author: Davis, P. J.:

text:
    In the Matter of MARY G. PINCKNEY, to vacate an Assessment, &c.

      Assessment — what act is not a fraud or substantial error within chapter 838 of 1858 as amended by chapter 312 of 1874 — Under chapter 313 of 1874 an assessment will not be vacated for the omission of any officer to perform his duty— When the party aggrieved must talce his objection before the assessment is completed. '

    By an ordinance, duly adopted, One-Hundred- and -Eighth street was directed tobe regulated, graded, paved, &c., from Fifth avenue to the East river. A profile prepared by the city authorities showed the grade, as determined upon, to the East or Harlem river at Avenue A, but also showed that the waters of the river flowed westwardly within the lines of th&said street, between Avenue A and First avenue. The first advertisement was for proposals for regulating and grading the street, in accordance with the profile, to Avenue A, but upon the objections being made that the city had uo title to the lands between Avenue A and First avenue, and that the assessed valuation of the..lands between those avenues was not large enough to bear an assessment of one-half of the cost of the work to be done between them, a contract was let to regulate, grade, &c., the street to First avenue only.
    Upon the hearing of an application to vacate the assessment on the ground that the work ordered by the common council had not been completed, Held, that the act of the city authorities in making the line of First avenue the limit of the work was not a fraud upon the petitioner or a substantial error within the meaning of chapter 838 of 1858, as amended by chapter 312 Of 1874.
    That if the ordinance.imposed the duty of regulating, grading, &c.., the street to Avenue A, the omission of the officer to perform that duty by reason of a misconstruction of the ordinance would- not avoid the assessment, as ,. chapter 313'of 1874 provides that no assessment shall be vacated “for or by reason of the omission of any officer to perform any duty imposed upon him.” -
    The work was completed in October, 1874, and the assessment confirmed in February, 1876. This proceeding was commenced in June, 1879. It appeared that the petitioner’s agent knew of the work while it was in progress.

      Held, that as the mistake in the construction of the ordinance, if any there were, could easily have been corrected before the cpnsummation of the assessment by completing the work to Avenue A, the objection should have been then made, and that, having failed to make it then, the petitioner could not now avail himself of it.
    Appeal from an order made at a Special Term, denying a petition to vacate an assessment.
    • In September, 1872, the mayor, aldermen and commonalty of the city of New York, by an ordinance duly adopted, directed that One-Hundred-and-Eighth street, from the Fifth avenue to the East river, be regulated, graded, &c. A profile and specifications of the intended improvement were thereupon prepared, and proposals were advertised for, the advertisement referring to the specifications, and the latter stating that the entire width of the street was to be regulated and graded in accordance with the grade as shown upon the profile map in the bureau of street improvements. This profile showed the grade as determined upon to the Harlem (or East) river at Avenue A. It also showed water flowing westward within the lines of the street to First avenue, and even for a short distance beyond it. The respondent claimed, and the appellant denied, that this'water was a part of the East river. Subsequently, upon its being ascertained that the city had no title to the street -east of First avenue, and that the property on that portion of the street would not bear an assessment sufficient to pay for the cost of the work to be there done, the department of ptifilic works and finance determined that the work could not properly be extended- beyond First avenue, and caused the amount estimated as .required between First avenue and Avenue A to be deducted from the original estimate, and the contract to be let only for -the reduced quantities. The work was completed in October, 1874, the assessment therefor confirmed February, 1876, and this proceeding commenced in June, 1S79. The matter has already been before the General Term of this department, where an order of the .Special Term, vacating the assessment, was reversed and a rehearing ordered.'

      John, O. Slum, for the appellant.

      J, A, Beall, for the respondent.
   Davis, P. J.:

The ordinance of the mayor, aldermen and commonalty directed' that One-Hundred-and-Eighth street be regulated, graded, &e.,. from Fifth avenue to the East river. The contract made used the-same language, “ from Fifth avenue to the East river.” A profile and specifications of the intended-improvement were prepared after the adoption of the ordinance. This profile showed the grade, a» determined upon, to the Harlem or East river at Avenue A, but it also showed the waters of the Harlem or East river flowing westward within thé lines of the street to the First avenue. The city had no title to the lands between First avenue and Avenue A, and could not lawfully construct the work between those avenues. It was ascertained, also, by the authorities that the assessed valuation of the lands between those avenues was not large enough to bear an assessment of one-half the cost of the work between those points, as restricted by statute.

In view of these facts, the city authorities construed the ordinance as directing the work to be done only to First avenue, the point to which the waters of the East river in fact came, according to the profile, and the work was accordingly completed to that line. This construction of the ordinance was not a fraud upon the petitioner. On the contrary, it was decidedly to her pecuniary advantage. It is apparent that the construction of the work between First avenue and Avenue A, owing to the greater filling in that would be required} would be proportionately more expensive' than the other part of the work, and as the lots lying upon the street between those avenues could not lawfully be assessed in a sufficient amount to bear one-half the expense of the work, the other property benefited would doubtless have been assessed for a larger amount than that actually imposed. The term “ East river ” did not indicate an arbitrary and definite line. It might therefore be reasonably construed to mean the point at which the line, of the projected work would come in contact with the waters of - the. river, and certainly It was neither unreasonable nor fraudulent for the authorities to terminate the work at that point, if the city liad no legal right to construct it further without being trespassers.

Nor do we think that the act of the authorities in making the ■line of First avenue the limit of the work was a substantial error, within the' meaning of the statute. .- A substantial error, in the sense in which those words are used in the statute, and for which an assessment can be vacated by an aggrieved party, must be one which works an actual pecuniary or other injury to such party. It cannot therefore be a substantial error within the meaning of the law to fix a terminus of a work like this, from reasons of necessity, at a line short of that named in the ordinance, when the effect of so doing is to work a substantial benefit to the petitioner. That seems to be this case. For, as before stated, inasmuch as the further extension of the street cannot be assessed upon the petitioner’s lands, she is saved from a burden which she might by a contrary construction of the ordinance have been required to-hear. ’ '

The case is therefore, as we think, within the provisions of chapter 313 of the act of 1874, which forbids the vacating of such assessments, for or by reason, of the omission of axiy officer to perform any duty imposed upon him, or for or by reason of any ■defect- in the authority of any department or officer upon whose action the assessment shall be in any manner, or to any extent, dependent, or for or by reason of any omission to comply with, or carry out any detail of any law or ordinance.” (Laws of 1874, p. 367.) This provision operates to restrict the sense to be given to the words “ substantial error ” to something altogether outside of the terms of the statute. In this case the commissioner of public works could not lawfully have regulated and graded the street between First avenue and Avenue A. This, perhaps, may be said to be a defect in his authority to perform completely the act directed by the ordinance, and the provision of the act of 1874 prevents his omission under such circumstances from- operating to vitiate an assessment for that portion of the work which he could lawfully do. Besides, the act expressly forbids the vacating of .assessments “for or by reason of the omission of amy officer to per form any duty imposed upon him.” It would seem to follow that if the ordinance imposed the duty of carrying the grade of the street and completing the work to Avenue A., the omission of the officer to perform that duty, by reason of a misconstruction of the ordinance, would not avoid the assessment.

Again, it appears that the petitioner’s agent knew of the work while it was in progress. The misconstruction, if there was one, of the ordinance was a mistake which could easily have been corrected before the consummation of the assessment, by proceeding to comí píete the work to Avenue A, or to whatever point might actually have been the line of the East river. Under such circumstances the objection ought to have been made in time to give opportunity for the correction, and there is neither justice nor equity in allow-; ing the petitioner to lay by for three years and then seek for the first time to raise the objection by attacking the assessment.

We are of opinion that the order should be affirmed, with $10 costs, and disbursements.

Present — Davis, P. J., Brady and Barrett, JJ.

Order affirmed, with $10 costs, and disbursements.


source: Caselaw Access Project

author: per Curiam.

license: Public Domain

text:
    JOHN F. HENRY and others, Appellants, v. JOSEPH H. SCHENCK, Respondent.
   Order modified as directed in opinion, and affirmed as modified, without costs.

Opinion

per Curiam.


text:
    In the Matter of LIVERRE. In the Matter of WALLACE. In the matter of STRIKER and others.
   Orders affirmed, with $10 costs, and disbursements.


text:
    WERTHEIM v. PAGE.
   Motion for reargument denied.


text:
    CHASE v. JACKSON.
   Order affirmed, with $10 costs, and disbursements.


author: Barrett, J.:

text:
    JULIA HARRIS, Plaintiff, Respondent, v. ELIHU LARKINS and others, Defendants. PAUL HOFFMAN, Purchaser, Appellant.

      Action for a pa/rtition — cannot he maintained hy a cestui que trust.

    A cestui que trust cannot maintain an action for the' partition of real* estate, and a purchaser at a sale, had under a judgment therein, cannot be made to complete his purchase, even though the trustees were made parties-defendant, and allowed the judgment to be taken by default.
    Appeal by Mr. Paul Hoffman, from an order made at Special Term, requiring him to complete his purchase on a sale in partition.
    The action was brought by - the plaintiff, the widow of one-Nathaniel Harris, to procure the partition of certain real estate of which he. died seized. His will contained, among others, the following provisions:
    “ I give and devise to David Field and James Williams, both of the city and county of New York, and Elihu Larkins, of the city of New Haven, and to the survivor or survivors of them as trustees, all my estate, real and personal, to hold the same upon the following express trusts:
    “ That said trustees shall, from time to time, give and pay over to my beloved wife Julia Harris, from time to time, as my wife shall require it, the use and improvernents, the rents and profits,, and all the annual income of my- said estate during the full term of my said wife’s natural life.
    “ Second. I do direct my said trustees, after the death of. my said wife, to give and pay over to my beloved daughter Anna A.. Hams, of said city of New York, the use and.improvements, the-rents and profits, and the annual income of all my said estate during-the full term of the said Anna’s natural life. -
    “Thi/rd.. I do direct said trustees, after the death of my said daughter, if my said daughter shall at her decease have children of her body begotten, to pay over the rents and profits,, and give the use and improvements and annual income of all my said estate to the said children of the said Anna, share and share alike,- in fee and forever.”
    The will then provided that the said devises were made upon the condition that one Sarah Lowe, of New Haven, should, while she remained unmarried, be. provided with a home with his wife during her life, &c.
    The daughter, Anna A. Harris, Mrs. Perkins and her children,, and the trustees were made parties defendant.

      Chas. W. Sloane, for Paul Hoffman, purchaser, appellant.

      John jP. Hull, for the plaintiff, respondent.
   Barrett, J.:

This action was evidently instituted and carried through under a misconception of the plaintiff’s true legal status. It professes to-be an ordinary .action for the partition of real property, or in casé actual partition cannot be made without' great prejudice to the owners, for a sale and division of i;he proceeds. Such an action can only be maintained by some one having an estate or interest in the lands. The parties must hold and be in possession of lands, tenements and hereditaments, as joint tenants or as tenants in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years.” Here the plaintiff has no estate whatever. Her husband’s will, under which she claims and which is part of the record, creates in her favor nothing but a trust. The realty is not devised to her and her daughter for their respective lives, with remainder over to the latter’s children. The devise is explicitly to-the trustees, and the entire estate .is vested in them subject to the execution of the trust. It is quite clear, therefore, that there could be no partition at’the suit of a mere cestui que trust, nor could the express trust created by the will be nullified by at sale under a judicial decree in such an action. The plaintiff’s right as cestui que trust to the application by the trustees of the'rents, issues and profits to her use for life, is inalienable. So is the like right vested in her daughter. Of this there can be no question. •

'The estate which is vested in the trustees will remain, inviolate,. notwithstanding the decree herein, and the cestui que trust will still be entitled to enforce the performance of the trusts. The trustees have not appeared nor defended; nor was the action in form to extinguish the trusts. They would not, in ejectment by the purchaser, be estopped. The purchaser, in fact, could not rely upon an estoppel, as the record upon its face shows the invalidity of the proceedings. Nay, more, the infant children will not be cut off by the sale. Their legal estates will vest immediately upon the decease of their mother or grandmother, whichever may survive the other. The cases cited in support of this action (Brevoort v. Brevoort, 70 N. Y., 136; Howell v. Mills, 56 Id., 226; Clemens v. Clemens, 37 Id., 59; Mead v. Mitchell, 17 Id., 210; Blakeley v. Calder, 15 Id., 617) are entirely inapplicable. In all of them the plaintiff had some present or future estate either in his own right, or per arntrenie. In none of them was there an attempt by a person who had no estate of any kind, legal or equitable, to maintain partition or to effect a sale under the guise of such an action.

We must add that the trustees are highly reprehensible for remaining passive and evidently conniving with the plaintiff in her effort to defeat the provisions of her husband’s will, to subvert the trusts thereby created, and to effect a result which the laws of the State expressly forbid.

The order appealed from should be reversed, with costs, and the purchaser’s motion to be relieved granted, with costs.

Davis, P. J., concurred.

Present — Davis, P. <T., and Barrett, J.

Order reversed and motion granted, with costs.


author: Barrett, J.;

text:
    JAMES S. WATT, Appellant, v. MICHAEL HEALY, Respondent.

      Supersedeas — when a defendant is not in actual custody, so as to authorize an application foi' it — Code of Civil Procedure, § 572 — how far the old practice is affected by it.

    The defendant in this action, having been arrested and given bail, his sureties neglected to justify, of which fact the sheriff had notice, but owing to some understanding between one of his deputies and the defendant, never lodged defendant in jail, but suffered him to go where he pleased.

      Held, that the defendant was not “in actual custody” within the meaning of section 572 of the Code of Civil Procedure, authorizing one in actual custody, by virtue of an order of arrest in an action, to apply for a supersedeas if the plaintiff fails to issue an execution against his person within one month after it is within his power so to do.
    Quiere, as to whether the old practice authorizing the court to .refuse the supersedeas where the execution is issued after the service of the motion papers, but before the hearing, has been abolished by the Code of Civil Procedure.
    Appeal from an order made at Special Term, superseding an order of arrest and an execution issued against the person of the defendant.

      Reddy dc Fromrne, for the appellant.

      Fdwa/rd Yam, Ness, for the respondent.
   Barrett, J.;

More than three months having elapsed since the entry of judgment, and the plaintiff having neglected to issue execution against the person, the defendant moved for his discharge under section 512 of the Code of Civil Procedure. The motion was opposed upon two grounds : first, that the defendant was not in actual custody; second, that an execution against the person had been issued before the motion to discharge was made. The court below granted a supersedeas, and ordered the defendant’s discharge from custody whether under the order of arrest or the execution. It appeared as matter of fact that the defendant was not m actual custody. In stating that he was, the defendant evidently referred to his understanding of the legal effect of what had transpired. The truth is, that when taken under the order of arrest, he gave bail. The sureties failed to justify, of which fact the sheriff had due-notice. That officer, however, because of some understanding between the defendant and one of his deputies, took no further steps-in the matter, and chose to assume the liability of bail. (Code Civ. Pro., § 587.) At all events the defendant was never lodged in jail, but was suffered to go where he pleased. If there was any restraint it was only constructive. The facts consequently did not entitle the defendant to relief under section 572, as that section only provides for the case of a defendant in “ actual custody by virtue of an order of arrest in' the action.” This was the rule both under the Revised Statutes, and the Code of Procedure. (Bostwick v. Goetzel, 57 N. Y., 585, 586.) The language of section 572 of the Code of Civil Procedure is, in this regard, almost precisely the same as that used in section 288 of the Code of Procedure. The views of Eajjl, J., in Bostwick v. Goetzel (supra), would therefore seem to be entirely in point. The object of the statute was to afford relief to persons undergoing close confinement. It was not intended to apply to those who had secured their freedom on bail, or, as here, without bail, through the improper influence of a deputy sheriff.

We have grave doubts, too, as to the correctness of the ruling upon the'second question. The practice, well settled and of long standing, not to allow the supersedeas where the plaintiff, even after the service of the motion papers, had issued his oa. sa.T and delivered it to the sheriff (1 Burrill Pr., 427; Manhattan Co. v. Smith, 1 Caines, 67; Minturn v. Phelps, 3 Johns., 446), should not be lightly disturbed. The learned judge at-Special Term placed his judgment upon the substitution of the word “must,” in the new Code (§ 572), for the word “ may ” in the old (§ 288). The rule to which we have referred, however, was not based upon the absence of amandatory form of expression, but upon the statutory intent. It was said in Minturn v. Phelps (3 Johns., 446), that the intent of the then existing statute was to enable the defendant to put the plaintiff to his election, either to take the person of the defendant in execution, or to resort to his estate. The right to a supersedeas was never absolute and unqualified. The plaintiff was always permitted to show “good cause to tbe contrary,” nor was he ■confined to proof of inability to issue the process during the ■specified period. The issuing of the ca. sa., intermediate the ■rule and the bringing on of the motion, was always deemed good •cause for refusing the supersedeas.

The order appealed from should be reversed, with $10 costs, and the disbursements of the appeal, and the motion denied.

Davis, P. J., concurred.

Present — Davis, P. J., and Barrett, J.

Order reversed, with $10 costs, and disbursements, and motion •denied.


text:
    WILLIAM H. CATLIN and MARIAN G. CATLIN, Respondents, v. THE ADIRONDACK COMPANY, Appellant.

      'When conditions will not be imposed, where an execution against the person is set . aside — The costs awarded to the different parties to an action should be set off against each other.

    'The plaintiff, having been arrested by virtue of an execution against his person, issued upon a judgment for costs recovered by the defendant herein, moved for and obtained, at Special Term, an order setting the execution aside unconditionally, which order was, upon appeal, reversed by the General Term, but affirmed by the Court of Appeals. After the granting of the order by the Special Term, the plaintiff commenced, and is still prosecuting, an action against the defendant for false imprisonment. After the affirmance of the order of the Special Term by the Court of Appeals, the defendant moved to have it so modified as to make the relief thereby granted conditional upon the plaintiff stipulating not to bring an action for false imprisonment, or to continue the action already brought therefor. .

      Held, that the motion was properly denied.
    The defendant also moved to have the costs, awarded to the plaintiff by the Special Term and Court of Appeals, set off against the costs awarded to it and included in the final judgment, in the action in which the execution had issued.

      Held, that the motion should have been granted, particularly as th¿ plaintiff •was shown- to be insolvent.

      Appeal from an order made at Special Term, denying the defendant’s motion to modify an order granting the motion of the plaintiff William Ii. Gatlin, to vacate an execution against the person, so as to make such relief conditional upon the plaintiff stipulating not to sue for false imprisonment, or to continue an action for false imprisonment already brought; also denying defendant’s motion to set off the costs awarded to the plaintiff (on his previous motion to vacate such execution) against the costs of the action awarded to the defendant against the plaintiff, and included in the final judgment herein.
    In May, 1879, the defendant recovered a judgment against the plaintiffs for $508.8G, costs. An execution against the property of the plaintiff, William H. Gatlin, having been issued thereon and returned unsatisfied, an execution was issued against his person, under which he was taken into custody by the sheriff and held until the sum specified therein had been paid. An injunction was obtained restraining the sheriff from paying over this money, and an. order was procured requiring the defendant to show cause why the execution against the person should not be vacated and set aside, and. the sheriff directed to return the money received thereunder.
    On the return of this order, the plaintiff’s motion prevailed, and. an order vacating the execution against the person, as not warranted in this action, and directing the sheriff to return the money received thereunder, was entered herein September 24, 1879.
    From this order the defendant appealed to the General Term, where it was reversed. (20 Hun, 19.) The plaintiff then appealed to the Court of Appeals, where the order of the General Term was reversed, and that of the Special Term affirmed. Upon regular notice to defendant, an order was entered herein July 6, 1880 (the defendant failing to appear), making the decision of the Court of Appeals the decision of this court, and the plaintiff then taxed a bill of costs against the defendant for $178.43. After the order of the Special Term vacating the execution against the person was entered, the plaintiff, William H. Gatlin, commenced an action against this defendant and its attorneys for false arrest under that execution, and that action has been pending in this court in Westchester county since January, 1880. On August 4, 1880, the defendant moved, at Special Term, to modify the order of September 24, 1879, by compelling tbe plaintiff to stipulate not to sue for false arrest, or further prosecute tbe action already pending on that ground, and also to offset tbe costs awarded to tbe plaintiff by tbe Court of Appeals against tbe defendant’s judgment against tbe plaintiffs for costs.

      A. Pond and 0. E. Tracy, for tbe appellant.

      Marshall P. Stafford, for tbe respondent.
   Barrett, J.:

Upon tbe previous motion in this cause, tbe court set aside tbe execution against tbe person unconditionally. That was necessarily an adjudication, upon tbe papers then before tbe Special Term, that it was not a ease where tbe usual condition should be imposed upon tbe plaintiff. Although an action for false imprisonment was, immediately thereafter, commenced, tbe defendants do not seem to have made any special effort, by an application for a re-settlement, re-considei’ation, or otherwise, to obtain a more favorable exercise of discretion with regard thereto. They preferred to take tbe chances of success in sustaining the execution upon appeal. "With us they were successful, but upon further appeal to the court of last resort, tbe plaintiff’s views prevailed. After all this, tbe defendants now ásk for tbe imposition of a stipulation not to sue; and we cannot but think that it was properly refused by tbe court below. It would have been a harsh exercise of discretion thus to wrest from tbe plaintiff one of tbe substantial fruits of bis victory. After a severe struggle, tbe execution has been held to be illegal, and tbe order, absolutely and unconditionally setting it aside, has been fully affirmed. Meanwhile, tbe action for false imprisonment has been steadily progressing to trial. Costs have been incurred therein. Whether tbe plaintiff is entitled to any, and if so, what damages, is a matter to be determined by a jury. Tbe action was lawfully brought, and proceeded without restriction. The modification which tbe defendants seek would operate retroactively, wiping the action out ab initio, without costs, and leaving tbe plaintiff to pay bis own expenses. He would thus, in effect, be punished for acting, and relying upon the unconditional vacation. Of course, tbe defend.•ants did not expect such a modification upon the original papers, and by a court differently _ constituted. They claim to have presented new and additional facts. This claim, however, does not bear the test of examination. The principal fact now put forward is the repayment to the plaintiff of the money which he was forced to give the sheriff to secure his freedom. But the original order, in addition to vacating the execution, directed such repayment by the sheriff. As that officer had retained the money, he having been •enjoined from turning it over to the defendants, the court knew perfectly well that it would be immediately paid over under its order. That consideration, therefore, was then present. Compliance with the order must have been contemplated. Consequently, such compliance can scarcely be treated as a new and additional fact, bearing upon the question of now making the vacation conditional. The same may be said of the attorney’s good faith. That was never questioned. As to the character of the imprisonment, that is a consideration more properly to be addressed to the jury in the false imprisonment action. That part of the order appealed from, which refuses to modify the original order vacating the exe•cution, should be affirmed.

We are unable, however, to see upon what principle the other branch of the application was denied. The motion costs, whether •of the Special Term or of the Court of Appeals, should clearly have been set-off against the costs previously awarded in the same •action to the defendants against the plaintiff. The defendants were ■entitled to this as matter of right. It is common practice to order $uch a set-off on motion. But if equitable considerations wore necessary, they are furnished by the fact of the plaintiff’s insolvency.

The order should be modified accordingly, without costs of this appeal.

Davis, P. J., concurred.

Present — Davis, P. J., and Barrett, J".

Order modified as directed in opinion, without costs.


author: Barrett, J. :

text:
    JACOB VAN WAGENEN, Appellant, v. LUCIUS E. CLARK and others, Respondents.

      Receiver of corporation — may bring separate actions to collect unpaid stoch subscriptions.

    "Where, after the return unsatisfied of an execution, issued upon a judgment recovered against a corporation, the judgment creditor commences an action against it in equity for the appointment of a receiver, and procures therein a final judgment appointing a receiver, such receiver may, under ■chapter 408 of 1860, commence separate actions against each of the stockholders thereof to recover any sum remaining due upon his shares of stock, and he is not bound to bring one abtion and make all the creditors and stockholders parties thereto.
    Appeal from an order made at Special Term, denying the plaintiff’s motion for an in junction pendentelite.

    On March 6, 1875, the defendants, Clark & Maynard, recovered a judgment against the New York, Westchester & Boston Railway Company, a New York corporation, upon which an execution was issued and returned unsatisfied, on March 15.
    On the same day an action in equity was commenced by Clark ■& Maynard, for the appointment of a receiver, and on April 10, 1875, a final judgment was rendered therein by default, appointing the defendant Seaver a'receiver thereof.
    Seaver subsequently commenced separate actions as receiver •■against the plaintiff and other stockholders of the company, to collect unpaid subscriptions.
    The plaintiff, a stockholder and creditor of the corporation, insisting that the receiver should commence a single action against •all the stockholders, so as to determine in one action who are creditors, and the amounts due to each, and who are stockholders, and the amounts for which they are liable, brought this action and ■demanded judgment, among other things, that all proceedings in the actions by Seaver against the plaintiff and others be enjoined, and that the court ascertain and aetermine the rights and liabilities of creditors and stockholders in this action. A preliminary injunction restraining Seaver from further proceedings in said actions against plaintiff and others was granted, and a motion was made to continue it until the hearing, which was denied, and from the order denying the same the plaintiff has appealed.

      J. E. BurriTl, for the appellant.

      Geo. W. Wvngate, for the receiver.

      Jolm 8. Wood, for Harris Bros.
   Barrett, J. :

We think the construction placed by Mr. Justice Lawrence upon chapter 403 of the Laws of 1860, was correct. That act conferred upon the receiver all the rights, power and authority of receivers appointed in case of the voluntary dissolution of a corporation.” It was one of those rights to file a bill in the Court of Chancery, or to commence and prosecute an action at law for the recovery of any sum remaining due upon any share of stock subscribed in such corporation. (2II. S., 469, § 69.) Indeed, it was thereby made the duty of the receiver immedAately to proceed and recover such sum, “ unless the persons so indebted shall be wholly insolvent.” Probably the receiver might have instituted an omnibus suit making all creditors and stockholders parties. But he was not bound to do so. The act plainly gives him authority to bring separate suits against each shareholder. Perhaps, in a proper case, he might be directed to consolidate such separate suits, but even that would be attended with embarrassment where the defenses are entirely different. However that may be, there certainly was no good reason, upon the facts of this case, why an injunction should be granted to restrain the prosecution of the receiver’s actions. That officer seems to have acted fairly and discreetly, and for the best interests of all concerned. Then the injunction, claimed could subserve no useful purpose. It would certainly work delay, and might even jeopardize the prospects of ultimate success in securing something for the creditors. Different considerations present themselves when various creditors are seeking to recover from the stockholders their respective claims. Then, under certain circumstances, an omnibus suit might well become a necessity But here, the receiver represents all the creditors. The statute gives him full power to settle all controversies with either the debtors or creditors of the corporation (2 R. S., 469, 470, § 73), and points out the procedure. It also provides for distribution and accounting (Id., 470-472, §§ 79-89). The case, therefore, is not within the principle of Pfohl v. Simpson (74 N. Y., 137). Upon the whole, we are of opinion that the order refusing an injunction pendente lite was right, and should be affirmed, with costs.

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

Order affirmed, with $10 costs, and disbursements.


text:
    JOSEPH LEAVY, Respondent, v. MATTHEW LEAVY, as sole Executor, &c., of JAMES LEAVY, Deceased, Appellant. JOSEPH LEAVY, Appellant, v. MATTHEW LEAVY, as sole Executor, &c., of JAMES LEAVY, Deceased, Respondent.

      Demurrer — when, not frivolous — All the residuary legatees must he pa/rties to an action hy one legatee to recover his share of the residue.

    In an action,by one of several residuaiy legatees to recover his share of the estate, a demurrer interposed by the executor, the' sole defendant, on the ground that the, other residuary legatees should be made parties thereto, cannot be adjudged frivolous.
    Appeal from a judgment entered upon an order adjudging the demurrer interposed to the complaint to be frivolous, and also, appeal from an order denying the plaintiff’s motion to punish the defendant for contempt in not paying the judgment.
    The complaint alleged the appointment and qualification of the defendant as executor of- James Leavy, deceased; a bequest by the’ will of the latter of $10,000, to be invested for his father, and mother, and that, by said will, after, .bequeathing to the defendant divers articles of specific personal property, lie gave, devised and bequeathed all his estate, both real and personal, of every nature, kind, and description, whatsoever and wheresoever the same might be situated, to this plaintiff and his three brothers, share and share alike, absolutely and forever.
    “ That the mother of the' testator is still living, and the said $10,000 so set apart is still held invested and in use, as plaintiff is informed and believes, in pursuance of the directions of said will.
    “ And said plaintiff further alleges, on his information and belief, that at or about the time of the decease of the said testator, assets to the amount of $40,000 or thereabouts, belonging to him, came to the hands or under the control of the said defendant as such executor, and that there’ now is, in the hands of him, the said defendant, the sum of $8,000, arising out of the estate of the said testator, applicable to the payment of the share of plaintiff as one of the residuary legatees under said will. And this plaintiff alleges and verily believes, that on an account being taken of the assets belonging to and the payment and expenses in and about the execution of the said last will and testament of the said James Leavy, there will be found assets in the hands of, or under the control and management of said defendant, applicable to the payment of plaintiff’s said share, the sum of $8,000, and upwards. . . . That, notwithstanding the existence of assets applicable to the payment or part payment of the share of plaintiff — under said will, and the lapse of more than one year from the granting of letters testamentary on said will, and the demand made and bond filed before this action as aforesaid; and there being more than sufficient assets in the hands of the defendant to discharge the debt of the testator, he, the said defendant, refused and still refuses to pay or apply any portion of the assets to the payment or part payment of the plaintiff’s said share, no part of which has yet been paid to or received by plaintiff, except the sum of $300. "Wherefore plaintiff demands judgment. That the defendant pay to him the sum of $8,000, with interest thereon from March 16, 1877. That the defendant account for all the assets of the testator that came to his hands or under his management and control, and as to his care and preservation of the estate of the said James Leavy, as the executor of his will, and that he be adjudged and decreed to pay over to plaintiff whatever sum maybe found applicable to his share of said estate, over and above the said sum of $8,000, with interest on any such sum from the lapse of one year after the granting of letters testamentary on said will to fendant. The defendant demurred, on the ground that the other residuary legatees were necessary parties to the action.

      Arthur J. Delcmey, for the appellant,
    on the appeal from the judgment and order adjudging the demurrer to be frivolous, and for the respondent on the appeal from the order denying the motion to punish.

      Allen McDonald, for the respondent,
    on the appeal from the judgment, and for the appellant on the appeal from the order denying the motion to punish.
   Barrett, J.:

The demurrer was not frivolous. It was, to say the least, a fair question for deliberate consideration whether the other residuary legatees should not have been made parties. In Cromer v. Pinckney (3 Barb. Ch., 474), the chancellor said that, “ As a general rule, a legatee may sue the executor for his. own particular legacy, without making the residuary legatees, or any other legatees, parties to the suit. The case is otherwise where one of the residuary legatees sues for his snare of the residue. For, as an account of the estate must be taken in that case, the executor may insist that the other residuary legatees shall be brought before the court, to save him the trouble of accounting, a second time, at their suit.” It is contended that this rule is inapplicable to the present case, because of the averment that the executor has in his hands a definite sum applicable to the payment of the plaintiff’s share. But this averment is preceded by a statement as to the general assets which came into the defendant’s hands, and is followed by an allegation that, on an accounting being taken of such assets, and of the exr penses of administration, there will be found this definite sum and upwards, as assets in the hands of the defendant, applicable to the payment of the plaintiff’s said share. Further on, there is a reference to the existence of assets'applicable to the payment, or part payment, of plaintiff’s share. Upon this, the plaintiff demands judgment — first, for the definite sum, and second, for an accounting and payment of whatever he may be found entitled to thereon, be^ond the definite sum. It is difficult to separate the averments of this complaint, to take the statement with regard to the definite sum out of their immediate connection, place them by themselves, and apply thereto naught save the first demand of judgment. There is no separation or statement of distinct causes of action in the pleadings, and it would seem to be a fairer and more rational construction of the complaint to treat it as an action for an accounting, with special averments as to the extent of the assets. Should this view ultimately prevail,* upon the argument of the demurrer as an issue of law, the plaintiff will probably be compelled to bring in the other residuary legatees. Enough, at all events, has been said to demonstrate the error in adjudging the demurrer to be frivolous. The order and judgment should, therefore, be reversed. It follows that the appeal from the order denying the plaintiff’s motion to punish the defendant for contempt in not paying the judgment, should be dismissed.

D 'vis, P. J., and Beady J., concurred.

Order adjudging demurrer frivolous and judgment entered thereon reversed, with costs.

Appeal from order denying motion to punish defendant for contempt dismissed, without costs.


author: Pee Curiam :

text:
    HENRY E. SPRAGUE, Respondent, v. EDWIN BUTTERWORTH and others, Appellants.
    . B.'xaminationof- the plaintiff before trial — when it will be ordered — right of the party examined to refuse to answer questions tending to criminate him.

    In this action, brought by the plaintiff to recover the price of two hundred and sixty-six bales of rags sold to the defendant, the latter, before answering, made an affidavit stating that the defense was that the sale was fraudulent and void, and that the goods- were not what they were íalsely and' fraudulently represented to be; that in opening some of the bales they were found to contain about one-quarter in weight of substances other than rags, which were of no pecuniary valué; that a return of the goods was thereupon tendered to, and refused by'the- plaintiff; that the plaintiff- had thereafter attached the said goods, and that the same were then in the possession of the sheriff, and that the defendant was, therefore, unable to inspect or examine them; that he desired to examine the plaintiff, to prove the contents of the bales not yet opened, and to prove the fraudulent and deceitful packing and arrangement thereof, and to prove the plaintiff’s'knowledge of and connection with such frauds.
    Meld, that an order for the examination of the defendant was properly granted. That if, upon the examination, any questions were - put to the plaintiff, the answers to which would tend to criminate or degi rde him, or to subject him to a penalty or forfeiture, he could then claim his privilege. (
    Appeal from an order made at Special Term, granting' the plaintiff’s motion to vacate an order for his examination as a party before trial;
    The affidavit made by the general manager of the'defendants’ firm upon which the order was made stated, among other things, that:
    “ This action was commenced by attachment, followed by personal service about April 23, ult. The complaint is for two hundred and.sixty-six bales of Malta colored rags, alleged to have been sold by plaintiff to .defendants, and judgment is demanded for .$4,688.10, with interest and costs. No answer has been served. The nature of the defense is that the sale was fraudulent and void, and that the goods are not what they were falsely and fraudulently represented and warranted to be. At and before purchasing I examined said goods, so far as was then possible. They were packed in bales so as to be incapable of internal examination, but to external appearance, and so far as could be ascertained from any inspection or examination in my power, the bales appeared to contain rags, as represented and warranted by the plaintiff. After receiving the said bales and sending them to the paper mill, about thirty-five bales thereof, taken at hazard from the whole, were opened for use and the contents thoroughly exariiined and sorted, and each and every bale was then found to contain in the interior thereof, so packed and arranged as to be undiscoverable -on external examination, a large mass of rubbish, oil cloth, and'other substances which were not rags of any kind, and were not of any pecuniary value,, averaging about one-quarter in weight of the whole weight of the bales, as I am informed by the persons who opened, examined,, sorted and weighed the same, and verily believe to be true. I thereupon tendered to the plaintiff a return of the said goods, which he refused. I am informed and believe that the plaintiff has in this-action attached the said goods, and that the same are now in the possession of the sheriff in behalf of the plaintiff,, and l am unable to examine the bales not already opened, or to ascertain the contents, thereof, except by an examination of the plaintiff. The defendants desire to examine the plaintiff to prove the contents of timbales not yet opened, and to prove the fraudulent and deceitful packing and arrangement thereof, and to prove the plaintiff’s knowledge of and connection with such frauds, both for the purpose of preparing their answer and establishing the facts on the trial of the-action; and I am advised by the defendants’ counsel and believe that the testimony of the plaintiff is material and necessary to-prove the said facts.”

      J. Langdon Ward, for the appellant.
    The testimony sought in this case does not involve any matter as to which a witness is protected from testifying. The defense does not impute crime or misdemeanor to plaintiff, or expose him to any penalty of forfeiture. (Attnoood v. Coe, 4 Sandf. Ch., 412; March v. JDmison,. 9 Paige, 588; McIntyre v. Mcmcius,. 16 Johns., 592; Gonantv. Delafield, 3 Edw. Ch., 20.) The objection is not available unless, taken by affidavit or in a notice of motion, specifying why and wherefore a forfeiture, penalty, or indictment, would or might be-the consequence of the discovery. {Sharp v. Sharp, 3 Johns. Ch.,, 407.)

      William A. Copp, for the respondent.
    A party cannot be com'pelled to submit to an examination which is sought with the avowed purpose of obtaining evidence tending to criminate him. {Corbett v. De Comean, 5 Abb. New Cas., 169 ; Phcmix v. DupvAj, 2 Id., 146.) This application ‘was not in any sense within the meaning of the section of the Code, as interpreted by the rules and-decisions of this court. {Levy v. Loéb, 5 Abb. New Cas., 157; Beach v. Mayer, 14 linn, 79; Greer v. Allen, 15 Id., 432; Ohapvnv. Thompson, 16 Id., 53.)
   Pee Curiam :

"We think a sufficient case for the examination of the plaintiff before trial was made out, and that the order should not have been vacated. The examination of the bales made by the defendant may have been-insufficient. The jury may deem the disclosure resulting- from that examination grave enough to warrant a verdict of fraud. But should the defendants be compelled to take that risk ? Clearly not. They should have an opportunity of showing that the condition of the remaining bales was just as bad. If any privileged questions are put, the. plaintiff can claim his privilege. We cannot, however, be certain that every question will necessarily be privileged. On the contrary, we can see that there may be proper inquiries which plaintiff could not refuse to answer. We do not mean to be understood, however (in sustaining the order which was. vacated below), that a party can be required to submit to an examination, the tendency of which would be to criminate or degrade him, or to subject him to a penalty or forfeiture.

Order reversed, with $10 costs, and motion to vacate order for examination denied.

Present — Davis, P. J., Beadt and Barrett,- JJ".

Order reversed, with $10 costs, and disbursements, and motion denied.


text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent, v. WILLIAM S. CLARK, Appellant, Impleaded with HENRY W. JOHNSON and others.

      Place of trial of an action establishing an interest in real property— Code of Civil Procedure, §■ 982, what action is not within it-rmehether it is or not must be determined by the coih/plaint.

    This action was brought in the county of New York to restrain the defendant Johnson, who had in-his possession a satisfaction-piece, of a judgment recovered by the plaintiff against the defendant Nelson, from delivering the same to Nelson. The'complaint showed that Nelson owned real property in Ulster, but none in Kings county. The defendant, upon an affidavit stating that. Nelson had sold the land in Ulster county, and then owned no real estate except in Kings county, moved for an order changing the place of trial to Kings county, on the ground that the action was brought “ to recover or to procure a judgment establishing, determining, defining, forr feiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property, or a chattel real;” within the meaning of section 982 of the Code of Civil Procedure.
    Meld, that whether or not the action was within that section must be determined by the complaint, and that the decision of that question could not bo affected by affidavits.
    That the action did not have for its object the recovery of a judgment establishing or otherwise affecting a right, lien or other interest in real property, and that the motion was therefore properly denied.
    Appeal from order denying a motion to change the place of trial from the city and county of New York to the county of Kings.

      Sam. W. Smith, for the appellant.

      Y anidarf)oel, Green <& Gwrm/ng, for the respondent.
   Barrett, J.:

The defendant, Johnson, has in his possession a satisfaction-piece of a judgment recovered by the plaintiff against the defendant Nelson.

This action is brought to restrain Johnson from delivering such satisfaction-piece to Nelson, and to compel him to deliver it up to the plaintiff to be canceled.

One of the defendants moved to change the place of trial to Kings county, substantially upon the ground that tile judgment against Nelson is a lien upon certain real estate in Kipgs county; and that the effect of sustaining the plaintiff’s actioki ..vrall'be to establish or maintain such lien. The motion was made under section 982 of the New Code, which extends the class of actions triable in the county in which the subject of the action or some part thereof is situated, to those brought “ to recover or to procure a judgment,. establishing, determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, lien, or other interest in real property or a chattel real.”

We see no ground upon which this motion could have been granted. The complaint shows the' ownership by the defendant Nelson of certain real estate in Ulster county, but of none in Kings county. The defendant seeks to obviate this objection by an affidavit stating that the property in, Ulster county has been sold, and that the only real estate now owned by Nelson consists of certain lots in Kings county. We think that this affidavit has no just bearing upon the question. Whether the action is within section 982 of the Code depends upon the complaint. It is that which should govern.. The plaintiff, therein states in clear and precise terms the subject of -his action, and fells us its purpose. These need no interpretation from extrinsic sources. The subject of the action is not the real estate in Ulster, nor yet that in Kings county, but the satisfaction-piece and the judgment. The purpose is the cancellation of the satisfaction-piece, and a judicial declaration of the continued integrity and vitality of the. judgment. ■ The statute contemplates the direct object to be attained, not, the resulting incident.

A defendant may have real estate in every county in the State. He may have personal property upon which an execution has been levied. He may have equitable assets upon which a creditor’s bill and injunction have fastened a lien. . Yet none of these can be said to. be, within section 982 (supra), the subject of an action brought to-set aside or cancel a satisfaction-piece of the judgment which lies at the foundation of them all.

Nor can such an action be said to have for its object the recovery or procurement of a judgment establishing or otherwise affecting a right, lien,/or other interest in real property. That may be one; of the consequences of success, but it will be no part of the decree.. The decree -Will be limited to the findings as to the satisfaction-piece. It can have nothing to do with the merely resulting incident, —e. g., the ultimate satisfaction of the judgment from amy property of the defendant which the plaintiff may be able to discover.

We think the order denying the motion to change the place of trial was right and should be affirmed, with $10 costs, and disbursements of the appeal.

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

Order affirmed, with $10 costs, and disbursements.


text:
    SOLOMON LOEB, Appellant, v. BENJAMIN A. WILLIS, Respondent, Impleaded with others.

      Action to foreclose a mortgage — when a deficiency judgment cannot be entered.

    In this action, brought by the plaintiff to foreclose a mortgage given by the; defendant, the usual judgment of foreclosure and sale, and for any defi- . ciencv that might arise thereon, was entered on January 8, 1879. On June 18,1879, the plaintiff obtained an order vacating the judgment, andallowing him to amend by bringing in an additional party. Thereafter, and before any further proceedings were taken, another action was commenced to foreclose a prior mortgage upon the same premises, and under a decree in the latter action they were sold for an amount only sufficient to pay the said, first mortgage and the costs of its foreclosure. Thereupon the plaintiff moved to vacate the order setting aside the judgment, and for a direction that a. judgment for a deficiency be entered against the defendant for the full amount due on the second mortgage and the bond to which it was collateral.

      Held, that the motion was properly denied, and that the plaintiff’s remedy, if any, was by an action at law upon the bond.
    Appeal from an order made at Special Term, denying the plaintiff’s motion to vacate an. order previously entered by bim, vacating-his judgment in foreclosure; and also denying his motion for a deficiency judgment against the defendant Willis, for the full amount' of the bond, with interest and costs.

      The plaintiff brought this action to foreclose a bond and mortgage made by the defendant Benjamin A. Willis, and on January 8, 1879, entered a judgment of foreclosure and sale in .the usual form, with a direction for a judgment for any ..deficiency., that might arise thereon against the said Willis. Thereafter, and on discovering that one Harriet A. Acidan d, who claimed some interest in the land, had been omitted as a party, the. plaintiff, on June 13, 1879?. obtained an order permitting him to amend by making her-a party and vacating the judgment theretofore obtained. Before any further proceedings were had, and in December, 1879, the first mortgagee of the premises, the plaintiff’s mortgage being a second one, commenced an action to foreclose it, and proceeded to a judgment .and sale, under a decree therein, thereby cutting off plaintiff’s mortgage. The proceeds of this sale were only sufficient to satisfy the first mortgage and the costs of foreclosing it. Thereafter this plaintiff moved that the order vacating the judgment be vacated, that he have judgment in his suit, and that, as the collateral secrnity was exhausted by the sale under the first mortgage, the plaintiff should at once have judgment • for the deficiency, the whole amount of the loan, and interest.

      Will Man, for the appellant.

      WilUam Little, for the respondent.
   Barrett, J.:

We must not lose sight of the fact that this is simply an action to foreclose a mortgage. The defendant Willis’s liability in such an action is pointed out by statute. It is for the residue of the •debt remaining unsatisfied after a sale of the mortgaged property and the application of the proceeds pursuant to the directions contained in the final judgment. The plaintiff' could have had the mortgaged property sold in this action, and the deficiency, if any, therein ascertained. Instead of that, he preferred to await a sale ■under the first mortgage.. He now says that as this sale resulted in a deficiency, the property would certainly have brought, nothing under his mortgage. He consequently claims a deficiency judg’ment against Willis for the full amount of the bond, with interest and' costs. To this we cannot think that he. is now entitled. There is no such short cut to justice as the plaintiff imagines.' The measure of the defendant’s liability herein cannot be predicated of an -incident deJisrs the plaintiff’s foreclosure. The deficiency contemplated by the statute is such, and only such, as has been ascertained by an actual sale of the mortgaged premises under the plaintiff’s judgment. The defendant is doubtless still liable upon his bond. "That liability may well be the full amount of such bond and interest. But in reaching that'result the forms of law cannot be disregarded, and the plaintiff must resort to the appropriate action to enforce that liability. In the present form of action he could not, for instance, join a count upon the bond and seek an independent judgment m, personam', nor during the pendency of the foreclosure proceedings could he even bring a separate action upon the bond without leave of the court. It.is, therefore, quite clear that while his pleadings and proceedings remain unchanged, he cannot, upon a mere suggestion that his foreclosure as such has become futile, be. permitted to enter what, though styled a deficiency judgment, is in reality equivalent to and in substance nothing more nor less than a, direct judgment m personam upon, the bond.

Nor is it absolutely certain, although, of course, extremely probable, that there would have been a deficiency in case the mortgaged property had been sold under the plaintiff's judgment. Still less certain is it as to the amount of such deficiency. The sale would have taken place at a different time and under different circumstances from the sale on the first mortgage. Be that as it may, the plaintiff had an ample opportunity to ascertain the deficiency in the regular and ordinary way and to enter his judgment thereon in the manner provided by law. Having failed to do this, he cannot now come in and on motion ask the court to adjudge that a deficiency of the entire amount of his bond and interest must necessarily have resulted from a sale of the mortgaged property under his judgment. This is asking the court to decree a deficiency which, in fact, does not exist, and which, owing.to.the- course pursued by the plaintiff, cannot now be ascertained in the-manner required by law'. " •

The order was right, and should be affirmed, with $10 costs, and the disbursements of the appeal.

Davis, P. J., concurred.

Present — Davis, P. J., and Bareett, J.

Order affirmed, with $10 costs, and disbursements.


text:
    ELIZABETH LANGDON, Appellant, v. LANDON C. GRAY and ELIZABETH B. PHELPS, Respondents.

      Undertaking to procure an injunction — when the sureties thereto a/re not liable for the costs of an unsuccessful motion to dissolve the injunction.

    On the hearing of an unsuccessful application to dissolve a temporary injunction granted in this action, the defendants’ counsel confined his objections to alleged defects in the plaintiff’s papers, and did not use affidavits relating to the merits of the action, which he had previously prepared. Upon the trial of the action the complaint was dismissed.
    Upon a reference ordered to ascertain the damages sustained by reason of the injunction, Held, that,the sureties to the undertaking were not liable for the costs and expenses of the unsuccessful application to dissolve the injunction.
    Appeal from an order confirming the report of a referee appointed to fix the amount of damages sustained, by reason of a temporary injunction granted herein.
    The plaintiff, brought an action against the defendant Gray alone, to restrain the enforcement of a foreclosure decree on premises No. 281 Fourth avenue, and procured a temporary injunction so restraining him and his servants and agents, with an order to show cause why the same should not be continued., Before the hearing of the motion Gray answered, setting up as a defense that he had sold the decree to Phelps, and had no interest whatever in the subject-matter of the action at the time of its commencement; thereupon Phelps was brought in as a party defendant by supplemental complaint; the injunction was never extended so as to include the defendant Phelps; counsel for both Phelps and Gray appeared and opposed the motion to continue the injunction; they prepared papers necessary to use thereon, but did not use them; they were unsuccessful upon the motion, but plaintiff was required to give an additional undertaking, with one surety, to, the defendant Gray, which he accordingly did.
    At the trial the complaint was dismissed; the defendants tiiereupon moved for a reference to assess the damages sustained by reason of the injunction; they proved none, except the value of legal services rendered in connection with the said motion; these were fixed at $650.
    The referee found that Phelps could recover no damages, but that the value of services of counsel rendered for defendant Phelps might be recovered “ in the name and behalf of the co-defendant.”
    From the order overruling exceptions and confirming the report of the referee, the plaintiff appealed.

      Ghcmies W. Dayton, for the appellant.

      Thomas G. Shearman, for the respondents.
   Barrett, J.:

The evidence taken before the referee was limited to the value of the attorneys’ services upon the motion for a continuance of the injunction pendente Ute. The referee allowed the value of such services (fixed at $650) as damages sustained by reason of the injunction. In this we think he erred. It was held in Childs v. Lyons (3 Robertson, 704) and in Allen v. Brown (5 Lans., 511) that the costs and counsel fees of an unsuccessful effort to remove an injunction were not recoverable as damages arising from its existence. This rule does not apply where the continuance of the injunction results merely from a postponement until the trial of a decision upon the merits. (Andrews v. Glenville Woolen Co., 50 N. Y., 287.)

"Where, however, there is no such postponement, and the continuance is upon the merits, or the defendant fails in his motion to dissolve because of some irregularity or fault on his part, the expenses incident to the unsuccessful application are not recoverable.

In the case under consideration, the defendants opposed the motion to continue the injunction. It appears that a part of the services for which the sum of $650 was allowed, consisted in the preparation of opposing affidavits. The separate value of this latter service was not shown; ■ It also appears that these opposing affidavits were not used upon the motion, and that the defendants contented themselves with a criticism of the plaintiff’s papers. The •surety was not chargeable with the expense incurred in the preparation of affidavits which the defendants themselves deemed unnecessary or useless.

It is impossible upon these papers to estimate the independent value of the services which were essential to the proper presentation of the defendants’ opposition to the motion. But if it were, the case would still be within the rule laid down in the authorities above cited, for. the reason that the inj unction was continued upon the merits. The defendants sought to get rid of the temporary injunction, and to prevent its continuance, without presenting their side of the ease.

It cannot therefore be said, in the words of Rapallo, J., in Andrews v. Glenville Woolen Co. (supra), that the “ motion did not fail through any fault on his part.” Won constat, but if they had used the affidavits which had been prepared, the result would have been as satisfactory to them upon the motion as it was, subsequently, upon the trial.

The court determined the merits so far as the defendants chose to go into them. The merits, in the aspect of the case presented by the motion, consisted of the plaintiff’s right to relief upon his own papers. The inquiry upon that head was not deferred; but was necessarily passed' upon by the continuance of the injunction. It is true that the court directed the plaintiff to file additional security. But that was not inconsistent with an adjudication upon the merits in the plaintiff’s favor. The court thereby in effect said to the plaintiff: “ "While you have made out a case for an injunction pendente Ute, yet the security which you have given is less than we should have required. Now, as the injunction is a matter of discretion, we will withhold it, notwithstanding you make out a case, unless you furnish what we deem adequate security.” If the defendants had presented their opposing affidavits, and the court, though finding that such affidavits raised a conflict of evidence, had. nevertheless seen fit to retain the injunction until the issues could be deliberately disposed of upon the trial, the case would have been within the principle of Andrews v. Glenville Woolen Co. (supra). But here there was no such conflict. There was therefore nothing-to be deferred. The question was whether, upon the conceded facts of the complaint, the plaintiff, as matter of law, was entitled to an injunction. That question could not be postponed. It demanded,, and, as we are bound to assume, received present consideration. Wc are also bound to assume that if the defendants had presented the same case upon the motion which they subsequently presented upon the trial, they would have been successful. Either that, or-tho inquiry would have been deferred. In either case, the defendants could have recovered their legitimate expenses. As it is, they cannot recover them, for the reason that they failed to get rid of the injunction, and so failed because they did not do all in their power to succeed. In other words, because of their own fault.

It will not be necessary, therefore, to consider the other very grave question presented by the appeal, namely, the right of the defendant Phelps to recover in the name and behalf of her co-defendant,” a question which does not seem to us to be so entirely settled by the principles which were applied to the facts of Andrews v. Glenville Woolen Co. as the respondents appear to believe.

The order appealed from should be reversed, with $10 costs, and disbursements of the appeal, and the motion to confirm the referee’s report denied.

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

Order reversed, with $10 costs, and disbursements, and motion denied.


text:
    THE PEOPLE ex rel. WILLIAM F. SMITH, Respondent, v. EDWARD COOPER, Mayor of the City of New York, Appellant.

      Writ of certiorari — within what time an application therefor must be made.

    Prior to the adoption of sections 2125 and 2126 of the Code of Civil Procedure there was no statute nor rale of law prescribing any fixed period within which a writ of certiorari must be applied for, but the decision of that question was left to the discretion of the court to which the application was made.
    On April 5, 1879, the defendant, the Mayor of New York, certified to the governor that he had removed the relator from his office of police commissioner. From that time until January 27, 1880, when the case of The People v. Nichols was decided by the Court of Appeals, the right of the relator to review such removal by a writ of certiora/ri was in dispute. On February 2, 1880, the relator applied for and obtained a writ of certiorari.

      Held, that the court below properly held that he was guilty of no laches which would authorize a denial of the writ.
    Appeal from a judgment in favor of the relator, entered on a certiorari issued to review the respondent’s proceedings in removing the relator from his office of police commissioner of the city of Now York.
    The only question argued on the appeal was whether the relator was not unduly dilatory in applying to the courts to reverse and annul the proceedings and judgment, whereby the mayor assumed to remove him from office as a police commissioner of the city of Now York. It appeared that the mayor certified the relator’s removal to the governor on April 5, 1879 ; that the writ of certiorari in this case was tested February 2, 1880 ; and that a new governor came into office during the period between those dates. The right to a writ of certiorari in such a case as the present wa,s not finally established, until the decision rendered by the Court of Appeals in the prohibition suit of People ex rel. Mayor v. Nichols, on January 27, 1880.

      Fromds Lynde Stetson, for the appellant.

      Willard Bartlett, for the respondent.
   Barrett, J.:

The only question presented by this appeal is, whether the .court below was right in refusing to quash the writ of certiorari because of the relator’s alleged laches. This was a matter of discretion with which we should interfere only in case the discretion has been abused or unwisely exercised. Nothing of the kind appears in the present instance. On the contrary, the discretion seems to have been fairly and judiciously exercised. When this writ was sued out, there was no statute nor rule of law prescribing any fixed period during which a certiorari must be applied for.

The time was always a matter of discretion. (People v. Hill, 53 N. Y., 547.) It is true, that the courts had repeatedly intimated that, in analogy to a writ, of error under the Revised Statutes, a certiorari would not be granted after; two years. But that was merely a guide to the general limit of discretion, not an inflexible rule. The writ was frequently refused within the two years (in exceptional cases, because not applied for immediately), and it might have been granted in an extreme case after two years. “ I think a case can rarely happen,” said Bronson, J., in People v. Mayor (2 Hill, 13), “ where it would be proper to allow a certioranti after a longer period.”

These rules have since been steadily followed and applied, without regard to the abolition of writs of error in civil cases, and without variation, because of the change in the time of appealing from judgments brought by the Code of Procedure. It is now too late to conform the general line of discretion to this later analogy. In People ex rel. Van Allen v. Perry (16 Hun, 463), reference was made to the reduction to one year of the time within which an appeal must be taken to the Court of Appeals. Commenting upon this, Mr. Justice Smith observed that it did not necessarily follow that the courts should now adopt one year as the limitation to writs of certiorari in all cases. The granting of the writ is, now as heretofore, in a great measure, matter of discretion.” Besides, there is force in the suggestion that the two years for writs of error under the old system ran from the rendering of the judgment, while the present limitation commences only after formal notice. Laches should be predicated of knowledge of the fact, not of a formal notice, nor of the want of it. The analogies, therefore, are not perfect. Still less in the case of ordinary appeals from the Special to the General Term.

The delay in the case at bar was properly accounted for. It is a matter of judicial history that, during nearly the entire period between the removal of the relator and the suing out of the writ, the question whether a certiorari would lie at all in such a case, was being severely litigated. The writ was applied for within a very short time after the apparent determination of that question by the court of last resort. In thus awaiting its solution, before pressing forward with his suit, the relator acted with discretion and consideration for all concerned. Instead of being amenable to the charge of laches, his forbearance is commendable. Certainly his rights are not to be withheld merely because he submitted to being kept out of them for a brief period, rather than vex the court with what might prove to be an unnecessary litigation.

The judgment reversing the proceedings for the relator’s removal must, therefore, be affirmed, with costs.

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

Judgment affirmed.


text:
    THE PROVIDENCE & STONINGTON STEAMSHIP COMPANY, Plaintiff, v. THE PHŒNIX INSURANCE COMPANY, and thirteen Insurance Companies, Defendants.

      Policy of marine insurance — when the underwriter must contribute to the expense of getting off a stranded vessel — how his proportion of the expense is determined.

    The defendant issued a policy of marine insurance upon a steamer belonging to the plaintiff, which contained the following clause: “It is understood that this policy covers all perils of the sea and navigation usually taken by marine underwriters, loss by fire excepted.” While the policy was in force . the steamer went ashore in a storm, and was in danger of becoming a total . wreck, the officers and crew being unable to get her off. Thereupon the plaintiff, having been told by the defendant to act as though the steamer was uninsured, employed a wrecking company, which succeeded in saving her. •

      Held, that the defendant was, under its policy, bound to contribute its just and fail-proportion of the expenses incurred in so saving the steamer.
    The value of the steamer, as stated in the policy, was $75,000. Upon a general average adjustment the contributory value of the steamer was stated at $275,000.

      Held, that the defendant was only bound to contribute such a proportion of the total expenses as the value of the steamer, as fixed in the policy, bore to its value as slated in the general average adjustment.
    Controversy, submitted to the General Term upon agreed facts, under sectioü. 1279 of the Code of Civil Procedure.
    The plaintiff’s steamer Massachusetts, from New York bound for Providence, went ashore, in a violent storm, at Rocky Point, Long Island Sound, on the night of October 4, 1877, and, the efforts of the officers and crew to get her off being unsuccessful, she was in danger of becoming a total wreck. Each of the insurance companies above named, except the Phenix, had a policy upon the steamer for $5,000. The Phenix Insurance Company had a policy of $10,000.
    On receipt of the news of the disaster in New York, the president of the Providence & Stonington Steamship Company, owners of the steamer, called a meeting, which meeting was attended by the representatives of all the companies, and at which meeting the latter told the president of the steamship company to act as though the steamer was uninsured. The president of the steainship company thereupon instructed Captain Merritt of the Coast Wrecking Company, who was present at the meeting, to use every effort to save the vessel. The efforts made to save the steamer were successful, and on October 19, 1877, she reached New York and was docked for repairs. The insurance companies, after making an examination, offered to pay the sum of $46,000 to cover the expenses of repairing the steamer. That offer was accepted by the owners, and that amount was paid. Subsequent to the payment of the $46,000, the -Coast Wrecking Company rendered a bill of $35,000 for their services in saving the steamer. The bill was deemed excessive both by the insurance companies and by the owners of the steamer. ' After consultations with the insurance ■companies, the president of the steamship company made a settlement with the Coast Wrecking Company and paid them, with the assent of the insurance companies, in full settlement, the sum of $17,500 (and in addition thereto, paid other sums necessarily expended in saving the steamer, amounting to $4,340, making the total expenditure $21,840).
    On December 15, 1877, a statement of general average was made Iby Messrs. Johnson & Higgins, in which the contributory value of the Massachusetts was stated at $275,000, which was the fair value thereof.
    It is claimed by the owners of the steamer that, under the policy, the insurance companies should pay to them, in addition to the $46,000 paid for repairing the steamer, the further sum of $21,840 {cost of saving the steamer), in the proportion of $1,456 on every policy of $5,000.
    It is claimed by the insurance companies: First, that having paid $46,000 to cover expenses of repairing the steamer, they are not liable for the payment of any further sum whatever; and, •second, that if liable to pay any proportion of the said sum of $21,840, they are liable to pay such proportion thereof as the value •of the said steamer, as stated in the said policy, bears to the value •of said steamer, as stated in the said adjustment of general average, •or that, on each policy of $5,000, there is to be paid the sum of $397.09.
    The questions submitted to the court were:

      First — Are the insurance companies, having paid $46,000, to •cover the cost of repairs to the steamer, bound to pay anything more ? and

      Second — If the insurance companies are liable, what amount aré they bonnd to pay ?
    By the policy, “ The Phenix Insurance Company of Brooklyn, N. Y., in consideration of the sum of two hundred dollars, do insure the Providence & Stonington Steamship Company for account of whom it may concern; loss, if any, payable to the treasurer, $10,000 on the steamer Massachusetts, her hull, engines . . . for the term of six months from May 4, 1877, to November 4, 1877, said steamer being, for the purposes of this insurance, valued at $75,000.
    “ It is understood that this policy covers all perils of the sea and navigation usually takén by marine underwriters, loss by fire ex-oeptod, but that no thirds are to be deducted in case of partial loss.. It is further understood that this company shall not, be liable for damage to boilers or machinery unless caused by stranding, sinking- or collision.
    “No contribution shall be claimed under this policy for any damage not exceeding the sum of five hundred dollars.
    “ In case of loss, payment under this policy to be made within thirty days after proof of same.”

      John K. Porter and IF". P. Dixon, for the plaintiff.

      Wheeler H. Peckham and Butler, Stillman c& Hubbard, for the defendants.
   Barrett, J.:

The first question presented by this agreed case is whether the insurance companies are liable at all, for the expenses incurred in saving the plaintiff’s steamer. The defendants admit (and have settled) their liability for the repairs, but insist that the expense of getting the steamer off the point where she was stranded is not. within the terms of the. policy. If this were a marine policy, with the usual “ sue and labor ” clause, and the expression “ free from average unless general,” it is not doubted that the underwriters would be bound to contribute. “ A stranded vessel ” says Benecke, “ is in most cases in danger of being lost unless speedy measures be taken for her preservation ” — precisely this case. “ These measures,” he adds, “ are general average so far as they serve to^ avert a danger threatening the whole concern. The charges thereupon of heaving the vessel off without discharging her are general average.” (2 Phillips on Marine Insurance, § 1340.) This is upon the principle that parties having a common interest in property shall sustain a fair proportion of a sacrifice made, or expenses incurred in relation to it for the common benefit. The case of Aitchison v. Lohre (Law Rep., 4 Appeal Cas., 755) does not disturb this well-settled principle. A distinction was there drawn between salvage and ordinary expenses. ’ It was held that the former was not within the sue and labor ” clause. But Lord Blackburn took pains to limit this rule to salvage, and to exclude ordinary expenses from its operation. ' “ In some cases,” he observes, “ the agents of the assured hire persons to render services on the terms that they shall be paid for their work and labor, and thus obviate the necessity of incurring the much heavier charge which would be incurred if the same services were rendered by salvors who are to be paid nothing in case of failure, and a large remuneration, proportional to the value of what is saved, in the event of success. I do not say that such hire may not come within the suing and laboring clause.” The defendants in the present case, however, are fire insurance companies authorized to take certain marine risks. Their policies are not in the ordinary form in use by marine insurance companies. For instance, the “ sue and labor ” clause has not, in so many words, been embodied therein; nor has the expression “ free from average unless general.” The insurer’s liability is, in fact, wholly governed by the following language: “ It is understood that this policy covers all perils of the sea and navigation usually taken by marine underwriters, loss by fire excepted.” The défendants contend for a literal construction of this clause. The stranding, they concede, was a peril of the sea. That necessitated repairs for which they were liable and for which they have paid. The getting the steamer off, however, was to a/ooidfwrther peril. Ergo, the expense did not directly result from a peril of the sea or of navigation; This is altogether too narrow a view of the obligation. Even an ambiguous policy of insurance is to be construed liberally in favor of the insured. (Rolker v. Great Western Ins. Co., 3 Keyes, 17.) But these policies were clearly intended to indemnify the plaintiff in case of loss to the same extent as though issued in the ordinary form by marine insurance companies. With the latter, these defendants were attempting to compete. It is not likely, then, that they held out inferior inducements. Both parties, therefore, undoubtedly understood that the language employed was a short way of engrafting upon the contract the usual provisions of a marine policy. If, in consequence of the phraseology used, the “sue and lábor” clause is deemed to be excluded — why not also the expression “ free from average unless general”? And as the liability to contribute to general average depends upon the construction which gives the latter phrase the effect of an affirmative covenant, what-then becomes df that liability? In our judgment the word “ perils ” was plainly used in the sense of “risks:” Otherwise the phrase is awkward. “Marine underwriters” do not “.usually” take perils of the sea and navigation. They take marine risks. The acts of the parties, too, favor this construction. It appears that on receipt of the news of the disaster in- New York, the plaintiff’s president called a meeting, which was attended by the representatives of all the companies, at which meeting the latter told him to act as though the steamer was uninsured. ¡ -Thereupon the president instructed Oaptain Merritt, of the Coast Wrecking Company, who’was present, to use every effort to save the vessel: We cannot agree to the paraphrase put upon this by the learned counsel for the defendants. It was by no means equivalent to saying “ we (insurance companies) will have nothing to do with it; you (ship owners) must take your own course and leave questions of liability to be settled afterwards.” The meeting could have been called for no other purpose than to secure the defendant’s consent to the employment- of the special and somewhat expensive means involved in the efforts of the Coast Wrecking Company. The unaided efforts of the officers and crew had been unsuccessful, and the steamer was in danger of becoming a total wreck. The defendants .were, of course, deeply interested in the fate of the vessel, and in the extraordinary measures proposed and directed by the plaintiffs. Considering the situation of affairs, the only reasonable -characterization of what took place at the meeting is, that the defendants assented to the employment of the Coast Wrecking Company with the understanding that they would contribute their fair and just proportion of the expenses. We therefore answer the -first question submitted to us in the affirmative.

The second question is, as to the amount which the companies áre bound to pay. Upon a general average adjustment, the contributory value of the steamer was stated at $215,000, “ which,” says the submission, ‘- was the fail*-value thereof.” The value, as stated in the policies, was $75,000. The plaintiffs claim that the defendants are bound to contribute the entire amount which, upon the valuation of $275,000, was charged upon- the steamer. The defendants insist that they are bound to contribute only such proportion of that amount as the value fixed in the policies bears to the value as stated in the general average adjustment. ¥e are persuaded that the defendants are right in this contention. The fallacy of the plaintiff’s position with regard to it consists in treating the expenditure in question as damages resulting directly from the perils insured against. They thus put. this expenditure, upon precisely the same footing as that incurred for the repairs necessitated by the accident; and, upon the same principle, claim full indemnity therefor. This is an erroneous view of the underwriter’s engagement. Primarily he agrees to pay for the loss of the thing insured, or some part of it. That, of course, would cover the -repairs. There, however, the liability would stop, but for the “ sue and labor ” clause, and the contract to pay general average. The latter engagements are entirely distinct from the direct liability for damages occasioned by the perils insured against. They are simply undertakings to contribute — that is, to bear a due proportion of the expense. If a loss is averted by the services of the assured and his servants, or of others hired by them, “ the underwriters are liable,” says Lowndes, “ under the sue and labor clause, not as part of the sum insured, but as a contribution made by them as persons who have avoided detriment by the result.” It is clear, then, that the defendants are only bound to contribute to the expense incurred in getting the steamer off. It is equally clear that their contribution should be proportionate to the value of the steamer, as fixed in the policy. The learned counsel for the plaintiffs devote a large part of their able brief to an elucidation of the principle that, as between insurers and insured, a valued policy is to be taken as fixing the true value of the subject insured. This is, indeed, well settled, and hardly needed a citation of the numerous authorities in this country and in England. It is this very rule which the defendants invoke and rely upon. Under it they deny their liability to contribute upon a greater valuation than that fixed in the policies. And in this they are correct. The truth is that the plaintiffs were their-own insurers to the extent of $200,000. Upon that amount they are bound to contribute. This is so as to contributions in general average. The underwriters, ” says Arnould (vol. 2, p. 950), “ are-not bound to reimburse the insured the full amount of his contribution, but only that proportion of it which the value of his interest as insured bears to its value as estimated for the purposes of contribution.” The same is true of contribution under the sue and labor ” clause. “ An underwriter’s liability,” says Lowndes, “ whether for general average or under the sue and labor ’ clause, is a liability not absolutely to pay the whole, but to contribute. If, therefore, that which is really saved by the sacrifice or expenditure is something more than the policy value of the thing insured, the expense must be divided ratably between the value saved to the insurer and the value saved to the assured, or to some third party. If, for example, a cargo which is valued in the policy at £5,000 is saved by this means, and if the real value of that cargo in the market is £6,000, the insurer is only liable to pay five-sixths of the general average or expense. The owner of the goods, who has derived benefit from the saving of the property to the extent of one-sixth over and above the amount covered by insurance, must boar one sixth of the ransom.” (Lowndes Law of Average, 3 ed., 248. See also, 2 Pars. on Ins., 348; 3 Kent Comm., 274; Hotchkiss v. Insurance Co., 1 Robt., 499; Clark v. Insurance Co., 7 Mass., 365; Welles v. Insurance Co., 6 Pick., 182.) It is true, as urged by the plaintiffs, that the liability attaches even when there is no cargo to contribute. It is sufficient that the sacrifices are vm the nat/wre of general average. But even in that case underwriters are liable for the expenses only “ vn the proportion in which the value of the ship is insured by the policy.” (2 Phillips on Ins., § 1412; Potter v. Ocean Ins. Co., 3 Sumn., 37.) As Judge Story observed in the latter case, “ If the plaintiff was not fully insured, he must contribute his proportion towards the common expenditure.” And this is manifestly just. The plaintiffs emphasize the fact that, but for the rescue of the steamer, there would have been a total loss. That is true. It is equally time that such total loss would have 'cost the insurance companies full $75,000. But would it not also have cost the plaintiffs the full uninsured $200,000 ? With what show of justice then, can they claim to be relieved of ■every part of the burden of rescue % Both upon principle' and authority, we are of opinion that this burden should be shared by the parties, in proportion to their respective interests. That is our answer to the second question.

Judgment accordingly for the plaintiffs, 'for the respective amounts due to them, under the conclusions of this opinion, with ■costs.

Davis, P. J., and Daniels, J., concurred.

Judgment ordered for plaintiffs, with costs, for the amount indicated in the opinion.


author: Barbett, J.:

text:
    CHRISTINA ECKHARDT, alias NANNETTE ECKHARD, alias NANNETTE BOLENIUS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK. Defendants in Error.

      Indictment — what degree of precision and certainty is required therein — meaning of “pregnant woman."

    Section 11 of 3 R. S. (6 ed.), 932, provides that “ every person who shall administer to my pregnant woman, or prescribe for any such woman . . . any medicine ... or shall use or employ any instrument or .other means whatever, with intent thereby to procure the miscarriage of any such woman, shall, upon conviction, be punished,” &c.
    Meld, that an indictment thereunder was not rendered insufficient by the substitution therein of the words “a woman with child” for the words “pregnant woman.”
    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 .relator, for an attempt to commit an abortion.

      WilUam F. Kintzing, for the plaintiff in error.

      JDa/mel Gr. Mdllms, assistant district attorney, for the people.
   Barbett, J.:

The plaintiff in error was convicted of the crime of using and employing a certain instrument upon the body and womb of Minnie Pape, with intent thereby to procure a miscarriage; in common parlance, an attempt to commit an abortion. The indictment was framed under the following provision of the Revised Statutes (3 R. S., 6 ed., 933, § 11):

“ Seo. 11. Every person who shall administer to any pregnant woman, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug, substance or thing whatever, or manufacture, advertise or sell any such medicine, drug, substance or thing whatever, or shall use or employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman shall, upon conviction, be punished by imprisonment in the county jail or in a State prison not less than one, nor more than three years, in the discretion of the court.”

The case comes before us upon the judgment record alone, and-the only objection which is made to the indictment is the use therein by the pleader of the words, “ a woman with child,” instead of the words, “pregnant woman? The pleader is bound to state all the facts and circumstances necessary to bring the act charged as an offeúse within the statute, but he need do no more. For instance, he is not bound to follow the exact phraseology of the statute. He may, if he chooses, use words which are equivalent thereto in meaning. (1 Bish. Cr. Pr., 2 ed., § 612.) It is sufficient if he etnploy so many of the substantial'words of the statute as to enable the court to see on what statute it is framed, and beyond this use all other words which are essential to a complete description of the offense. (Id.) Applying these rules, in connection with the statute of-jeofails, to the present indictment, and there can be no reasonable doubt as to its sufficiency, especially after verdict and judgment herein. The words, a woman with child,” in their immediate connection and surroundings in this indictment, are plainly the equivalent of the words, pregnant woman,” and cannot well be misunderstood.- The lexicographers, Webster and Worcester, agree in placing the expression to be with child ” in the same category with “ to be pregnant.” ' Webster defines the adjective “ pregnant” as “being with young, as a female, great with child;” the noun, as “ one who is pregncmt or with childf The latter expression is not only in common use as synonymous with pregnant, but is thus frequently to be found in the writings of some of the most distinguished of English authors. The suggestion that it might, possibly be taken in the sense of “a woman accompanied by-a child ” is strained and far-fetched, and such a construction is repugnant to reason and common sense.

We agree with the learned counsel for the plaintiff in error that there must be a degree of certainty and precision in an indictment, and we think that that degree has been attained in the present instance. But we cannot agree to the hypercritical application of the principle involved in the inapt analogies and grotesque illustrations, with which the claim of ambiguity is pressed upon us. In our judgment there is no ambiguity in an allegation the substance of which, as tersely put by the learned assistant district attorney, is “that with intent to procure the miscarriage of a woman with child, one feloniously assaulted her and willfully inserted an instrument into her womb and body.”

The judgment should be affirmed.

Davis, P. J., concurred; Brady, J., concurred in the result.

Judgment affirmed.