author: BEEKMAN, J.

text:
    Mitchell, Plaintiff, v. Piqua Club Association et al., Defendants.

      (Supreme Court, New York Special Term,

      Filed November, 1895.)

    1. Attorney and client—Satisfaction of judgment.
    Where the authority of an attorney has been revoked after rendition of judgment, a satisfaction by him is not conclusive against the person entitled to hold the judgment in respect to a person who had actual notice of the revocation before a payment on the judgment was made, or a purchase of property bound thereby was effected.
    2. Snme—Vacating satisfaction.
    Where, after notice of the attorney’s lien for services, a judgment is paid by a judgment debtor to the judgment creditor, wiio is insolvent, and satisfaction is entered, the attorney is entitled to have the satisfaction vacated.

      Motion by George A. Baker to cancel satisfactions of judgments on which he had a lien for services.
    George A. Baker for the motion.
   BEEKMAN, J.

—It seems to me quite plain that the attorneys of record who assumed to collect the judgments and to execute satisfaction pieces therefor had no authority to do so. After the judgments were recovered, there was a consent given by them for the substitution of Mr. Baker as attorney for the judgment crediitors, upon which an order to that effect was entered. I assumed that these consents were also signed by the judgment creditors themselves, in accordance with the practice in such cases. While it may be doubted whether any order of substitution was necessary, in view of the fact that the relation of attorney and client to a large extent ceases upon the entry of the final judgment, the action which was thus taken certainly operated to revoke the authority which-the attorneys of record theretofore possessed to satisfy the judgments upon payment under section 1260 of the Code of Civil Procedure. That section, while conferring such power for a period •of two years after rendition of judgment, expressly provides that, where the authority has been revoked, a satisfaction by the attorney is not conclusive against the person entitled to enforce the judgment in respect to a person who had actual notice of the revocation before a payment on the judgment was made, or a purchase of property bound thereby was affected. In the cases before me the receiver had actual notice of the substitution, and therefore of the revocation of the authority of the former attorneys of record to receive the money and to satisfy the judgments. It follows, therefore, that the motion made to cancel the satisfactions of these judgments should be granted, unless the difference between the amount which the substituted attorney has actually received from the former attorneys of record and the amount due on the judgments, irrespective of such payments, is paid to the present attorney within a time which will be fixed in the order. In respect to the judgments rendered in the cases in which Mr. Baker was attorney of record, it is also clear that his lien for his fees has been disregarded. He gave notice of such lien to the receiver, and was therefore entitled to have it respected. In place •of this the judgments in question were, without his knowledge, paid to the judgment creditor, who has satisfied the same. As the evidence shows that the latter is insolvent, the right of the attorney to have the satisfactions set aside seems clear, under the authority of the case of Commercial Telegram Co. v. Smith, 57 Hun, 176 ; 32 St. Rep. 445. It will, therefore, be so ordered. If there is any question in respect to the amount of the attorney’s lien, it may be settled by a reference. It is proper to say that no imputation of bad faith rests upon the receiver, but that his action in these matters was the result of inadvertence.

Motion granted, with $10 costs.


source: Caselaw Access Project

license: Public Domain

text:
    People ex rel. Pond, Pl’ff, v. Tamsen, as Sheriff, Def’t.

      (Supreme Court, New York Special Term,

      Filed December, 1895.)

      1. Contempt—Attachment—Recitals.
    A warrant of attachment, issued against a person charged with contempt of court, need not recite the contempt or any of the proceedings on which the warrant rests.
    2. Same.
    In such case, the omission of such recitals, if a defect, is not jurisdictional, and the order punishing for contempt will not be disturbing in another court on habeas corpus.

    3. Same—Judgment bneorceable by execution.
    An objection that a judgment is enforceable by execution and that its disobedience cannot be punishment as contempt," should be addressed to the court in which the proceeding was had, and cannot be raised on habeas corpus in another court.
    Habeas corpus to procure the discharge of relator, who was committed for contempt of court.
    John Fennel, for relator ; John R. Abney and Jacob H. Shaffer, opposed.
   BEEKMAN, J.

—The court of common pleas had jurisdiction to issue the warrant of attachment under which the relator is held to answer for an alleged contempt. The objection to the form of the attachment, that it does not recite the contempt, or any of the proceedings upon, which the warrant rests, is untenable. The relator, it must be assumed, for it is not denied, was served with a copy of the affidavit upon which the warrant was issued, and he was, therefore, sufficiently apprised of the nature of the charge made against him. The cases cited by counsel for the relator are not applicable. They relate to final commitments. Seaman v. Duryea, 11 N. Y. 324 ; Dunford v. Weaver, 84 id. 452. The warrant in question is merely process by which the relator is brought into court to answer a charge. He is then fully appraised of the charge, and admitted to make a defense if he has any. Code Civ. Proc. § 2280. There is nothing in the Code which requires any recitals in the warrant, nor is it understood to-be the practice to insert them in such cases. At best, it was not a jurisdictional defect; and for that reason, if there were no other, the court will refuse to review the mandate of another court of general jurisdiction on habeas corpus. Park v. Park, 80 N. Y. 156.

6A further objection, made by the relator, is that the judgment he is accused of disobeying can be enforced by execution, and that, under subdivision 3 of section 14 of the Code, he cannot, therefore, be held to answer for a contempt. This should be addressed to the court of common pleas. The answer, however, is complete. Code Civil Proc. § 1241, subd. 4, provides that a. person disobeying a judgment of the court which requires the payment of money into court, or to an officer -of the court, except where it is due upon contract, express or implied, or as damages for nonperformance of a contract, may be punished for a contempt.' The case before me comes within the section, and is not one of the excepted cases. Gildersleeve v. Lester, 68 Hun, 535 52 St. Rep. 560 ; affirmed, 139 N. Y. 608 ; 54 St. Rep. 929.

The writ of habeas corpus is therefore dismissed, and the relator remanded to the custody of the sheriff


author: RAMSEY, J.

text:
    Achilles E. Davis, App’lt, v. Richard K. Fox, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 7, 1896.)

    Judgment—Default—Libel.
    Where a summons was served by publication, no judgment could be entered by default against defendant in an action for libel, before the amendment of 1893 to § 635 of the Code.
    Appeal from an order, vacating a judgment entered against defendant by default after service of summons by publication.
    W. A. Purrington, for app’lt; David May, for resp’t.
   RAMSEY, J.

—The action was brought to recover damages for a libel published by defendant against the plaintiff. The publication took place on the 4th day of March, 1893, and the statute of limitations would have run against the cause of action on the 4th day of March, 1895. On the 15th day of February, 1895, a summons in the action was delivered to the sheriff of Hew York county to serve upon defendant, who resided in that county. The sheriff was unable to find the defendant in the county, so as to serve the process upon him, and so returned; and thereupon, upon due proof, a justice of this court made an order for service of the summons by publication, pursuant to subdivision 6, § 438, Code Civ. Proc. The defendant did not appear in the action, and in due time his default was taken, the damages were assessed, and judgment for a substantial amount was entered against him, which he moved to vacate for the reason that, the action being for a libel, no attachment could be issued, and therefore no judgment could be entered on any other than personal service. A libel is an injury to the person. Code Civ. Proc. § 3343, subd. 9. The judgment in this action was entered on the 17th day of July, 1895. The Code forbids the entry of a judgment for a sum of money only, in any action, except one of those specified in 'section 635. Code Civ. Proc. § 1217. At that time an action for an injury to the person'was not mentioned in sectoin 635. Therefore, although service by publication could be made against a resident defendant in an action for libel, under circumstances such as existed here, no judgment could be entered against him by default. It was a plain defect in the law, which has since been cured. Whether the law goes merely to the remedy, and therefore the change in it which took effect on the 1st day of September, 1895, is now available to the plaintiff, is a point on which we express no opinion. It is sufficient to say that, under the law as it stood in July, there was no authority to enter a judgment upon default in appearing, in actions of this kind, upon service by publication only, against a resident, where no attachment was or could be granted; and for that reason the order must be affirmed, with $10 costs and disbursements. ■ .

All concur.


author: DAVY, J.

text:
    Frank Pawlick, Pl’ff, v. Homestead Loan Association, Def’t.

      (Supreme Court, Monroe Special Term,

      Filed January, 1896.)

    1. Building associations—Withdrawal of members.
    Under a provision in the articles of association that, when applications for withdrawal shall exceed the weekly receipts, such applications shall be numbered in the order in which they are received and be"paid in the same order as fast as the receipts of the association shall peimit, the withdrawing members shall be paid in accordance with the order of their notice of withdrawal, and the association cannot prefer one to another in an arbitrary manner.
    3. Same—Action by withdrawing member.
    A withdrawing member cannot bring his action to recover the amount due him and take judgment against the association where there is no money In the treasury legally applicable to the payment of his claim. •
    3. Same.
    An action prematurely brought against such association by a withdrawing member cannot be sustained on the theory that an execution may be stayed and, therefore, no prejudice will result.
    4. Same—Estoppel.
    A member who enjoys and reaps a pecuniary benefit of membership in a corporation, under its constitution and by laws, is estopped from disputing their validity when it is sought to he enforced against; him.
    5. Same—Articles of association—Amendment.
    Where the articles of a building association provide for an amendment, a member is bound by an amendment regularly adopted, though he had no notice thereof.
    Jacob Spahn, for pl’ff; George W. Thomas and John Desmond, for def’t.
   DAVY, J.

—The plaintiff who was a stockholder and member of the Homestead Loan Association, the defendant herein, filed, on the 20th -day of June, 1893, notice of withdrawal. When this notice was filed., there was credited to him upon the books of the association, for weekly payments upon his stock, the sum, of $742, and this action is brought to recover that amount. The defendant contends that by the terms of the articles of association the plaintiff’s claim was not due at the time of the commencement of this action, which is the principal point in controversy.

It appears that the defendant was organized under Chapter 122, Laws 1851, and the several acts amendatory thereof and supplementary thereto. By the provisions of said act, any number of persons not less than nine can associate and form an incorporated company, for the purpose of accumulating a fund from the subscriptions of its members, for the purchase of real estate, and the erection of buildings or the making of other improvements upon lands, or to pay off incumberances thereon, by loaning to its members the requisite amount of money from the funds of the society upon good security, and also for the purpose of accumulating a fund, to be returned to its members who do not obtain advances, when the funds of such an association shall amount to a certain sum per share, to be specified in the articles of association. Membership is acquired by becoming the owner of stock and subscribing to the articles of association. Section 2 of article 14 of the association provides that members may withdraw the whole or part of their deposits by giving not less than one week’s notice in writing to the association, and the liability to pay further dues, and the right to dividends, shall cease with the filing of said notice: Provided, however, that, should the application for loans and withdrawals at any time exceed the weekly receipts, such application shall be numbered in the order in which they are received, and paid in the same order, as fast as the receipts of the association will permit. The plaintiff, who subscribed to the articles of association, thereby agreed to its terms and conditions. One of those conditions was that, if he withdrew from the association, his notice or application of withdrawal should be numbered in the order in which it was received, and paid in the same order as fast as the receipts of the association would permit. The reasonable construction to be placed upon this section is that, if the available receipts of the association are not sufficient at any given time to pay all the depositors who had given notice of withdrawal, they are to be paid in accordance with the order of their notices, so that the society should not be at liberty to prefer one depositor to another in an arbitrary way, as they might do without some such restriction. It appears from the evidence that, at the time the plaintiff filed his notice of withdrawal, the aggregate amount of prior unpaid withdrawals was $106,279.47, and. that the total amount of receipts, from the time the plaintiff filed his withdrawal down to the; time this action was commenced, was $61,324.53, leaving $44,954.94-to be colled in before the defendant could pay the plaintiff’s claim according to the agreement expressed in the articles of association.

The plaintiff also contends that he had a right to bring this action and take judgment against the association, even if there were no money in the treasury legally applicable to the payment of his claim, and in support of his contention he cites the case of Association v. Silverman, 85 Pa. St. 394, as an authority. It is true that the court there, held that a member who had served notice of withdrawal could maintain an action to recover the amount of his deposit, before the funds provided for by the by-laws of the association had been collected. It appears, however, from an examination of that case, that there was no provision in the by-laws for priority of notice, as there is under the rules of the association under consideration. It is also claimed by the plaintiff that the case of Englehardt v. Association 25 N. Y. Supp. 835, is controlling in this case. The views expressed in the prevailing opinion of the court are not in accord with my views, and it is contrary to the reasoning of Mr. Justice Dwight in the case of Wolfe v. Conkey A. S., A. & L. Association, 58 St. Rep. 656 ; 75 Hun, 201. The learned judge says that “the articles of association of every organization for mutual benefit, like the defendant,,, constitute the contract between the association and the individual member, and no provision of such contract is subject to be abrogated, or its obligation impaired, by any act of the board of directors which is not expressly empowered.” End. Bldg. Ass’ns, § 110, lays down the rule that, as soon as a member has perfected his right*as a withdrawing stockholder against the association, by giving the proper notice of withdrawal and conformig to all the legal requirements in the premises, he becomes a creditor of it to-the amount coming to him under the rules and statutes, payable out of the available funds in the order in which his withdrawal was perfected.

It is also claimed that, under the rule laid down in O’Rourke v. Association, 93 Pa. St. 308, no injury can result to the other members of the association, even if a judgment is obtained; that the court has the power to stay the execution of the judgment until the association has collected the necessary funds. It seems to me that there is an inconsistency in permitting the plaintiff to-maintain his action to recover a judgment, and then denying him the right of immediate execution. This course would certainly be contrary to the well-settled rules of practice in this state. There no claim that the association has discontinued its business, or that it is insolvent, or that there is any bad faith on the part of the directors in the mangement of the affairs of the association, so that those questions are not before me for consideration. I know of no way, therefore, in which a member of this association can enforce the collection of his claim sooner than the statute or rules of the organizaron will permit. It would completely wreck any association of-this kind if all of its members who chose to withdraw from the organization could sue and recover judgments before there were any funds in the treasury for paying the claims, as contemplated by the articles of association. Such a condition of' things would necessarily result in the appointment of a reciyer to wind up the business of the association, which would defeat the very object of the statute which was enacted to aid the laboring classes in acquiring homes from their accumulated earnings. The plaintiff was a creditor in a qualified sense only,—not like a general creditor, who could enforce his claim at any time, regardless of the consequences, to the association. The amount deposited to his credit was not his earnings alone, but it was the profits made upon the money contributed to the association by all its members. His relation, therefore, to the defendant and its member was in the nature of a partnership. When the plaintiff subscribed to the articles, he thereby agreed to their terms and conditions. One of those conditions was. that, if he withdrew from the association, his notice or application of withdrawal should be numbered in the order in which it was received, and paid in the same order, as fast as the receipts of the association would permit. His right, therefore, to bring an action to recover the amount credited to him as a depositor is not absolute until there is money in the treasury available for the purpose. The rules of equity will not permit him to depart from his contract obligations and take advantage of the other members of the association in the collection of his claim. It was held in Association v. Kerr (Tex. Sup.) 13 S. W. 1020, that a judgment could not be recovered against the association by a withdrawing member, in the absence of an allegation in the complaint, and proof by him, that there were sufficient funds in the treasury to meet his claim, in accordance with the by-laws. In Heinbokel v. Association, 58 Minn. 340, it was held that the right to withdraw from a loan association, and to receive back what had been paid into the treasury by a member of the association, existed solely by virtue of the by-laws or statute. Brett v. Society (1894) 1 Q. B. 367. While the rule which these courts have adopted is in conflict with the authorites cited by the learned counsel for the plaintiff, yet I think it rests upon much sounder reason. The learned counsel for the plaintiff also contends that, inasmuch as the secretary and treasurer of the association paid to the plaintiff $128, and agreed to pay him the balance of his deposit when called for, that constituted a waiver of the contract, and therefore the whole amount of his claim became due. As I have already indicated, the plaintiff subscribed to the articles of association, and became bound by their provisions. He was thereby charged with notice of the limitations and powers of the defendant and its officers, and that the secretary and treasurer had no authority to disregard its articles in the payment of withdrawal loans. First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278. It was held in Alexander v. Cauldwell, 83 N. Y. 480, that one who deals with a corporation is chargeable with notice of the purpose for which it was formed, and one who deals with its officers and agents is bound to know their powers and the extent of their authority. Thete is an entire adsence of evidence that it was the custom and practice of the defendant to pay withdrawals contrary to its rules. The plaintiff knew, or, at least, was bound to know, that the articles which he signed constituted a contract between him and the association and its individual members, and that none of its provisions could be disregarded by any of its officers.

The plaintiff also contends that, after be became a member of the association, section 2 of article 14 was amended, by adding thereto that “all withdrawals except in full should be paid from deposits on stock made prior to the beginning of the quarter in which notice of withdrawal is filed,” and that this amendment was made without his knowledge or consent, and therefore^ he is not bound by it. The plaintiff, when he joined the association, assented to all lawful amendments to the articles which might thereafter be legally enacted. Section 2 of the Laws of 1851 provides that the articles of building associations organized under said act shall provide the manner of altering or amending the articles of association, and such other provision as shall be necessary for the convenient and effectual transaction of thebusiness thereof, provided that the same shall not in any respect conflict with the constitution or laws of this state. Section 1 of article 18 provides that the defendant’s articles of association may be amended by giving proper notice to the members, providing also, that the proposed amendments shall be approved by a majority of the board of directors and ratified by a vote of two-thirds of its members at a regular meeting thereof. It appears, therefore, that the members of the association had the right to amend its articles, subject, however, to certain limitations mentioned in the act under which the defendant was incorporated. It has been held that a private corporation- has no right to repeal a by-law so as to impair rights that have become vested by virtue of the by-laws, although the same is reserved by charter to alter, amend or repeal its by-laws. Kent v. Mining Co., 78 N. Y. 159. End. Bldg. Ass’ns, § 278. It seems to me that this amendment does not violate any rule of law, or infringe upon the plaintiff’s vested rights, secured by contract with the defendant. There was no evidence introduced upon the trial showing, or even tending to show, that this amendment was in the least prejudicial to the plaintiff, and there is no contention but what it was regularly and legally adopted. Assuming that the plaintiff was not bound by the amendment, I do not see how he can maintain this action, even under the articles that were in force at the time he became a member of the association, for the reason that there was no money in the treasury at the time this action was commenced applicable to the payment of his claim. The evidence fails to show that the plaintiff was prejudiced in any respect by this amendment. It is a rule that one who enjoys and reaps a pecuniary benefit of membership in a corporation, under its constitution and by-laws, is estopped from disputing their validity when they are sought to be enforced against him. I am of the opinion, that this action was prematurely brought, and the complaint, therefore, must be dismissed, but without costs.


author: INGRAHAM, J.

text:
    Mewbury H. Frost, Resp’t, v. Akron Iron Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb'ry 7, 1896.)

    1. Landlord and tenant—Holding over.
    Where a tenant holds over after the expiration ofi his term, the law will imply an agreement to hold for a year upon the terms of the prior lease.
    2. Same.
    But the possession of the tenant after the termination of the lease, to entitle him to he considered as holding over, must be a continuance of the possession acquired under the lease, and, if it appears that the possession as tenant was surrendered to the landlord and that for any interval of time, however short, the tenant ceases to he in possession as tenant, his resuming possession under any other agreement will not he such a possession as will impose upon him the liability of a tenant holding over after the expiration of his term.

      8. Same—Sübbbndeb.
    In the absence from his office of the real estate broker who has charge of the rental of the property, the tenant may surrender possession to the the person in charge of the office.
    4. Same—Pboof.
    The evidence, in this case, was held sufficient to render it a question for the jury whether the tenant held over under the lease.
    Appeal from a judgment for plaintiff, entered on a verdict under direction of court.
    W. F. Scott, for app’lt; C. W. West, for resp’t.
   INGRAHAM, J.

—The defendant in this action .was, prior to the 1st day of May, 1892, in possession of a store, No. 122 Liberty street, in the city of New York, under a lease executed by plaintiff’s grantor, which lease was dated January 14, 1889, ami the term demised was “ three years and four months from the 1st of January, 1889, at the yearly rent of $1,800.” On February 17, 1892, tlie plaintiff purchased the property from the lessor, and took an assignment of the lease. Mr. George R. Reed, a real estate broker of New York, was the agent of the plaintiff. Some time prior to the 1st day of May, 1892, Reed told the defendant’s manager that the rent would be $4,000 per annum, if defendant remained after the 1st day of May, and that the plaintiff would not let the premises for less ; and a clerk in Reed’s office told the defendant’s manager that the rent would be $4,000 per annum if they remained. The defendant expressly refused to accede to this demand, hired other premises, and in April commenced to move. Daring this period there were negotiations between the parties as to the purchase by the plaintiff of some of the property that had been placed on the demised premises by the defendant, which finally resulted in an order by the plaintiff to buy certain of the property in the building for $300, which offer was accepted on April 6, 1892. May 1, 1892, fell on Sunday, and on Monday morning a small engine, a pump, and some shelving and racks that were fixed to the building bjr the defendant had not been moved, together with a considerable amount of scrap iron and other articles. About ten o’clock on the morning of May 2d, the defendant’s employes having left the building, except that a few workmen were engaged in moving, the defendant’s manager, Mr. Hollaway, took the keys of the premises, and went up to Mr. Reed’s office. It appeared that since the purchase of the property by the plaintiff, Reed acted as agent of the plaintiff in regard to the property, all negotiations and transactions in relation to the property having been conducted by Reed on behalf of the plaintiff. Hollaway, on arriving at Reed’s office, presented his card, and asked for an interview with Reed. Reed was absent, and he was referred to a Mr. Cox. Somebody in the office said Cox was the proper man to see. Mr. Cox was in the office, and Hollaway said to him that he had succeeded in removing his stock, but had been unable to clean up all the scraps left there, or to take and carry out all the tools and racks which were left together; and then he said, “ Here is the key,” and handed it to Mr. Cox. Mr. Cox took the key, and Hollaway then said: “ I surrender all the stuff that was in there, the remaining scraps, but that I should be very glad to clean them out at any time, if so desired; and if he (Cox) would grant me a few hours, I would clean them all out in an entirely satisfactory manner to* him.” Cox in reply said to Hollaway : All right, Mr. Hollaway, you may take the key. You may have three or four days, if yon choose, and in the meantime I will ask of you a similar concession. I am not able now, owing to my bvsiness, to check over the articles which Mr. Reed had bought of you, and would like from you a week’s time.” To which Hollaway replied: “That is entirely satisfactory, Mr. Cox. You may have a week, or as much time as you choose.” After that Hollaway took back the key, and his men continued working, removing this stuff, until noon, when the men went to dinner. Shortly after, when the men returned from dinner, some time between one and two o’clock, Hollaway received a note from Reed, in which Reed said: “ I assume that by retaining possession of the store and basement at 122 Liberty street you renew your lease for a year at $4,000.” To that the defendant at once replied, stating that he di'd not desire to occupy the store, calling bis attention to the surrender of the keys in the morning, with the request for time to take down the rack, shelving, etc., the acquiescence of Mr. Reed’s representative in that request, and said that if the promise was withdrawn they would return the keys at once. Subsequently, about three o’clock on the same day, Hollaway went to Reed’s office, and said he was somewhat at a loss to understand the position taken by Reed after his interview in the morning. To that Reed said that the defendant must pay $4,000, as they were in there. In reply to that Hollaway said that he would immediately close the place up, and bring the keys over to him. Hollaway immediately closed the place up, and went out, and left it, locked the doors, took the keys,,and went home, leaving the engine and other property on the premises. What was left there were the racks, a certain quantity of refuse scrap, the engine, one pump, and the material that had been sold to the plaintiff. The value altogether, with the exception of what had been sold to the plaintiff, was from $75 to $100. This property was left in the building until subsequently removed by the defendant, under the stipulation between the parties that such removal should* not affect the rights of the other party. On the afternoon of May 2d the store was locked up and on May 3d, about nine o’clock in the morning, Hollaway called at Reed’s office, .when Reed again 'insisted upon his being responsible for the $4,000 rent for .the next year, when on that morning Hollaway gave Reed the key, and told him that he surrendered all the property in the place. Hollaway testified that when he gave the key to Cox he told him that he surrendered everything to him in the place at the time, and that what he said on the 3d, when he gave the key to Reed, was a repetition of what was said- on the 2d; and that he then delivered the key to Reed, who took it, and retained it in his possession. The keys were never returned to the defendant. The defendant was never again in possession of the premises, except that several months afterwards, under the agreement between the parties before referred to, he removed súme of the articles left there on May 2d. This is a statement of the facts as testified to by the defendant’s witnesses, and which, for the purpose of this appeal, we must assume to be true. There was, however, no material contradiction, except as to the delivery of the key to Cox, and what happened at that interview. At the close of the case the defendant requested the coart to submit to the jury—First, the question of the authority of Cox; second, whether there was in fact a holding over by the defendant; and, third, whether' the plaintiff did not extend the time for the defendant to vacate the premises; and to go to the jury upon all the issues in the case,—which motion was denied. The court then directed a verdict for the plaintiff for the rent of the premises for the sum of $4,000, the rent for the whole year, deducting the amount which, under the stipulation, the defendant was not to be liable for.

The lease which defendant held was for three years and four months from the 1st day of January, 1889, which excluded the first day of'the term and included the last, and would give the defendant to and including the' 1st day of May. As that day fell on Sunday, he would have to and including the following Monday, the 2d day of May. 12 Am. & Eng. Enc. Law, p. 981, and cases cited in note 3. It appears, however, to be a custom in the city of Hew York that, where a lease expires on the 1st day of May, the possession of the demised premises shall be surrendered at noon of that day. Assuming, therefore, that the plaintiff was entitled to possession of the premises at ‘12 o’clock noon on May 2d, the first material question in the case is as to whether or not the defendant held over and remained in possession of the premises, with the assent of the owner, after the expiration of the term. The rale is well settled in this state that where a tenant holds over after the expiration of his term the law will imply an agreement to hold for a year upon the terms of the prior lease. See Schuyler v. Smith, 51 N. Y. 300. Holding over is defined to be the act of keeping possession of the premises (Bouv. Law Dict.), and the question is whether or not the tenant remained in possession of the property after the expiration of his term. We do not consider that the period that the defendant held possession of the premises is material. The principle is that a tenant holds over the term at his peril, and the owner of the premises may treat him as a trespasser or as a tenant for another year upon the terms of the prior lease, in the absence of notice to the contrary. Schuyler v. Smith, supra. Bat the burden of proof is upon the landlord to establish the fact that the tenant did hold over, namely, did remain in possession of the demised premises, after the termination of the term demised, so that he became a trespasser, if the landlord elected to consider him as such ; but the possession of the tenant after the termination of the lease, to entitle him to be considered as holding over, must be a continuance of the possession of the tenant acquired under the lease, and if it appears that the possession as tenant was surrendered to the landlord, and that for any interval of time, however short, the tenant ceased to be in possession as tenant, his-resuming possession under-any other agreement would not be such a possession as would impose upon him the liability imposed upon a tenant holding over after the expiration of his term. It is the possession that a tenant acquires under a lease, and retains after the expiration of the term demised, that imposes this obligation upon the tenant As was said by the court in Schuyler v. Smith, supra: The law regards the possession “of real estate as a great advantage in any dispute in reference to it. And hence a tenant who has obtained possession of real estate cannot dispute the title of his landlord; and, having obtained possession from his landlord, he should not be permitted to hold over, deny his tenancy, and convert himself, as his option, into a wrongdoer." Reed was the agent of the plaintiff, who had, under the direction of the plaintiff, taken charge of all the negotiations as to the renewal of the lease; and he had full power to do what, in his judgment, was best for the plaintiff’s interest. There was no-dispute but that any arrangement that Reed would make would be binding upon the plaintiff. Reed was a real-estate broker and agent, who had an office for the transaction of business, having, clerks and employees there to attend to his business in his absence. When plaintiff went to Reed’s office about 10 o’clock on Monday morning, we think he was right in assuming that (at any rate, so far as making a surrender of the possession of the premises) he had a right to deal with the person in charge of Reed’s office as one authorized to accept the possession of the premises. He was not bound to find the paintiff to surrender to him the premises personally, and we think that the surrender of the premises to-a person in charge of Reed’s office—one of his employees there—• would have been a sufficient surrender. The court below seems to have held that there was no evidence that would justify the'jury in finding that Oox had authority to make a new lease of the premises to the plaintiff. Assuming that that is so, it is clear that a surrender of the premises to the person in charge of Reed’s office, with the subsequent abandonment thereof by the defendant, would have terminated the defendant’s possession under the lease. He swears that he went to Reed’s office fot that purpose, taking with him the key of the premises ; that he stated to Cox that he had been unable to clean up all the scraps that were left upon the premises, and take and carry out all the wooden racks that were bound together. “However, I said to him, ‘Here is the key,’ and he took it. I then said to him that I surrendered all the stuff that was in there, the remaining scraps, but 1 should be very glad to clean them out at any time, if so desired, and if he would grant me a few hours, I would clean them all out in an entirely satisfactory manner to him.” If the transaction had closed here, and Hollaway had left, leaving the keys in Cox’s possession, and abandoning the premises, with whatever personal property that was upon the premises, there would be no doubt but that there would have been a surrender of the premises, and the plaintiff could not have been said to be'holding over because of the fact that some property that he had placed in the premises—a part of which, at any rate, had become annexed to the freehold—had not been removed. There is no evidence to show that at this time the defendant or any of its employes, was in actual possession of the leasehold premises. Assuming the defendant’s testimony to be true, it was clearly the intention of Hollaway to surrender all possession under the lease, to give up to the lessor all property that he had left upon the premises, and to deliver the absolute possession of the property to the landlord; and that position was acquiesced in by Cox, who accepted such possession.

The subsequent agreement between Cox and Hollaway was a mere license to re-enter the premises for the purpose of cleaning up, and removing what property remained. If Cox had no authority to give such permission or grant such a license, it might be that the defendant or Hollaway would have been a trespasser, and liable to the plaintiff for any damages sustained in consequence of the trespass, but there was evidence from which the jury could find that such new occupation was not under the lease, but under a new' agreement ■ between Cox and the defendant, which, although not binding upon the plaintiff, was nevertheless not a holding over under the lease. After this new agreement, Hollaway swore that Cox returned the keys to him, said to him that it was satisfactory, and that he (Hollaway) could have two or three days if he chose. Hollaway took the .keys, and went back to work. All this was about ten o’clock. Cox was called as a witness, and swore that he was employed as a clerk for Reed ; was a bookkeeper, and engaged in looking after the details of renting one or two office buildings down town ; that if a tenant said he would take any premises at the rent fixed by Reed, he had authority to close the lease with him. He further testified that Hollaway came to the office with a bunch of keys, and said that he wanted to give him (Cox) the keys of the store, 122 Liberty street, “asthey were all out, or virtually would be in an hour or two,’’ but that he (Hollaway) would like to retain one for the purpose of clearing up; that he did not want to leave the place in a dirty condition. Cox told Hollaway that he did not suppose that there would be any objection, but that he had better keep the keys, and return them right away ; that Hollaway said he would need the keys for an. hour or two; that he had seen Hollaway before, and knew that he had a dispute with Reed as to the future rental of the premises.

Taking the story of these two witnesses together, it is clear that it was a question for the jury to say whether or not the defendant held over under the lease, or whether there was a surrender of the possession under the lease, and a license given by Cox, acting for Reed, the plaintiff’s agent, to retake possession of the plaintiff’s premises for the purpose of clearing up ; and that the possession of the defendant, if possession there was, subsequent to that time, was under such permission given by Cox, and the trial judge should have submitted to the jury the question as to whether or not the defendant continued in the possession acquired under the ¡ease.

We are asked to hold that the former decision of the general term of the superior court is binding upon this court as a decision of the law of this case, and that it was there held that the plaintiff was entitled to a verdict. • We do not so understand the effect of the judgment of the general term ordering a new trial. A verdict had been directed for the defendant, and all that can be said to have been decided by the court was that that direction was improper and should be reversed. We do not pass upon that question here, but simply hold that there was a question for the jury, and that the request of the defendant to submit to the jury the question as to whether or not the defendant held over under the lease should have been granted, and that the refusal of the court to submit that question to the jury was-error. The judgmentmust therefore be reversed, and a new trial granted, with costs to the appellant to abide the event. .

All concur.


author: O’BRIEN, J.

text:
    Hecla Powder Company, App’lt, v. Sigua Iron Company, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. New trial—Newly-discovered evidence.
    Affidavits for a new trial on the ground of newly-discovered evidence, which neither state that the affiants know, of their own knowledge, the matters therein set forth, or that they will he willing to appear and swear to such facts, are insufficient.
    2. Same—Insufficient.
    Where the newly-discovered evidence, if it is competent, will in no way change the result upon the principal issues, it is insufficient to support an order for a new trial.
    Appeal from an order denying a motion for a new trial on the ground of newly-discovered evidence.
    Alexander T. Goodwin, for app'lt; Frederic J. Swift, for resp’t.
   O’BRIEN, J.

—The action was brought to recover on an acceptance of $950, which defendant gave Jor Hecla powder bought from plaintiff and to be delivered to defendant at Santiago de Cuba. The defendant denied that the powder had been delivered, and set up a counterclaim based upon the plaintiff’s attempt and failure to make delivery as agreed, whereby it suffered damage, as alleged, in the sum of $3,472.49, by way of a fine imposed upon it by the Spanish government, who seized the powder upon its arrival, and put it in the government magazine as contraband. The issues joined by the pleadings were tried, and a jury rendered a verdict in favor of the defendant upon the counterclaim. From the judgment thereupon entered the plaintiff appealed, and a decision was rendered affirming the judgment. The plaintiff now asks for a new trial, • claiming that it has discovered evidence of an actual delivery to and a receipt by the defendant's agents of said powder, and in support of the motion submits the affidavits of Jose Benitz and Antonio Biby, and a copy of a letter from the principal commander of artillery ati Santiago to the present United States consul at that place.

We think the affidavits of Benitz and Biby are insufficient, because neither states that the affiant knows, of his own knowledge, that the lighter which took the powder from the vessel at the port of Santiago belonged to the defendant or its agents, and whether or not they would be willing to appear and swear to any such facts is not stated. They allege, upon information and belief, that the powder was discharged in a Sigua Company’s lighter, and taken to the government magazine, “ as is usual and customary with all importations here of such nature.” They do not show that the powder was delivered to or received by Brooks & Go., the defendant’s agents; and the statement that the powder was taken to the government magazine unmolested by the Spanish government is contradicted by the testimony of one of the witnesses? upon the trial, who averred that “ there was a military officer of the government and a customhouse officer on the lighter to see that the powder got to the magazine.” It may be that the lighters which took the powder from the vessel to the magazine belonged to the defendant’s agents; but, unless they were entitled to receive and take it, unmolested by the government, it was not a delivery pursuant to the contract between the parties. The letter of the principal commander of artillery, even if we overlook the fact that it was not an official document or transcript, and was not sworn to or certified, merely gives, on information, such facts as he learned about the powder. It is made clear that, by order, his superior appointed a military officer to make an inspection of the powder, and to that end it was taken to the Punta Blanca powder magazine, where it remained for nine months after the time it should have been delivered to defendant’s agents-; and the request of the latter for delivery of the powder “ was refused, because they had imported the same into the island without competent authorization.” This letter tends to show that the powder was actually taken by the authorities at the time it arrived in the harbor; and, as this was the very question involved upon the trial, instead of militating against, it rather strengthens, the conclusion reached by the jury upon the disputed evidence,—that there was no delivery to the defendant, but that the attempt to deliver it resulted in its being placed in the government magazine, and the imposition of a fine upon the defendant’s agents. As said in the opinion upon the former appeal, while there was some doubt about everything in regard to just how the government took possession, whether upon the lighters of the defendant or upon government lighters, two salient facts clearly appeared,—“ one, that the plaintiff entered into a contract to deliver the powder in Santiago de Cuba; and the other, that it was seized, when it arrived there, by the Spanish authorities, and the defendants agents fined the amount which is the basis of the counterclaim. It was not seriously disputed or brought in question as to the amount of the. fine paid by the defendant and found by the jury; and, the parties not having litigated that below, it is too late to urge it upon the appeal.’’

We do not think that the newly-discovered evidence, if it was competent, would in any way change the result upon these two principal questions, upon which the liability of the plaintiff for failure to. deliver must rest. As pointed out, they rather strengthen the view that the powder was not delivered to the defendant for some nine months after its arrival; and there is not the slightest intimation that, as the result of the attempt to introduce it, the defendant’s agents were not fined the amount which they alleged, and proved upon the trial, they were obliged to pay to the government. The statement in the letter of the military commander that the defendant’s agents, some nine months afterwards, obtained the powder, is fully explained by the affidavit-in answer, wherein it appears that the agents of the defendant were compelled by the Cuban authorities to take the powder, under a threat of a penalty of from $200 to $250 a month, for storage, if they failed to do so, and that, to avoid paying this amount, they received the powder, which was then found to be dampened and utterly unfit for use ; said uselessness having been caused by the corrosion of the cans, and the admission of dampness thereby to the power, while in the possession of the authorities. It can hardly be claimed that a delivery, under such circumstances and at such a time, of power in that condition was any such delivery as was contemplated by the agreement between the parties.

Apart, therefore, from the question as to laches in making the application, and the errors upon unimportant details, into which some of the plaintiff’s affiants have fallen, and for the reason, appearing, that such evidence would not be likely to change the result reached upon the trial, we think the motion was properly denied below, and that the order should be affirmed, with $10 costs and. disbursements.

All concur.


author: HATCH. J.

text:
    Patrick Murphy, Resp't, v. The Weidmann Cooperage Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    1. Negligence—What is.
    The driver of a truck is required to exercise that degree of diligence and care which is expected of a person of ordinary prudence and capacity under like circumstances.
    2. Damages—Excessive.
    A verdict warranted by the evidence, which awards damages for personal injuries, will not be disturbed as excessive, where the court cannot say, as matter of law, that the amount discredits the verdict, upon any legal aspect of the case.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      S. T. Maddox, for app’lt; Jerry A. Wernberg, for resp’t.
   HATCH. J.

—The evidence on the part of plaintiff tended to establish, and the jury were authorized to find, that the plaintiff, axbout 7 o’clock on the morning of November 11, 1892, was lawfully upon North Tenth street, in the city of Brooklyn, in company with an Italian, who was leading a horse which he was about to attach to a cart used by a contractor in cleaning the streets of the city. Plaintiff was a foreman in the employ of the contract- or, and accompanied the Italian for the purpose of instructing the latter in and about the performance of his duties. In walking upon the street, going east, plaintiff was to the left of the Italian, and nearer the center of the street, upon its right side. The street was 30 feet wide, unpaved, without curbing or gutter. It was a light, clear morning, with nothing to obstruct the vision. Under these circumstances, defendant’s agent approached from behind, driving a horse attached to a truck the hubs of which projected beyond the rim of the wheel six inches. It made no noise upon the dirt, and otherwise gave no warning of its approach. Plaintiff was not aware of its presence until, as he testifies, the hub of the forward wheel struck him, knocked him to the ground, bruised him upon the hip, and the hind wheel ran over his arm, producing a fracture. There was some dispute in the testimony whether plaintiff was walking or standing still at the time he was struck, and whether he was hit by the forward or hind wheel. Defendant claimed that he was bent over at the time the front wheel passed him, and that he was not struck by it, but that, after this had passed he raised up, changed his position, and brought himself in contact with the wheel. This question was faiily submitted to the jury, and they have found against defendant’s contention in this regard.

The evidence clearly warranted a finding of negligence upon defendant's part. The street was clear; the morning light. The ■driver saw plaintiff and the Italian upon the street. His horse was under perfect control, and it was clearly within his power to easily avoid coming in contact with plaintiff’s person, whether he was at the cart or walking towards it. The driver was required to -exercise that degree of diligence and care which would be expected of a person of ordinal prudence and capacity under like circumstances. " We think the jury were authorized to find that the driver failed in this measure of care, and was consequently guilty of negligence; and upon the testimony, we think the jury were authorized in finding plaintiff omitted no duty which he owed in the premises, and that his cause of action was made out.

The amount of the verdict is quite liberal, eensidering the character of the injury and the effects which flowed thereform. We should have been better satisfied if the amount awarded had been less, but, upon the testimony, the jury were warranted in reaching the conclusion they did; and we cannot say, as matter of law, that the amount discredits the verdict, upon any legal aspect of the case.

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

All concur.


author: PATTERSON, J.

text:
    Richard Hoar, Resp’t, v. Alexander McNeice, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 21, 1896.)

    Appeal—Conflicting evidence.
    A judgment, rendered upon conflicting evidence respecting both the terms of a contract and the adequate performance of the work, will not be disturbed on appeal.
    Appeal from a judgment in' favor of plaintiff.
    N. J. O’Connell, for app’lt, James Kearney, for resp’t.
   PATTERSON, J.

—This is an action to foreclose a mechanic’s lien filed against property on the corner Lenox avenue and 118th street in the city of Hew York, belonging to the defendant. The plaintiff was employed to make excavations for a building to be erected on the premises, and to furnish materials necessary in the course of the work. It is alleged in the complaint that the work was duly performed, was of the reasonable value of $662.15, that $376.75 was paid by the defendant on account, leaving an unpaid balance of $285.40, for which the lien was filed. The defendant denies the indebtedness, and claims that the plaintiff was employed to excavate all ground.necessary to be excavated to a depth of five feet below the street curb, and to remove and take away all dirt, earth, stone, and rubbish, and to accept $250 in full as his compensation. An additional contract is also pleaded by the defendant, by which be alleges the plaintiff agreed to make the excavation a foot deeper at an agreed price of $186, making a total on both contracts of $436. It is then averred in the answer that the plaintiff has not completed his contract, in that he has failed to remove certain earth and boulders, and has not excavated to the extent he was employed to do. The issues were referred to a referee, who has reported in the plaintiff’s favor for substantially the whole amount claimed, and from the judgment entered on the report this appeal is taken;

There is a conflict of evidence respecting both the terms of the contract and the adequate performance of the work. The defendant swears that he employed the plaintiff to make all necessary excavation up to the stoop line, including that necessary for areas, and that he pointed out to the plaintiff where the line was ; that the' plaintiff agreed" to do this for $250. The plaintiff, on the contrary, insisted that he was first employed to excavate a cellar of fixed' dimensions, sixty-five by eighty-five, feet, and five feet below the curb line; that he excavated - seventy-five feet by eighty, and then the defendant wanted to go a foot deeper, and to have a trench dug, and the area way; and that the defendant agreed to pay additional fixed prices therefor, viz, $25 for the trench and eighty-five cents for 237 yards of area excavation, amounting to $201.45; and the increased depth inside the building line cost $163.20. There was a small item also of $5 for a sewer pipe furnished by the plaintiff. There is no doubt on the evidence but that the plaintiff was employed to do all the work testified to by him, and, the referee having, on conflicting testimony, reported in his favor, we-do not find such preponderance of proof against the findings of fact as to the agreement under which the work was done as would justify a reversal of the judgment. The only claim of nonperformance is a failure to remove rubbish atid stone after the excavation was made, but on this issue also the testimony was in honfiiot, and we see no just reason for departing from the conclusion reached by the referee.

Judgment affirmed, with costs.

All concur.


author: BARRETT, J.

text:
    Bernard Feldman, Resp’t, v. Frederick J. McGraw et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 21, 1896.)

    1. Usury—Substituted note.
    Where a security tainted with usury is given up and a new security substituted, the substituted security is void.
    3. Pleading—Usury.
    Under a plea of usury in an action on a note, usury in notes for which it was substituted may be shown. 1
    3. Trial—Offer of evidence.
    A party, to avail himself of error in the exclusion of a question on the ground that it is not within the pleadings, need make no offer of evidence orfollow the question with others of the same purport. u
    4. Same.
    Where a question is excluded because the fact sought to be proved is no6 pleaded, counsel need not multiply questions on the same head, nor incumber the record with useless offers.
    Appeal from a judgment in favor of plaintiff,
    W. Tazewell Fox, for app’lts; Ten Eyck & Remington, for resp’t.
   BARRETT, J.

—This was an action upon a promissory note for $650. The defense was usury, the defendants averring that the lender exacted over twenty-one per cent, upon the loan represented by the note, and that this exaction amounted to $138. It appeared upon the trial that the lender, Edward Brennan, actually paid McG-raw in cash but $37 upon the transaction in question. The rest of the $650 was made up by his returning to McG-raw the latter’s obligations, as follows:. Two notes, one for $290, and one for $240; and two checks, one for $33, and one for $50. The $290 note was payable five days after the 21st of September, 1894. The $240 note was payable three days after the 18th of the same month. The $33 check was dated on the 19th of the same month, and the $50 check was dated on the very day when the $650 note was given (September 24th), and was handed by MoGraw to the lender for the express purpose of enabling the latter to return it to him immediately, as a part of the consideration of the loan. The defendant MeGraw claimed that the lender discounted the $650 note for this fifty dollar, plus the usury on the other notes. He testified to the reservation of the fifty dollars, and then attempted to show usury in these other notes. He commenced by asking the question whether the lender had discounted the $290 note prior to the 24th of September, and what was the amount in cash he gave for it. This was objected to generally, the plaintiff’s counsel specifying no ground. The learned trial judge sustained the objection, stating that he did so upon the ground that the fact sought to be elicited had not been pleaded, and the defendants excepted to the ruling. We think the court erred in excluding the question. The defendants had a right to .show that the $650 note was not only tainted with usurious reservation of fifty dollars, but that it was a substitute for other notes ■which were also usurious. Where a security tainted with usury is given up, and a new security substituted, the substituted security is void. Treadwell v. Archer, 76 N. Y. 196; Stanley v. Whitney, 47 Barb. 588. The plaintiff did not object to the question upon the ground that usury in the original notes had not been pleaded. His objection, as we have seen, was general. We think, however, that the plea was sufficient to entitled the defendants to prove the facts. They were not required to plead their evidence. The testimony, if allowed, might have shown the fact of a usurious agreement precisely as pleaded. The plea was that the lender reserved an unlawful percentage, amounting to $138; that is ■eighty-eight dollars beyond the fifty dollars directly taken. If the defendants had proved usury in the other transactions to the ■extent of eighty-eight dollars they would have proved the usury us averred. They were no more bound to state the circumstance attending the reservation of the eighty-eight dollars than the fact the fifty dollars was reserved by the check device. The particulars ■of the reservation of the entire sum of $138 were matter of evience. We think, therefore, that the defendants should have been .allowed to prove the entire transaction.

The respondent also claims that the defendants should have followed the question which was excluded by an offer to prove usury in the original notes. But they were not bound to make an offer. Nor was it necessary, in view of the ground upon which the learned judge placed his ruling, to follow up the excluded question with other questions tending in the same direction. Where the question is excluded because the fact sought to be proved is not pleaded, counsel surely need not multiply questions on the same head, nor incumber the record with useless offers.

The judgment should be reversed, and a new trial ordered, with ■costs to the appellants to abide the event. All concur.


author: FOLLETT, J.

text:
    Mary E. Hoefler, Resp’t, v. Mary R. Hoefler, App’lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed February 7, 1896.)

    1. Evidence—Alimony.
    Where an action is brought against the mother of plaintiff’s husband to recover the amount of alimony the husband had been ordered to pay to plaintiff pending a divorce suit, on the theory that defendant advised and aided, him to leave the state with intent to evade the order, such fact must be determined by what\\she did after the order for alimony was granted.
    3. Same.
    In such case, it is not competent to prove the quarrels between the husband and wife which did not occur in the defendant’s presence, and in which she.took no part, and of many of which she was not shown to have any knowledge.
    Appeal from a judgment in favor of plaintiff.
    June 20, 1888, the plaintiff and John 0. Hoefler intermarried, and thereafter they lived together at Geneva, JST. Y., as husband and wife, until February 22,1892. During this time two children were born of the marriage, —Raymond, February 22, 1890; and Josephine E., January, 1892. On the 22d of February, 1892, the plaintiff left her husband, and returned to her parents, at Rochester, N. Y. On the 27th of the same month, she began an action for a separation, on the ground of cruel and inhuman treatment. March 19, 1892, the defendant answered in the action; and April 25, 1892, an order was duly granted and entered, requiring the defendant to pay twenty-five dollars counsel fee and disbursements in the action, and four dollars per week for plaintiff’s support during its pendency. The sum awarded for counsel fee was paid, and also the alimony to September 1, 1892, since which date no alimony has been paid, though the action is still pending. December 25, 1892, the husband left this state, and removed to the state of Nebraska, where he has since remained. December 7, 1892, this action was begum, and upon the trial the plaintiff had a verdict for the amount of alimony, — $264, — which became due be-ween September 1, 1892, and December 7, 1892.
    Thomas Raines, for app’lt; William E. Edmonds, for resp’t.
   FOLLETT, J.

— The precise ground on which the pleader sought to found this action is not clearly set forth in the complaint; and it is easier to say what causes of action are not alleged than to ascertain the particular cause of action sought to be alleged. It is clear that the action was not brought on the theory that prior to December 25, 1892, the defendant alienated the affections of the plaintiff’s husband, the defendant’s son, and so induced the separation, and deprived the plaintiff and her children' of the support at his hands to which they were entitled. The case was not tried upon that theory; but it was tried and submitted to the jury on the theory that in case the defendant advised and aided the plaintiff’s husband to leave the state, and go beyond the jurisdiction of the court, with intent to deprive the plaintiff of the support provided by the order granting alimony, the defendant would be liable for the damages, which were, as the jury were instructed, in case they found the defendant liable, the amount due under the order at the date when the action was begun, for which amount a verdict was recovered. The evidence given by and in behalf of the plaintiff in support of this issue was slight; but it was, in the opinion of the learned trial justice, sufficient to make out a prima facie case. The defendant, in her testimony, denied that she advised or aided her son to leave the state, and testified that she was not aware of his intention to go. Some evidence was introduced which corroborated her testimony. Upon the trial, the plaintiff was permitted, over the objection and exception of the defendant, to show the unhappy relations which existed between the plaintiff and her husband prior to their separation. It was shown that he was frequently intoxicated, and that, when in that condition, he abused and ill treated the plaintiff. The plaintiff and her husband and the defendant lived in the same village, and the two families were in frequent communication. The plaintiff was allowed to give evidence of various acts of ill treatment on the part of her husband with which her mother had no connection, and of which she had no knowledge. We think the court erred in receiving-evidence of the conduct of her husband prior to February 22, 1892, for it was not relevent to the issue whether this defendant advised him to leave the state in Dececmber, 1892 for the purpose of depriving the plaintiff of alimony. The tendency of this evidence was to excite the sympathy of the jury in favor of the plaintiff, and thus prejudice the rights of the defendant, and especially in a case where the issue of fact was so doubtful. If the defendant can be held liable in this action, it is only on the ground that she induced and aided her son to leave the state, with the intent to evade the order, which must be determined by what she did after the order of alimony was granted. Assuming' that it was competent to show the existence prior to February 22, 1892, of ill will on the part of defendant towards the plaintiff, for the purpose of convincing the jury that it was probable that the defendant did the acts alleged, it was not competent to prove the quarrels between the husband and wife which did not occur in the defendant’s presence, and in which she took no part, and of many of which she was not shown to have any knowledge. The judgment should be reversed, and a new trial granted, with costs to abide the event.

Judgment reversed, and a new trial granted, with costs to abide the event. All concur.


author: RUMSEY, J.

text:
    Mary Finn, App’lt, v. James J. Lally et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb'ry 7, 1896.)

    1. Mortgage—Foreclosure—Jurisdiction.
    Where the affidavit upon which an order to publish against the mort- , gagor, in action to foreclose a mortgage, is made, does not give the county" judge jurisdiction, the proceeding for that reason is entirely void against the mortgagor.
    8, Same—Redemption.
    Where, in such case, the mortgagee buys in the premises upon the foreclosure sale and takes a deed from the sheriff, it effects no change in the relation between himself and the mortgagor.
    3. Same.
    Where the mortgagee purchaser, in such case, conveys the premises to another, the deed, under the statute, operates to pass to the grantee only the interest which the mortgagee had in the premises at the time the deed was made and no more.
    4. Same.
    A conveyance from the mortgagor in such case, conveys the equity of redemption, which has never been foreclosed, and vests the grantee with the title to the property precisely as the mortgagor had it.
    Same.
    In such case, as against the right of redemption, the statute of limitations does not begin to run until the mortgagee has entered into possession, and the action is not barred until the mortgagee or those claiming under him have continuously maintained an adverse possession of the mortgaged premises for twenty years, after a breach of the condition of the mortgage.
    (8. Same—Adverse possession.
    Where, in such case, in an action to redeem from a mortgage land purchased by the mortgagee at a sale in a void foreclosure proceeding, it appeared that the mortgagee did not take actual possession of the land, that it was unoccupied and uninclosed, and remained so until the title of the mortgagee had been conveyed by mesne conveyances to defendant’s grantor who entered on and began to improve the land, there was, until such entry, no possession adverse to the mortgagor and those claiming under him, within the provisions of §370 of the Code, and the claim that the cause of action is barred by the statute of limitations is not well founded.
    t?. Same—Statute oe limitations.
    Where the statute of limitations is in question the material matter is the possession, and whether that possession has been taken under a claim of right hostile to the adverse party, without regard to what the particular claim is.
    8. Same—Champerty.
    To avoid a deed under the champerty act, the claim must be under title.
    9. Same.
    In such case, a deed by a mortgagor of his equity of redemption after the sale in a void foreclosure proceeding is not within § 147 of 1 Revised Statute 739, where each title goes back to a common grantor and seeks to establish its validity by showing a descent from him in right line.
    10. Appeal—Judgment by appellate court.
    Where plaintiff, in an action to redeem from a mortgage, appeals from an adverse judgment, and it appears that she is entitled to the relief prayed for, and also to an account of the rents and profits, expenses, improvements and taxes, and the facts necessary to enable the appellate court to pass on these questions are not before it, the case is not within the provisions of § 1023 of the code.
    Appeal from a judgment, dismissing the complaint
    C. E. Sentell, for app’lt; T. H, Friend, for resp’t.
   RUMSEY, J.

—The action was brought to redeem certain premises from the lien of a mortgage. It appears that in 1852 one Weeks was the owner or the premises which are the subject of the action, and that he sold them to Stewart, who gave him in return a purchase money mortgage. . No interest, having been paid upon the mortgage, in 1869 Weeks commenced an action to foreclose it, making Stewart alone a defendant. The service of the summons was made by publication, upon an order granted by the county judge of Westchester county, in which county at that time the premises were situated. It is claimed by the plaintiff that this order was wholly void, and that the court acquired no jurisdiction of Stewart by service by publication under it. ' It is unnecessary to examine particularly th.e grounds of the claim, as it is conceded by both parties, and there is no doubt, that the affidavit upon which the order to publish was made did not give the county judge jurisdiction, and for that reason the proceedings as against Stewart were entirely void. The judgment, therefore, was entirely without force so far as he was concerned, and the purchase by Weeks, who bought in the premisee upon the foreclosure sale, and took a deed from the sheriff, affected no change 'in the relation between himself and Stewart. So .far as they were concerned, Stewart was still the mortgagor, and Weeks was still the mortgagee, and their rights and liabilities were precisely the same as though no action had been brought and no judgment of foreclosure had been entered. Weeks did not take possession of the -premises, but the matter stood in precisely the same situation as it had been after the foreclosure sale until the year 1871, at which time Weeks made conveyance of the premises to one Delaney. That deed operated, under the statute, to pass to Delaney only the interest which Weeks had in the premises at the time the deed was made, and no more, 1 Rev. St. p. 739, § 143. The effect of the transfer to Delaney -was to make him simply the assignee of the mortgagee. Townshend v. Thomson, 139 N. Y. 152,161 ; 54 St. Rep. 665. Delaney did not take possession, but in August, 1874, he conveyed to Barnecott the northerly half of the northerly half of the property. Barnecott conveyed to the defendant Gonness the same ■ portion of the premises. Later Delaney conveyed to the defendant Dally the southerly half of the northerly half of the premises. This conveyance was made in 1884. Barnecott took possession of the premises conveyed to him on the 6th day of August, 1874;- and Dally took possession of his portion of the premises shortly after the execution of his deed, in 1884. Dally and Gonness took from their grantors only the.interest which the grantors had to give, and they became, therefore, assignees of the mortgage so far as Delaney was an assignee of it from Weeks. After they had taken possession of the premises under the conveyances from Delaney, they stood, with relation to the original mortgagor, in the attitude of mortgagees in possession. Townshend v. Thomson, supra.

The plaintiff claims to have taken title to the whole of the premises by mesne conveyances from Stewart. These conveyances it is unnecessary to recapitulate, as it is not disputed ■ that, if they conveyed anything, they conveyed the interest which Stewart had. Stewart’s equity of redemption never having been foreclosed, he still owned it; and the deeds to the plaintiff conveyed the equity of redemption, and vested her with the title to the property, precisely as Stewart had it. If the deeds under which the plaintiff claims were valid, which will be considered later, she undoubtedly, as the owner of the equity of redemption, had the right to redeem from the mortgage, unless that right has been barred by the statute of limitations. As against that right the statute of limitations does not begin to run until the mortgagee "has entered into possession and the action is not barred until the mortgagee or those claiming under him have continuously maintained an adverse possession of the mortgaged premises for twenty years after a breach of the condition of the mortgage. Code Civ. Proc. § 379.

This action was begun, as it appears, on the 7th day of April, 1894. The first question presented is whether the action was barred by the statute of limitations. The facts bearing upon that question are chiefly made to appear by tne evidence of the defendants, and they are not at all in dispute. It seems that Weeks, who was the original owner of the farm from which this lot of land was carved, laid it out into lots in 1852, and that, after it was laid out, it lay open and vacant and unoccupied for many years. So far as appears, Stewart did not take possession of it under his deed, nor occupy it. Neither did Weeks do so after he had obtained the sheriff’s deed upon the foreclosure. Delaney, who took the title to the premises from Weeks, testified that, at the time he took it, the premises were vacant and unimproved, and continued to be so up to the time of the conveyances by him to Barnecott, on August; 6, 1874. Barnecott testified that he examined the property before lie bought it; that there were no fences upon it; that it was entirely vacant and unimproved and wild, and had not been cultivated in a number of years, that he took his deed on August 6, 1874; and that immediately afterwards he commenced the erection of a dwelling upon the lot conveyed by it This evidence was given by the witnesses sworn on behalf of the defendants. The witnesses sworn on behalf of the plaintiff testified substantially that from 1852 down to 1874 the premises stood open and vacant; that no crops w.ere grown upon it; that it was not fenced; and that it was entirely unoccupied. It is quite clear from this testimony that there was no adverse possession of these premises by virtue of which the statute of limitations could run against the right to redeem before August 6, 1874. The .law says that, for the purpose of constituting adverse possession by a person claiming a title founded upon a written instrument (which is this case), land is deemed to have been possessed and occupied where it has been usually cultivated or improved, or where it has been protected by'a substantial inclosure. Code Civ. Proc. § 370. Neither of these conditions existed in this case, and for that reason the claim that the cause of action is barred by the statute of limitations is not well founded.

But the defendant insist that, even if the action is not barred by the statute, the deeds under which the plaintiff claims were void under the champerty act, and for that reason she acquired no title to the equity of redemption, and cannot maintain this suit. The law under which this claim is made is found in the Revised Statutes. It was passed originally to provide against a state of affairs which does not exist in these times, and for that reason it is not often invoked. It provided that every grant of land shall be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of the person claiming under a title adverse to that of the grantor. 1 Rev. St. p. 739, § 147. The wording of the statute is significant, and it must not be confused with the statute which prescribes what shall constitute an adverse possession to set the statute of limitations running. The possession which is sufficient under the statute of limitations is possession under a claim of title. When that claim is set up, it is not necessary that the pleader should show that he is is under any specific title; but it is. sufficient if he proves that he claims to hold the premises adversely to the right that he is contesting. The material matter where the statute of limitations is in question is the possession, and whether that possession has been taken under a claim right hostile to the adverse party, without regard to what the particular claim is. The important matter, however, under the champerty act, is the title, and not the particular possession. To avoid a deed, the claim under the champerty act must be under a title. Hothing can satisfy the language of that act but the existence of some specific title under which the party claims. That title must be disclosed, so that the court may see that it is adverse to the title of the grantor in the deed which is assailed; and unless that fact is made to appear, the deed is valid. Crary v. Goodman, 22 N. Y. 170; Dawley v. Brown, 79 id. 390 ; Smith v. Faulkner, 48 Hun, 186; 15 St. Rep. 637. In the case at bar, both parties claim under the title of Stewart; Weeks and his grantees claiming to have derived it by foreclosure of the mortgage which Stewart gave, and the plaintiff and her grantees claiming the title by virtue of mesne conveyances from,Stewart of the equity of redemption. These titles are not therefore hostile the .one to the other, within meaning of this act. Bach goes back to a common grant-tor, and seeks to establish its validity by showing a descent from him in right line. For this reason it cannot be said that the plaintiff’s deed is void, but she acquired by her conveyance an equity of redemption and the same right to redeem the premises from this mortgage which Stewart had. The judgment, therefore, must be reversed.

We are asked to enter judgment for the plaintiff, pursuant to section 1022 of the Code of Civil Procedure. While the power of the court to do this in a proper case cannot be denied, this, as we think, is not one of the oases. It appears that the defendants are in possession, claiming to own the northerly half of these premises. To that half the plaintiff has'still her title, but she has disposed of the title to the southerly half, which is owned by her grantee. To enable her to redeem, she must pay the whole mortgage debt. Jones, Mortg. § 1072. She is entitled to an account of the rente and profits, and she must be charged with, the expenses necessarily incurred by the- owners of the premises, by way of taxes and such other expenses as were necessary to protect the premises. Just how far these rents and profits shall be applied upon the mortgage, to what extent the necessary expenses shall be charge against them, and how far those expenses must be apportioned between the different owners of the property, are things which probably must be considered .by the court before an interlocutory judgment is entered in this action. The facts necessary to pass upon those questions have not been presented here, and . have riot been argued before us. For that reason we deem it advisable simply to reverse this judgment, and send the case back for a new trial, where there can be presented to the court all the facts necessary to enable it to lay down the principles upon which an account should be taken, if, upon the evidences presented upon that trial, it shall appear that the plaintiff is entitled to the relief demanded in the complaint.

Judgment reversed.

blew trial ordered, with costs to the appellant-to abide the event.

All concur,


author: WARD, J.—This

text:
    Vaughn C. Sweet et al., App’lts, v. David H. Marvin, Resp’t.

      (Supreme Court, Appellate Divison, Fourth Department,

      Filed Feb. 7, 1896.)

    Justice op the peace—Judgment—Entry.
    Where the jury in a justice’s court return a verdict after 10 o’clock at night, and the justice makes a memorandum of the verdict, and on the following morning adjusts the costs, renders a judgment, and enters it in his docket, the judgment so rendered is a sufficient compliance with section 3015 of the Code. . '
    Appeal from a judgment of the county court, reversing a judgment of the justice's court in favor of plaintiffs,
    C. W. Avery, for app’lts; O. M. Reilly, for resp’t.
   WARD, J.—This

action was commenced in justice court in the county of Oswego. Plaintiffs claimed damages arising out of false representations in the purchasing of a quantity of apples. A jury was impaneled in the case, who heard the evidence and rendered a verdict for the plaintiff for $60, something after 10 o’clock on the night of the 13th of February, 1895. Upon the rendition of the verdict, the justice of the peace holding the court entered the verdict on a peace of paper, and returns that, being tired, and troubled to see, he did not foot up the costs and enter judgment complete until the next morning, which was the first business transacted by him after the entry of the verdict, and about 9 or 10 hours intervening between the rendition of the verdict and the judgment. The costs were ascertained, and the judgment, in fact, was rendered and entered in the docket book of the justice that morning. An appeal was taken to the county court, and the judgjudgment was reversed by that for the reason that it was not rendered forthwith upon the coming in of the verdict, citing Sibley v. Howard, 3 Denio, 72, and Putnam v. Van Allen, 46 Hun, 492 ; 11 St. Rep. 855 ; as authority for that conclusion, which is the sole question presented by this appeal.

In Sibley v. Howard, supra, there was a trial before a jury, in justice court the 1st day of July, and they rendered their verdict on that day. The justice immediately entered it in his docket, but made no further entry on that day. Within four days after the verdict, he made an entry of the items of cost, but did not foot up the items «until the 9th day of July. In the case of Putnam v. Van Allen, 46 Hun, 492; 11 St. Rep. 855, the action was tried before a jury, and verdict rendered on the 1st day of October, but judgment was not completely rendered until October 5th. Section 3015 of the Code of Civil Procedure provides that, where a verdict is rendered, the justice must forthwith render judgment and enter it in his docket book. In Van Wyck v. Hardy, 39 How. Prac. 392 (opinion 399), decided in the court of appeals, a summons and complaint, which was required by an order of the court to be deposited forthwith in the post office, after the making of ■ such order, in pursuance of the Code of Procedure, was not deposited for four days. It was claimed that this was not deposited forthwith. The court held that the deposit was in time and sufficient, and said:

“No definition of the term ‘forthwith ’ is given in the Code. % * * Webster, among other definitions, defines it to mean ‘without delay.’ That is a reasonable meaning, and, so understood, it must be left to the discretion of the court to determine, under the circumstances of each case, whether the order in that respect has been complied with; and we agree with the court below that there was such a compliance in the present case.”

In Goodrich v. Sullivan, 1 Thomp. & C. 191, the facts were similar to those in the case before us. There the jury rendered a verdict about midnight. The justice entered the verdict in his minutes, but did not enter the judgment in his docket book, for damages and costs, until next morning. Held that this was sufficient, and a compliance with the statute. In Tousley v. Mowers, 14 Misc. Rep. 125, the verdict was rendered in the evening, and the justice was tired and worn out, and did not enter the judgment until the following day. Held that this was an entry forthwith, under section 3015 of the Code.

The meaning of the word “ forthwith ” has received judicial construction in insurance cases, where the policies have required that notice of the fire or other matter be given forthwith; and the rule adopted in such cases is well stated in Bennett v. Insurance Co., 67 N. Y. 277, where the court says:

“ The word ‘forthwith ’ does not mean immediately or instantaneously after the fire. It means, or has been held to mean, within a reasonable time, or with reasonable diligence, after the fire [citing cases]. What is a reasonable time depends upon all the circumstances of the case.”

In some of the cases a reasonable time is held to be twenty-four hours, as in Champlin v. Champlin, 2 Edw. Ch. 328, where the court said that the word “forthwith ” in the fifty-sixth rule of the court is to be construed within twenty-four hours thereafter.

It will be seen that the cases relied upon and cited by the county court do not; sustain the respondent’s contention here. We think the rule to be deduced from the cases, and having its foundation in reason, is that words imposing a .duty upon a court or judicial officer must receive reasonable construction. The courts should take their recesses and perform their duties with refevenoe-to the surrounding conditions. Where a proceeding has advanced far into the night, before the completion, the court is not compelled to continue its work longer, but may adjourn until the next day, or to such further time as the law permits. A duty to be done forthwith is not an exception to this reasonable rule. When the court or officer performs the duty within reasonable time after the event upon which it depends occurs, under all the conditions surrounding the case, the command of the law is complied with. The magistrate in this case had conducted the proceedings to a late hour, and awaited the verdict of the jury beyond the hour when he might properly have»adjourned his court until next day, that the jury might be relieved of the case. lie had received the verdict, and made' a memorandum thereof on paper. He was weary, and his eyes were in a bad condition for further riight work, and he held the further proceedings in the case until -the next morning, when the first thing he did was to adjust the costs and render the judgment, which consisted of the verdict and the costs, and enter it in his docket book; and the county court erred in reversing the judgment. The judgment of the county court should be reversed, with costs of this appeal, and the judgment of the justice affirmed.

Judgment of the county court reversed, with costs, and the judgment of the justice court affirmed, with costs.

All concur.


author: HARDIN, P J.

text:
    In the Matter of Proceedings for the Voluntary Dissolution of the Wendler Machine Company.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed February 7, 1896.)

    1. Appeal—Order confirming sale.
    An appellate court has power to vacate or reverse an order made to confirm a sale made by the receiver of a corporation appointed in dissolution . proceedings, and an appeal is allowable by creditors who have an interest in the assets affected by the order confirming the sale.
    2. Corporations—Mortgages.
    In order to have a mortgage given by a corporation valid, It is essential that the stockholders holding two-thirds of the stock of the corporation shall give their- consent to the mortgage and such consent should be filed in the proper clerk’s office.

      3. Same.
    Where, upon application, in dissolution proceedings, for the confirmation of a sale of the property of the corporation, made “ subject to all legal liens,” by the receiver, the creditors appear in opposition to the motion to confirm on the ground that the mortgage is invalid because the consent of the stockholders was not given and filed as required by law, the receiver, who petitions for confirmation, must before the creditor’s objection to the confirmation is overruled, furnish evidence that the mortgage lien is valid.
    Appeal from an order, ratifying and confirming a sale of the real and personal property of the corporation.
    The property was struck off to the highest bidder, “ subject to all legal liens thereon, for the sum of $125.00.” Notice of the application'to confirm the sale was given to. the attorney general, and to the attorney for Rogers & Co. and others, creditors, and to Rich ten and others, stockholders, who were heard in opposition. The parties opposing the motion raised the preliminary objection that “ the order for sale was granted without notice ” to them. That objection was overruled and the order of confirmation was made, after reading the petition and the affidavits of Jones, Yan Allen, and B. J. Mullin, verified September 7, 1895. The petitioner states that he exposed the property of the corporation for sale, “ except bonds held by said company and accounts receivable, * *. * subject to all legal liens thereon ; subject to the approval of the court upon terms of sale,” which are stated. It appears, by the affidavit of the attorney who opposed the motion, that on the 17th day of June, 1895, prior to the close of the hearing of the application to dissolve the company, he filed in the office of the clerk of Jefferson county a notice of appearance for creditors, and also served a copy thereof upon the attorney for the petitioner, and that no notice of the'application for an. order authorizing the receiver to sell was served upon-the attorney so appearing for the creditors. The affidavit of Mr. Yan Allen, sworn to September 7, 1895, states that he has searched the records of the county clerk’s office of Jefferson county, “ and has been unable to find any consent of stockholders, or certificate of meeting of stockholders, of said company, to issue any mortgage on said property, filed or recorded.” The affidavit of Jones states that he is a stockholder and director of the company, and that the company was organized in September, 1894, “ and that $50,000 in bonds were issued by said Wendler Machine Company October 1, 1894, and that a iportgage was executed upon its real estate, and also a chattel mortgage executed upon its personal property to secure the said bonds; that none of the said bonds have been sold by the said company or any of its officers.” It appears by his affidavit that the bonds were issued, “ and allowed to remain at the First National Bank of Cartilage as collateral security for the sum of $24,400, except $9,000, which were turned over to Pat Phillips as security for an indebtedness to him from the company, leaving$41,000 in bonds at said First National of Carthage”; and that the bank “ claims to hold said bonds to secure between $28,000 and $30,000.” Jones’ affidavit further states “ that the property sold was, in deponent’s judgment, worth $100,000, and ought to sell at forced sale, and deponent believes could be sold, for from $65,000 to $70,000 It appears that in January, 1895, an appraisal of the property of the company was made, in which the total value of it. was stated to be $107,000. It appears in the affidavit of B. J. Mullin that he, on several occasions, had conversations with Phillips, the receiver, who stated “ that the company was to be reorganized, with C. H. Remington at the head, and that the property was to be sold, and Remington to be the buyer, or do the bidding, and that the Carthage creditors were to be paid in full ” ; and that the adjournment was had from the 15 of August to the 22d of August on the ground “ that said Remington was not quite ready, and asked for postponement for one, week.” The affidavit further states that the receiver had told the affiant “ that the property was worth $75,000,” and “ receiver also told deponent that he [Phillips] did not want said sale confirmed, and did not think it would be.” He also states in his affidavit “ that negotiations had been and are pending to reorganize said company, and take said property, and pay the debts, but that sufficient time has not existed since it was known that Remington was not going to complete the arrangements of the purchase of the property to effect such reorganization.” In the teestirnony given by Phillips before Judge Emerson June 18, 1895, he states, viz.: “ I think the property will sell for from $60,000 to $70,000 * * * The indebtedness of company amounts to about $70,000.”
    W. B. Van Allen, for app’lt; George S. Hooker, for resp't.
   HARDIN, P J.

—It seems that Rogers & Co., who were creditors of the Wendler Machine Company, made themselves parties to the proceeding: and after becoming such parties to the proceeding, they were entitled to notice of application subsequently made therein. Code Civ. Proc. §§ 2428 and 799. It seems, by the affidavits, that the receiver was interested, as he held some $9,000 of the bonds secured by a mortgage. Although it is stated in the terms of sale, issued by the receiver, that the sale would be made subject to the approval of the court, there is nothing in the terms prescribed by the receiver requiring the purchaser to pay the antecedent liens upon the property; nor does the record before us show any undertaking on the part of the purchaser to pay the antecedent liens. Good faith was due from the receiver to all parties interested in the corporation, and he ought not to be allowed, in any way, by statements or by his conduct, to mislead interested parties to further his own private interests. He had, undoubtedly, power to contest the bonds and the mortgage. Vail v. Hamilton, 85 N. Y. 453 ; Carbon Co. v. McMillin, 119 N. Y. 46. However, it is not necessary at this time to determine that the receiver acted in bad faith and in collusion with parties in interest- It seems to be well settled that the appellate court has power to vacate or reverse an order made to confirm a sale (Syracuse Sav. Bank v. Syracuse, C. & N. Y. R. Co., 88 N. Y. 110), and that an appeal is allowable by creditors who have an interest in the assets by. the order confirming the sale.

The learned counsel for the respondent, in his points, states that, prior to the execution of the mortgage, “ a consent to mortgage was properly executed and acknowledged by the owners of all but twenty of the fifteen hundred shares of the capital stock. The consent was not filed, however, till after the property of said company was sold by its receiver, in August, 1895. The mortgage was recorded immediately after its execution, and before the indebtedness of the company to appellants was incurred.” We find in the appeal book no proof of this statement. We therefore have before us an order which confirms a sale presumptively made subject to the mortgage, without any evidence before the special term' that the mortgrge for $50,000 was valid. While it does not clearly appear under what statute the corporation was organized,1 it is inferable from the appeal papers that it was organized under the statutes relating to manufacturing corporations. Therefore, in order to have the mortgage valid it was essential that the stockholders owning two-thirds of the stock of the corporation should have given their consent to the mortgage, and that such consent should be filed in the proper clerk’s office. Vail v. Hamilton, 85 N. Y. 456 ; Rochester Sav. Bank v. Averill, 96 N. Y. 467 ; 26 Hun, 643 ; Martin v. Niagara Falls Paper Manufacturing Co., 122 N. Y. 165 ; 33 St. Rep. 318. Manifestly, the object of the legislature in requiring such an assent was the protection of stockholders against improvident, collusive, and unwise acts of trustees in incumbering the corporate property. Sugar Co. v. Whitin, 69 N. Y. 333. Although it has been held, as was intimated in Paulding v. Steel Co., 94 N. Y. 334, that none but stockholders can complain that the statutory consent was not given, yet. in the proceedings now brought in review, it appears the creditors appeared in opposition to the motion to confirm ; and before- their objection to the confirmation was overruled, it was incumbent upon the receiver, who petitioned for confirmation, to furnish evidence that the mortgage lieu was valid, as it manifestly would affect the bidders at the sale. While the order, in some sense, was addressed to the discretion of the court (White v. Coulter, 1 Hun, 357 ; Kellogg v. Howell, 62 Barb. 280), we think, upon the papers presented in the appeal book, the learned special term judge fell into an error in confirming the sale, and that the order made at special term should be reversed,—without prejudice, however, to a new application, if the petitioners shall be so ad-' vised upon additional proofs.

Order reversed, with $10 costs- and disbursements, payable out of the fund, without prejudice to a new application.

All concuT.