text:
    JOHN H. PHILLIPS and others, as Commissioners of Highways of the Town of Tonawanda, Appellants, v. CONRAD SCHUMACHER.

      Commissioners of Mghwa/ys— order directing removal of encroachment — form of, when signed by only two commission&rs — chapter 483 of 1875 — not a local bill — constitutionality of — Powm' of board of supervisors to reduce width of highway— notice to parties interested.

    Where an order, directing the removal of an encroachment upon a public highway, is signed by only two of the commissioners, it must clearly appear upon the face thereof that all of the commissioners were notified to attend a meeting to deliberate thereon.
    The order should contain the words, “ all the commissioners,” or their equivalent; words that may or may not mean “ all ” are not enough.

      Quaere, as to what is a sufficient notice of the purpose of the meeting.
    Chapter 483 of 1875, entitled “An act to confer on boards of supervisors further powers of local legislation and administration, and to regulate the compensation of supervisors,” is not a local bill within the meaning of the constitutional provision (art. 3, sec. 16), providing that no private or local bill shall embrace more than one subject, and that shall be expressed in the title; and even if it were so, it embraces but one subject, which is distinctly expressed in its title.
    Subdivision 10 of section 1 of said act, conferring upon boards of supervisors authority “ to authorize the laying out of highways of a less width than is now required by law, and reducing the width of highways now in existence,” confers no power upon such boards to adopt a resolution or ordinance which shall have the effect, ps'opno vigore, of establishing such a road or reducing the width of one already in existence, but merely authorizes them to provide, by suitable legislation, for the doing of those acts by commissioners of highways, or such other suitable agencies as the boards may, in their discretion, appoint.
    Under said act the boards have no power to authorize proceedings in such cases without an application from, or notice to parties interested therein, and without giving such parties an opportunity to be heard.
    The proper way to exercise the power conferred by the act would be to pass an act authorizing the commissioners of highways of the town, or the other officers or persons designated by the board, to entertain proceedings to reduce the width of the road in question on application and notice as specified in the act.
    Appeal from order of tbe Erie County Court refusing a new trial.
    Tbe action was brought to recover tbe statute penalty for an alleged encroachment, by defendant’s fences, on what is known as the Two Mile Creek road, in Tonawanda. The County Court directed a verdict for the defendant. The principal controversy was, whether the road was three rods or four rods wide, on the defendant’s premises, it being conceded that if it was only three' rods wide the defendant had not encroached on it. The road was surveyed in 1820, but that survey was not recorded, and no order was then made laying out the road, but the work of clearing through the woods for a road was commenced that year, and a road was opened, worked and used, more or less, until 1851, but it did not follow the line of the survey at all points, nor was it of the width of four rods. On the 4th of April, 1851, the commissioners made a new survey, and fixed the width of the road at four rods, by an order which they caused to be recorded. The new survey was intended to follow the old one as far as practicable, but as the blazed trees, the only monuments of the old survey, were not then standing, the location of the old line could not be definitely ascertained. In surveyingthe road four rods wide its lines were frequently extended beyond the fences that adjoined the road as theretofore used, and they ran through several buildings, orchards, gardens and door yards. There is nd evidence that the consent of the owners was given, that a jury was called, or that there was an appraisal or payment of damages. It appeared, however, that the defendant subsequently to the making of the order of 1851, and in that year, moved his fences out, by direction of the commissioners, and made the road wider; and in 1866, by their direction, he moved his fences still further out, and they so remained until 1873, when he moved them in, making the road less than four rods, but leaving it at least three rods wide on his land.
    On the 10th of August, 1874, two of' the commissioners made an order which recited that the road in question had been laid out of the width of four rods, but had never been sufficiently described and recorded, and ordered that it be according to a survey therein incorporated, and that it be four rods wide. On the same day they , made another order, declaring the defendant’s fences an encroachment, and directing their removal. The latter order was in these words: “"We, the commissioners of highways of the town of Tonawanda, in the county of Erie, having ascertained that the outer line of a public highway in said town is described as follows, to wit (describing it by courses and distances, and also describing tbe alleged encroachment): “ It is, therefore, ordered by the commissioners of highways of said town that the said fences be removed, so that the said highway be open and unobstructed, and of the breadth which was originally intended, which was four rods.”
    “ Done at a meeting of the commissioners of highways of the said town of Tonawanda on the 10th day of-August, 1874, said commissioners having been notified to attend said meeting for the purpose of déliberating on the subject of this order.” (Signed) “J. H. Phillips, Philip Pirson, commissioners.” The town had three commissioners at the time.
    It appeared in evidence, that after the commencement of the suit, and shortly before the trial, the board of supervisors of Erie county passed an act reducing the .width of the road to three rods, its whole length.

      8. Lockwood, for the appellants.)

      Lewis <& Qwmey, for the respondent.
   Smith, J.:

It is not material to inquire whether there was a valid survey and record of the highway in question as a four-rod road, prior to 1851. Nor is it material to determine whether the order made in April of that year, was a nullity, so far as it attempted to lay the road on a new line, and to increase its width by taking in buildings and grounds which could not be acquired without the consent of the owners. That the defendant gave his consent thereto is to be implied from the fact, that he complied with the order of the commissioners, without objection, and removed his fences to the lines designated by them. And as his fences remained where he so placed them for more than sis years uninterruptedly, and the soil between them was worked and used as a public highway, during the whole time, the jury would have been warranted in finding a highway across his premises-by dedication and acceptance. The evidence also warranted the conclusion that the defendant, when he moved his fences in 1878, encroached upon the limits of the highway as theretofore used.

But it was essential to the plaintiffs5 cause of action that they should show a valid order of the commissioners, specifying the alleged encroachment, and directing the defendant to remove it. (1 R. S., 521, § 103.) The order which was put in evidence for that puiqiose was made by only two of the three commissioners. To be of any validity, it must be shown upon its face, that it conformed to the following provision of the statute: “ Any two commissioners of highways of any town may make an order in execution of the powers conferred in this title, provided it shall appear in the order filed by them that all the commissioners of highways of the town met and deliberated on the subject embraced in such order, or were notified to attend a meeting of the commissioners for the purpose of deliberating thereon.55 (1 R. S., 525, § 125.)

It does not appear from the order that all the commissioners met. Therefore, to satisfy the requirement of the proviso, the order must show that the third commissioner was notified to attend the meeting, and, also, that he was notified that the meeting was to be held for the purpose of deliberating on the subject embraced in the order. In the first of these respects, the order seems clearly defective. It does not show that the absent commissioner was notified of the meeting. All that appears is, that the two who signed the order were notified. The expressions, “We, the commissioners of highways, having ascertained,55 “ it is therefore ordered by the commissioners,55 and “ done at a meeting of the commissioners,55 obviously refer to the two commissioners alone, who “ met,55 “ ascertained55 and “ordered,55 and who, by affixing their signatures to the order, designated themselves as the persons referred to. And when the order says, at the close, “ said commissioners having been notified,55 it necessarily refers to the same commissioners previously mentioned therein, and no others; in short, the statements in the order may be strictly true, and yet the absent commissioner have had no notice of the meeting.

That this defect in the order, declaring the encroachment and directing its removal, was not the result of inadvertence or ignorance of the statute is apparent from the form of the other order made at the same time, by the same two commissioners, declaring the road to be four rods in width, which closed by saying, “ done at a meeting of the commissioners of said town, etc., all of said commissioners having been notified to attend said meeting for the purpose of deliberating on the subject of this order.” In The People v. Hynds (30 N. Y., 470) the order recited that notice was given “that the undersigned commissioners of highways of said town would attend,” etc., and the order was signed by but two of the three commissioners of the town, and did not show that they all met; held void as made by two commissioners without the intervention of the third, or notice to him recited in the order. Hogeboom, J., delivering the opinion of the court, said “ the statute was intended to make an absolute and universal rule for cases of this kind, and to prevent any presumptions whatever.” (P. 473.) The statute says “ all ” the commissioners, and the order, should have used the same words, or their equivalent; words that may or may not mean “ all ” are not enough. It is unnecessary to cite authorities to show that this defect is fatal to the order, and to all proceedings based upon it.

It is also insisted, by the respondent’s counsel, that the recital does not show that the notice of the purpose of the meeting was sufficient. It is contended that there is a material difference between the “ purpose of deliberating on the subject embraced in an order ” and that of “ deliberating on the subject of such order; ” or, in other words, that the order itself is one subject, and the matter embraced in it is another, and a very different one. 'Whatever force there may be in this argument, it is not necessary to pass upon it, if the opinion already expressed as to the validity of the order is correct.

Another position taken by the counsel for the respondent is, that the act of the board of supervisors reducing the width of the road in question to three rods took away the plaintiff’s cause of action. It is urged, in reply, that the statute under which the board of supervisors acted (Laws 1875, chap. 482) is unconstitutional. The reason assigned is that it is a local law, and the title does not express its local nature. The Constitution provides that no private or local bill shall embrace more than one subject, and that shall be expressed in the title. (Art. 3, § 16.) The title of the act is, “An act to confer on boards of supervisors further powers of local legislation and administration, and to regulate the compensation of supervisors.” The act was passed in pursuance of the constitutional provision authorizing the legislature, by general laws, to confer additional powers of local legislation and administration on boards of supervisors (art. 3, § 23), and in consequence of the amendment to the Constitution, which took effect on the 1st of January, 1875, prohibiting the legislature from passing a private or local bill in any of the cases therein specified. (Art. 3, § 18.) The act, by its terms, extends to every county in the State, “except in cities whose boundaries are the same as those of the county.” Judicial cognizance may be taken, of the fact that the only city in the State whose boundaries are the same as those of the county is New York. If its boundaries should cease to be coterminous with those of the county, that city would fall within the act without further legislation. The provisions of the act are, in their nature, applicable to every county in the State, and none is excepted by name. The act, therefore, is not local within the meaning of the Constitution. Furthermore, whether local or not, it embraces but one subject and that is distinctly expressed in its title. The conferring of further powers on boards of supervisors, and the regulating of the compensation of supervisors in view of the additional time and labor which the discharge of their duties will necessarily require, is but one subject of legislation. The latter is incidental to the former. (Harris v. The People, 59 N. Y., 599; Devlin, v. The Mayor, 63 id., 8; The People v. Banks, decided by the Court of Appeals in December, 1876, and not reported, 4 N. Y. W. Dig., 124.)

A more serious question is, whether the act passed by the board of supervisors of Erie, was within the scope of their authority. The act of the legislature, above referred to, confers powers of legislation in relation to divers subjects specified in the first section of the act. In respect to some of the subjects the boards are vested with the power of cpmplete and final action ; in respect to others they have no power except to authorize action by other local officers or municipal corporations. Their power in respect to laying out and reducing the width of highways is of the latter description. It is given by the tenth subdivision of section one, which is in these words: “ To authorize the laying out of highways of a less width than is now required by law, and of reducing the width of highways now in existence.” The provision gives no power to boards of supervisors to adopt a resolution or ordinance which shall have the effect, pro jyrio vigore, to establish, a road or reduce the width of one previously existing. The power conferred is to cmihorize the acts specified to be done; that is, to provide by suitable- legislation for the doing of those acts by commissioners of highways, or such other suitable agencies as the boards, in their discretion, may appoint. When the act of 1875 was adopted all public roads to be laid out by the commissioners of highways of any town were required to be not less than three rods wide. (1 R. S., 517, § 80.) The object of the provision in question was to empower boards of supervisors to authorize the laying out of highways of a less width than the statute then required. The board of supervisors of Erie, in undertaking, by a direct enactment, to reduce the width of the road in question, exceeded their authority. • But if the resolution of the board had been within the scope of their power it was fatally defective, I conceive, inasmuch as for aught that appears, it was passed without notice to any one. It is not to be presumed that the legislature intended to authorize proceedings in such cases without an application from or notice to parties interested, and without giving such parties an opportunity to be heard. In this case the commissioners of highways of the town, as the representatives of the public, had a direct interest in the matter. The statute which authorizes a proceeding to alter or discontinue a highway gives the right of appeal to any person aggrieved, whether the order directs or refuses the altering or discontinuing of the highway. (1 R. S., 513, §§ 55, 56; id., 518, §§ 83, 84; Amd. L., 1847, chap. 455, § 8.) In analogy to those provisions notice of some kind should be given at some stage of the proceedings to reduce the width of an established highway, or to lay out a new one less than four rods wide. A proper exercise of the power of the board would be to pass an act authorizing the commissioners of highways of the town, or other officers or persons designated, to entertain proceedings to reduce the width of the road in question, on application and notice as specified in the act. Probably the boards have power to pass a special or a general act, in their discretion, but in either ease, the act should prescribe a mode of procedure which will require the giving of notice to persons directly interested, or will secure to any aggrieved party a right of review similar to the provisions of the Revised Statutes in analogous cases.

The act of 1875 provides that the powers thereby conferred shall be exercised by boards of supervisors, at stated, special or adjourned sessions as therein prescribed. (§ 2), and that every resolution adopted in pursuance of the provisions of the first section of the act, shall be prefixed by a title concisely expressing its contents, following which shall be a reference to the law or laws from which the authority to pass the resolution shall be derived, and a statement of the vote, whether by two-thirds or a majority of all, by which it was passed, and in the cases where it is required that the resolution should receive the assent of the supervisor of the town to which it applies, the fact whether or not it received such assent shall be also stated. (Id.) Whether these provisions, so far as they are applicable to the resolution in question, were complied with in its passage, does not appear. The printed case purports to give the resolution verbatim, but it contains no title or statement of the vote. The resolution, when offered in evidence, was objected to on several grounds, but not on the ground that it did not comply with the provisions of the act above stated. We are to assume, therefore, that it was sufficient in those respects, or if not, that the defect was waived.

But for the reasons already expressed, we are of the opinion that the resolution exceeded the powers of the board and was void. This conclusion disposes of the point made by the defendant’s counsel that the resolution of the board had the effect to supersede the penalties theretofore incurred by encroachments, upon that portion of the highway lying between the three-rod and the four-rod limits.

By reason of the invalidity of the order declaring the encroachment, we think the decision of the court below was right and should be affirmed.

Order denying a new trial affirmed.

Mullin, P. J., and Talcott, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    JOHN SCHROEDER, Appellant, v. WILLIAM H. GURNEY and others, Respondents.

      Bea»'ding act — Bona fide purchaser — ■Proceedings to determine conflicting cla/ims to real property — when maintainable.

    July 11, 1866, N. Oase conveyed certain real estate to one Catharine M. Brierly in trust to receive the rents, and apply the same to the use of herself and B. W. Oase, the premises to revert, after the death of Brierly and B. W. Case, to the issue or heirs at law of the latter, if he left any, otherwise to the heirs of the grantor.
    The deed was lost soon after execution, but was afterwards found and was recorded March 1, 1875. N. Case continued in possession of the land. Brierly died in 1870, and devised her interest in the premises to B. W. Case. In 1872 N. Case, as special guardian of B. W. Case, in pursuance of an order of the County Court, conveyed the premises to the plaintiff! for $2,000, he giving back a mortgage (without any personal covenant on his part) to secure the same, payable on B. W. Case’s arriving at age. Plaintiff:, at the time of his purchase, knew that a former deed had been given and lost, but did not know its contents. About the same time, to perfect the record, he took a deed from N. Case individually, upon the same consideration as the deed from the special guardian — the deed being dated January 1, 1868, and recorded February 12, 1875. Held, (1) that the deed from the special guardian was a nullity, as the infant had no interest in the premises; (2) that the deed from Case was not entitled to priority over the trust deed, for the reason that the plaintiff was not a bona fide purchaser thereunder, the only consideration therefor being a mortgage not yet due.
    One who is in possession of real property, claiming title thereto, is possessed of a sufficient estate therein to maintain proceedings under the Revised Statutes to determine conflicting claims thereto.
    Courts of equity will generally give relief under a bill quia timet, only where it is necessary to resort to extrinsic evidence not of record, to show the invalidity of the instrument constituting the apparent cloud upon the title.
    Appeal from a judgment entered on tbe decision of the court at Special Term in Erie county, dismissing the complaint on the merits, with costs.
    ■ This action was brought to determine conflicting claims to real property and to remove a cloud from the plaintiff’s title.
    On the 10th daji of July, 1866, Nehemiah Oase, being seized in fee and in the possession of fifty acres of land in the town of Brant (the real estate in question), conveyed the same by deed, expressing the consideration of one dollar, to Catharine M. Brierly, in trust to receive the issues, rents and profits of said premises, and apply the same to the use of herself and Benjamin Welch Case, during their natural lives. The deed provided “ that after the death of Catharine M. Brierly and Benjamin Welch Case, the premises should revert to the heirs of the grantor, in case the said Benjamin Welch Case should leave no lawful issue, but should he leave such issue, the premises should belong to them.” The deed was lost soon after its delivery, but was' found some years afterwards, and was recorded March 1,1875. Catharine M. Brierly died on the 25th of September, 1870, leaving a will by which she devised her interest in the premises to Benjamin Welch Case. On the 25th of March, 1872, Nehemiah Case, as special guardian of Benjamin Welch Case, who was an infant, pursuant to an order of the Erie County Court, granted on his application, in proceedings instituted for that purpose, sold the interest of the infant in said premises and executed a deed thereof to the plaintiff, for the consideration expressed of $2,000, which deed was recorded on the 9th of January, 1873. To secure the payment of such consideration, the plaintiff executed a mortgage on the premises, with no personal covenant, however, on his part, to the treasurer of Erie county, in trust for said infant, with interest payable semi-annually, the principal payable when the infant should reach the age of twenty-one years. The mortgage was executed pursuant to the contract of sale made in the County Court proceedings, and it contained a condition for the protection of the plaintiff against defect of title. The mortgage was recorded March 25th, 1872. The plaintiff entered on the premises soon after, and has been in possession ever since. On 15th March, 1872, Nehemiah Case and his wife executed a deed of the premises to the plaintiff, which was dated January 1, 1868, and recorded February 12, 1875. The deed last mentioned was executed to supply the lack in the title caused by the loss of the deed of July 10, 1866, and was executed for the same consideration as the deed of the special guardian. The court found that the plaintiff purchased without actual notice of any trust affecting the title, and supposing that Mrs. Brierly and Benjamin Welch Case owned the property absolutely, in fee.
    The defendant Gurney claims the premises, as the purchaser, at a sheriff’s sale, by virtue of an execution on a judgment against Nehemiab Case, docketed on tbe 29th September, 1868. Tbe sale was made July 2, 1874, and the sheriff gave Gurney a certificate of tbe sale, wbicb was duly filed and recorded.
    Tbe court held that tbe plaintiff bad no interest in tbe real estate sufficient to enable him to maintain tbe action.

      O. 0. Cottle, for tbe appellant.

      L. L. Lewis, for tbe respondents.
   Smith, J.:

A question much discussed in tbe briefs submitted in this case, and tbe one upon wbicb tbe court, at Special Term, is understood to have ordered a dismissal of tbe complaint, is, whether tbe plaintiff bad such an estate in tbe land as would enable him to maintain an action to remove a cloud upon tbe title.

Tbe position of tbe plaintiff’s counsel, that bis client has an estate in fee, is not tenable. He rests tbe claim upon tbe deed from Nehemiab Case, as tbe special guardian of Benjamin Welch Case, and also tbe deed executed by Nehemiab Case and wife in their own right.

Tbe plaintiff acquired no title whatever by tbe deed from tbe special guardian. Tbe infant, Benjamin Welch Case;, bad no interest in tbe land that could be conveyed. Tbe deed from Nehemiab Case and wife to Mrs. Brierly created a valid trust in tbe grantee for tbe benefit of herself and Benjamin Welch Case. (1 R. S., 728, § 55, subd. 1.) Tbe whole estate was vested in tbe trustee, subject only to tbe execution of tbe trust. (Id., § 60.) Tbe beneficiaries, as such, took no estate or interest in tbe lands, but merely an equity to enforce tbe trust. (Id.) Tbe beneficial interest of Benjamin Welch Case in tbe rents and profits of tbe lands was not assignable. (Id., § 63.) Mrs. Brierly, tbe trustee, bad no devisable interest in tbe lands, and on her death, tbe trust estate did not pass by her will nor descend to her heirs, but tbe trust vested in tbe court, to be executed by some person to be appointed for that purpose. (Id., § 68.) It follows that Benjamin Welch Case took no estate in tbe land, either by tbe deed from Nehemiab Case to Mrs. Brierly or by tbe will of Mrs Brierly; that be bad no assignable interest; that the proceeding in the County Court was a nullity, and that the conveyance from the special guardian to the plaintiff transferred nothing.

The plaintiff’s claim in respect to the deed executed to himself by Nehemiah Case and wife, in their own right, is, that although such deed was subsequent in date to the trust deed, it has priority, as it was first recorded, and he purchased without notice of the trust. The court, at Special Term, found, upon sufficient evidence, that he purchased without actual notice, and we are of the opinion that he is not chargeable with constructive notice of the trust. It appears that although he was informed that Case had executed a deed, he was not told that it created a trust; that information was sufficient, however, to put him on inquiry. But the deed was lost, and there was no record of it, and he could only inquire of those who were cognizant of the transaction. The information acquired by him led him to supjjose that Mrs. Brierly and Benjamin Welch Case took the property absolutely, and in fee. And as Mrs. Brierly had devised her interest to Benjamin Welch Case, the plaintiff had reason to suppose that in taking a conveyance of the interest of the latter he was getting a good title. And as an additional precaution, he took a conveyance from Case, in his own right, to supply, if possible, the missing link in the chain. These facts, which are found by the court below, show him to have used due diligence on his part, and to have failed to discover that the deed created a trust, and therefore he is not chargeable with constructive notice. (Williamson v. Brown, 15 N. Y., 354.) But although he had no notice of the trust, he is not entitled to priority under the recording act, for the reason that he was not a bona fide purchaser within the meaning of the act. He parted with nothing of value. He paid nothing at the time, and incurred no personal obligation. He gave a mortgage, without a personal covenant, on the property conveyed, for the entire purchase-price, which is not yet due, and on which he has not paid any thing except the annual interest, and for that he has received an equivalent in the possession and use of the property. It does not appear that he has expended any thing for improvements, or but that he would be in as good a position as he was in before he purchased, if the trust deed should be declared paramount to his own. Besides, the mortgage executed by him contains a clause expressly protecting him against a defect of title. He is not, therefore, a purchaser for a valuable consideration within the meaning of the recording act, and his deed is not entitled to priority over the trust deed. (Dickerson v. Tillinghast, 4 Paige, 215 ; Evertson v. Evertson, 5 id., 644; Wood v. Chapin, 3 Kern., 509; Pickett v. Barron, 29 Barb., 505.) He will not be defrauded if the trust deed is to stand in opposition to his title. (Per Platt, J., in Dunham v. Dey, 15 Johns., 555.)

But it is difficult to see how the plaintiff’s lack of an estate in fee is available to the defendants in this action. The plaintiff is not in the position of a party suing to recover possession, who can only succeed upon the strength of his own title. The plaintiff is in possession, under a claim of title, and no one can dispossess him except the holder of the legal estate created by the trust deed. There is a class of American cases, of highly respectable authority, which hold that the actual possession of land under a claim of title, whether well or ill founded, proves or constitutes seizin in the sense of the common law. Although the point of contention in those cases was what amount of interest in the land must pass with a grant, to carry with it a covenant in the deed, yet the ruling that possession under a claim of right is an estate, is applicable to the present case. The doctrine above stated has long been held in Massachusetts. It has been adopted in this State. (Beddoe's Exr. v. Wadsworth, 21 Wend., 120; Fowler v. Poling, 2 Barb., 300; S. C., on appeal, 6 id., 166.) The Massachusetts cases, and some from other States, are cited by Hare & Wallace in their notes to Smith’s Leading Cases (vol. 1, p. 157 [5th ed.]). “ This course of decision,” says the annotator, gives to a wrongful possession under a claim of right the character of an estate, which, although voidable by the entry or action of the rightful owner, is, notwithstanding, actual, and will, unless avoided, ripen under the statute of limitations into an indefeasible fee.” (See, also, Craft v. Merrill, 14 N. Y., 456.)

We are of the opinion, therefore, that the plaintiff’s possession, under a claim of title, is a sufficient estate to enable him to maintain the present action against the defendants, who are strangers to the trust title, and who claim in hostility to it, provided the action can be maintained in other respects.

But we are unable to assent to the position that the acts of the defendants, of which, the plaintiff complains, constitute a cloud upon the plaintiff’s title. The defendants’ judgment against Case was not a lien upon the land in question, it having been docketed after the execution and delivery of the trust deed. (Chautauqua Co. Bank v. White, 2 Seld., 236.) The appellant’s counsel is correct in his position that the trust deed divested Case of his entire estate and vested it in the trustee, and that a contingent remainder or reversion, if there had been any, could not be sold during the continuance of the trust. (Briggs v. Davis, 20 N. Y., 16; S. C., partly revd., 21 id., 574; Marvin v. Smith, 56 Barb., 600.) The facts that the deed was not recorded, and that Case was in possession when the judgment was obtained, make no difference. An unrecorded deed has preference over a subsequent judgment, and the court found at Special Term that the trust deed was executed and delivered at its date for a sufficient consideration and without intent to defraud creditors.

Neither is the judgment now an apparent lien, the trust deed being recorded. It was otherwise, perhaps, before the deed was recorded and while Case was in possession. And if the purchaser at the sheriff’s sale had received a deed from the sheriff and put it on record, without notice of the trust deed, he would have been entitled to priority under the recording act. (Jackson v. Chamberlain, 8 Wend., 620; Hetzell v. Barber, decided in Court of Appeals, March 20, 1877, opinion by Earl, J.) But the plaintiff was in possession at the time of the sale, and the trust deed was recorded before the expiration of fifteen months thereafter, and consequently the judgment and the sheriff’s sale and certificate (no deed having been executed), are of no avail as against the plaintiff. The defendant, Gurney, was the purchaser at the sheriff’s sale, and even if he bid without notice of the trust, a deed from the sheriff to him, executed after the trust deed was recorded, would cast no cloud upon- the plaintiff’s right. But whether he had notice or not, a deed from the sheriff to him would cast no cloud upon the plaintiff’s rights. In an action at law by one claiming under such deed to dispossess the plaintiff the trust deed would be a perfect defense. Or the plaintiff need not wait to be sued, but might institute proceedings under the statute to compel the determination of the claim made under the sheriffs deed, in which he would have an expeditious and appropriate remedy. (2 R. S., 321; Cox v. Clift, 2 Comst.; 118.) As the trust deed is matter of record the case should be regarded as an exception to the rule that courts of equity will give -relief in cases in which it is necessary to resort to extrinsic evidence, to show the invalidity of an instrument constituting an apparent cloud on title to real estate. That rule is more especially applicable to cases where the extrinsic evidence rests in parol, and should not be extended to a case like this, where the only extrinsic, evidence consists of a single deed, which is recorded in the same office in which the judgment is docketed which constitutes the alleged cloud upon the title. In Van Doren v. The Mayor (9 Paige, 388), Oh. Walworth, in illustrating the rule that a court of equity may set aside a cloud upon title to land, supposed the case of a deed procured and put upon record by fraud, on upon a usurious consideration, which requires the establishment of extrinsic facts to show the supposed conveyance to be void. Pratt, J., in Ward v. Dewey (16 N. Y., 522), said the rule applies to cases where the claim appears to be valid upon the face of the record, and the defect can only be made to appear by extrinsic evidence, particularly if that evidence depends upon oral testimony to establish it. In Overing v. Foote (43 N. Y., 293) Peokham, J., said: “ The sole point of a bill qwia t/wnet is to protect the owner against an illegal claim which may, in time, ripen into a right and where the evidence of its illegality is easily lost.” See, also, Farnham v. Campbell (31 N. Y., 480).

Por these reasons we think the judgment appealed from should be affirmed, with costs.

Mullir, P. J., and Talcott, J., concurred.

Judgment affirmed, with costs.


text:
    WILLIAM SISSON, Appellant, v. ERASTUS HIBBARD and others, Respondents.

      Engine and boiler — when they remain personal property afteo' annexation to realty— OhatM mortgage on — effect of.

    The defendant H. purchased of M. &L., at Bochester, an engine and hoiler, to be used in a business carried on by him at Barre, his purpose so to use them being known to the sellers at the time. To secure payment of the price, he gave to M. & L. a chattel mortgage upon the engine and boiler, and certain other personal property, by which they were authorized, in case of default, to enter upon the premises of the mortgagee, or any other place where the mortgaged property might be, and take possession of the property. The engine and boiler were placed in a cheaply-constructed building in such a manner as that, but for the mortgage, they would become a part of the realty. Held, that the engine and boiler continued to be personal property, in favor of the holders of the chattel mortgage, as against a purchaser of the land and building upon a sale under an execution, issued on a judgment subsequently recovered against the mortgagor.
    Appeal from a judgment in favor of tbe defendant, entered on tbe report of a referee.
    Tbis action was brought to recover for tbe alleged conversion of a steam engine and boiler. On tbe 21th of November, 1869, tbe defendant Hibbard purchased of Lamberton & Macks, at Rochester, tbe engine and boiler in question, on credit. Tbe purchase was made for tbe purpose of furnishing power in tbe business of manufacturing staves and beading, which Hibbard was then carrying on, in tbe town of Barre. Tbe fact that be purchased for that purpose was known to tbe vendors at tbe time of tbe sale. As a part of tbe transaction Hibbard executed to Lamberton & Macks a chattel mortgage on tbe engine and boiler, and other property, to secure tbe purchase-price. Tbe printed case banded up to the court does not contain a copy of tbe mortgage, but tbe referee found that it conveyed tbe engine, etc., bought of L. & M., as aforesaid, “ together with tbe fire kiln on which said engine and boiler might be placed when removed to tbe town of Barre aforesaid.” He also found that tbe mortgage was conditioned to be void if Hibbard should pay tbe debt at maturity, otherwise to be an absolute transfer to L. & M., and that it authorized tbe mortgagees, in case of a breach of its conditions, to enter on the premises of the mortgagor, or any other place where the mortgaged property might be, to take possession of it and sell it, and apply the avails in payment of the debt; and it bound Hibbard to pay the deficiency, if any. Hibbard removed the engine and boiler to Barre and placed them in a cheaply-constructed building in which he carried on said business. They were placed in the building in such a maner as that, but for the chattel mortgage, they became part of the realty. The mortgage was duly recorded, and renewed from year to year.
    In the spring of 1873, Hibbard being in default, informed L. & M. that he could not pay for the engine and boiler, and it was agreed that he should give them up, but that they might remain on the premises till L. & M. should wish to remove them. On the 13th of November, 1873, Hibbard, by an instrument of sale, under seal, conveyed the engine and boiler to L. & M. In March, 1874, the defendants Clark and Crary having purchased the engine and boiler of L. and M., they and the defendant Hibbard removed them from the building. In doing so, they necessarily removed some boards from one side of the building, and partly tore down the arch surrounding the boiler. The building was inclosed with boards, and the engine and boiler could be, and were, removed without serious damage to the freehold, and without injuring or impairing their own qualities or value.
    The plaintiff claims title under a judgment recovered against Hibbard, docketed 28th January, 1870. Execution was issued, and the land on which the building stood was sold by the sheriff, 15th November, 1873. The purchaser received the sheriff’s deed 8th June, 1875. The engine and boiler were in the building at the time of the sale, and the purchaser forbade Hibbard to remove them. After the removal and the delivery of the sheriff’s deed, the purchaser demanded possession of the engine and boiler from each of the defendants, which was refused. The plaintiff is the assignee of the purchaser at the sheriff’s sale. Neither the plaintiff nor any one through whom he claims title had knowledge of notice of the agreement made between Hibbard and Lamberton & Mack in the spring of 1873, or of the subsequent instrument of sale; and the removal of the property by the defendants was without his knowledge or consent.

      The referee held that the title to the property in dispute, under the chattel mortgage, is paramount to the title under the sheriffs deed, and he found for the defendants.

      W. I. Townsend, for the appellant.

      Angus McDonald, for the respondents.
   Smith, J.:

The referee was of the opinion that this case is controlled by the decision of the Court of Appeals in Ford v. Cobb (20 N. Y., 344). The appellant’s counsel insists that the referee erred, and that the case of Ford differs from this in several essential particulars. A careful examination of the case referred to will show, I think, that the referee was clearly right. In Ford v. Cobb, salt kettles were bought and mortgaged to the seller as personalty. They were taken by the purchaser to his salt works and imbedded in brick arches, but could be removed without injury to them, by displacing a portion of the brick at inconsiderable expense, and the course of the manufacture required them to be thus removed and re-set annually. There was no evidence of an agreement that their character of personalty should be preserved notwithstanding the annexation, except such as was furnished by the mortgage itself and the circumstances attending its execution. The mortgage was executed at the time of the purchase. It recited the sale, and that the kettles were about to be taken to the purchaser’s salt block and set up therein. The mortgagor was to remain in possession until default, unless the mortgagees should deem themselves insecure, in which case they had a right to take possession of the property and apply it to the payment of the debt. There was no express agreement in the mortgage that the salt kettles should remain personal property, as there was in the subsequent case of Tifft v. Horton (53 N. Y., 377), which will be referred to presently. It was held by the court that the salt kettles continued personalty as against a subsequent purchaser of the salt works,' who had no notice of the facts, other than constructively from the filing of the chattel mortgage. And the court reached their conclusion by adopting and applying the general rule, which is recognized and asserted in numerous other reported cases, that the question whether an agreement, or the relation between the parties, shall preserve the character of personalty in things so affixed to the freehold, as that but for such agreement or relation they would become a part of the realty, depends upon their essential character, and the mode in which they are annexed, e. g., whether they can be removed without serious damage to the freehold, or substantially destroying their, own qualities or value. Two propositions, then, are plainly deducible from the judgment of the court in Ford v. Cobb, which are applicable to the facts of the present case: 1. Chattels annexed to the realty may, by the intention and agreement of the parties, retain their character as personal property where they can be removed without substantial destruction to themselves or serious injury to the freehold; and, 2. A chattel mortgage, in the usual form, executed in view of the fact that the chattels are, or are about to be, so annexed, is sufficient evidence of such intention and agreement.

The appellant’s counsel suggests that the case of Voorhees v. McGinnis (48 N. Y., 278, subsequently decided by the Commission of Appeals), is in conflict with Ford v. Cobb, and that as it is the later decision of a court of co-ordinate jurisdiction, it should control. In that case the property in dispute consisted of a steam engine, boilers, gearing, shafting, planing machines, saw benches, turning lathes, etc., connected with, and used in a grist-mill and saw-mill. The annexation to the freehold was of a much more substantial and permanent character than in the case of Ford, and the decision was put upon the ground that, although the owner had no special interest, the facts disclosed that the boilers, etc., were intended to be a permanent accession to the freehold, and that the execution of a chattel mortgage was not sufficient to overthrow this presumption and raise the contrary one of an intent to preserve their personal character. The manner of the annexation may be briefly stated: The boilers and engine were placed on solid brick foundations ; the brick work of the foundations was carried up and laid over the body of the boilers; the bricks which covered the top of the boilers needed the boilers for a support, and would necessarily have been displaced by the removal of the boilers. The shafting and gearing was not of value, except as old material, in any other place, unless such other place, in its local arrangements, was nearly the same as said mills. It was evidently considered by a majority of the court that the boilers, etc., could not have been removed without substantially destroying their own qualities and value or seriously damaging the freehold. In that view the decision is in harmony with Ford v. Cobb. But whether or not the two cases differ materially in their facts, the weight of Yoorhies’ case, as an authority, is lessened by the fact that it was decided by a divided court, a bare majority concurring, and the views of the minority being expressed in a carefully written and forcible dissenting opinion.

The later decisions of the Court of Appeals, to which counsel have referred, are in harmony with Ford v. Cobb. They are Shelden v. Edwards (35 N. Y., 279), Potter v. Cromwell (40 id., 287) and Tifft v. Horton (53 id., 377). The latter case was like the present one, and like Ford’s case, except that in Tiffts’ case alone, the chattel mortgage expressly provided that the chattels should remain personal property till the debt was paid, notwithstanding the annexation to the realty. That circumstance was adverted to as a clear showing of the intention of the parties in that regard, but there is no intimation, in the opinion of the learned judge, who spoke for all the members of the court, that the lack of that provision would have affected the result.

In the case of Kinsey and others v. Bailey, decided by this court at the term held in October, 1876, and reported 9 Hun, 452, it was held that the execution of a chattel mortgage, under circumstances substantially like those existing in this case, which mortgage contained no express provision that the mortgaged chattels should remain personal property, was of itself a clear manifestation of an intention that the character of personalty should continue, after the annexation to the realty, till the debt should be paid. In that case, there was some other evidence tending to show the intention, consisting of parol testimony to the effect that before the mortgage was executed, the mortgagee declined to advance money on the proposed mortgage, till he could take legal advice on the question whether the machinery, etc., would remain personal property, and that the mortgagors claimed to know that it would. But for that circumstance the ease would have been on all fours with this, and decisive of it.

Taking, then, the law as laid down in Ford v. Cobb, and applying it to the facts of the case now before us, what is the result ? The annexation, in this case, was of a very unsubstantial character. The building in which the engine and boiler were placed was hardly more than a shelter to protect them from the weather. They were removed without any destruction to themselves, or serious injury to the building. The few bricks that were displaced, and outer boards that were removed, could readily be replaced at slight expense. The case was one, therefore, in which, according to the rule in Ford’s Case, an agreement that the chattels should remain personal property would have the effect to prevent the annexation from making them a part of the realty.

"Was there such an agreement? That depends on the effect to be given to the mortgage in view of the circumstances attending its execution. When the mortgage was given the mortgagor intended, as the mortgagees knew, to remove the boiler and engine to his premises in Barre, and place and use them there, as was afterwards done. The fact that the parties contemplated such removal and use of the property was referred to in the mortgage. The mortgage also authorized the mortgagees to enter on Hibbard’s premises and take the property in case of default. In these respects it was almost a transcript of the mortgage in Ford’s Case. In these circumstances the mortgage plainly manifested the intention of the parties that the property should retain its character of personalty, notwithstanding its contemplated annexation to the building and use as an apparent part of the realty. Unless the mortgage is to receive that construction it was wholly nugatory, except as a promise by the mortgagor to pay his own debt. For these reasons we think the title under the chattel mortgage should prevail.

It is said by the appellant’s counsel that the defendants derive title from the bill of sale and not from the mortgage. Not so. The only effect of the bill of sale was to release the equity of redemption making the mortgage title absolute.

The judgment should be affirmed.

Mullxn, P. J., and Taloott, J., concurred.

Judgment affirmed.


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    MARY COOK, Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Action to reconw damages for negligent hilling — right of jury to allow vntw'est— Chapter 450 0/1847 — chapter 256 of 1849 — chapter 78 of 1870.
    Although, in actions brought under the act of 1847, as amended by the act of 1849, authorizing the maintenance of .actions to recover damages occurring by the death of any person by means of the negligence of the defendant, the jury, in rendering the verdict, may take into account the time that has elapsed since the death as affecting the amount of the damages, yet they cannot agree upon a certain sum as damages and add to it the interest thereon from the time of the death to the time of the rendition of the verdict.
    Chapter 78 of 1870 does not affect actions brought before, though pending at the time of, its enactment.
    Appeal from a judgment in favor of the plaintiff on a verdict rendered at the Erie Circuit. •
    Action under the statute (Laws of 1847, chap. 450) to recover damages caused by the alleged negligence of defendant, resulting in the death of the plaintiff’s intestate. The injury occurred on the defendant’s railroad, at a street crossing in the city of Buffalo, on the 17th of September, 1864. The intestate died the same day. The action was brought in June, 1865, and has been tried four times. On the last trial the jury rendered a verdict for the sum of $3,000, and interest thereon from 17th September, 1864, amounting in the aggregate to $5,354.86, and judgment was entered for that sum, besides costs.

      A. P. lamimg, for the appellant.

      J. 0. Strong, for the respondent.
   Smith, J.:

The principal question in this case is, whether that portion of the verdict which was given by the jury as interest can be sustained. The act of 1847, which gave a right of action in cases of this nature, provided that the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from the death, to the wife and next of kin. The amount was not limited. In 1849 the act was amended by providing that the amount of damages should not exceed $5,000. (Laws 1849, chap. 256.) In 1870 it was further amended by enacting that the amount of damages recovered in any such action shall draw interest from the time of the death of such deceased person, which interest shall be added to the verdict and inserted in the entry of judgment.

The present action was commenced prior to the passage of the act of 1870, and was pending at that time, and consequently is not within its provisions. That act, by its express terms, did not affect any suit “ theretofore ” commenced. The word “ theretofore,” as used in it, related to the date of the amendment and not of the original act of which the amendment was made a part. (Ely v. Holton, 15 N. Y., 595.)

But at the trial now under review the case seems to have been disposed of, as if it were governed by the amendment of 1870. The judge instructed the jury that their verdict, if for the plaintiff, should bé in such sum as in their judgment would compensate the widow and next of kin for their pecuniary loss and damage, without adding any interest to it, and -he remarked, as a reason for the instruction, that the law requires the court to add the interest from the date of the death of the deceased. Neither party excepted to that part of the charge. It is apparent that the judge had reference to the provisions of the act of 1870, and was under the impression that they were applicable to the case, and it is to be inferred that his intention was not called to the fact that the suit was commenced before that act was passed.

If the jury had followed the instruction I should be inclined to hold that the parties were bound by it, they having acquiesced in it and thus made it the rule of damages for this case. But the jury did not follow it. They found first a specific sum, and to that they added interest from the day of the death and rendered a verdict for the aggregate. Their finding, so far as the interest is concerned, is contrary to the instruction, and is not authorized by the act of 1870 or that of 1847. Doubtless, under the act of 1847, the jury might have considered the time that had elapsed subsequently to the death of the plaintiff’s intestate, so far as it affected the amount of damages, but they could not properly give interest as such upon the sum fixed as damages. Interest may be allowed by a jury in certain actions sounding in tort, where the amount of damages is determinable by some definite standard, as in trover (Hyde v. Stone, 7 Wend., 354), trespass de bonis asportatis (Beals v. Guernsey, 8 Johns., 446) or replevin (Rowley v. Gibbs, 14 Johns., 385). In those cases the value of the property in controversy is the measure o| damages. But in actions where the damages rest in the discretion of the jury, interest as such upon the damages cannot be recovered.

I think, therefore, that the allowance of interest by the jury cannot be sustained, and that we can only affirm the verdict to the extent of the $3,000 damages. It is possible the jury would have fixed the damages at a larger sum if they had not supposed they could add interest. ¥e cannot speculate on what they would have done but for such supposition on their part, and all the relief we can grant is to affirm the judgment for damages at $3,000, if the plaintiff elects to reduce it to that sum, or if he does not so elect to grant a new trial Some other points were argued by the appellant’s counsel, but they seem to be devoid of merit.

Judgment reversed and new trial granted, costs to abide event, unless plaintiff will stipulate to reduce the damages to $3,000, in which case judgment so reduced affirmed, with costs.

Mullen, P. J., and Talcott, J., concurred.

Ordered accordingly.


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    JANE E. MERRILL, Respondent, v. THE AGRICULTURAL INSURANCE COMPANY, Appellant.

      Policy of insurance on real and personal property — condition as to incumbrances — policy molded only as to the pm'tion encumbered.

    Defendant issued a policy of insurance to plaintiff, wMcli insured separately and in separate sums a house and barn and certain personal property belonging to her. The policy contained a condition avoiding it in case the property became incumbered by mortgage or judgment, without the written consent of the company. After the issuing of the policy plaintiff executed two mortgages upon the real estate of which no notice was given to the company. In an action upon the policy, held, that though the giving of the mortgages annulled the policy as to the real estate, it did not avoid it as to the personal property.

      Trench v. Qhenwngo Mwt. Ins. Go. (7 Hill, 122) followed.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.
    The action was on a policy of fire insurance, which insured separately, and in separate sums, the dwelling-house and barns of the plaintiff, and certain personal property in each of said buildings, for three years from the 12th of April, 1873.
    The answer set up, among other defenses, that, after the policy was issued, and during its continuance, mortgages on the real estate were given by the plaintiff without the consent of the defendant. The policy provided that if “ the property becomes incumbered by mortgage, judgment or otherwise, * * * then, and in every such case, * * * this policy shall be null and void until the written consent of the company at the home office is obtained.” It appeared, at the trial, that after the policy was issued the plaintiff executed two mortgages upon the real estate, one for $4,000, and the other, as security to the mortgagee, for his indorsement of the plaintiff’s paper, and there was no evidence that notice of either of said incumbrances was given to the company, or that its consent was obtained, in writing or otherwise. On this ground, among others, the defendant’s counsel moved for a nonsuit. The judge held that the facts stated constituted a defense as to the buildings, but that they did not avoid the policy as to the personal property, to which ruling the defendant excepted. The jury found in favor of the plaintiff, for the value of the personal property.

      Winslow c& Smith, for the appellant.
    The refusal of the court to nonsuit the plaintiff upon the ground, as requested, that the creating of the mortgages to Rowland and Head vitiated the policy, and the holding by the court that the plaintiff was entitled to recover for the personal property, was error. [Le Roy v. The Ma/rlcet F. Ins. Go., 39 N. Y., 90 ; Ripley v. TEt/na Ins. Go., 30 id., 136; Price v. The Em/pire Ins. Co., 62 Barb., 636; Shoemalcer v. Glen’s Falls Ins. Co., 60 id., 84; Sa/nsfield, v. The Met/ropolitam, Ins. Co., 42 How., 97; Phillips on Ins., 762; Wilson v. Herhimer Co.

      Mutual Ins. Go., 6 N. T. [2 Seld.], 23; Brown v. Peoples Mutual Ins. Go., 11 Cush., 280; Smith v. Empi/re Ins. Go., 25 Barb., 497; Fire Association v. Williamson, 26 Penn. St., 196; Gottsma/n v. Ins. Go., 56 id., 210; Loveyoy v. Augusta Mutual Fvre Ins. Go., 45 Me., 472; Gould v. York Oo. Mutual Fvre Ins. Go., 47 id., 403; Ba/y v. Oha/rter Oak Fi/re Ins. Go., 51 id., 91; Ba/rnes v. Union Mutual Fvre Ins. Go., id., 110; Associate Fvremam's Ins. Go. v. Assvm, 5 Md., 165; Bowma/n v. Framlctim Ins. Go., 40 id., 620; Hammam v. Hartford Fvre Ins. Go., 36 Wis., 150; Whitwell, as Pecei/oer, etc., v. The Putnam Fi/re Ins. Go., 6 Bans., 166.)

      Nicholas E. Eerna/n, for the respondent.
   Smith, J.:

The only question in this case that need be considered is, whether the breach of the condition respecting subsequent incumbrances avoided the policy as to the personal property as well as the realty. The case of Trench v. Chenango Mutual Insurance Company (7 Hill, 122), if followed, sustains the ruling at the Circuit. The correctness of the decision in that case was questioned by Boot, J., delivering the opinion of the Court of Appeals, in Wilson v. The Herkimer County Insurance Company (2 Seld., 53), and in Smith v. Empire Insurance Company (25 Barb., 497), Balcom, B, speaking for the court, at General Term in the sixth judicial district, said that the case of Trench had been shaken too much by the Court of Appeals, in Wilson's Case, to be followed. It is by no means clear, however, that the Court of Appeals intended to overrule the case of Trench. The case of Wilson was decided in 1851. Six years later, the case of Heacock v. The Saratoga County Mutual Insurance Company, not reported, came before the Court of Appeals. It was an action on a policy of insurance against fire, by which the plaintiff’s woolen factory, in the city of Buffalo, and the machinery therein, were insured for separate amounts. The building and machinery were entirely burned. On the trial of an action to recover the loss, before Justice Sill and a jury, the defendant proved that the title to the premises was not in the plaintiff at the time of the issuing of the policy, or at any time thereafter; also, that the plaintiff had enlarged the building and erected a new building near it. The court charged the jury that, under the proof, the plaintiff could not recover for the loss of the building, but that the fact that it appeared that the plaintiff had not the legal title to the real estate did not necessarily deprive him of the right to recover for the loss of the machinery in the building, unless the plaintiff had increased the risk by the addition to the building and the erection of the new building. The defendant excepted. The defendant asked the court to charge that if the policy was void as to the building, no recovery for any cause could be had upon it. Refused, and defendant excepted. The jury found a verdict for the plaintiff for the value of the personal property; and the judgment entered thereon was affirmed at General Term and in the Court of Appeals. (Ct. App. Cases, March Term, 1856.) That case seems to be in accordance with the decision in Trench's Case, and, on the whole, although there are respectable authorities on both sides of the question, in this and other States, we think the rule thus laid down must be followed by us till it is expressly reversed or overruled by the Court of Appeals. Judgment affirmed.

Mullin', P. J., and Talcott, J., concurred.

Judgment affirmed.


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    JACOB J. WELLER, CHARLES E. BROWN and MICHAEL HERSEE, Respondents, v. THOMPSON HERSEE, Appellant.

      Covenants in restraint of tirade — when valid.

    In an-action by the plaintiffs to recover damages for, tbe breach of a covenant made by the defendant whereby he bound himself not to engage in the business of manufacturing or vending cabinetware in the city of Buffalo or county of Erie, held, that it was incumbent upon the plaintiffs to allege facts in their complaint, showing that the covenant was founded upon a valuable consideration.

      Semble, that the contract is invalid when it imposes restrictions upon one party which are not beneficial to the other.
    Appeal from an order of the Erie Special Term overruling a demurrer to the complaint, with leave to answer.
    The complaint claims damages for an alleged violation by defendant of a covenant not to carry on the business of cabinet-making in the county of Erie, and also demands an injunction. The demurrer is on the ground that the complaint does not state facts sufficient to constitute a cause of action.
    The alleged covenant is contained in an instrument in writing, signed and sealed by the defendant, dated the 24th of November, 1871, whereby, for value received from the plaintiffs, the defendant covenanted and bound himself to them, that he would not at any time thereafter (while the said plaintiffs, their survivors or assigns, should carry on the cabinet-making business in Buffalo) engage in the business of manufacturing or vending cabinetware in tbe city of Buffalo, or county of Erie. Tbe complaint alleges that on or about tbe 24th of November, 1871, tbe defendant, who bad been engaged in tbe business of manufacturing and vending cabinetware in tbe city of Buffalo, for many years theretofore, appbed to tbe plaintiffs to purchase bis stock in trade, factory and fixtures, and negotiations were entered into which resulted in an agreement, under tbe bands and seals of tbe parties, whereby tbe defendant agreed to sell and convey to tbe plaintiffs all bis stock and materials, on their first paying him therefor tbe sum of $100,000, and to sell and convey to them tbe stores which be bad used in said business, for tbe further sum of $50,000, on their paying $10,000 by tbe 1st of May, 1872, and executing their bond and a mortgage on tbe premises to secure tbe payment of tbe remainder, as specified in tbe agreement. By tbe terms of tbe agreement tbe sum of $100,000 was to be paid, and tbe other conditions (except with reference to tbe sale of tbe stores) were to be performed on or before tbe 24th of November, 1871. Tbe last-mentioned agreement was dated tbe eighteenth of November. Its stipulations and conditions were fully performed as therein provided. Tbe complaint alleges that tbe defendant entered into tbe covenant first above set forth, as a part of tbe consideration of tbe plaintiffs’ said purchase.

      O. Beelowith, for tbe appellant.

      J. O. Bt/rong, for tbe respondents.
   Smith, J.:

Tbe argument of tbe defendant’s counsel is that no sufficient consideration appears on tbe face of tbe defendant’s covenant, and none is alleged in tbe complaint. In Ifitchel v. Reynolds (1 P. Wms., 181), Parker, Oh. J., said: “ In all restraints of trade, where nothmg more appears, the law presumes them bad; but if the cvrevmstcmees are set forth, that presumption is excluded, and the court is to judge of those circumstances and determine accordingly; and if upon them it appears to be a just and honest contract, it ought to be maintained.” In Ross v. Sadgbeer (21 Wend., 166), Bronson, J., cited the language of Parker, Oh. J., and said: “In this I fully concur. The law starts with the presumption that the contract is void, and it is only by showing that there was an adequate consideration or good reason for entering into it, that the presumption can be destroyed. The rule is, not that a limited restraint is good, but that it may be good. It is valid when the restraint is reasonable, and the restraint is reasonable when it imposes no shackles upon one party which are not beneficial to the other.”

To the same effect are numerous other authorities, and the rule deducible from them is, that the party setting up the contract must show that it is founded on an adequate consideration, or is reasonable. It has also been held that the ordinary implication of a consideration from the seal, where the parties contract by deed, is not enough in cases of this kind. (Ross v. Sadgbeer, supra.)

It is necessary, therefore, in order to sustain the complaint in the present case, that it should allege or show that the covenant was made on adequate consideration, or that there was some good reason for entering into it. The complaint alleges that the defendant { entered into the covenant as a part of the consideration of the pur-1 chase of the defendant’s stores, factory and stock in trade. If so, | there was a good reason, as well as an adequate consideration.

The appellant’s counsel objects that the fact alleged cannot be proved by parol. The character of the evidence by which the plaintiffs propose to establish the averment does not appear. There is nothing in the complaint to warrant the assumption that he is not prepared to prove it by evidence in writing. The question now before the court is one of pleading, and not of evidence. The fact alleged, if proved satisfactorily at the trial, will be enough to show the contract prima faeie valid.

It is also objected that the alleged consideration is a past and executed one, and hence will not support the covenant. This objection rests upon, the assumption that the agreement of purchase was entered into on the eighteenth of November, six days before the covenant. The presumption would be, in the absence of evidence to the contrary, that the agreement was made on the day of its date. But the complaint alleges that the application of the defendant to the plaintiff to make the purchase, which appears to have been the initiatory step in the negotiations which resulted in the sale, was made on or about the 24th of November, 1871. The plaintiffs may resort to parol proof to show the actual date of the agreement. In Draper v. Snow (20 N. Y., 331), Selden, J., delivering the prevailing opinion, said: Whenever the time of the execution of any writing, even of the most solemn kind, becomes material, it may be proved by parol; not merely to supply an omission, where the paper itself is without date, but in opposition to the date where it contains one.” The time when a contract is executed is no more a part of the contract than the place where it is executed. Both belong to that class of attending and surrounding circumstances which may always be resorted to for assistance in explaining and applying the terms of the contract.” (P. 333.) If, therefore, the plaintiff should prove at the trial, under the allegation in the complaint, that the agreement was entered into at the date of the covenant, the objection now under consideration would have no force.

But upon the assumption that the agreement of purchase was signed on the day of its date, how stands the case ? The agreement was wholly executory. By its terms part of it was not to be performed till the twenty-fourth of November. On that day the sum of $100,000 was to be paid, and the personal property was to be transferred. Buj; the plaintiffs were under no obligation to purchase the real estate. The agreement gave them the refusal till the first of May following. - In these circumstances it is easy to see that the covenant of 'the defendant may have formed a part of the consideration of the purchase of'the real estate. Order affirmed, with costs of appeal.

Mullin, P. J., and Talcott, J., concurred.

Order affirmed, with costs.


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    ANDREW BLAZIER and HENRY BURDEN, Appellants, v. JACOB MILLER, Respondent.

      Boa/rA of health of Syracuse — power of, to appoint inspector of milk — destruction of impm'c milk

    The board^of health of the city of Syracuse appointed an inspector of milk, and authorized him to seize and examine all offered for sale in that city, upon having reasonable cause to believe that tbe same was below tbe standard quality of pure and wholesome milk, and to destroy tbe same if proved by him to be below such standard.
    In an action to recover tbe value of milk so seized and destroyed, held, that tbe board of health bad power to pass such ordinance, and that tbe inspector of milk was protected thereby while acting thereunder.
    Appeal from a judgment in favor of the defendant, entered on a verdict in the Onondaga County Court, and also from an order, denying a motion for a new trial on the minutes.
    The action was brought originally in a Justice’s Court to recover damages for unlawfully taking and detaining plaintiffs’ milk wagon horse and milk cans and destroying their milk in the city of Syracuse. The defendant set up, by way of justification, an ordinance of the board of health of said city appointing him inspector of milk “ with authority to seize, take into his possession and examine all milk offered for sale, or brought for sale into said city, upon having reasonable cause to believe that said milk is below the standard quality of pure and wholesome milk, and to destroy the same if found by him to be below such standard.” The justice rendered a judgment in favor of the plaintiffs. The defendant appealed to the County Court where the ease was tried before a jury, and the defendant had a verdict.
    i?. H. Gardner, for the appellants.

      W. E. Icrnsmg, for the respondent.
   Smith, J.:

The question whether the milk seized and destroyed by the defendant was pure and wholesome was litigated in the County Court, and the jury found that it was not pure and wholesome. The testimony also warranted the conclusion that the plaintiffs brought the milk into the city for sale, and had it there for that purpose, at the time of its seizure. The defendant, therefore, was justified in taking the milk and' destroying it, provided the ordinance under which he acted was valid. The plaintiffs’ counsel challenges the validity of the ordinance on several grounds, the principal of which is that the ordinance violates the provision of the State Constitution, which declares that no person shall be deprived of his life, liberty or property without due process of law. (Art. 1, § 6.)

The power of the legislature to prohibit the sale of impure and unwholesome articles of food, and to provide for the confiscation and destruction of such articles on their being offered for sale in open market, cannot be questioned. Legislation of that character (of which quarantine laws, by which not only is property destroyed, but personal liberty restrained, are frequent instances) is the execution and regulation, by the body politic, of the same power of self-preservation which is possessed by individuals at common law. Its justification rests upon the immediate and imminent danger to life and health, which it is designed to avert. The statute which was condemned by the Court of Appeals, in the case of Wynehamer v. The People (3 Kern., 378), relied upon by the appellants’ counsel in the case at bar, was of a very different character. The provisions of that act substantially destroyed, as the court held, the property in intoxicating liquors owned and possessed by persons within the State when the act took effect, without reference to the question whether such liquors were offered, or intended to be offered, for sale as a beverage. The opinions of the judges in that case present clearly the distinction between that act and statutes enacted to preserve the public health.

It has been held repeatedly, that the legislature may confer upon any department of a municipal government the authority to enact and enforce ordinances. The power results from and is incidental to its power to create and maintain municipal organizations (The People ex rel. Cox v. The Justices of the Court of Special Sessions, 14 S. C. N. Y. [7 Hun], 214, and cases there cited by Daniels, J.), and the instances are .numerous, in which the power has been given to boards of health, to enact and enforce such ordinances and regulations as the exigencies of the public health should appear to require.

The city of Syracuse, under its charter, has aboard of health possessing all the powers and authority of boards of health in any of the cities or villages in the State. (Laws 1857, vol. 1, p. 120, chap. 63, tit. 5, § 14.) By the terms of the act for “ the preservation of the public health,” passed in 1850, the several boards of health in any city or village in this State have power, among other things, to make regulations, in their discretion, concerning the suppression and removal of nuisances, “ and all such other regulations as they shall think necessary and proper 'for the preservation of the public health.” (Laws of 1850, chap. 324, p. 691, § 3, sub. 3.)

It is apparent, therefore, that the subject of prohibiting the sale of impure and unwholesome milk within the limits of the city is one, concerning which the board of health of Syracuse has power to act; and that the ordinance made by them, under which the defendant seeks to justify, is valid, unless the mode of procedure which it prescribes is unauthorized and illegal. No question was made on the argument, but that the board had power to appoint an agent to execute specific duties assigned to him, provided the duties were such as the board had authority to impose. The appointment of the defendant as milk inspector is a proper exercise of the power. The ordinance authorizes the milk inspector to seize milk offered for sale, and to destroy it on finding it to be below the proper standard, without providing for notice to the owner. If the functions of the inspector were judicial in their nature, the validity of the ordinance would be questionable. It is a plain principle of justice, applicable to all judicial proceedings, that no person shall suffer judgment against him without an opportunity to be heard. (Commissioners of Kinderhook v. Claw., 15 Johns., 537; Owners of Ground v. Mayor of Albany, 15 Wend., 374; Elmendorf v. Harris, 23 id., 628; Jordan v. Hyatt, 3 Barb., 282; Ireland v. City of Rochester, 51 id., 430.) But the functions of the milk inspector, under the ordinance in question, are simply ministerial. . He is to destroy the milk if it is found to be below the prescribed standard; otherwise, not. In order to ascertain whether it is below the standard, he has only to measure its specific gravity by an instrument made for the purpose. He has no discretion in the matter. It is immaterial, therefore, whether the owner is present or not. If present, he could do nothing to change the result. Notice, consequently, would not avail him, and so need not be given. (Bouton v. Neilson, 3 Johns., 474; Beach v. Saunders, 9 id., 229.) Besides, in this case, one of the plaintiffs had notice, and was present when the milk was tested. The ordinance, therefore, was valid, and was a complete justification to the defendant.

The exceptions taken at the trial to the charge of the judge, and to his rulings upon the admission or rejection of testimony, have been examined, and they present no other questions which require to be discussed. •

The judgment and order of the County Court should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment and order of County Court affirmed.


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    LEANDER W. KAUFMAN and JOHN A. FELSINGER, Respondents, v. JOHN THRASHER, Appellant.

      ,8upplwnenta/ry proceedings — power of referee to adjourn proceedings.

    A judge or referee in supplementary proceedings is vested with, the same power of adjournment that a master in chancery had when acting under an order for the examination of a debtor in a creditor’s suit, and he may adjourn the proceedings from time to time, even though the debtor to be examined refuses to consent thereto.

      The People ex rel. Williams v. Surlbut (5 How., 446) criticised.
    Appeal from two orders in proceedings supplementary to execution in this action, granted by the special county judge of Monroe, county directing the defendant and a witness to appear before a referee for re-examination.
    Oh the 17th of June, 1876, upon an affidavit showing the return of an execution, unsatisfied, issued upon a judgment in the Monroe County Court, in favor of the plaintiffs against the defendant herein, the special county judge granted an order in the usual form for the examination of the defendant before a referee, Mr. Sullivan, under section 292 of the Code. On the return day of the order the defendant appeared before the referee with his attorney, Mr. Noyes, and refused to be examined on tbe ground tbat other supplementary proceedings were pending against him, requiring him to appear at tbe same hour before tbe referee therein, who was bis said attorney, Mr. Noyes; and thereupon tbe defendant and bis attorney left tbe room, contrary to tbe direction of tbe referee. On tbe report of tbe referee showing these facts, and affidavits alleging tbat tbe proceedings pending before Mr. Noyes, as referee, were fraudulent and collusive on tbe part' of tbe defendant, an order to show cause, etc., for contempt was granted by tbe special county judge, and on tbe return day thereof tbe judge made a verbal order requiring tbe defendant' to appear before another referee,- Mr. Baker, and be examined, together with any witness tbat might be called, concerning bis property, etc., and also concerning tbe fraud alleged in tbe affidavits. Tbe defendant appeared and was examined before tbe referee named in tbe last-mentioned order on tbe twenty-seventh and twenty-ninth of June, and in the course of tbe examination refused to answer certain questions, although directed to answer them by tbe referee.
    Tbe questions were these: Tbe witness having testified tbat bis wife bad a deed of tbe place on which be lived, and tbat she advanced to him money she got from her mother, he was asked: “ State, if you know, bow much money your wife received from her mother ? ” and “ State, if you know, whether your wife has owned tbe place since you deeded it to her % ” Tbe witness declined to answer, on tbe ground tbat bis wife’s property was not under examination in these proceedings.” It appeared tbat bis wife bad control of the judgment against him, on which tbe supplementary proceedings were instituted in which Mr. Noyes was referee; tbat Chase & "Wilcox were her attorneys therein, and tbat they bad once been bis attorneys. Tbe witness was then asked: “ How long since Chase & Wilcox ceased to act for you as attorneys, or aid you in any professional way ? ” “ How long has Mr. Noyes acted as your attorney % ” “How long have you known Mr. Noyes ? ” “ Have you ever paid Mr. Noyes any money, as your attorney ? ” It appeared tbat shortly before tbe examination tbe witness confessed judgment to bis wife for $1,300, on which nearly all bis effects were sold June twenty-sixth. Tbe witness was asked “ At whose suggestion did you confess judgment in Thrasher v. Thrasher ? ” Tbe witness declined to answer these several questions, on the ground that they were cc foreign to this examination into defendant’s property.” The proceedings were then adjourned to the thirteenth of July, on the application of plaintiffs, the defendant objecting to any adjournment. In the meantime, Hannah Thrasher, the wife of the defendant, was subpoenaed by the plaintiffs to attend as a witness on said'adjourned day. The parties, their attorneys and the witnesses appeared on that day, before the referee. The witness was sworn, but she refused to answer any questions, whatever, on the ground that the referee and the judge had lost jurisdiction of the proceeding, by the adjournment to July thirteenth. The parties, the witness and them respective attorneys then appeared by consent before the special county judge and submitted the matter in controversy to him, upon affidavits and upon the report of the referee showing the proceedings before him as above stated. Thereupon the judge made the orders now appealed from. One of them recited all the proceedings, including the reports of both referees, and required the defendant to appear before the original referee, Mr. Sullivan, for further examination concerning his property. The other recited the proof of service of the subpoena on Mrs. Thrasher, and the report of Mr. Baker, and directed her to appear before the referee, Mr. Sullivan, and testify in said proceedings. The defendant, alone, appeals from each order. The appeal is submitted on printed briefs.

      M. Noyes, for the appellant.

      Famii/ng <& Williams, for the respondents.
   Smith, J.:

On behalf of the appellant, it is insisted that the adjournment from June twenty-ninth to July thirteenth was fatal to the jurisdiction of the referee, and also of the judge. That position seems to be advanced upon the theory, so far as can be gathered from the brief submitted to us, that a referfee in supplementary proceedings has no power to adjourn without the consent of parties, except from one day to the next. The case of The People ex rel. Williams v. Hulburt (5 How. Pr., 446 ; S. C., 1 Code R. [N. S.], 75) is cited. In that case it was said, by Johnson, J., that where no consent is given by tbe party against whom tbe proceeding is had, the judge has no more power to adjourn than a justice of the peace would have to adjourn a cause before him without the authority of the statute. The remark was a mere ddoúum, as consent was given in that case. If it is a correct exposition of the statute, neither a judge nor a referee has power, in supplementary proceedings, to adjourn even from one day to the next. That construction would produce great inconvenience in most eases, and in many would defeat the remedy intended to be given by the statute. Is not the authority to adjourn fairly to be implied from the statute ? The power of a justice of the peace is hardly analogous to that of a judge or referee in supplementary proceedings. A Justice’s Court is of limited jurisdiction, having no power except such as is given by statute. The proceeding supplementary to execution, though created by statute, is a proceeding in the action in which the judgment was recovered, and is a substitute for the creditor’s bill formerly used in chancery. The statute creating the proceeding is not to be strictly construed. (Code, § 461.) Is it not reasonable, therefore, to hold that the judge or referee in supplementary proceedings is intended to be vested with the same power of adjournment that a master in chancery had when acting under an order for the examination of a debtor in a creditor’s suit, as a necessary incident to the power of examination? The power of a referee, in this respect, is, undoubtedly, the same as that of a judge when the examination is before him. (§ 296.) Section 292, as amended in 1849, provides that upon proof, to the satisfaction of the judge, that there is danger of the debtor’s leaving the State, etc., the judge may issue a warrant, and the debtor, on being brought before the judge, may be examined on oath, and if it then appears there is danger of his leaving the State, etc., he may be ordered to enter into an undertaking * * * that he will, from time to time, attend before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of his property. This seems to imply that the judge may adjourn the examination from time to time, notwithstanding the debtor is restrained during the interval from disposing of his property. In Ammidon v. Wolcott (15 Abb. Pr., 314) a debtor was ordered to appear before a judge and be examined. He appeared, but the examination was suspended by reason of Ms moving to vacate the proceedings for irregularity. He was also present on the hearing of that motion, and on its being denied, the examination was adjourned by the judge to a subsequent day, of which notice was given only to the debtor’s attorney. It was held that on denial of the motion the judge had power to adjourn. In Allen v. Starring (26 How., 51) Campbell, J., was of the opimon that where the parties appeared at the appointed time and place, but 'the referee was absent, the referee could have appointed another time for the hearing. Of course, the authority to adjourn should not be abused, nor exercised except for good cause shown by affidavit or other proof, unless proof is waived.

But it is entirely clear that if the adjournment was irregular, and the referee and the judge thereby lost jurisdiction, it was competent for the judge, upon a proper application, to grant a new order requiring the debtor to appear, to the end that his examination might be completed and that other witnesses might be examined. That was the precise nature and effect of the orders appealed from. The judge had jurisdiction to make them, all parties having appeared before him voluntarily and submitted the whole matter to Ms decision. It appeared by the papers submitted that the examination of the debtor had not been completed. That the questions wMch he had refused to answer were pertinent to the examination respecting his property is too plain to require discussion. And in view of the transactions between the debtor and his wife, as testified to by him, it was apparent that the wife was a material witness, and that to refuse to the creditor an opportunity of examining her would have been a denial of justice. The judge evidently thought it was better to again send the matter to a referee for further examination, than to punish the debtor and his wife for contempt. Of this decision, the latter, certainly, have no right to complain.

The debtor has not the right to appeal from the second order, wMch directs the witness to appear and be examined. It does not affect the debtor.

' Each order affirmed, with costs.

Mullin, P. J., and Talcott, J., concurred.

Each order affirmed, with ten dollars costs and disbursements in each.


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    ANSONIA BRASS AND COPPER COMPANY, Respondent, v. S. R. PRATT, as Assignee in Bankruptcy of HEMAN H. FRINK, Appellant.

      Assignee in bankruptcy — action by judgment creditor against, to recover vahie of property levied on by sheriff amd delivered to assignee.

    On tlie 23d of June, 1873, plaintiff obtained a judgment against one Frink, and on the twenty-sixth issued an execution thereon to the sheriff, by whom a levy was made on personal property sufficient to satisfy the same. Frink having been adjudged a bankrupt in the following August, a marshal, under an order of the bankrupt court, demanded of, and received from the sheriff possession of the said property, and subsequently delivered the same to the defendant, Frink’s assignee in bankruptcy. In an action by the plaintiff to recover the value of the property, held, (1) that the action could not he maintained as for a wrongful taking and conversion of the property, as the plaintiff acquired by the levy no sufficient title to or interest in the same to sustain such an action; (2) that it could not be maintained as an enforcement of an equitable lien, acquired by the plaintiff by virtue of his judgment, on the fund in the hands of the assignee, for the reason that the bankruptcy court alone had jurisdiction over an action of such a character.
    Appeal from a judgment iu favor of the plaintiff, entered on the trial of this action by the court without a jury.
    This action was brought to recover from the defendant, as the assignee in bankruptcy of Hernán H. Prink, the amount of a judgment recovered by the plaintiff against said Prink on the 23d day of June, 1873, for the sum of $346.04.
    An execution on said judgment was issued to the sheriff of Jefferson county, and was by him levied on the 26th day of June, 1873, upon personal property of Frink sufficient to satisfy the execution. On the 4th of August, 1873, proceedings in bankruptcy were commenced against said Prink, resulting in his being declared a bankrupt on the fifteenth of August. On the fourth of August an exponte order was issued out of the bankruptcy court, in said proceedings, restraining the sheriff from disposing of said property levied upon by him, until the further order of that court. Thereafter a warrant was issued to the marshal to take possession of the bankrupt’s property, and the marshal, b'y virtue thereof, demanded possession of the property held by the sheriff under said levy, and the sheriff thereupon delivered to the marshal the keys of the store in which the property was contained, and the marshal took possession of the property. The marshal subsequently turned over the property to the defendant herein as assignee in bankruptcy, who sold the same, and took the proceeds as assignee.
    The cause was tried at the Jefferson Circuit, without a jury.
    The judge found that the plaintiff is entitled to recover against the defendant the amount due upon the judgment, besides costs.

      S. JR. Pratt, appellant, in person.

      M. P. Stafford, for the respondent.
   Smith, J.:

If this action is regarded as sounding in tort, for an alleged wrongful taking and conversion of the personal property in question, it is difficult to see how it can be maintained. The plaintiff had no title to, or interest in the property of Frink, by virtue of the levy, which would sustain the action. The property, when levied on, was in the custody of the law, and the sheriff was the only party who could recover for a wrongful taking while the levy was in force. (Barker v. Mathews, 1 Den., 335 ; Skinner v. Stuart, 39 Barb., 206.) The sheriff is responsible to the plaintiff for the value of the proporty levied on under its execution. It is no defense to the sheriff that the property was wrongfully taken from his custody by a third person. For such taking the sheriff may have his action against the wrong-doer, and thus indemnify himself. This court held recently in an action by the plaintiff herein against the sheriff, growing out of this very transaction, and on the same facts, that the sheriff was liable to the plaintiff for releasing the property in question and turning the same over to the marshal. (8 Hun, 151.)

The counsel for the respondent insists that the want of title in the plaintiff is not now available to the appellant, as the point, he says, was not taken at the trial. If it had been, he suggests it might have been obviated by showing that the plaintiff sued at the request of the sheriff.

It is, undoubtedly, a well-settled rule, that when a motion for a nonsuit is made, without stating the grounds of it, mere formal objections, which were not brought to the notice of the court, and which might have been obviated if attention had been called to them at the trial, will not avail on appeal from the decision refusing a nonsuit. (Castle v. Duryea, 32 Barb., 480 ; Binsse v. Wood, 37 N. Y., 526; Mallory v. Travelers' Insurance Co., 47 id., 52.) Here, however, the objection goes to the very foundation of the action. Proof that the plaintiff sued at the request of the sheriff would not have helped the case. Such request would not have transferred the right of action. "Where the objection is of such a nature that it cannot be obviated, the rule adverted to does not apply. (Delafield v. State of Illinois, 2 Hill, 159; Cook v. Whipple, 55 N. Y., 157.) But in the present case, the grounds of the motion for a non-suit were specified. The record states that the defendant’s counsel moved for a nonsuit on the ground that the plaintiff had failed to establish a cause of action against this defendant; that there is no proof that the notice of twenty days to the assignee in bankruptcy before bringing suit has been served on the assignee, as required by the provisions of the bankrupt act; and, also, that this court has no jurisdiction to entertain this action.” The first ground was broad enough to include the objection now under consideration. It may admit of question whether it was sufficiently specific, although the statement of the other two grounds necessarily confined it to limits not occupied by them. But it appears, by the statement of the reasons given by the judge for his decision, that his attention was called to the point, and that he was of the opinion that the sheriff held the goods as the agent of the plaintiff in the execution, and that his special interest in them inured to the benefit of the plaintiff. It is manifest, however, that, in the hurry of the Circuit, the learned judge fell into an error in that particular, and that if the plaintiff’s action rests upon no other ground than a wrongful taking and conversion, it must fail.

Another objection to the action, as one sounding in tori, is, that the taking was not wrongful. The sheriff voluntarily delivered the property to the marshal, and the marshal turned it over to the assignee. The sheriff was under no obligation to part with the property. On the contrary, it was his duty to resort to all reasonable means to protect his levy. This point was adjudged in the case of this plaintiff against the sheriff, above referred to. The defendant, therefore, was not chargeable with a conversion unless he 'refused to give up the property, or its proceeds, after demand, and oí that there is no evidence. This point, however, was probably waived by the omission to take it at the trial.

The only other view that can be taken of the nature of the action is, that it has for its object the enforcement of the lien which the plaintiff has, by virtue of its judgment, on the fund in the hands of the assignee. In that aspect of the case, the difficulty is, that a State court has not jurisdiction of an action to enforce and liquidate a lien upon a fund in the hands of the bankruptcy court. In this case, the fund is the proceeds of property which was voluntarily surrendered to the marshal by the sheriff. As we have seen, the plaintiff has its right of action against the sheriff. If it has also a lien on the fund in the hands of the assignee (a question which, in onr view of the case, it is not necessary to decide), such lien can only be enforced in the court in which the bankruptcy proceeding is pending. (Bankrupt Act of 1867, § 57.) In Havens v. National City Bank of Brooklyn (13 N. B. R., 95) it was held, by the General Term of this court in the second department, that no .State court can require a bank, in which the funds belonging to a bankrupt’s estate are deposited to the credit of the assignee in bankruptcy, to pay a judgment against the assignee of such 'bankrupt out of such funds. The fund is in the bankrupt court to be disposed of by order of that court. If these cases were correctly decided, this court would have no power to execute the judgment appealed from, if it should be allowed to stand. It has been held, in some of the federal courts, that an assignee appearing without objection in an action, brought in a State court, to enforce a hen upon the property of a bankrupt, cannot be heard on appeal to object to the jurisdiction. As, for instance, where the assignee appeared in an action to foreclose a mortgage, and made a contest for the surplus. (Mays v. Fritton, 11 N. B. R., 229; S. C., 20 Wall., 414.) But unless an assent thereto shall first be given by the assignee, as an officer of the court, no person can enforce a specific hen, such as a mortgage or a judgment in a State court, while proceedings in bankruptcy are pending. (In re Brinkmam, 7 N. B. R., 421; Augustine, Assignee, v. McFarland, 13 id., 7; Brigham v. Claflin, 7 id., 412, decided by the Supreme Court of-"Wisconsin.) The rule is well stated by the Súpleme Court of North Carolina, Settle, J., in these words: “ The bankrupt law does not divest a lien, but as all the property of a bankrupt, as well that subject to mortgages and liens as that which is unincumbered, passes to the assignee, and is in custodia legis, subject to priorities and liens, it follows that the bankrupt court is the proper tribunal in which to administer the remedies for the enforcement of liens. The State courts may be employed, to collect the assets of a bankrupt, and also to ascertain the liens which may exist on such assets; but it is one thing to ascertain a hen, and quite another to liquidate it.” (Blum, Ex., v. Ellis, 13 N. B. R., 345.)

We are of opinion that the objection to the jurisdiction of this court is well taken, and that it is fatal to the action against the assignee, whether it be regarded as an action to enforce the specific lien of the judgment on the fund in his hands, as the officer of the bankruptcy court, or to compel payment, out of the fund, of the damages resulting from the.alleged wrongful conversion

In any view of the action, therefore, we think it cannot be maintained.

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

Mullin, P. J., and Talcott, J., concurred.

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