author: INGALLS, J.:

text:
    WILLIAM SLOANE and others, Respondents, v. EDWARD LIVERMORE, Appellant.

      Arrest — complaint—when, .defective — Code of Civil Procedure, §§ 549-550, 558— construction of.

    Under § 558 of the Code of Civil Procedure, relating to the issuing of orders of arrest, and providing that “ at any time after the filing or service of the complaint, the order of arrest must he vacated on motion, if the complaint shows that the cause is not one of those mentioned in §§ 549 or 550 of this act,” it is not necessary to state in the complaint the facts relied upon to justify the arrest, it is sufficient if they be shown by affidavits.
    The order can only be vacated under such section when it affirmatively appears by the complaint that the cause of action is such, that in no event could the defendant be arrested under the said §§ 549 or 550.
    The complaint in this action was to recover the value of work, labor and services rendered to the defendant by the plaintiff. Upon the complaint, summons, and affidavits showing a fraudulent disposition of property by the defendant, an oi’der of arrest was granted. Held, that a motion, made under said § 558, to vacate the said order was properly denied.
    Appeal from an order of the Special Term, refusing to vacate an order of arrest.

      D. N. Rowan, for the appellant.

      Edmund Coffin, Jr., for the respondents.
   INGALLS, J.:

The complaint in the above action contains a cause of action for goods, wares and merchandise sold and delivered by plaintiff to defendant; and for work, labor and services performed by plaintiff for defendant; with the demand for judgment in favor of plaintiff of two thousand six hundred and eighty-nine dollars and seventy-eight cents. Upon such complaint, a summons, and sundry affidavits showing a fraudulent disposition of property by the defendant, the plaintiff obtained an order of arrest which, upon motion, the Special Term refused to vacate; and the defendant appeals to this court. The appellant insists that as the complaint does not state a cause of action which unsupported by affidavits, would justify an arrest, the order was improperly granted, and should have been vacated by the Special Term. The decision of this appeal involves a construction of section 558 of the Code of Civil Procedure, which is as follows: “ subject to the provisions of the last preceding article, the order may be granted at any time after the commencement of the action. It may also be granted to accompany the summons. But at any time after the filing or service of the complaint, the order of arrest must be vacated on motion, if the complaint shows that the cause is not one of those mentioned in section 549 or 550 of this act.” To justify vacating the order of arrest under this provision of the Code, the complaint must show that the case is not one of those mentioned m section 549 or 550. The second subdivision of the last mentioned section states as follows: “In an action upon contract express or implied, other than a promise to marry.” This portion of said subdivision specifies one of a class of actions in which an arrest may be made. The cause of action to be within such subdivision, must be upon contract, not fraud, the latter is especially mentioned as ground of arrest in section 549. And it should not be inferred, that a repetition was intended. A cause of action is clearly distinguishable from a cause or ground of arrest. A complete cause of action is stated in this complaint, but not a case which would justify an arrest. The facts upon which an order of arrest is granted, may not exist when the contract is made, nor even when the action is commenced. The language of the statute is, “or has since the making of the contract, or in contemplation of making the same removed or disposed of his property, with intent to defraud his creditors, etc.” We cannot reasonably infer that it was intended by this provision to compel the pleader to mingle two distinct causes of action in the complaint, one upon contract, and the other for fra.ud, in order to justify an arrest. Section 557 provides for granting an order of arrest upon affidavits, which shows that it was not the intention to rely exclusively upon a complaint, in order to enable the defendant by answer to frame an issue, and thereby determine the right to arrest.

The said second subdivision after specifying the nature of the action, viz., contract, proceeds to define the grounds which would justify an arrest in such action, namely, fraud in contracting the debt, or a disposition of property with intent to defraud creditors, etc.

It is not expressly stated, that the facts relied on to cause the arrest must be alleged in a complaint, and we are disinclined to infer that so important and radical a change in the law in regard to arrest was intended to depend upon mere inference. We are of opinion that to justify vacating an order of arrest under the last clause of section 558, it must affirmatively appear' by the complaint, that the cause of action is such that in no event could the defendant be arrested ivithin said sections 549 or 550.

We have seen that the cause of action stated in the complaint herein, is such that, under certain circumstances, the defendant might be arrested, and therefore the defendant ivas not entitled, upon that ground, to have the order of arrest discharged.

The facts contained in the affidavit are sufficient to uphold the order made at Special Term, and the same should bo affirmed with costs.

Davis, P. J., and Beady. J., concurred.

Order affirmed with costs.


source: Caselaw Access Project

author: INGALLS, J. :

license: Public Domain

text:
    ROBERT C. MELVAIN, as Executor and Trustee, etc., of THOMAS F. GUION, Deceased, Respondent, v. BENJAMIN TOMES, Appellant.

      Promise of one for benefit of a third person — when it may be enforced by the latter.

    A firm, composed of the defendant and the plan- tiff, borrowed of the plaintiff, as executor and trustee of the estate of one U i.ion, $30,000. Subsequently the firm was dissolved; defendant, in pursuance of an agreement, taking all the assets, and agreeing to pay all the debts includiiv; that due to the said estate. In an action against defendant by the plaint.'", as executor and trustee, as aforesaid, to recover the samo, held, that the promise of the defendant enured to the benefit of the estate of Guión, and that it could be enforced by the plaintiff.

      Arnold v. Nichols (64 N. Y., 117), followed.

      Meld further, that it was not necessary to make the plaintiff, individually, a party defendant.

      Appeal from an order t . y ruling a demurrer to the complaint herein, and also from the judgment rendered in this action in favor of the plaintiff.

      George II. Foster, for appellant.
    Until the partners have given their individual security to the creditor, there is no severance, but the demand of the plaintiff is against both partners jointly, and not otherwise. (Le Bag's v. McCrea, 1 Wend., 171-2.) If one partner, upon dissolution of the firm, takes the assets, and agrees to indemnify the other partner against the debts, while the other partner may, in equity, insist upon the application of the firm property to the firm debts, yet creditors cannot claim this, as they have no . specific lien on partnership property. The rale which appropriates it to payment of firm debts in preference to those of individual partners, is for the protection of partners, not for the benefit of creditors. (Robb v. Stevens, Clam., 191; Ketcham v. Durkee, 1 Barb. Ch., 480; Kirby v. BchoonmaJcer, 3 id., 46; Sage v. Ghollar, 21 id., 596; Field v. Chapman, 15 Abb., 443; Field v. Hunt, 24 How., 563.) Both partners must be defendants, if Tomes takes the objection at the proper time. (Field v. Chapman, 15 Abb., 434; Lewis v. Greider, 49 Barb., 606; 51 N. Y., 231; Isham v. Phelps, 54 N. Y., 673.) The fact that Melvain is a party in a representative capacity does not preclude or excuse his joinder in his individual capacity. (Bap v. Stone, 15* Abb. [N. S.], 137.) The principles established in Lawrence v. Fox (20 N. Y., 268), on which the court below relied, do not justify the claim against Tomes alone. (Davis v. Morris, [opinion of Grover, J.], 36 N. Y., 575, 576; Kelley v. Roberts, 40 id., 432; JEtna Nat. Bank v. Fourth Nat. Bank, 46 id., 92; Merrill v. Green, 55 id., 270; 55 id., 270, 273 [opinion of the court, Grover, J.], c. f. Durand v. Curtis, 57 id., 7.)

      B. F. Dunning, for respondent.
   INGALLS, J. :

The partnership firm of Tomes, Melvain & Co., composed of Benjamin Tomes, the defendant, and the plaintiff, Robert C. Mel-vain, individually, borrowed of the plaintiff as the executor and trustee of and under the last will and testament of Thomas F. Guión, deceased, thirty thousand dollars, of which seven thousand dollars have been repaid by said firm. It is alleged in the complaint, “ that on the first of May, 1874, the said partnership was dissolved by mutual consent, and the goods, wares and merchandise and assets of the said firm were, by and with the consent of Eobert C. Melvain, retained by said Benjamin Tomes, who in consideration thereof assumed and agreed to pay all the debts of the said firm, including the amount hereinbefore alleged to have been due from the said firm, to the said estate of Thomas F. Guión, deceased, of which the plaintiff is executor and trustee.” The plaintiff alleges a demand of the money and a refusal by the defendant to pay the same. Thus it appears that upon the dissolution of the partnership the defendant purchased the property thereof, and assumed and agreed to pay the debts including the one in question.

We cannot doubt the plaintiff’s right to recover. The case of Arnold v. Nichols (64 N. Y., 117), and the cases therein cited fully establish such right. • The defendant upon an adequate consideration agreed to pay the debt in question, and nothing is alleged which at law or in equity excuses the defendant from performing his agreement. This agreement inured to the benefit of the estate of Thomas F. Guión, which is represented by the plaintiff. It was not necessary to make Eobert C. Melvain a defendant in the action, as Tomes became individually liable upon his promise, and occupies no situation whereby he can compel Mel-vain to contribute even between himself and the latter, much less between himself and the estate which is a creditor.

The judgment must be affirmed with costs.

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

Judgment affirmed with costs.


author: Davis, P. J.: INGALLS, J.,

text:
    In the Matter of the Petition of W. S. CORWIN to vacate an Assessment.

      Vacating assessments in New York — -publication of notices — reception by aldei■mm of notice of designation of official paver— time of— when it must be proved.

    Section 20 of the charter of the city of New York of 1870, provides : “ And no vote shall be taken in either of the boards, upon the passage óf a resolution or an ordinance which shall contemplate any specific improvement, or involve the sale, disposition or appropriation of public property, or the expenditures of public moneys or income therefrom, or levy any tax or assessment, until after such notice shall have been published at least three days. And whenever any vote shall be taken, such resolution or ordinance shall, before the same shall be sent to the other board or to the mayor, and immediately after the adjournment of the board at which the same shall have been passed, be published with the yeas and nays and with the names of the persons voting for and against the same, as part of the proceedings.”

      Held, that although a vote could not be taken until after the resolution or ordinance had been published for three days, yet afterwards, and when the vote was taken, the resolution or ordinance need only be published for one day.
    A resolution, sent from the board of assistant aldermen, was adopted by the board of aldermen June 3d, 1872, sent to the' mayor and by him approved June 4th, 1872. Upon the trial of an application brought to vacate an assessment levied thereunder, a notice signed by the comptroller and addressed to the common council, dated June 3d, 1872, was introduced in evidence, showing that the designation of the Daily Register as the official paper, had been that day made and filed.- The vote upon the adoption of the resolution was not published in that paper.

      Held, that it rested upon the applicant to show when this notice was received by the clerk of the board of aldermen ; that in the absence of evidence it was to be presumed that the board had met, adopted the resolution, and transmitted the proceedings to the then official paper, the Daily Transcript, before the notice had been received.
    Ingalls, J. dissenting (on the ground that there was no evidence of publication after the adoption of the i-esolution by the board of aldermen, which the statute requires.)
    Appeal from order of the Special Term vacating an assessment.
    This is a proceeding to vacate an assessment under chap. 312, of the laws of 1874, on a certain lot of land in the city of New York, owned by the petitioner.
    The proofs show that an assessment for paving 20th street, between 3d avenue and East River, was confirmed April 22d, 1873, and was imposed on lot Ward No. 5,012, being the lot mentioned and described in this petition.

      That the saicl lot had been assessed for a prior pavement of said street, and said assessment had been paid; the said lot forming part of the lots Ward Nos. 3,040, 3,041, which said numbers were the former Ward numbers of the lots which included the lot in question.
    That the resolution authorizing the improvement was introduced into the Board óf Assistant Aldermen, April 29, 1872 ; was adopted by the Board of Assistant Aldermen, May 6, 1872 ; was introduced into the Board of Aldermen May 13, 1872 ; was adopted in the Board of Aldermen,' June 3, 1872 : and was •approved by the Mayor June 4, 1872.
    The petitioner claimed that the proofs show that there was no publication of the resolution and ordinance after its passage by the Board of Aldermen, and before it was sent to the mayor, as required by § 20 of the charter of 1870.

      J. A. Beal, for the corporation, appellant.

      P. A. Ilargous, for the petitioner, respondent.
   Davis, P. J.:

The evidence did not justify the court below in vacating the assessment. It was shown that the ordinance was not published with the yeas and nays, and with the names of the persons voting for and against the same as part of the proceedings, in the Daily Register, before it was sent by the Board of Aldermen to the Mayor. That publication was not required by section 20 of the charter of 1870 to be made for three days, and a single publication was sufficient. It should not be confounded with the publication required before a vote shall be taken in either board upon the passage of a resolution or ordinance, which must be at least three days. That publication in this case must be presumed to have been made, in the Daily Transcript, where the law requires it to have been made. The Daily Register was designated as the official paper on the 3d of June, 1872, and that was the day on which the Board of Aldermen adopted the ordinance in question.

A notice signed by the comptroller and addressed to the common council, dated New York, June 3d, 1872, was put in evidence that showed the designation of the Daily Register was made by certificate in writing, filed on that day in the office of the comptroller; but there is nothing in the case to show when in point of fact that notice was delivered to the common council or brought to the knowledge of its clerk. The designation itself may have been made and filed after the passage of the ordinance by the Board of Aldermen, and after the proceedings of that day had been sent to the Daily Transcript as official journal.

It can hardly be doubted that if the proper publication was made by the clerk of the board of aldermen in the Daily Transcript before notice of the designation of the Daily Register as the official journal, the publication would have been regular and sufficient. This court held in the Matter of Peugnet (5 Hun, 434-6), that it was incumbent upon the petitioner to show that the clerk of the respective boards had failed to perform their duty in respect of the publication, and at page 436, the difference in the publication required was also pointed out.

If in fact the ordinance in this case was passed by the board of aldermen in the forenoon of the 3d of June, 1872, and the proceedings of the meeting had been sent for publication to the Transcript, the publication in that journal would have been regular and lawful even if it should appear that at some subsequent hour of that day other officers of the city had designated the Daily Register as the official journal. For where a publication is once commenced by being properly delivered tó an official journal it does-not become invalid by the subsequent designation of another official journal, but is well published if it appear on the following day in the columns of the journal to which it had been officially delivered.

For aught that appears in this case, and very probably the fact was, that the board met and adopted the ordinance, and the clerks of the board, pursuant to the direction of the law, sent the proceedings for publication in the Daily Transcript with no knowledge or intimation that the mayor or comptroller had or were about to make a change in the official journal. And possibly the designation of the new paper was in fact not brought to the notice of the common council or of its cleiks until the 4th of June. It was incumbent, as has already been said, on the petitioner to show clearly that there was a failure to make a proper publication of those proceedings. And even then it may be greatly doubted, if there were no other ground, whether the assessment was invalid for the reason that the publication had not been made. It is not necessary to pass now upon that question, as it is left in the case extremely doubtful whether a lawful publication was not properly made of the proceedings of the 3d of June in the New York Daily Transcript, which remained to that day, and probably for the whole of it, the official journal for the purpose of publishing such proceedings.

The order should be vacated with ten dollars costs and disbursements and the proceedings remitted to the court below for a rehearing.

Brady J. concurred.

INGALLS, J.,

dissenting:

We are convinced that the decision of the Special Term should be sustained. This assessment was imposed for repaving a street, and hence within the exception contained in the statute of 1874,' chap. 313. The resolution directing such improvement was adopted by the board of aldermen June 3d, 1872, and approved by the mayor June 4th, 1872. During this period the Daily Register was the official journal, duly designated as the paper in which such proceedings were required by law to be published. The evidence is to the effect that no publication was made in such paper, after the adoption of the resolution directing the improvement by the board of aldermen, and before the approval thereof by the mayor. Section 20, chap. 177, of 1870, provides: “And no vote shall be taken in either board upon the passage of a resolution or an ordinance which shall contemplate any specific improvement, or involve the sale, disposition or appropriation of public property, or the expenditures of public moneys or income therefrom, or lay any tax or assessment until after such notice shall have been published at least three days. And whenever any vote shall be taken, such resolution or ordinance shall, before the same shall be sent to the other board or to the mayor, and immediately after the adjournment of the board at which the same shall have been passed, be published with the yeas and nays, and with the names of the persons voting for and against the same, as part of the proceedings; and no resolution or ordinance which shall have passed one board shall be acted upon by the other board on the same day.” Considering the language employed in this section, and the manifest purpose of such publication, namely, to' give notice to the parties interested, to enable them to protect their rights, we are entirely satisfied that such provisions in regard to publication are not merely directory but ’ mandatory. (In re Douglass, 46 N. Y., 42.) The owner of property has the right to insist that the requirements of a statute shall be at least substantially observed before he is divested of his prop-, erty, or an assessment is imposed thereupon. There is no hardship in requiring public officers to discharge their entire duty in such a proceeding, and if there was, it would furnish no excuse for taking the property of the citizen, or imposing upon him a burden without observing the requirements of the law.

The order should be affirmed with costs.

' Order vacated with ten dollars costs and disbursements. Proceedings remitted to court below for a re-hearing.


author: Ingalls, J.:

text:
    ICHABOD T. WILLIAMS, Appellant, v. JACOB G SCHREIBER and others, Respondents.

      Compromise by creditors — secret agreement in favor of one — release contained in deed — construction of.

    The firm of C. & E. A. Neidig being in embarrassed circumstances compromised with their creditors by giving new notes for 30 per cent of their indebtedness, indorsed by one Henry Neidig, in consideration of which the creditors released them from the existing debts. Without the knowledge of the other-creditors an arrangement was made with the plaintiff (to whom the firm were indebted in the sum of $7,591.54 on notes, certain of which to the amount of $3,500 were indorsed by the defendant) by which he was also to receive, in addition to the 30 per cent., notes of the defendant for $1,500.
    In an action upon one of the notes given by defendant, held, that the secret agreement, in pursuance of which it was given, was a fraud upon the rights of the other creditors, and that the notes were therefore void.

      The deed of compromise provided “ but it is expressly understood that nothing herein contained shall be held or understood as relieving or discharging the indorser upon any paper held by either of us.”

      Held, that by the exception contained in the release the parties only intended to retain a claim upon the indorsers as additional security, in case from any cause the compromise should fail.
    Appeal by the plaintiff from a judgment entered after a trial at the circuit where the complaint ivas dismissed ivith costs.
    The defendants, Charles Neidig and Christian A. Neidig, composing the firm of C. & C. A. Neidig, had been dealing with .the plaintiff since 1869, or thereabouts.
    Shortly before March, 1875, the firm’s indebtedness to the plaintiff was $7,591.54; said indebtedness being evidenced by notes, certain of which, amounting in the aggregate to $3,50U or $3,600, were endorsed by the defendant Jacob Gr. Schreiber. These endorsed notes were renewals of other unendorsed notes made by said firm for similar amounts.
    Shortly before March, 1875, said firm being insolvent, offered to compromise with their creditors by giving to each of said creditors three of their said firm’s notes, amounting in the aggregate to 30 per cent, of the respective claims of said creditors, said notes to be endorsed by one Henry Neidig, and made payable one in six, one in twelve, and one in eighteen months from the dates thereof. At first the plaintiff refused to accept this proposition; but at last consented to release both the Neidigs and Schreiber upon receiving the notes above referred to for 30 per cent, of his-entire claim, and twelve additional notes, each for $125, to be made by Schreiber and endorsed by said firm. In pursuance of this arrangement the plaintiff, on March 1st, 1875, executed the composition deed. Said deed expressly provided that, “ it is expressly understood that nothing herein contained shall be held or construed as releasing or discharging the endorser upon any paper now held by either of us.”

    This suit was brought to recover on one of said twelve notes. The defendants C. & C. A. Neidig, and the defendant, Schreiber, answered separately, claiming, on the facts, as they are above stated, that the note in suit is void, for want of consideration, and because the receipt by the plaintiff of said twelve notes was a fraud on the other creditors of the Neidigs.

      Albert B. Boardman, for the appellant.
    Under the reservation in the deed the notes given by defendant are valid. (1 Steph. N. P., 936; Montague on Composition, 36; Burge on Suretyship, 210; Chit, on Bills [10 A'mcr. Ed.], 420; Byles on Bills [2 Amer. Ed.], 202; see also Mallet v. Thompson, 5 Es.p. R., 178.)

      Hubbard Henderson, for the respondents.
   Ingalls, J.:

This action was brought to recover upon a promissory note executed under the following circumstances: Charles Neidig and Christian A. Neidig, constituting the firm of C. & C. A. Neidig, applied to their creditors to compromise the indebtedness of such firm to such creditors. The latter agreed to accept endorsed notes for 30 per cent, of their respective claims, in full settlement thereof, and agreed to execute a full and sufficient release and discharge of all debts owing to them respectively by the said firm; the creditors, including the plaintiff', executed such compromise agreement, and received the notes of the firm endorsed by one Henry Neidig. By a private arrangement, and as a consideration for joining in such compromise agreement, the plaintiff exacted and obtained from such firm notes executed by the defendant, Jacob G. Schreiber, for the benefit of said firm, payable to the order of said firm to the amount of $1,500; in addition to the 30 per cent, mentioned in the compromise agreement. This arrangement was not communicated to the other creditors of the Neidigs.

The note in suit was one of the series making up the $1,500. This transaction was clearly in fraud of the rights of the other creditors, and in violation of the terms and spirit of the agreement. It may be faii-ly inferred that the other creditors would have declined a compromise if they had been aware of the private arrangement in regard to the $1,500. This fraud upon the other creditors rendered the note, upon which this action is brought, void. (Lawrence v. Clark, 36 N. Y., 128; Harloe v. Foster, 53 N. Y., 385; Russell v. Rogers, 10 Wend., 473; Breck v. Cole, 4 Sandf. [S. C. R.], 79.)

The following clause appears in the compromise agreement: “But it is expressly understood that nothing herein contained shall be hold or construed as releasing or discharging the indorser upon any paper hold by either of us.” The intention of the parties in inserting this provision is not quite apparent. It can hardly be inferred that the creditors intended to secure from the Neicligs thirty per cent, of their claims, and then collect the residue of the indorsers. Such an arrangement would have been inconsistent -with the terms of the compromise agreement, and would defeat the purpose intended, because the indorsers would have a right of action over against the Neicligs for any money they were compelled to pay, which would deprive the Neidigs of all benefit of the compromise. We therefore conclude that the parties to the agreement merely intended to retain a claim upon the indorsers as additional security, in case from any cause the compromise should fail.

This interpretation seems reasonable, and consistent with the other portions of the agreement, and harmonizes the entire arrangement. If we are correct in the view thus taken of the case, it becomes unnecessary to discuss the other questions which were pressed upon the argument.

The judgment should be affirmed with costs.

Davis, P. J., concurred.

Judgment affirmed with costs.


author: Daniels, J.:

text:
    MARY T. COWLES, Appellant, v. JOHN H. WATSON, Respondent.

      Contract induced by fraudulent representations — measure of damages — Order denying new trial — appeal from.

    The plaintiff subscribed. $5,000 towards the formation of a corporation to operate an oil well, being induced so to do by the false and fraudulent representation of the defendant, that the sum of $500,000 had been paid for the land to be conveyed to the corporation, while in fact the same had cost but $255,000. After the formation of the corporation; 1,000 shares of stock were issued to her at five dollars per share, while if the stock had been issued to her according to the actual amount paid for the property, she would have had 1960 shares.
    In an action by her to recover damages for the fraud so committed, held, that she was entitled to recover the value of the shares so withheld, or the money paid by her as their purchase price.
    That her right to recover such damages was not aifected by the fact that she had retained her own shares until they became worthless.
    Upon an appeal from an order denying a motion for a new trial made upon the minutes of the justice trying the action, it is not necessary that the particular grounds assigned in support of the motion should be specifically mentioned ; it is sufficient if it appear from the order that the motion was actually heard and decided.

      Joannes v. Jennings (4 Hun, 66), distinguished
    Appeal from a judgment recovered on a trial at the. Circuit, and from an order denying a motion made upon the minutes, for a new trial.

      E. B. Cenóles, for the appellant.

      Ilenry J. Scudder, for the respondent.
   Daniels, J.:

The action was prosecuted for the recovery of damages arising out of what were alleged to have been false and fraudulent representations, made concerning the purchase price of certain oil producing property situated in the State of Pennsylvania. It was in fact purchased for the price of $255,000, and the representation relied upon as the foundation of the action, was that the price paid was the sum of $500,000. The title to the property was acquired on the 25th day of April, 1864, pursuant to the terms of a contract made with the vendor on the 15th of the same month. And a corporation was formed for working the property in the production of oil early in the following month of June. The capital of the corporation was $1,000,000, divided into 100,000 shares of $10 each. And its property consisted of that which was originally purchased for the persons promoting the organization of the corporation for the sum of $255,000. On that purchase the conveyance was made to the defendant and another person, as it was claimed, in trust for the parties then interested in the enterprise.

The plaintiff through her husband, who is her counsel in the case, invested the sum of $5,000 in this enterprise, which was paid in equal amounts on the 19th and 28th days of April, 1864. And for that it was claimed in her behalf that she became entitled to stock on the basis of the original cost of the property. When the stock was issued to her it was not according to that price, but on the basis of the payment of $500,000 for the property. She received 1,000 shares of the stock at the price of $5 each share. While if the stock had been issued to her according to the actual price paid for the property, she would have had 1,960 shares. It was because she had been deprived of this difference of 960 shares that this action was instituted. And to sustain it evidence was given tending to prove that the defendant had represented the cost of the property to be $500,000, and that the plaintiff had been induced by that representation to accept the 1,000 shares of stock, instead of the 1,960 now claimed to have been her proper proportion of the stock of the company.

The sharply contested point upon the trial involved the fact of the making of the representations alleged to have been fraudulent. And as to that, the case on the part of the plaintiff was predicated upon a memorandum in writing made by the defendant, which contained the statement that a producing well upon the land “ will pay forty per cent, on $500,000, the cost of the property.” It was further added, “ stock to be issued 100,000 shares, par value $10, to original subscribers, $5.” This was directed to be shown to three persons afterwards named, neither of whom was the plaintiff or her husband. It was claimed that this memorandum which the defendant alone subscribed w.is designed as a means of inducing persons to whom it might be exhibited to become interested in the enterprise, and that it was not alone for the inspection of those to whom it was directed to be shown. And that it was intended to deceive them by producing the belief that the actual cost of the property was the sum of $500,000. Evidence was given supporting these positions, which was met by the defendant by the assertion that the representations related to what the property was to cost the company to be formed for the purpose of operating it, and that the memorandum was a private one, for the sole use of the three persons to whom it was directed to be exhibítod. The case was elaborately tried, and clearly and fairly submitted to the jury. And by their verdict they adopted the plaintiff’s theory of the facts, limiting her recovery, however, to the sum of six cents.

Exceptions were taken by her counsel to the manner in which certain propositions presented by him were submitted to the jury. But they related entirely to what was requisite to justify the conclusion that a fraud rvas shown to have been perpetrated in the case. And as the jury found that in her favor, she had no reason to complain because it might have been more favorably submitted under the evidence. Even if her propositions were too much restricted by the qualifications to which they were subjected, the verdict in her favor is conclusive evidence that she was in no way injured by that circumstance. For that reason she cannot, for the purpose of supporting her appeal from the judgment, derive any assistance from those exceptions. No verdict could have been rendered in her favor unless the fraud had been established to the satisfaction of the jury. And the fact that they gave her a verdict for even nominal damages for that reason shows that they adopted her theory of the case. It was as to this portion of the case alone that her exceptions presented legal propositions. And they have been deprived of all practical value because she has succeeded on the points presented by them. The consequence is that in the appeal taken from the judgment she has no legal ground on which it can be supported. For where a cause has been tried by a jury, the party appealing to the General Term can only do so “ upon the law,” when the appeal is from the judgment. (Code, § 348; Thurber v. Harlem Bridge, etc., Co., 60 N. Y., 326; Matthews v. Meyberg, 63 N. Y., 656.)

The error in the case was in the measure adopted by the jury for the compensation of the plaintiff’s injury. That she had been fraudulently deceived they found to be true as a matter of fact. But they concluded that she had suffered no serious injury by means of the fraud. In that they very clearly fell into an error. For if she had been induced by the defendant to become a party to the enterprise on the representation that the property itself cost $500,000, when in fact its cost was but little over one-half of that amount, she was deprived by means of it of the benefit of nearly one-half of her investment. The substance of the case, as the jury must have found it established in order to find any verdict whatever in her favor, was that she was entitled to the advantages of the purchase at its actual cost to the defendant and the others acting with him in the acquisition of the property, and that she had been proportionately deprived of so much of them as the represented exceeded the actual price paid. The latter legally and logically followed from the former. If she had been deceived as she affirmed, and the jury concluded, she had, then she was deprived of nearly one-half of the equivalent which she ought to have received for her money. She received but 1,000 shares of the capital ■ stock of the company, when the representation made could only be made good by giving her 1,960 such shares. For that reason the jury should have given her either the value of the shares so Avithheld from her, or the money paid by her as their purchase price. A party deceived by fraudulent representations has the right, in an action for damages because of the fraud, to be placed in the pecuniary position Avhich the representations made entitled him to believe he was securing by means of the transaction. (Graves v. Spier, 58 Barb., 349; Sharon v. Mosher, 17 id., 518.) Such damages are the natural as well as the necessaiy consequences of the Avrong; and to that extent the party injured is legally entitled to compensation by the verdict of a jury. In this case there Avas no substantial ground for controversy after the fraud- was established, because the defendant’s answer admitted the actual cost of the property to be the sum of $255,000, instead of $500,000, as the jury must have found it to have been represented. The jury therefore had no discretion over the subject after that-, for it then became their legal duty to recompense the plaintiff for the entire amount of her loss arising out of this difference.

It has been objected that they Avere not bound to do that because of the circumstance that the plaintiff continued to oavii the stock until it became Avorthless. But it did not necessarily follow from that fact that she would also have retained the additional shares in the same manner if they had been delivered to her. And if that is to be presumed she would have received the dividends paid upon them, Avhich was shoAvn to have been considerable in amount, while the property was successfully worked. But a party defrauded cannot be deprived of the damages awarded by law as the measure of legal indemnity, because it can be subsequently seen that what should have been received would have been lost or wasted if he had not been deprived of it. The law entitles the party defrauded to a legal recompense for his injury, and it has never been held that he could only obtain it by showing that in the end he would be correspondingly benefited by what he ought in the transaction complained of, to have received. In any view which can be taken of the case consistently with the Verdict, the plaintiff should have recovered substantial, instead of nominal damages. And as the jury failed to give her such damages, the court before which the trial was had was very properly applied to in her behalf to set aside the verdict. It had the power to do that, and a direction to that effect should have been given in the case. (Code, § 264; Robbins v. Hudson R. R. R., 7 Bos., 1; Algeo v. Duncan, 39 N. Y., 313; McDonald v. Walter, 40 id., 551.) But that was not done, the motion on the contrary was denied. And from the order denying it the plaintiff has appealed. But it has been objected that the decision embodied in that order cannot be now reviewed, because it does not appear that this point was presented in support of the order, And the case of Count Joannes v. Jennings, 11 S. C. N. Y. [4 Hun], 66, has been relied upon as authority for that objection. But that case did not go to that extent. What was there held was, that a decision upon a mere formal motion for a new trial at the circuit could not be reviewed by an appeal to the General Term. It was intended simply to disapprove of the practice, which had become quite common of formally moving for a new trial on the rendition of a verdict, without any intention that it shoidd be considered or reflectingly decided by the court.

This case appears in a very different shape. The order states that the verdict for nominal damages had been returned; that a motion on behalf of the plaintiff was made upon the minutes of the court for a new trial, and after hearing counsel for the respective parties such motion was denied. This language shows that the case was heard by the court, and decided upon consideration. In form the order is the same as the General Term is in the constant habit of reviewing on appeal. The particular grounds assigned in support of the motion are not required to be specifically mentioned. But what is necessary is that it shall appear from the order that the application was actually heard and decided. Anri that has been sufficiently disclosed by the order made in this case. But two positions could be taken in support of the motion and the important one is recited in the order, that of the assessment of the plaintiff’s damages at six cents. In this respect the verdict of the jury was entirely wrong.

Even á jury should not be permitted under the forms of law to do what is shown to be palpably unjust. And from the conclusion reached by them upon the facts forming the legal foundation of their verdict, that has been done in this case. The order denying the motion made for a new trial should be reversed with costs to the appellant and an order entered setting aside the verdict and directing a new trial, and the appeal from the judgment should be dismissed with costs to the respondent.

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

Appeal from judgment dismissed with costs; order denying new trial reversed with costs and motion for new trial granted.


author: Davis, P. J.:

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    The MERCHANTS’ EXCHANGE NATIONAL BANK, of the City of New York, Respondent, v. ABRAHAM WAITZFELDER, impleaded with MAX L. RAU and SOLOMON L. WAITZFELDER, Appellant.

      Code of Procedure, § 375 — enforcement of judgment against party not served— effect of assignment pending.

    In a proceeding under section 375 of the Code, to bring in and have judgment against a joint debtor, made a party to but not served with process in the original action, it appeared that pending the proceeding the judgment had been assigned by the plaintiff to one Mack. Held, that the fact of the assignment constituted no defense ; that the assignee might by motion have been brought in as plaintiff, or that he might continue the proceeding in the name of the original plaintiff.

      Appeal from judgment in favor of the plaintiff, entered on a .verdict directed by the court at circuit.
    This is a proceeding under § 375 of the former Code of Procedure, requiring the appellant, Abraham Waitzfelder, to show cause why he should not be bound by a judgment for $2,834.16, rendered in the original action in favor of the plaintiff against Solomon L. Waitzfelder & Co., of which firm the appellant was a partner, on the 6th day of January, 1876.
    The original action was commenced December 13th, 1875, against Max L. Rau, as maker of a promissory note, and Solomon L. Waitzfelder and Abraham Waitzfelder, composing the firm of S. L. Waitzfelder & Co., as indorsers of said note.
    The defendant, Abraham Waitzfelder, was not .served with the summons in the original action. On the 4th day of April, 1876, the defendant, Abraham Waitzfelder, was summoned to show cause why he should not be bound by the judgment under § 375 of the Code.
    Upon the trial the plaintiff put in evidence the original judgment roll, and gave due proof of the protest of the note and notice to the appellant. The appellant proved that on the 20th day of April, 1876, after the recovery of the original judgment, and after the commencement of this proceeding, i. e., after the service upon the appellant of the summons to show cause under § 375 of the Code, the plaintiff assigned to Isaac Mack the original judgment recovered against Max L. Rau, the maker of the note.
    Upon this proof the defendant’s counsel moved to dismiss the complaint, and to direct a verdict for the appellant, Abraham Waitzfelder. The motion was denied and the defendant’s counsel excepted. And the court thereupon, upon motion of plaintiff’s counsel, directed a verdict for the plaintiff for the amount of the original judgment, and interest.

      Hudson & Slrauss, for the appellant.
    The plaintiff assigned its judgment against the maker of the note, Max L. Rau, and thereby released him from all liability to it. The holder of a promissory note cannot discharge or release the maker and reserve his right of action against the indorsers. (Farmers' Bank v. Blair, 44 Barb., 641; Boydv. McDonough, 39 How. Pr., 389; Daniel on Negotiable Instruments, § 1306; Lynch v. Reynolds, 16 Johns., 41; Brown v. Williams, 4 Wend., 360; Mottram v. Mills, 2 Sand., 189; TImrber v. Jenkins, 36 How. Pr., 66; Edwards on Bills, 291; Boyd v. Finnegan, 3 Daly, 222; Boyd v. McDonough, 39 IIow. Pi’., 389; Lewis v. Palmer, 28 N. Y., 271; Ellsworth v. Lockwood, 42 id., 89, 98.)

      M. L. Toionsend, for the respondent.
   Davis, P. J.:

This is a proceeding under section 375 of the Code of Procedure to bring in and have judgment against a joint debtor, made a party to the original action but not served with process. Pending the proceeding the respondents sold and assigned the original judgment to one Isaac Mack. Upon proving which fact, the appellant claimed that the proceedings in the court below should be dismissed and judgment entered in his favor.

The fact of such an assignment constituted no defence. It did not destroy the judgment or the claim on which it was founded as against this defendant. It was simply a transfer of ownership. The assignee might properly have been brought in by motion, as plaintiff or he could continue the action in the name of the original plaintiff. The latter course was pursued but no prejudice results either to the assignor of the judgment or to the defendant in any form by that fact.

We see no error in the proceedings and nothing upon which this appeal can be sustained.

The judgment should be affirmed with costs.

Brady and Ingalls, J.J., concurred.

Judgment affirmed with costs.


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    EDWARD F. DELANCEY, Executor, etc., Respondent, v. OSCAR H. STEARNS, and others, Appellants.

      Appeal — sureties on — action on undertaking against sureties and appellants — not maintainable unless appellants are parties thereto.

    A judgment having been recovered by plaintiff in an action to foreclose a mortgage, the appellants who were defendants therein, being in possession of the premises, appealed from the judgment and procured a stay of proceedings by furnishing an undertaking, executed by two sureties, conditioned to pay the rents and profits and waste that might accrue during the pendency of the appeal. The plaintiff having been successful, brought this action against the sureties to the undertaking, and the appellants, who were not parties thereto ; the complaint alleging facts showing that the liability of the sureties had become fixed.

      Held, that as the appellants were not parties to the undertaking, they were not liable to the plaintiff for a breach thereof, and that as to them the complaint did not contain facts sufficient to constitute a cause of action.
    Appeal from order of the Special Term, overruling a demurrer of the appellants to the complaint.

      D. JP. Barnard, for the appellants.

      George G. Genet, for the respondent.
   Davis, P. J.:

The plaintiff as executor brought a suit to foreclose a mortgage, making the appellants parties defendants to the action. He recovered judgment in the foreclosure suit, from which an appeal was taken by the present appellants, and on motion for an order to stay proceedings pending the appeal, the proceedings were stayed on condition that an undertaking should be executed with two sureties for the rents, issues and profits, and waste, that might accrue during the pendency of the appeal.'

The undertaking was executed by Albert Polhemus and Garret Polhemus as sureties, in conformity to the order. The appellants are not parties to the undertaking. This action is brought on the undertaking against the appellants and the sureties on the undertalcing; and the complaint recites in substance the above facts, and alleges further facts necessary to show that the liability of the sureties upon the undertaking had become fixed and operative. No action could be maintained upon such an undertaking, except against the parties who executed it.

If the appellants were liable at all for the use and occupation of the premises, and for any ivaste committed thereon, their liability does not at all grow out of the undertaking, but depends upon another state of facts.

A joint action against them and the sureties, on the undertaking, cannot, we think, be maintained. Independently of the undertaking, the plaintiff had no right to the rents pending the foreclosure, and until a sale the mortgagor or his executors were entitled to remain in possession (Syracuse City Bank v. Tallman, 31 Barb., 201), and the liability of the appellants would only arise after a sale of the premises and a deficiency had accrued upon such sale. It is true that the sureties, if compelled to pay such rents or for waste, would have a remedy over against their principals; but that remedy did not exist at the commencement of this action, and there is no principle upon which the plaintiff could avail himself of it, as against the appellants, by uniting them in an action brought upon the undertaking itself. There was therefore a misjoinder of actions, and there was also a failure to state facts sufficient to constitute a cause of action against these appellants. .

The order should be reversed with costs.

Brady and Ingalls, JJ., concurred.

Order reversed with costs.


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    JAMES W. SMITH, surviving partner of Haggerty & Co., and others, Appellants, v. HERMAN SCHULTING, Respondent.

      Complaint — improper joinder of causes of action — who may join as plaintiffs.

    The complaint in this action alleged that the defendant was indebted in different sums to the various firms, plaintiffs herein, which he had agreed to pay as soon as he should be able to do so; that he had paid $10,000 on account of such indebtedness, but refused to pay the balance on the ground that he had ■been released by the plaintiffs ; that the plaintiffs were induced by fraudulent concealment and representations on the part of the defendant to execute and deliver to him a joint release. They seek in this action to set aside such release, and pray for separate judgments in their favor for the balance of their respective claims.

      Held, that the complaint was not objectionable as improperly uniting several causes of action.
    That as the plaintiffs were induced, by a common fraud practised upon them, to execute a joint release, they were entitled to maintain a joint action to set the same aside.
    That the fact that they prayed for separate judgments for the respective amounts due to them, did not render the complaint multifarious.
    Appeal by plaintiffs from a judgment entered on an order sustaining a demurrer to the complaint, and from an order denying leave to amend, and from an order granting an additional allowance.

      William Watson, for the appellants.
    A creditor’s action by several judgment creditors seeking to set aside several fraudulent conveyances made by the debtor at various times, and to various persons, and to subject the property to various executions of the plaintiffs, and to render an assignee in trust liable, states but one cause of action, and the various transferees may be joined as defendants, though there ivas no privity between them. (Reed v. Stryker, 4 Abb. [Ct. App. R.], 31; 2 Mad., 234; 2 Anstr., 469. 477; Whaley v. Dawson, 2 Sch. & Lef., 270; Boyd v. Hoyt, 5 Paige, 65; Dix v. Briggs, 9 id., 595; Murray v. Hay, 1 Barb., On 60.)

      G. B. Smith, for the respondent.
   Davis, P. J.:

The demurrer in this case states two grounds.

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

Second. That several causes of action have been improperly united in the complaint.

The demurrer ivas sustained on the second of these grounds, and judgment ordered for the defendant. An application was made for leave to amend, which was denied. If the complaint is to be construed, as it was by the court below, as setting out three several distinct causes of action arising upon three separate and independent frauds of misrepresentation and- concealment practiced upon each of the several firms, who are plaintiffs, the disposition of the demurrer by the court below was correct. But however the facts may turn out upon the trial, we think the true construction of the complant is not that stated in the opinion of the court below. In substance, the complaint alleges an indebtedness of the defendant arising upon several loans made by the respective firms who united as plaintiffs, which loans were payable whenever the defendant should be able to pay the same.

The complaint then alleges in substance that on the 7th day of October, 1868, the defendant did pay $10,000, part and parcel of said loan, but neglects and refuses to pay the residue, and asserts as a x-eason therefor that on that day the plaintiffs executed and delivered to him a release uxxder seal, and that said release is a valid bar to aixy action. The complaixxt then further alleges that the release execxxted by them was made uxxder a mistake of material facts, axxcl was procured by the defexxdaxxt ixx substaxxce by misrepi-esentation axxcl concealmexxt, the pax-ticulars of which ax-e set oxxt at lexxgth; and they allege that they executed the release in ignorance of the material facts, and by takixxg advaxxtage of such material facts the defexxdant induced them to execute a joint release which he ixow sets up axxcl assex’ts as a bar to the several claims; axxcl that they file a bill iix equity for the pux-pose of setting aside their joiixt release on the ground of fraud, and a mistake on their part, arising out of such common concealmeixt axid ignorance, and they pray for judgment in their favor fox- the balance of their respective claims.

It may be that on the trial the facts proved will not sustain the allegations of common fraud practiced upon them, and in obtaining the joint release executed by them, but we see no good reason why they may not maintain their action in equity for the purpose of avoiding such release if the allegations be true.

The principal issue presented by this complaint is the invalidity of. the alleged release. It is manifest by the admissions of the complaint itself, that unless the release be set aside there can he-no recovery of the indebtedness to the several firms. They have a common interest, therefore, in this principal issue, and inasmuch as the release is, or under the allegations of the complaint must be assumed to be, a joint one, obtained by a common fraud, there is no reason why all the parties to it may not unite in an action brought for the purpose of declaiming it void, and setting it aside because of a common fraud practiced upon them in obtaining it.

We think it comes directly within the principle of the cases cited by appellant's counsel, and although the plaintiffs were unconnected parties with respect to the indebtedness to them, they may join in the suit because there was one connected interest among them all centering in the principal point in issue. (2 Mad., 234; Ward v. Northumberland, 2 Anstr., 469, 477; Whaley v. Dawson, 2 Sch. & Lef., 270.)

The prayer for the additional relief by the recovery of judgment, for the indebtedness, does not render the complaint multifarious.. Geery v. N. Y. & L. S. Co., 12 Abb., 268; Wells v. Bridgeport Hydraulic Co., 30 Conn., 316.) Nor does it prejudice their l’ight to get rid of the release by a common action, and we do not see why that relief may not be granted under the Code in an equitable action, as an incident necessary to complete justice.

The judgment and order should be reversed and demurrer overruled, with leave to defendant to answer on the usual terms.

The other appeals are necessarily disposed of by this disposition of the demurrer. The orders should be severally reversed with ten dollars costs and disbursements in each case.

Brady and Daniels, JJ., concurred.

Ordered accordingly.


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    PHILIP FERDINAND KOBBE and EDWARD BALL, Respondents, v. MORRIS PRICE, Appellant.

      Passport — not evidence of truth of its contents — Family record of births — when inadmissible in evidence.

    In an action upon a promissory note the defendant, in order to establish his defense of infancy, offered in evidence a passport, containing a statement of his age, alleged to have been delivered to him on his emigration from Germany. Held, that it was properly rejected ; that although an official document, it was made up from the statements of the defendant himself, or some person in his behalf, and is not by any statute made evidence of the correctness of its contents.
    He also offered a book called a family record, shown to be in the handwriting of his father, then living in Germany, containing the births of his several sons. Held, that as the book was not a public record, and as the father was still living, it was properly rejected.
    A party cannot call witnesses to contradict statements made by an adverse witi ness, in answer to questions asked on cross-examination simply for the purpose of impeaching him.
    Appeal from a judgment in favor of the plaintiffs, entered on a verdict, and also from an order denying a motion for a new trial on the minutes of the justice before whom the action was tried.

      Danforth Becker, for the appellant.

      Dennis McMahon, for the respondents.
   Davis, P. J.:

This action is upon a promissory note. The defense interposed is infancy. The appellant at. the trial claimed the affirmative, which was denied to him by the court, to which he excepted. He then asked to amend the answer so as to entitle him to the affirmative; this also was denied, and an exception taken. These rulings of the court were correct. The question as to the right to the affirmative is to be determined upon the state of the pleadings when the case comes down to trial; and the defendant in this case had denied by his answer the copartnership of the plaintiffs, which clearly entitled the latter to the affirmative upon the trial.

For the purpose of establishing his infancy the defendant offered in evidence a passport alleged to have been delivered to him on his emigration from Germany, and which, it is supposed, contained a statement of his age at that time. This paper was excluded by the court, and an exception taken. The exclusion was proper, for the passport was at best mere hearsay. Although an official document, it was made up from the statements of the defendant himself, or some person in his behalf, and is not by any statute made evidence of the correctness of its contents.

He also offered in evidence a book called a family record, and shown to be in the handwriting of his father, containing the births of his several children. The father was living in Germany and had sent this record to the defendant at his request. The book would have been competent had the father been deceased, under the rules laid down by Mr. Greenleaf. (1 Greenleaf on Evidence, §§ 104, 105.) But it was not a public record, and the party who made it was living, and competent to prove its authenticity and the correctness of the facts therein stated. His testimony might have been taken by commission, but it was not. The exception to the rejection of the book was not well taken. The appellant and his two brothers all testified to the fact of his infancy. Their testimony if true, established that at the time of making the note in suit, the appellant was less than twenty years of age. There was no direct contradiction of the fact of defendant’s nonage, sworn to by these several witnesses, but evidence was given tending to impair or destroy their credibility, to some portions of which proper objections and exceptions were made and taken.

In Studwell v. Shapter (54 N. Y., 249), it was held that fraudulent representations made by an infant to induce another person to enter into a contract with him, would not give validity to the contract itself. In that case, as in this, the action was brought upon the contract itself, and not for any fraud perpetrated by means of alleged false representations; the evidence tended to show false representations, but the court held they were insufficient to charge the defendant with legal liability on the contracts, which the plaintiffs were by those representations induced to enter into with the infant. And Lott, C. C., says “is this different in principle from a representation that ho is of full age ?” That clearly would not have made him liable. The fact that a party is actually engaged in a commercial business, thus -holding himself out to the public as competent to contract, is as full and impressive a declaration to all persons with whom he is dealing that he is of age, as a statement of that fact is to a single individual. If under such circumstances, the infant could be held liable on his contracts he would be deprived of all the protection which the law intended to give him.

One of the plaintiffs was called and allowed to testify to representations made by defendant as to his capital, at the time he applied for the credit for which the note was given. This was objected to, and the objection overruled and the defendant excepted. The ruling was certainly of doubtful propriety, but the evidence on that subject, it seems to us, was not permitted to go far enough to operate as a legal prejudice to the defendant.

Both the defendant and Joseph Price, one of his brothers, were asked various questions in respect to their acts in disposing of the goods at the store of the defendant, and to charges of fraudulent acts made against them by one Goodwin and their answers, or failures to reply to such charges. Goodwin was allowed against the objection and exception of the defendant to contradict their denials, both in respect to what was said and done. This testimony was not competent; for if the plaintiff chose to impeach the witnesses by that line of cross questions, as he had a right to do, he was estopped by their answers, and not entitled to contradict them by calling other witnesses. There was we think a fatal error in the admission of this kind of evidence. It is manifest on a review of the whole case that the jury were led by the improper testimony admitted, to the application of incorrect principles in determining the case adversely to the defendant.

We think for this reason that the verdict and order must be reversed, and a new trial granted with costs to the appellant to abide the event-

Bradt and Ingalls, JJ., concurred.

Judgment reversed, new trial ordered; costs to appellant to abide event.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZABETH C. JAY, Landlord, v. WILLIAM H. BENNETT and others, Tenants, and HENRY DRALLE and others, Under-tenants.

      Lease ■ — prohibition of sale of intoxicating liquors — inet'ease of rent, if they are sold on premises — validity of agreement for.

    Where a lease prohibits the sale of intoxicating liquors on the demised premises, and it is further covenanted and agreed by the parties thereto that in case intoxicating liquors are sold, the lessor shall have the privilege of dispossessing the lessee and those holding under him, or of collecting from them double the annual rent specified in the lease, and in case of their failure to pay such increased rent, to dispossess them for non-payment thereof, such agreement for an increased rent in case the premises are used for such forbidden purpose, is legal and valid, and in case the lessees, or those holding under them, refuse to pay the same, they may be dispossessed by summary proceedings.
    Certiorari to review summary proceedings for the removal of tenants.
    This proceeding was brought in the Second District Court to dispossess the defendants by summary proceedings under the following circumstances:
    By lease dated 26th March, 1877, Miss Jay leased the premises in question to the defendants, Bennett and Abrahams, for five years, from May 1, 1877, with the privilege of a renewal of fifteen years, at the yearly rent of $2,600, payable quarterly.
    The lease required the tenants to pay all the taxes and assessments, and also contained the following clause: “It being clearly and distinctly understood, however, that at no time shall it be allowed to sell intoxicating liquor on the promises.
    And it is hereby expressly covenanted and agreed by and between the parties hereto, that in case intoxicating, liquor shall be sold in or upon the premises or any part thereof, that the party of the first part;, her heirs, executors, administrators and assigns, shall have the option thereupon either to dispossess the party of the second part and those holding under him, or to charge and collect from the party of the second part, his executors, administrators or assigns, thereafter during the remainder of the term of lease, annual rent in double the amount then payable, and for failure to pay the same, to dispossess the party of the second part and those holding under him, and into the premises again to enter, which double rent is to be construed as liquidated damages for breach of covenant aforesaid.”
    It was provided in the lease that the reference to the parties of the second part in the singular should be considered as made in the plural.
    Intoxicating liquor was habitually sold upon the premises, and, as appeal’s by the proof, in June, August and October, 1877.
    On November 1st, 1877, Miss Jay demanded double the rent, viz.: $1,300, and no part of it being paid, brought this proceeding.
    Her affidavit on which the summons was issued, also set up that the taxes of 1877, amounting to $715.50, became a lien on the premises on the 9th of October, 1877, and that the tenants had neglected to pay them, and that the defendants Lasalle and Meunier claimed an interest in the premises as mortgagees.
    Upon the trial, all of the facts stated in the affidavit of the landlord were proved, except that the court excluded all evidence as to the taxes, holding that taxes could not become rent so as to warrant summary proceedings.
    The justice dismissed the proceedings upon the ground that the amount of $1,300 demanded by the landlord was liquidated damages and not rent, and would not support summary proceedings.

      Lewis L. Delafleld, for the relator.

      James Li. Adams and William F. Pitshke, for the respondent.
   Davis, P. J.:

The case of Plumb v. Tubbs (41 N. Y., 442), is a strong case to show the right of the owner of lands, in disposing of them by grant, to prevent the sale of intoxicating liquors upon the premises by his grantee or his assigns. But without that, or any other authority, we see no reason in principle why the landlord, in demising his premises, may not impose rigid conditions to prevent the sale of intoxicating liquors, which he may regard as a moral eyil or as injurious to himself or his property.

In this case, the owner of demised premises evidently intended, with strict care, to prevent the sale of intoxicating liquors by her tenants, or their under tenants, by imposing such consequences as would, in her judgment, be quite certain to secure that end. The yearly rent reserved by the lease was the sum of $2,600, for the first term of five years, payable in quarter yearly payments, on the first days of November, February, May and August; but in respect of the rent to be paid, she caused to be inserted a provision by which the reserved rent should be doubled in case of the sale of intoxicating liquors upon the premises.

That provision was contained in the following clause of the lease: “it being clearly and distinctly understood, however, that at no time shall it be allowed to sell intoxicating liquor on the premises. And it is hereby expressly covenanted and agreed by and between the parties hereto, that in case intoxicating liquors shallbe sold in or upon the premises, or any part thereof, that the party of the first part, her heirs, executors, administrators and assigns shall have the option thereupon either to dispossess the party of the second part, and those holding under him, or to charge and collect from the party of the second part, his executors, administrators or assigns thereafter during the remainder of the term of lease, annual rent in double the amount then payable; and for failure to pay the same to dispossess the party of the second part, and those holding under him, and into the premises again to enter, which double rent is to be construed as liquidated damages for breach of contract aforesaid.”

The construction of these clauses of the lease seems to us to be very clear. After providing that at no time should it be allowed to sell intoxicating liquors upon the premises, the lease proceeded to declare the consequences and effect of a violation of that provision by declaring that if intoxicating liquors should be sold in or about the premises or any part thereof, the lessor should have her option either to dispossess the lessees and those holding under them, or to charge and collect thereafter during the remainder of the term annual rent in double the amount then payable, and for failure to pay the rent, to dispossess the party of the second part and those holding under him, and enter again into the premises. This gave to her, on a violation of the restriction against the sale of intoxicating liquors, the right to treat the leases as forfeited find to dispossess the lessees and their under-tenants, or it gave her the right to claim rent at the rate of twice the amount then payable; and for the tenant’s failure to pay the same, to dispossess him, and all holding under him and re-enter the premises for nonpayment of rent.

She chose to demand the double rent, and the lease in effect became a demise of the premises for double the rent previously reserved, payable at the times and in the manner provided for in respect of the single rent. We see no good reason why parties may not agree that the rent shall be a given sum, payable at a given time and manner, unless the lessee violates some reasonable and proper restriction upon the use of thp premises, and from the time of such violation that the rent shall be a greater sum payable in the same maimer. A landlord may well be willing to rent his premises at one rate for a prescribed use, and wholly unwilling to rent them at the same rate for another, and to him obnoxious use. And in demising at the former rate we see nothing that should prevent the parties from agreeing that in case the premises are put to the obnoxious use, the rent shall be at a different and higher rate. In such a case, the moment the change in use is made, the change in the rent reserved by the lease occurs, and thereafter, if the lease so provides, the landlord is entitled to demand the increased rent and the defendant is bound to pay it. The rent reserved by the lease in this case had been paid at the single rate up to the first day of August, 1877.

Another quarter’s rent matured on the first day of November following, and for that quarter the landlord demanded double rent under the provisions of the lease above referred to. She did this on the ground that the under-tenant Dralle had turned the portion of the premises occupied by him into a place for the sale of intoxicating liquors, and had been prior to and during that quarter engaged in selling intoxicating liquors in violation of the restrictions of the lease. On the hearing before the magistrate she produced evidence showing that as early as the month of May, and thenceforward, he had occupied and continued to occupy that part of the premises as a drinking saloon; and as the evidence stood before the magistrate, when the landlord’s case was rested, it would havo been his duty, we think, to have found that intoxicating liquors had been, sold in violation of the restrictions of the lease. Upon the happening of such an event, the tenants had covenanted to pay the higher rent demanded by the landlord for that quarter, and they had also expressly provided by the lease that for the non-payment of suéh rent the landlord might proceed to dispossess them from the premises. It is true that they had given to the landlord an option, which gave her other and higher- rights, if she had chosen to exercise them; but they have no right to complain that she chooses to avail herself of their agreement to pay the increased rent, and to demand such rent, and to proceed under the Landlord and Tenant act to dispossess them for non-payment. That course gave to them some advantages that would not have existed had she chosen to pursue the other remedy.

The question' is made that it is not provided that the double rent shall be paid quarterly, but that it being described as an annual rent it must be regarded as payable annually and at the close of each year. This construction cannot be sustained, because it is apparent that the intention was to substitute the double rent, as to the time of its payment and the consequences of non-payment, for the single rent reserved by the lease and payable quarterly as therein prescribed.

At the close of the landlord’s case the proceedings were dismissed on certain grounds stated on behalf of the tenant; but we think, so far as those grounds are applicable to the questions above discussed, they are not well taken.

In respect of so much of the case as relates to the non-payment of taxes, which by the lease were to be treated as additional rent, the rulings of the judge were probably correct, because the affidavit did not sufficiently state any demand of the payment of such taxes; and without discussing the question, we are also inclined to think that the dispossession proceedings could not have been maintained in this case on the ground that such taxes had not been paid.

We are of the opinion that the proceedings 'before the magistrate were improperly dismissed, and that his order of dismissal and the judgment entered thereon should be reversed with costs; and that the relator be at liberty to renew her proceedings before the same or any other magistrate.

Beady and Ingalls, JJ., concurred.

Judgment and order reversed with costs; relator to be at liberty to renew proceedings before the same or any other magistrate.


author: Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZABETH C. JAY v. WILLIAM H. BENNETT and others, tenants, and HENRY DRALLE and others, under-tenants.

      Lease — forbidding sale of intoxicating liquors — Gkap. 583 of 1873 — selling intoxicating liquors without a license “ is an illegal trade within.”

    A lease executed by the plaintiff in 1877, provided among other things, “ it being clearly and distinctly understood, however, that at no time shall it be allowed to sell intoxicating liquors on , the premisesthe lessees sub-let a portion of the demised premises, and one of the sub-lessees used his part as a restaurant and sold intoxicating- liquors without having received any license.

      Held, that the-sale of intoxicating liquors without a license was an illegal trade, as that term is used in chap. 583 of 1873, and that the plaintiff was entitled, in accordance therewith, to recover possession of the whole premises as in case of a tenant holding over after the expiration of his lease.
    It is not necessary that in proceedings instituted under said act, the complainant should be the immediate landlord of the tenant carrying on the illegal trade , the original lessor may proceed against his lessee, or any of the sub-lessees
    Certiorari to review proceedings before a civil justice, instituted by the relator to recover possession of a demise.
    This was a proceeding brought by Miss Jay against certain tenants and sub-tenants, to recover the possession of demised premises by summary proceedings under the Illegal Trade Act.
    The affidavit of the landlord sets up the making of a lease for five years, from May 1st, 1877, from her to the defendants, Bennett and Abrahams, at $2,600 per annum, payable quarterly, in which the tenants covenanted that intoxicating liquor should not be sold upon any part of the premises. The underletting of the premises by the tenants to the other defendants, and among them to one Henry Dralle. The occupation and possession of the said tenants. That the part of the premises so underlet to Henry Dralle was used since May 1st, 1877, for an illegal trade, viz., for the sale of spirituous liquors in quantities less than five gallons at a time, and that Dralle permitted said liquors sold by him to be drank on the premises. That Dralle had no license for the sale of liquors, and that such sale was an illegal trade.
    That the tenants, by Dralle, their sub-tenant, were engaged in an illegal trade. That by reason thereof the lease had expired, and that the tenants and sub-tenants hold over after the expiration of their term.

      Lewis L. Delafteld, for relator.
    The sale of liquor without a license is an illegal trade or business. (Laws 1857, ch. 618, § 13; Foot v. People [1874], 56 N. Y. R., 321; Behan v'!'People [1858], 17 N. Y. R., 517; 7 Abb. Pr. R., 82; People v. Shea, 3 Park. Cr. R., 562; People v. Stevens, 13 Wend. R., 341; People v. Brown, 16 Wend. R., 561; Blatchley v. Moser, 15 WendR., 215; Osgood v. People, 39 N. Y. R., 449; Hill v. People, 20 N. Y. R., 363.) The term “ offense,” when used in any statute, shall be construed to mean an act for which any criminal punishment may be inflicted. (3 R. S., 995, § 54 [6th ed.].) It was held in an action for the recovery of damages for injuries sustained to a grocery store by the falling of a wall, that, it appearing in evidence that liquor was sold there without license, there could be no recovery. (Fane v. Johnston, 9 Bos. R., 154 [Gen. T.]; Barten v. Port Jackson JR. B., 17 Barb., 403; Seneca Bank v. Lamb, 26 Barb. R., 595; Best v. Bander, 29 How Pr. R., 489; Hallett v. JHovion, 14 John R., 273; 3 R. S., 983, § 102 [6th ed.]; McAdam L. & T., p. 309; Bouvier Tit. Illegal; 2 Parsons on Contracts, 253-265.) The illegal trade being carried on by Dralle, an under-tenant of a part of the premises, invalidates the lease of the tenants as to the whole premises. It is a well settled rule, that if an assignee or under-tenant of a part of the demised premises commits any act which, by the terms of the lease, creates a forfeiture of the estate, the forfeiture attaches to the whole of the premises embraced in the lease. (Clark v. Gumminys, 5 Barb. R., 340, 356; Jackson v. Broionson, 7 Johns. R., 232; Shep. Touch., 120, 121; 20 Law-Library, 233, 275; Preston on Estates, 46; Bacon A hr. tit. Conditions, O. 4; Co. Litt., 202; Wood L. & T., by Harrison, 228.) The possession of Dralle, the under-tenant, is the possession of Bennett, the tenant. (Garter v. Hammett, 18 Barb. R., 608; Taylor L. & T., § 524.) The under-tenant is chargeable with knowledge of the contents of the original lease. (Gosser v. Gollingee, 3 Myl. & K., 283; Flight v. Barton, 3 Myl. & K., 282; Grosvenor v. Green, 28 L. Law Journal, Ch. 173; Taylor L. & T., §§ 110, 109; McAdam, Sum. Pro., 88; Ormsby v. Woodward, 6 B. & C., 519.) A lessee, on granting an underlease, cannot, therefore, fully protect himself from the consequences of a breach of the original covenants by the under-tenant, without taking a covenant of indemnity from him. (Perley v. Watts, 7 M. & W., 601; Walker v. Hatton, 10 M. & W., 249; Logan v. Hall, 4 C. B., 598; Taylor L. & T., § 110.)

      James II. Adams, for the tenants.

      William F. Pitshke, for under-tenants.
   Brady, J.:

The relator rented certain premises to the repondents, Bennett and Abrahams, by lease bearing date the 26th day of March, 1877. And the lease among others contained the following clause: “It being clearly and distinctly understood, however, that at no time shall it be allowed to sell intoxicating liquor on the premises.” This was the restriction that the relator chose to impose in the exercise of her right of property, and her lessees assented to and are bound by it. The exercise of such a right cannot be questioned, although from the general tenor of the arguments against this proceeding, it would seem questionable whether she had any special rights in her own property derived from the laws of the State relating to it. The lease as stated was executed in 1877, and at that time there existed a statute which was passed in 1873, chap. 583, laws 1873, now known as the illegal trade act, and also a statute known as the civil damage act, passed in the same year, chap. 646, laws 1873.

The lessees cannot escape from the rule of law that they are regarded as contracting with reference to the statutes just mentioned, which establish a remedy of which the landlord could avail himself if he thought proper to do so, and the facts justified its application.

The first or illegal trade act declared by its first section as follows: “ Section 1. Whenever the lessee or occupant other than the owner of any building or premises, shall use or occupy tiie same or any part thereof, for any illegal trade, manufacture or other business, the lease or agreement for the letting or occupancy of such building or premises shall thereupon become void, and the landlord of such lessee or occupant may enter upon the premises so let or occupied, and shall have the same remedies to recover possession thereof as are given by law in the case of a tenant holding over after the ■ expiration of his lease.” And by the second section as follows: “The owner or owners of any building or premises knowingly leasing or giving possession of the same, to be used or occupied in whole or in part, for any illegal trade, manufacture or business, or knowingly permitting the same to be used for any illegal trade, manufacture or business, shall be jointly and severally liable with the tenant or tenants, occupant or occupants, for any damage that may result by reason of such illegal use, occupancy, trade, manufacture, or business.” This statute was intended not only to prevent the use of premises for an unlawful purpose, but to protect the landlord from the consequences of allowing such unlawful purpose to continue. It gave him in other words the power to put an end to it, and thus to shield himself from any penalty for knowingly permitting the premises to be used as indicated. The relator started with the proposition that intoxicating liquor should not be sold on the premises, and thus in the exercise of her right of property not only inhibited the sale even by a person having a license therefor and thus duly authorized to sell, but secured such a relation to her lessees as would aid her in avoiding the consequences of liquor selling under the provisions of the civil damage act already mentioned.

The covenant between the relator and the lessees wras broken when liquor was sold. It extended to all successors of her lessees. It related to the premises and subjected all occupants to its control, no matter from what source they derived their right of possession under it. The covenant indeed, construed in the light of the existing laws, was that if liquor was sold upon the premises without license, and therefore in violation of the statute of 1857 (Laws of 1857, chap. 628), regulating the sale of intoxicating drinks, the lease should become ipso facto void at the option of the relator, and she could employ the same process to enforce that result which she could resort to if the tenants or lessees had held over after the expiration of their lease. (Act of 1873, supra.) The right to call into active exercise the summary proceeding-instituted herein against a tenant holding over after the expiration of his lease, is familiar and need scarcely be mentioned.

It then seems to be beyond all dispute that if the premises or any part of them was used or occupied for any illegal trade, the relator was eo instante invested with the right to declare that the lease was void, and to insist upon her right to possession. The sale of intoxicating liquors without a license, whether as an entire business or as an incident to one, is an illegal trade under the statute of 1857 ('supra.) The sale is a criminal offense, and punishable as such. It is a misdemeanor, and prohibited as a crime. The proposition seems to be unwarranted, which suggests that it is necessary to declare such a sale in express terms an illegal trade when the act of sale is visited with fine and imprisonment. It would seem to be unnecessary to demonstrate so plain a proposition, and it will not be done. The relator proved the use of a part of the demised premises for the sale of liquors without a license, as an incident of the business carried on by the seller. Having done this, she established the facts required by law to authorize the remedy she sought. The decree or judgment of another tribunal was not at all necessary.

When the statute declared that she should have the same remedies that are given in case a tenant should hold over after the expiration of his term, it conferred on the court conducting the proceeding the same right to ascertain the fact, namely: the sale of liquor without a license as a business, that the court possessed to ascertain the fact that the term had expired. The issue is a very simple one, and could, without endangering the rights of the citizen, be committed to a court of limited or inferior jurisdiction. This case illustrates this view, because the facts required for the success of this proceeding were established beyond controversy. It is urged also that the relator had waived the forfeiture by commencing proceedings similar to these, based upon the omission of the lessees to pay double the rent reserved, in case liquor was sold upon the premises; but the point is not well taken. The law does not, it is true, favor forfeitures occasioned by violations-of covenants or agreements, and the courts have in numerous cases declared that such forfeitures may be waived by the landlord; but the Avaiver is generally based either upon the receipt of rent subsequent to and with the knoAvledge of the forfeiture, or some act by Avhich the lease is reaffirmed after the forfeiture and after the knowledge of its occurrence.

In this case the rent was not received. The proceedings to dispossess Avere dismissed, and the relator declared remediless in that mode. She neither succeeded in getting the rent reserved therefor, nor the possession of the premises. If the rent had been paid, the answer would be a good one, but as suggested it Avas not paid, and the claim set up for it was discarded as untenable. It would be a marvellous stretch of the rule to hold that an attempt legally made to obtain an additional rent secured by the lease, Avhich was-resisted by the lessees and rejected by the court, Avas a Avaiver of the alleged forfeiture. The relator did not receive it, and by the decision made was placed precisely Avhere she was Avhen the proceeding was commenced. This case differs totally, therefore, from one in which it appeared that the rent Avas paid or the lease reaffirmed.

The tenants or lessees and under-tenants assail the relator’s rights to this remedy, with other objections, but they are Avithout merit. Indeed they would, if maintained, not only be subA’-ersiAm of the rights of the relator given by the statutes mentioned, but would render those statutes Avholly nugatory. It is said for example that the complainant must always be the immediate landlord of him Avho uses the premises for his unlawful trade, a construction which is not Avarranted by the language of the statute, and AArhich, if adopted, would enable the lessee by under-letting to deprive the landlord of the benefit of the provisions of the statute, and prevent him from recovering possession of his premises.

It is said, also, that the statute of 1873 only applies where the main business is illegal, and not where it is simply and incidentally a part of the business conducted or carried on. This construction of the statute is not authorized; its language being, whenever the lessee of any building or “premises shall use or occupy any part thereof for any illegal trade or business, the lease shall become void.” If the construction thus sought to be put on it is adopted, it would not be difficult by combining some other business with it to avoid the operation of the statute and thus sanction! by strategy an unlawful trade or business. It is also said that a leasehold, under a Avritten lease is real estate, and that the legislature has no poAver to legislate so as to extinguish estates in land except through escheat, or the right of eminent domain. This view is erroneous, because a lease is a chattel real and is not real estate, and the act of 1873 does not extinguish any estate in land by its application, Avhere the lease Avas executed after its passage.

The estate created Avas impressed Avith the provisions of that act Avhen it Avas passed. These are all the points to Avhich we deem it necessary to give particular consideration.

The views herein expressed cover all the material questions presented upon this appeal, and the result is that the relator should ha\re judgment reversing the judgment of the justice.

Ordered accordingly.

Davis, P. J., and Ingalls, J., concurred.

Judgment ordered for relator as directed in opinion.


text:
    EDWIN G. ANGELL, Executor, etc., of WILLIAM G. ANGELL, deceased, and SAMUEL G. ARNOLD, Respondents, v. WALTER F. LAWTON, impleaded, with CAROLINE P. CRAWFORD, and others, Appellant.

      Action against joint debtors — death of one — supplemental complaint omitting him.

    This action was brought against one B and others to compel a contribution for-losses alleged to have been sustained by plaintiffs on a joint undertaking between himself and the defendants. After the commencement of the action B died, and plaintiff, setting forth B’s death, that he was a resident of California, and had left no property within this State so that no personal representative could be appointed in this State, applied for leave to file a supplemental complaint, and asked leave to omit his name therefrom. •

      Held, that the application was rightly granted.
    Appeal from order of the Special Term alloAving the plaintiff to file a supplemental complaint.

      Woodward and Smith, for the appellant.
    To a complete determination of the case presented by the pleadings, Samuel F. Butterworth ivas a necessary party.
    The plaintiffs elected to make him a party, and the course and practice of courts of equity hold that he Avas a necessary party and that no decree could be made Avithout his presence.
    Ilis death could not change the position of things on that question.
    His legal representatives are now equally necessary parties. (Long v. Yonge, 2 Sim., 369, Farren on Insurance, 128; Evans. v. Stokes, 1 Keen., 24; Richardson v. Hastings, 7 Beav., 323; McMahon v. Upton, 2 Sim., 473; Hills v. Hash, 10 Jurist, 148.):

      Joseph H. Choate, for the respondents.
    The plaintiffs were entitled to the leave granted by the court beloAv to proceed Avith the action, omitting the name of Butterworth as a defendant therein. (Barbour on Parties, 523; Dicey on Parties, 232; Story's Equity Pleadings, § 78; Wood v. Drummer, 3 Mason, 317; Cockburn v, Thompson, 16 Yesey, 326; Darwent v. Walton, 2 Atk., 510: Towle v. Pierce, 12 Mete., 329; Milligan v. Milledge, 3 Cranch, 220.)
   Davis, P. J.:

Samuel F. Buttenvorth ivas a defendant in this action when the same Avas commenced. Afterwards, and being then a resident of California, he died in that state, leaving a last will and testament, Avhich has been admitted to probate by the court of probate in San Francisco. This action is against all the defendants, to compel a contribution for losses Avhich, as the plaintiff alleges, were suffered and paid by him on a joint undertaking betAveen himself and the defendants for the purpose of speculating in certain stocks. As it appeared on their application for leave to tile a supplemental complaint, the plaintiffs after stating the death of Buttenvorth, the defendant, that he Avas a non-resident of the State, and a resident of California, and had left no property within this State, so that no personal representatives of said Butterworth could be appointed in this State, asked leave to omit his name from the supplemental complaint. The court beloAV granted leave to file a supplemental complaint with that omission. On the death of Butterworth this action did not Avholly abate, but only as to him; and under the statute and the authorities, it is very doubtful whether it could be revived against his representatives. (3 R. S. [5th ed.], 669, § 1; Livermore v. Bushnell, 5 Hun, 285.)

However that may be, the papers sIioav that no authority exists for the appointment of representatives of Butterworth’s estate Avithin this State, nor are there any means or processes by which ■ the representatives, if any there be in California, can be compelled to appear and submit to the jurisdiction of this court, so that the judgment rendered avüI be obligatory upon them in their representative capacity. No case precisely analogous is cited to us, but it is a Avell established rule in the English Court of Chancery that a party not residing within the jurisdiction of the court need not be made a party to the suit. (Story’s Eq. Pl., § 28; Cockburn v. Thompson, 16 Ves., 326; Dorwent v. Walton, 2 Atk., 510; 1 Barb, on Parties, 523; Towle v. Pierce, 12 Met., 329.) But it is insisted that the same rule does not prevail in this State, because the Code provides for service by publication upon non-resident parties to an action. It is very doubtful, hoAvever, Avhether the provisions of the Code extend to such a case as that noAV before us, and it may Avell be questioned whether an attempt to bring in the representatives of Butterworth by order of publication would be of any effect as against them.

It is also insisted that under section 452 of the Code, it is the right of the appellant to have the representatives of Butterworth brought in. That section provides that the court may determine the controvery as between the parties before it where it can do so without prejudice to the rights of others or by reserving their rights, but where a complete determination of the controversy cannot be had without the presence of other parties the court must direct them to be brought in. In this case, being an action for contribution by the several parties to the original transaction, it does not appear that the court cannot determine the controvery as between the plaintiff and the defendants who still remain parties after the omission of the name of Butterworth from the complaint. This section has been held to mean that the court must direct other parties to be brought in, where a complete determination of the controversy between the parties already before it cannot be had without the presence of such other parties; and we see no reason for supposing that such complete determination as between them cannot be had. The result will be that if upon the trial it appears, as ivas claimed by the appellant that Butterworth’s estate is responsible, nothing will be added to increase the contribution which the plaintiff’s are entitled to against the appellant because of Butterworth’s absence as a party to this action. On the contrary in respect to the contribution due from Butterworth or his estate, the plaintiffs will be obliged to resort to an action against them in California, and the judgment rendered hero will be effectual as against the plaintiff at least to limit the extent of his recovery when he proceeds against such representatives.

We are of the opinion, therefore, that it was not error, although it may have been unnecessary, to give leave to omit the name of Butterworth as a defendant in the supplemental complaint.

The order should be affirmed with ton dollars costs besides disbursements.

Brady and Ingalls, JJ., concurred.

Order affirmed with $10 costs and disbursements.