text:
    CHAUNCEY CRAMER, Respondent, v. JOHN F. LOVEJOY, Appellant.

      'Practice — power of fhe court to allow amendments to the complaint at trial — when the justice of the terms imposed by it are renewable on appeal.

    This action was commenced in a Justice’s Court upon a complaint which alleged that “ oneB. F. Pomeroy, on November 19, 1875, made his promissory note for one hundred dollars, payable to R. J.Lovejoy, or bearer, one year from date, and indorsed on the hack by John F. Lovejoy, the defendant.” The defendant, by his answer, denied the complaint and alleged that he was not notified of the presentation and non-payment of the note. A judgment in the Justices' Court, in favor of the plaintiff, was affirmed by the County Court but reversed by the General Term. At the commencement of the second trial the plaintiff was permitted, against the objection and exception of the defendant, to amend his complaint by alleging a cause of action for “one hundred dollars, money lent in August, 1876; ” and also alleging that the said promissory note set out in the original complaint was left with the plaintiff by the defendant as security for the loan. The court found the facts, as alleged in the amended complaint, and ordered judgment in favor of the plaintiff for $100, with interest from August 1,1876.

      Meld, that the court had power to allow this amendment to he made upon the trial on such terms as it should deem just.
    That, as in this case, no terms whatever were imposed as a condition to the allowance of the amendment, the costs of the entire litigation, including those of the first appeal to this court, were thrown upon the defendant, which was, under the circumstances of the case, unjust to him.
    That the action of the County Court in this particular was reviewable on this appeal by the General Term.

      Handy. Burrows (15 Hun, 481) followed; Beillyy. President, etc. (5 Eastern R., 706) distinguished.
    That the judgment should be reversed, with costs of the appeal, unless the plaintiff should stipulate that the judgment be modified by striking therefrom all costs and disbursements allowed to the plaintiff from the time of the service of defendant’s answer to the original complaint to the time of the amendment, and by allowing to the defendant his costs and disbursements accruing during that period, such costs to be set off against the plaintiff’s damages and costs, and judgment to be entered in favor of the party entitled to the excess.
    Appeal from a judgment of the Cayuga County Court in favor of tbe plaintiff, entered on the decision of the court upon a trial before the court without a jury.

      Jacob B. Decker, for the appellant.

      II. V. Rowland, for the respondent.
   Smith, P. J.:

This action was commenced in a Justice’s Court. The complaint was as follows: “ The plaintiff complains of the defendant, and alleges that one B. F. Pomeroy, on the 19th day of November, 1875, made his promissory note for one hundred dollars, payable to R. J. Lovejoy, or bearer, one year from date, and indorsed on the back by John F. Lovejoy, the defendant.” The defendant’s answer denied the complaint, and alleged that he was not notified of the presentation and non-payment of the note. The cause was tried in the Justices’ Court, and judgment was rendered against the defendant for the amount of the note. The defendant appealed to the County Court, where the cause was tried before a jury, upon the pleadings interposed in the Justices’ Court, and the plaintiff recovered a verdict for the amount of the note, upon which judgment was entered, from which the defendant appealed to this court. The judgment was reversed and a new trial ordered in the County Court. The cause was again tried in that court without a jury. At the commencement of the second trial the plaintiff was permitted, against the objection and exception of the defendant, to amend his complaint by alleging a cause of action for $100, money lent in August, 1876, and also alleging that the said promissory note, set out in the original complaint, was left with the plaintiff by the defendant as security for the loan. The court found the facts as alleged in the amended complaint, and ordered judgment in favor of the plaintiff for $100, with interest from the last day of August, 1876. From that judgment this appeal is taken.

The principal question relates to the propriety of the amendment. We do not think the power of the court to allow the amendment, at the trial, can be successfully questioned. The power of the County Court in that respect is as broad as is the power of this court. It is an inherent power, which has often been exercised to the extent of amending the complaint by adding new causes of action, although by so doing the statute of limitations is avoided, as is said to be the case here. (Hatch v. The Central National Bank, 78 N. Y., 487.) Its exercise in furtherance of justice is authorized by section 723 of the present Code, the only limitations thereby prescribed being that when the amendment is effected by conforming the pleading to the facts proved, no substantial change of the claim or defense is permitted, and in all cases the amendment must be on such terms as the court deems just.

The serious question in this case arises upon the latter limitation. No terms whatever were imposed as a condition of the amendment, and the consequence is that the costs of the entire litigation, including those of the first appeal to this court, in which the defendant was successful, are thrown upon him. This seems unjust, and the injustice is the more apparent when we consider the nature of the issue upon which the litigation turned from the commencement of the action up to the termination of that appeal. The only claim for which the plaintiff contended up to that time was that the defendant had waived notice of protest and was liable as indorser, and upon that issue the defendant had ultimately succeeded. That being the case, we think that in the exercise of a just discretion the plaintiff should have been required to pay the defendant’s costs from the time of serving his answer to the original complaint, as a condition of the amendment, since the defendant had succeeded upon the issue thereby tendered, and the present recovery is solely uj>on the cause of action introduced by the amendment.

It is suggested by the respondent’s counsel that the original complaint was defective, and presented no cause of action and, therefore, an amendment was necessary. Eut the plaintiff had gone to trial upon it in two courts, without asking to be permitted to amend, and under it he had recovered of the defendant as the indorser of the note set out in the complaint. Had the amendment simply permitted him to perfect his cause of action upon the indorsement by alleging notice or waiver, the case would have been very different, in respect to the terms of the amendment.

Again, it is suggested by the respondent’s counsel that the testimony given on the part of the plaintiff was substantially the same as that given on the last trial. It is true that the testimony given on each trial related to the same interviews and conversations between the parties, but the version given by the plaintiff and his witnesses on the first trial tended to show that the plaintiff’s right of action was upon the note, while upon the second trial the transaction was made to appear as a loan, for which the note was a mere collateral security. On the first trial the claim and the recovery were for the amount of the note, with interest upon it from its date, tbe 19th of November, 1875. On the second trial the claim and recovery were limited to the sum alleged to have been loaned, with interest from the time of the loan, about nine months subse-, quent to the date of the note.

"We think the action of the Oounty Court in this particular is re viewable here. An appeal lies to this court from an order of the Oounty Court affecting a substantial right. (Code Civil Pro., § 1842.) On the same ground an appeal lies to the General Term from an order of the Special Term. (Sec. 1347, sub. 4.) Such an order has been held to be appealable, though resting in discretion. (Hand v. Burrows, 15 Hun, 481.) In that respect the appellate jurisdiction of this court differs from that of the Court of Appeals, which is limited to an order affecting a substantial right and not resting in discretion. (Code Civil Pro., § 190, sub. 2.) The case of Hand v. Burrows (supra) is an authority for saying that a question of terms is reviewable by the General Term when it affects a substantial right. Here the defendant had been awarded the costs of his appeal to the General Term to abide the event.” The “event” contemplated was the event of the issue involved in the appeal to the General Term, and upon that issue the defendant finally succeeded, the plaintiff having abandoned and virtually discontinued the action, so far as that issue was concerned, after the decision of the General Term. As the order of the County Court granting the amendment unconditionally deprived the defendant of those costs it affects a substantial right. The case of Reilly v. President, etc. (5 Eastern R., 706), which holds that the Supreme Court at General Term has no power to reverse the judgment of a County Court, on the ground of excessive damages, does not stand in the way of this appeal. That case proceeds upon the well-established rule that upon an appeal from a judgment of an inferior court under the Code, as upon a writ of error under the old practice, only errors of the court, and not errors of the jury, can be reviewed. It was properly held that section 1342 of the Code did not apply to the case because the appeal was not from the order. The remark contained in the last paragraph of the opinion as to what would have been the effect if the appeal had been from an order w;as obiter ; but eveii regarding it as an authoritative adjudication it does not relate to an order which, as in this case, deprives a party of a fixed right. The result is that the judgment should be reversed, with costs of this appeal to the defendant, unless the plaintiff will stipulate that the judgment be modified by striking out all costs and disbursements allowed to the plaintiff from the time of the service of the defendant’s answer to-the original complaint to the time of the amendment of the complaint, and by allowing to the defendant his costs and disbursements accrued during that period, such costs to be set off against the plaintiff’s damages and costs, and the party entitled to the excess to have judgment therefor, in which case the judgment is to be modified accordingly, and as so modified affirmed, without costs of this appeal to either party.

The direction for a reversal (in ease the plaintiff does not stipulate to modify, etc.), without granting a new trial, is made at the suggestion of the plaintiff’s counsel to enable him to sue again, if so advised, under section 405 of the Code of Civil Procedure.

Barker, Haight and Bradley, JJ., concurred in result.

So ordered.


source: Caselaw Access Project

author: Smiti-i, P. J. :

license: Public Domain

text:
    GEORGE W. PRICE and IRA L. PRICE, Respondents, v. EUGENE HEATH, Appellant.

      When the sorting and acceptance of an article is not a condition precedent to the passing of the title — one accused of a crime is presumed to he innocent.

    Upon the trial of this action, brought to recover damages for the conversion of a quantity of wagon hubs by the defendant, who claimed to own them as the assignee of a company to whom the plaintiffs had sold them, the plaintiffs claimed that by the terms of the contract the counting and sorting of the hubs was a condition precedent to an acceptance, and that as to the hubs not counted and sorted at the time the company failed the title had not passed. The only testimony which tended to prove this condition was that of the plaintiffs’ agent who sold the hubs, who testified on his re-examination that the member of the company making the purchase said that he wanted good blocks, and that they should accept only good ones; that the witness said that they should expect them to throw out anything that was not good; that whenever they had a sufficient number of hubs drawn there to make it an object the hubs were to be sorted as the plaintiffs would want to draw money occasionally. This testimony was substantially denied by the defendant’s witness.

      Held, that the evidence was insufficient to authorize the court to submit to the jury the question as to whether or not the sorting and acceptance of the hubs by the defendant was a condition precedent to the passing of the title.
    The plaintiffs claimed to recover upon the further ground that the company purchased the goods at a time when they were insolvent, without disclosing that fact and without intending to pay for them.

      Held, that it was error to refuse to charge, upon the request of the defendant’s counsel, that the charge of fraud against the assignors of the defendant was in the nature of a crime and could not be presumed, but must be established by evidence, and that the defendant was entitled, in the judicial consideration of the proofs, to the application of the rule that the presumptions of the law are in favor of the innocence of the person accused.
    Appeal from a judgment of the Y ates County Court, entered on the verdict of a jury, and also from an order denying a motion for a new trial on the minutes.

      F. L. Brown and Edwin Hicks, for the appellant.

      Calvin I. Huson, for the respondents.
   Smiti-i, P. J. :

Action for the conversion of a quantity of wagon hubs. The defendant claimed title as the assignee of the persons composing the firm known as the “ Shortsville Wheel Company,” which company, it is alleged, purchased the hubs of the plaintiffs. It was shown, by uncontradicted evidence, that about the 20th of November, 1884, the plaintiffs, by their agent Green, contracted to sell and deliver wagon hubs to the company, at their place of business at Shortsville, at the price of five cents for the small hubs and eight cents for the large ones, and that between that date and the 1st day of April, 1885, the plaintiffs, from time to time, delivered hubs under said contract. It was also proved that the company made payments on account of said hubs from time to time, so that, at the close of the delivery, there was due to the plaintiffs a balance which, according to the- testimony on the part of the defendant and the account kept in the books of the company, amounted to the sum of $129.31. The action was begun in a Justice’s Court, where the plaintiffs recovered a verdict of $197.97. The case was appealed to the County Court and was retried there, resulting in a verdict for $152.70.

The contention of the respondents’ counsel is, that the judgment may be sustained upon two grounds: First. That by the terms of the contract, the counting and sorting of the hubs was a condition precedent to an acceptance, and that, as to the hubs not counted and sorted, no title passed. Second. That the purchase was fraudulent, by reason of the fact that the purchasers, knowing themselves to be hopelessly insolvent at the time, and that they could not pay for the property purchased, failed to disclose that fact to the vendors. The case was submitted to the jury by the county judge, in each of those aspects, and they rendered a general verdict for the plaintiffs in the amount above stated. Upon the first branch of the case the judge charged the jury, in substance, that if it was the intent of the parties to the contract that the hubs should be culled or sorted before their acceptance by the vendees, no title passed until the sorting was made, and that it was for the jury to say, from the evidence, whether such was the intent.

The appellant’s counsel contends that there is no evidence in the case to warrant the finding of an agreement or intent that the sorting or counting of the hubs was to be a condition precedent to the vesting of the title in the vendees, and that the submission of that question to the jury was consequently erroneous. The point thus stated is raised-by exceptions duly taken.

The only witnesses who testify to the terms of the contract are Green, the agent of the plaintiffs, called by them, and C. Heath and Jessup, two of the members of the company, called by the defendant. All these were present when the contract was made. Green, on his direct-examination, stated nothing about a contract. He testified merely to the fact of the plaintiffs’ delivering hubs to the company, and their value. On his cross-examination, the fact was elicited that the hubs were delivered under a special contract of sale, at an agreed price; and he made a statement as to the terms of the contract, but said nothing about culling or sorting the hubs, until he was re-examined, when he testified that Heath said “he wanted good blocks; that some we had drawn there the year before had been a little soft in the center; they would sort the blocks. * * * That they should accept only good blocks. I said that we should expect them to throw out anything that was not good.” * * * “I told him that as often as we had a sufficient number of hubs drawn there to make it an object, to sort them up; that we should want to use money occasionally, as we would draw hubs. He agreed to that.”

That testimony was substantially denied by Heath and Jessup, and each of them testified that nothing was said about sorting and accepting before the delivery should be complete and the title pass.

The plaintiffs also put in evidence an account kept by the bookkeeper of the company, by which it appeared that he did not credit the plaintiffs on the books, with hubs delivered, until they had been soi’ted and counted and their number reported to him. No invoices of the hubs were furnished by the plaintiffs, and, for aught that appears, the company had no other way of ascertaining the number delivered, than by counting them after delivery.

We think the case is barren of evidence, to support the proposition that the hubs were to be sorted and counted as a condition precedent to the vesting of title. It is apparent from the testimony that the hubs were to be delivered to the company at its place of business before they were sorted. They were so delivered. The sorting and counting were to be done by the vendees merely to enable them to ascertain how many of the hubs they were to pay for. It is like the case of Burrows v. Whitaker (71 N. Y., 291), cited by appellant’s counsel, where it was said : “ It is very plain that the object of the culling and counting or ineasuring, was merely as a means of ascertaining the total value, at the rates agreed upon; and hence the title became changed, without the entire lumber being culled, counted or measured.”

The sorting and counting were to follow, and not precede, the delivery, and were to be performed by the vendee. Those features of the arrangement are conclusive upon the question, under the circumstances of the case. In Macomber v. Parker (13 Pick., 175), the law was thus laid down : The general principle is, that where any operation of weight, measurement, counting or the like remains to be performed, in order to ascertain the price, the quantity or the particular commodity to be delivered, and to put it in a deliverable state, the contract is incomplete until such operation is performed. (Brown on Sales, M.) But where the goods or commodities are actually delivered, that shows the intent of the parties to complete the sale by the delivery, and the weighing or measuring or counting afterwards would not be considered as any part of the contract of sale, but would be taken to refer to the adjustment of the final settlement as to the price.”

In Russell v. Carrington (42 N. Y., 118), Lott, J., speaking for a majority of the court, cited, with approval, the statement in the prevailing opinion in the court below, that “ the general rule on the subject is sufficiently expressed in the proposition, that when anything is to be done by the vendor in order to ascertain the value, quality or quantity of the goods sold, the delivery is not complete and the property does not pass to the vendee.” And he went on to say that the rule referred to is not applicable where the vendor is not to do the thing required.” See, also, Tyler v. Strang (21 Barb,. 198, 206); Bradley v. Wheeler (44 N. Y., 495).

It is undoubtedly competent for the parties to provide by their agreement when the title shall pass, but here there is nothing in the contract, as shown by the testimony, to indicate an intent other than that the title should pass when the property was delivered. The cases cited by the respondents’ counsel do not sustain his position. Stephens v. Santee (49 N. Y., 35) was decided upon the ground that by the contract the ties were to be inspected before delivery, and the vendee declined to accept them till they were inspected. Not having been inspected, it was held the title did not pass. See the comments on this case in Hurd v. Cook (75 N. Y., 459). Bacon v. Gilman (57 id., 656) is an authority against the respondents. In Foot v. Marsh (51 id., 288) the contract was held to be executory.

In what we have said, we do not refer to the culls or hubs that were rejected as defective. As to them, it is apparent the title was not intended to pass. If the defendant refused to deliver them, on a proper demand, he was doubtless liable for their value, but the recovery did not proceed upon that basis, and the verdict is for the whole amount, which the plaintiffs claim was unpaid upon the entire contract.

Upon the other branch of the case, above stated, the trial judge, in effect, submitted it to the jury to say whether the defendants’ assignors purchased with the intent to get possession of the goods without designing to pay for them, or whether, being insolvent and knowing that fact, they had no reasonable hopes, and did not believe, that by continuing their business, they could retrieve their fortunes and pay for the goods purchased.

A careful review of the case fails to disclose to us any evidence of fraud. The contract was made about five months before the firm failed. No inquiries and no representations were made as to the financial condition of the firm. The plaintiffs had made sales to the firm previously, and may be presumed to have known something of their character and standing. There is no evidence that the members of the firm knew, at that time, that they were insolvent. They did not ask the plaintiffs for credit. They paid about $500 on the contract, in advance, on the day it was entered into. They made additional payments from time to time, as the property was delivered, and a balance of only about one-seventh of the entire purchase-price remained due at the close. In these circumstances, the bare fact that they found themselves insolvent, five months after the contract was made is not, of itself, evidence that they made the purchase with a fraudulent intent.

The defendant’s counsel requested the judge to instruct the jury that the charge of fraud against the assignors of the defendant is of the nature of a crime and cannot be presumed, but must be established by evidence, and that the defendant is entitled, in the judicial consideration of the proofs, to the application of the rule that the presumptions of the law are in favor of the innocence of the person accused. The request was denied and the defendant’s counsel excepted. "What else was contained in the request than the elementary proposition that fraud is never to be presumed but must be proved ? That proposition is applicable to civil as well as criminal trials. The judge was not asked to say that the fraud must be proved beyond all reasonable doubt, he was merely asked to charge that in order to find fraud there must be evidence sufficient to overcome the presumption of fairness and good faith. The refusal was error. There are other exceptions but they need not be considered.

For the reasons above stated we think the judgment should be reversed and a new trial ordered in the Yates County Court, costs to abide event.

Barker, Haight and Bradley, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide event.


author: Smith, P. J.:

text:
    DAVID BAKER, Respondent, v. JAMES LEE, Appellant.

      Warrant for the collection of school taxes — effect of a renewal thereof by a trustee — he cannot limit the time within which it must be executed.

    In this action, brought to recover damages for the taking and selling of the plaintiff’s wagon, the defendant claimed to have taken the property, as a collector of school taxes, under a warrant 'issued to him on the 30th day of October, 1885. Upon the trial it appeared that a few days after the warrant had expired it was renewed by an indorsement made thereon by the trustee in the following words: “ Renewed for ten days. ” On November third the trustee wrote upon it the additional words: “ Renewed for twenty days from the time it run out.” The levy was made on November fifth and the wagon was sold on November twelfth. The court below held that as the sale was made after the ten days had expired it was not authorized by the first renewal, and that the second renewal was void for want of the written approval of the supervisor indorsed thereon as required by the statutes.

      Meld, that he erred in so doing.
    That the words of limitation added to the first renewal being unauthorized by the statute were to be treated as surplusage, and that the renewal was to be regarded as the issuing of a new warrant of the same force and effect, in all respects, as the original warrant, and that the collector was, therefore, protected by it in making the levy and sale.
    The cases determining the effect of a renewal of a collector’s warrant by a trustee, collated and considered by Smith, P. J.
    Appeal from a judgment of the Cayuga County Court reversing a justice’s judgment in favor of the plaintiff.

      Frank G. Gushing, for the appellant.

      D. L. Hurlbert, for the respondent.
   Smith, P. J.:

Action for taking and selling the plaintiff’s wagon. The defendant justified as collector of school taxes, by virtue of a warrant issued by the trustee.

It appeared in evidence that the original warrant issued to the defendant, as collector, had run out in his hands, and on the 30th of October, 1885, a few days after it expired, it was renewed by an indorsement upon it made by the trustee, or by his direction, in the following words : Renewed for teu days.” On November third, the trustee wrote upon it the additional words: Renewed for twenty days from the time it run out.” The collector levied upon the wagon November fifth and sold it on the twelfth. The county judge was of the opinion that as the sale was made after the ten days had expired, it was not authorized by the first renewal, and that the collector was not protected by the second renewal as that was void for want of the written approval of the supervisor indorsed thereon, as required by Laws 1864 (p. 1265, chap. 555, § 87), and by Laws 1867 (vol. l,p. 975, chap. 406, § 22). On that ground alone he reversed the judgment of the justice.

The plaintiff’s counsel contends that the first renewal was for 'the life of the original warrant, that is, for thirty days, and that the words for ten days ” were surplusage. In other words, that the authority of the trustee was limited to granting or withholding a renewal; that the effect of the renewal and delivery of the warrant to the collector was to make it a valid and effectual process, as of that date, including the time that it had to run ; and that the trustee had no power to diminish or enlarge the time.

¥e are inclined to think the contention is well founded. The statute simply gives the power to renew; it does not prescribe the form of renewal, nor authorize the trustee to say for what time the renewal shall operate. (Laws 1864, p. 1264, chap. 555, § 86, and Laws 1867, vol. 1, p. 974, chap. 406, §21.) It seems that the renewal ofthe warrant and its delivery to the collector have the effect of making it a new process,' of the same force and effect, in all respects, as the original warrant.'

In Folsom v. Streeter (24 Wend., 266), Chief Justice Nelson said : The renewal is, in fact, but a reissuing of the process, and I perceive no reason against regarding it as an original issuing.”

In Smith v. Randall (3 Hill, 495), it was said by Bronson, J.: “ The renewal of the warrant made it new process for all the purposes of collecting the taxes which then remained unpaid. By renewing the within warrant,’ the defendants said, in effect, to the collector: cWe command you, as within you are commanded,’to collect, etc. It is the same thing, substantially, as though the original warrant had been recited in the renewal.” In the same case he criticised and declined to concur in a dictum that fell from Mr. Justice Sutherland, in Preston v. Leavitt, 6 Wend., 663), to the effect that the renewal of a justice’s execution does not per se constitute a new execution.” The same doctrine was applied in Gale v. Mead (4 Hill, 109) under very peculiar circumstances. The taxable inhabitants of a school district voted to lay a tax for building a school-house. Thereupon the trustees made out a tax-list and warrant, but before the same were delivered to the collector, the vote for the tax was repealed at a subsequent district meeting. At a still later meeting the repealing vote was repealed, and thereupon the trustees renewed the warrant previously made out, and then, for the first time, delivered it to the collector. It was held to be valid. The court said: “As the warrant had never been issued before, there could not strictly be a renewal of it, within the meaning of the statute. Still, the renewal, under the hands and seals of the trustees, may, perhaps, be regarded as making it new process of that date.” (Citing Smith v. Randall, supra.)

In Seaman v. Benson (4 Barb., 444), Cray, J., said : “ The renewal of a warrant is the renewal of the command contained in it. By it the same power is given to the collector, the same time within which to collect, and the same responsibilities are imposed upon him as if it was an original warrant. And I am unable to perceive the substantial difference between the renewal of it by a repetition of the command, in the form of a new warrant, and renewing it by indorsement upon the back of the original.”

Parker v. Brown (17 Barb., 145) also was a case in which the original warrant was not issued to the collector until after its renewal. Allen, J., said : “The warrant not having been issued for collection prior to the renewal of November 3, 1851, it became, by such renewal and delivery to the defendant for collection, a valid and effectual process, for all purposes, as of that date.” (Citing Gale v. Mead and Smith v. Randall, supra.) “ The rights of the plaintiff and the powers and duties of the defendant were the same under such process that they would have been had the warrant been made out and dated as an original process on the day of its delivery to the defendant.” And in Thomas v. Clapp (20 Barb., 165) it was held that the renewal of a warrant for the collection of a school tax is equivalent to issuing a new warrant.

It is true that in none of the cases cited was the indorsement of renewal special or limited in any respect. But it is clear, in this case, that the trustee intended to renew the warrant and caused the indorsement to be made for that purpose; and it is equally clear, from the authorities cited, that if the renewal was effectual for any purpose it was equivalent to the issuing of a new warrant. The words of limitation were either mere surplusage or they had the effect to vitiate the renewal and render it void. To adopt the latter construction would be going counter to the manifest intention expressed by the indorsement, and would be applying a harsh and severe rule to the proceedings of school district officers, had in good faith. As was said by Nelson, Ch. J., in Folsom v. Streeter (supra): “ The system has become somewhat complicated, the duties of these officers often difficult and involving considerable responsibility. Their conduct should always be viewed with indulgence, and is entitled to the most charitable intendments of the law.” Ye think the words of limitation are to be treated as surplusage, and that the renewal is to be regarded as the issuing of a new warrant. Thus viewed it was a protection to the collector in making the levy and the sale.

Upon all the other points discussed by counsel we concur in the views expressed by the county judge in his opinion. The result is that the judgment of the County Court should be reversed and that of the justice affirmed.

Barker, Haight and Bradley, JJ., concurred.

Judgment of the County Court reversed and that of the justice affirmed.


text:
    ALBERT GILBERT, Jr., and CHARLES H. JONES, Appellants, v. WARREN D. YORK and SELA D. YORK, Respondents.

      Pleading — when a complaint in a County Court is demurrable if it does not allege the defendant to be a resident of the county.

    In this action, brought in the County Court of Chautauqua county to recover the price of a quantity of flour alleged to have been sold and delivered by the plaintiffs to the defendants, the complaint alleged that the defendants, as well as the plaintiffs, were engaged in business in the county of Chautauqua, but it contained no averment as to the residence of either of the parties. The defendants demurred upon the ground that, as it did not appear from the complaint that the defendants were residents of the county of Chautauqua, the complaint failed to show that the court had jurisdiction of the subject of the action or of the person of the defendant.

      Held, that the demurrer should he sustained.

      Judge y. Hall (5 Dans., 69) followed; Holbrook y. Baker (16 Hun, 176); Heenan v. New York, West Shore and Buffalo Baib'oad Company (64 id., 602) distinguished.
    Appeal from a judgment of the Chautauqua County Court, sustaining a demurrer interposed to the complaint.
    The defendants appeared by an attorney and demurred to the complaint upon the grounds :

      First. That the complaint does not state facts sufficient to constitute a cause of action.

      Second. That the complaint does not state facts showing that the court has jurisdiction of the persons of the defendants.

      Third. That the complaint does not state facts showing that the court has jurisdiction of the subject-matter of this action.

      Fowrth. That it does not appear by the complaint that, at the time of the commencement of this action, the defendants were residents of Chautauqua county.

      J. A. Parsons and John Woodward, for the appellants.

      Record d? Hooker, for the respondents.
   Smith, P. J.:

Action to recover the suni of fifty-seven- dollars and fifty cents, the price of a quantity of flour alleged to have been sold and delivered by the plaintiffs to the defendants. The complaint alleges that the defendants, as well as the plaintiffs, were engaged in business in the county of Chautauqua, but it contains no averment as to the residence of either of the parties. The lack of an averment that the defendants were residents of the county of Chautauqua, at the time of the commencement of the action, is the ground upon which the respondents’ counsel contends that the demurrer should be sustained.

The appellants’ counsel insists that, as it does not appear upon the face of the complaint that the defendants are not residents of the county, the demurrer is not well taken, and that if they do not reside in the county, their remedy is to set up the fact in their answer as a defense. It is true that a demurrer will not lie to a complaint, except for objections appearing upon the face thereof (Code Civil Pro., § 488), and where the ground of demurrer does not appear on the face of the complaint, the objection may be taken by answer. (Id., § 498.)

The question is, therefore, whether the omission of an averment that the defendants are residents of the county, makes the complaint demurrable on its face. And that question will be answered by determining whether the fact of residence within the county is essential to the jurisdiction of the County Court. Por if it is, the omission to aver it is a fatal defect, apparent on the face of the complaint, inasmuch as the complaint must allege every fact necessary to a good cause of action. Under the Constitution of 1846, it was held that the County Courts have not a general jurisdiction, as had the Courts of Common Pleas, which they superseded, but that they are new courts with a special, limited and statutory jurisdiction. (Frees v. Ford, 2 Seld., 176.)

The Constitution now in force continues the County Courts as they' existed under the Constitution of 1846, and provides that they shall have the powers and jurisdiction which they possessed thereunder, and shall also have original jurisdiction in all cases where the defendants reside in the county, and in which the damages claimed shall not exceed $1,000. (Art. 6, § 15.) A provision corresponding to the latter has been enacted by the legislature. (Code Civil Pro., § 340, sub. 3.) There is authority for saying that the provisions above referred to make the fact of the defendants’ residence within the county a requisite to jurisdiction, not only of the person of the defendant, but also of the action.

In Frees v. Ford (supra), which was an action in a County Court, the complaint did not contain any allegation as to the residence of the defendant. The defendant pleaded that the cause of action was not subject to the jurisdiction of the County Court. The plaintiff demurred to the plea, and it was adjudged in his favor. The Supreme Court affirmed, but, on appeal to the court of last resort, the judgment was reversed, on the ground that the fact of residence was jurisdictional, and, it not appearing on the record, the defect was fatal.

There are analogous decisions to the same effect. In Burckle v. Eckhart (3 Comst., 132) a question of jurisdiction arose under a provision of the Revised Statutes, which declared that every circuit judge, within the limits of his circuit, shall, concurrently with the chancellor, have and exercise all the original jurisdiction and powers vested in the chancellor, in all cases and matters in equity, where such causes and matters shall have arisen within the circuit of such judge, or * * * where the defendants or persons proceeded against, or either of them, reside within such limits. (2 R. S., 168, § 2.) It was held that in a case under the latter clause, the residence of a defendant within the limits of the circuit is a jurisdictional fact, and where that is wanting, the mere appearance of the defendant does not cure the defect. Gardiner, J’., speaking for a majority of the court, said: “ The residence of a defendant within the' limits of the circuit, according to the third subdivision of the second section of the statute above quoted, is a jurisdictional fact, which must exist before the court can act at all, either by issuing process or accepting the appearance of a defendant. It is necessary to give jurisdiction of the cause, not of the person.” (P. 137.)

Wheelock v. Lee (74 N. Y., 495) was an action commenced in the City Court of Brooklyn, the jurisdiction of which was held to be limited to cases in which the cause of action arose within its territorial limits, and cases in which the subject of the action was situated, or the party proceeded against resided, or was served with process, within those limits. It was also held that some one or more of these elements of locality must exist to confer upon the court jurisdiction of the cause ; and that where no other ground of jurisdiction exists, the service within the county is a jurisdictional fact. “ Its omission,” said Rapallo, J., speaking for all the members of the court who took part in the decision, is not cured by an appearance, for the objection is not simply that the court has not jurisdiction of the person of the defendant, but that it has not jurisdiction of the cause.”

The same doctrine was reiterated in the recent case of Davidsburgh v. Knickerbocker Life Insurance Company (90 N. Y., 526), which, also, was an action brought in the City Court of Brooklyn. The defendant was a domestic corporation. The summons was served upon the secretary of the corporation, in the city of Brooklyn, where he resided. The defendant appeared generally in the action and answered, and in no manner before trial complained that it was not regularly in court, or that the court had not jurisdiction. On the trial it appeared that the defendant was established and transacted its general business in the city of New York, and at the close of plaintiff's case, the court, on motion of the defendant’s counsel, dismissed the complaint for want of jurisdiction. The Court of Appeals held no error; that the court could not acquire jurisdiction of the action by consent, and might, whenever its attention was called to the matter, refuse to exceed the ¡lowers conferred upon it by the statute. “ There are, no doubt,” said the court “ many cases where the court having jurisdiction over the subject-matter may proceed against a defendant who voluntarily submits to its decision, but where the State prescribes conditions under which a court may ac.t, those conditions cannot be dispensed with by litigants, for in such case the particular condition or status of the defendant is made a jurisdictional fact.” (P. 530.) Judge v. Hall (5 Lans., 69), decided by the General Term in the old Fourth Department, is an adjudication in point, in the defendant’s favor.

There is another class of cases in which it has been held, or dicta have been uttered to the effect, not that the fact of residence is not jurisdictional, but that it relates to jurisdiction of the person of the defendant, and not of the action, and, therefore, that the objection that such fact is not alleged in the complaint, may be waived. An expression at the close of the dissenting opinion of Wells, J., in Frees v. Ford (supra), seems to present that idea.

The case of Holbrook v. Baker (16 Hun, 176), cited by the appellants’ counsel, is to that effect. The counsel contends that it overrules Judge v. Hall (supra). It is true the reporter has so noted it, and the opinion is there expressed that Judge v. Hall was erroneously decided. But it séems to us that the two cases are not necessarily in conflict. In Holbrook’s case, the complaint alleged that at the several days and times thereinafter mentioned, “the above-named defendant was a resident of the village of Sing Sing, in the county of Westchester.” The action was brought in the County Court of Westchester. The court, in the Second Department, inclined to the opinion that the complaint showed on its face, that the County Court had jurisdiction of the person of the defendant, but did not determine the point. We think the decision might well have been put upon the ground that the allegation was sufficient to give jurisdiction. (Burns v. O'Neil, 10 Hun, 494.) But, in another respect, the case differs from the one before us. The defendant, instead of demurring, answered on the merits and went to trial, and, after a jury had been impanneled, raised the objection for the first time, by a motion to dismiss the complaint. The General Term evidently took the view that the objection went only to the jurisdiction of the person, and that the conduct of the defendant was a waiver. In that view the case does not conflict with Judge v. Hall, in respect to the proposition that an allegation of residence is requisite to jurisdiction of the person. Upon that point it is in accord with Dake v. Miller (15 Hun, 356), where the opinion was written by the same judge who wrote in Judge v. Hall.

In Heenan v. New York, West Shore and Buffalo Railroad Company (34 Hun, 602), also cited by the appellants’ counsel, the allegations in the complaint, as to residence, were held sufficient, and the point decided was, that the defendant, by appearing and controverting those allegations and setting up the fact of non-residence in his answer, did not waive the objection to the jurisdiction. And in that case it was said by the court that “ the question is not one of jurisdiction of the person of the defendant merely. It is one- as to the limitation of the power of the County Court.” (P. 605.)

All the cases to which our attention has been called are agreed that the lack of an allegation of residence in the complaint is a jurisdictional defect, the only point of difference being whether it goes to jurisdiction of the cause of action or only to jurisdiction of the person of the defendant, in which case it may be waived. But even the latter view of the matter does not aid the plaintiffs, for in this case there has been no waiver. The defendants have simply availed themselves of their remedy by demurrer, and that they have done promptly.

The judgment should be affirmed, with costs, with leave to the plaintiffs to amend in twenty days on payment of the costs of this appeal and of the demurrer.

Haight and Bradley, JJ., concurred; Barker, J., taking no part.

Judgment affirmed, with costs, with.leave to the plaintiffs to amend their complaint within twenty days on payment of the costs of the demurrer and of this appeal.


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    MARY E. MILLER, Plaintiff, v. C. GAYLORD WOOD and MILTON LINCOLN, Defendants.

      Statute of limitations — an action for damages, occasioned by false representations, is barred in six yem's — Code of Civil Procedure, sec. 382, sub. 3 — what cases are within the provisions of subdivision 5 of that section.

    This action was brought to recover damages alleged to have been sustained by the plaintiff, in consequence of certain false and fraudulent representations made by the defendants, by which she was induced to purchase, at its face value, a bond and mortgage which was in fact worthless. The alleged fraud was committed and the purchase made in May or June, 1878; the action was commenced on September 23, 1885.

      Held, that the action was brought to recover damages for “ an injury to property,” within the meaning of that term as used in subdivision 3 of section 382 of the Code of Civil Procedure, and was barred by the six years’ statute of limitations.
    That even if it could be shown that the defendants had fraudulently concealed from the plaintiff the facts, that their representations were false and the mortgage was worthless, until a few months before the action was commenced, she could not maintain the action, under subdivision 5 of that section, as one for fraud, in a case cognizable by the Court of Chancery, before December 31,1846, as that provision has no application to a case in which, as in this, the only relief sought is a money judgment by way of compensation for damages.
    That subdivision 5 includes all cases formerly cognizable by the Court of Chancery, whether its jurisdiction therein was exclusive or concurrent with that of courts of law, in which any remedy or relief is sought for, aside from or in addition to a mere money judgment, and which a court of law could not give, although as part of the relief sought a money judgment is also demanded.

      Carr v. Thompson (87 N. Y., 160).
    Motion by the plaintiff for a new trial on exceptions taken at the Cayuga Circuit and ordered to be heard at the General Term in the first instance.

      O. S. Kent, for the motion.

      J. H. Cmnj}, opposed.
   Smith, P. J.:

The action is brought to recover damages alleged to have been sustained by the plaintiff in consequence of certain false and fraudulent representations made by the defendant Lincoln, at the instigation of the defendant Wood, whereby the plaintiff was induced to purchase of Wood, at its face value, a mortgage purporting to be a security for the payment of $800, which was in fact worthless.

The only question is whether the action is barred by the statute of limitations. The alleged fraud was practiced, and the purchase made, in May or June, 1878. The action was commenced on the 23d of September, 1885. The only relief demanded in the complaint is a money judgment for the amount of damages alleged to have resulted from the alleged fraud.

As an action for damages, it is within the six years’ limitation, and is consequently barred, unless it is excepted by the statute from that limitation. The six years’ limitation applies to an action to recover damages for an injury to property (Code Civil Pro., § 382, sub. 3), and “an injury to property” is defined by the Code to be “ an actionable act, whereby the estate of another is lessened, other than a personal injury or the breach of a contract.” (Sec. 3343, sub. 10.) By this circumlocutory process, the Code brings an action to recover damages for fraud and deceit within the six years’ limitation.

The plaintiff’s counsel contends that the evidence shows that the defendants fraudulently concealed from the knowledge of the plaintiff the fact that their representations were false and the mortgage was worthless until a few months before the suit was commenced, and that for that reason the statute does not apply.

In support of that contention, the counsel is understood to rely upon the fifth subdivision of section 382 of the Code. That subdivision provides that in an action to procure a judgment, other than for a sum of money, on the ground of fraud, in a case which, on the 31st day of December, 1846, was cognizable by the Court of Chancery, the cause of action is not deemed to have accrued, until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. That provision has no application to a case in which, as here, the only relief sought is a money judgment, by way of compensation for damages. It is intended to apply to cases in which the relief sought is, wholly or in part, such as was formerly within the peculiar province of the Court of Chancery. The Revised Statutes provided that bills in equity for relief, on the ground of fraud, should be filed within six years after the discovery, by the aggrieved party, of the facts constituting such fraud, and not after that time. (2 R. S., 301, § 51.) That statute was held to give six years after the discovery of the fraud, on a bill filed, even in cases where there was a concurrent remedy at law. (Mayne v. Griswold, 3 Sandf. Supr. Ct. R., 463; Bertine v. Varian, 1 Edw. Ch. R., 343.) The original Code provided that in an action for relief, on the ground of fraud, the cause of action is not to be deemed to have accrued until the discovery of the fraud. (Laws 1848, p. 512, chap. 379, § 71, sub. 6.) But by an amendment in 1849, that provision was limited to cases which, prior to the Code, were solely cognizable by the Court of Chancery. (Laws 1849, p. 635, chap. 438, § 91, sub. 6.) The provision, as thus amended, was held not to apply to cases formerly cognizable in chancery, in which there was a concurrent remedy at law. (Foot v. Farrington, 41 N. Y., 164.) To avoid the harshness of that rale,the fifth subdivision of section 382 of the present Code was adopted. (See Throop’s note to same.) That subdivision has been held to include all cases formerly cognizable by the Court of Chancery, whether its jurisdiction therein was exclusive or concurrent with that of courts of law, in which any remedy or relief is sought for aside from or in addition to a mere money judgment, and which a court of law could not give, although as part of the relief sought a money judgment is also demanded. (Carr v. Thompson, 87 N. Y., 160.) But, as has been said, when the only relief asked for is a money judgment for damages, the provision does not apply.

Furthermore, the complaint alleges that in August, 1878, “and at divers times between that date and January 1, 1885, this plaintiff was informed that said mortgage was not a good mortgage security for its face value, and that it was a second mortgage.” As the facts of which the plaintiff was thus informed constituted substantially the subject of the alleged misrepresentations and concealment, the nonsuit may be maintained on the ground that the fraud was disclosed to the plaintiff more than six years before the suit was commenced.

We think the motion for a new trial should be denied and judgment ordered for the defendants on the nonsuit.

Barker, Haight and Bradley, JJ., concurred.

Motion for new trial denied and judgment ordered for defendant on the nonsuit.


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    SAMUEL B. DICK and Another, Respondents, v. CHARLES PHILLIPS, Appellant.

      Practice — an order requiring a party to produce books and papers for inspection must be based upon a petition— a peremptory order cannot be granted in the first instance — Code of Givil Procedure, secs. 808-809.
    Under the present Code of Civil Procedure a party cannot be compelled to produce bis books and papers, for the examination and inspection of his adversary before trial, except in the mode pointed out in article 4 of chapter 8 of the Code. The proceeding must be by a verified petition praying for the discovery or inspection sought, and the only order that can be made in the first instance is one directing the party against whom the discovery or inspection is asked to allow it, or in default thereof to show cause why it should not be done.
    A peremptory order compelling the production of books or papers for examination and inspection cannot be granted ex parte. The statute intended to secure to the party proceeded against an opportunity to show cause against the granting of the application, and an order that deprives him of that right cannot be upheld.
    Appeal from an order of tlie Erie Special Term, refusing to vacate an order made by the Allegany county judge, directing the defendant to be examined, as an adverse party before trial, and to produce certain books and papers for examination and inspection.

      Charles II. Brown, for tbe appellant.

      Hamilton Ward, for the respondents.
   Smith, P. J.:

The order of the county judge, so far as it directs the defendant to be examined, appears to be regular, and the Special Term properly refused to interfere with it: But that portion of it which directs the production of books and papers for examination and inspection is of questionable propriety.

We are of the opinion that, under the present Code, a party cannot be compelled to produce his books and papers for the examination and inspection of his adversary, before trial, except in the mode pointed out in article 4, chapter 8 of the Code. The proceeding must be by a verified petition, praying for the discovery or inspection sought, and the only order that can be made in the first instance is one directing the party against whom the discovery or inspection is asked to allow it, or, in default thereof, to show cause why it should not be done. In other words, a peremptory order, compelling a production of books and papers for examination and inspection, cannot be granted ex parte. The statute is intended to secure to the party proceeded against an opportunity to show cause against the granting of the application, and an order that deprives him of that right cannot be upheld.

The respondents’ counsel refers to section 853 and subdivision 7 of section 872, as authorizing the order. We do not think they have that effect. Section 853 subjects to punishment for contempt a person who fails, without reasonable excuse, to obey an order, duly made and served, requiring him to attend and be examined, or so to attend, and bring with him a book or paper. Subdivision 7 of section 872 provides, that where the party sought to be examined is a corporation, the affidavit on which the proceeding is based shall state the names of the officers whose testimony is sought, or the books and papers as to which an examination or inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers. Neither of these provisions contemplates an order for a discovery, or, what is its equivalent, an examination and inspection of books and papers. The distinction between an order for a discovery of the contents of books and papers, by submitting them for examination and inspection, and one for their production merely, is pointed out in McGuffin v. Dinsmore (4 Abb. N. C., 241), cited by the respondents’ counsel. See, also, Smith v. MacDonald (1 id., 350).

That part of the order which requires the production of books and papers for examination and inspection should be reversed. In all other respects the order is afiirmed, without costs of this appeal to either party.

Barker, Haight and Bradley, JJ., concurred.

So ordered.


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    SOLOMON H. GOODMAN, Appellant, v. JAMES W. ROBB, Respondent.

      Pleading — hypothetical pleadings a/re still had — when the remedy is hy demurrer and not hy motion to strike out.

    Upon an appeal from an order denying a motion to strike out tlie second paragraph in the defendant’s answer, or to direct that it be made more definite or certain, it appeared that the first paragraph of the answer was a denial, while the second paragraph alleged that if the defendant spoke any slanderous words of and concerning the plaintiff, of the nature of those charged in the complaint, they were confidential and privileged and were not spoken in malice.

      Held, that as the second paragraph was obviously intended to be a statement of a separate defense, and as it was plainly hypothetical, it was bad.
    That as there was no authority given by the Code to strike out an entire count of an answer on the ground of insufficiency, and as it would be useless to compel the defendant to make the count more definite and certain while it remained hypothetical and, therefore, bad, the plaintiff’s motion was properly denied.

      It seems, that the plaintiff’s remedy was to interpose a demurrer to this count upon the ground of its insufficiency in law.
    Appeal from so mncb of an order of the Orleans Special Term as denied the plaintiff's motion to strike out the second paragraph in the defendant’s answer, or to direct that it be made more definite and certain.

      William K Hobby, for the appellant.

      John Cunneen, for the respondent.
   Smith, P. J.:

The action is for slander. The answer originally contained several paragraphs separately numbered, all of which except the first and second have been stricken out. The first paragraph is a denial. The second alleges, in substance, that if the defendant spoke any slanderous words of and concerning the plaintiff, of the nature of those charged in the complaint, they were confidential and privileged and were not spoken in malice.

The plaintiff moved that the second paragraph be stricken out on the ground that it is alternative and hypothetical, and also that the defendant be required to make it more definite and certain, in several respects, and, among others, so as to indicate particularly whether the defendant admits or denies the speaking of the slanderous words charged in the complaint, and which of them he alleges were privileged or confidential, and what words spoken by him he intends to mitigate. That branch of the plaintiff’s motion was denied by the part of the order which is now appealed from.

The second paragraph is not only separately stated and numbered, but it contains what was obviously intended to be a statement of a separate defense. It is a distinct count of the answer. Plainly, it is hypothetical. Under the system of pleading that preceded the Code, it was a rule that a plea must either traverse or deny, or confess and avoid. (1 Ch. Pl. [14th Am. ed.], p. 526.) The same rule has frequently been applied under the Code. (Lewis v. Kendall, 6 How. Pr., 59; Buddington v. Davis, id., 401.) The rule is as necessary under the present system as it was under the old, to prevent irrelevancy, uncertainty and useless prolixity in pleading. The count under consideration assumes to set up matter in avoidance of the charge in the complaint, but it does not confess the charge. For that reason, it is bad.

The only question is whether the remedy for a defect of that nature is by motion to strike out. The question whether.a demurrer would lie is not before us and, therefore, we do not decide it, but it would seem that that remedy is available. In Lewis v. Kendall (supra) and Buddingion v. Davis {supra) a demurrer was sustained. The Code allows a demurrer to a defense consisting of new matter, on the ground that it is insufficient in law, upon the face thereof. (Code Civil Pro., § 494.) “ Insufficiency ” in a pleading is not defined by the Code. An answer that presents no defense and does not take issue with the complaint may well be regarded as insufficient. An irrelevant pleading, that is, one which has no substantial relation to the controversy between the parties to the suit, has been characterized as “insufficient.” (Moak’s Van Santvoord’s Pl. [3d ed.], p. 772.) So, too, it has been said, a frivolous reply or answer may, if the party prefer, be demurred to as insufficient, although the Code gives a more summary remedy by an application for judgment. (Id.) But we know of no authority under the Code for striking out an entire count of an answer on the ground of insufficiency. This is not the case of a sham defense, under section 538 of the Code, nor a motion to strike out irrelevant or redundant matter provided for by section 545. An entire count cannot be stricken out as irrelevant or redundant. (Fasnacht v. Stehn, 53 Barb., 650.)

In Wies v. Fanning (9 How. Pr., 543) a part of an answer which was held to be hypothetical was stricken out, but the same portion was held, also, to be irrelevant and redundant. On that ground the remedy by motion was appropriate. Irrelevant and redundant matter cannot be demurred to, but the objection must be taken by a motion to strike out. (Moak’s Van Santvoord, 771.)

The motion in the present ease was not only to strike out the second count but also to require it to be made more definite and certain. That it is justly chargeable with indefiniteness and uncertainty is apparent, but to correct it in those particulars would have been useless so long as it remained a hypothetical or de bene esse pleading.

We think the portion of the order appealed from must be affirmed, but as the pleading is bad, without costs, and with leave to the plaintiff to demur, if he thinks proper, in ten days.

Barker and Bradley, JJ., concurred; Haight, I., not sitting.

Order affirmed, without costs, with leave to plaintiff to demur or answer within twenty days.


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    JOHN McGIVNEY, Appellant, v. JEFFERSON L. CHILDS, Respondent.

      Supplementary proceedings — an order forbidding a debtor to dispose of 7ds property only applies to property then owned by him — the proceeds of sale of exempt property are not affected by it.

    Upon tlie hearing of a motion to punish the defendant for contempt in violating an order, made in supplementary proceedings forbidding him from transferring or disposing of his property not exempt from execution, it appeared that on October seventeenth, the day when the order was served, he had two horses of the value of $225, which, with three cows owned by him, were mortgaged to one Russell. On November twelfth the defendant, with the consent of the mortgagee, traded one of the horses for another horse, eighty dollars in money and a note for fifteen dollars. Before November twentieth he paid on a debt owing to the mortgagee, but not secured by the mortgage, eighty-three dollars and sixty-five cents in money and the note, which was received as cash.

      Beld, that this payment was not a violation of the injunction order, as the money and note were acquired subsequently to the time of the service of the order, and not being owned by the debtor at that time the order did not apply to them.

      Beld, further, that the injunction order did not apply to the money and note in the hands of the judgment debtor, for the reason that they were the proceeds of property sold by him, which, as appeared from his affidavits, were exempt from execution, as such exemption attached to such proceeds for a reasonable time.
    Appeal from an order made by the county judge of Erie county, ' denying a motion in supplementary proceedings to punish defendant for an alleged contempt.

      Charles F. Witcher, for the appellant.

      Barnes <& Knight, for the respondent.
   Smith, P. J.:

The plaintiff, a judgment creditor of the defendant, instituted supplementary proceedings against the latter, under section 2435 of the Code of Civil Procedure, and obtained therein an order forbidding the defendant from transferring or disposing of his property not exempt from execution. The order was served upon the defendant on the 17th of October, 1885. At that time the defendant had two horses of the value of $225, which, with three cows owned by him, were mortgaged to one Bussell. On the twelfth of November following, the defendant, with the consent of the mortgagee, traded one of the horses, a sorrel, for a bay horse, eighty dollars in money and a note for fifteen dollars. Subsequently, and before the twentieth of that month, he paid on a debt that he was owing to the mortgagee, but which was not secured by the mortgage, the sum of eighty-three dollars and sixty-five cents in money, and the note for fifteen dollars, which the creditor received as cash.

The plaintiff contended before the county judge, and now contends, that such payment was a violation of the injunction order, and rendered the defendant liable to be punished for a contempt. We think the county judge was right in deciding adversely to that contention. The money and the note were acquired subsequently to the service of the order, and not béing owned by the debtor at that time, the order did not apply to them. This holding accords with numerous decisions under the old Code. (Potter v. Low, 16 How. Pr., 549; Campbell v. Genet, 2 Hilt., 290; Graff v. Bonnett, 25 How. Pr., 470; Caton v Southwell, 13 Barb., 335.) We do not understand that the rule has been changed by the present Code. (See Code Civil Pro., § 2469, and Throop’s note to same.)

Furthermore, the injunction order in this case did not apply to the money and note in the hands of the judgment debtor, for the reason that they were the proceeds of property sold by him, which was exempt from execution, and the exemption attached to such proceeds for a reasonable time. (Tillotson v. Wolcott, 48 N. Y., 188.) The affidavit, read in opposition to the plaintiff’s motion, shows that the defendant had a family dependent on him for support, and that the team, of which the sorrel horse was one, was necessary to him in his business. The horse, consequently, was exempt. (Code Civil Pro., § 1391.)

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

Barker, Haight and Bradley, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    MICHAEL SHEEHAN, Respondent, v. XAVER MAYER, Appellant, Impleaded, etc.

      Leases of land in theis' reservation, by the Seneca Indians — right of a mortgagee of the lease and improvements to enforce his mortgage —when a renewal of the lease by him will be presumed.

    In June, 1872, Oasler Kedeye, a Seneca Indian, residing on the Allegany Indian reservation, in the county of Cattaraugus, leased to the plaintiff a piece of land on said reservation for a term of thirteen years from November 1, 1872; the land so leased being within the boundaries of one of the villages mentioned in the act of congress, passed in 1875, authorizing the Seneca nation to lease certain lands and confirming, for the term of not exceeding five years or less, existing leases. On November thirtieth the plaintiff assigned the lease and transferred the possession of the land, on which were then a house and barn, to the defendant, in consideration of the sum of $1,100, payment of which was secured by a mortgage upon the house and barn, and also upon his interest in the lease, and all buildings then on said land or thereafter to be erected thereon.
    The defendant continued in possession of the premises under said lease, and in April, 1878, default having been made, the plaintiff commenced this action to foreclose said mortgage. The action was tried in May, 1881, and in March, 1884, judgment was entered directing that the premises be sold; that the purchaser be let into possession; that the proceeds, or so much thereof as may be necessary, be applied to the payment of the amount unpaid upon the mortgage, and that the deficiency, if any, be paid by the defendant.
    Subsequently the defendant moved to modify the judgment by striking out the provision that the purchaser at the foreclosure sale be let into possession, upon the ground that the lease referred to was void at its execution, and that, even if it was made valid by the act of congress, it was for five years only from the passage of the act, which term had expired before the trial of the action.

      Held, that the motion was properly denied.
    That the defendant was not in a position to raise the question whether or not the lease had expired; that it had not expired when the action was commenced, and it did not appear that the defendant had been disturbed in his possession when the judgment was entered.
    That the right conferred by the act of congress upon the Indian nation, to the . possession of the land at the expiration of the five years, was subordinate to the right of the owner of the improvements to a renewal of the lease, provided for in said act, for twelve years thereafter.
    That the plaintiff’s interest, as mortgagee of the improvements and of the land, gave him the right of renewal under the act, and from the fact that his assignee continued in possession under the lease it would be presumed, if necessary, that the lease had been renewed.
    Appeal from a judgment in favor of the plaintiff, entered upon a decision made at the Cattaraugus Special Term, and from an order denying a motion to modify the judgment.

      Henderson <& Weni/worth, for the appellant.

      Ansley <& Treela/nd, for the respondent.
   Smith, P. J.:

In June, 1872, Casler Redeye, a Seneca Indian, residing on the Allegany Indian reservation, in the county of Cattaraugus, executed to the plaintiff a lease of a piece of land on said reservation for the term of thirteen years from the 1st day of November, 1872. The land so leased was within the boundaries of the village of Great Yalley, one of the villages mentioned in the act of congress, ■approved February 19, 1875, entitled “An act authorizing the Seneca nation of New York Indians to lease lands within the Cat-taraugus and Allegany reservations, and to confirm existing leases.” (U. S. Sess. Laws, 1874, 1875, p. 330.)

On the 30th of .November, 1875, the plaintiff assigned said lease and transferred the possession of said land, on which were then a house and barn, to the defendant, in consideration of the sum of $1,100 agreed to'be paid therefor by the defendant, to secure the payment of which the defendant, on the same day, executed to the plaintiff a mortgage upon the house and barn and also upon his interest in said lease and all buildings then on said land or thereafter to be erected thereon.

The defendant continued in possession of the premises under said lease, and in April, 1878, default having been made, the plaintiff commenced this action to foreclose said mortgage. The action was tried in May, 1881, and in March, 1884, judgment was entered directing that the premises be sold; that the purchaser be let into possession; that the proceeds, or so much thereof as may be necessary, be applied to the payment of the amount unpaid upon the mortgage, and that the deficiency, if any, be paid by the defendant.

Subsequently, the defendant moved at Special Term to modify the judgment so as to conform to the decision of the trial judge, and particularly to strike out the provision that the purchaser at the foreclosure sale be let into possession. The motion was denied.

The argument of the appellant’s counsel, if we correctly apprehend it, may be summed up in the proposition that the lease referred to was void at its execution, and; at the most, was made valid by the act of February, 1875, for five years only from the passage of said act, and that, as the five years had elapsed before the trial, the court erred in holding that the mortgage was then a subsisting lien upon the premises.

The act referred to, made valid all then existing leases of lands within the boundaries of the villages therein named, in which Indians of the Seneca nation, or persons claiming under them, were lessors (with an exception not material to the present case) for a period of five years after the passage of the act, except such as, by their terms, expired at an earlier date. The act also provided that, at the expiration of a lease, the nation should be entitled to the possession of the lands and have power to lease the same. It also made such leases renewable, at their termination, for periods not exceeding twelve years, and provided that the persons who might be at such time the owners of improvements erected upon such lands should be entitled to such renewed leases, and to continue in possession of such lands on such conditions as might be agreed upon by such owuers and the councilors of the Seneca nation, or, in case of their disagreement, by referees, to be chosen as provided in the act. (Sec. 3.)

The lease in question, if invalid before the act, was made valid by its provisions. We do not think the defendant is in a position to raise the question whether the lease had expired. Clearly, it had not expired when the suit was commenced, as that was within five years after the passage of the act. Whether the plaintiff had availed himself of the right of renewal, under the act, is a question which does not concern the defendant. It does not appear that the defendant had been disturbed in his possession when judgment was entered. For aught that appears, his only right to the possession was under the lease assigned to him by the plaintiff. The right of the Indian nation to the possession of the land, at the expiration of the five years, was subordinate to the right of the owner of the improvements to a renewal of the lease for twelve years thereafter. While it was not proved at the trial that the lease had been renewed, neither was the contrary shown. The plaintiff’s interest, as mortgagee of the improvements and of the leasehold, we conceive, gave him the right of renewal under the act; and from the fact that his assignee continued in possession under the lease, it may be presumed, if necessary to support the judgment, that the lease had been renewed.

We think the case was correctly disposed of at the trial and upon the motion under review, and that the judgment and order should be affirmed, with costs.

Bradley, J., concurred; Barker and Haight, JJ., not sitting.

Judgment and order affirmed.


author: Bradley, J.:

text:
    LAURA A. PRIOR, by Guardian, etc., Appellant, v. THOMAS EDWARD PRIOR, Appellant, and JACOB V. HALL, Respondent.

      Motion to vacate a sale in partition — when denied on account of the rights of persons purchasing before notice of the motion — the discretion of the County Court is not remewable in this court.

    Upon the hearing of this appeal from an order of a County Court, denying a motion to set aside a judicial sale of real property made pursuant to a judgment entered in this action, it appeared that the defendant Hall was entitled to an estate for life, while the plaintiff and the other defendant, both of whom were infants, were entitled to the estate in remainder. After the sale the value of this estate for life was paid to the defendant Hall, and the residue was paid into court for the benefit of the infants. The sale was made on December 10, 1881, and this motion was made in April, 1886, in behalf of the infant parties, on account of the inadequacy of the price, and upon the further ground that the sale was, under the facts existing in this case, prohibited by section 1533 of the Code of Civil Procedure.

      Held, that conceding that the sale could not he sustained if attacked in a direct proceeding brought for that purpose, yet as it appeared that, since the sale, portions of the premises had been sold to purchasers in good faith who had paid taxes and made improvements thereon, and that the persons who had made such purchases and payments were not made parties to this motion, an order of the County Court denying the motion should be affirmed.
    That it should be affirmed for the further reason that in deciding the motion the County Court was called upon to exercise its discretion, and that a discretionary order of that court cannot be reviewed by this court.

      Seiily v. Delaware and Hudson Canal Company (5 Eastern R., 706) followed.
    Appeal from an order of the Erie County Court denying a motion to set aside a judicial sale of real property, made pursuant to a judgment entered in this action, which was brought for the partition of certain real property.
    The defendant Jacob Y. Hall was a life tenant of the premises, and the plaintiff and the other defendant had the estate in remainder in the land. The premises were sold. The life tenant was paid from the proceeds the estimated value of his estate, and the residue was paid into court for the other parties, who were infants. This sale was made December 10, 1881. The proceedings for the motion were taken in February, and the motion was heard in April, 1886, in behalf of the infant parties. The motion was denied, and from that order the infant parties, Laura A. Prior and Thomas E. Prior, appealed.

      Roberts, Alexander & Messer, for the appellants Laura A. Prior and Thomas E. Prior.

      O. O. Cottle, for the respondents Jacob Y. Iiall and Elizabeth A. Hall.
   Bradley, J.:

The question of adequacy of the purchase-money paid for the property on the sale, was a disputed one of fact. It appears that the sale took place more than four years before the motion was made to set it aside, and that in the meantime the rights of third parties who purchased a portion of the property have intervened.

Ordinarily in such case a sale will not be set aside on the ground of mere inadequacy of tbe sum produced by the sale. The leading contention on the part of the appellants is, that the direction to sell, and the sale, were ineffectual, because not permitted by any statute, but that, on the contrary, the sale was within the inhibition of the statute, which provides that “ where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for a partition of the real pi’operty to which it attaches according to their respective shares therein, subject to the interest of the person holding the particular estate therein. But in such an action the property cannot be sold, and if it appears in any stage thereof that partition cannot be made without great prejudice to the owners, the complaint must be dismissed.” (Code Civil Pro., § 1533.)

The relation of the parties to the land comes within the provisions of this section, and unless the direction to sell and the sale are in some manner relieved from the operation and effect of the statute, there may be some difficulty in sustaining them in a direct proceeding for relief against the sale. The direction to sell and the sale are not void, because the court had jurisdiction of the subject-matter of the action and of the parties to it. (Cromwell v. Hull, 97 N. Y., 209.)

It is a well-settled proposition that a party having an estate in remainder cannot in such an action compel a present partition and sale of land against the consent of a life tenant. (Sullivan v. Sul ivan, 66 N. Y., 37; Hughes v. Hughes, 63 How., 408.) And the purpose of this statute evidently was to distinctly declare the rule that a sale in such case should not be made, and, therefore, directed that when partition could not he made as between those having an estate in remainder or reversion, the action should proceed no farther. In this ease the sale of the entire estate in the land was directed and made, and the life tenant does not object but consents to take the amount ascertained by means of the recognized rules for the computation of the value of such estates, and takes the sum so set apart for him. And if all the parties were then sui juris there might be no difficulty in supporting the sale, so far as this question is concerned, because they could, by consent, overcome all objections to the sale and distribution of its proceeds. The infancy of the appellants, however, presents a- question which may lead to a different conclusion. (Scheu v. Lehning, 31 Hun, 183.)

But without further considering this question, or now expressing any opinion upon it, we think the case cannot intelligently be disposed of, upon the proofs before us. Within the long time intervening between the sale and this motion, the affidavits tend to show that portions of the premises have been sold by the purchaser at the sale to persons who have purchased in good faith ; that, in like manner, taxes have been paid and improvements made on the lands. The persons who have made such purchases are not parties here. It cannot now be said that they have no equities. At all events, they should have an opportunity to be heard. While the court may, on motion, exercise equitable powers and adjust the equities of parties, and may direct that the necessary parties be brought in for that purpose, this is not a proper case to be disposed of on affidavits, as it is evident the facts would not be undisputed. The suggestion of the court below, in that respect, is approved.

But 'there is another difficulty in the way of considering here the decision of the motion by the County Court. That court was called upon to exercise its discretion. This court cannot review the discretion of that court. (Reilly v. D. and H. C. Co., 5 Eastern Rep., 706.)

The order should be affirmed.

Smith, P. J., Barker and Haight, JJ-., concurred.

Order affirmed, without costs.