose W. Thompson, who died in May, 1862, and the plaintiffs, Ambrose Thompson, Emily Chase and Julia Geddings, her children, and another daughter, Margaret Aldis, who subsequently died intestate, leaving the plaintiff, Charles Ambrose Aldis, her only child and. heir-at-law. Ambrose W. Thompson, about two years after the death of his first wife, intermarried with Mary Ewing Richey, the second wife thus having the same baptismal name and the same middle initial as the deceased wife, both being Mary E. Thompson. In 1863, Thompson and wife sold the premises in question to John H. Glover and wife, Glover supposing that the Mary E. Thompson was the same Mary E. Thompson upon whom the title to these premises had devolved in 1837, and in the deed taken by Glover the devolution of the title upon Mary E. Thompson was recited. The Glovers improved the property in question, and in 1868 sold the same to one Smith, and Smith’s executors, in March, 1882, sold and conveyed the same to the defendant Simpson. All these conveyances were made in perfect good faith, and none of the various grantees had the slightest suspicion of the fraud which had been perpetrated, or of any defect in the title or of the claim on the part of the first Mrs. Thompson’s heirs. There was some evidence from which it might be inferred that Thompson used the money obtained by the original fraud to purchase a house on Madison avenue in this city. This, however, is challenged by. the plaintiff, but in view of the fact that no request was made to go to the jury upon any point, there being some evidence, although slight, from which this fact might be inferred, and that inference having been drawn by the court, it cannot be disturbed upon appeal. Thompson exchanged this house on Madison avenue for some property at Eye, then owned by John A. Dix, and procured a conveyance of the latter property to his son Ambrose, one of the plaintiffs herein, who was then under age, and he simultaneously with such conveyance executed a declaration reciting that the said Mary Evalina Thompson was in her lifetime and at the time of her death seized of the premises in question; that her husband had since her death caused said premises to be sold and conveyed, and had received, and has ever since held and controlled the purchase money thereof upon the distinct understanding, declaration and agreement that he held the same for the use and benefit of the children of the said Mary Evalina Thompson, to whom said property descended upon the death of their mother; that the father had thereafter become seized of the house and lot on Madison avenue, which he had lately sold and conveyed to John A. Dix for certain premises at Eye, and had caused the conveyance of the said last mentioned premises to be executed by said Dix and wife to the said Ambrose, the son; that the sole purpose of such conveyance was to protect and secure the children of said Ambrose and Mary Evalina Thompson in the use and enjoyment of an amount of property equal to that held by their mother, and to that end the said Ambrose should hold and take the said lots and premises in trust for himself and his sisters, and to carry such purposes into effect he had promised and agreed to hold same upon said trust and accepted said deed and took possession of said premises as such trustee. This declaration was recorded simultaneously with the Dix deed. Upon the exchange of the Madison avenue property for that at Eye a bond and mortgage for $15,000 was given by Ambrose Thompson to Dix on the Bye property. Thompson subsequently, in 1865, mortgaged the Eye property to Thaddeus Davids to secure $6,000. In 1867 Ambrose Thompson individually and as trustee for his sisters, and the said sisters themselves, conveyed the property for an expressed consideration of $60,000 to Benjamin W. Bonney, the assignee of a contract of sale thereof to one Joseph B. Stewart.

At the time of the execution of the deed to Dix all the children had become of age, and there is evidence tending to show that they had knowledge of the facts contained in the declaration of trust. The purchase money mortgage for $15,000 was foreclosed in 1868,' Ambrose Thompson and his sisters being made parties, which foreclosure resulted in a surplus. Out of this surplus Davids claimed to be paid the amount due on his mortgage, which claim was resisted by Bonney’s representatives,* he having died in the meantime, and it was adjudged that the grantee of Ambrose Thompson’s sisters was entitled to four-fifths of the surplus, who, through their conveyance to Bonney, owned four-fifths of the Eye property upon which four-fifths of the mortgage to Davids never attached.

There was evidence tending to show that as early as 1857 the children of Mary Evalina Thompson were aware of this conveyanee of the Hudson street property. The youngest of Mary Evalina Thompson’s children attained her majority in April, 1866, and the defendant Simpson acquired his title, as above stated, in 1882. It would thus appear that these children,- knowing their rights, permitted the property to be sold as though a title had been conveyed to the Glovers without, in any manner, informing the purchaser of any claim that they might have.

At the close of the trial each party asked for the direction of a verdict. The court directed a verdict in favor of the defendants, and from the judgment, and from an order denying motion for new trial, this appeal is taken.

It is urged upon behalf of the plaintiff that by the deed of Thompson and wife to Glover no greater interest passed than the grantors possessed, that is, the life estate of Ambrose W. Thompson as tenant by the curtesy.

That is undoubtedly true as an abstract proposition, and unless some of the other circumstances which have been above adverted to prevent the assertion of their title by the children of Mary Evalina Thompson, they would be entitled to recover in this action.

We think that there is a principle which precludes these children from asserting now their legal title: and that is that they have received and participated in the proceeds of this sale with knowledge of the fact of the sale, with knowledge of the fact that an attempt had been made by Thompson and his second wife to convey the title of these premises in Hudson street.

It is urged that there is no evidence to support this proposition and that at most all that the evidence tends to show is that they were aware that their father had sold his life estate. But we think that the evidence authorizes an additional inference; because we find from the testimony that the children were speaking of this substitution of property as far back as 1857, and we find in the declaration of trust a recital that Ambrose W. Thompson since the death of his wife had caused the said real estate and premises to be sold and conveyed, not his interest therein, not a life estate therein, but the premises to be sold and conveyed, and had received the purchase money upon the distinct understanding, declaration and agreement that he held the same for the uses and benefit of the children of his first wife. What interest or rights had the children of his first wife in what Thompson sold his tenancy by the curtesy for ?

It is apparent that the conveyance referred to in this declaration meant a conveyance of the whole fee, and any person reading that declaration must necessarily come to that conclusion. This declaration -of trust gave to these sisters a title which they conveyed and it is reasonable to assume that they knew from whence their interest came. In any event it called upon them to show their ignorance.

It is true that at the time of the trial three of these children were dead, but there were two living and able to testify, one of them certainly being a paralytic, but with nothing to show that she would not have made a competent witness; and under the peculiar circumstances of this case it seems to us that the rule that where a party may produce evidence throwing light upon a subject pertinent to the inquiry and fails to do so, it may be presumed that they did not because it would tend against them, applies.

The claim that the trust agreement conferred no rights upon the children until they surrendered and released their inheritance cannot prevail. They accepted the property conveyed by the trust deed and they conveyed that property and presumably received the consideration. It is idle to say that a party may receive the fruits of a transaction and not be bound by its conditions. Therefore these children having received the proceeds of this sale knowing that their father and stepmother had attempted to convey an absolute title, are now estopped under the plainest principle of the law governing estoppel from setting up a title to property the proceeds of which they have pocketed.

It mattei’S not what you call it, ratification, equitable estoppel, assumption of the covenant of warranty or anything else. The law will not permit the owner c:2 property to accept the proceeds of a sale of that property, even though made by a stranger, and then set up a title in himself; and this principle we think controls the disposition of this case.

The counsel calls attention to certain exceptions -to the admission of evidence, and urges that it was error because it was directly adapted and calculated to prejudice the appellant’s case and to enlist the sympathies of the jury, and to distract them from the true issues before them; a somewhat remarkable claim in view of the fact that he concedes upon the record that there was no question to be submitted to the jury.

. The counsel also in language little decorous criticises the citation by the learned judge below of cases in other states in regard to the effect. of this evidence. In view of this fact it is somewhat remarkable that he should cite in support of his proposition that as long as the statutes of this state stand Ambrose W. Thompson sold his life estate only, a Maryland case, and the only one cited on that particular point.

Upon the whole case we think that a correct conclusion was reached by the court below, and the judgment should be affirmed, with costs.

Brady and Daniels, JJ., concur.


text:
    The Rossie Iron Works, Resp’t, v. Charles S. Westbrook, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Corporations—Residence.
    The place of residence of a corporation is the county where its principal place of business is to be as stated in its certificate of incorporation, and where its annual reports are filed. The mere fact of its having places of business in other parts of the state in no way changes such designation or place of residence.
    2. Same—Venue. o
    Where such corporation sues, in another county, a defendant who resides in the county where its principal place of business is situated, the defendant is entitled to a change of venue.

      Appeal from order denying motion to change place of trial.

      Magrane Coox, for app’lt; W. P. Butler, for resp’t.
   Van Brunt, P. J.

This action was begun by the service' of a summons and complaint on the 7th of August, 1890. Within the time limited a notice of appearance and a notice of demand to the of trial was served

The defendant was a .resident of St. Lawrence county and the certificate of incorporation of the plaintiff was filed in said county; and in said certificate the name of the town and county in which the principal business of the company was to be carried on was stated to be the town of Eossie and county of St. Lawrence. It appeared that the land, furnaces and mines of the plaintiff were situate in the counties of St. Lawrence and Jefferson, and that a large part of the business of the company for many years had been carried on exclusively in said county, and that it had an office in New York county for the transaction of its financial business. Upon these facts the motion was denied, and from the order thereupon entered the appeal is taken.

We think the conclusion arrived at by the learned judge below was erroneous. The corporation had selected its place of residence. It had stated in its certificate of incorporation that its principal place of business was to be in the county of St. Lawrence, and its annual reports were there filed. It could not change this designation of residence except in the manner prescribed by-statute.

The mere fact of its having places of business in other parts of the state in no way changed the designation which had been made of its legal habitation and home.

We think, therefore, the motion should have been granted upon the ground that both parties to the action were residents of St Lawrence county and the order should be reversed, with ten dollars costs and disbursements, and the motion granted.

Daniels and Brady, JJ., concur.


text:
    Catherine L. Smith, Resp’t, v. Hugh McQuade, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Supplementary proceedings—Delivery to receiver.
    An order in supplementary proceedings directed the delivery to the receiver, at his office in this city, of certain furniture, wagons, etc., hay, oats and corn, which was at a place some distance from the city. The order did not specify the quantities of the hay, oats and corn. Held, that the order was too indefinite, and that the court had no power to compel the debtor to transport the property to the city, and, therefore, a delivery could not he compelled.
    Appeal from order directing a judgment debtor to deliver over certain property to the receiver.

      F. 0. Trautmann, for app’lt; S. Jones, for resp’t.
   Van Brunt, P. J.

A judgment having been obtained against the defendant, proceedings supplementary to execution were had, and the judgment debtor examined and a receiver of his property appointed. By such examination it is claimed that it appeared that at Cornwall, in the state of New York, the judgment debtor had certain property consisting of household furniture, wagons, harness, farming implements, hay, oats and corn, and by the order appealed from the judgment debtor was directed to deliver this property to the receiver, who had been appointed in the supplementary proceedings, at 20 Nassau street, in the city of New York. There was a particular enumeration of the wagons, harness and farming implements, but the number of tons of hay, bushels of oats and bushels of corn was left blank.

From this order the judgment debtor has appealed.

It is plain that the court had no power to compel the judgment debtor to transport this property from Cornwall to this city to be delivered to the receiver. If the receiver wanted it, he was compelled to go after it; and we rather think that he would have been somewhat embarrassed by receiving, at his office at No. 20 Nassau street, wagons, harness, farming implements, tons of hay, bushels -of oats, corn, etc. •

In fact the order was one impossible to be complied with.

There is another difficulty with the order, and that is, it was too indefinite. There was no specification of the number of tons of hay or bushels of corn or" of oats. Who was to determine when the debtor had delivered the bushels of corn, the bushels ■of oats, and the tons of hay provided for in the order ?

As already stated, the court had no power to compel the judgment debtor under pain of imprisonment to transport this property from Cornwall to the city of New York. At the best the receiver was bound to go to Cornwall and there receive the property. But it is doubtful, under the circumstances of this case, whether a delivery of the property could be compelled, and whether the receiver must not be remitted to proceedings to recover possession ■of the same.

The order should be reversed, with ten dollars costs and •disbursements.

Daniels and Beady, JJ., concur.


text:
    Catherine L. Smith, Resp’t, v. Hugh McQuade, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    ■Contempt—Proceedings eall with reversal on order disregarded.
    The order for disobeying which the contempt proceeding was initiated having been reversed, the proceeding falls with it.
    Appeal from order convicting the defendant of contempt in not obeying an order to deliver certain personal property to a re•ceiver appointed in supplementary proceedings.

      F. 0. Trautmann, for app’lt; B. Jones, for resp’t
   Van Brunt, P. J.

The order for the disobeying of which this ■contempt proceeding was initiated having been reversed, the proceeding must necessarily fall with it.

The order should be reversed, without costs, but with the disbursements of the appeal.

Daniels and Brady, JJ., concur.


text:
    Henry W. Allen, Resp’t, v. George T. Wharton, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Service—Fraud in procuring—Motion to vacate.
    Defendant was induced by a letter from plaintiff’s agent to visit this state for the purpose of aiding in settling a suit between plaintiff and a. corporation and with a view to his employment. The corporation had interposed an answer that plaintiff’s only contract was with defendant. After two interviews which failed to bring about a settlement, plaintiff’s agent, served on defendant a summons which had been prepared on the day of his arrival. Held, that the facts were sufficient to show that the invitation to defendant to visit the state was given for the purpose of effecting a, settlement, with his assistance, of the suit against the corporation, or to-commence this suit if that failed; that such service was a breach of confidence and should be set aside.
    Appeal from order denying motion to set aside the service of a summons.

      Cephas Brainard, Jr., for app’lt; Booraem, Hamilton & Beckettr for resp’t.
   Daniels, J.

The defendant has been and is engaged in business in the city of New Orleans, and a resident and citizen of the state of Louisiana. He came to this city at the suggestion of Heyman Levin, first contained in a letter written to him by Levin on the 3d of October, 1890. The object of the- suggested visit was to help to dispose of a suit pending in favor of the plaintiff against the Century Company. That company, by its amended answer, served on the 16th day of October, denied nearly all the-allegations of the complaint against it, and set up, by way of further defense, that the only contract the plaintiff had for the sale of the Century Dictionary, and concerning which the litigation had arisen, was with the defendant Levin was apparently acting in the interest of and in co-operation with the plaintiff, and he, on the 13th of October, telegraphed to the defendant, at New Orleans, stating that Allen believed, with the presence of the defendant here, arrangements could be made with little cost that would assure him their services and 1,000 orders by next June, and then added “ Come at once.” He replied by the same medium that he would meet Levin on the 17th, but being unable to leave as was expected, telegraphed him again that he would meet him on Monday morning, which he did, at the Bartholdi Hotel. That was. the 20th of October, but nothing resulted from that meeting, and another was appointed for the next morning. At that meeting on the 20th Levin swears that the impression was produced in his mind that the defendant had no intention of bringing about any settlement of the matters in question, and that his mission to New York was at the bidding of the Century Company. This last statement, however, was denied in the affidavit of the treasurer of the Century Company. On the next day Levin called again on the defendant, and no adjustment of the suit being made, he served the defendant with the summons, which was dated and issued on the day of the first meeting and after a conference between Levin and the plaintiff with one of their attorneys.

Both Levin and the plaintiff deny that it was intended to induce the defendant to visit this state to serve the summons upon him. But the facts themselves are at variance with these denials. If that had not been at least part of the design, it is not probable that the summons would have been prepared for service on the 20th and taken by Levin with him when he met the defendant "for the interview of the 21st of October, and at its close served the summons. It is probable that the invitation extended to the defendant to visit the state was prompted by a two-fold object; first to effect a settlement with his assistance of the suit against the Century Company, and secondly, if that could not be accomplished, then to commence this suit against him. The facts are such as to warrant only this conclusion, which is confirmed by what was said by Levin as he was leaving after making the service of the summons, and that was: I guess you will want to see Allen within a week ; he is at the Grand Union hotel now ; I do not know what his address will be then.” What was done and said disclose the strong probability that what did take place was planned after it became certain that the defendant would visit the city of New York, in compliance with the letter and telegram of Levin. The occurrences followed each other too closely to favor any'other probable theory. The defendant seems to have reached this city on the 18th ; the first interview, which was in the interest ■of the plaintiff, took place on the 20th, ending in an appointment for another on the 21st, and that, without anything special occurring, ended with the service of the summons issued on the day before. These facts, with the other which had previously come to the plaintiff’s knowledge, that the amended answer of the Century Company stated that the only contract was with the defendant, evince the strong probability to be that which has been ■stated, that it was designed to serve the summons on the defendant if he failed to bring about the desired settlement. And it is not inconsistent with it that the knowledge of what the answer contained was first received by the plaintiff on the 16th of October, which was two days before the defendant’s arrival. Good faith -on the part of the plaintiff required that he should have permitted the defendant again to leave this city without making service of the summons, when it became evident that no settlement would be effected through his agency. That was violated in making the service which was made upon him. It was a breach of the con■dence which had been inspired by the preceding correspondence. And the settled practice requires that the service of the summons, made as this was made, should not be permitted to stand. Wyckoff v. Packard, 20 Abb. N. C., 420; Dunham v. Cressy, 21 N. Y. State Rep., 266. No community can be more directly interested in the enforcement of this principle than that of this city, whose business is so intimately interwoven with the intercourse •and trade carried on between its people and those of other states and countries.

The order should be reversed, with ten dollars costs and disbursements, and the service of the summons set aside.

Van Brunt, P. J., and Brady, J., concur.


text:
    The People ex rel. John J. Finigan v. Henry D. Purroy et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Municipal corporations—Firemen—Dismissal.
    Where a fireman of New York city is served with charges and specification against him and directed to report at headquarters the next morning, and upon doing so proceeds with the trial of such charges without objection and is given every opportunity to prove his innocence, he cannot afterward he heard to complain that he had not sufficient notice of trial.
    Certiorari to review the dismissal of the relator from the office of fireman.

      A. S. Warner, for relator; W. L. Findlay, for resp’ts.
   Yan Brunt, P. J.

The point raised upon the argument is that the relator was given no notice of the trial of the charges upon which the judgment was rendered and had no opportunity to properly defend himself.

It is alleged that he was served with the charges and specifications and directed to report at headquarters at ten o’clock the next morning. He did so report, and, without any objection upon his part the trial in respect to the charges and specifications was-proceeded with, evidence was taken and the accused offered an opportunity to cross-examine the witnesses; and he was told that they were ready to hear anything he had to say. The answer of the accused was that he had nothing to say, only that he was unable to report for duty, that he was sick all the time, and that was all he had to say. At the close of the trial he was informed that, the commissioners would consider his case, and, if he had nothing further to say, his case was ended. He was further informed that, if he had anything else to say the commissioners would hear him, and if not, his case was closed; and he was thereupon dismissed.

We think it is too late now to raise the objection that no formal notice of the trial was ever served upon him. Whatever might have been the value of the point had the objection been taken before the trial was proceeded with, the relator having gone on with the trial without objection and being afforded every opportunity to prove his innocence of the charge, cannot now be heard to complain that he had not sufficient notice of trial before the commissioners.

The claim in his affidavit upon his application for the writ that he did not know he was being tried for the offense was entirely disproved by the record.

The proceedings should, therefore, be affirmed, with costs.

Brady and Daniels, JJ., concur.


text:
    John E. Huntoon, Resp’t, v. Marcus Jerkowski, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)
    Depositions—Examination before trial.
    In an action upon a check, which the answer alleges was given for a gaming debt, statements in an affidavit to'procure the examination of. de fendant before trial to the effect that such check was given on surrender of a note given for advances made for defendant at his request; that defendant took away the contracts and and memoranda showing their transactions; that plaintiff had no other account of them or of the advances and desired to examine defendant to prove those facts, and that defendant had special knowledge of some of the facts not possessed by any one else and that such testimony was material and necessary, sufficiently show the necessity of the examination of defendant to enable plaintiff to secure information which will lead to the production of the contracts and memoranda on the trial.
    Appeal from an order denying a motion to vacate an order directing an examination of the defendant as a witness before trial.

      Blumenstiel & Hirsch, for app’lt; S. A. Ten Eyck, for resp’t.
   Daniels, J.

The plaintiff’s cause of action is a check made by the defendant, to the order of, and delivered to the plaintiff, for the sum of $1,040. By the second defence contained in the answer, it is alleged that the check was given on account of a gambling and wager contract, and for an illegal consideration, to discharge that contract. The plaintiff has stated in his affidavit for the order directing the defendant to appear for examination that he was indebted to him upon a promissory note which was surrendered when the check was received. That he had advanced money for the defendant at his request and for his benefit, and the note was given for the amount owing for those advances and as the result of a settlement which then took place.

It is also added that the defendant then took away with him contracts and memoranda which were up to that time in the possession of the plaintiff, showing their transactions, and from which the amount owing had been ascertained. That he had no other account of them, or of his advances, and desired to examine the defendant to prove those facts, and that there was a good consideration for the check, and that it was not given for the cause alleged by him. It was also stated that the defendant had special knowledge of some of the facts not possessed by anyone else, and that the testimony was material and necessary for the plaintiff, who intended to use the examination upon the trial of the action.

These statements presented a case in which it is fairly evident that the examination of the defendant is necessary to obtain evidence for the plaintiff on the trial of the action. For without it the custodian of the contracts and memoranda mentioned may be wholly unknown to him, and they may be unattainable by him when the trial shall take place. He has the right to fortify himself against that uncertainty by obtaining from the defendant previous knowledge of them, and of the means which may become necessary for their production at the trial; without that he may fail in his action for the want of this evidence, when with the information he would otherwise be able to succeed. He is not entitled by this proceeding to secure their production on the examination, but he should be permitted to obtain the information which will lead to that production when they may be regularly required, as evidence in his behalf. They are as much his property as they are the property of the defendant, and he should be allowed to avail himself of the knowledge the defendant has concerning them, before the exigencies of the trial shall be brought before him.

.Beyond that the facts which may be known to the defendant as to the advances of money, finally forming the consideration of the check, are equally if not still more important by way of evidence for the plaintiff. And he may be well allowed to obtain that proof in this manner, and thereby enabled to meet the defense alleged if the facts will warrant that result.

The right of the plaintiff to this examination is quite consistent with all that has been said in the cases of Williams v. Foster, 16 Civil Pro., 429, and Williams v. Folsom, 52 Hun, 68; 22 N. Y. State Rep., 507. Special circumstances appeared in support of the order, disclosing the necessity of the examination before the trial. And it should be affirmed, with ten dollars costs and the disbursements.

Yak Brunt, P. J., and Brady, J., concur.


text:
    Daniel E. Sickles, Sheriff, App’lt, v. John C. Wilmerding et al., Resp’ts. David A. Sullivan, Rec’r, Resp’t, v. John C. Wilmerding et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Interpleader.
    The plaintiff in the first action sues to recover the proceeds of a sale of goods made hy defendants as commission merchants, upon which he had levied under executions against the owners thereof. The second action is brought to recover the same proceeds by the receiver of said owners. Held, that both actions were upon contract, and the only controversy arose between the several plaintiffs, and hence an order of interpleader was proper.
    2. Same.
    It is error, however, to make the plaintiff in the action first commenced a defendant in the second action.
    Appeal by Daniel E. Sickles, the plaintiff in the first entitled action, from an order made in the second action interpleading and substituting him as defendant therein in the place and stead of the defendants therein, and directing the deposit of the amount in controversy with the clerk of the court, and discharging the defendants from all liability on making such deposit
    Sickles, as sheriff, held certain executions against the firm of Rosenberg & Baker, which had consigned goods to defendants for sale on commission. He made a levy on such goods, which were afterwards sold by defendants. Subsequent to said sale Sullivan was appointed receiver of Rosenberg & Baker in supplementary proceedings. Thereafter the sheriff commenced an action to recover the proceeds of such sale, less defendants’ commissions, expenses and advances, and-four days later the receiver commenced Bis action to recover the same amount
    On motion of the defendants, made in the second action, the order in question was made, interpleading and substituting the sheriff as defendant in that action.

      D. P. Hays, for app’lt; W. Mitchell and F. B. Kellogg, for resp’t.
   Per Curiam.

It seems to us beyond question that both the-actions which are brought against the defendants Wilmerding, Morris & Mitchell come within the definition of actions upon contract, and the right to recover depends upon priority of liens, and the only controversy arises between Sickles, as sheriff, and Sullivan as receiver, in to such priority.

This being the case the defendants have no interest in the controversy, and should be relieved upon paying the subject matter of the controversy.

We think, however, that the- court below erred in making the . sheriff defendant in the receiver’s suit. The sheriff’s action was first commenced, and the receiver having subsequently commenced an action, if any interpleader was made, he should be brought in as defendant in the sheriff’s suit.

We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements to abide the final event of the action, and an order of interpleader entered in the action of the sheriff bringing in the receiver as defendant, and discharging Wilmerding, Morris & Mitchell upon payment of the money into court

Van Brunt, P. J., Brady and Daniels, JJ., concur.


author: Van Brunt, P, J.

text:
    Edward Dart, App’lt, v. Herman C. Kudlich, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    ' 1. Malicious prosecution—New trial.
    Plaintiff having recovered, in an action for malicious prosecution on a charge of making false entries in the books of a corporation, by his own testimony that such entries covered payments made for the company to one Y. for commissions at the latter’s request, a motion for a new trial was made on the ground of newly discovered evidence, being that of V. contradicting that of plaintiff. Held, that the motion was properly granted ; that such evidence was important for defendant, and bore directly on the issue.
    2. Same—Laches.
    An objection to such motion on the ground of laches is not well taken where the motion is made within a reasonable time after the proposed case is made.
    Appeal from order granting a new trial upon the ground of newly discovered evidence.
    Action for malicious prosecution on a charge of having made false entries in the books of a corporation and appropriating the monies so entered. On the trial plaintiff testified that such entries covered commissions paid to one Yogt for the company, at Yogt’s request, and that he had stated the agreement as to such commissions in the presence of Yogt and defendant, and a verdict was rendered in his favor. Thereafter the motion in question was made on a deposition by Yogt containing the new evidence, which contradicted plaintiff’s testimony.

      E. P. Johnson, for app’lt; Lewis Sanders, for resp’t
   Van Brunt, P, J.

This appeal comes before us under different circumstances from those which would surround it had not the motion for a new trial been heard and granted by the learned judge who presided at the trial at circuit. He necessarily was familiar with all the proceedings of the trial before the jury, and -could best judge as to what the probable effect of the testimony of Vogt would be in case it was produced before the jury, and he having come to the conclusion that the testimony bore directly upon the issue presented to the jury, and might change the result theretofore reached by them, should have great weight with the appellate court. He was familiar with the whole atmosphere of the case and was better able to form a judgment upon the question than this court can, having simply the bare record before it Hnless, therefore, there has been pointed out some error committed by the learned judge which appears with reasonable certainty, the order should be affirmed.

We have examined the case for the purpose of seeing whether or not the learned judge might have been mistaken in assuming that this evidence bore directly upon the issue. We think that he was entirely correct and that it was important evidence for the defendant, which, in view of the fact of the failure to deny the same upon the part of the plaintiff, would undoubtedly have great weight with the jury.

The objection raised in respect to laches does not seem to be well taken in view of the fact that the motion was made within reasonable time after the proposed case had been made.

Hnder all the circumstances of the case we think, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

The time to comply with the order appealed from is extended until ten days after notice of the entry of the order of affirmance.

Brady and Daniels, JJ., concur.


text:
    John Parker et al., Ex’rs, App’lts, v. Maria Linden et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Motions—Notice.
    After the decision of an action at special term, the court may, upon a less notice than eight days, settle the form of judgment and direct the entry thereof.
    3. Judgment—Alteration.
    Under pretext of an application at the foot of a decree, no substantial alteration of the original judgment cau he permitted, nor can a judgment he entered relating to a subject matter which might have been a subject of investigation on the trial
    Appeal from order of special term, amending an equity judgment and ordering trustees to surrender a trust estate, and from order denying, with costs, a motion to vacate such order for irregularity.
    The motion for the first order was made on a notice of two days.

      I. N. Miller, for app’lts; A. J. Skinner, for resp’ts.
   Van Brunt, P. J.

The papers presented upon this appeal are so meagre that it is with great difficulty that the court has been able to get at the precise position of the parties in respect to this motion.

There is no question that the court, after the decision of an action at special term, may, upon a less notice than eight days,-settle the form of the judgment and direct the entry thereof, and, therefore, the order appealed from cannot be reversed upon the ground of irregularity.

But we think that, under the pretext of an application at the foot of the decree, no such substantial alteration of the original judgment can be permitted, nor can a judgment be entered relating to a subject matter which might have been a subject of investigation upon the trial, and which, if the rights of the parties demanded, should then have been considered. It is only as to matters arising subsequent to the judgment, for the purpose of carrying into effect the judgment already entered, that an application at the foot of the decree can be permitted. In the case at bar, without any proof and without any trial, a substantial right of the plaintiffs is adjudicated upon and determined adversely to them. This, we think, the court had no power to do.

The order amending the judgment should, therefore, be reversed and the application for such relief denied, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.


text:
    Ludwig Rothschild et al., Resp’ts, v. Henrietta R. Mooney, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Attachment—Affidavit.
    The use of the disjunctive “or” instead of the conjuction “and” in an affidavit for an attachment on the ground that defendant has disposed and is about to dispose of her property, is a mere irregularity and not fatal to the attachment.

      2. Same.
    An affidavit stating that defendant, after repeated demands for payment, although admitting her ability, refused to pay and refused to give information as to her business; and that, although she denied having made sales to her relatives, her employees were seen taking goods in a suspicious manner from the store and leaving them with such relatives, makes a prima fade case for an attachment, and the same should not be set aside on a motion made simply on the papers on which it was granted.
    Appeal from order denying motion to vacate a warrant of attachment The following is the opinion at special term:
    O’Brien, J. Upon this motion to vacate the warrant of attachment, two grounds are relied upon. First, the alleged irregularity of the warrant of attachment. The warrant recites as a ground for attachment that the defendant has disposed, or is about to dispose of, property, etc. Upon the affidavits, if the conjunction “ and ” were used, instead of the disjunctive “ or,” the warrant would properly recite the true grounds of the attachment. The

      affidavits tend to show that the defendant has disposed of her property, and one portion of the recital in the warrant, therefore, truly states the ground. This, however, is but a mere irregularity, which can be cured, and is not fatal to the attachment. The second ground relied upon is that the affidavits used in support of the attachment are insufficient
    In determining this question, the defendant having moved upon the papers alone upon which the warrant was granted, the statements in the affidavits are, for the purposes of the motion, to be taken as true, and if they establish & prima facie case, sufficient to support the warrant in the absence of any satisfactory answer or explanation, it should not be set. aside. Here the facts show that, after repeated-demands for the payment of the claim, the defendant, while admitting her ability, refused to pay. She, also, through her agents, admitted the embarrassment of the firm, and, upon being asked for particulars as to the business, refused all information as to stock on hand, and generally as to the assets of the business. The facts, however, which have the most direct bearing upon the right of the plaintiffs to this attachment result from the statements in the affidavits that, although the defendant stated that no sales were made to D. Mooney and A. Wuldman, the former the brother-in-law of the defendant, and the latter the brother-in-law of her husband, both of whom were engaged in the same line of business, yet it is made to appear that persons in the employ of defendant were seen taking goods in a suspicious manner from the store of the defendant and leaving them with the brothers-in-law above named. Upon the facts as presented, I am of the opinion, reached after some hesitation, that the plaintiffs make out a prima fade case, and the motion to vacate the attachment should be denied.

      F. Bien, for app’lt; W. F. Severance, for resp’ts.
   Brady, J.

An examination of this record leads without hesitation to the conclusion that the learned justice in the court below correctly disposed of the motion, and, therefore, the order is affirmed, with ten dollars costs and disbursements, upon his opinion.

Van Brunt, P. J., and Daniels, J., concur.