text:
    Henry B. Aldrich, Respondent, v. Elizabeth Shepardson and another, Administrators, etc., Appellants.

   Judgment affirmed. Held, that it was necessary for the constable (the defenants’ intestate) to show a valid attachment to make out a defense (5 Hill, 194; 6 id., 311); that the affidavits on which the attachment was issued were insufficient to confer jurisdiction upon the justice, and that consequently the constable was not in a position to question the good faith of the plaintiff’s mortgage.

Hardin, J., not participating in the decision.


source: Caselaw Access Project

license: Public Domain

text:
    William Carney, Appellant, v. Anna Merrick, Administratrix, etc., Respondent.

   Judgment of County Court reversed, and that of the justice affirmed. Held, that the case turned upon questions of fact, in regard to which the testimony was conflicting, and the judgment of the justice was conclusive.


text:
    Frank Manning, Plaintiff in Error, v. The People, Defendants in Error.

   Judgment and conviction reversed, and proceedings remitted to the Court of Sessions of Yates county for a new trial Held, that the error book contains no evidence of a premeditated design to commit the offense of maiming. (2 R. S., 664, § 27; Godfrey v. The People, 63 N. Y., 207; Burke v. The People, 4 Hun, 481.)


text:
    Ella A. Dana, Administratrix, Respondent, v. The New York Central and Hudson River R. R. Co., Appellant.

   Motion for a re-argument denied.

Smith, J., not participating in the decision.


text:
    James T. Hamilton, Appellant, v. John Heitzman, Respondent.

   Appeal dismissed, with ten dollars costs and disbursements. Held, that the order is not appealable. (Andrews v. Long, 79 N. Y., 573; Fish v. Thrasher, 21 Hun, 15.)


text:
    Susan Norton, Appellant, v. Harriet M. Sidney, Respondent.

   Order appealed from reversed, with ten dollars costs and disbursements, and motion to set aside the order of discontinuance and stipulation granted.


text:
    Scudder Todd, Appellant, v. Henry J. Botchford, Respondent.

   Order appealed from reversed, with ten dollars costs and disbursements, and motion to set aside the second execution granted with ten dollars costs. (See The People ex rel., etc., v. Onondaga Com. Pleas, 3 Wend., 331.)


text:
    Levi A. Sheldon, Appellant, v. Smith T. Woolworth, as Receiver, etc., Respondents.

   Order of reference reversed and vacated, without costs to either party. Held, that the action was not referable as it did not involve the examination of a long account. (Kain v. Delano, 11 Abb. Pr., 29; Brink v. Republic Fire Ins. Co., 2 T. & C., 550.)


author: Barnard, P. J.:

text:
    THE NATIONAL MECHANICS’ BANKING ASSOCIATION, Respondent, v. JOSEPH C. CONKLIN and others, Appellants.

      Bond given by a boolc-lceeper — when it does not cover a defalcation occurring after he has been appointed to another' office.

    In 1863, the plaintiff having appointed the defendant Conklin its book-keeper, took from him a bond, which, after reciting the fact of the appointment and his acceptance thereof, provided “the condition of this obligation is such that if the above-named Joseph Conklin shall faithfully fulfil and discharge the duties of any other trust or employment, relating to the business of the said association, which may be assigned to him, or which he shall undertake to perform, and shall, also, without neglect or delay, inform the president or cashier of the said association of any embezzlement of the money, property or goods belonging to, and of any fraud whatever committed upon the said association; of any false entry, error, mistake or difference of account in the books thereof, which he may discover or which shall come to his knowledge as such book-keeper aforesaid, or while engaged in any other office duty or employment relating to the business thereof, and which he may discover, or which shall come to his knowledge in any matter or thing whatsoever appertaining thereto; and shall, also, faithfully keep all the secrets of the said association, then the above obligation to be void.”
    The defendant continued to act as book-keeper until 1870, when he was appointed receiving teller of the plaintiff, in which capacity he continued to act until 1879, when he resigned and was found to be a defaulter.

      Held, that the bond did not cover a defalcation occurring while he was acting as teller, and that the sureties thereon were not liable therefor.

      Motion for a new trial on exceptions ordered to be- heard in the first instance at the General Term, after a judgment directed in favor of the plaintiff.
    The action was brought against the principal and the sureties upon a bond.

      John H. Bergen, for the appellants.

      Eugene E. Pomeroy, for the respondent.
   Barnard, P. J.:

The question presented is one purely of law — What is the true meaning of the bond upon which the action is based ? In 1863, the plaintiff appointed the defendant, Joseph C. Conklin, a bookkeeper. The bond in question was given upon that appointment; it is in the penalty of $10,000 and was executed by the defendants. The recital and conditions are as follows:

Whereas, the above named, The Mechanics’ Banking Association, have appointed the above-named Joseph C. Conklin to the office of a book-keeper of the said associ'ation, and the said Joseph O. Conklin hath accepted the same and consented to perform the duties thereof. Now, the condition of this obligation is such that if the above-named Joseph C. Conklin shall faithfully fulfill and discharge the duties of any other trust or employment, relating to the business of the said association, which may be assigned to him or which he shall undertake to perform, and shall, also, without neglect or delay, inform the president or cashier of the said association of any embezzlement of the money, property or goods belonging to, and of any fraud whatever committed upon the said association ; of any false entry, error, mistake or difference of account in the books thereof, which he may discover or which shall come to his knowledge as such book-keeper aforesaid, or while engaged in any other office duty or employment relating to the business thereof, and which he may discover or which shall come to his knowledge, in any matter or thing whatsoever appertaining thereto, and shall, also, faithfully keep all the secrets of the said association, then the above obligation to be void, otherwise to remain in full force and virtue.”

The case discloses that the book-keeper continued to perform his duties as such until 1870, when he was appointed receiving teller of the defendant’s bank, with an increased salary. He continued to act as receiving teller until the last of 1879, when he resigned and was found to be a defaulter to the amount of $2,700. This defalcation occurred long after he was appointed teller, and probably at or near the end of his employment as teller.

The bond in question should not be held to cover this default. It was given to secure fidelity in a book-keeper, and has no direct reference to fidelity in any other employment.

The general words referring to the duties of any other office or employment relating to the business of the said association which may be assigned to him, or which he shall undertake to perform,” can be referred to the performance of any duty temporarily and occasionally imposed upon the book-keeper or undertaken by him. Such a clause was proper, and strictly applied to the employment as book-keeper. It happens from sickness and from other causes that an officer of the bank is temporarily absent: other officers perform their duties. There would be a chance to claim in such a case that a bond to secure the faithful performance of the duties of book-keeper did not include a failure of duty committed while temporarily acting as teller or cashier. This clause in question would remove all controversy on that point. For acts done as an officer of the bank, and while book-keeper, his sureties would be liable. It is a far different thing after the book-keeper ceases to be such, and is appointed to a higher office with greater responsibility and a larger salary, to hold that this book-keeper’s bond is to apply, by force of these general words, to the office of teller. One construction would easily fall within the intent of the parties, the other would not. No new office is mentioned or alluded to, and it is not probable that any was thought of by the parties. This view is further sustained by the recital; that refers only to the fact that the bank has appointed a book-keeper and that he has accepted that office, and upon that recital the condition is based. The recital limits the condition to the facts stated in the recital, unless the language of the condition is irreconcilable with the recital. As we have seen, there is no repugnance. The bond is to cover all acts and omissions as book-keeper, and all acts and omissions in every office assigned to him while book-keeper.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

Gilbert and Dyeman, JJ., concurred.

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


text:
    SETH R. ROBINS, Respondent, v. ANDREW ACKERLY, Appellant.

      Limits of the town of Huntington — right of the town to lease lands for oyster beds.

    The harbor of Northport lies within the limits of the town of Huntington. Under its charter, the said town has the right to lease the lands under the waters of the said harhor, to he used for the purpose of planting and raising oysters.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of the action bj the court without a jury.
    The action was brought for a trespass alleged to have been committed in the taking up and interfering with the plaintiff’s oysters, which were planted on land lying under the waters of Northport harbor, in the town of Huntington, Suffolk comity.

      Thomas J. Rich, for the appellant.

      Thomas Young, for the respondent.
   Barnard, P. J.:

The case of Lowndes v. Dickerson (34 Barb., 586) does not determine this case. The plaintiff, by lease or permit of the town of Huntington, has planted oysters under the waters of Northport harbor. The defendant has interfered with the plaintiff’s oysters, and the same question is presented which was presented in that case. In the discussion of the case, the court concluded that the harbor of Northport was not within the limits of the town of Huntington, and that, if it was, the grant from the crown, which was subsequently ratified by the Colonial and State authorities, was involyed ; and tbat tbe right of fishery in the harbor was of common right, and was held by the crown for the benefit of all the people.

Since the decision of that case, the court of appeals has held that the crown could grant the town, as such, the right of fishery within its borders. (Trustees of Brookhaven v. Strong, 60 N. Y., 56.)

Whatever may have been the proof in the case of Lowndes v. Dickerson, in this case the proof seems clear that the bay or harbor in question is within the limits of Huntington.

The northerly boundary of the town is the sound. Northport harbor is landlocked, and is not an indentation of the sound, but is a body of water communicating by a narrow neck with Huntington harbor, which is an indentation of the sound. The words of the grant to the town includes all havens, harbors, creeks, quarries, woodlands, meadows, pastures, marshes, lakes, fishing, hawking, hunting and fowling.” Galon’s neck, a strip of land, is north of this harbor, so that the northern boundary of Huntington includes the Northport harbor. There is, in addition, proof that the trustees of Huntington have, from time immemorial, treated the harbor in question as belonging to the town. They have regulated and controlled the fishing and shooting in its waters.. They have prevented others than the inhabitants of the town from fishing therein. They have leased rights for marine race-ways in all parts of the harbor. The principles established in Rogers v. Jones (1 Wend., 237), and in Trustees of Brookhaven v. Strong (60 N. Y., 56), brings this harbor within the bounds of the town of Huntington, and the grant to the town was legal. The town has, by the charter, the right to lease the land under the water, and the exercise of the right is beneficial. The supply of oysters cannot be kept up by allowing free fishing therefor; careful husbandry and protection must be resorted to. The oyster must be planted, remain undisturbed while growing, and carefully taken up at proper times and by proper methods.

The judgment should be affirmed, with costs.

DyicmaN, J., concurred; Gilbert, J., not sitting

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. JOHN J. HOUGHTON, Plaintiff in Error.

      Evidence — a wife cannot testify against her husband on a criminal trial — chapter 182 of 1876, section 2.
    Under section 2 oí chapter 182 of 1876, a wife cannot, though willing so to do, he allowed to testify against her husband upon his trial for bigamy.
    Writ of error to tbe Court of Sessions of Westchester county, to review tbe conviction of tbe plaintiff in error of bigamy.

      Martín J. Keogh, for the plaintiff in error.

      Kelson H. Baker, district attorney, for the People.
   Dykman, J.:

Tbe defendant was indicted for bigamy and brought to trial at tbe Westchester Sessions in September, 1880. At tbe trial tbe public prosecutor brought against tbe accused bis wife as a witness, and tbe objection was made to her -that she was incompetent, although willing to testify against her husband. Tbe objection was overruled, tbe defendant’s counsel excepted, and she was sworn and examined as a witness, and gave material and damaging testimony against her husband, and be was convicted. Now tbe record is brought to us, and we are required to find whether there is error. By tbe rules of evidence prevalent at common law, neither husband nor wife is permitted to testify for or against each other in any action, civil or criminal. Tbe rule has its foundation in tbe identity of their rights and concerns, tbe interest of civil society, and tbe sanctities of the marriage relation, and it is enforced by the courts with much strictness. Some exceptions there are where the wife would otherwise be exposed to personal injury without remedy. The rigor of this severe rule has been much softened in this State in its application to civil actions, but nothing was accomplished in the direction of criminal prosecutions until 1876, when the legislature made the following provision : “ In all criminal trials and examinations before trial, a husband, or wife may be examined as a witness in behalf of the other, but upon no such trial or examination shall a husband or wife be compelled to testify against the other.” (Chapter 182 of Laws of 1876, § 2.) It required legislative action to abrogate or change the old rule prevailing here, and we must find how far this statute is' operative in that direction. It is 'a statute in derogation of the common law, and can be permitted to accomplish nothing beyond what is fairly intended. It is first affirmatively enacted that a husband or wife may be examined as a witness for the other in a criminal prosecution, and further the statute does not provide affirmatively. "What follows is a provision that on no criminal trial or examination shall husband or wife be compelled to testify against the other. These are negative words only, and make no innovation or relaxation of the old rule of law. Probably their true intention and operation will be found in preventing the elicitation of testimony from husband or wife against each other after being called in their behalf. Substantially the same view of this statute was taken in the Brigg's case (60 How., 17). If it had been the intention of the statute makers to break down the barrier protecting the husband and wife from the testimony of the other in criminal prosecutions, it would not have been left to inference or implication, and we are not at liberty to resort to either to find it.

In this case the court proceeded on the theory that the wife was competent but not compellable, and might testify of her free will; but as we have seen already, the statute affirms her competency only in favor of her husband and not against him. The testimony of the wife was material and serious against her husband, and we cannot say his conviction could have been secured in its absence. Our conclusion is that its admission was error, requiring the reversal of the conviction. Other questions are presented, but their examination is not necessary in view of the allowance of a new trial.

The conviction should be reversed and new trial ordered.

Baenaed, P. J., and G-ilbbbt, L, concurred.

Judgment and conviction reversed, and new trial granted.


author: Dyxman, J.:

text:
    JOSEPH H. DELANCY and JAMES F. DELANCY, Appellants, v. NICHOLAS MURPHY, Respondent.

      Order of interpleader — when it should not be granted.

    This action was brought by the plaintiff, as the assignee of one Comerford, to recover certain money collected for the assignor from persons indebted to him and still held by the defendant for the assignor. The defendant, who had notice of the assignment, moved upon an affidavit stating that certain persons claim this money under judgments obtained against the assignor, to have them substituted as defendants in his place.

      Held, that'an order of interpleader should not have been granted.
    Appeal from an order of interpleader made at Special Term upon the defendant’s application.
    The complaint alleged that one E. Comerford being indebted to plaintiffs, assigned to plaintiffs a claim existing in his behalf against the defendant. The defendant obtained an order to show cause why certain persons should not be substituted as defendants in his place on an affidavit containing among others the following allegations:
    That one E. (or Kate or Mary) Comerford, the wife of John Comerford, and the said John Comerford have demanded from deponent and claim said sum as due and owing them, respectively, claiming said sum adversely to each other, on the ground that said sum was placed in deponent’s hands for their benefit, severally, by persons indebted to them. That said E. Comerford disavows the alleged assignment to plaintiffs for -which this action is brought.
    That Joseph L. Clark has demanded of deponent and claims about eighty dollars of said sum upon a judgment obtained in this State, in his favor, and against said E. (Kate or Mary) Comerford, on or about the third day of August last past.
    That Thomas Palmer, John Schwab and Jacob Schwab, have demanded of deponent and claim the whole of said sum upon a judgment obtained in this State, in their favor, and against said Comerford, on or about the twenty-ninth day of September last past, for about the sum of $300.
    That said claims are made without collusion with deponent, etc. * * *

      That said sum of money was collected by deponent on behalf of the said E. (Kate or Mary) Comerford, at her request, from persons indebted to her; that deponent cannot determine without hazard to himself to which person the above sum of money justly belongs, and is ignorant of the rights of said adverse claimants.

      McGuire d¡ Kuhn, for the appellants.

      George D. McOarty, for the respondent.
   Dyxman, J.:

The civil law had a process of intervention, by which a person not originally a party to a suit, but claiming an interest in the subject-matter in dispute, interposed his claim and filed process on his own independent title, and asserted a right to the thing in controversy against all the other parties, and insisted on his right to intervene in the discussion. So there was a process of interpleader at common law, and the statute (1, 2, Wm. IV, chap. 58) was called the interpleader act, and provided, where a defendant claimed no interest in the money or property for which the action was brought, and a claim was made thereto by another who had sued or was expected to sue therefor, he might before pleading apply for relief under that statute. Such relief, however, as could be obtained at law was found inadequate in many cases, and courts of equity took jurisdiction to compel interpleader, following the analogies of the law and borrowing their bill from the old process of the common law. This.remedy in equity was applicable “where two or more persons claim the same thing under different titles or-in separate interests.” (Story’s Eq. Jur., § 806.)

Then our old Code of Procedure provided for substantially the same relief by order on motion, without the length of a law suit; and now the Code of Civil Procedure, by section 820, provides that a defendant, against whom an action to recover upon a contract or an action of ejectment or an action to recover a chattel is pending, may at any time before answer * * * apply to the court * * * for an order to substitute that person in his place. * * * The court may, in its discretion, make such order.” It was not the design of either of these codes to introduce new cases of interpleader, but merely to provide a summary proceeding where interpleader is proper. If no relief could be obtained by bill in equity for interpleader, then it wonld be an indefensible exercise of judicial discretion and power to mahe the substitution, on motion, under the Code. The facts' in this case are these: The defendant collected $153.30 for one Comerford from persons indebted to her, and thereby became indebted to her for that sum. She then assigned her claim against the defendant to the plaintiffs, and the defendant had notice of the assignment; and this action is brought for the recovery of the claim so assigned. Now the defendant, on an affidavit that several persons claim this money on judgments obtained against the assignor, has obtained an order for their substitution as defendants.

An appeal has been taken from this order, and under the rules governing interpleader it cannot be sustained. There is no adverse claim to the debt of the defendant. When he collected the money for the assignor he became her debtor, and a payment to her would have discharged his liability, and after the assignment to the plaintiffs, payment to them would have had the same effect. The claimants substituted by this order only ask to have the money paid on their judgments. They claim no present interest in the debt. That is a chose in action merely, and the assignment transferred it to the plaintiff. There is here no controversy over the right of property, and no question whether the plaintiff or the substituted claimants own the debt. They do not claim to own it. Their claim would have been the same if the action had been brought by the assignor for whom the money was collected, and it would hardly be claimed that interpleader would have been proper in that event. (Sherman v. Partridge, 11 How., 154; Fletcher v. Savings Bank, 14 id., 383.)

The order appealed from must be reversed, with costs and disbursements^''

Barnard, P. J., and Gilbert, J., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    MICHAEL LYNCH, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, Appellant.

      Bailroad company — right of, to detain a passenger failing to produce a ticket— when it is liable for the acts of its employes.

    The plaintiff who had entered one of the defendant’s cars at Forty-second street, New York city, was, while attempting- to pass out o'f the station at Rector street, stopped by the gateman who demanded his ticket. Upon being told by the plaintiff that he had purchased a ticket but had lost it, the gateman detained him and Anally sent for a policeman who arrested him on the charge of disorderly conduct and refusing to pay his fare, and took him to the station-house where he was detained over night. On the next morning he was examined before a police justice and discharged. The defendant had instructed its gate-men to compel passengers to produce their tickets on leaving its stations.
    In an action brought by the plaintiff to recover damages for the false imprisonment:

      Held, that the detention of the plaintiff at the station and his subsequent arrest on the complaint of the gateman were illegal.
    That the defendant was liable for the acts of the gateman.
    That the plaintiff was entitled to recover.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      George S. Hamlin, for the appellant.

      Charles C. Smith and Benjamin Estes, for the respondent.
   Dykman, J.:

Plaintiff entered one of defendant’s trains at Forty-second street, and left at Rector street. When he tried to pass out of the Rector street station defendant’s gateman demanded his ticket. Plaintiff stated he had bought one, but had lost it. He was thereupon detained by the gateman, and finally a policeman was sent for, and on the gateman’s charge of disorderly conduct “ and refusing to pay his fare,” plaintiff was arrested and confined over night. Next morning he was examined before a police justice and discharged.

Tbe theory of the defense is, that the detention in its station was reasonable and under its regulation to compel passengers to produce their tickets, and that for plaintiff’s subsequent arrest and imprisonment they are not liable, because their gateman in procuring it acted beyond his employment.

Is a regulation that a passenger shall be detained for failure to pay his fare during a specified time or at the discretion of an employe reasonable ? Is it not an imprisonment for debt, with the creditor for prosecutor, tribunal and gaoler, and the right of appeal denied? A few will lose tickets, and the many will not. The defendant may arrogate to itself power of detention and hold a threat over its passengers, but it exercises such power at its peril.

The power to eject a passenger from its car and to use force to do it, is one power. Power to detain is power to imprison, dressed in the garb of softer words.

In Townsend v. New York Central Railroad Company (56 N. Y., 300) the passenger was ejected from defendant’s car. There was no detention. And so of the many cases cited by the appellant.

The quotation from Chilton v. London and Croydon Railroad Company (16 M. & W., 221) is at least two-edged. This by-law may be insufficient in not having made a traveler, who does not produce his ticket at the end of his journey, liable to a penalty; but if so, it should be amended and approved by the proper authority. It appears to me that under this plea the sum demanded of the plaintiff was a fare, and not a penalty, so that the defendant has no right to seize or detain him.”

In England, railroad corporations are authorized by statute to impose penalties. Passing that consideration it is plain that here the question was of fare and that alone.

The gateman’s charge at the police court was “ refused to pay his fare.” We are now considering the detention, but this goes to show what the gateman was working to secure first and last. Mr. Poster’s testimony is conclusive that detention was ordered to enforce payment of fare. No ticket was required to enter the defendant’s car, but to leave their station the fare must be paid or a ticket deposited.

The question of defendant’s liability for the arrest remains to be considered.

It cannot be doubted that corporations are liable for the tortious acts of servants.

“A corporation is liable to the same extent and under the same circumstances as a natural person for the consequence of its wrongful acts, and will be held to respond in a civil action at the suit of an injured party for every grade and description of forcible, malicious or negligent tort or wrong which it commits, however foreign to its nature or beyond its granted powers the wrongful transaction or act may be.” (N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y., 49.) The doctrine of Judge Selden in Bissell v. Michigan Southern, etc., Railroad Company (22 N. Y., 305) is approved, and that of Judge ComstocK in the same case inferentially abandoned.

This at least limits the application of Mali v. Lord (39 N. Y., 384) to this case. It is not enough that the masters, if present, would not be authorized to do what is complained of.

That the servant’s acts complained of was not contemplated, foreseen or intended by the master does not excuse him. If he put his servant in a position with possible exigencies, and commit to his discretion what act any contingency may call for, the master is still liable, though the servant’s discretion, ill regulated and prompt measures are beyond the scope of his employment. If the servant act for his master, though his act be ill-advised, in short up to and until he makes his position and employment a pretext for the gratification of his pleasure, business or revenge, the master is liable. (Rounds v. Del., L. & W. R. R. Co., 64 N. Y., 129.)

It seems to be clear enough from the cases in this State that the act of the servant, causing actionable injury to a third person, does not subject the master to civil responsibility in all cases where it appears that the servant was at the time in the use of his master’s property, or because the act, in some general sense, was done while he was doing his master’s business, irrespective of the real nature and motive of the transaction. * * * If he (the servant) is authorized to use force against another when necessary in executing his master’s orders, the master commits it to him to decide what degree of force he shall use, and if through misjudgment or violence of temper he goes beyond the necessity of the occasion and gives a right of action to another, he cannot, as to third peisons, be said to have been acting without the line of his duty or to have departed from bis master’s business. If, however, the servant under guise and cover of executing his master’s orders and exercising the authority conferred upon him, willfully and designedly, for the purpose of accomplishing his own independent, malicious or wicked purposes, does an injury to another, then the master is not liable.” (Rounds v. Delaware, etc., R. R. Co., 64 N. Y., opinion, 136.) But if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purposes of his own, wantonly commits a trespass or causes damage to another, the master is not responsible. (Mott v. Consumers' Ice Co., 73 N. Y., 543.) "When a servant quits sight of the object for which he is employed, and without having in view his master’s orders, pursues that which his own malice suggests, he no longer acts in pursuance’ of the authority given him. The principle is the same whether the wrongful act of the servant is malicious or merely wanton or reckless. (Isaacs v. Third Avenue R. R. Co., 47 N. Y., 122.)

The trial judge charged that to give-plaintiffs their verdict the jury must find that Donahue, the gateman, was authorized to detain passengers; and with reference to the arrest, if you think Donahue acted here without any authority whatever from the company, then your verdict shall be for the defendant.” This is as strongly in defendant’s favor as the trial judge could rightly charge. The jury must then have been satisfied that the gateman had his employer’s interests at heart, and that - the defendant placed him at his gate to force the deposit of a ticket with him by each departing passenger and committed to his discrection the limits of compulsion. The evidence justifies both conclusions.

The judgment must be affirmed, with costs.

BaeNAed, P. J., and Gilbeet, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    JAIRUS HART, Respondent, v. FRANKLIN WOODRUFF, Appellant, Impleaded, etc.

      PtM'tnershi/p — after its dissolution one partner cumiot hind the other hy stating am, aeeount.

    By the articles for the dissolution of a firm, consisting of two partners the business was to be liquidated at the firm store, and all the partners were to assist and were authorized to sign in liquidation. Thereafter one of the partners, without the knowledge or consent of the other, made out and sent to the plaintiff a statement of the account due to him from the firm.
    In an action upon this as an account stated, held, that it was binding only upon the partner making it, and not upon his co-partner.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict directed by tbe court, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Nash & Holt, for the appellant.

      Daniel T. Walden, for the respondent.
   Dykman, J.:

The defendants constituted the firm of Woodruff & Robinson, which dissolved on the 1st day of March, 1875. At the time, the firm was indebted to the plaintiff for money, and the claims rested in account on the defendants’ books. By the articles of dissolution the business of the firm was to be liquidated at the store of the firm, and all the partners were to assist in such liquidation and were authorized to sign in liquidation. On the 27th day of August, 1875, about six months after the dissolution of the firm, by direction of Jeremiah Robinson, one of the defendants and one of the members of the old firm, the following account was made out and sent to the plaintiff :

“ Memorandum.

New Yore, August 27, 1875.

From Woodruee & BobinsoN, 14 Ooenti.es slip.

To Mr. Jairus Hart.

March 1, 1874. By account rendered.......... $3,653 30

March 1, 1875. By interest one year.......... 255 73

3, 909 03

September 29,1874. To draft, Third street, due October 4. 1874.................$2,400 00

March 1, 1875. To interest, 147 days, 67 66

2,467 66

$1,441 37”

The plaintiff and one Youngs had a large balance of money with Woodruff & Robinson at one time, which was divided on their books, part going to the credit of Youngs and part to the credit of the plaintiff, and forming the basis of this account rendered. This action was commenced in the summer of 1880 on the account as a stated account. The defendant Woodruff had no knowledge of the rendition of the account, and did not authorize it. He alone defended. The only proof offered on the part of the plaintiff was this agreement of dissolution and the account rendered; and the court directed a verdict for the plaintiff, and afterwards refused to set it aside. The question then jnesented is, whether Robinson, one of the members of the old firm, had power to bind the defendant Woodruff by stating an account from which the law implies an agreement to pay the amount shown to be due. During the continuance of a co-partnership, each member of the firm, within the scope of the partnership, is deemed the authorized agent of all his associates, but this presumed agency ceases, for most purposes, with the termination of the partnership, and only continues for such purposes as are necessary in winding up the business of the association. After dissolution there is no power to make new promises or contracts or admissions in the name of the firm, even though they do not increase the prior obligation of the partners. The only power thereafter remaining to act for the firm is to sell and dispose of the property, collect, adjust and pay debts, and give discharges and acquittances. Particularly is it well settled that the dissolution of a firm annuls the power of the respective partners to contract new debts or create new obligations against the co-partnership. In the case of Hackley v. Patrick (3 Johns., 536), the notice of dissolution contained a statement that the unsettled business of the firm would be adjusted by Hastie, and he stated and acknowledged a balance of account due from the firm to the plaintiff, and yet it was held that such admission did not bind his co-partner; and the court said, this is a clear case, after dissolution of co-partnership the power of one party to bind the other wholly ceases. There is no reason why his acknowledgment of an account should bind his co-partners any more than his giving a promissory note in the name of the firm, or any other act. The plaintiff ought to have produced further evidence of the debt; the acknowledgment of Hastie alone was not sufficient to charge Patrick.” . In the case of Sanford v. Mickles (4 Johns., 224), it was decided that one partner, after a dissolution of the co-partnership, cannot indorse notes or bills given before to the firm, though he is authorized to settle the co-partnership concerns. In the case of Walden v. Sherburne (15 Johns., 409), the case of Hackley v. Patrick (supra), was approved even against a contrary decision of the Court of Common Pleas in England, and it was there held that an admission by one partner, after dissolution, of a balance due from the firm, does not bind the co-partners. In the case of Baker v. Stackpoole (9 Cow., 420), the Court of Errors decided unanimously that the admission of one partner, either of an account or any fact made after the dissolution of the partnership, is not admissible as evidence to affect any other member of the firm, and in the only opinion delivered it is said a distinction was attempted upon the argument between the admission of an account and the admission of a fact; but I can perceive none in principle.” All of these cases received the approbation of the Court of Appeals in the celebrated case of Van Keuren v. Parmelee (2 Comst., 523), and it was there said “ each partner, when acting within the scope of the partnership, is deemed to be the authorized agent of all his fellows. * * * Now how long does this presumed agency continue 1 Clearly no longer than the necessity for it exists; and for most purposes the necessity ceases with the termination of the partnership. When that is dissolved there is no longer any ground, for presuming an agency, except as to such things as are indispensable in winding up the concerns of the company. If there be no agreement to the contrary it may be presumed that each partner still has authority to dispose of the partnership property, to collect, adjust and pay debts and give proper acquittances. But there is no ground whatever for presuming a power to make new promises or engagements in the name of the firm, even though they only change without increasing the prior obligations of the partners.” These words are sufficiently applicable to this case to have been written with direct reference thereto. The foregoing examination shows that neither on principle nor authority was the party who stated this account authorized to involve the defendant Woodruff thereby. But it is claimed for the plaintiff that a new authority was communicated to each partner by the provision in the articles of dissolution, that all the partners were to assist and sign in liquidation. This provision, however, bestowed no new or additional authority or power. The use and repetition of the word liquidate in these articles has no especial significance. The plain intention of the paper was to confer authority on‘each partner to wind up aud settle up the old business. Precisely that they all had without this provision. There must be some one to adjust the affairs of the concern, by collecting its debts and disposing of its property, and dividing the proceeds among the parties entitled; and where, as in this case, none of the parties are specially empowered for this purpose, to the exclusion of the others, the individual partners retain the same authority which they possessed before the dissolution, so far as it may be necessary for such purpose. (Robbins v. Fuller, 24 N. Y., 572) To the same effect is the opinion in the ease of Gates v. Beecher (60 N. Y., 525). Our conclusion, therefore, is that these defendants took no authority under the articles of dissolution beyond that with which the law would have clothed them; that the statement of the account was an admission obligatory only on the partner making the same, and not on the defendant Woodruff; and that the admission of the same in evidence against him was error, for which the judgment must be reversed.

Judgment reversed and new trial granted, with cost to abide tbe event.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Judgment and order denying new trial reversed and new trial granted; costs to abide event.


text:
    WILLIAM M. FLEISS, Individually, and SARAH H. FLEISS and WILLIAM M. FLEISS, as Executors, etc., of ROBERT A. FLEISS, Deceased, Appellants, v. JOHN C. BUCKLEY, as Administrator, etc., and others, Respondents.

      Surplus on sale in foreclosure — rights of one holding a judgment against the mortgagor’s administrators to a lien upon such surplus.

    A mortgagee who lias recovered a deficiency judgment against the administrators of a deceased mortgagor, cannot maintain an action to have his judgment declared a lien upon surplus money arising upon the foreclosure of a mortgage upon other lands given by the deceased mortgagor to another mortgagee.
    The only remedy of the holder of the deficiency judgment except as against the personal property in the hands of the administrators is by an action against the mortgagor’s heirs or devisees, in which, if such heirs or devisees be insolvent, the court may direct their officer to hold the surplus moneys and apply them in satisfaction of the judgment.
    Appeal from a judgment in favor of tbe defendants, entered upon an order sustaining a demurrer interposed to tbe complaint.

      Osborne E. Bright, for the appellants.

      F. E. Dana, for the respondents Howard, Fuller and Goldsmidt.
   Dykman, J.:

■Tribu Buckley made several mortgages on lands in Brooklyn. The plaintiff William M. Fleiss foreclosed one and recovered a deficiency judgment against Buckley. Buckley died, and after his death tbe plaintiffs, tbe executors of Bobert Fleiss, foreclosed another mortgage and recovered a deficiency judgment against Buckley’s administrator.

The Brooklyn Savings Bank foreclosed another mortgage, and a surplus resulted. This was in the Kings County Court. The usual proceedings were commenced to distribute this surplus, when this action was commenced, and a preliminary injunction against the further prosecution of the surplus proceedings was had.

The prayer of the complaint as to plaintiff William M. Fleiss is, that his judgment against John Buckley, and also a mortgage second to the bank mortgage foreclosed, be declared liens on the surplus in their proper order of priority.

The executors of Robert Fleiss ask that their judgment against the administrator of John Buckley be declared liens on the interest of Buckley’s devisees in this surplus, and that payment to these devisees be restrained until the plaintiffs obtain their share.

Such an extraordinary departure from the established procedure must be urged by a necessity correspondingly great. If by the distribution of the surplus in the County Court, the plaintiffs, can obtain their just dues, and unless every ordinary method of relief must fail in this particular case, we will not oust the County Court of jurisdiction rightly acquired.

The plaintiff William M. Fleiss presents no case for the extraordinary power of this court. His mortgage and judgment are liens on the surplus, of their own strength. He can test the validity of every hostile claim interposed, and his own, if established, will be satisfied in the proceedings instituted in the County Court. We relegate him to that tribunal with perfect safety.

The prayer of the executors of Robert Fleiss needs more extended consideration. Their judgments are not liens on lands, of which the decedents were seized, and this surplus remains land with this and all the characteristics of land. (Dunning v. Ocean Bank, 61 N. Y., 497.)

These plaintiffs must first resort to the decedent’s personal estate. That failing they have their remedy against the heirs and devisees. (2 R. S., 452, §§ 32 to 36.) The right of the executors of Fleiss to have their judgments declared liens on the surplus in the foreclosure and their right to maintain an original bill for this purpose stand on the same base.

If judgments against the decedent’s administrator can be charged on a surplus arising from foreclosure of his land by equitable action, then have the judgment creditors a right to apply to be made parties to the foreclosure and to litigate their rights in the distribution of the surplus and defeat the title of the heirs and devisees. But it is held that the heirs and devisees can be cut off only in the mode appointed by statute. (Pierce v. Alsop, 3 Barb. Ch. opinion at p. 187 and 195; Cassidy v. Cassidy, 1 Barb. Ch. 467.)

It was decided at Special Term by Judge Learned in Loucks v. Van Allen (11 Abb. Pr. [N. S.], 427), that the act of 1867, directing payment of any surplus to the surrogate, has application only to foreclosure by advertisement. ¥e assent to this proposition and to the reasons advanced in its support.

If the executors of Fleiss sue Buckley’s heirs and devisees their remedy is perfect unless these latter be insolvent. If so this court can direct their officer to hold this surplus and apply it to the satisfaction of the judgment obtained.

The judgment must be affirmed, with costs.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Judgment must be affirmed, with costs.


author: Gilbert, J.:

text:
    JOHN H. HODGES, Executor, etc., Respondent, v. CORNELIUS PERINE and others, Appellants.

      Police powers of the State — what is a valid exercise of them — Chapter 190 of 1878.

    Chapter 190 of 1878, making it a misdemeanor for any person to remove any sand, earth or clay from the beach on the south shore of Staten Island opposite and contiguous to the seaside boulevard, in the town of Southfield, from within twenty feet of ordinary high-water mark, so as in any manner to injure, undez'mine, encroach upon or endanger the said boulevard or the meadows adjacent thereto, or render the same liable to be overflowed or washed by the tide or water of the bay of New York, is constitutional and valid as against one in possession and having title to such beach, it having been passed by the legislature under and in purszzance of the police powers vested in it.
    Appeal from an order made at Special Term continuing an injunction during the pendency of the action.

      Geo. J. Greenfield, for the appellants.

      Everett P. Wheeler, for the respondent.
   Gilbert, J.:

By chapter 190 of the Laws of 1878, it is made a misdemeanor to remove any sand, earth or clay from the beach on the south shore of Staten Island opposite and contiguous to the seaside boulevard, in the town of Southfield, from within twenty feet of ordinary high-water mark, so as in any manner to injure, undermine, encroach upon or endanger said boulevard or the meadows adjacent thereto, or render the same liable to be overflowed or washed by the tide or waters of the bay of New York, and offenders against the act are liable to the punishment now provided by law for a misdemeanor, and in addition thereto to a penalty of $100 for every offense, to be recovered by the commissioners of highways of the town of South-field. The gravamen of the complaint is that the plaintiff is in possession of this beach and has title thereto ; that such possession in the plaintiff and those whose estate he has, has been peaceful and uninterrupted for over 100 years ; that the sole value of the beach is in the right to dig sand there ; that the defendants interfere with this possession, and by threats of arrest and otherwise, prevent captains of vessels, to whom plaiiltiff has sold sand, from going there, and that they injure his business, and will, unless prevented by injunction, do him an irreparable injury. The injunction restrains the defendants from entering upon the plaintiff’s premises or the beach in front or forming a part thereof, and from interfering in any manner with the plaintiff’s use, occupation or enjoyment of said premises or said beach, and from threatening or intimidating any of the masters or crews of vessels removing or about to remove sand from said beach in the manner in which the plaintiff has heretofore caused the same to be removed, and from hindering or delaying any persons' authorized by the plaintiff in procuring or removing sand from said beach m the plaintiff’s possession, in the manner in which the same has heretofore been removed. The protection of the quiet and uninterrupted possession of land which has been possessed for a long period of years, against unauthorized disturbance and interruption, without due process of law, constitutes an unquestionable ground of equitable jurisdiction. The operation of the injunction in this case, however, is to arrest the enforcement of a penal statute and to obstruct a due execution of the criminal law.

I am not aware of any case in which a court of equity has interfered for such a purpose. The power of the legislature to pass the statute referred to seems to me to admit of no question. It is a simple exercise of the police power of the legislature, and not in any sense a talcing or unlawful interference with the property of the plaintiff. The land below high-water mark belongs to the State.. The interest of the plaintiff therein is that of a riparian proprietor only. But assuming that the plaintiff has an absolute title to the beach, from which he has been accustomed to take sand, yet the power of the legislature to prevent the continuance of such use of his property rests upon the familiar maxim that every owner of land must so use his property as not to injure the public interests. (Com. v. Tewksbury, 11 Met., 55.) The obvious purpose of the legislature was to protect a public highway from encroachments of the sea, in consequence of removal of the natural barrier formed, in part at least, by the plaintiff’s land, against such an encroachment, and the statute merely makes the removal of that barrier a criminal offense. All that the defendants have done, as apjjears by the papers before us, has been to warn persons against a violation of that statute, and to act in the criminal prosecution of offenders against the same, and to threaten similar prosecutions of other persons who were about to violate the statute. We think it is quite foreign to the jurisdiction of a court of equity to restrain such acts. It is only where the interference with private property is unauthorized, or without due process of law, that the court can rightfully interfere.

The order appealed from must be reversed, and an order must be entered dissolving the injunction, with ten dollars costs and disbursements. •

BarNard, P. J., and DyemaN. J., concurred.

Order continuing injunction reversed, and injunction vacated, with ten dollars costs and disbursements.


author: GILBERT, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE MANHATTAN SAVINGS INSTITUTION OF THE CITY OF NEW YORK, Respondent, v. NORTON P. OTIS, Mayor of the City of Yonkers, and WILLIAM H. DOTY, Clerk of said City, Appellants.

      Contract — when, an act impairs the obligation of it— The legislature cannot exerrcise judicial power — Power of the legislature over municipal and private corporations— 1880, ehaptm' 59.
    Chapter 59 of 1880, requires the mayor and clerk of the city of Yonkers, after the Manhattan Savings Institution has published a notice, and executed and delivered to the city a bond of indemnity as therein prescribed, to execute and deliver to the said institution duplicates of certain negotiable bonds made by the city, which had belonged to and been stolen from the said institution. It also declares that after the publication of the said notice and the delivery of the said duplicate bonds, the city shall be relieved and discharged from all liability upon the original bonds and gives to bona fide holders of such bonds a right of action upon the bond of indemnity éxecuted by the Manhattan Savings Institution.
    Held, that the act, in so far as it exempted the city from liability on account of the bonds issued by it, impaired the obligation of a contract, and was unconstitutional and void.
    That as the protection and enforcement of the rights of individual citizens growing out of past transactions, belonged to the judicial and not to the legislative department of the government, the act was also void as being an exercise of a power not granted to the legislature.
    Municipal and private corporations, as regards the power of the legislature to compel their action for private purposes against their consent, stand on the same footing as individuals.
    Appeal from an order made at Special Term, granting to tlie relator, The Manhattan Savings Institution of the City of New York, a writ of peremptory mandamus directed to Norton P. Otis, mayor of the city of Yonkers, and William H. Doty, clerk of said city, commanding them forthwith to execute and deliver to the said relator duplicates of certain bonds of the city of Yonkers, with their accompanying coupons, therein mentioned.
    The original bonds, 118 in number, for $1,000 each, with their accompanying coupons, were payable to bearer, and were of the bonds known as tbe “ City of Yónkers Seven Per Cent Consolidation Bonds,” issued by tbe city of Yonkers, pursuant to chapter 297 of tbe Laws of 1875. Such bonds were duly delivered to tbe said Manhattan Savings Institution for value, and remained in its possession until they were stolen at tbe time when a certain burglary was committed at such bank on or about tbe 27th day of October, 1878, since which time they have not been recovered.
    At the application of said Manhattan Savings Institution the legislature on the 12th day of March, 1880, passed a certain act entitled “An act for the relief of the Manhattan Savings Institution of the City of New York, and to authorize the city of Yonkers to issue bonds for certain purposes,” and designated as chapter fifty-nine.
    The act requires the mayor and clerk of the city of Yonkers to execute and deliver to the said Manhattan Savings Institution duplicates of such stolen bonds, with their accompanying coupons, after certain notices have been published by the said savings institution as therein prescribed, and after a bond of indemnity has been executed by it and delivered to the city, and declares that after the delivery to the said Manhattan Savings Institution of such duplicate bonds, the city of Yonkers shall be discharged of and from all liability upon the original bonds described in the first section of the act, to the said Manhattan Savings Institution and to all persons purchasing the same, after due publication of the notice mentioned in the first section of the act, but provides that “ the lawful owners thereof (if any) shall have a right of action therefor against the said Manhattan Savings Institution upon the bond ” of indemnity.
    The said savings institution complied with the terms and conditions imposed upon it by said statute, and demanded of said mayor and city clerk the execution and delivery of the duplicate bonds of the city of Yonkers as mentioned in said act.'
    The said mayor and clerk refused to comply with such demands, upon the ground that said statute was unconstitutional and void.
    The said Manhattan Savings Institution thereupon made application to the Supreme Court, at Special Term, for an order granting a writ of peremptory mandamus to compel said mayor and city clerk to execute and deliver said duplicate bonds.
    Such application was based entirely upon said chapter 59 of the Laws of 1880, and the proceedings taken by tbe relator in conformity therewith.
    The facts were not disputed, and the objection of said mayor and city clerk was based solely upon the uneonstitutionality of said statute.
    The Supreme Court at Special Term granted an order for the required writ of mandamus, as aforesaid, from which order an appeal to the General Term was taken.

      Theodore Fitch, for the appellants.

      John H. Platt and Waldo Hutchins, for the relator.
   GILBERT, J.:

The right of the relator to a mandamxis depends upon the validity of the act of March 12,1880. (Ch. 59.) We are of opinion that the act is invalid for two reasons. 1st. The provision exempting the city of Yonkers from liability on account of the bonds originally issued, after the duplicates shall have been delivered, plainly impairs the obligation of the contracts created by such original bonds. It is not an answer to this objection to say that'the act merely destroys the negotiability of the bonds after a specified time. For that of itself would impair the obligation of the contract. A bond or other obligation payable to bearer is a contract to pay the person who shall be the owner thereof, and who shall present it for payment at the proper time. A statute which exempts an obligor from liability to a person so designated in the bond, changes its legal effect injuriously to the latter, and so impairs its obligation. As well might it be contended that a statute which exempted a maker of a promissory note, putin circulation before the passage of the statute, payable to the payee or order, from liability to an innocent indorsee, did not impair the obligation of the contract. Such legislation not only impairs the obligation of negotiable contracts but in many cases would destroy them altogether. For a transfer of the contract would be equivalent to its cancellation. The transferer could not enforce it, because he had parted with his interest in it, and the transferee could not because the statute had exempted the obligor from liability to him. But the statute of 1880 (ch. 59) does not affect tbe negotiability of the bonds in question. Its language is that, after the delivery of the.duplicate bonds, the city of Yonkers shall be discharged from all liability on the original bonds to the relator, and to all persons purchasing the same after the time referred to, but the lawful owners thereof (if any) shall have a right of action therefor upon the duplicate. This provision preserves the negotiability of the duplicate bonds, but shifts the liability upon the original bonds from the obligor to the first obligee. Surely such an interference with contracts is in the teeth of the constitutional inhibition. We cannot give effect to the direction to issue duplicate bonds, as a provision independent of the exemption of the city from liability on the original bonds, for the reason that the latter is one of the means provided for securing the city against the risk of increased liability incurred by the former. Both provisions are, therefore, inseparably connected.

2d. The statute is a usurpation of power which has been vested exclusively in the judicial department of the government. No doubt the whole law-making power of the State, not expressly or impliedly withheld, has been vested in the legislature. It is equally true, however, that the judicial power of the State has been vested in the courts established by the Constitution, and that the grant of the latter power excludes the right of any other department of the government to exercise the same ¡Dower. The line between legislative and judicial power may not be readily discerned in all cases. But certain tests have been established by common reason and experience. One of these is, that the protection and enforcement of the rights of individual citizens growing out of past transactions belongs to the judicial and are not within the scope of the legislative power. (Cooley Const. Lim., 88, et seq.) Surely the legislature has not the power to pass a statute after the supposed loss of a bond made by an individual, determining the fact of such loss and compelling the obligor to give a new bond to the obligee. Such a statute would not be within the definition of a law, which is a rule of civil conduct,” but ought rather to be termed an act of despotic power. Nor would it make any difference whether the statute provided for an indemnity of the obligor or not. The question is one of power only. If the legislature has the power of so acting retrospectively upon the vested rights of citizens, it has it unconditionally. No one I apprehend, would contend for the validity of such a statute. Nor could a double liability so created be enforced except by an infringement of those provisions of the Constitution of the United States and of this State, which declare that no citizen shall be deprived of his property without due process of law. A statute which may produce such a result cannot be upheld. The only question remaining, therefore, is, whether the fact that the bonds in question were issued by a municipal corporation to a savings bank, both of which bodies were incorporated under the laws of this State, makes any difference ih the rule of law applicable to the case. The decision of the Court of Appeals in the case of the People ex rel. Dunkirk, etc., R. Co. v. Batchellor (53 N. Y., 128-140), is conclusive upon this subject. It was there held that municipal corporations might be compelled to enter into contracts for an exclusive public purpose without their consent, but that they could not be when the purpose was private. In answer to the argument that municipal corporations are creatures of the legislature and subject to its control, the court remarked: “ In a certain sense this is true. They are created by the legislature as instrumentalities of the government, and so far as legislation for governmental purposes is concerned, are absolutely subject to its control. * * * It is within the province of legislation to provide for enforcing the performance of contracts when made, but to enforce the making of them by individuals is entirely beyond it. Ye have seen that municipal corporations maybe compelled to enter into contracts for an exclusive public purpose, but they cannot be where the purpose is private. This is equally beyond the province of legislation in the ease*of such corporations as in those of private corporations or individuals.” (P. 140.) It was said on the argument that the issuing of duplicate bonds in the place of others which had been lost, was not an entering into new contracts. Conceding that to be true, it does not affect the applicability of the decision cited. Por the principle of that decision plainly places corporations, in respect to the power of the legislature to compel their action for private purposes against their consent, on the same footing as individual citizens. That principle was again asserted by the Court of Appeals in Horton v. Town of Thompson (71 N. Y., 513, 521-525). Statutes were cited in behalf of the relator as precedents for the act of 1880, but in all of them some mode of judicial inquiry and determination was provided for. That makes a radical distinction between those statutes and the act of 1880.

The law, irrespective of the act of 1880, is ample to afford the relator suitable and adequate relief; and we think that such relief should be sought in that way. (Adams Eq., 167; Story Eq. Jur., §§ 82-89; Ches. and O. Canal Co. v. Blair, 45 Md., 102; Farce v. City of Elizabeth, 27 N. J. Eq., 408; N. O., J. and G. N. R. Co. v. Miss. Coll., 47 Miss., 560; and see Lawrence v. Lawrence, 42 N. H., 109.)

The order should be reversed with ten dollars costs and disbursements, and an order should be entered denying the motion with ten dollars costs.

Dykman, J., concurred; Barnard, P. J., dissented.

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


text:
    ALICE C. BONNELL, as Administratrix, etc., Appellant, v. HUGH J. JEWETT, as Receiver of the Erie Railway Company, Respondent.

      Statute of limitations — an action to reeovm' damages for death ccmsed by negligence must be brought within two years.

    An action under chapter 450 oí 1847, as amended by chapter 258 of 1849, and chapter 78 of 1870, to recover damages for the death of a person occasioned by the defendant’s negligence, must be brought within two years from the time of the death.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit.
    On the 23d day of July, 1875, Joseph Bonnell, while in the service of the defendant as an employe, was killed by the explosion of a locomotive on which he was riding. This action was commenced March 15, 1879, three years and eight months afterwards, to recover damages for thus causing his death. It was claimed in the complaint that the death resulted from negligence on the part of the defendant, and therefore a liability therefor existed. Among other defenses, the defendant pleaded the statute of limitations. It was agreed to move the case on this question at the November Circuit, 1880, and a nonsuit was ashed by the defendant, because it appeared from the pleadings that the action was not commenced within the period given by statute for the commencement of actions of that character. That motion was granted, and the complaint was dismissed.

      T. J.& J. W. Lyon, for the appellant.

      Lewis E. Carr, for the respondent.
   Gilbert, J.:

This remedy was first given by chapter 450 of the Laws of 1847. That statute contained a proviso that the action should be commenced within two years after the death of such deceased person.”

In 1849 (oh. 256) the act was amended by limiting the amount of the recovery to $5,000. In 1870 (ch. 78) the legislature again amended the statute by inserting the further provision that the amount of damages recovered should draw interest from the time of the death of the deceased person, but left the proviso untouched. The appellant claims that the effect of the amendment was to restrict the proviso to the recovery of interest, so that the right to recover interest only became dependent upon the bringing of the action within two years.

I think the statute does not admit of such a construction. The proviso inserted in the original act, and continued in the amendatory statutes, was intended to have, and has, the effect of a statute of limitations, and bars the action if not brought within two years.

Judgment must be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    MARTIN Y. BUNN, Appellant, v. MICHAEL DALY and JOHN DALY, Respondents.

      Supplementary proceedings — when a receiver to sell the real estate of the debtor, should not be appointed.

    Where, upon the examination of a judgment debtor in supplementary proceedings, it appears that he has an estate in land, as a tenant by the curtesy, and it is not shown that an execution has been issued and returned upon the judgment since he acquired the said estate, a receiver to sell the same should not be appointed, but the creditor should issue an execution upon his judgment and sell the debtor’s estate thereunder.
    Appeal from an order made at Special Term, denying a motion for tbe appointment of a receiver.

      C. A. & A. D. Peake, for the appellant.

      James P. Sanders, for the respondents.
   Gilbert, J.:

This is an appeal from an order denying a motion for tbe appointment of a receiver in supplementary, proceedings.

Upon tbe examination of tbe judgment debtor it appeared tbat be had an estate as tenant by tbe courtesy in certain real estate which be acquired by tbe death of bis wife, in January, 1819.

Tbe judgment was recovered in January, 1816, and an execution was issued thereon and returned unsatisfied.

It does not appear when this execution was issued or returned, but we think it is enough tbat it does not appear that an execution has been issued and returned since tbe judgment debtor acquired tbe property discovered on bis examination.

The intent of tbe Code is to give tbe summary remedy provided by proceedings supplementary to execution only after the legal remedy has been exhausted. íhe statutes in relation to these proceedings and to the sale of real and personal property on execution, arempari materia and must be construed together. Tbe property of tbe judgment debtor discovered in this case is a freehold estate in lands. The statute provides for the sale on execution of such estate, and gives the judgment debtor one year after the sale to redeem. The appointment of a receiver of said property would deprive the judgment debtor of the right conferred by that statute. We think the provisions of the Code were not intended to produce that result.

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

Barnard, P. J., concurred in the result; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


author: Gilbert, J.;

text:
    Alexander Combs, Appellant, v. Michael Vigotty, Respondent.
   Judgment of County Court affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., for reversal, on the ground that the agreement between Vm. Combs and defendant was improperly admitted.


author: Barnard, P. J.

text:
    In the Matter of William H. Gale.
   Motion denied. Opinion by

Barnard, P. J.


text:
    Perrin H. Sumner, Appellant, v. Henry Hosford, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Gilbert, J.;

Dykman, J., dissenting.


author: Dykman, J.

text:
    - Polhemus v. - Voorhies.
   Motion denied, with ten dollars costs. Opinion by

Dykman, J.


text:
    Adaline Killmer, Appellant, v. John A. Coon, Respondent.
   Order of December 11, 1880, affirmed, with costs and disbursements. Opinion by

Dykman, J.:

Barnard, P. J., not sitting.


author: Dykman, J.;

text:
    Same v. Same.
   Order of January 22, 1881, affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Gilbert, J.

text:
    Matter of Martinhoff.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Gilbert, J.


author: Barnard, P. J.;

text:
    Matter of Grummun.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    Clinton Raynor, Respondent, v. Harrison Gordon, Appellant.

   Motion denied. Opinion by

Gilbert, J.


text:
    Joseph V. Walsh, Plaintiff, v. Emil Stern and Frederick Lewis, Defendants.

   Part of order appealed from affirmed, with costs and disbursements. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Catharine M. Raymond, Respondent, v. Joseph Husson and others, Appellants. — Action No. 1.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    Same v. Same. — Action No. 2.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    In the Matter of Sycamore Street, Brooklyn.
   Motion to vacate order appointing commissioners denied, without costs. Opinion by

Gilbert, J.;

Dykman, J., dissenting.


text:
    Matter of Andrew S. Hall, a supposed Lunatic.
   Order reversed, with costs and disbursements, and motion denied so far as it asks for order to pay over the money, but granted that the claimant have leave to sue the committee. Opinion by

Barnard, P. J.


text:
    James Luyster, Jr., and William M. Valentine, Appellants, v. Eliza Curran, Respondent.
   Order of County Court affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Matter of William Heath.
   Order refusing to vacate order of August 12, 1880, reversed, with costs and disbursements, and motion granted with costs; and order of 23d November, 1880, requiring assignee to comply with order of August 12, 1880, reversed, with costs and disbursements. Order of 11th January, 1881, reversed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Lowell Talbot, as Trustee, etc., Appellant, v. George W. Adams and Cornelius R. Colyer, as Executors, etc., Respondents.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not'sitting.


text:
    Peter P. Parrott and others, Executors, etc., Appellants, v. Alexander T. Arthur and others, Respondents.

   Order reversed, with costs and disbursements. Opinion by

Dykman, J.


text:
    The People of the State of New York, Appellants, v. The Brooklyn, Flatbush and Coney Island Railway Company, Respondent.

   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Michael Nolan, Respondent, v. Cordelia C. Whitney, Appellant.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Jacob Odell and another, as Executors, etc., Respondents, v. Anna Randall Diehl, Appellant.

   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    The People of the State of New York ex. rel. William Hepburn and others, v. Albert G. Upham, Respondent.

   Judgment and proceedings affirmed, with costs. Opinion by

Barnard, P. J.


text:
    In the Matter of the Application of the Prospect Park and Coney Island Railroad Company, to acquire title to lands of Abraham Barre.
   Order and report of commissioners affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    Frederick E. Wells, Respondent, v. Hub Publishing Company of New York, Appellant.

   Judgment reversed, and new trial granted at Circuit, costs to abide event; reference vacated. Opinion by

Barnard, P. J.


text:
    Robert E. Allen, Respondent, v. Washington B. Williams, as Receiver, etc., Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Abram Rosensen, Administrator, etc., Respondent, v. The North Second Street and M. V. R. R. Co., Appellant.

   Order granting-new trial reversed without costs, and motion for new trial denied without costs. Opinion by

Dykman, J.;

Gilbert, J., dissenting.


text:
    Gottfried Meltzer, Survivor, etc., Appellant, v. Edwin N. Doll, and another, Executor and Executrix, etc., Respondents.

   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Gilbert, J., not sitting.


text:
    Mary A. Durkin, Administratrix, etc., Respondent, v. Thomas R. Sharp, Receiver, etc., Appellant.

   Judgment and order denying new trial, affirmed, with costs. Opinion by

Gilbert, J.


text:
    Florence Verdin and Daniel De Moyelles v. The Jersey City and Albany R. R. Co.
   Judgment and -orders denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Henry S. Russell, Respondent, v. Jacob J. Verity, Appellant.
   Judgment reversed and new trial granted at Circuit, costs- to abide event. Reference vacated. Opinion by

Barnard, P. J.


text:
    Jane A. Shepard, Respondent, v. Morris Hazard, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Gilbert, J.


text:
    Henry W. Bulkley, Respondent, v. William Matthews, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    William H. Denike, Respondent, v. The Orange County Mutual Insurance Company, Appellant.

   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. Andrew McShane v. The Commissioners of the Department of Fire in the City of Brooklyn, and his deputy.
   Order dismissing relator reversed, without costs. Opinion by

Gilbert, J.


text:
    The People of the State of New York ex rel. Robert J. Furey v. The Commissioners of the Department of Fire in the City of Brooklyn, and his deputy.
   Order dismissing relator reversed, without costs. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. Eben H. Shute v. The Commissioners of the Department of Fire in the City of Brooklyn, and his deputy.
   Order removing relator reversed, without costs. Opinion by

Barnard, P. J.


text:
    William H. Ricketts, as Receiver, etc., Appellant, v. Gerhard Wessels, Respondent.

   The case sent back to referee for further report according to section 1022, Code, and leave given to appellant to except to findings. Opinion by

Gilbert, J.;

order to be settled by him.


text:
    Abram Biker, Appellant, v. Henry Hilton and William Libby, Respondents.

   Judgment reversed, and new trial granted, costs to abide event. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


text:
    The People of the State of New York, Defendants in Error, v. The New York, New Haven and Hartford Railroad Company, Plaintiffs in Error.

   Judgment reversed, and new trial granted. Opinion by

Gilbert, J.;

Barnard, P. J., dissenting.


text:
    Bradford L. B. Baylies, Appellant, v. The Long Island Railroad Company, Respondent.

   Exception sustained, and judgment reversed and new trial granted; costs to abide event. Opinion by

Barnard, P. J.;

Gilbert, J". not sitting.


text:
    Amanda C. Johnston and Jesse Hatfield, Appellants, v. William Hatfield and others, Respondents.

   Decree of surrogate reversed and issue of due publication of will sent to a jury of Kings county at Circuit; costs to abide event. Opinion by

Gilbert, J.


text:
    Edward M. Tompkins, as Receiver, etc., Appellant, v. George J. Penfield and others, Respondents.

   Order permitting the service of a supplemental answer, modified in accordance with opinion; order to be settled by Barnard, P. J. Opinion by

Barnard, P. J.;

Dykman J., not sitting.


text:
    George W. Moore, Respondent, v. John J. Betz, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Harry C. Eldridge, Respondent, v. Levi W. Flagg, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


text:
    William Horton and others, Appellants, v. Theodore Burt and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Oscar Cheeseman, Respondent, v. John N. Leggett, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


text:
    Robert T. Paine, Respondent, v. Henry C. Howells and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    In the Matter of the Will of Hugh S. Dunn.
   Decree of surrogate reversed, and the issues, as to the execution of the will and the capacity of the testator and the question of undue influence upon him, to be sent to a jury of Westchester county at a Circuit Court. Opinion by

Barnard, P. J.


text:
    John J. Devitt and Hamlet Hart, Respondents, v. John Clark, Appellant.

   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Gilbert, J., dissenting.


text:
    James A. Grenzebach and Robert P. Carpenter, Respondents, v. James H. Weaver, Appellant, Impleaded, etc.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Judah B. Voorhees, as Collector, etc., of Pierre M. Van Wyck, deceased, Respondent, v. Francis Xavier Huber, Appellant.

   Reargument ordered.

Gilbert, J., not sitting.


text:
    Adrian M. Suydam, Appellant, v. The Broadway Railroad Company, Respondent.

   The part of the judgment appealed from affirmed, with costs. Opinion by

Gilbert, J.


text:
    Matter of Rezin A. Wight and others, Executors of William Kelly, deceased.
   Appeal withdrawn.


text:
    Robert C. Embree v. Miriam L. Franklin.
   Reargument ordered of the motion for a reargument.

Barnard, P. J., not sitting.


text:
    George W. Fletcher, Respondent, v. Joseph Foxell and Thomas Jones, Appellants.

   Judgment affirmed, with costs. No costs granted upon appeal from order denying new trial, and order entered therein to be modified accordingly.


text:
    Eliza W. Parkhurst v. Robert H. Berdell.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Boardman, J.:

text:
    HAMILTON S. PRESTON, Respondent, v. ALONZO C. YATES and THEODORE DISSEL, Appellants.

      Bond to protect a sheriff in making a levy — he cannot recover upon it unless he complies with its conditions —it prevents any othw' promise to protect him arising by implication.

    The plaintiff, a sheriff, while attempting to levy upon certain property under an execution, was informed that it belonged to the judgment debtor’s father, and thereupon demanded a bond of indemnity from the judgment creditors, the defendants in this action, who gave to him such a bond containing a proviso that, in case any suit should be brought against the sheriff the judgment creditors should be notified and permitted to defend. The sheriff then levied upon ■ the property, sold it, and paid over the proceeds to the defendants. Thereafter he was sued by the judgment debtor’s father, who recovered from him the value of the property taken.
    In an action brought by him upon the undertaking:

      Held, that he could not recover upon it as he had failed to notify the defendants of the suit, and to give them an opportunity to defend it.
    That the action could not be maintained upon an implied promise to repay the money received from the sheriff, as the express contract made between the parties prevented the implication of any other or different contract.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis action by the court without a jury.

      Wm. C. Ruger and Louis Marshall, for the appellants.

      C. H. Bell and J. H. Maynard, for the respondent.
   Boardman, J.:

The defendants, having a judgment against one E. II. Powell, issued their execution thereon to plaintiff, who was sheriff. Certain property then lately in the possession of Powell was found, but John Powell, the father of the judgment debtor, claimed to own it. The plaintiff then demanded of the defendants a bond of indemnity, stating such claim of John Powell to the goods found. The defendants thereupon gave to plaintiff a bond of indemnity, reciting the above facts, whereby they agreed to indemnify and save harmless the plaintiff for levying upon and making sale under their execution of the property so claimed by John Powell, with a proviso at the end thereof that in case any suit shall be brought therefor against said sheriff, that said A. C. Yates & Co., the defendants, shall be notified and permitted to defend the same.” The plaintiff then levied upon and sold property sufficient to satisfy the defendants’ execution, and paid the amount thereof to the defendants. Afterwards, John Powell sued the plaintiff for such levy and sale, and recovered of him the value of the goods sold. The plaintiff then brought this action, and on a former trial recovered upon such bond of indemnity about $700. On appeal, such judgment was reversed upon the ground that the plaintiff had neglected and refused to allow the defendants, upon their request, to appear and defend the action brought against him by. John Powell, as provided in said bond.

Upon the new trial, the plaintiff has again recovered, but only for the amount of money paid by him to the defendants in satisfaction of ¡ their execution. The plaintiff now disclaims that he seeks indemnity, but.recovers upon the theory that the complaint is broad enough to sustain an action of assumpsit for money had and received by the defendant to the use of the plaintiffs, paid by him under a mistake of facts.

The complaint was evidently framed with the purpose of 2’ecov-ering full indemnity. It cé2,tainly has not the chai’acteristics of a complaint for the recovery of inoney paid by mistake. No mistake is alleged in 2nakihg the payment. No promise or agreement for repayment is alleged or arises by implication of law from the facts stated. No demand for repayment is stated in the complaint. The only demand proved or to be infeiued was made in virtue of the bond of indemnity, to which the defendants replied denying their liability upon the bond and refusing to respond to plaintiff’s demand. In the opinion of this court (Preston v. Yates, 17 Hun, 93), it is said the plaintiff must recover, if at all, on the bond.” The plaintiff has, however, recovered on an entirely different theory and ground of action. It is possible such a complete variance from the cause of action as originally set forth may be allowed where the defendants are not prejudiced thereby. Where such a course of procedure promotes justice, and fairly determines the rights of the parties, it ought to be sustained. There is an appearance of equity in this case that defendants ought not to retain moneys produced from the sale of John Powell’s property, through plaintiff’s official acts, which plaintiff has had to repay.

The difficulty is, the rights of these parties are fixed by their agreement. No promise or contract can be implied in opposition to an express agreement. The plaintiff was under no obligation to levy on goods in the possession of John Powell or claimed to be owned by him. Knowing this, he refused to meddle with the goods unless the defendants would indemnify him for so doing. The defendants do this upon condition they shall be allowed to defend if suit is brought. Hnder this agreement the plaintiff collects and pays to defendants the amount of their execution, and when sued refuses to allow them to defend the action. No other"agreement or understanding can be inferred from the facts. The sale was made only because plaintiff was indemnified. Being so made, the defendants became entitled to the proceeds of the sale. Plaintiff could not have withheld them. In return, the defendants had agreed, and it was their duty to defend the sheriff when sued if he would permit; otherwise it was not their duty. Plaintiff, by refusing to allow defendants to defend, relieved them from all obligation, as well for the moneys paid them as the other damages which plaintiff had suffered. The right of defendants was absolute and for their own protection. They might have defended successfully. The plaintiff might have neglected his defense, relying upon his indemnity. By reason of plaintiff’s refusal to allow the defendants to defend the action they were not represented in such action. They were not parties thereto. The recovery of the judgment against plaintiff was not evidence of John Powell’s title to the goods sold as against defendants. Their right to defend that action would have been the same in the absence of an indemnity bond, provided the plaintiff desired to hold them responsible for any portion of the recovery. They were the real parties to be affected and the plaintiff at his peril prevented them from fighting the battle in their own way. Except upon the condition stated the defendants might well have declined the risk assumed in selling and taking the proceeds. The legal principles here stated need no citations or authorities if they are applicable to the facts in this case. We conclude then :

1. That the demand of a bond of indemnity by plaintiff as a condition to his levy upon and sale of the property, the giving the same by the defendant, and the acceptance of the bond given constitute the contract under which the property was sold and the proceeds paid over to the defendants.

2. That plaintiff forfeited all rights to look to defendants for a return of the money paid them, by reason of his breach of said contract in refusing to let them defend according to its condition.

3. That a contract or promise to return said moneys can not be implied in hostility to and at variance with the express contract, and finally,

4. That the finding of an implied contract or promise to return said money is not sustained by the evidence.

Therefore, the judgment must be reversed and a new trial granted, costs to abide the event.

Learned, P. J., and Bookes, J., concurred.

Judgment reversed, new trial granted, costs to abide event.


text:
    HENRY W. OTIS, Respondent, v. JOHN M. DODD and ALEXANDER M. ROSS, Appellants, Impleaded with THE UNION PORTLAND CEMENT COMPANY and others.

      Mechanic’s lien — when one contracting with a tenant may acquire a lien as against the owner— 1873, chapter 489.
    The defendants leased certain lands and quarries to a cement company for the term of seven years, with privileges of renewal, the company agreeing to erect certain improvements thereon, which were to become the property of the lessors upon the termination of the lease. The plaintiff, in pursuance of a contract made with the company, erected the improvements upon the lands, the defendants assisting in locating the same and directing him as to the foundations thereof. The cement company having failed, the plaintiff filed a notice of lien under chapter 489 of 1873.

      EM, that he thereby acquired a valid lien upon the land as against the defendants, the owners thereof.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee in an action brought for the foreclosure of a mechanic’s lien.

      Schoonmaker & Linson, for the appellants.

      E. S. Wood, for the respondent.
   Boardman, J.:

Does the mechanics’ lien law (chap. 489, Laws of 1873), give a lien to plaintiff upon the lands of defendants Dodd and Ross under the facts in this case ?

Dodd and Ross, owners of the fee, leased certain lands and quarries to the Bortland Cement Company for seven years, with privileges as to renewals. In consideration of said lease, the cement company covenanted and agreed with Dodd and Ross to erect certain valuable improvements thereon. The cement company entered into possession, and, in pursuance of the said agreement, contracted with plaintiff to erect and build such improvements, which, by the terms of the lease, became real estate, and at the end of the lease went to Dodd and Ross. Dodd and Ross not only contracted with the cement company for the erection of these improvements, and consented to and procured such erections, but they were present and aided plaintiff in locating the same, and directed him how to hx the foundations. After plaintiff completed the improvements the cement company failed to pay, and this lien was put upon the property to the amount of over $8,000. The referee held and decided that the lien was valid against Dodd and Boss, as owners of the fee, and they appeal from the judgment against them.

In Nellis v. Bellinger (6 Hun, 560), it was held that chapter 189, Laws of 1873, gave a lien whenever the owner of the land consents, by his acts or declarations, to the erection of a structure upon it, to the same extent as if he had contracted directly for its construction. In that case the father was the owner in fee of the land. His son had contracted with the plaintiff for the erection of a house on the land for the son’s own use. The father knew these facts, and was present at various times while the work was going on and rendered some assistance. So in Husted v. Mathes (77 N. Y., 388), the act of 1873 is again under construction, and Judge Danforth says: “ "Whenever the owner of land consents to the erection of a building upon it, a lien is given to persons furnishing materials used in its erection.” Again: “ It was not necessary that the owner should have contracted for the materials, and, however manifested, the ‘ consent of the owner ’ to the erection of the house is sufficient. The case is not one of contract, * * * but consenting to the improvement of .her land, it is by.statute subjected to a lien.” This was a case in which a husband made improvements on his wife’s land.

In the case under consideration the cement company put up the new structures under a contract made by it with Dodd & Boss, the owners of the fee. There was a valid contract between them whereby the cement company was bound to make the improvements, and they were, made pursuant to such contract. Dodd & Boss took part in the location of the structures, and as soon as they were built they became their property. It was, therefore, more than a simple consent by Dodd & Boss; they contracted to have the work done, and by reason of such contract the plaintiff was employed to do the work. Doubtless they expected the cement company would pay plaintiff’s bill. So in Nellis v. Bellinger (supra), the father expected his son would pay for a house erected for his own 'use. But the payment has not been made, and now shall the contractor lose his pay, while the owner of the land gets the benefit of his work, labor and materials for nothing ? If we assume that the cement company is insolvent and cannot be compelled to pay plaintiff, it will result that Dodd & Boss will resume possession of their real estate with the improvements built thereon by plaintiff, in pursuance of a contract therefor between Dodd & Boss and the cement company. We think it was the intent of the act of 1873 to reach such a case and to compel the owner of the fee, when he receives the benefits of a mechanic’s labor and material, put upon his land with his full knowledge, approbation and consent, to pay therefor. The case of Burkitt v. Harper (14 Hun, 581; affirmed 79 N. Y., 273), arose under the mechanics’ lien law applicable to the counties of Kings and Queens (Laws of 1862, chapter 478, § 1) whereby liens are allowed mechanics for work or materials for houses, etc., upon lands by virtue of any contract with the owner thereof, or his agent * * * or cmy person permitted by the owner of such lands to buildf etc. The defendant, Davis, was lessee under an eight year lease on annual rent. Harper was the owner. By the lease the improvements built or to be built upon the premises were to revert to the lessor and belong to him, and it provides for the insurance of the same, for rebuilding, in case of fire, with the proceeds of such insurance and in case of default for re-entry by the lessor. Improvements made by Davis under this lease, with the knowledge and approval of Harper, gave to Burkit't, the mechanic, a right to file his lien against the land of Harper. The case, both by the language of the statute and the terms and covenants in the lease, bears quite a striking resemblance to the one under consideration. See, also, Rollin v. Cross (45 N. Y., 766) under the same statute.

The cases cited seem decisive of this appeal and it is not deemed profitable to consider other cases cited by the appellants, decided under other and different lien laws.

We are of the opinion the judgment should be affirmed, with costs against the appellants.

LeARNed, P. J., and Bookes, J., concurred.

Judgment affirmed, with costs.