text:
    WILLIAM GILMORE, Appellant, v. SOPHRONIUS BARNETT, Respondent.

      Action in justice’s court — what amendments not allowed after issue joined, and in the absence of the defendant — when an execution against the person is properly set aside.

    The plaintiff, on commencing- an action in a justices’ court, procured a short ■ summons against the defendant, a non-resident, on an affidavit stating that the action was on a contract. Before the return day the parties appeared, and the plaintiff declared on contract for cattle sold, and the defendant denied the allegations of the complaint. The case was adjourned, and on the adjourned day the defendant did not appear. The plaintiff then amended the complaint, declared in tort for the conversion of the cattle, recovered a judgment,-filed and docketed a transcript thereof, and issued thereon an execution against the person of the defendant.

      Held, that the amendment should not have been allowed, and that the execution was properly vacated and set aside by the county court on motion.
    Appeal from an order of the County Court of the county of Chenango, setting aside, vacating and declaring null and void and unauthorized an execution against the person of the defendant.
    On the 15th day of June, 1876, the plaintiff, William Gilmore, was a resident of Broome county, N. Y., and on the same day the defendant was a resident of the county of Chenanago, N. Y. On Said 15th day of June, 1876, the defendant, Barnett, being in the city of Binghamton, Broome county, N. Y., the plaintiff, Gilmore, commenced an action against him by short summons, before a justice of the peace of the said city, on an affidavit stating that the defendant was a non-resident of Broome county, and that the plaintiff had a cause of action against him on contract.

    On the same day the parties appeared before the justice and joined issue in the action. The plaintiff complained in an action on contract, and stated that the cause of action was to recover for the sale of cattle, the entry on the docket of the justice being as follows, viz. : “ June 15, parties appeared ; plaintiff in person complains that defendant is indebted to him ; defendant in person denies complaint. Adjourned by consent to July 10th, 1 p. m.”
    On the adjourned day the defendant did not appear, but the plaintiff appeared in person by B. S. Curran, and filed an amended complaint in tort for the conversion of the stock and of the avails thereof. William Gilmore, the plaintiff, was sworn, and the justice rendered judgment 'in his favor for the sum of $44.20 damages and $2.20 costs.
    All of these proceedings on the adjourned day were had in the absence of defendant, who did not appear.
    July 19, 1879, a transcript of the judgment was filed and said judgment docketed in the county clerk’s office where the defendant resided, and thereafter and on the 30th day of July, 1879, an execution was issued thereon against his person.
    From the order setting aside this execution this appeal was taken.

      Gumming & Hand, for the appellant.

      George W. Bay, for the respondent.
   Learned, P. J. :

The plaintiff' commenced an action against the defendant, a nonresident of the county, in a justice’s court, by a short summons, obtained on an affidavit stating that he had a cause of action against the defendant on contract. Before the return day the parties appeared, and the plaintiff declared on contract, and the defendant denied. The cause was adjourned, and on the day of adjournment the defendant did not appear. The plaintiff then filed an amended complaint and declared in tort for conversion of cattle. The plaintiff gave testimony in his own behalf, and the justice rendered a judgment against the defendant in tort. The judgment transcript was filed ; the judgment docketed, and an examination against the person issued. The execution was set aside by the county court, and the plaintiff appeals.

The plaintiff insists that the justice had jurisdiction, and that if the judgment was erroneous it cannot be attacked collaterally. (Hallook v. Dominy, 69 N. Y., 238.) But to move in an action to set aside an execution issued therein is a direct, and not. a collateral attack. The county court had control of its own process. The question here is not whether the process would not have protected the officer acting under it, but whether it was in fact properly issued.

The defendant was notified by the fact of the issue of a short summons that the action was on contract. He was also notified of this by the complaint made against him at the joining of issue. Trusting to this he might well have neglected to appear at the day of adjournment.

It is true that section 64, subdivision 11 (Old Code), permits amendments, “ when substantial justice will be promoted.” But substantial justice is violated when a defendant, sued on contract and joining issue on contract, is, in his absence, made defendant in an action on tort. In the case of Bigelow v. Dunn (53 Barb., 570), the parties were present when the plaintiff was permitted to amend a complaint on fraudulent representations by making it an action on warranty.

In higher courts, when a pleading is amended, a copy must be served on the other party, that he may know what his opponent’s allegations are. (Code of Civ. Proc., 543.) By analogy, in a justice’s court no amendment changing the nature .of the cause of action should be permitted in the absence of the other party, after issue has been joined.

The order of the county judge should be affirmed, with ten dollars costs and printing disbursements.

Present — LearNed, P. J., BoardmaN and Bockes, JJ.

Order of the county court affirmed, with ten dollars costs and printing disbursements.


source: Caselaw Access Project

author: per Curiam.

license: Public Domain

text:
    LEWIS BROWNELL and others as Surviving Partners, etc., Respondents, v. THE NATIONAL BANK OF GLOVERSVILLE and others, Appellants.

      Order for production of books to enable the plaintiff to frame his complaint— when not allowed — fishing examinations not permitted.

    Appeal from an order, made at Special Term, requiring tbe defendants to permit an inspection and copy to be taken of certain books and entries in their possession, to enable the plaintiffs to frame their complaint.
    The petition stated that the action was brought by the plaintiffs, as stockholders of the National Bank of Gloversville, to recover damages occasioned by the negligence and violations of duty on the part of the defendants as directors and officers thereof, whereby a large amount of its capital and funds had been wasted.
    The order appealed from required the defendants, in order thajt the plaintiffs might frame their complaint, to permit an inspection, with copy, of the books of the bank, including the day-book, deposit ledger, bank ledger, discount book, tickler, certificate book, scratcher, draft book, statement book, book of records of the meetings of the directors during the years from 1875 to 1877 inclusive, together with the letters, papers, bills, notes and memo-randa written, received, made or taken in the business of said bank during those years.
    The court, at General Term, said : “ This is evidently what is well called sí fishing examination to enable the plaintiffs to discover something, if there be anything worth the discovery. It has been frequently held that such an examination should not be granted. It is manifestly oppressive. (Walker v. Granite BanJc, 44 Barb., 37; Mott v. Consumers Ice Go., 52 How., 148; affirmed, 244; Phelps v. Platt, 54 Barb., 557; and see Pegram v. Oarson, 18 How., 519, and oases there cited.)
    “ The petition on which the order was granted shows that the plaintiffs have no knowledge of any particular entries which they need to see in order to frame a complaint. They say that they ‘ desire information in respect to said losses, the amount thereof, the causes of the same, and the actions of the defendants as such directors and officers in respect thereto and in respect to the general management of the business.’ This is substantially saying that they wish to examine the books of the bank in order to find out whether there may not be some ground or other for a cause of action on which to make out their complaint.”

      Parhhurst <& Baker, for the appellants, Wood & Terwilliger.

      Carroll & Fraser, for the other appellants.

      Dudley, Dennison <& Dudley, for the respondents.
   Opinion

per Curiam.

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

Order granting discovery reversed, with ten dollars costs, and printing disbursements and motion denied, with ten dollars costs.


author: Learned, P. J.

text:
    LAURA A. WEATHERWAX, Appellant, v. PETER WOODIN and others, Respondents.

      Advancement — what evideiice is insufficient to show that a conveyance from a father to his sons was intended as such.

    Appeal from a decree of the surrogate of Saratoga county on the final settlement of the estate of Peter S. Woodin, deceased.
    The important question on the appeal was, whether a conveyance from the deceased to his sons was intended as an advancement^ The intestate died in 1875. February 16, 1858, he and his wife conveyed to his three sons a farm. The consideration expressed in the deed was $7,000. The farm was subject to a mortgage of $4,000. On the 14th of March, 1859, one of the sons conveyed his share to the two others for the consideration of $1,666.66. At some time, but it did not appear when, one of the daughters made, in a book which the father kept, an entry, under date of March 14, 1859, as follows : “ Manly A. Woodin, Dr., to share in the upper farm, $1,666.66,” and a like entry as to the two other sons. There was no evidence that this entry was directed by the father, or as to the nature of the book. No other entries were shown ; but only the fact that the book remained in the father’s possession.
    There was evidence that before the conveyance two of the sons were living in Illinois; and that the father sent for them, and said to some persons that he had given or would give the boys the old farm if they would come back and pay the mortgage. There was some evidence, too, of money given to the daughters by the father some years before his death.
    The court, at General Term, said: “ Under the decision in Sanford v. Sanford (5 Lans., 486), it can hardly be claimed that the entries on the book, made by a sister of the grantees a year after the execution of the deed, could be any evidence against them that the land was not purchased and paid for ; nor is there any evidence as to anything said by the intestate to the sons at the time of the execution of the deed. We have then simply the fact of a conveyance, expressing a pecuniary consideration, and made some seventeen years before the death of the intestate. Part of the consideration — the payment of the mortgage — we know to have been pecuniary in fact. As to the residue we are without any evidence to show that, that also was not paid in money. The casual remarks of the intestate to his neighbors, made long since and in the absence of the grantees, are not sufficient to show that the farm was either a gift or an advancement.”

      Charles JE. Patterson, for the appellant.

      Cornelius A.. Waldron and Nathaniel C. Moak, for the respondents.
   Opinion by

Learned, P. J.

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

Decree affirmed, with costs against appellant.


author: Davis, P. J.:

text:
    In the Matter of CORNELIUS J. VANDERBILT.

      Trust — condition that it may he terminated on the consent of specified persons — court cannot substitute others, fot' those named.

    May 12, 1879, W. H. Vanderbilt transferred, by an instrument in writing, stocks and bonds of the value of $400,000 to one E. D. Worcester, in trust for him to receive the dividends and interest thereon, and pay over the same to Cornelius J. Vanderbilt, for and during his natural life. The instrument empowered Cornelius J. Vanderbilt to dispose of the trust fund and any unpaid interest by his will, and provided that the trust might be at any time terminated as to all or any part of the trust fund upon the joint consent or agreement in writing of the said W. H. Vanderbilt, Cornelius J. Vanderbilt and the said trustee. Subsequently Cornelius J. Vanderbilt applied to W. H. Vanderbilt to consent that the trust should be terminated as to §200,000 thereof, and that that amount should be paid over to him. Upon his refusal to consent thereto this application was made to have some other person substituted in his place, with power to give such consent.

      Held, that the court had no power to make such substitution.
    That even if such power did exist, no case was here made for its exercise.
    Appeal from an order of the Special Term denying the appellants motion to have a person appointed in place of William H. Vanderbilt to consent to the termination in part, of a trust created by said William H. Vanderbilt.
    The following is a copy ot the petition upon which the application was heard and denied :
    “ To the Supreme Court of the State of JSTevj Yorh:

    “ The petition of Cornelius J. Vanderbilt respectfully showeth :
    “ That your petitioner is a resident of the city and State of New York, and is of the age of forty-nine years.

      “ That he is the son of Cornelius Vanderbilt, late of the city and county of New York, deceased, who left him surviving two sons and eight daughters.
    “ That the other son of said deceased is William H. Vanderbilt.
    “Your petitioner farther shows that on the 12th day of May, in the year of our Lord one thousand eight hundred and seventy-nine, the raid William H. Vanderbilt executed, acknowledged and delivered to Edwin D. Worcester, a deed of which the paper hereto annexed, marked ‘A,’ is a copy.
    “ Your petitioner further shows that on the 2d day of December, in the year aforesaid, he caused to be served on said William H. Vanderbilt and Edwin D. Worcester an application, a copy of winch is hereto annexed, marked ‘ B,' and that all the statements contained in such application are true, and your petitioner makes such deed and application parts of this his petition, and prays that the same may be taken and referred to by this court as such.
    “Your petitioner further shows that on the 6 th of the samo month of December, the said William H. Vanderbilt wrote to your petitioner, in answer to such application, and without having seen or conferred with your petitioner or with the said Edwin D. Worcester on such subject, as your petitioner is informed and believe, as follows:
    “New York Central axd Hudson River Railroad Co., >
    “ Grand Central Depot. )
    “ W. H. Vanderbilt,
    “ President.

    “New York, December 6, 1879.
    “ C. J. Vanderbilt, Esq. :
    “ Dear Sir — Your communication requesting a portion of the securities held in trust for you, to be released from the trust, has been received, and I have given it my careful consideration.
    “ My conclusion is that it would not be a sound exercise of judgment to grant your request, however pleasing it might be to gratify your desire.
    “ Very truly yours,
    . “ (Signed) W. H. VANDERBILT.

      “ That such letter down to and including the words New York/ is printed, and that it is the only communication tbe said William H. Vanderbilt has had with your petitioner on the subject matter of his said application.
    “Your petitioner further shows that while he believes and alleges the reasons given in such application are sufficient for the exercise of the power in trust, in and by said deed conferred upon said William H. Vanderbilt and Edwin D. Worcester, acting in conjunction with your petitioner, yet he avers that there are other good and sufficient reasons therefor, among them, that a large portion of the securities held by said Edwin D. Worcester, under and by virtue of such trust deed, are now, as deponent believes, at their highest market value, and are liable to fall off in such market value, and that the same can now be sold and securely invested, thereby considerably increasing the income of your petitioner, but that the relation of said William H. Vanderbilt to such securities is such as, in his mind, to exaggerate their value.
    “Your petitioner further shows and alleges that the said William H. Vanderbilt assumes and believes that the execution of such deed by him to the said Edwin D. Worcester, and the delivery of the property mentioned therein was without consideration, other than the nominal consideration mentioned therein, and that such property was a naked and voluntary gift by the said William H. Vanderbilt, and that he answered the aforesaid application of your petitioner upon such assumption and under such belief.
    “Your petitioner further shows that your petitioner claims and alleges the fact to be, that such deed was executed for a good and valuable consideration, moving from your petitioner, and greater in amount than the value of the property conveyed in and by such deed to said Edwin D. Worcester. That at the timo your petitioner assented to said deed, as to its form and trustees, he did not know that the said William H. Vanderbilt assumed and believed that the conveyance of such property was simply a gift from him and did not know that the negotiations, which resulted in the termination of all litigations pertaining to the suits between your petitioner and said William H. Vanderbilt, had been withheld from him.
    “Your petitioner, therefore, claims and alleges, that for the reasons aforesaid, said William H. Vanderbilt is not a suitable trustee to decide the question whether such power in trust should be executed so as to give your petitioner a portion of said property, and he, therefore, prays that this honorable court, pursuant to the statute in such case made and provided, or under its inherent powers, will appoint an indifferent person in the place of said William H. Vanderbilt, and to have in his stead the power to terminate the limitations to the absolute ownership of the property by your petitioner, so conveyed in trust to the said Edwin D. Worcester, or that it be adjudged that your petitioner is the absolute owner of such property, or for such other or different relief as this honorable court may deem proper.
    “ (Signed) C. J. VANDERBILT,
    “ Petitioner.”
    Exhibit “A”.was a copy of the trust deed. In exhibit “B” the petitioner stated the following, among other grounds for terminating, the trust as to $200,000.
    He further represents “ that the activities of business are essential to his health and comfort, as is shown - by the fact, that since he had property of his own to manage he has improved in health, - and by exertion and prudence in his estate, but having paid out of the moneys received by him the largest proportion on old debts, he has not under his control a sufficient sum to carry out proper, safe and legitimate purposes ; and he alleges that a careful examination of his business transactions since the period above referred to will show that the payment to him of two hundred thousand dollars of the property invested under said deed will be safely and legitimately used and to the benefit of his estate, and he, therefore, requests that such amount be paid over to him pursuant to the terms of such deed.”

      Scott Lord, for the appellant, Cornelius J. Vanderbilt.

      Henry H. Anderson, for the respondent, William H. Vanderbilt.
   Davis, P. J.:

On the 12th day of May, 1879, William H. Vanderbilt made and executed an instrument, whereby he transferred to one Edwin D. Worcester certain stocks and bonds therein described, of the value of about $400,000 in trust, to receive the interest and dividends thereon, and pay the same over to Cornelius J. Vanderbilt during his natural life. The instrument empowered Cornelius J. Vanderbilt to dispose of the trust fund and the unpaid interest and dividends thereon by his last will. It made provision also for an exchange of the securities for others when deemed necessary, and then provided that the trust and power of disposition might be at any time terminated as to all or any part of the trust fund, upon a very plain and clearly expressed condition, to wit: “ the joint consent or agreement in writing ” of the said William H. Vanderbilt, Cornelius J. Vanderbilt and the said trustee ; and in that case that the principal fund or the part of it, as to which the trust should be so terminated, may be paid over to the said Cornelius J. Vanderbilt, and all responsibility of the trustee in respect thereof shall cease. The consideration expressed in the instrument is natural love and affection, and the nominal sum of one dollar.

The manifest object and intention of the trust instrument were to secure a large and generous income to the beneficiary of the trust during his life, free from all claims of present or future creditors, and to give to him power, by his last will, to dispose of the entire fund at his decease. It is of no importance to inquire what reasons led the donor of the trust to create it in this form and with the limitations and conditions expressed. The reasons were sufficient to himself; and the trust being in all respects legal, the same principle of law that has so often led courts to say of testamentary dispositions “ the will stands for the reason ” is applicable here. It is enough that the donor of the trust thought it the best* disposition of his bounty that a sure and permanent income should be secured to the beneficiary during his whole life, which could not be disturbed or prevented by othei’s, or changed or diverted by the parties themselves, except upon the conditions and in the forms he saw fit to juescribe and impose. When a court, either of law or of equity, has ascertained that the trust is lawful, and that the conditions and forms intended to protect and preserve it are not violations of any principle or rule of law or equity, it has nothing further to do except to see that it is executed according to the true intent of the donor by the trustee he has appointed, or in case of his death or inability, or failure to do his duty from any other cause, by such trustee as the court may appoint.

In this case the appellant, for whose benefit the trust is created, before the expiration of a single year applied to the donor of the trust for his consent in writing that the trust should be forthwith terminated as to $200,000 of the fund, and that sum paid over to him absolutely to be subjected to the hazards of his business enterprises. The application was declined “after careful consideration,” as the donor says in his letter, on the ground that “it would not be a sound exercise of judgment to grant the request, however pleasing it might be to gratify the appellant’s desire.”

Thereupon a petition was presented at Special Term, in substance, asking the court to change a condition of the trust by substituting some other person with power to give consent to -the termination of the trust in place of the donor. The court denied the application and from the order of denial this appeal is taken.

There are two reasons why the decision of the court below cannot be disturbed.

First. The court had no power to grant the application. The condition which restricts the' termination of the trust is not “ a power in trust ” under our statutes nor at common law. It is nothing more nor less than what it declares itself to bo, a simple condition upon which alone the trust can wholly or partially be made to terminate while the beneficiary is living. The only “ power ” connected with it is that of terminating an existing trust, in respect of which, the donor, the beneficiary and the trustee occupy the same independent relation. Each is to act upon the volition of his own judgment, and neither can be compelled by any process known to the law to mould his judgment to the wish or impulse of either or both of the others. There would be just as much reason for the donor to ask the court to remove the name of the beneficiary from the condition and insert another, because the latter is willing to consent to terminate the trust, as for the application now made because the donor is unwilling ; but it is manifest that such action on the part of the court would be making a new contract between the parties and depriving them of the free and voluntary judgment which the present instrument secures to each.

In Barber v. Cary (11 N. Y., 397), the court says : “ The rule of law is well settled that when the consent of a third person is required to the execution of a power that, like every other condition, must be strictly complied with. If the person whose consent is necessary die before the execution of the power, and without having assented, the power is gone, although his death was the act of God. So, where the consent of several persons is required, the death of one of them destroys the power ; for the consent' of the survivor will not satisfy the words of the power.

“There is no provision of the Revised Statutes that changes this well established rule of the common law. * * *

“ There has been no design to obliterate the well defined line which separates the province of a grantee of a power from that of him who may only consent to its execution, (pp. 402, 403.) (1 R. S. [Edmonds], 686, 687, §§ 112, 113, 122.) ”

This case is sufficiently analogous in principle to be decisive of the question of law in the case before us. For the power given is to effect the termination of a trust lawfully created by tho instrument: it is to be exercised upon an express condition, to wit: the consent in writing of the persons named. No court can substitute another person to give such consent on-the pretext that a person named withholds consent for insufficient reasons. •

Second. The order of the court below was right, because if it had the power of removal and substitution, no case was made for its exercise. The action of William H. Vanderbilt, in declining to consent, was such as commends itself to our approval. No sufficient reason for granting was presented to him or to the court. On the contrary, the reasons presented were the best evidence of the propriety of the refusal. They were in part, at least, the same that led to the creation of the trust, to wit: the strong desire on the part of the beneficiary to expose his means of certain support to the uncertain exigencies of business and probably of speculative enterprises. To protect-him against his own possible rashness or folly was the judicious purpose of the trust, and to compel its donor almost immediately after its creation to break it up and substitute for it the exposures and vicissitudes of business would be something that no court having power coupled with common sense, would consent to do. It seems almost incredible that counsel could be found capable of advising such an application. Having neither law nor facts to justify it, the application deserves nothing but severe rebuke.

The order is affirmed, with costs and disbursements against the appellant.

Beady -and Bakkett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Davis, P. J. : Barrett, J.: Brady, J.

text:
    WILLIAM P. EARL, Respondent, v. CAROLINE F. DAVID, Appellant.

      Leave to ’bring an action at law. to recover a deficiency arising on a foreclosure sale — may be granted afta’ the action has been commenced.

    "Where a plaintiff has, without first obtaining leave from the court, brought an action at law to recover a deficiency arising on the sale of certain premises under a decree of foreclosure entered in a former action, the court may, upon his application, .and upon such terms as are just, grant him leave “to bring and continue” the action without prejudice to the proceedings already had.
    Appeal from a judgment in favor of the plaintiff, entered upon an order overruling a demurrer to the complaint.
    On June 9, 1877, the plaintiff commenced an action to foreclose a mortgage given to him by Mary J. and Amos Tenny, upon premises which had been subsequently sold to the present defendant, who assumed the payment thereof. To that action the Tennys and the present defendant were made defendants. A decree of foreclosure was entered therein on September 28, 1877, and a judgment for the deficiency arising on the sale thereunder was entered against all of the defendants on November 12, -1877. Subsequently, on the application of the defendant herein, the judgment as to her was vacated on the ground that she was a non-resident and that the summons had been served on her by publication only. Thereafter the plaintiff brought this action to recover the said deficiency, setting forth the foregoing facts in the complaint, to which the defendant demurred on the ground that he had not first obtained permission from the court to bring it. The demurrer was sustained and the plaintiff was allowed to amend his complaint and continue the action, without prejudice to the proceedings had therein. To the amended complaint the defendant again demurred, upon the grounds that the court had no jurisdiction of the subject-matter of the action ; that another action was pending between the same parties for the same cause, and that the complaint did not state facts sufficient to constitute a cause of action.

      Walter 8. Logan, for the appellant.
    The action is to recover a debt secured by a mortgage, and could not be brought without leave to sue. (2 R. S., 19.1, § 153; Scofield v. Loscher, 72 N. Y., 491.) The right to sue is an essential element of the cause of action. It must be granted before suit is brought, and so alleged in the complaint, or no cause of action appears. {Graham v. Scripture, '26 How., 507; Smith v. Britton, 45 id., 428; Porter v. Kingsbury, 71 N. Y., 588; Scofield v. JDoscher,- 72 id., 491.)

      John M. Martin, for the respondent.
    The first ground of demurrer is utterly untenable, the Court of Appeals having often held that this court has jurisdiction of actions to recover deficiencies arising on foreclosure. {Burr v. Beers, 24 N. Y., 178; Bicard v. Sanderson, 41 id., 199; Barker v. Bradley, 42 id., 316; Barlow v. Myers, 64 id., 41.)
   Davis, P. J. :

The amended complaint alleges that, by an order dated the 26th of July, 1878, this court granted leave to the plaintiff “to bring a'nd continue this action for the recovery of the deficiency mentioned in the original complaint herein, without prejudice to the proceedings then had in said action, and to amend his summons and complaint upon payment of the costs of the defendant’s demurrer to the complaint.” This allegation is a material one, and is therefore admitted by the demurrer. The order must be regarded as one giving leave nunc pro tunc to bring the action, and as having the samo legal effect as though it had been made before the action was in fact commenced.

I see no reason why the court may not make such an order nunc pro tunc on proper conditions as to costs, and thus save, as justice may often require, the benefit of the proceedings already had.

It also appears, by the allegations of the complaint, that the judgment for deficiency in the foreclosure case had been vacated and set aside by an order of the court on the motion of the defendant, on the ground that the judgment against her for such deficiency was invalid for non-service of process. No remedy was left to the plaintiff, therefore, but to commence this action upon the bond to recover such deficiency, and the case is not within the spirit of the statute, although covered by its letter.

For these reasons, as well as for those expressed by my brother Barrett, I concur in his opinion that the judgment should be affirmed.

Barrett, J.:

Leave to sue was undoubtedly essential. (Scofield v. Doscher, 72 N. Y., 491; 2 R. S., 191, § 153.) But this has now been obtained and is set up; that is sufficient. The statute should not be technically construed. "What is substantial and important is, that the plaintiff should not be permitted to proceed without authority.

There is nothing in the other points. As we read the complaint, leave to sue was unconditional. It was the amendment which was upon payment of costs. If the fact be otherwise, and the costs have not been paid, the defendant canbo plead.

The order should be affirmed, with costs.

Brady, J.

(dissenting).

When this action was commenced the plaintiff had not obtained leave of the court to sue, which was essential for the maintenance of his action.

I understand this rule to have been absolutely declared in the case of Scofield v. Doscher (72 N. Y., 491), referred to in the opinion of Barrett, J., and in which the court say :

“ But here, when he has shown, that this action is for a deficiency upon a foreclosure of a mortgage and sale of the lands, he shows at the same instant that he must have authority from the court to bring his action, and unless he has that he has no present right of action at all.”

The court cannot confer upon an amendment such retroactive power as to create a right of action, and cannot legalize therefore in that way an action which had no legal vitality at the time of its inception.

Judgment affirmed, with costs.


author: Brady, J.:

text:
    In the Matter of the Petition of GEORGE A. ROBBINS to Vacate an Assessment, Etc.

      Commissioner of public works — when not required, to advertise for bids, nor pro- t ewe an ordinance of the common council— chap. 528 of 1873.
    The commissioner of public works, in causing' the Eastern boulevard in New York to be graded and improved, in pursuance of the power conferred by chapter 528 of the Laws of 1873, was not required to have the said work done by contract after advertising for bids, nor was any ordinance of the common council necessary to enable him to act in the premises.
    Appeal from an order made -at Special Term, vacating an assessment for regulating, grading and improving the Eastern boulevard and One Hundred and Sixteenth street, from Avenue A to Sixth avenue, in the city of New York.
    The work was done under and in pursuance of chapter 528 of the Laws of 1873. The objection was that no ordinance of the common council authorizing the work had been passed, and that there had been no advertisements for bids or proposals, the work having been done by day’s work and not by contract.

      W G. Whitney, for the city of New York, appellant.

      George E. Miller, for the petitioner, respondent.
   Brady, J.:

The act of 1873 (chap. 528) declares that certain streets and avenues specifically named shall thereafter be known as the Eastern boulevard. It further declares that it shall be the duty of the department of public works forthwith to lay out and establish a street or avenue, also to be known as the Eastern boulevard; also to establish the grades of and for the part of such boulevard so designated and to be laid out, and to alter or amend the present grades, and further to lay out and establish public squares or places, of such extent as to that department should seem proper, between certain streets. It provides, therefore, for the necessary survey to accomplish these objects ; also for the laying out of the boulevard, the mapping or planning of it, the acquisition of the title to the lands required for the purpose, and for the filing of the maps or plans to be made. It further declares that the maps or plans w'hen filed shall be final and conclusive as well in respect’ to the mayor, aldermen and commonalty of the city of New York as in respect to the owners and occupants of the lands within the boundary described.

It further declares that the boulevard as laid out by the department of public works shall remain under the control and management of that department as to the regulating, grading, paving,-sewering, or otherwise improving and maintaining the same, in such manner as the commissioners may deem expedient, and directs the comptroller to borrow, from time to time, in the name of the mayor, aldermen and commonalty, by the issue of assessment bonds, such sums as shall be necessary to pay all the expenses incurred or to be incurred under the act.

It further declares that all acts and parts of acts in force in relation to the opening, widening, laying out, grading, regulating, sewering, and otherwise improving the streets, avenues, or roads in the city of New York, and the assessment and collection of the expenses of the same which are not inconsistent with its provisions, are applicable to it as if they were incorporated therein.

These features of the act have thus been set out to show that it was the design of the Legislature to confer upon the depart-, ment of public works full and complete power to do everything that was necessary to carry out the project described.

And they seem, in order to make this certain beyond all cavil, to have incorporated in the power given, all acts not inconsistent with this design. . The power to regulate, grade,’ improve and maintain was, it would seem, to begin, and was to be exercised after the boulevard was laid out and opened,, and it was to be done in such a manner as the department might deem expedient. The manner means as to the mode of doing the work to be then done, whatever it might be, which was necessary to perfect the contemplated improvement, because the other features of the improvement were to be carried out by survey ; the acquisition of title and the making and filing of the plan or map which, when filed, was to be conclusive. This view is in absolute harmony with the general design, which was to place the whole matter under the charge of the department of public works, which, as we have seen, was required to inaugurate the movement and to carry it on to completion. The powers thus conferred upon the department of public works were identified with an independent organization in regard to the public parks, created and continued by a series of laws enacted by the Legislature investing the department having control of them with authority to make contracts without an ordinance of the common council, and by virtue of its own inherent powers derived from the Legislature. (See Laws of 1857, chap. 7,71; Laws of 1865, chaps. 564, 565; Laws of 1866, chap. 367 and chap. 550; Laws of 1867, chap. 697; Charter of 1870, chap. 137, § 96.)

The act of 1873, supra, was an amendment of the act of 1870 (chap. 626), and in the latter act the same control was given to the department of public parks. The Laws of 1872 (chap. 872) transferred to the department of public works the. powers previously possessed over the streets by the department of public parks, and invested the former with all the functions and powers possessed by the latter. This was reiterated and confirmed by the charter of 1873 (§ 73, chap. 335). The intentions of the Legislature to place the matter of the class of improvements mentioned under the exclusive control of the department of public works is quite apparent from the terms of the act of 1873, and the prior legislation on a kindred subject referred to and illustrated by reference to acts passed. The principles involved and applicable herein are to 'some extent adjudicated in the case of Greene v. The Mayor (60 N. Y., 303), Aside from this view, no good reason presents itself against the preservation of this independent organization. On the contrary, it would seem quite clear that the system of jurisdiction in one department over certain streets and avenues in connection with the public parks should remain as better calculated to produce uniformity in improvement and government, and thus to extend the latter, as it were, beyond their own limits as originally laid out. If the Legislature designed to change this system it should be done directly, and should not be done by construction resting on the doctrine of implication.

For these reasons we think there was no necessity for an ordinance of the common council in regard to the improvement under consideration, and that the petitioner on that objection is not entitled to relief.

We think also that the board of assessors were not bound to wait for the completion of the entire work before laying an assessment, or to include the entire expense in one assessment list. The act of 1873, supra, contains no prolusion from which any proposition to the contrary emanates. The general rule which prevails in regard to these improvements is that the work contemplated may be done, in whole or in part, at such times as the department having control of it may determine. The exceptions to this rule rest in positive enactment. (Matter of Dugro, 50 N. Y., 513; see also Matter of Ellsworth, 53 id., 647; Manice v. The Mayor, 8 id., 120; Matter of Ingraham, 64 N. Y., 310.) In the Matter of Dugro the court said : “ The common council ” (which was then the depository of the powers referred to) “may, save as restrained by and subject to the directions of the Legislature, exercise their discretion freely as to the - time, mode and manner of laying out, making, grading and paving streets, and also as to the material of which the streets shall be made, or with which they shall be paved.” And this principle thus enunciated prevails here.

We do not feel called upon to consider any other objection urged by the respondents, except to say that it is valueless, and it follows, therefore, that the order appealed from should be reversed.

Present — Davis, P. J., Beady and Baeeett, JJ.

Order reversed.


text:
    FERDINAND W. PECK, Respondent, v. WILLIAM N. COLER, Jr., Appellant, Impleaded with WILLIAM N. COLER.

      Motion to vacate a judgment because the defendant was a minor — is not based upon an irregularity — Rule 37 requiring the irregularity to be specified in a notice of motion is not applicable thereto.

    A motion by a judgment-debtor to set aside the judgment on the ground that he was, at the time of its entry, an infant, and that no guardian ad litem, had been axipointed for him, is not based upon a mere irregularity, but upon an error in fact, and it is therefore unnecessary to specify the error in the notice of motion, as z’equired by Rule 37 in those cases in which the motion is based upon an irregularity.
    Appeal from order denying a motion to set aside a judgment because of an error in fact.
    This is an appeal from an order made at Special Term, denying a motion for leave to renew a former motion and to set aside the judgment entered in this action.
    The action was brought upon a promissory note made by the defendants, and judgment for $9,964.85 was entered by default on November 24, 1877.
    On January 13, 1880, a motion was made by the appellant to set the said judgment aside as to him, on the ground that at the time of its entry and up to July 6, 1879, he was an infant, and that no guardian ad litem had been appointed,‘for him. This motion was denied on a technical objection.
    On February 5, 1880, a motion was made at Special Term for an order granting leave to renew the said motion, and in the event of such leave being given, for an order setting aside the said judgment.
    A preliminary objection to the motion to set aside was made on the ground that the irregularity complained of was not specified in the notice of motion, as required by Rule 37, and was sustained, and the motion to set aside was deified.

      Horace Secor, Jr., for the appellant.

      J3. H. Berm, for the respondent.
   Brady, J.:

Tbe motion was to set aside the judgment, upon the ground that the judgment-debtor making the application was an infant at the time the judgment was entered agaiust him.

The learned justice in the court below seems to have been controlled by the conclusion that the ground stated for relief was an irregularity in perfecting the judgment. This, we think, was Wrong. The infancy of the defendant was an error in fact, affecting the validity of the judgment, which could not be held if it were true that the applicant was an infant at the time it was entered.

For these reasons we think the motion should have been entertained and disposed of by the learned justice on its merits, and that in declining to take that course he was in error, and the order appealed from should therefore be reversed, with ten dollars costs and disbursements, and the motion for leave to renew granted. The motion on the merits will then be heard at the Special Term.

Present — Davis, P. J., Brady and Barrett, JJ.

Order reversed, with ten dollars costs and disbursements, and motion for leave to renew granted.


author: Barrett, J. :

text:
    HENRY C. HEPBURN, Appellant, v. OLIVER H. P. ARCHER, Respondent.

      When the plaintiff vAll he required to deposit the contract sued on for inspection, though he denies having the possession thereof.

    The plaintiff brought this action claiming to recover as the assignee of one Fisk upon certain written contracts made by and between the defendant and said Fisk. The defendant, claiming that the said contracts were forgeries, applied for an order requiring the plaintiff to deposit them with the court, in order that he might inspect them. The plaintiff, in his opposing affidavit, said ‘‘that he has not now, nor has he had ever in his possession or under his control, any of the above-named contracts.”

      Held, that his bare denial of the possession of the contracts upon which he had sued, without any explanation or furth.er statement of the facts, was not sufficient to require the court to deny the application.

      Appeal from an. order made at Special Term, requiring the plaintiff to deposit with the court certain contracts and statements of account.
    This action was brought by the plaintiff as assignee of Lucy D. Fisk, as executrix, etc., of James Fisk, Jr., deceased, to recover moneys alleged to be owing by the defendant under a contract, alleged to have been made by him with the testator in his life-time. Under this contract it was claimed that the defendant was to pay to the said Fisk a* certain proportion of the profits which might be made under a certain' other contract existing between the defendant and the Erie Railway Company.
    The defendant claimed that the contracts referred to in the complaint were forgeries.
    On January 5, 1880, an order was granted to the defendant requiring the plaintiff to show cause why the former should not be allowed to inspect and take copies of the contracts and statements of accounts referred to in the complaint.
    In opposition to the defendant’s motion, the plaintiff read his own affidavit and that of Lucy Fisk, each containing the following clause: “Deponent further says that he has not now, nor has he had ever, in his possession or under his control, any of the above-named contracts or statements of accounts, nor has he any copies of the same.”

      8. W. Fullerton, for the appellant.

      W. JDorshetmer, for the respondent.
   Barrett, J. :

There may be cases where a verified denial in the precise language of the statute would be sufficient; but such an affidavit will hardly do where the plaintiff sues upon a written instrument which should naturally be in his possession. For instance : If A sues B on a promissory note, it will not answer for A, when called upon in a proper case, to say, without explanation, that the instrument is not in his possession or under his control. Here the plaintiff claims, as the assignee of certain contracts which the defendant believes to be forgeries. Their deposit may properly be required. (Jackson v. Jones, 3 Cow., 17.)

The plaintiff should have the instruments in his possession or under his control if his complaint be true. That at least would be the natural presumption. If, however, they were really assigned to him without delivery, he should have frankly stated all the facts, and the court could then have judged whether the claim of inability to produce *was well founded. His reticence under the circumstances disclosed is suspicious, and his denial is consequently not what the Code requires, satisfactory. (Code of Civil Procedure, § 806.)

We cannot permit any possible mental reservation, as to what constitutes possession or control, to deprive the defendant of a proper preparatory investigation on the suggestion of forgery or alteration.

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

Present — Davis, P. J., Bradt and Barrett, JJ.

Order affirmed.


author: Ingalls, J. :

text:
    JOHN VALENTINE, Respondent, v. WILLIAM H. BELDEN, Appellant.

      Right of an administrator to •purchase land on the foreclosure of a mortgage belonging to the estate — the title is held by him for the benefit of the estate, and the land is treated as personal property — he has authority to sell and convey the same.

    The plaintiff, having been appointed administrator of Mary E. Valentine, deceased, received, among other assets, a bond and mortgage, which he subsequently foreclosed, bidding in the premises described therein on the sale, and tailing a deed therefor in his own name, individually. Thereafter he entered into a contract with the defendant by which the latter agreed to purchase the said premises; but subsequently refused to do so, on the ground that the plaintiff, being the administrator of the estate, could 'not purchase the premises under the sale, and that he therefore could not convey a good title thereto. This action was brought to compel the defendant to perform his contract.

      Reid, that it was the right and duty of the plaintiff, if it was necessary in order to save the estate from loss, to bid in the premises on the sale, and that although he took the title in his own name, ne held the property for the benefit of the estate.

      That the premises thus purchased were to be regarded as personal property, and that it was the plaintiff’s duty to convert them into money, to be accounted for by him as part of the personal estate,
    That he was authorized to enter into the contract for the sale thereof to the defendant, and that the latter should be compelled to perform the same.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      T. W. Burd, for the appellant.
    Administrators and executors cannot purchase the estate under their charge to administer, or any portion of it. (Perry on Trusts, §§ 204, 206; JDavoue v. Fanning, 2 Johns. Ch., 252; Van Epps v. Van Epps, 9 Paige, 237;'' Ward v. Smith, 3 Sand. Ch., 592; Bostwick v. Atkins, 1 N. Y., 53; Ames v. Browning, 1 Bradf., 321; Jewett v. Miller, 10 id., 402; Forbes v. Halsey, 26 id., 65; 4 Kent’s Com., 438 [10th ed., 515].) The plaintiff was a trustee for the next of kin, and unable to purchase the real estate upon the foreclosure of the mortgage, except as such administrator, and not as an individual; and the purchase immediately became one for the benefit of the intestate’s heirs and next of kin, who have their election to confirm it, or to a conveyance of the premises to themselves; this election, in view of the cases above cited, may be exercised by them within a reasonable period, and against any purchaser with notice of the trust. (Van Epps v. Van Epps, 9 Paige, 237; Ward v. Smith, 3 Sand. Ch., 592; Forbes v. Halsey, 26 N. Y., 65.)

      S. H Thayer, for the respondent.
    The legal title to the lot of land is in the plaintiff, even supposing him to be a trustee of real estate, subject only to an equity in the next of kin to have it set aside and take the property, if they move before he sells and conveys. As to all others, he has a good estate in fee simple. (Jackson v. Van Half sen, 5 Johns., 43; Jackson, v. Walsh, 14 id., 407; Jackson v. Brooks, 8 Wend., 426; 15 id., 111.) Even as to the next of kin, the conveyance to the trustee of real estate is not void, but only voidable. (Cumberland Goal Co. v. Sherman, 30 Barb., 553; Bostwick v. Atkins, 3 N. Y., 53; Clark v. Law, 22 How. P. 11., 426; Johnson v. Bennett, 39 Barb., 237; Olcott v. Tioga B. JR., 27 N. Y., 546; Boerum v. Schenck, 41 id., 182.) The next of kin leaving him undisturbed until he finds a purchaser and conveys, his grantee will take a good title in fee simple, and he is a trustee of the fund thus invested for the benefit of the next of kin of his intestate. (Oolburn v. Morton, 5 Abb. P. K. [N. S.], 308; 36 How. P. B., 130; Pierson v. Thompson, 1 Edw., 212; Woodruff v. Cook, 2 id., 259; Burtis v. Brush, 5 N. Y. Surr. [Redi*,], 448; Bverton v. Tappen, 5 Johns. Ch., 497; Bchoanmaker v. Van Wyck, 31 Barb., 457; Holman v. Holman, 66 id., 215; Gardner v. Ogden, 22 N. Y., 327.) The plaintiff is not a trustee of real estate, and the law of real estate trusts does not apply to this case. (Kane v. Gott, 24 Wend., 641; Oolburn v. Morton, 5 Abb. P. B., 308; Bchoan-maker v. Van Wyck, 31 Barb., 457; King v. Merchants’ Express Go., 5 N. Y., 547; Bathbone v. Hooney, 58 N. Y., 463.) It was the duty of the administrator to protect the estate from loss by-purchasing at the sale in foreclosure. (Clark v. Clark, 8 Paige, 152; Colburn v. Morton, 5 Abb.-P. B., 308.)
   Ingalls, J. :

Mary E. Valentine died in March, 1876, intestate, leaving her surviving the following next of kin : John Valentine, William A. Valentine, Gerardus Valentine, Edward Valentine, all brothers; Julia E. Brown, sister ; Sarah J. Betts, sister ; Ellen A. Munson, sister ; John Scott, Eliza Scott, minor children of Fanny Scott, a sister; and four or five children of Mrs. Caroline Godby, a sister, living in Philadelphia, minors.

The plaintiff was appointed the administrator of the estate of said Mary E. Valentine, and qualified as such. At the time of her decease she was the assignee and owner of a bond and mortgage executed by Margaret H. Heydecker to Martha J. Stevens, dated July 1, 1873, and duly recorded, which mortgage was executed to secure the payment of $2,500 and interest thereon, and embraced the premises described in the complaint in this action. The bond and mortgage were assigned, for a valuable consideration, to the said Mary E. Valentine. The plaintiff as such administrator, by action in the Supreme Court, foreclosed the mortgage, and upon the sale bid in the premises for the sum of $4,100, and took from the referee a deed of such premises in his own name. The plaintiff entered into the following agreement with the defendant for the sale of said premises :

“Article of agreement made and entered into the 22d day of January, in the year one thousand eight hundred and seventy-nine, between John Valentine, of the city of Brooklyn, comity of Kings, and State of New York, party of the first part, and William H. Belden, of the city of Now York, party of the second part, in mamier following : The said party of the first part, in consideration of the sum of one dollar to him duly paid, the receipt whereof is hereby acknowledged, hereby agrees to sell unto the said party of the second part, a certain lot of land on the northerly side of One Hundred and Twenty-fifth street, New York, one hundred and sixty-five feet west of Fourth avenue, and containing twenty-five feet in width in front and rear, and ninety-nine feet eleven inches in depth each side, for the sum of five thousand dollars, which the said party of the second part hereby agrees to pay to the said party of the first part, as follows : Five thousand dollars in cash on the delivery of the deed, which is to be delivered on or before the twenty-second day of February next, at the office of S. H. Thayer, number 150 Nassau street, New York, at noon of that day.
“And the said party of the first part, on receiving such payment, at the time and in the manner above mentioned,- shall at his own proper costs and expense, execute, acknowledge and deliver to the said party of the second part, or to his assigns, a proper deed for the conveying and assuring to him or them the fee simple of the said premises, free from all incumbrances, which deed shall contain a general warranty and the usual full covenants.
“And it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties.
“ In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.
[l. s.] “ WILLIAM H. BELDEN,
[l. s.] “ JOHN VALENTINE, by
“ S. H. Thayer, Attorney.
“ Sealed and delivered in the presence of the words ‘ to this date,’ erased before execution.
“ S. M. BrowN, 2312 Fourth Avenue.”

In performance of sucb agreement the plaintiff tendered to the defendant deeds of conveyance executed, by him in his individual capacity, and in his character as administrator ample in all respects to answer the requirement of said contract.

The following .admission was made at the thne : It was admitted that deed (Exhibit C) was duly tendered and refused, and at the same time a deed from John Valentine (individually and as administrator, etc., of Mary E. Valentine) and Catharine, his wife; also deed from John Valentine, as administrator, etc., of Mary E. Valentine, deceased, in addition to the deed called for by the contract. No question seems to have been raised at the trial in regard to the form of the conveyance, and we shall therefore assume that in that respect no complaint is made by the defendant.

The Special Term decided, among other tilings, the following:

That the plaintiff is seized in fee simple of the lot of land and premises mentioned aud described in the complaint, and able to fulfill the contract on his part; that the conveyance of said premises tendered by him to the defendant would make a good and sufficient title thereto, as covenanted and agreed by him in and by said contract, and defendant was bound to accept the same ; that the defendant is not responsible for the disposition to be made of the purchase-money by the plaintiff, nor is it his right or his duty to look after the application thereof; that the defendant ant should accept the conveyance and pay to the plaintiff $5,000» with interest thereon, from the 22d day of February, 1879, at the the rate of seven per cent per annum, and the costs of this action.

Judgment has been entered accordingly in favor of the plaintiff against the defendant. We are convinced that the decision is correct, and that the defendant, by accepting the conveyances, would have acquired a perfect title to the premises. The plaintiff, as the administrator of the estate of Mary E. Valentine, became possessed of the said bond and mortgage as a part of her personal estate, and was authorized to collect the money due thereon by the foreclosure of. the mortgage, and it became his duty to resort to such remedy when payment was neglected or refused. To save the estate from loss it was also his right aud duty to bid in the premises at the sale, and to hold the same until they could be disposed of by him for the benefit of the estate which he represented. Although he accepted the deed in his individual name, and omitted to describe himself therein as such administrator, yet in legal effect he acquired the title and held the same for the benefit of the estate and not otherwise. In Dayton on Surrogates (3d ed., page 528), the author remarks: “ So in a case where the executor of a mortgagee purchased the equity of redemption of the mortgaged estate in his own name, with the money due on the mortgage and a small advance beyond it, it was hold that he was a trustee of the purchase for the benefit of the testator’s estate.” (See also Fosbrooke v. Balguy, 1 M. & K., 226; Clark v. Clark, 8 Paige Ch. R., 152.) The facts justify the assumption that such was the understanding and intention of the plaintiff in making the purchase, and his conduct in regard to the transaction seems to have been free from frauds. The law would not allow him to make the purchase, under the circumstances, except for the benefit of the estate which he represented. (Jewett v. Miller, 10 N. Y., 402; Fulton v. Whitney, 5 Hun, 17; Van Epps v. Van Epps, 9 Paige Ch. R., 238.) The premises thus purchased, by force of the doctrine of equitable conversion, are to be regarded as personal property in the possession of the plaintiff in his character as administrator, to be converted by him into money and accounted for by him as a part of the personal estate. The land thus purchased became a substitute for the bond and mortgage, and in our judgment the plaintiff acquired as perfect a title to it as he possessed to the bond and mortgage previous to the foreclosure, and the conveyances which he tendered to the defendant would vest in the latter a perfect title to the premises. (Long v. O'Fallon, 19 How. [U. S.] Rep., 116; 1 Williams on Executors [5th Am. ed.], 607; Dayton on Surrogates [3d ed.] 523; Clark v. Clark, 8 Paige Ch. Rep., 153; Field v. Schieffelin, 7 Johns. Ch. Rep., 150; Anstice v. Brown, 6 Paige Ch. Rep., 448.) We conclude that as the plaintiff tendered to the defendant a perfect title to the premises, he should have accepted the same as a performance of the agreement on the part of the plaintiff. The judgment must, therefore, be affirmed with costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.


author: Per Curiam:

text:
    THE CHATHAM NATIONAL BANK OF NEW YORK, Respondent, v. EDWARD D. SHIPMAN, Appellant.

      Answer — when it cannot be stricken out as frivolous.

    This action was brought upon certain promissory notes made by the defendant to the order of one Dui-yee, for whom they were discounted by the plaintiff. The defendant answered, alleging that he executed the notes for the accommodation of Duryee and without any consideration, which fact was known to the plaintiff at the time when it discounted the. said notes; that at that time it received from Duryee, as collateral to and to secure the payment of the said notes, a mortgage, which was then in process of foreclosure; and it prayed that this action might be stayed during the pendency of the one to foreclose the mortgage, or that the defendant might be subrogated to the rights of the plaintiff in the foreclosure suit, and for other relief.

      Selcl, that it was error to strike out the answer as frivolous.
    Appeal from, a judgment in favor of tbe plaintiff, entered upon an order striking out tbe answer of tbe defendant as frivolous.
    Tbe action was brought upon several promissory notes, made by tbe defendant to tbe order of one Duryee, for whom they were discounted by tbe plaintiff.
    Tbe answer alleged that tbe notes were given for tbe accommodation of Duryee, and were without any consideration as between tbe defendant and him, and that these facts were known to tbe plaintiff at tbe time it discounted them ; that as collateral to, and to secure tbe payment of tbe said’ notes, Duryee gave to tbe plaintiff bis bond and mortgage upon certain real estate in tbe city of New York, and that the payment of tbe said notes was amply secured thereby ; that tbe plaintiff had commenced an action to foreclose tbe said mortgage, which was still pending and undetermined. It concluded as follows: “ Wherefore, tbe defendant invokes tbe equitable powers of this court, that tbe complaint herein be dismissed, with costs; otherwise that all proceedings' herein be stayed until tbe completion and termination of said action for tbe foreclosure of said mortgage, or in default thereof that tbe defendant be subrogated to tbe rights of tbe plaintiff in' said bond and mortgage to tbe extent of tbe amount demanded in the complaint herein, and for such other relief as to the court may seem meet and proper.”

      George A. McDermott, for the appellant.

      II F. Anderson, for the respondent.
   Per Curiam:

It is enough, in order to dispose of this case, to say that the answer was by no means clearly frivolous. The facts set up show that the mortgage, sought to be foreclosed in the action referred to, secures the principal debt for which these notes were alleged to have been mere security to the knowledge of the plaintiff.

It is at least questionable whether the appellant is not entitled, on establishing these facts, to the relief he asks for by his answer. But that is a question which should be determined by the trial, and not by a summary motion, on the ground that the answer is frivolous. It requires an argument stronger we think, than can be made, to show that the answer is frivolous; and of course in such a case the defendant is entitled to a formal trial of the issue, either of fact or of law. (Youngs v. Kent, 46 N. Y., 672; Strong v. Sproul, 53 N. Y., 499.)

The form of the notes is not controlling, for the defendant alleges that the bank received them with full knowledge that they were mere collateral securities for the defendant’s indebtedness secured by the bond and mortgage. (2 B. S. [Edmund’s ed.], 199, §§ 153, 154.) •

The order striking out the answer as frivolous and the judgment entered thereon should be reversed, with costs.

Present — Davis, P. J., Beady and Baekett, JJ.

Order and judgment reversed, with costs.


author: Per Curiam :

text:
    JOHN JONES, alias ISAAC HOFFMAN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Proof of conviction of the principal, on the trial of an accessory — is admissible if the conviction takes place at any time during the trial of the latt&r.

    Upon the trial of the plaintiff in error, on an indictment charging- him with being an accessory to the crime of forgery, the principal was called as a witness, and on his examination it appeared that he had never been convicted. He was then allowed by the court to be arraigned upon the indictment against him, and plead guilty thereto, after which the record of his conviction was produced by the People and offered and received in evidence.

      Meld, no error.
    Writ of Error to the Court of General Sessions for the city and county of New York, to review the conviction of the plaintiff in error of being an accessory before the fact to the uttering of a forged check.
    In the Court of General Sessions John C. Richardson was indicted as principal of the crime of forgery in the third degree, and the plaintiff in error was charged in the same indictment as accessory before the fact. The case was brought to trial on the 20th day of January, 1879, and the trial was proceeded with as against the plaintiff in error. Richardson, the indicted principal, was called as a witness. It appeared upon his cross-examination that he had not theretofore been convicted as principal', and the counsel for the plaintiff in error thereupon moved that the jury be instructed to acquit his client upon that ground'. Pending the decision of that motion, Richardson was convicted upon his plea of guilty, and the record of the conviction was offered in evidence and received against the exception of the plaintiff in error, who objected upon the ground that the principal was not convicted until after the jury was sworn and the trial of the plaintiff in error as accessory had been commenced.

      Peter Mitchell, for the plaintiff in error.

      B. K. Phelps, for the defendant in error.
   Per Curiam :

The plaintiff in error was indicted as accessory to the crime of forgery. It is a well settled rule of the common law that an accessory cannot be convicted until after the conviction of his principal. It is not however, the rule that he cannot be put upon trial before such conviction, because it is the ordinary practice to put both upon trial at the same time where they are indicted together. (Starin v. People, 45 N. Y., 335.) And in 'such cases the jury are to be instructed by the court that unless the principal be found guilty by them, the accessory must be acquitted. In this case the principal had not been convicted at the time the trial commenced, but during the progress of the trial, when that fact appeared on the examination of the principal as a witness, he was allowed by the court to be arraigned upon the indictment against him, and to plead guilty thereto, after which the record of his conviction was produced by the People and offered in evidence against the plaintiff in error. We think there was no error in this course of proceeding.

The trial was still pending, and it was competent to prove any important fact essential to be shown .to convict the accused. We can conceive no reason why any distinction should be made because the conviction of the principal occurred after the commencement of the trial of the accessory. Certainly a concurrent trial of both could not be permitted if the conviction of the principal must precede the commencement of the trial of the accessory. No possible injury could accrue to the accessory by the proceedings taken in this case, that would not necessarily exist where both were tried together.

We are of opinion that the admission of the record and conviction was proper, and that the plaintiff in error has no cause of complaint on that ground.

This being the only point presented in the case, the judgment should be affirmed.

Present — Davis, P. J., Brady and Barrett, JJ.

Judgment affirmed.


author: Per Curiam.

text:
    THE BENEDICT AND BURNHAM MANUFACTURING COMPANY, Appellant v. DAVID G. THAYER, Respondent. SAME v. SAME. THE PEOPLE OF THE STATE OF NEW YORK ex rel. DAVID G. THAYER, v. PETER BOWE, Sheriff, etc.

      Execution against the person — not rendered void by the omission of a clause requiring the sheriff to return it — When the remedy of a party arrested is by special motion, and not by habeas 'corpus.

    "Where an execution issued against the person of a judgment-debtor fails to require the sheriff to return it to the proper clerk within sixty days from its receipt, the execution is not thereby rendered void, and an order allowing the plaintiff to amend the same by inserting such a direction should be granted as a matter of course.
    The remedy of a defendant held by the sheriff under an execution from which such direction is omitted is by a special motion, and not by an application for a discharge under a writ of habeas corpus.

    Appeals from orders made at a Special Term denying motions for leave to amend an execution, and from an order in proceedings in habeas corpus discharging the defendant from arrest.
    December 23, 1879, a judgment was docketed against the defendant, on which an execution against his property was duly issued, upon the return of which unsatisfied an execution against his person’ was issued on January 15, 1880. The execution did not contain a direction requiring the sheriff to return it to the clerk of the city and county of New York, as provided in section 1366 of the Code of Civil Procedure. On January 16th the defendant was arrested and placed in confinement. On January 17th the plaintiff applied for leave to amend the execution, which was denied. Immediately after the denial of this motion the defendant applied for a writ of habeas corpus, which was granted, and made returnable January 24, 1880. On February 3d the motion for a discharge was granted, and a motion for leave to renew the motion to amend and for the allowance of the amendment was denied. From these orders this appeal was taken.

      Cephas Brainard, for the appellant, The Benedict, etc., Co.

      A. C. Brown, for David Gr. Thayer, the respondent.

      A. J. Vanderpoel, for the sheriff.
   Per Curiam.

1. We think that the words omitted from the execution were not oí substance, and that the amendment should have been granted as a matter of course.

The order refusing leave to amend must therefore be reversed.

2. The order denying the second motion for leave to amend was proper, fox the reason that an appeal was then pending from

- the denial of the first motion.

That appeal should he dismissed, without costs.

3. We think the court below erred in discharging the prisoner on the writ oí hateas corpus. The execution was not void, and the omission of the words referred to should have been disregarded. Further, the defendant’s remedy was not by habeas corpus, but by special motion, on which the court could act freely with respect to an amendment.

The order discharging the prisoner should therefore be reversed, and the prisoner remanded to the custody of the sheriff.

Present — Davis, P. J., Bbady and Barrett, JJ.

No. 1. Order reversed, and motion to amend execution granted, without costs.

No. 2. Appeal dismissed, without costs.

No. 3. Order reversed, with ten dollars costs and disbursements ; order made remanding the prisoner to the custody of the sheriff under execution.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JACOB DUCHARDT AND ANN DUCHARDT v. WILLIAM H. KELLY, Justice of the District Court in the City of New York for the Sixth Judicial District.

      Summary proceedings — the summons need not state the judicial district within which the‘premises are situated — when the court will not take judicial cognizance of the judicial district within which the premises are situate — Implied concession that d fact exists.

    Where summary proceedings are instituted in one of the district courts of the city of New York, to dispossess a tenant for non-payment of rent, it is not necessary to state in the summons that the premises are situate within the judicial district in which the said proceedings are instituted.
    Although where the premises are described in the landlord’s affidavit as situated on a certain street, which said street lies wholly within the statutory boundaries of one of the judicial districts of the city of New York, the court will take judicial notice of the fact that such premises are situated within such district; yet where they are described by the street and number, and such street extends through two or more judicial districts, the court will not, from the number of the house, determine its position upon the said street, and will not, therefore, take judicial cognizance of the judicial district within which it is situated.

    How far a party is bound by an implied concession of the existence of a fact.
    Certiorari issued to review a summary proceeding had before William H. Kelly, as Justice of the Sixth Judicial District Court in the city of New York, in which Laura A. Delano, as landlord, made application for the removal, from premises No. 341 Pifth Avenue, of Jacob and Ann Duchardt, as tenants, on the ground of non-payment of rent, and in which a decision was rendered in her favor. The summons was issued on September 12, 1879, and on the return day thereof, to wit, September 16, 1879, the tenants appeared and objected “to the jurisdiction of the court in said proceeding, and also to the sufficieucy, regularity and legality of said summons.” The tenants also “objected to said summons on the ground that it did not show that the premises described therein were- situated within the said sixth judicial district.”
    These objections being overruled, a counter-affidavit was filed, setting forth as grounds of defence that the tenants had been evicted from part of the premises by the acts of the landlord.

      Thereupon, an adjournment was had to September 18th, and subsequent adjournments were made from the 18th to the 25th, and from the 25th to the 30th September, when the trial was had; and upon the conclusion of the 'trial there was an adjournment to October 2d, briefs being handed in on that day, and the decision being reserved. Judgment was rendered on October 4th, 1879.

      D. P. Holland, for the relators.

      Daniel Lord, for the respondent.

       See Armstrong v. Cummings (ante, p. 313).

   Per Curiam:

No ground of objection to the jurisdiction of the court was pointed out in the court below. The objection in that behalf was altogether too general to call for consideration. The objection to the form of the summons we think was not well taken. The objection was “ on the ground that it did not show that the premises described therein were situated within said sixth judicial district.” To maintain this objection it is necessary to establish that the summons must show in what district the premises are situated.

It is nowhere required by statute that the summons shall contain this fact. It is sufficient that it properly described the premises. The requisites of the summons are prescribed by statute. (3 R. S. [Banks’ 6th ed."], § 30, 825.) And it is enough, so far as the sufficiency of the summons is concerned, that it complies with that requirement.

The form of the objection was itself a virtual concession that the premises were in fact in the sixth judicial district, as it merely insisted that that fact should appear in the summons, and made that the point upon which the justice was to pass. His decision overruling that objection was correct.

The point that the adjournments exceeded ten days is not, we think, well taken. The several adjournments were made with the consent of the relators, and they appeared and tried the. issue without making any objection that the justice had been ousted of jurisdiction by the adjournments. The mere taking of time after the trial for the consideration of the questions by the justice is not in the nature of an adjournmentand especially would this be so where it was clone, at the request of the , parties, to give them opportunity to hand in their briefs. .

The ease was tried upon the assumption on both sides that the premises were in fact in the sixth judicial district.

Although that fact is within our personal knowledge, we cannot take judicial cognizance of it. Yet we feel that parties should be bound strictly to an implied concession when no issue upon the question of locality is made by the relator, and the case has proceeded upon a virtual concession as above indicated. We have examined the other points presented, and think they are without merit.

We think the proceedings should be affirmed, with costs and the writ quashed.

Present — Davis, P. J., Beady, and Baekbtt, JJ.

Proceedings affirmed, with costs, and writ quashed.


author: Brady, J.: Daniels, J. :

text:
    In the Matter of the Petition of FRANCES C. CLARK.

      One committed for contempt in not paying alimony is not entitled to jail liberties.

    Where in an action brought by a wife, for a divorce, the husband is arrested under a commitment issued upon an order adjudging- him guilty of a contempt, because of his failure to pay certain sums awarded to her for counsel fees and alimony, he is not entitled to the jail liberties upon giving the usual bond to the sheriff.
    Appeal from an order made at Special Term adjudging Bernard Reilly, sheriff, guilty of contempt, and imposing a fine upon him therefor.

      A.. R. Dyett and Vanderjpoel, Green & Oumings, for the sheriff, appellant.
    The order was simply one “for the payment of money,” and the only process which the court had jurisdiction to issue 'for its enforcement was a commitment or precept under 2 Revised Statutes, 534, title 3, section 1, subdivision 3, and Code, section 14, subdivision 3; and the subsequent order, at least so far as it imposed a fine on Clark or otherwise exceeded the power which the court possessed under that subdivision, was without jurisdiction. Upon such a commitment the defendant, Edwin Clark, was entitled to the liberties of the jail. (Van Wezel v. Van Wezel, 3 Paige, 43; People v. Bennett, 4 id., 282; Patríele v. Warner, 4 id., 397; People v. Spaulding, 10 id., 287; Ward v. Ward, 6 Abb. [N. S.], 79; Ford v. Ford, 10 id., 74; Matter of Watson v. JSielsm, '69 N. Y., 536; Ciarle v. Binninger, 75 id., 344, 350.)

      A. C. Thomas, for the petitioner, respondent.
   Brady, J.:

This is an appeal by the sheriff from an order made at Special Term adjudging him guilty of contempt, and imposing a fine upon him.

A commitment was issued against Edwin Clark, in an action brought by his wife for a divorce on the ground of adultery, for his failure to pay $200 counsel fee and seventy dollars alimony.

The defendant was duly served with the papers of which the motion was predicated, put failed to appear, and the order was consequently granted by default. A motion, was subsequently made to vacate the order thus granted, which, after a full hearing before Justice Barrett, was denied.

The commitment under which he was arrested and confined was what was called a close commitment, founded upon his contempt in not paying the counsel fee and alimony to which reference has been made. The sheriff, giving a construction to the order, and substantially adjudicating upon its effect, admitted the defendant to the liberties of the jail.

The question presented upon this appeal is, therefore, .whether he had any authority to allow that proceeding to be taken. This subject has recently been considered by Mr. Justice DANIELS, and disposed of by him in an elaborate opinion. The conclusions at which he has arrived are entirely satisfactory to us, and are adopted as a correct exposition of the law. (See Allen v. Allen, MSS. opinion, March, 1880.) The sheriff, as appears from Justice DaNiels’ decision, had no authority to admit Clark to the liberties of the jail, and, therefore, the order from which the appeal herein was taken was properly made, and it should be affirmed.

Present — Davis, P. J., Brady and Barrett, JJ.

Order affirmed, with ten dollars costs and disbursements.

The following is the opinion referred to :

Daniels, J. :

The defendant has been committed to jail for his failure and refusal to pay money to enable the plaintiff, who is his wife, to prosecute this action against him for divorce, and for her support during its pendency ; and he has now applied for his discharge, by means of the writ of habeas corpus, from imprisonment under the commitment on giving the usual bond for the liberties of the jail. So far as the restraint imposed upon him is dependent on his refusal to pay the costs of the preliminary motion, it cannot be sustained; for, as the law now stands, there can be no imprisonment for the failure or refusal to pay such motion costs (Code Civil Procedure, § 15). But the fact that he cannot be lawfully imprisoned for that cause will not entitle him to be discharged without payment of the residue of the amounts ordered to be paid, provided they constitute a legal and proper cause for his imprisonment. (The People ex rel. Woolf v. Jacobs, 12 N. Y. [Sup. Ct.], 428.).

As to the costs of the proceedings to punish the defendant, and the failure to pay the amounts ordered to be paid for the temporary support of the wife, and the expenses of her action required to be defrayed, there is no provision exempting him from imprisonment, neither is there any which, in terms or by reasonable implication, entitles him to the jail liberties on giving the usual bond to the sheriff who has him in custody. In one respect the provision on this subject was necessarily changed to render it conformable to the abrogation of that previously existing, which. allowed the benefit of the limits to persons arrested for the non-payment of interlocutory costs. Prior to that time a person arrested for failing to pay such costs was entitled to the liberties of the jail (3 R. S. [6th ed.], 719, § 61). But since the right to arrest for the non-payment of such costs has been taken away, the provision declaring’ who may be entitled to' the liberties of the jail has been correspondingly restricted. And that is now, in terms, limited to those who are in custody under orders of arrest, or by virtue of executions in civil actions, or in consequence of a surrender made by the party’s bail (Code Civil Procedure, § 149). These are the only persons now declared to be entitled to the jail liberties, and each of the cases provided for is clearly distinguishable from that of a contempt for the non-payment of money, for which the defendant in this instance has been imprisoned.

In the People v. Bennett (4 Paige, 282) the party had simply failed to pay interlocutory costs, and for that he was entitled to the liberties of the jail under the plain language of the statute, as it was at that time in force ; while in the present case he has been adjudged guilty of a contempt, because of his failure to pay the moneys held to be necessary for his wife’s support during the pendency of the action, aud to enable her to vindicate her rights by its prosecution. As to those sums and the costs of the proceedings following his refusal to pay, the authority of the statute has been quite clearly expressed. For, after the amounts ordered -to be paid have been demanded personally of the party, and that fact, together with his refusal to pay, have been shown by affidavit, then it has been declared that the court may issue a precept to commit the person so disobeying its order to prison, until the sum with the costs of the proceeding shall have been paid. (3 R. S. [6th ed.], 839, § 4.) This is plain language, incapable of being-misunderstood, which seems to fully justify so much of the order and commitment, under which the defendant is now restrained, as provided for his close confinement until he shall pay such costs and these two sums of money. The precept authorized is to be for the confinement of the delinquent in prison, which would not be executed by allowing him to go at large over the entire county under a bond binding him not to transcend such limits. If the precept could be executed in that manner its efficiency would be practically destroyed, and the summary remedy so clearly provided would be deprived of all the coercive power intended by the statute.

In Ford v. Ford (41 How., 169; 10 Abb. [N. S.], 74) this subject was carefully examined and the same conclusion was adopted; and Leslie v. Leslie (6 Abb. [N. S.], 193) considered entirely different subjects. And in the case of People v. Cowles (4 Keyes, 46), six of the eight judges of the Court of Appeals were of the same opinion (Id. 58), and that ought to be considered controlling upon this court. It is needless, however, to examine authorities when the statute has been enacted in language so plain. It requires that the party disobeying the order shall be committed to prison, and when restrained for that cause no provision has been made entitling him to the liberties of the jail. The application for his discharge must accordingly be denied, with costs.