author: Davis, P. J.:

text:
    JOSEPH PARK, Jr., JOHN M. TILFORD and CHARLES PARK, Appellants, Respondents, v. ALEXANDER SPAULDING and WILLIAM L. SIMMONS, Impleaded, etc., Appellants and Respondents. JOSEPH PARK, Jr., JOHN M. TILFORD and CHARLES PARK, Appellants and Respondents, v. ZACHARIAH E. SIMMONS and J. H. ADAMS, Impleaded, etc., Appellants and Respondents.

      Code, § 306 — when one of s&o&ral defendants entithd to costs— Qlubs— liability of members of — how terminated.

    Where, in an action brought against several defendants, the plaintiff succeeds as to some and fails as to the others, the successful defendants are only entitled to costs when,
    (1) They are not united in interest with those against whom the plaintiff recovers;
    (2) They have interposed a separate defense by a separate answer; and when
    (3) Costs are awarded to them by the court.

      Allis v. Wheel&r (56 N. Y., 50) followed.
    Where a body of gentlemen join themselves together for social and recreative purposes, and assume a name under which they incur liabilities, the members thereof become jointly liable for any indebtedness thus incurred, and each member continues liable so long as he remains a member of such body, and until he notifies the creditors thereof of his withdrawal therefrom.
    Appeal by tbe defendants Spaulding and W. L. Simmons from so much of a judgment entered upon tbe report of a referee, as directs judgment against them for $1,050.12, and appeal by tbe plaintiffs from so much of said judgment as awards costs to tbe defendants Z. E. Simmons and J. H. Adams.
    From tbe report of tbe referee, it appears tbat eai’ly in tbe month of April, 1871, a number of gentlemen met together and agreed to form an association for social purjwses, to be called and known as tbe Worth Club, tbe defendant William L. Simmons being one of such persons.
    Tbat such persons, and those who afterward joined them, procured a building on Twenty-seventh street, in tbe city of New York, went into the possession thereof before tbe 21st of April, 1871, and kept tbe same open as a club-house till after January 5, 1873.

      That such club was not incorporated, had no constitution or by-laws, but its object and purpose was to provide a club-house at which the members could meet together for conversation, social intercourse, and there obtain' such refreshments, wines, liquors and cigars, etc., as they might, while there, desire; and such object and purpose was carried out from the time of the organization of the club till after January 5, 1873.
    That, at a meeting of the members of said club, held on the 21st day of April, 1871, Thomas B. Whitney and Thomas L. Banker, two of the members of such club, were appointed a committee to purchase a stock of wines, liquors and cigars, for the use of said club and the members thereof, and, in pursuance of such appointment, such committee called upon and applied to the plaintiffs to sell a bill of goods to the Worth Club.
    That said plaintiffs then inquired if the Worth Club was incorporated, and were informed that it was not. They then asked who were members of it, and a number of the members being mentioned, among those named being the defendant W. L. Simmons, the plaintiffs stated that they knew some of the members, and deemed them responsible, and, at the same time, the said Whitney stated to the said plaintiffs that he, personally, would guarantee the payment of the bill of goods which he desired to pinchase, but nothing bought after that, and that Park & Tilford could ascertain as to their (the club’s) responsibility.
    That about the time of such purchase, or very shortly thereafter, Richard M. Darling became the steward' of the Worth Club, and acted as such till after January 5, 1873, and until such club ceased to exist as an organization.
    That about two months after the delivery to said club of the goods so purchased of Park & Tilford by said Whitney and Banker, an arrangement was made by said Richard M. Darling with the members of the Worth Club, generally, in and by which said Darling promised and agreed that he, personally, and on his own credit, would buy and pay for all necessary supplies for said club, and the members thereof, and that he would dispose of the same to the members thereof as they should desire, and look to the individual members for payment of the same, and that he would not contract any debt on tbe credit of said club, wbicb arrangement was generally known to the members of tbe club.
    That Park & Tilford never were informed of this arrangement or of tbe agreement of said Darling with tbe members of tbe club,- nor did tbe members of tbe club know that Darling continued to buy supplies of Park & Tilford on tbe credit of the club, nor did they make any inquiry of Park & Tilford on tbe subject.
    That, in tbe spring of 1872, tbe defendant Alexander Spaulding joined tbe club and continued a member thereof while it lasted.
    Tbe defendant Zacbariab E. Simmons joined tbe "Worth Club in 1871, and on or before October 1, 1873, be sent a note to tbe secretary, addressed to tbe club, resigning bis membership or tendering bis resignation. He never was informed of any acceptance of bis resignation, nor did it appear that bis note of resignation was ever received by the club or tbe secretary thereof. Park & Til-ford bad no knowledge of Mr. Z. E. Simmons’ membership or of bis resignation.
    Tbe defendant William L. Simmons was a member of said club in tbe spring of 1871, and Park & Tilford were informed of bis membership in tbe club when tbe account with them was first opened, but they bad no knowledge or information of bis withdrawal therefrom.
    • Tbe defendant J. Howard Adams joined tbe Worth Club tbe forepart of May, 1871, and continued bis membership about six months, and then sent to tbe club bis resignation as a member, after wbicb be never went to tbe club-house.
    Park & Tilford bad no notice or information that the defendant Adams was a member of tbe club, nor any information of bis withdrawal therefrom. ■
    Tbe referee found, as conclusions of law, that tbe plaintiffs were entitled to judgment against the defendants Alexander Spaulding and Wilbam L. Simmons, and that tbe defendants Zacbariab E. Sim.m.ons and J. Howard Adams were entitled to judgment in their favor in this action, with costs against said plaintiffs.

      Stephen A. Wallcer, for tbe plaintiffs, as appellants and respondents.

      JS. M, Whitehead, for tbe defendants, as appellants and respondents.
   Davis, P. J.:

The appeal of the plaintiffs is from the judgment for costs entered against them by the direction of the referee in favor of the defendants Z. E. Simmons and Adams. These defendants were sued with the defendants "W. L. Simmons and Spaulding for an alleged joint cause of action. They did not put in separate answers, but appeared by the same attorneys, and united in the answer with all the other defendants in the action. The referee directed a judgment in their favor for costs, on the ground that the plaintiffs had failed to establish their liability for the cause of action sued upon. In Allis v. Wheeler (56 N. Y., 50), the Court of Appeals held that the provision of section 306 of the Code, as amended in 1851, regulates in all actions the whole subject of the allowance of costs to one or more of several defendants, who obtain judgments in his or their favor, while the plaintiff recovers costs against the other defendants, and that the conditions upon which defendants in such cases can have costs against the plaintiff are: 1. That the successful defendant be not united in interest with those against whom the plaintiff recovers. 2. That they make a separate defense by a separate answer; and 3, that the court award costs to the successful defendants. In respect of these defendants but two of these conditions, to wit, the first and third, are met. The second, that they make a separate defense by a separate answer, is not complied with. The effect of this condition is to deprive them of the right to costs. The referee had no power to award costs to them, and the judgment in their favor for costs must therefore be reversed.

The appeal of the defendants Spaulding and Simmons is from the judgment in favor of the plaintiff.

They were members of an unorganized body of gentlemen calling themselves the “"Worth Club.” This body had no constitution or by-laws, or articles of association. It comprised, however, more than seven members, and it had a president and treasurer at some time, if not all the time, during its continuance.

The appellants claim that this body was a joint-stock company or association, and could only be sued in the name of the president or treasurer under the statute of 1849, chapter 258, and the statute of 1851, chapter 455. If the “Worth Club ” were a company or association within the meaning of chapter 455 of the laws of 1851, still an action might be maintained against the individual members, because the provisions of chapter 153 of the Laws of 1853, which amended the act of 1849 so as to require an action against the joint-stock company or association, and an execution upon judgment to be returned unsatisfied in whole or in part before a suit could be brought against the shareholders of associations individually, do not apply to the cases provided for by chapter 455 of the laws of 1851. But, upon the facts appearing in this case, the “Worth Club,” so called, was not a joint-stock company or association within the meaning of the acts referred to. Its members remained at all times in that nebulous and inchoate condition, in which an aggregation of individuals, assuming a name under which they incur liability, are held personally liable for the benefit of creditors by the application of common-law principles. The referee has found a state of facts in this case upon which, we think, the present appellants are personally liable for the indebtedness to the respondent. The appellant, Spaulding, became a member of the club in the first part of December, 18Y1, and continued his membership as long as the club lasted. The appellant, William L. Simmons, was a member of the club at the time the account was first opened with the plaintiffs in the name of the club. He was one of the committee who made the first purchase of the plaintiffs, and he never notified the plaintiffs at any time of his withdrawal from the club. The goods thus purchased were sent to the club-house, and came into the possession of Richard AL Darling, the steward, who subsequently paid the plaintiffs the amount of that bill. He thereafter continued as such steward to act in making purchases from time to time in the name of the club; and, although a private arrangement existed by which the steward had agreed to make these purchases himself, and to furnish the articles to the members of the club on his own account, yet this arrangement was never communicated to the plaintiffs. Where such a body of gentlemen join themselves together for social intercourse and pleasure, and assume a name under which they commence to incur liabilities, by opening an account, they become jointly liable for any indebtedness thus incurred; and if either of them wishes to avoid his personal responsibility by withdrawal from the body, it is his duty to notify the creditors of such withdrawal; otherwise, if a creditor continues to furnish, in good faith, articles such as have been previously purchased for the use of the club, his responsibility will continue upon the same principle that holds retiring partners to liability for an indebtedness subsequently contracted with former creditors. These principles have been properly applied, we think, in this case, by the learned referee, and the judgment should be affirmed.

Brady and Daniels, JJ., concurred.

Judgment on plaintiffs’ appeal reversed.

Judgment on appeal of Alexander Spaulding and William L. Simmons affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    HUGH McCULLOCH and others, Respondents, v. ORRIN C. HOFFMAN, Impleaded with GEORGE J. HOFFMAN, Appellant.

      Bill of exchange —wa/nt of consideration — when it maybe shown — what evidence proper to establish it.

    In an action upon a MU of exchange against the drawer thereof, the latter may defeat the action by showing that there was no consideration therefor; except when it has passed into the hands of a bona fide holder for value before maturity.
    Where such defense is interposed, the defendant may show all that occurred at the time of the making of the bill, not to limit its effect or change its character, but to establish the absence of any consideration and the knowledge of the plaintiff of that fact.
    Appeal from a judgment, in favor of the plaintiff, entered on a verdict directed by the court.

      O. W. Brooke, for the appellant.

      T. Bl. Bvbba/rd, for the respondents.
   Davis, P. J.:

This action is brought upon a bill of exchange in the words and figures following:

£585.11.11. London, July 11, 1873.

On demand please pay to the order of Messrs. Jay Cooke, McOulloch & Co. (duplicate unpaid), five hundred and eighty-five pounds eleven shillings and eleven pence, value received, which place to account of

Or. J. HOFFMAN.

George Hoeeman, Esq. O. 0. HOFFMAN.

Pres. Irvmg National Bcmk, New York.

The defendant George J. Hoffman interposed no defense. The defendant Orrin 0. Hoffman put in an answer admitting his signar ture to the bill of exchange, and alleging as a defense, in substance, that the bill was given by the defendant George J. Hoffman to the plaintiffs for advances theretofore made by them to George; that after the bill had been made by George it was presented to him by one of the plaintiffs, who represented to him that it had been drawn for advances made to George by the plaintiffs; that the drawee, who was the father of both the defendants, had refused to make pecuniary advances to his son George J. Hoffman, owing to his alleged excesses and improprieties, and would probably not accept the draft, but would be more likely to do so should the defendant Orrin 0. Hoffman also sign his name; and that if his father did not accept it, it should never trouble the said Orrin 0. Hoffman personally, and that the defendant did so subscribe his name at the request of the plaintiffs, without any consideration whatever, and that the bill of exchange was altogether without consideration in respect to him.

On the trial of the action the plaintiff produced and read in evidence the bill of exchange, and proved, in substance, that the drawing thereof was unauthorized, and that the defendants had no funds in the hands of the drawee against which to draw, and rested.

On the part of the defense it was proved that the bill was given for the balance of an account of George J. Hoffman with the plaintiffs, and was executed by said George J. Hoffman a day or two before it was signed by the defendant Orrin 0. Hoffman, and that it had no consideration whatever except the indebtedness of said George J. Hoffman upon the balance of his account.

The defendant’s counsel then offered, in various forms, to prove the circumstances connected with the affixing of Orrin 0. Hoffman’s signature to the bill, and tbe giving of it by him, substantially as alleged in bis answer to tbe complaint. Tbis was excluded by tbe court on tbe ground tbat tbe defendant could not in tbat way contradict tbe bill of exchange; and exceptions were taken.

After proving tbat tbe bill of exchange was given for tbe balance of tbe account of George J. Hoffman, tbe following question was put to Orrin 0. Hoffman: “ What connection bad you, if any, with tbat account, in anyway?” This question was objected to; tbe objection was sustained, and an exception duly taken. Amongst other questions, also, tbe following were put to tbe defendant Orrin C. Hoffman: “ Will you state precisely what occurred and what was said at tbe time your signature was affixed to tbat draft, prior to tbe time and at tbe time your signatore was affixed ? ” “ What was said by Mr. Inlestonto you immediately prior to your affixing your signature to this draft, in consequence of which you signed it, if any thing ? ” “ Have you received any consideration for tbis draft, and were you a party to tbe transaction referred to in tbis account, for tbe balance of which it was given ? ” “ Where did you sign it ? ” “Was there any agreement made between tbe payees of tbat draft and yourself, in accordance with which agreement you signed tbe draft ? ” All these questions were objected to; tbe objections were sustained, and exceptions duly taken. In respect to tbe question first above quoted, tbe exception seems to have been well taken. Tbe defendant bad tbe right to show distinctly tbat be bad no connection with tbat account, although it appeared clearly tbat tbe bill was given for tbe balance of such account of bis brother. In respect to tbe other questions, tbe evidence seems to have been rejected upon tbe ground tbat tbe agreement sought to be proved was not in writing, and tbat they were an attempt to contradict by oral evidence tbe terms of a written instrument.

At tbe close of tbe evidence tbe defendant’s counsel asked tbe court to charge tbe jury, tbat if they found as matter of fact tbat no consideration passed to Orrin 0. Hoffman from tbe plaintiffs in tbis case, or from tbe person in whose favor tbe draft was drawn, tbat tbe verdict should be for tbe defendant Orrin 0. Hoffman, and not for tbe plaintiffs. Tbe court declined so to charge, and tbe counsel excepted. It is well-established law tbat a party may always show want of consideration to invalidate a contract. To tbis rule there is but a single exception, which is the case of a negotiable promissory note or bill of exchange, which has passed into the hands of a Iona fide holder for value before maturity. In such a case the want of consideration is no defense; but in every other case a total want of consideration is a perfect defense to an action upon any contract, whether verbal or written, and under our statutes sealed contracts are no exception to the rule.

For the purpose of establishing the defense of want of consideration, set up in the answer of Orrin 0. Hoffman, it was competent to prove the facts and circumstances under which his signature was put to the bill of exchange. This action is between the original parties to the instrument. The consideration was, therefore, open to inquiry, and the facts and circumstances, even if they make out an oral agreement, were admissible for the purpose of establishing a total want of consideration. It was not sought thereby to vary the terms of the agreement, except in respect to its statement of a consideration for the making of the paper; but it was sought to be shown that no consideration whatever passed or existed as between the defendant Orrin 0. Hoffman and the plaintiff, amounting to a sufficient consideration to uphold the bill.

In Benton v. Martin (52 N. Y., 570) it was said: “ Instruments not under seal may be delivered to the one to whom upon their face they are made payable, or who by their terms is entitled to some interest or benefit under them, upon conditions the observance of which is essential to their validity, and the annexing of such conditions to the delivery is not an oral contradiction of the written obligation, though negotiable, as between parties to it and others having notice. It needs a delivery to make the obligation operative at all, and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions with which delivery is made. And so, also, as between the original parties and others having notice, a want of consideration may be shown.”

There is no difficulty in the proper application of this rule, and its restriction to the subject under investigation, to wit, a total want of consideration and what transpired, at the time of making the paper, though it may not have been competent for the purpose of limiting the effect, or changing the character of the instrument itself, was, we think, certainly competent, as between the parties to the original paper, for the purpose of showing the absence of consideration, and the knowledge of the plaintiff that the paper was made wholly without consideration. We think the court was in error in excluding the several questions, and that such error was not cured by the fact that the evidence sought to be called out by the questions was obviously the same as that stated in the offers of the defendant’s counsel, which embraced in part the unwritten agreement that the bill, if not accepted by the drawee, should not be enforced against the defendant.

It is not necessary to pass upon the question arising upon the refusal of the court to charge as requested.

The judgment must be reversed and a new trial ordered, with costs to abide event.

Brady and Daniels, JJ., concurred.

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


text:
    JOHN BARNESCIOTTA, otherwise called JOHN GARIBALDI, and ANNIE SMITH, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment — misnomer — Plea in abatement — Demurrer —Nuisance—Disorderly house.

    Upon the arraignment of the plaintiff in error upon an indictment in which he was named “John Barnesciotta, otherwise called Garibaldi,” his counsel filed the following plea: “Now comes the defendant Barnesciotta and pleads to the indictment that he is not now, and never was, known by the name of Garibaldi, which he verifies,” to which plea the people demurred. Held,

    (1) That a demurrer was the proper mode of disposing of the plea;
    (2) That the plea was properly overruled, as the true name preceded the alias dietus.

    Upon the trial of an indictment for keeping a disorderly house, it is not necessary to show that it was so kept as to disturb the peace of the general public or of the particular neighborhood; it is sufficient if it be shown that it is a house of prostitution, open promiscuously, and to which large numbers of people resort for tho purpose of prostitution.

      Jacobowsky v. The People (6 Hun, 524) followed.

      Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiffs in error for keeping a disorderly house.

      Wm. F. Hintzing, for the plaintiffs in error.
    A house in law to be “ disorderly ” must be what is termed a common nuisance. It must affect those other than the inmates, and it must be laid in the indictment as a common nuisance. {Hunter v. Ooomnomwealth, 2 Serg. & Rawle [Pa.], 298; State v. Matthews, 2 Dev. & Bat., 424; United States v. Joumdine, 4 Cranch, 0. C., 338 ; Stewamt v. The Oommwnwealth, 1 Serg. & Rawle [Pa.], 342 ; 1 Bishop, Grim. Law, chap. 68, § 1106; 2 Wharton Am. Or. Law [1th ed.], § 2318; State v. Bank/, 1 Foster, 343; Olemtme v. State, 14 Mo., 112; State v. Stevens, 40 id., 559; Hackney v. State, 8 Ind., 494.) An indictment will not lie for that which is a nuisance only to a few inhabitants of a particular place. {Rex v. Lloyd, 4 Espinasse’s Rep., 200.) And the act must be, in some sense, public to be a nuisance of the indictable-kind. {State v. Wright, 6 Jones [N. C. R.], 25 ; State v. Hathcock, 1 Iredell [N. C.], 52; State v. Beans, 5 id., 603 ; State v. Bald/uein, 1 Dev. & Bat., 195 ; Lansing v. Smith, 8 Cowen, 146; People v. Sergeant, 8 id., 139; Turner v. The Trustees, etc., 5 Hill, 121; Brooks v. The State, 2 Yerger, 482; Oommormealth v. Webb, 5 Randolph, 312.)

      Bevy. K. Phelps, district attorney, for the defendants.
   Davis, P. J.:

The plaintiffs in error were indicted for keeping a disorderly house. The plaintiff in error John Barnesciotta was named in the indictment by that name, followed by the words, “ otherwise called Garibaldi.” On being arraigned, his counsel read and filed the following plea:

“Now comes the defendant John Barnesciotta, and pleads to the indictment, that he is not now, and never was, known by the name of Garibaldi, which he verifies.

“JOHN BARNESCIOTTA.

“Sworn this 25th day of “September, 1876.

“Wm. F. Howe,

Oommissioner of Deeds, H. 7~.”

The district attorney filed a demurrer to said plea, and the said plaintiff in error joined in demurrer. The court overruled the demurrer, and gave judgment thereon for the people. The demurrer was properly overruled. The true name preceded the alias dictas, and in such case a plea in abatement will not be sustained. (Reid v. Lord, 4 Johns., 118.) It was quite immaterial whether the plaintiff in error was ever known by the name of Garibaldi, and the indictment did not so aver. If his true name be John Barnesciotta, as the plea in abatement must be taken to admit, then the alias dietas becomes wholly immaterial, and Is not capable of working prejudice to the plaintiff in error.

Besides, the plea was defective in form. It does not aver the true name except argumentatively, and does not aver that he is not indicted by his true name; and it does not meet the averment of the Indictment, which is not that the defendant was known by the name of “Garibaldi,” but that “John Barnesciotta” was otherwise called “ Garibaldi,” which may be, and probably was, a nickname by which he was sometimes called by his associates. There is no reason for interference with the conviction or judgment on this ground. The demurrer was a proper mode of disposing of the plea on the record. (Rex v. Clark alias Jones, 1 D. & R., 43.)

The indictment was for keeping a disorderly house. Its averments in that respect were well enough. It is insisted, in substance, that the evidence was not sufficient to uphold the indictment, because it did not show that the house was a nuisance in disturbing the peace of the general public, or of the particular neighborhood. But a bawdy house may also be a disorderly house, and it is so whenever it is shown to be a house of prostitution, open promiscuously to the public, and to which large numbers of persons resort for purposes of prostitution. In Jacobowsky v. The People (6 Hun, 524), Daniels, J., said: “For that purpose it would have been sufficient to have shown that the prisoner kept a house of prostitution. Its direct tendency was to corrupt and deprave public morals, and disturb the peace, and for that reason it was a common nuisance. That has uniformly been held to be the law.” (1 Whart. Grim. Law,' § 2392; 1 Bui. Grim. Law, §§ 665, 1046; 1Y Rich, 80, and other eases cited.)

In this case the evidence not only showed that the house was kept as one of promiscuous prostitution, but for the most vile and indecent exhibitions for money, repeated many times daily, to which large numbers of “ strangers ” resorted. These exhibitions were of a kind too revolting for description, and nothing can be conceived more debasing or more strongly calculated to deprave and corrupt the public morals.

The learned recorder was right in charging in accordance with the ruling in Jacobowsky v. The People; and as that case was affirmed by the Oourt of Appeals, it must be regarded as the settled law of this State.

There is no rule of evidence which limits the proof to the exact day named in the indictment. It was entirely proper to show that the indecencies and prostitution were continuous and so far affected the large numbers of vile people who resorted there from day to day as to become a nuisance injurious to the whole public morals. The conviction and judgment must be affirmed.

Ordered accordingly.

Brady and Daniels, JJ., concurred.

Judgment and conviction affirmed.


text:
    J. DAVIS DUFFIELD and others, as Assignees, etc., of CHARLES T. YERKES & CO., Appellants, v. HARRY L. HORTON and DAVIS JOHNSON, Respondents.

      Ba/rilwuptcy proceedings — effect of, on attachment — liability of on# paying Mer money to sheriff unde/'.

    Ah assignment to an assignee, duly appointed, in proceedings under the bankrupt act, dissolves tbe lien of an attachment issued out of a State court, where the property of the bankrupt has been levied upon within four months of the commencement of such proceedings.
    Where, in such a case, the person owing to the bankrupt the money levied upon under the attachment delivers the same to the sheriff upon an execution issued upon a judgment recovered in said action, not knowing that an assignee in bankruptcy had. been appointed after the attachment and before the judgment, he is liable to such assignee for the value of the property so delivered.

      Miller v. Bulles (58 N. Y., 253) followed.
    Appear from a judgment in favor of the defendants, entered upon the trial of this action by tbe court, without a jury.

      Sidney S. Harris, for tbe appellants.
    Tbe filing of tbe petition in bankruptcy, followed by tbe adjudication of Yerkes as a bankrupt, dissolved tbe attachment issued in tbe suit of Bovwier v. Yerkes. (Bankrupt Act, 1867, § 14; Miller v. Bowles, 58 N. Y., 263; In re Preston, 6 Bankruptcy Reg., 545.) Bouvier bad no hen at tbe time be recovered judgment, and acquired none by tbe recovery of tbe judgment or tbe issuing of tbe execution. {In re Hinds, 3 Bank. Reg., 92; Edmeston v. Hyde, 1 Paige, 637; doming v. White, 2 id., 567; Oarroll v. Gone, 40 Barb., 220, affimd. by Ct. of Apps., 41 N. Y., 216.) Only liens are preserved. (Bump on Bank., 586 [8th ed.].) “When a judgment is not a lien by State law, it is not so treated by bankrupt act. {In re McIntosh, 2 B. R., 506 ; In re Oovart, 3 id., 508.) And tbis lien must attach before proceeding in bankruptcy. (1 B. R., 199-599 ; 2 id., 388 ; 1 id., 165 ; 1 id., 190.) Tbe defendants bad constructive' notice of tbe bankrupt proceeding. {People v. Bole, 38 He., 558 ; Oakey v. Oorry, 10 La. An., 502; In re lake, 6 Bank. Reg., 542; In re Grigg, 3 id., 131; Ex parte Yogel, 2 id., 138; In re Wynne, 4 id., 5.) Tbe plaintiffs can recover of defendants the amount due by them to Yerkes, disregarding tbe proceedings in Bouvier suit. {Stevens v. Mechanics’ Savings Bank, 101 Hass., 109; Mays v. Man. Hat. Bank, 64 Penn. St., 74; S. O., 4 B. R., 147; Bankrupt Act of 1867, §§ 14,15 and 16; Miller v. O’Brien, 9 Bankrupt Reg., 26; In re GrirmeTl, 9 id., 29-36; In re Hall, 2 id., 68.) Tbe plaintiffs, as assignees, succeed to tbe rights of creditors, as well as tbe rights of tbe bankrupt, and may contest tbe validity of a payment, although tbe bankrupt could not. {In re Metzger, 2 Bank. Reg., 114; Foster v. Hackley, 2 id., 131; Bradshaw v. Klain, 1 id., 146.) Congress has tbe power to divest tbe hen by attachment. (Bump on Bank. [8th ed.], 495, and cases cited; In re Brand, 3 B. R., 85; In re Wil-Uams, 2 id., 29; In re ElUs, 1 id., 154; In re Hornet, id., 98.)

      B. 'A. Wight, for tbe respondents.
   Davis, P. J.:

On the trial the court below found the following facts and conclusion of law:

1. I find that on the 18th day of October, 1871, one John Y. Bouvier commenced an action against Charles T. Yerbes, and on that day attachment was issued in said action, which was served on the defendants, who were then owing Yerbes the sum of $566.96.

“2. I find that on'the 10th day of November, 1871, a petition in bankruptcy was filed by a creditor of Yerbes in the United States Court for the eastern district of Pennsylvania against Yerbes, and such proceedings were had that, on the 13th day of December, 1871, Yerbes was duly adjudicated a bankrupt.

3. That on the 30th day of December, 1871, Bouvier recovered a judgment in his action against Yerbes.

“4. That on the 5th day of January, 1872, a warrant in bankruptcy was issued out of said court to the marshal of that court, to which the marshal made his return, which appears in evidence.

“5. That on the 23d of January, 1872, the plaintiffs were appointed assignees in bankruptcy of all the estate and effects of Yerbes by the same court, and on the 24th of January, 1872, the register in bankruptcy executed to the plaintiffs an assignment by them of all the property, effects, etc., of said Yerbes, which he had on the 10th day of Noyember, 1871.

“ 6. That the marshal published the warrant and notices relating to same, as appears by his return.

“ 7. That the plaintiffs published, as required by law, the usual notices of their appointment in four newspapers, three of which were published in Philadelphia and one in New York city, once a week for five weeks.

8. That all the'proceedings in bankruptcy were regular, and the usual notices in such proceedings were served and published as required by that act.

9. That on the 3d of January, 1872, the defendants paid to the sheriff of the city of New York the sum owing by them to Yerbes, to wit, $566.96, who then held an execution on said judgment in favor of Bouvier, issued to him on the said 30th day of December, 1871.

“ 10. That the defendants had no knowledge of the bankruptcy proceedings against Yerkes, until after tbe payment to tbe sheriff of the balance in their hands.

“ As conclusion of law, I find that the defendants are entitled to judgment, with costs.”

The only question in this case is as to the correctness of the conclusion of law that follows upon the findings. We think the case is controlled by Miller v. Bowles (58 N. Y. 253), where it was held that an assignment to an assignee duly appointed in proceedings under the bankrupt act, dissolves the lien of an attachment sued out of a State court, levied upon the property of the bankrupt within four months of the commencement of such proceedings.

In accordance with that ease judgment should have been ordered upon the facts found by the court in this case in favor of the plaintiff. There is no controversy as to the facts in the case, and no necessity for a new trial.

The judgment must, therefore, be reversed, and judgment directed for the plaintiff for the sum of $566.96, with costs of the court below and of this appeal, to be adjusted.

Brady and Daniels, JJ., concurred.

Judgment reversed; judgment directed for plaintiff for $566.96, with costs of the court below and of this appeal, to be adjusted.


author: Davis, P. J. :

text:
    THE LOANERS’ BANK OF THE CITY OF NEW YORK, Appellant, v. SAMUEL JACOBY and JONATHAN W. POTTLE, Respondents.

      Qorpwatwn — legal existence of — when party estopped from denying.

    In an action brought by the plaintiff against one Tigney to recover the possession of certain personal property; the defendants, to prevent the delivery thereof to it, gave a bond reciting the plaintiff’s claim and binding themselves for the delivery of the property to the plaintiff, if the delivery thereof should be adjudged in said action. In this action brought upon the said bond, after the recovery of a judgment by the plaintiff in the former action and the return unsatisfied of an execution issued thereon, the defendants sought to amend their answer by putting in issue the corporate existence of the plaintiff. Held,

      (1) That, in. the proper exercise of its discretion, the court should deny the application;
    (2) That by giving the bond and preventing the delivery of the property to the plaintiff in the former action, the defendants were estopped from denying its legal existence.
    Appeal from an order made at the Special Term, allowing the defendants to amend their answer by putting in issue the incorporation of the plaintiff.

      Robert Sewell, for the appellant.

      diaries Tracy, for the respondents.
   Davis, P. J. :

The plaintiffs commenced an action against "William H. Tigney and others to recover possession of certain personal property, which was taken by the sheriff of the city and county of New York, upon an affidavit and papers delivered to him for that purpose. Before the delivery of the property to the plaintiffs, the defendant in this action executed an undertaking entitled in that action, which recited the facts, in respect to the claim of plaintiffs, and the taking of the property by the sheriff, and that the defendant Tigney was desirous of having the property returned to the defendants m that action, and undertook and bound themselves for the delivery of the said property to the plaintiffs (if such delivery should be adjudged), and for the payment of such sum as might, for any cause, be recovered against the defendants in that action. The plaintiffs prosecuted that action to final judgment, and an execution upon the judgment against the defendants therein having been returned unsatisfied, they brought suit against the present defendants upon their undertaking. The defendants put in their answer in this action without putting in issue the corporate existence of the plaintiffs, and they moved to amend their answer at Special Term by inserting the plea of mil tiel corporation.' The court below granted the motion, and from the order granting the same the present appeal is taken.

The point made upon the appeal is that the defendants in this action, brought upon the undertaking set forth, are not at liberty to dispute the. corporate existence of the plaintiff. Ordinarily, the court would not interfere with the exercise of the discretion of the court below in allowing an amendment to the pleadings. But where it is clearly apparent that such amendment brings in an immaterial and improper issue in the action, the appellate court should interfere.

In this case, it seems manifest that the defendants ought not to be allowed to assert that the plaintiffs were not a corporation. By executing the undertaking in question, they prevented the plaintiffs from getting possession of the property, in the action brought to recover the same, upon proceedings in the nature of replevin, and caused its delivery by the sheriff to the defendants in that action. The plaintiffs recovered judgment against such defendants; but their judgment appeal’s to be unavailing, because of the act of the present defendants in depriving them of the property, by executing the undertaking upon which this suit is brought. Under such circumstances, it would seem to be grossly unjust to permit the defendants to deny the legality of the incorporation of the plaintiffs, especially after such incorporation had been proved and adjudicated in the action in which the undertaking was made. (Loaners’ Bank v. Tigney, MS. opinion of Brady, J.)

The defendants-have seen fit to answer in.such form as to admit the corporate existence of the plaintiffs, and they should be held to the effect of such answer. But it seems to us manifest also, upon authority, that the defendants are estopped in law from denying such corporate existence. The numerous authorities cited by the appellant’s counsel, establish a principle which seems to us applicable to the present case. (Connecticut Bk. v. Smith, 17 How., 487; Henriquez v. Dutch W. I. Co., 2 Ld. Raym., 1535; Dunn v. Van Hornton, 5 Hals., 270; Con. Society v. Perry, 6 N. H., 164; All Saints’ Ch. v. Lovett, 1 Hall, 213; John v. Farmers’ Bk., 2 Blackf., 361; Ryan v. Valandingham, 7 Ind., 416 ; Dutchess v. Davis, 14 Johns., 245 ; Hartrant v. Bk. of E., 2 Mo., 169 ; Hughes v. Bk. of Somersett, 5 Litt., 41; Worcester Med. List. v. Hardiny, 11 Cush., 285; Welland Canal v. Hathaway, 8 Wend., 480; U. S. Bk. v. Stearns, 15 id., 316; People v. Ravenswood Co., 20 Barb., 518.) The court on the trial would doubtless exclude the evidence under the proposed amendments, as immaterial, on the ground of estoppel.

The case should not, therefore, be embarrassed by any change in the pleading.

The order should therefore be reversed, with ten dollars costs, and disbursements to abide the event.

Beady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs, and disbursements to abide event.


author: Davis, P. J.;

text:
    THE PEOPLE ex rel. GEORGE PERAULT, Appellant, v. HENRY B. TURNER, Captain, etc., Respondent.

      Militia — dischm'ge from — when granted — Actual, and not constructive sm'vice of seven yem's, required.

    The relator, who had been duly enlisted in the State militia, was expelled from his company on the 8th of April, 1873, at which time he had about a year to serve to complete the seven years of service, required by the Military Code to entitle him to a discharge. Some three years after he was, by a writ of mandamus, applied for by him, restored to his company and reinstated in all his rights and privileges as a member thereof, as of the said 8th of April, 1873. Subsequently he applied for a mandamus to compel the captain of his company to grant a discharge on the ground that he was entitled thereto, upon the expiration of one year from the said 8th day of April, 1873. Meld, that the application was properly denied; that the statute requires actual, and not constructive, service, and that the relator was not, under the circumstances, entitled to count the time during which he was expelled from the company.
    Appeal from au order made at the Special Term, denying an application of the relator for a memdemms compelling the defendant, as captain of a company in the national guard of the State, to grant to the relator a discharge therefrom on the ground that he had served the time required by law.

      JET. H. Mormge, for the appellant.

      J. L. Price, for the resjiondent.
   Davis, P. J.;

Under the law in force at the time of the relator’s enrollment, he was required to perform service for seven years before he would be entitled to his discharge. (Laws of 1862J chap. 477.) Section 253 of the Military Code (Laws of 1870, chap. 80) continued this requirement, as also did the several subsequent amendments thereto. (Laws of 1875, chap. 223, § 59; Laws of 1876, chap. 29, § 3.) It is not disputed that, in point of fact, the relator has not performed seven years of service. He was expelled from his company on the 8th of April, 1873, at a meeting of the company, at which, it appears, the commandant did not preside.

The by-laws of said company required that the commandant, when present, should preside at all meetings. After the lapse of some three years the relator made application to be restored by mamdcm/us, and his application was granted, as it appears by the writ set forth in the .papers, on the ground that the commandant was present but did not preside at the meeting, and it was ordered by the court that the appellant be reinstated to all his rights and privileges as a member of the company, as of the 8th of April, 1873. At the time of his expulsion he had one year yet to serve before he could be discharged for expiration of service, and he now claims that he is legally entitled to his discharge, because more than the year which he would have been required to serve, if not expelled, has expired.

What the statute requires is actual, and not constructive, service. It is impossible to say that the relator has rendered actual service, and the great lapse of time has occurred by reason of his neglect to institute proceedings for his reinstatement forthwith after his illegal expulsion.

It does not appear by the relator’s affidavit that he, at any time during the period of his expulsion, tendered his services or took any steps which can be considered as equivalent to actual service; and it seems to us very clear that he had no legal right to delay till after the period of seven years from his enrollment, before the commencement of the proceedings for restoration, and then insist, as matter of strict legal right, that his deprivation of membership in the company was equivalent to actual service therein.

The court below was right in denying his application on the merits. It could have been properly denied upon technical grounds, but it is not necessary to consider such grounds.

The order of the court below should be affirmed, with ten dollars costs, besides disbursements.

Beady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs, and disbursements.


text:
    SAMUEL ROSENBACK v. THE MANUFACTURERS AND BUILDERS’ BANK.

      Deposits made by savings banks — preference in payment of, given by § 48, chajp. 871 of 1875 — Receiver cf bank — when estopped, from, questioning acts of officer's of.

    Section 48 of chapter 371 of 1875, providing that all the assets of any insolvent bank shall, after the payment of its circulating notes, be applied to the payment of any moneys deposited with it by any savings corporation, applies only to deposits, properly so called, and not to any other form of indebtedness.
    The receiver of an insolvent savings bank applied, under said section, for an order directing the receiver of the M. and B. Bank to pay over a sum of money, the amount of a call loan alleged to have been made by the unauthorized acts of the officers of the savings bank in converting a deposit for that amount into a loan to the M. and B. Bank. Held, that as the savings bank had received collateral security for the loan, and payments on account of the principal and interest thereof from theM. and B. Bank, the receiver could not now repudiate the whole transaction and treat the loan as a deposit within the meaning of said section.
    Appeal from an order made at the Special Term denying an application made by the receiver of the German Up-town Savings Bank, under section 48 of chapter 371 of 1875, to compel the receiver of the Manufacturers and Builders’ Bank to pay over to him the sum of $28,887.42, alleged to be the balance of a deposit made by the savings bank.

      Mam, <& Pa/rsons, for the appellant.

      Flcmaga/n c§ Bright, for the respondent.
   Davis, P. J.:

Herman Uhl, as receiver of the German Up-town Savings Bank, applied by petition to tbe court below for an order directing 'William A. Butler, receiver of tbe Manufacturers and Builders’ Bank, to pay to him $28,887.42, the balance of an alleged deposit made by tbe savings bank in tbe Manufacturers and Builders’ Bank. Tbis apphcation was made under section 48 of chapter 371 of tbe Laws of 1875 (Session Laws of 1875, pp. 404, 415).

That section provides that “ all tbe assets of any bank or banking association, now or hereafter organized, that shall become insolvent, shall, after providing for tbe payment of its circulating notes, if it shall have any, be applied by tbe directors, assignee or receiver thereof, in tbe first place to tbe payment in full of any sum or sums of money deposited therewith by any savings corporation.”

It is obvious that tbe provision of tbis section is applicable only to deposits properly so called, and not to any other form of indebtedness between tbe corporations named.

Tbe receiver of tbe Manufacturers and Builders’ Bank, in answer to tbe petition, alleged in substance that all deposits made in such bank by tbe German Up-town Savings Bank bad been paid in full by him out of the- assets that came into bis bands, and that tbe amount mentioned in tbe petition was not a deposit, but was tbe balance of a call loan of $40,000 made by tbe savings bank to tbe Manufacturers and Builders’ Bank, for which collaterals w;ere deposited with tbe savings bank.

Two questions are presented in tbe case. Tbe first is one of fact, to wit: whether tbe sum demanded .by tbe petitioner was a deposit made in tbe usual way by tbe savings bank, or a call loan secured by collaterals, as alleged by tbe receiver of tbe Manufacturers and Builders’ Bank.

The second is a question of law, arising upon tbe alleged unauthorized acts of tbe officers of tbe savings bank in changing tbe deposit to a call loan. Tbe court below found that tbe transaction was in fact a call loan, as tbe transaction was made between tbe officers of tbe two banks as a call loan, and was intended to be a loan upon seven per cent interest, seemed by collaterals deposited with tbe savings bank, and payable on demand. Tbe evidence certainly justified this finding. Tbe books of both banks treated tbe transaction as a call loan.

A payment of $5,000 upon it was made by a check of tbe Manufacturera and. Builders’ Bank (an unusual mode, certainly, of paying deposits), which, described the indebtedness for which it was given as a call loan. All their acts in relation, to the transaction before the insolvency of the respective banks treat it as a call loan.

But it is claimed that this was effected by changing the amount from a deposit in the bank to a loan, by the unauthorized act of certain officers of the savings bank.

The precise mode in which this was done does not appear very clearly in the papers; but it does appear that the $40,000 was deposited by the officers of the savings bank in the Chatham Bank, to the credit of the Manufacturers and Builders’ Bank, and that this sum was placed by the officers of the latter bank in its loan account to the credit of the savings bank.

If it be true that this was a mere change of a deposit of the savings bank in the Manufacturers and Builders’ Bank, to a call loan, it, nevertheless, whether authorized or not, in point of fact reduced the deposit of the savings bank, and changed the amount withdrawn therefrom, into a call loan. The question of the legal right or authority of the officers of the savings bank to make this transaction, does not seem to be an important one, because by their acts they have changed the deposits into a loan, as completely and effectually as though clothed with full authority.

The savings bank received the advantages of the collateral securities ; of the increased interest, and of the payment made upon the call loan; and it is too late after the insolvency of both banks has occurred, for the petitioner to overhaul and repudiate the transaction for the purpose of converting the loan back to a deposit, on the ground of want of authority in the officers of the savings bank, and thereby securing the statutory preference over all the other creditors of the Manuf acturers and Builders’ Bank; whatever remedy he may have against such officers for the abuse of their powers, or •against the officers of both banks for any fraudulent arrangements to the prejudice of the creditors of the savings bank, he cannot, we ' think, go so far as to insist that a call loan illegally made, shall be deemed a deposit within the meaning of the forty-eighth section of the act above referred to.

"We think that the court below arrived at a correct conclusion in this case, and that the order should be affirmed, with teu dollars costs and disbursements.

Beaut and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    THE PEOPLE ex rel. STEPHEN MURPHY v. FREDERICK G. GEDNEY, Justice, etc., Respondent.

      Lease — demised premises — alley-wa/y — when included in — Curtilage — meaning of— when it passes —■ Statement of landlord as to demised premises — when admissible— Implied covenant for quiet e/wjoyment in lease — Bmction — su/mma/i’y pyroceedings — Quamtiu/tp, meruit.

      The plaintiff’s assignor demised to the defendant “the house No. 324 East Fifty-eighth street, in the city of New York.” At the time of the demise an alleyway, some five feet in width, ran along the side of the house to a door opening thereon, and to the coal sheds in rear thereof; said alley-way being separated from the adjoining premises by a fence. At the time of the demise, the alleyway was pointed out by the lessor as a portion of the demised premises. The plaintiff, having acquired the rights of the lessor in said lease, erected a building upon the adjoining lot, of which he was the owner, which encroached upon the alley-way some forty-eight inches, thereby Injuriously affecting the approach to the door and sheds, and the light and ventilation of the house. Summary proceedings having been instituted to remove the tenant for nonpayment of rent; held,
    (1) That the plaintiff had no greater rights than had his assignor, and- that his right to maintain the action was not strengthened by the fact that he claimed to be the owner of the portion of the alley upon which the building was erected;
    (2) That the alley-way formed a portion of the demised premises;
    (3) That, by the erecting of the building thereon, the tenant was evicted from a portion of the said premises;
    (4) That the plaintiff could not maintain an action to. eject him for non-payment of rent.
    . Upon the grant or demise of a house the curtilage or garden thereof will pass, even though the words “with the appurtenances” are not contained in such grant or demise.
    By the curtilage of a house is meant the courtyard in the front or rear, or at the side thereof, or any piece of ground lying near and enclosed and used with the same and necessary for its convenient occupation.

      In an action to eject a tenant it is competent to prove the statements of the landlord made at the time of pointing out the demised premises, for the purpose of identifying the subject of the lease.
    Although a lease contains no covenant of quiet enjoyment, yet there is an implied covenant on the part of the lessor to do no act which will evict the tenant from any substantially valuable portion of the premises.
    Where a tenant has been evicted by the landlord from a portion of the demised premises of substantial value, he cannot be evicted in summary proceedings for non-payment of rent so long as such eviction continues.

      Quasre, as to the right of the lessor to bring an action upon a guamtmm meruit to recover the value of the premises still occupied by the tenant.
    Certiorari to review proceedings had before the respondent, a justice of the District Courts in the city of New York, in summary proceedings between landlord and tenant.

      Julien F. Frnies, for the relator.

      Albert Matthews, for the respondent.
   Davis, P. J.:

On the first day of June, 1874, Mary Devlin demised, by lease under her hand and seal, to Stephen Murphy, premises described in said lease as “the house No. 824 East Fifty-eighth street, in the city of New York,” for the term of one year, at a yearly rent of $800, payable monthly in advance; and agreed in the lease that the lessee might, at his option, continue in said premises for five years from the first of June, 1875, at the same rent; and that she would put and keep said premises in repair during the term. The lease contained a covenant of re-entry in case of default in payment of rent. Murphy exercised his right of option to continue the lease for the additional five years; and on May 31st, 1876, Mary Devlin assigned the lease, and all rents to accrue thereunder, to John McKim. McKim, as such assignee, instituted proceedings before the respondent, to remove Murphy from the possession of the premises, for non-payment of two months’ rent, which fell due on the first of October and November, 1876, alleging a demand of the rent and default in the payment thereof, and.that Murphy and his subtenant continued to hold over and have possession without permission after such default.

The usual summons was thereupon issued by the respondent ; and on the return day of the summons Murphy appeared and made affidavit denying that the rent claimed in the affidavit of McKim was due, and setting forth that McKim had wrongfully entered upon the demised.premises and taken possession and evicted the tenant from a strip of ground thirty feet in length and three feet four inches in width, extending across the lot; and had placed thereon a building; that the portion so taken was a passage-way leading from the street to a door at the side of the house, and to the coal and wood-house back of, and belonging to the said house; and that by reason of placing the building thereon the tenant was deprived of such way leading from the street, and of the use of the door at the side of the house; and that the light and ventilation of the said house on the side next adjoining the building were shut off; that McKim has since continued in possession of the strip of land, and that no part of the rent was due from the tenant at the time of the entry and erection of the building by McKim; and he, in substance, claimed that no rent was due in consequence of such eviction.

It was proved at the trial, that at the time Murphy leased the house of Mrs. Devlin, there was an alley-way, or side entry, about five feet wide, and a side stoop leading to the side entrance of the house, and that Mrs. Devlin pointed out to the tenant .this alley as a part of the property she was leasing; that the alley-way was closed in by a high fence between it and the adjoining lots ; that there was a fiag walk in the center of such way, and that such passage extended back of the rear of the house about twenty feet; that the fence between it and the adjacent premises was seven or eight feet high; that there was a gate in front of the alley-way with a lock and key, which was kept by the tenant, and wooden steps from the door on the side of the house down to the alley-way; that the tenant took possession of the premises, including this alleyway, and he and his subtenant continued to enjoy the same until McKim, after the assignment of the lease to him, took down the fence and erected the building, which occupied forty-two inches in width of the alley-way, thirty or thirty-eight feet in depth, leaving eighteen inches in width only of the passage-way, and taking away the stoop; and that the building excluded light and air to some extent from the house; and that this building was placed there against the objections of the. lessee.

In this proceeding McKim, as assignee of the lease, occupies precisely the same relation towards the tenant as the original landlord under the lease, and can only enforce the provisions of the lease to the same extent Mrs. Devlin could have done if she were the complainant in the proceedings to remove the tenant.

The point is made that the lease made by Mrs. Devlin does not include the alley-way described in the affidavit of Murphy, but by its language is limited to the land covered by the house. The language of the lease is, “ house No. 324 East Fifty-eighth street,” and nothing is said concerning appurtenances or privileges of any character. This, however, is altogether too narrow a construction of the instrument. The piece of ground constituting the alley-way was inclosed with the house by a high, board fence, and was in the possession of Mrs. Devlin; it was occupied in part by the stoop leading to the side-door of the house and by a walk of flagging extending to the gate on the street, and it appears without dispute to have been pointed out to the lessee as a part of the demised premises. There seems to be no doubt that, by the grant or demise of a house, the curtilage, or garden, will pass without the words with the appmtenances ” being added. The curtilage is the courtyard in the front or rear of a house, or at its side, or any piece of ground lying near inclosed and used with the house and necessary for the convenient occupation of the house. (Bacon’s Abridgment, title “ Grant,” 1 and 3; Clements v. Collins, 2 T. R., 502.)

It was competent to prove the statement of the landlord, made at the time of pointing out the demised premises, for the purpose of identifying the subject of the lease. (Knapp v. Warner, 57 N. Y., 668 ; Hope v. Balen, 58 id, 380; Pettit v. Shepard, 32 id., 97.)

There was no covenant of quiet enjoyment in the lease, but the lessor was bound by an implied covenant to do no act which would evict the tenant from any substantially valuable portion of the premises. (Taylor’s Landlord and Tenant, §§ 304, 318 ; Mayor, etc., v. Mabie, 13 N. Y., 151; Vernam v. Smith, 15 id., 327 ; Mack v. Patchin, 42 id., 171.)

There seems to be no reason to doubt that if the lessor, Mrs, Devlin, had entered upon and taken possession of the alley-way, against the objection of tbe tenant, and deprived him of tbe use thereof by the erection of a permanent structure thereon, it would have been an eviction on ber part in violation of tbe rights’ of tbe tenant under tbe lease.

Tbe assignee, MeNim, so far as relates to tbis proceeding under tbe lease, comes precisely into ber position and is subject under tbis proceeding, wbicb is predicated altogether upon tbe right of re-entry given by tbe lease, to tbe same defense that would have existed against ber were she seeking tbe same remedy. Tbe fact, therefore, wbicb was admitted in proof, that MeNim was the owner in fee of tbe land adjacent to these premises, and of tbe ground taken possession of by him in erecting tbe new bouse, seems to us immar terial in tbis controversy, for in tbis proceeding be can be regarded in no light except those wbicb spring out of bis relation as landlord, under and by virtue of tbe assignment of tbe lease made by Mrs. Devlin to him.

Upon tbe evidence, therefore, it was a case in wbicb tbe tenant bad been evicted by tbe landlord, against bis objection, from a substantial portion of tbe demised premises. According to a long line of authorities such an eviction precluded tbe recovery of rent accruing subsequent to tbe eviction and while it continues. (Lawrence v. French, 25 Wend., 443 ; S. C., 7 Hill, 519 ; Edgerton v. Page, 20 N. Y., 283 ; Christopher v. Austin, 1 Kernan, 217; Pendleton v. Dyett, 4 Cow., 581; Peck v. Hiler, 24 Barb., 178.)

Tbe tenant having ceased by tbe act of bis landlord to become legally bable for tbe rent, by a permanent occupation operating as an utter exclusion from a portion of tbe demised premises, tbe proceedings to remove him for non-payment of rent, cannot, we think, be upheld upon any sound principle of law.

We do not intend to pass upon tbe question whether tbe tenant may be liable in an action upon a gua/ntwm meruit, for tbe occupation of a portion of tbe premises; nor whether the landlord in tbis case, upon, bis paramount title, may institute other proceedings to recover possession, independently of thé lease, based upon bis rights as owner in fee. We go no further than to bold, that in tbis proceeding, in wbicb be can insist upon no right superior to those wbicb tbe assignor of tbe lease could have claimed, tbe defense of eviction is complete.

The proceedings must be reversed, and a judgment of restoration entered in favor of the relator, with costs against the landlord.

Brady and Daniels, JJ., concurred.

Proceedings reversed; judgment of restoration ordered in favor of relator, costs against the landlord.


text:
    HENRY R. WILKINSON, Respondent, v. JAMES GILL, Appellant.

      Lottm'ies — what are — 1 It. 8. [Mdm. ed.], 619, § 82.
    The defendant sold to the plaintiff slips of papers containing numbers, upon which if such numbers were drawn in the Kentucky State Lottery he would be entitled to receive certain sums of money. Held, that the sale of those numbers was in fact the sale of an interest in, or "portion of an illegal lottery” set on foot by the defendant, within the meaning of section 32 of 1 Revised Statutes [Edm. ed.], 619.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    This action was brought by the plaintiff to recover back money paid for lottery tickets, and for shares, interests and prizes, or rights to prizes dependent on the drawings of the Kentucky State Lottery.
    It appeared from the evidence, that the defendant kept an office on the corner of Pearl and Chatham streets, in the city of New York, where he acted as policy dealer, and dealt in lottery'tickets.
    There the plaintiff purchased of him, in 18J2, lottery tickets, which, if they drew prizes, were there presented to the defendant and the money received by the plaintiff. The prizes depended upon the drawing of the Kentucky lottery. If one number on plaintiff’s ticket was drawn in the lottery, it entitled him to a certain sum ; if two of the numbers were drawn, he got a much larger sum, and so on in proportion, but if no number on his ticket was drawn, he lost his money and got nothing. By the sale of such tickets it was alleged that the defendant got from the plaintiff $3,601.08.
    The jury found a verdict in favor of the plaintiff for $1,122.16.

      Gharries Matthews, for the appellant.

      M H. Berm, for the respondent.
   Davis, P. J.:

This action is brought under section 32, part 1, chapter 20, article 4, title 8 of the Devised Statutes (1 D. S., p. 667), -which is as follows:

“ § 32. Any person who shall purchase any share, interest, ticket, certificate of any share or interest, or part of a ticket, or any paper or instrument purporting to be a ticket or share or interest in any ticket, or purporting to be a certificate of any share or interest in any ticket, or in any portion of any illegal lottery, may sue for and recover double the sum of money, and double the value of any goods or things in action, which he may have paid or delivered in consideration of such purchase, with double costs of suit.”

On the trial, the jury rendered a verdict for the plaintiff for $1,422.76. The defendant appealed from the judgment entered thereon, and from the order of the court denying the motion for a new trial.

The exceptions to the charge were not sufficiently specific to raise any question for review. It does not appear by the case that the motion to set aside the verdict was passed upon at all by the court below. The motion to dismiss the complaint was properly denied, because there was in the case evidence tending to establish a cause of action. Whether it was sufficient to cover the whole amount demanded by the complaint, or a smaller sum, was not material upon such a motion. We think there was no error in admitting evidence of the destroyed tickets or policies. The testimony shows that the defendant sold to the plaintiff, from time to time, divers numbers, or slips of paper containing numbers, upon which he would be entitled to receive certain sums of money if such numbers were drawn in the Kentucky State Lottery. These numbers were called, in the slang phraseology of the defendant’s business, “ gigs,” “ horses ” and saddles.” But the name is, of course, of no importance; the statute looks at the substance of the thing. In our opinion, the sale of these numbers was, in fact, the sale of an interest in or portion of an illegal lottery ” set on foot by the defendant, the drawings of which were dependent upon the drawings, of the Kentucky lotteries ; and that the transactions wei’e within the statute upon which the action is brought, and the plaintiff was entitled to recovex’ back his money. (Hull v. Ruggles, 56 N. Y., 424 ; Governors of the Alms-house v. The American, Art Union, 7 id., 228.)

Judgment should be affirmed.

Beady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    THE PEOPLE ex rel. GEORGE WILLIS v. THE JUSTICES OF THE COURT OF SPECIAL SESSIONS, Respondents.

      Criminal lam — evidence of a/nother distinct crri/me,for purpose of showing intent— admissibility of.

    The plaintiff in error was tried and convicted of petit larceny, the offense having been committed while the complainant was changing a ten dollar bill for him on January 20, 1876. Upon the trial the prosecution was allowed to prove that he had attempted to commit the like crime in the same manner on the 29th of February, 1876, in order to prove intent. Held, that the .evidence was inadmissible.

      Weymcm v. People (4 Hun, 511); Bielschofslcy v. People (3 id., 40) distinguished.
    Certiorari, to review the conviction of the relator of petit larceny by the Special Sessions.
    The evidence on the part of the prosecution tended to show that, on the twentieth of January the jfiaintiff in error entered the complainant’s place of business and requested change for a ten dollar bill. Complainant gave him a five dollar bill and five ones, and relator said, “Won’t you give me a good five dollar bill; I want to send it in a letter ? ” Complainant ojxened his drawer again and gave him a clean one, when he said: “ Can you give me a stiff one ; a new one ? ” Complainant did so, and relator said: “ That will do,” and took it. Complainant said: “ You are going to give me five dollars, aint you ? ” and the prisoner replied that he had done so. ' In the confusion of tbe transaction tbe complainant was perplexed about tbe precise nature of tbe transaction, and tbe relator went out before complainant was quite certain wbetber or not be bad lost tbe bill.
    Upon tbe trial tbe prosecution was allowed to prove tbat tbe relator, on tbe twenty-ninth of February, attempted to play tbe same trick upon one Meyer, living in Greene street..
    • Wm. F. Howe, for tbe relator.

      B. K. Phelps, for tbe people.
   Davis, P. J.:

On tbe trial evidence was given tending to show tbat tbe relator, on tbe 20tb January, 1876, committed tbe crime of petit larceny of tbe property of one Poden, charged in tbe complaint.

Evidence was then offered, on tbe part of tbe respondent, tending to prove tbat tbe relator committed, or attempted to commit, tbe like crime of larceny of tbe property of one Meyer, on tbe 29th of February, 1876.

This evidence was objected to by tbe relator’s counsel.

Tbe objection was overruled and an exception was taken.' Tbe court received tbe evidence, on tbe ground tbat it tended to show tbe intent. After tbe evidence was in, tbe relator’s counsel objected, upon the ground tbat it is a circumstance wbicb occurred between tbe defendant and another, at an entirely different place ; tbat it is an entirely different offense, if any.”

He therefore asked tbat it be stricken out; tbe court below overruled tbe objection and denied tbe motion. No connection whatever was shown between tbe transactions, and tbe ’ latter took place more than a month after tbe former. Tbe cases cited by tbe counsel for tbe people (Weymans Case, 4 Hun, 511; Bielschofsfky Case, 3 Hun, 40), were eases in wbicb tbe other transactions admitted in evidence were connected more or less directly with tbe particular transaction charged against tbe accused.

They were intimately related both in point of time and in matter of fact, and were therefore held to fall within tbe rale wbicb permits evidence of other offenses for tbe purpose of establishing intent.

In The People v. Copperman (56 N. Y., 593), it was held tbat it was not competent upon tbe trial of one offense, to prove that the prisoner committed another not connected with it.

The true rule is laid down with great clearness by Daniels, J., in Weyman v. People (4 Hun, supra), and it requires that the transactions shall be so connected as to time, and so similar in their other elements, that the same motive may reasonably be imputed to them. And he extended this rule to cases of larceny. In this case, however, the offenses were distinct and independent of each other, and the most that the second one tended to prove was a propensity in the prisoner to commit the crime of larceny. It was error, under the circumstances, to receive the evidence, and the judgment must be reversed.

Beady and Daniels, JJ., concurred.

Judgment reversed.


text:
    JOSEPH SPEARS and WILLIAM C. SPEARS, Appellants, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, JOHN MATTHEWS and EZEKIEL R. THOMPSON, Respondents.

      Opening of Broadway in New York — chap. 890 of 1869 — Assignment of interest in an awa/rd — when trust created by — successive assignments — Notice.
    In proceedings instituted under chapter 890 of 1869, to widen and straighten Broadway, an award of $40,000 was made to the defendant Thompson as the owner of a leasehold interest in several lots taken hy the commissioners, and confirmed hy the court December 28,1870. On December 31,1870, Thompson, by an instrument in writing, sold and transferred to the plaintiff’s assignor $12,262 out of the said award, and covenanted therein that an award, exceeding in amount $12,262, had been made to him by the commissioners and confirmed by the court; that there were no liens thereon ; that he had done and would do nothing to prevent the collection of said amount, and authorized said assignee to demand, .receive and receipt for the said sum, and also authorized the comptroller or chamberlain of the city to pay the same.
    Subsequently the Special Term of this court, under chapter 57 of 1871, vacated and set aside the said report, and appointed new commissioners to make a new assessment both as to awards for damages and appraisements for benefits. In these proceedings an award was made to Thompson of $11,544, which was subsequently confirmed, by this court. Held, that the assignment, with the covenants therein contained, created between Thompson and his assignee, the relations and all the obligations of a trust which a court of equity would enforce upon any specific award of damages which might be made for Thompson's leasehold interest in the premises, even though the award referred to and described in the assignment had been set aside.
    On the 11th of January, 1871, and prior to the setting aside of the $40,000 award, Thompson executed a mortgage to one M. upon the lease and leasehold premises taken for said widening, for $12,350 and interest, which said mortgage was duly recorded, and at the same time assigned the said sum of $12,350 out of the $40,000 award. At the time of taking the mortgage M. had knowledge of the prior assignment. Held, that the claims of the first assignee upon the amount finally awarded were superior to those of one claiming under the mortgage and assignment to M.
    Appeal from a judgment dismissing the complaint of the plaintiff, with costs.

      JEot. Taft, for the appellants.

      II. IE. Da/oies, for the respondents.
   Davis, P. J.:

Pnder the provisions of chapter 89(3 of the Laws of 1869, proceedings were taken for the widening and straightening of Broadway, between Thirty-fourth and Fifty-ninth streets, in the city of New York. At that time the defendant Thompson was the owner of the leasehold interest in several lots of land which were taken under such proceedings. The commissioners of estimate and assessment, awarded to Thompson, as compensation for such taking, the sum of $10,000; and this award was confirmed by the Special Term of this court on the 28th of December, 1870; afterwards and on December 31, 1870, Thompson, by an instrument under his hand and seal, which described himself as lessee of the premises on Broadway, for a good and valuable consideration, sold, assigned, transferred and set over to one Abram Y. Davis, his representatives or assigns, the amount of $12,262, out of the award made to him on account of loss and damage to said premises, occasioned by the widening and straightening of said street, and the assignment contained a covenant that a sum exceeding the said sum of $12,262 had been awarded to him by the commissioners on account of such loss and damage done to said premises, and that such award had been confirmed by the Supreme Court; that said award was made to him as lessee of said premises, and that there were no existing liens on said award; and that he had not done and would not do any act or thing to prevent the collection of said claim to the amount of $12,262; and he authorized such assignee to demand and sue for, collect and receive, receipt for and sign his name to any papers that might be necessary to procure the payment of the said sum, out of the amount of said award; and also authorized the comptroller or chamberlain of the city to pay said assignee that sum out of the amount so awarded to him. On the 28th day of January, 1871, Davis assigned all his right, title and interest in said assignment, to the plaintiffs. On the 11th of January, 1871, the defendant Thompson executed and delivered, to the defendant Matthews a mortgage upon the lease and leasehold premises so taken for the widening of Broadway, to secure to him the sum of $12,350, and interest, which mortgage was duly recorded in the office of the register of the city, and at the same time and for the same consideration, Thompson also, by an instrument under his hand and seal, assigned the said sum of $12,350, out of said sum of $40,000 so awarded to him, by the report and confirmation above set forth. At the time this mortgage and assignment were made and delivered by Thompson to Matthews, Matthews had notice of the fact, that Thompson had made the above mentioned assignment to Davis. Subsequently and under the provisions of chapter 57 of the Laws of 1871, passed February 27, 1871, the Special Term of this court vacated and set aside the order of confirmation of the report of the commissioners of estimate and assessment in the matter of widening and straightening Broadway, and appointed other commissioners who were directed to proceed to amend and correct the report made to the court, and to make a new assessment, both as to awards for damages and appraisements for benefits, and to report the same to the court.

Such proceedings were thereupon had, that a new report was made by the new commissioners which was confirmed on the 5th day of July, 1872, and the damages to the defendant Thompson, on his leasehold premises, taken for widening and straightening Broadway were estimated at the sum of $11,544, and the commissioners reported that said award of $11,544, was subject to the mortgage from Thompson to Matthews. The plaintiffs asserted their claim by reason of the assignment of Thompson to Davis, and of Davis to them, as above stated, and made application to the city authorities at the proper time for the payment to them of said sum of $11,514, which such authorities refused to make. They thereupon commenced this action, impleading the city with Thompson and Matthews, before any portion of the money had been paid out of the treasury.

It is objected that this action will not lie because the plaintiffs would have a perfect remedy at law, under the act of 1813, against Matthews, after the moneys should have been paid to him, if their title thereto be superior to his. But this objection, we think, does not prevent the institution of the proceedings in this case to determine the right to the fund, before its payment by the city to any one. The vacating of the order confirming the first award of damages and the appointment of new commissioners to make new estimates and assessments, left the original proceedings for widening and straightening Broadway in full vigor. The leasehold interest of Thompson, which had been taken for that purpose was still regarded as taken, and the only question open to the new commissioners was a reconsideration of the amount to be awarded, as the just compensation required by the Constitution and laws of the State.

The new proceedings were in substantial analogy to the perfecting of an assessment of damages, after a judgment wherein the rights of the parties have been fixed, and the question of damages alone remains to be determined.

The first question to be considered is, what are the rights of the plaintiffs as assignees of Davis, as against Thompson his assignor, to whom these several awards were made; and in considering that question we may properly exclude all questions affecting the defendant Matthews.

The assignment to Davis, of a specified portion of the award, after its confirmation by order of the court, accompanied by the covenants above mentioned, we think, as between Davis and Thompson, created the relation, and all the obligations of a trust, which a court of equity would have enforced as between them, upon any specific award of damages upon the leasehold interest, notwithstanding the one referred to and described in the assignment had been set aside or vacated. The substance of the thing assigned and affected by the covenants was not the particular award, but the portion of that or any award that should be made for the damages resulting from the taking of Thompson’s land by the city, in the proceedings pending for that purpose. These damages had become, and but for the subsequent action of the court and the new commissioners, would have remained fixed and absolute at $40,000. It has been adjudged that the proceedings of the court, and the act of the legislature under which these proceedings were taken, were constitutional and therefore to be upheld. (Matter of Broadway, 61 Barb., 483; S. C., 49 N. Y., 150 ; Garrison v. Mayor, etc., 21 Wallace [U. S.], 196.)

The vacating of the former proceedings did not therefore set back the rights of Thompson in the leasehold premises, to the position in which they stood before any proceedings for widening and straightening Broadway were taken, but left them subject to all rights seemed to the city by the pending proceedings, and subject to a readjustment of his compensation for loss and damage. If the question, therefore, in this case arose between himself and his assignee, Davis, or the plaintiffs, there would seem to be no reasonable ground for saying that a court of equity would not grasp the substance of the thing rather than the shadow, and hold it to be impossible for Thompson, who retained the leasehold interest, to shake off the rights of Davis under the assignment by virtue of any thing in the proceedings for a reassessment.

On the contrary, equity would hold that that assignment attached, as against Thompson, to whatever amount of any appraisal of such damages made in the new proceedings would be necessary to satisfy the assignment to Davis. And even if the whole proceeding had been abandoned by the city, and Broadway had not been widened, and the leasehold property of Thompson not taken at all, there would, we think, be no difficulty in charging the amount specified in the assignment, as a specific lien upon the leasehold property, in the nature of an equitable mortgage, to be enforced against Thompson by a court of equity. Doubtless, when Thompson executed the second assignment to the defendant Matthews, and made a mortgage of the leasehold property to secure payment of the amount then assigned, it was supposed by all parties that the compensation was fixed by tbe confirmation, of tbe court, and that there would be enough, and more than enough, to pay both assignees in full. Neither of the parties anticipated the subsequent action of the legislature and of the courts ; and neither supposed that the sum to be awarded would not be adequate to protect and pay both assignees.

Under such a state of facts, it seems quite clear that if Matthews, in taking the second assignment and mortgage, had acted without notice of the assignment to Davis, and in good faith for a valuable consideration, his mortgage upon the leasehold property, and the record thereof, would have given him the priority by reason of his greater vigilance in fortifying his assignment by a mortgage of the leasehold property. But the court below has found, and there seems to be no reason to doubt the correctness of the finding, that when Matthews took his assignment and mortgage he knew and had full notice of the prior assignment by Thompson to Davis; and it is a just and fair inference that he intended to take his assignment as a second lien upon the award, deeming it abundantly secure, because the amount of the award far exceeded the sum covered by both assignments. Beyond all question, in respect to the first award, he was subordinate and subject to the prior assignment. His mortgage gave him no superiority. Davis would have been entitled to be first paid; and if no greater sum than sufficient to do that could have been collected for any reason, from the city on the first award, Davis, or the plaintiffs as his assignees, would have been entitled to the money in priority of any claim that Matthews could assert. What has occurred to change the character of their rights ? Nothing of which they both did not have full notice, and nothing which either could have prevented.

If the assignment to Davis remains in full vigor, as between him and Thompson, upon the subsequent award, how does the fact that Matthews had also a recorded mortgage upon the leasehold premises give him a superiority which he did not possess in respect to the first award ? In form, it has had that effect, because the commissioners in their examinations for incumbrances upon the land to which the city was acquiring title, found a recorded mortgage and recognized it in their report as a lien to be extinguished. But this is mere form. Bor, in substance, the lien of that mortgage, though in form upon the land, is not prior, in respect to the moneys awarded, to the older assignment of which Matthews had notice, or to the equities which he is bound to recognize and respect.

The whole case seems to us to turn upon the question of notice ; and that being distinctly found, equity has no difficulty in disregarding forms for the purpose of enforcing substantial rights.

It is our opinion, upon the facts found by the learned court below, that judgment should have been awarded to the plaintiffs, and that the moneys in the hands of the city should have been directed to be applied, after the deduction of such costs as the city may be entitled to, upon the assignment held by plaintiffs, so far as necessary to extinguish the same and the balance, if any, should be paid to the defendant Matthews:

We see no difficulty in the way of this court pronouncing the judgment that ought to have been given by the court below. All the necessary facts are before us, and the error of the court was simply in the conclusions of law arising from the facts.

The judgment should therefore be reversed, and judgment ordered in favor of the plaintiffs in conformity with this opinion, to be settled by the presiding justice upon three days’ notice.

The costs of the city in the court below should be deducted from the fund, and the plaintiffs should have costs, both of the court below and of this appeal, against the defendant Matthews.

Brady and Daniels, JJ., concurred.

Judgment reversed, and judgment ordered in favor of plaintiffs, in conformity with opinion, to be settled by Davis, P. J., on three days’ notice; costs of the city in the court below to be deducted from the fund; plaintiffs to have costs of court below and of this appeal against the defendant Matthews.