author: ■Childs, J.:

text:
    ELLEN DEMINGS, Respondent, v. THE SUPREME LODGE KNIGHTS OF PYTHIAS OF THE WORLD, Appellant.

      Benefit society — must show the legality of an assessment where they seek to exclude a member because of its non-payment — admissions of a member not competent against his beneficiary.

    ■Where a benefit society seeks to defeat the payment of the claim of a member thereof, upon the ground that an assessment was duly made upon him; that notice of it was given and received by him; that he failed to pay it, was duly suspended and all his claims under his certificate forfeited, it must establish, as matter of affirmative proof, that said assessment was regularly and properly levied according to the laws of the society.
    Where, in an action upon a death claim in such a society, the society has failed to establish the legality of the assessment, the rights of the beneficiary named in the certificate cannot be prejudiced by proof that the member had requested the society to suspend him from membership.
    Appeal by tbe defendant, the Supreme Lodge Knigbts of Pythias ■of the World, from a judgment, entered in the clerk’s office of Erie county on the 1st day of October, 1890, in favor of the plaintiff for $1,364.73, after a trial at the Erie Circuit before the court and a jury; and also from an order, entered in said clerk’s office on the 17th day of October, 1890, denying the motion of the defendant for a new trial upon the minutes of the court.

      Charles B. Wheeler, for the appellant.

      Sarrmél M. Welch, for the respondent.
   The General Term adopted the opinion of Mr. Justice Childs, delivered on a motion before him for a new trial, which is given below.

■Childs, J.:

This action was brought by the plaintiff upon a beneficiary certificate issued by the defendant to George Demings, her husband, whereby the defendant, in consideration of the payment thereafter by George Demings of all assessments as required, and the compliance with all laws governing the rank, and of his being in good standing under the laws, agreed to pay to Ellen Demings, plaintiff, as directed by said George Demings in his application, or to such other person or persons as he might subsequently direct by will or otherwise, the sum of $1,000. The complaint, among other things, alleged the issuing of the certificate of membership by defendant to said George Demings, set forth in the complaint, whereby the defendant in consideration of the payment hereafter to said endowment rank of all assessments as required, and the full compliance with all the laws governing this rank now in force, or that may hereafter be enacted, and shall be in good standing under said laws, agree to pay the sum of one thousand dollars to Ellen Demings, plaintiff, as directed by said George Demings in his application for such membership ; and further alleged that said George Demings during his lifetime duly complied with and performed all the above mentioned terms and conditions of said certificate, of membership on his part, and complied with all the laws, rules and regulations governing said defendant and said section 491, endowment rank; and that said contract and agreement was at the time of the death of said Demings in full force and effect. The defendant by its answer admitted substantially all the allegations of the complaint except the allegation that said Demings during his lifetime complied with and performed all the terms and conditions of the said contract and agreement with the defendant, which was denied. In the sixth clause of the defendant’s answer it was alleged that on or about the 22d day of November, 1884, an 'assessment was duly made in pursuance of the laws governing said endowment rank, and upon George Demings among others ; that due and proper notice of such assessment was given to and received by said George Demings pursuant to the by-laws of the defendant; that said Demings neglected and refused to pay said assessment, and for failure to pay the same as required, was duly suspended from said class of the endowment rank and forfeited all claims upon the endowment fund belonging to said class as provided in and by said contract. Upon the trial the defendant admitted the issuing of the certificate of membership to George Demiúgs; that Demings died at the city of Buffalo on the 5th day of February, 1889, and that the plaintiff is the beneficiary mentioned in said certificate; that the plaintiff gave due notice to the defendant of the death of said George Demings and caused to be prepared and served upon said defendant due proofs of said death September 23, 1889, and thereafter demanded the sum of one thousand dollars from the defendant, payment of which was refused.

After placing in evidence the certificate set forth in the complaint and the application referred to in said certificate, the defendant admitted that there was, at the time of the death of the said George Demings, over one thousand members of the defendant’s society. Plaintiff here rested her case. Defendant’s counsel read in evidence the general laws and constitution for the government of sections of the endowment rank, adopted by the defendant August, 1880, also the general laws and constitution for the government of sections of the endowment rank, adopted by the defendant April 30, 1884, and in force at the time of the death of George Demings, and then called as a witness one "William Fraize, who was the secretary and treasurer of section 491 of the endowment rank of the Knights of Pythias, of which section said George Demings was a member in his lifetime, and offered to prove by said witness and others, “ that a notice was received from the Supreme Secretary of the Supreme Lodge, together with notices of assessments from them for mailing; that the Secretary duly notified the said George Demings of the levying of the assessments 66 and 61; that he, the said Demings, received those notices of assessment; that he failed within thirty days thereafter to pay such assessment; that he was called upon, personally, afterwards by the Secretary to pay it, that the said Demings then notified the Secretary that he intended to pay no more assessments, and stated to said Secretary and Treasurer that the lodge should suspend him, and accordingly, after the expiration of thirty days, the fact was reported to branch 491 and he was declared suspended for non-payment of his dues, and that fact was reported by the Secretary to the Supreme Lodge, and that he has never since paid any of his dues or assessments.” The plaintiff objected to this offer and the objection was sustained by the court, and the evidence excluded upon the ground that the defendant was required to establish the fact that the assessment, 'for the non-payment of which the defendant claimed the forfeiture, was regularly and properly levied according to the laws of the defendant. No further testimony being offered the court thereupon directed a verdict for the plaintiff for $1,262.50, the amount agreed to be paid in said certificate, with interest thereon, to which ruling the defendant’s counsel duly excepted.

The correctness of the ruling upon this offer presents the only question to be examined upon this motion. It will be observed that the offer embraced two distinct propositions: First, the offer to show the service upon George Demings by the secretary and treasurer of a notice received from the supreme secretary of the defendant, as a full compliance with the laws of the defendant justifying the suspension of Demings in the event of the non-payment of such assessment, and the consequent forfeiture of all rights of the plaintiff under the certificate mentioned; second, the declarations of George Demings, made after the issuing of said certificate, for the purpose of defeating any right of plaintiff thereunder.

The introduction of the certificate in evidence established the good standing of George Demings at the time it was issued, and the same will be presumed to have continued until the contrary appears; and the burden was on the defendant to show that by the violation of some law of the defendant the deceased had lost his good standing. (Supreme Lodge Knights of Honor of the World v. Johnson, 78 Ind., 110.) Such being the rule, the question is sharply presented as to whether the proof of the non-payment of an assessment notified to the deceased, as in this case, would satisfy the rule and cast the burden upon the plaintiff of establishing the fact that the assessment was improperly or illegally made. I am not able to assent to this proposition as claimed by the defendant, but, on the contrary, am of the opinion that the burden of establishing this pivotal fact rests with the defendant until the end, and that if a forfeiture of membership and benefits is claimed, the defendant must affirmatively establish the fact that the assessment was properly and legally made within the laws, rules and regulations of the defendant, and that the service of a notice, as claimed in this case, would not, even prima faoie, establish the legality of the assessment. This question does not appear to have been considered by any of the courts in this State, but was considered in the Court of Appeals of Kentucky, in the American Mutual Aid Society v. Helburn et al. (2 Southwestern Rep., 495), in an elaborate opinion by Bennett, J., whose conclusion seems to be well supported by the authorities cited, which is to the effect that in making assessments upon its members a corporation of the character of this defendant does not act in a judicial, but in a ministerial, capacity, and that no presumption can arise in favor of the regularity or legality of its assessments.

That a deceased member of the society should have died; that his representative was entitled to a benefit arising from his death, and that an assessment upon all the surviving members was actually made for the purpose of paying said assessments, are conditions precedent to the right of the society to demand payment of an assessment from any of its members, and the society must show affirmatively that the assessment was made in the manner indicated, otherwise the member cannot be said to be in default. It is true that the question here decided arose upon demurrer, but the pleadings presented substantially the same issue as in this case, and necessarily required the question now under consideration to be determined by the court. In that determination I concur, and do not understand the defendant to insist upon this motion that the court was in error in ruling that the defendant was required to establish, as part of his affirmative defense, the legality of the assessment in question, but to rely upon the second proposition involved in the offer quoted.

This proposition presents the single question as to whether a member of a rank of the defendant who has, in the certificate received by him, indicated the person to whom, in case of his death, the benefit should be paid, can, by his declaration made after the rights of the parties are thus fixed, defeat the rights of such beneficiary under the certificate. I do not think that any declaration of the member can have the effect of terminating his membership) and working a forfeiture of the rights of the beneficiary named in the ■certificate, but that to entitle the corporation to suspend or expel a member, and thus deprive the beneficiary named in its certificate ■of any rights thereunder, it must strictly observe the rules and laws, and that whenever it asserts a forfeiture it must affirmately establish such compliance with its rules and laws.

The purpose of proving the statement of Demings, as contained in the offer, could only be to excuse proof by defendant of the regularity of the assessment, the alleged non-payment of which furnished the ground for his suspension, for it is quite plain that with proof of the regularity of the assessment in question, and nonpayment thereof followed by suspension of Demings, the defense, would be complete and the statements wholly immaterial. Again, that part of defendant’s offer now under consideration was to prove, first, a refusal to pay the particular assessment in question, which we have seen is quite immaterial in the absence of proof of the legality of the same, and, second, to prove the request of the member for his suspension, and that his branch thereafter, upon report of such request and in pursuance thereof, did suspend him and thereby terminate and put an end to the rights of plaintiff under the certificate. It would not seem necessary to say that the defendant coidd only terminate the membership of Demings in the manner and for a cause pointed out and provided for in its laws, and this not being one of the causes so provided, that the action referred to did not, as against this plaintiff, work the result claimed. It is unquestioned, that evidence of the declaration of Demings would be competent in connection with proof of the legality of the assessment for the purpose of establishing notice to him of the assessment and his refusal to pay, but such evidence cannot establish the fact of the legality of such an assessment as against the beneficiary. Her rights cannot be disposed of in this manner, and such was the ruling on the trial. The evidence offered was excluded only upon the statement of defendant’s counsel, that he was unable to prove further or different facts than those embraced in the offer.

The cases referred to by the defendant do not, upon examination, .seem to be in conflict with the views expressed. This question was considered and determined adversely to the claim of the defendant in Supreme Lodge Knights of Pythias of the World v. Schmidt et al., in the Supreme Court of Indiana (98 Ind., 374) and also in Lazensky v. Supreme Lodge Knights of Honor (Circuit Court, Southern District of New York, 31 Fed. Rep., 592).

No reason is perceived why the rule established in these cases should not be followed. To hold that the rights of a beneficiary in such a certificate could be wholly defeated by some declaration or admission made by the member would not only be opposed to the current of authority, but Avould open the door to the grossest frauds. 'The member is dead; plaintiff has no means of contradicting or disproving any statement made as to such declaration or admission, and is left wholly at the mercy of any person who might, through any evil motive, be prompted to give false testimony. While it is not asserted that such would be the natural or probable result of such a holding, yet it is deemed to be much better that the rule should exclude the possibility of such injustice.

My conclusion is that the ruling of the court upon the propositions here presented was correct, and that the motion should be denied, with ten dollars costs.

The foregoing opinion was delivered at Special Term, and was adopted by the General Term.

Present — Dwight, P. J., and Macomber, J.

Judgment and order appealed from affirmed on an opinion of Childs, J., at Special Term.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    WILLIAM ARMSTRONG, Respondent, v. HERVEY SANDFORD, Appellant.

      County Court — opening a judgment, entered upon an appeal from a Justice’s Court, upon affidavits relating to the legal questions involved.

    In an action begun in a Justice’s Court the defendant answered that a former suit had been brought by him in said court against the present plaintiff, in which the latter had failed to set up his present cause of action as a counter-claim, and that judgment was rendered in that suit in favor of the plaintiff therein.
    On appeal to the County Court the judgment of the justice was reversed.
    Subsequently, upon affidavits tending to show that said former action, and the offer of evidence in respect thereto, were a sham, (he county judge opened his judgment and affirmed the judgment of the justice.

      Held, that he had no power to do so; that, having once reversed the judgment he could not change his decision, upon affidavits relating- to the legal questions involved.
    Appeal by the defendant Hervey Sandford from a judgment of the Niagara County Court, entered in the office of the clerk of said county on the 31st day of December, 1889, opening a former judgment, rendered herein by said court setting it aside, -and affirming a judgment rendered herein by a justice of the peace in favor of thé plaintiff, with notice of an intention to bring up for review upon such appeal the order of said court, upon which said judgment of the 31st day of December, 1889, was entered.

      AdeTbert Moot, for the appellant.

      George Wing, for the respondent.
   Macomber, J.:

This action was originally brought before a justice of the peace to recover the sum of seventy-five cents, being the amount of three trips at twenty-five cents each, taken by the defendant in a vehicle owned by the plaintiff, who claimed to be a common carrier, between the railroad station on the Rome, Watertown and Ogdensburg Railroad in Lewiston and the village of Lewiston in Niagara county.

The answer consists of a general denial and an allegation to the efEect that the defendant “ brought a cause of action against this plaintiff to recover damages upon or for breach of a contract; that this plaintiff then neglected to interpose any counter-claim, and no counter-claim was, in fact, pleaded to said cause of action.” Upon the trial proof was offered to the effect that in the month of July, 1888, a year after the alleged indebtedness accrued to the plaintiff, a summons was issued in favor of this defendant against this plaintiff, and that the same was served, but under objection made by the plaintiff’s counsel, such proof was excluded, and the offer of proof seems to have gone no farther.

Whether this answer so made and such offer of proof would justify the County Court in reversing the judgment is not before us; for upon appeal by the defendant to that tribunal such judgment was reversed. Upon a rehearing, which appears to have been had upon affidavits tending to show that the answer and offer of evidence in the Justice’s Court was not sincere, but a sham, the learned county judge has reversed his former judgment and affirmed the judgment of the justice of the peace.

In our opinion the county judge had no power, in disposing of the questions before him, to hear and act upon affidavits explaining away and defeating the purpose for which the evidence before the justice of the peace was offered. Accordingly, the argument addressed to us by the learned counsel for the respondent, to the effect that the answer and the proofs offered thereunder before the magistrate were not competent, cannot be taken into account. Had the present respondent appealed from the original judgment of the County Court reversing tlie determination of tire justice of tbe peace, this argument would be entitled to much consideration and would require an expression of our views thereon; but at the present time we do not deem it opportune, and, therefore, content ourselves with determining the question solely as to the power o'f the county judge, having once reversed the justice of the peace by a judgment duly entered in the County Court, to open the same upon affidavits relating to the legal questions involved, and denying the existence of that power.

The judgment appealed from should be reversed, but without prejudice to any appeal which the plaintiff may prosecute from the original judgment of the County Court, provided the same may yet be timely taken.

Dwight, P. J., concurred.

Judgment of County Court of Niagara county, setting aside its previous judgment herein, reversed, with costs.


author: Dwight, P. J.:

text:
    BENEDICTA DURNHERR, Appellant, v. JOSEPH RAU, Respondent.

      Covenants —for the benefit of a third person — rescission of a covenant by a new deed between the covenantor and covenantee — dower interest lost through default in covenant to pay incuinhrances.

    One Durnherr conveyed, individually, certain premises to Joseph Rau by a deed, in which the latter covenanted to pay the incumbrances then upon the . premises. Seventeen days later Durnherr and said Joseph Rau quit-claimed all their interest to one G-ustavus Rau, the latter assuming the payment of said incumbrances.
    Upon the trial of an action, brought by the wife of Durnherr, having a dower interest in the premises, against Joseph Rau upon his covenant to assume the incumbrances thereon, it appeared that, because of Rau’s failure to pay said incumbrances, the same had been foreclosed, and that the plaintiff had lost her dower interest in the premises. There was no proof given that, at the time the second deed was executed, she had ever heard of the covenant in the former deed, or that she had ever accepted or acted upon it.

      Held, that the action could not be maintained.

      That, as the wife was not a party to the deed, and as there was no proof aliunde to show that it was made for her benefit, Joseph Rau, the covenantee, owed her no duty to protect her inchoate right of dower.
    That the fact that performance of said covenant would have contingently benefited the plaintiff would not support her action.
    That the second deed worked a rescission and revocation of all the covenants then existing between the grantor and grantee in the first deed, and equally so as to the rights of all persons who had not acquired vested rights under such covenants, which was the position of the plaintiff in respect thereto.
    Appeal by the plaintiff, Benedicta Durnherr, from an order, entered in the clerk’s office of Monroe county on the 1st day of April, 1890, granting, upon motion of the defendant, a new trial upon the minutes, after a trial at the Monroe Circuit before the court and a jury.

      Theo. Bacon, for the appellant.

      William E. Edmonds, for the respondent.
   Dwight, P. J.:

The action was on a covenant of the defendant to pay incumbrances on lands conveyed to him by the plaintiff’s husband. The covenant was contained in the deed of the husband to the defendant, to which the plaintiff was not a party. She had joined in the execution of certain mortgages included in the incumbrances referred to, which in default of payment by the defendant, were foreclosed and her right of dower was defeated. She commenced this action after the death of her husband, alleging the value of her dower as the measure of the damages sustained by her by reason of the breach of the defendant’s covenant. In addition to the facts above stated, it appeared that seventeen days after the execution of the deed from the husband to the defendant the grantor and grantee therein united in a deed of the same premises to one G-ustavns Ban, which contained the same covenant on the part of the new grantee to pay incumbrances. The court on the trial submitted to the jury the question of the value of the plaintiff’s dower, which was assessed at the sum of $500, but on a motion for a new trial set aside the verdict, holding that the plaintiff had not made out a cause of action against the defendant. ^

We think this conclusion was correct, and that the order setting aside the verdict was properly granted. The plaintiff’s claim to recover was based upon the doctrine of Lawrence v. Fox (20 N. Y., 268) and the verdict was set aside, as appears by the opinion of the learned judge at the circuit, on the ground that the case was not within'that doctrine for the reason that the covenantee owed no duty to the plaintiff to protect her inchoate right of dower. (Vrooman v. Turner, 60 N. Y., 280.) The argument of the opinion is forcible and well sustained by the authorities cited, but we think there was another reason why the case was not within the doctrine relied upon, viz., that the covenant does not by its terms purport to be, and there is no proof aliunde to show that it was made, or procured to be made, for the benefit of the plaintiff. It ivas the grantor in the deed who was liable to pay the incumbrances, and the covenant on the part of the grantee stood for so much of the consideration of the sale. It is true that performance of the covenant would have inured to the benefit of the plaintiff, but only consequentially and contingently; the covenant was primarily and directly for the benefit of the grantor himself, and there is nothing to show that it was intended for the benefit of the plaintiff in any event. If it was not made or intended for her benefit it was certainly not a covenant upon which • she can herself maintain an action, she being neither party nor privy to the deed in which it was contained. The provision in the deed which reserved the plaintiff’s right of dower, had, of course, no reference to the incumbrances here in question. It was quite unnecessary, it is true, for the purpose of reserving the dower from the effect of the conveyance in which it occurred, but that was the extent of its operation, and it seems to lend no color to the proposition that the covenant to pay incumbrances was intended for the benefit of the plaintiff.

' But, even though the case were clearly within the doctrine of Lawrence v. Fox, we think the plaintiff must fail of her action •because of the revocation of the covenant by the execution of the joint deed of the covenantor and covenantee to a third person. That deed is before us, as it ivas not before the judge below on the motion for a new trial. It is a quit-claim conveyance of all the interest of both the parties to the former deed, and is subject to the same condition as the former as to the payment of incumbrances by the grantee. It was executed some seventeen days after the former deed, and there is no evidence that at that time the plaintiff had ever heard of tbe covenant in tlie former deed, mucli less bad in any manner accepted or acted upon it. We can have no doubt that tbe joint execution' of tbe new deed by tbe grantor and grantee in tbe old one worked a complete rescission and revocation, as between them, of all tbe covenants contained in tbe former, and equally so as to all other persons, except such as bad acquired vested-rights under such covenants. Tbe plaintiff was clearly not within tbe latter category.

Upon both tbe grounds here considered, we think tbe order setting aside tbe verdict and granting a new trial was properly made.

Maoomber, J., concurred.

Order appealed from affirmed, with costs.


text:
    MATHIAS SCHENCK and Another, Appellants, v. ARTHUR B. IRWIN, Respondent.

      Supplementary proceedings — execution—to what county issued — an order to examine a third party is appealable — waiver of an objection to the jurisdiction.

    A judgment recovered in tlie County Court of Steuben county was docketed there, and an execution thereon was issued to the sheriff of that county, where the defendant then resided, and was returned unsatisfied. The debtor subsequently removed to Chemung county,'and while he was residing there supplementary proceedings were taken against a third person as one having property of the judgment-debtor. The affidavit upon which the order was granted did not show that, “at the time of the commencement of the special proceedings,” an execution had been issued to Chemung county.

      Held, that this was necessary in order to give the court jurisdiction.
    That the phrase, in subdivision 2 of section 2458 of the Code of Civil Procedure, “If the judgment-debtor is then a resident of the State,” refers to the time of the commencement of the special proceeding.
    That the appearance of such third party before a referee, and his submission to examination, is not a waiver of an objection to jurisdiction.
    .Such an order affects a substantial right, and is appealable under subdivision 2 of section 2433 of the Code of Civil Procedure.
    Appeal by tbe plaintiffs, Mathias Scbenck and Frank L. Pease, from an order made by Hon. Harlow Hakes, County Judge of Steuben county, and entered in the clerk’s office of Steuben county on the 10th day of March, 1891, vacating an order made by him on the 2d day of February, 1891, for the examination of Francis Irwin, a third person, in proceedings supplementary to execution.

      L. W. Wellington, for the appellants.

      Spencer o6 Mills, for the respondent.
   Dwight, P. J.:

The judgment was docketed as a judgment of the County Court of Steuben county, and an execution was issued out of that court to the sheriff of that county, where the judgment-debtor then resided, and was returned unsatisfied. Thereafter the judgment-debtor removed to Chemung county, and while he was residing there, proceedings supplementary to the above execution were instituted before the county judge of Steuben county against the respondent Francis Irwin, who was a resident of that county, as a person having property of the judgment-debtor. He appeared pursuant to the order in those proceedings, and was examined without objection on his part, but subsequently made a motion before the same county judge to vacate the order for his examination. That motion was granted, and from the order of the county judge of Steuben county, so vacating his former order, this appeal was taken.

The objection that the order was not appealable cannot be maintained. The statute (Code of Civ. Pro., § 2433, sub. 2) makes express provision for an appeal from “ an order made in the course of the proceedings,” “ where (as in this case) the execution was issued out of a County Court.” This order affected the substantial right of the judgment-creditors to collect their debt out of property of the judgment-debtor in the hands of a third person, and it was not an. order, in the discretion of the county judge, especially if .it was made, as we may suppose it was, upon the ground that he had no jurisdiction of the proceeding; but upon that ground we think the order appealed from was properly made and must be affirmed. The affidavit on which the first order was made was sufficient, on its face, to give jurisdiction to the county judge except in one particular. It did not show that the execution described therein had been delivered to the sheriff of the county where the judgment-debtor resided at the time the affidavit was made and the proceeding commenced. This was required by the provisions of section 2458 of the Code. That section, so far as applicable to this case, is as. follows: “ In order to entitle a judgment-creditor to maintain either of the special proceedings authorized by this article (and the proceeding in question was one of them), the execution must have been issued * * * either (1) to the sheriff of the county where the judgment-debtor has, at the time of the commencement of the special proceedings, a place for the regular transaction of business in person; or (2) if the judgment-debtor is then a. resident of the State, to the sheriff of the county where he-resides.” The affidavit showed that, the execution had been issued to the sheriff of the county where the judgment-debtor did reside when the execution was issued; but that clearly does not meet the requirement of the provision above quoted. The word “ then,” in the second subdivision of the section, evidently refers to the “time of the commencement of the special proceeding” mentioned in the first subdivision; and the use of the present tense of the verbs in the phrases “ has * * * a place of business,” “ is then a resident.” and “ where he resides,” plainly shows that the reference throughout is to the present residence, etc., of the judgment-debtor, at the time the application for the order is made. The effect, therefore, of the provision, as applicable to this case, is that in order to give to the county judge jurisdiction to make the order' for the examination of the third person, the affidavit upon which it. is made must show that the execution upon which the proceeding was based had been issued to the sheriff of the county where the judgment debtor then, presently, resided. That fact does not appear by the affidavit upon which the order was granted, and the contrary appeared by the affidavit upon which that order was vacated. This, view of the case is in accordance with the reasoning, if not necessarily involved in the decision, of this court in the case of Merrill v. Allen (13 N. Y. St. Rep., 20). But we wish to put our conclusion of the-want of jurisdiction in the county judge in this case more distinctly upon the ground that the proofs showed that the execution, which was alleged as the basis of the proceeding, was not issued to the county where the judgment debtor resided when the proceeding, was commenced.

Tlie objection was not waived by tlie attendance of the tliird person before the referee, and his submission to the examination. It was necessary to the validity of his order that the county judge .should have jurisdiction of the subject-matter, and that jurisdiction could not be given by consent.

The order appealed from should be affirmed, but without costs to ■either party against the other.

Maoomber, J., concurred.

Order appealed from affirmed, without costs of this appeal to ■either party.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM TRIMBLE, Appellant.

      Criminal law — plea of former acquittal or conviction — the affirmative is with the ' defendant —power of the court at the same term to correct an illegal sentence.

    A prisoner, upon being arraigned upon tlie crime of larceny in tlie first degree, pleaded only a former conviction. Upon this issue the case was tried in the Court of Sessions, and a verdict was rendered “for the People.” No formal judgment was pronounced upon this verdict.
    ‘The prisoner was then allowed to plead over, and pleaded not guilty. A day was fixed for the trial of this new issue, and a trial thereof was had before another jury-
    Held, that the practice was substantially correct, except that, had the defendant insisted upon it, at least two days must have elapsed between the rendition of the first verdict and the entry of judgment thereon, which judgment should have preceded the trial of the new issue.
    That the general issue is not raised by a plea of a former conviction or acquittal, and the affirmative is with the defendant upon the issue actually made.
    'That a cqurt which has pronounced a sentence which violates section 697 of the Penal Code, in that it does not expire between the months of March and November, has power to correct the sentence On its own motion and at the same term.
    Appeal by the defendant, William Trimble, from a judgment, ■entered in the clerk’s office of Niagara county on the 28th day of June, 1890, convicting him on the 27th. day of June, 1890, of the ■crime of grand larceny in the first degree, and sentencing him to imprisonment in a State prison at hard labor for the term of five-years and four months, after a trial and conviction in the Niagara Court of Sessions.

      P. Orowley, for the appellant.

      P. F. King, for the respondent.
   Dwight, P. J.:

The indictment was found in the Oyer and Terminer, and the defendant being arraigned in that court pleaded only a former conviction of the crime charged. (Code of Crim. Pro., § 332.) The case was then sent to the Court of Sessions where the sole issue joined as above was tried by a jury and a verdict was rendered for the People.” This was, by definition of the Code of Criminal Procedure, a general verdict (§ 437) and, under the provisions of sections 453 and 471 of the same statute, it was the duty of the court thereupon to appoint a time for, and at such time to pronounce-.judgment upon the defendant. What judgment was to be pronounced in such case is not expressly provided. The two general verdicts — of guilty,” after a trial of the general issue, and for the People,” after a trial of the issue of a former conviction or acquittal — are placed in the same category in all the provisions of the-statute cited; the same proceedings leading up to judgment are prescribed in both cases, and there is no indication in the statute that the judgment to be pronounced in the one case is different from that in the other. But this is evidently a casus omissus. It was never the law that the plea of a former conviction or acquittal was, in case of a felony, an admission of the facts charged in the indictment except for the purposes of the trial of the issue actually joined, and to the effect that, upon the trial of that issue, no evidence heed be given by the prosecution in support of the allegations of the indictment. At common law, in case of a felony, the judgment against the defendant on such a plea was respondeat ouster —• let him answer over or plead again (People v. Saunders, 4 Parker’s Crim. Rep’s, 198, and cases cited; 1 Arch. Crim. Pr. and Pl. [Waterman’s ed.], page 371); and unless the new plea was of guilty he was put upon his trial on the merits. Such was, substantially, the course pursued in this case. No formal judgment to that effect was pronounced,. but tbe defendant was allowed to plead anew to tbe indictment; his plea of not guilty was received, a day was fixed for the trial of the issue newly joined, and such trial was had before another jury at the time appointed; and all this was without objection on the part of the defendant. Objection is now made in his behalf that the first jury should not have been discharged, but that both issues should have been tried by the same jury. It is evident that such is not the intention of the statute in case the two pleas are separately interposed. Indeed, if the defendant had insisted upon a strict compliance with the statute, at least two days must have intervened between the rendition of the first verdict and judgment thereon .(§ 172) which must have preceded the trial of the new issue.

Although the provisions of the statute were not strictly complied with, the deviation was without objection on the part of the defendant and was not to., his prejudice. He had the full benefit of a judgment of respondeat ouster, and of a separate trial of both the issues joined by his successive pleas.

An exception taken by the defendant on the trial of the preliminary issue raised the question whether the people were required qn that trial to give evidence tending to establish the guilt of the defendant. The ruling to the contrary was clearly correct. The general issue is not raised by plea of a former conviction or acquittal, and the affirmative is with the defendant on the issue actually made. (Abbott’s Trial Brief, Crim. Causes, § 712 and cases cited.)

The defendant’s motion in arrest of judgment was based upon the ground, already sufficiently considered, of the want of a formal judgment on the preliminary issue, and on the ground of the insufficiency of the evidence to warrant the verdict against the defendant on the general issue. We have very carefully read and considered the evidence contained in the record, and, although we find it wholly circumstantial in character, we regard it as raising a very strong presumption of the guilt of the defendant, and as making a case in which the jury might well have found their minds free from reasonable doubt on that subject. We think the motion in arrest of judgment was properly denied on both the grounds assigned. None of the exceptions taken by the defendant to rulings on questions of evidence are argued on this appeal, and we find none which seem to require discussion.

An objection is made on the argument here tliat the sentence of the court was void and illegal under section 697 of the Penal Code, which prescribes that the term of imprisonment shall be so limited, as that, with due allowance for probable commutation for good behavior, it shall expire between the months of March and November.

It is conceded that the first Sentence imposed in this case, which was for five years, was subject to this objection; but it was corrected by the court on its own motion and at the same term. This it was competent for the court to do. (Miller v. Finkle, 1 Park. Crim. Reps., 374.) The mistake in the first sentence did not vitiate the judgment, and it was the duty of the court to correct the error as it did. The second sentence (of five years and four months), passed June 28, 1890, by counsel’s own computation was strictly in accordance with the direction of the statute, since it would expire on the 4th day of April, 1894.

There seems to be no other question in the case which requires attention. The judgment appealed from should be affirmed.

Macomber, J., concurred.

Judgment and conviction appealed from affirmed, and the case remitted to the Court of Sessions of Niagara county to proceed thereon.


text:
    In the Matter of the Estate of JAMES P. SHEDD, Deceased.

      Mceeutors and administrators — filing inventory — what is a “family” within the statute defining “ assets ” set apart for the widow.

    At the time of the death of one Shedd he had not lived with his wife for ten years, nor had he supported her for the last eight of said years. During said ten years he did not keep house, and at the time of his death he had no minor child nor any servants. A daughter for whom, up to the time of her majority, he had bought and paid for clothing, but not for board, became of age three years before her father’s death, she having, during the separation of her parents, lived with her mother.

      Held, that the deceased had a “family” within the meaning of chapter 157, Laws of 1842, as amended by chapter 406, Laws of 1889, providing that, upon the death of “a man having a family,” and leaving a widow or minor child, certain articles and moneys shall not be deemed assets, but shall be set apart for his widow.

      Appeal by Ezra H. Shedd, individually and as executor of James-P. Shedd, deceased, from an order or decree, entered in the office of the surrogate of Chautauqua county on the 8th day of September, 1890, requiring him as such executor to file an inventory, or that an attachment issue, and that he pay to Martha W. Shedd certain costs and disbursements.

      Frank W. Stevens, for the appellant.

      Oled Edson, for Martha W. Shedd, respondent.
   Macomber, J.:

The respondent Martha "W. Shedd is the widow of James P. Shedd, deceased, The appellant Ezra H. Shedd is the executor of the last will of James P. Shedd, and the sole legatee thereunder. There are no debts against the estate. The facts presented to the surrogate,, and as they appear from the printed record, are not disputed ; and it is the inferences to be drawn therefrom which alone are in controversy. For ten years before the death of James P. Shedd he and his wife ceased living together, and lived separate and apart, though during a portion of that period in the same neighborhood. For eight years next preceding his death the husband had not contributed to the support of his wife, nor did they have any intercourse with each other; but for about a year and a half he did, to some extent, contribute to her means of support. During this period of ten years the decedent did not keep house; had no minor child or children at the time of his death, nor any servants.' A daughter born to these persons attained her majority about three years before the death of her father. Dp to the time of her majority he bought and paid for her clothing, but not for her board. She lived and boarded with her mother most of the time from the separation of her parents until the death of her father.

Lest the surrogate might order the executor to file an inventory, irrespective of the question of the widow’s interest in the property, it was stipulated by the parties that in case it should be held that Mrs. Shedd had no such interest in the estate as she claimed, the proceedings should be dismissed and no order for an inventory be made. The surrogate directed an inventory to be filed under the following provision of the Revised Statutes : “ "When a man having a family shall die leaving a widow or minor child or children, the following articles shall not be deemed assets, but shall be included and stated in the inventory without being appraised.” (3 R. S., [6th ed.], 90, § 9.) By chapter 157 of the Laws of 1842 the exemption made by the Revised Statutes was extended so as to include household furniture and working tools from distress for rent and sale under execution. By chapter 406 of the Laws of 1889, section 2 of the act of 1842 was amended so as to make the exemption in specified cases $1,000 where it had been previously limited to the amount of $150, in addition to certain articles of personal property. The amendment made by the Laws of 1889-was repealed by chapter 173 of the Laws of 1890.

The testator died October 10, 1889, so that under the law as it stood at that time the widow, if her contention be supported, would have a substantial sum set over to her, for her immediate support, under the statute. The cause of the separation of the husband and wife, and of their continued living apart for ten years, together with the cause of the separation of the daughter from her father, is not given Indeed, the very minimum of information is afforded in the recoi’d upon which an intelligent judgment can be pronounced. We cannot indulge in any presumptions in favor of one party or the other, because the facts upon which such presumptions might safely be rested do not appear. The learned surrogate was of the opinion that, considering the relation of the parties of husband and-wife, every “ reasonable presumption may be made in her favor.”' We can hardly subscribe to this proposition. For aught that appears;, she separated from her husband without cause, and the household was broken up without fault on the part of the husband. In the absence of some evidence to justify the sundering of the relation of husband and wife, the true presumption would seem to be, that th& husband still has, as the head of the household, the right to determine the domicile of the parties.

The question involved turns upon the meaning of the word “ family.” The Century Dictionary defines that word as follows:

“ 1. The collective body of persons who form one household under one head and one domestic government, including parents, children and servants; and, as sometimes used, even lodgers or boarders. In law, husband and wife living together, and having no children, are .sometimes deemed within the benefit of a statute as to families.”

“ 2. Parents, with their children, whether they dwell together or .not; in a more general sense, any group of persons closely related by blood, as parents, children, uncles, aunts and cousins; often used 'in a restricted sense only of a group of parents and children founded upon the principle of monogamy.”

There are many other authorities which might be quoted, but it is hardly necessary to refer to them, because they all fall under •one or the other head of the definitions as above given. That the word admits of many meanings can scarcely be disputed. There .are many other definitions given of the word by various authorities, ■but the two mentioned above are the only illustrations necessary for the purpose of elucidating this case. A technical intepretation of the word is not to be adhered to where the object and intention of the law-makers clearly enough appear without such resort. As was said in the case of the People ex rel. Wood v. Lacombe (99 N. Y., 49), the laws should be so construed as to carry out the legislative intent, •even though such construction be contrary to the literal meaning of some of the words used therein. But it is not necessary in this instance to go to that extent; for, under one definition as above given, the decedent had a family within the meaning of the statute. The .argument of the learned counsel for the appellant is to the effect that in order to constitute a “ family,” within the meaning of this act, there must be a collective body of persons who live in ■ one house, under one head or manager. It is claimed by him that unless this ■condition is satisfied there is no family within the meaning of the act. If this reasoning be sound, then it necessarily follows that if there is a collective body of persons who live in one house, under ■one head or manager, irrespective of the relationship of the members ■of the household, there is a family. Suppose, for instance, that at the time of the separation of Mr. and Mrs. Shedd, instead of boarding and lodging in different places, the husband had continued his ■establishment with a retinue of servants, there clearly would have been a family under the argument presented to us, and under one of the definitions of the word. Had the decedent died under these ■circumstances he would have died having a family,” and immediately the statute above mentioned would have been applicable to the case, and the exempted property set apart not for any member of that household or of that family, but for the benefit of his wife. So we see that if this reasoning of the learned counsel is to be followed the statute would be bereft of the beneficient purpose for which it was manifestly enacted. It would be tantamount to legislating that if a man should die leaving one family, certain property must be exempt from appraisal and set apart for the use of his other family. But no sucli meaning, as it seems to us, can be ascribed to the statute. It is a plain statement of legislative purpose to set apart for the widow or minor children, or both, certain articles of property and certain moneys for their immediate necessities after the death of the husband. If a separation of ten years, without a contribution to the support of the wife by the husband, dissevers the family, within the meaning of this statute, why should not a temporary separation work the same result where the wife is able to and does provide for her own maintenance ?

Counsel for the appellant has brought to our attention the case of Linton v. Crosby (56 Iowa, 386), as being a case pointedly in his favor. Of that fact there is not much doubt. The court there held, under the statute, that where a husband and wife had lived separate .and apart for several years preceding his death, and he neither contributed nor was asked to contribute to her support, and during that time he lodged in his office and boarded in the family of others, the husband was not, at the time of his death, a head of a family,” within the meaning and intent of the statute relating to exemptions in favor of widows and minors in that State. This decision, however, we are not able to follow, and feel compelled to reject its application to the construction of our own statute.

It follows that the order appealed from should be affirmed, with •costs.

Dwight, P. J., concurred.

-Order of surrogate of Chautauqua county affirmed, with costs.


author: Per Curiam : Davy, J.

text:
    JOHN H. ASHTON and Others, Appellants, v. THE CITY OF ROCHESTER and Another, Respondents.

      Municipal corporations — a resolution to reconsider an ordinance does not repeal it — an ordinance passed over the veto of a ‘mayor can-not be reconsidered — mandamus to compel the performance of a public duty — repeal of a/ny ordinance.

    The charter of the city of Rochester (chap. 14, Laws of 1880) makes its common coúncil the legislative branch of the government, and it alone can determine the necessity of a public improvement. It creates an executive board, which has sole power to let contracts, except such as are by law directed to be otherwise made.
    The common council of Rochester passed an ordinance for the improvement of an avenue in said city, which was vetoed by the mayor and subsequently passed by the common council over his veto. The executive board was about to let the contract when the common council adopted a resolution to reconsider the adoption of the ordinance. This resolution was vetoed by the mayor and was: afterwards passed over his veto. Thereupon the executive board refused to proceed further.

      Held, that the resolution to reconsider the ordinance, followed by no further' action, did not repeal it.
    That after the ordinance had been once passed over the mayor’s veto, the common council had no further power to reconsider it.
    That a writ of mandamus was the proper remedy to compel the performance of a. public duty, where it clearly appeared that there had been a neglect or refusal to perform such duty.

      Semble, that the common council had power, except where it was passed over the' mayor’s veto, to repeal any ordinance passed by it.
    Appeal by tbe plaintiff, John H. Ashton and eighteen others,, taxpayers of the city of Rochester, from a judgment, entered in the. clerk’s, office of Monroe county on the 8th day of January, 1891, dismissing their complaint on the merits, with costs, after a trial before the court at a Special Equity Term in said county.

      Pa/rTcer <& DraTce and Jolm Van Voorhis, for the appellants.

      Henry J. /Sullivan, for the respondents.
   Per Curiam :

• This is an appeal from a judgment, entered in Monroe county on the 8th day of January, 1891, on the decision of the Special Term dismissing the plaintiffs’ complaint at the trial upon the merits.

The plaintiffs bring their action not only for themselves, but also in behalf of all others similarly circumstanced who may come in as parties, to vacate an assessment for paving Lake avenue, in the city of Rochester, from Lyell avenue to Driving Park avenue, with asphalt. The letting of the contract for such improvement was in accordance with a writ of mandamus, issued by the Special Term of this court on the 25th day of April, 1889, whereby, at the instance of certain residents of this part of Lake avenue, none of whom are parties to this action, the executive board of the city, to whom, by the charter (Laws of 1880, chap. 14), the power of letting contracts made in pursuance of ordinances passed by the Common Council is exclusively given, was directed to be made according to law. On the hearing of the motion for that mandamus, all the questions involved on this appeal were fully considered by the court in an opinion delivered by Mr. Justice Davy, which is as follows:

Davy, J.

This is a motion for a peremptory mandamus requiring the executive board of the city of Rochester to proceed to let, in the manner prescribed by law, a contract for the improvement of Lake avenue, under final ordinance No. 3568, passed by the common council of the city of Rochester on the 26th day of December, 1888, which ordinance was vetoed by the mayor of said city, and was subsequently unanimously passed by the common council over his veto. The ordinance was then certified by the city clerk to the executive board, which body proceeded under it and obtained bids for the contract, and was about to let the same when, upon March 19, 1889, at the first regular meeting of the common council, after the ordinance was passed over the mayor’s veto, a resolution was adopted by the Board to reconsider the adoption of the ordinance. That resolution was also vetoed by the mayor, and on the twenty-eighth day of March the council passed it over the mayor’s veto. Thereupon the executive board refused to make a contract for the improvement, upon the ground that the resolution of the common council to reconsider the ordinance deprived it of that right.

The power vested in the common council under the charter to pass ordinances and to repeal them, and whether the ordinance in question was repealed must be first considered and passed upon before reaching the question as to whether the application for a mandamus in tbis case shall be granted or refused. The city charter provides that the common council, shall have the management and control of the fiscal and prudential affairs of the city, and may make such ordinances and by-laws relating to the same as it shall deem proper and necessary. It also provides that the board shall not ordain any work or improvement, the expense whereof is to be defrayed in whole or in part by local assessment, except upon the petition of a majority of the owners of the property to be assessed therefor, unless three-fourths of all the members elected to said council vote therefor after allegations have been heard; that before the common council shall determine to make any such public improvement, it shall cause an estimate therefor to be made and entered m its minutes, describing the portion and part of the city which it deems proper to assess for the expenses of such improvement ; and it shall cause a notice to be published daily in at least two of the daily newspapers printed in the city of Rochester for four days, which notice shall specify such improvement, the estimated expense thereof, the amount, if any, to be paid from the public treasury, and the portion or part of the city to be assessed for the rest of the expenses, and shall require all persons interested in the subject-matter of such improvement to attend the said council ata time appointed in such notice. At the time appointed the common council shall proceed to hear the allegations of the persons interested in the subject-matter of such improvement, and after hearing the same shall make such further order in respect to such improvement as it shall deem proper. The charter also provides that the city treasurer shall ascertain the cost of the improvement which has been theretofore ordered by the common council, and report the same to that body, who shall adjust the same and order an assessment to be made; that upon the return of the assessment-roll, when completed, the aldermanic council may confirm it or set it aside, or order a reassessment in its discretion.

The charter also provides that the executive board shall have sole power to let all contracts to be made in pursuance of any ordinance, except such as are by law directed to be otherwise made, and shall superintend the execution of the same. It shall have the superintendence and control of all work ordered by the common council, and shall have control of the construction, improvement, repair and cleaning of the streets, alleys, etc., and shall have control of the expenditure of all funds therefor, but whenever the expense of any such work or improvement shall be required to be defrayed by local assessment, the common council shall alone have power to pass ordinances therefor. That after the common council shall liave> directed an improvement to be made, the executive board shall then advertise in one or more of the daily newspapers of the city, for at least ten days before-letting the contract, for sealed proposals to> do the work, which proposals must be accompanied by a bondL signed by at least two responsible sureties, conditioned that the person making the bid, if it is accepted by the executive board, will, perform the work mentioned in such proposal, and fulfill any contract that may be made with him. But the board may let any contract it deems for the best interest of the taxpayers. The executive board, however, is required to publish all bids received by it and the persons to whom the contracts are awarded.

It will be seen by the provisions of the charter that the common council alone has power to pass ordinances for the improvement of streets, when the expenses to be incurred therefor are defrayed by local assessment. It is conceded that the ordinance in question,, when passed, received the requisite number of votes; that it was vetoed by the mayor, and again reconsidered by the common council and passed over his veto. The learned counsel for the relators contends, first, that the municipal council had no legal right to repeal the ordinance; and, second, that what it did do was not a repeal thereof. Upon these two points hinge not only the power of the executive board to proceed and let the contract for the improvement of the-avenue, but the duty of the court to entertain and grant this motion..

The common council of the city of Rochester is the legislative-branch of the city government, and, acting for the taxpayers in its-legislative deliberations, can alone determine the necessity of a. public improvement, and when and how that improvement shall be made.

I am unable to concur in the position taken by the learned counsel for the relators, that the ordinance in question cannot be-repealed. In this country nearly all legislative acts are repealable. The most injurious consequences would result if a contrary precedent were established. To allow ordinances to be placed beyond repeal would not only establish, but fix a principle by which the property of our citizens might be depreciated in value, and the growth of the city impeded and its prosperity destroyed. Nuisances might multiply by reason of the inability of the board of aldermen to repeal. No legislative body in this country can so part with its power by any proceeding as not to be able to continue the exercise ■of it. It can and should exercise its powers as often as the public ■interest requires, but in exercising those powers it must act legally .and adhere in its deliberations to the well-settled parliamentary law governing legislative bodies. The American authorities all hold that a statute can be repealed, but it can only be repealed by an ■express provision of a subsequent law, or by necessary implication. A repealing act is a total abrogation of the law repealed, but rights .acquired and which become vested under the law before its repeal, are not affected by the repealing act.

It is equally clear that after the common council decides upon an ■improvement it devolves upon the executive board to proceed without delay and let the contract. That board is clothed with no dis•cretionary power. Its duty is to execute the laws pertaining to the improvements of streets after the common council have, by ordinance, vested it with authority to do so. For the court to hold that the •executive board, independent of the common council, can and must proceed under the charter and let the contract, even though the ordinance has been repealed, would be assuming a position which, in my judgment, could not legally be sustained. It was the intent of the legislature, as expressed in the charter, to confine the exercise of this power to the common council, the members of which are elected by the people, and who are responsible to those whose property they are allowed to tax for public improvements.

Ordinances for the improvement of streets, being among the most important acts of the municipality affecting the interests and rights of the taxpayers, should be strictly construed, and it is, therefore, essential to their validity that they should be passed by the municipal council when duly assembled in the manner prescribed by the charter; and such ordinances can only be repealed by the act of the legislative body that created them. A repealing ordinance is a total abrogation of the law repealed. The suspension of an act or an ordinance cannot be construed to be a repeal of it.

It is highly important to the taxpayers of the city that these proceedings in all respects be regular, for the reason that the city at large is held responsible and liable by the contract which may be made for the improvement of any street; but the common council, under the charter, may reimburse the city in such an amount as may be decided upon by that body by means of local assessment. But if any of the proceedings relative thereto shall prove to be invalid, then the city at large will be precluded from reimbursing itself by means of local assessments.

I now come to the second point raised by the counsel for the relators, which is, has the ordinance been repealed ? If it has been, it was repealed under the motion or resolution by Alderman Williams, which reads: “ That action on the final ordinance for Lake avenue asphalt improvement, No. 3568, published at page 336, current proceedings, and ado^fied January 4,1889, be reconsidered.” Does the adoption of this resolution rescind the ordinance? If it does, then the executive board is powerless to proceed any further by way of letting the contract and improving the avenue under the ordinance? In my opinion the vote which was taken upon Alderman Williams’ motion did not repeal the ordinance. The vote to reconsider, is to consider it again, which the municipal council in this • case omitted to do, which left the ordinance unrepealed.

It is usual in legislative bodies, especially the house of representatives, to regulate by special rule the time, manner and by whom •a motion to reconsider may be made: that it shall be made only on the same or succeeding day, and by a member who voted with the majority, and such motion shall take precedence of all other questions except a motion to adjourn. A motion to reconsider, if made in time, may be entertained if the house has control of the bill. It is customary, however, pending a motion to reconsider a vote on the passage of a bill, for the speaker to refrain from signing it, even if reported by the committee on engrossed bills, until the motion to reconsider is disposed of; and when the bill has been sent to the senate, it is usual in such cases to send a message to that body requesting its return in order that the motion to reconsider may be properly entertained. And where a bill has been ordered to be engrossed, it is not in order to move a reconsideration thereon until the order of engrossment has first been reconsidered.

The ordinance in question, when passed over the mayor’s veto, became a municipal law, and was as binding upon the people of the city of Rochester as the statute laws are binding upon the people of the State. After a bill has passed the legislature and becomes a law, it would be contrary to all parliamentary law and precedent for that body to attempt to reconsider it. The act might be repealed,, but it could not be reconsidered. The ordinance in question may be repealed, but it cannot be reconsidered, for the reason that when it was passed over the mayor’s veto it became a law, and thereby-passed beyond the control and power of the municipal council h> reconsider it. According to the uniform parliamentary practice of legislative bodies, where a motion to reconsider has been passed in the affirmative, the question immediately recurs upon the question reconsidered. The question reconsidered was never acted upon in this case; therefore, if the common council had the power to reconsider the ordinance, it never rescinded it, because the question reconsidered was never acted upon.

There is another fatal point in this case, which is, that the ordinance, when passed over the mayor’s veto, could not be again considered. It is a rule well settled by parliamentary law that a vote on the reconsideration of a vetoed bill cannot be reconsidered again.. (Barclay’s Constitutional Manual, pages 197,199; American Manual of Parliamentary Law, by George T. Fish, 90.) Years ago, in the house of representatives, a motion to reconsider could not be entertained after the bill was disposed of, if another subject had risen and was pending before the house, until that subject was acted upon. It was then often too late to make the motion, for the x-eason that the bill had been sent to the senate. It was under this practice that Mr. Randolph was unable to move a reconsideration of the settlement of the celebrated “ Missouxu question.”

We concur in the foregoing opinioxi. It follows that the judgment appealed from shoxxld be affirmed.

Pi-esent — Dwisi-it, P. J., and Macomber, J.

Judgment appealed from affirmed, with costs.


text:
    ANNA GROSSER, Appellant, v. THE CITY OF ROCHESTER and NICHOLAS L. BRAYER, Respondents, Impleaded with GEORGE GROSSER, Defendant.

      Tenants by the entirety — proceedings by eminent domain against the husband alone— right of the wife to an injunction.

    In an action brought to restrain the city of Rochester and its contractor from constructing a sewer across a lot, it appeared that the plaintiff and the defendant George Grosser, husband and wife, were tenants of said premises by the-entirety; that the city had taken proceedings to condemn a right of way for said sewer against the husband alone; that these proceedings were regular as to. him, and that the award had been paid into court; that the city then let a contract to build the sewer to the defendant Brayer.

      Held, that the proceedings against the husband did not affect the rights of the wife.
    That as, upon his death, she would become the absolute owner of the lot, and as. her interest therein might in the meantime be seriously impaired, should the work of construction of the sewer proceed, an action by her to enjoin the construction of the sewer was not premature, and could be maintained.
    Appeal by the plaintiff Anna Grosser from a judgment, entered in tbe clerk’s office of tlie county of Monroe on the 3d day of January, 1891, in favor of the defendants for costs, dismissing the plaintiff’s complaint upon the merits and vacating an injunction granted pendente lite, after a trial before a referee.

      T. D. Wilkin, for the appellant.

      JS. J. Sullivan, for the respondents.
   Dwight, P. J.:

The action was brought to restrain the city and its contractor from constructing a sewer across a city lot belonging to the plaintiff' and her husband, George Grosser, the latter of whom was made a. party defendant after having declined to unite with the plaintiff in bringing the action. - The lot was conveyed to the plaintiff and her husband jointly, and was occupied by them as a residence. The city of Rochester took proceedings to condemn a right of way for a sewer across the lot and gave the required notice to the husband alone, and not to the plaintiff. The proceeding was in all respects, regular as against the husband 5 damages were assessed and the money was paid into court. The city then let a contract for building the sewer to the defendant Brayer, and lie was joined with the ■city as defendant in the action.

We agree with the learned referee, and for the reasons well-stated by him in his opinion, that service of the notice on the husband .and his appearance in the proceeding did not make the wife a party thereto nor bind her interest in the property, and, therefore, that as against her the city acquired no right in the premises; but we cannot agree with him that she had no rights in the premises which were liable to be injuriously affected by the building of the sewer under the proceedings actually had.

It is true that under the doctrine of Bertles v. Nunan, during the joint lives of the husband and wife the husband has the right to the exclusive benefit, use, possession and control of the land and may take all the profits thereof; and may mortgage or convey an ■estate to continue during the joint lives; but he may not make any disposition of the land that would prejudice the right of the wife in case she should survive him. (Bertles v. Nunan, 92 N. Y., 156; Coleman v. Bresnaham, 54 Hun, 619.) The husband, therefore, might have granted the right of way during the joint lives, with provisions against a permanent injury to the freehold; and whatever he might grant, the city might acquire from him by condemnation proceedings to which he alone was made a party. But this is not what has been done in this case. Here the city has proceeded ■against the husband as the sole owner of the title to acquire a perpetual easement in the land, which includes the right for all time to maintain the sewer and to enter upon the property to repair and renew it. All these rights the city has already acquired on the ■face of the record, and its counsel is contending here that it has in fact acquired them against the plaintiff by the proceeding against her husband. The learned referee, while holding the contrary, suggests, in substance, that it will be time for her to contest the claim of the city when her title shall become absolute by survivorship. But suppose the sewer is built and put to its proper use of draining a large and populous section of the city, and then her husband dies. How shall she proceed to assert and enforce her rights % If the ■city decline to recognize them, shall she tear up or cut off the sewer, ■or, as the referee suggests, restrain the city from its use; and in either case with how much more of inconvenience and expense1 than if she had taken her remedy when those rights were only threatened with invasion. Or suppose the husband dies when the work is only fairly under way,1 with her lot divided by an excavation and the earth or rock which has been thrown out of it. Her title has now become sole and absolute and the city has no right to proceed a step further with the work. But they have paid for the damage so far done in the award made to the husband, and if the plaintiff stop the work where it is, she may restore her lot to its proper condition at her own expense.

It seems very clear that the plaintiff has rights by virtue of her joint tenancy which are liable to be seriously impaired by the action which the defendants are about to take.

We think the learned referee erred in the latter of his conclusions above-mentioned, and that the plaintiff, upon the facts appearing by the record, was entitled to the restraining process of the court to prevent the prosecution of the work on the plaintiff’s property until they have acquired the right as against her.

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

IVIacomber, J., concurred.

Judgment appealed from reversed and a new trial granted, with costs to the appellant to abide the event.


text:
    SARAH A. THOMAS, an Infant, by THOMAS E. SWALWELL, her Guardian, Appellant, v. MARY E. THOMAS, Respondent, Impleaded with the SUPREME COUNCIL OF THE ORDER OF CHOSEN FRIENDS.

      .Benefit society — cm interlineation by a member thereof of the name of a new beneficiary in his certificate, contrary to the by-laws, is of no effect.

    A person held a certificate of membership in a benefit society which designated his, daughter as beneficiary. After his death it was found that he had interlined in this clause, after the name of his daughter, the words “and my wife Mary Elizabeth Thomas.”
    The by-laws of the society or order prescribed the issue of a new certificate as the only method of changing the beneficiary. Nothing was ever done to accomplish this purpose, on the part of the insured, of making his wife a beneficiary, except the interlineation by him of said words in the certificate.
    In a controversy between the wife and the daughter as to their respective rights in the proceeds of the certificate:

      Held, that the wife had no lawful claim thereto.
    Appeal by the plaintiff Sarah A. Thomas, an infant, by Thomas E. Swalwell, her guardian, from a judgment, entered in the clerk’s office of Niagara county on the 22d day of March, 1890, adjudging that the defendant Mary E. Thomas recover of the defendant, the Supreme Council of the Order of Chosen Friends, $1,500, and her costs from the plaintiff, and that the plaintiff recover of said Supreme Council $1,500, after a trial before the court at the Niagara Circuit.
    The certificate in suit was for $3,000. The Supreme Council of the Order of Chosen Friends was a corporation incorporated in Indiana and doing business in this State under its laws.

      W. G. Ely, for the appellant.

      A. H. Potter, for the respondent.
   Dwight, P. J.:

The controversy is between the daughter and the widow of David H. Thomas, deceased, who died holding a beneficiary certificate of membership in the association or order, joined as defendant in this action. The certificate as issued, in accordance with the application of the member, designated the plaintiff, his daughter, as the sole beneficiary. About a year after tbe issuance of tlie certificate Mr. Thomas married the defendant Mary E. Thomas, and he died about five years later. After his death there was found interlined in the certificate, in his own handwriting, after the name of the plaintiff, where she was designated as beneficiary, the words “ and my wife, Mary Elizabeth Thomas.” No other step had ever been taken towards effecting a revocation of his original appointment of a beneficiary, nor towards procuring the designation of a new beneficiary. No application had ever been made to the Order, defendant, for a change in such designation, nor notice given that an alteration had been made by the member in the certificate issued to him.

The by-laws of the Order of Chosen Friends prescribed, as the sole method of procuring a change of beneficiary, a surrender of the original certificate and the issuance of a new one. No offer was ever made by the member to surrender the original certificate, nor any request for the issuance of a new one. The by-law referred to was in these words: “ A member in good standing may, at any time, surrender his or her Belief Fund Certificate, and a new Certificate shall thereafter be issued, payable to such person or persons as the member may direct, upon the payment of the Certificate fee of fifty cents.” This regulation recognizes the certificate as the act and contract of the association by which it was issued, and clearly negatives (if that were necessary) the proposition that it is competent for any person other than its duly authorized officers to change that contract in any of its terms; or even that it is competent for its duly authorized officers to make such change, except in the mode prescribed by its laws. The rule seems to be based upon the most elementary principles applicable to contracts, but its application to the particular case of a change of beneficiary, in contracts of this nature, has been repeatedly affirmed. (Ireland v. Ireland, 42 Hun, 214; Sanger v. Rothschild, 50 id., 157; S. C., in Court of Appeals, 34 N. Y. St. Rep., 258; Gladding v. Gladding, 29 id., 485.) In the case of Luhrs v. Luhrs (24 N. Y. St. Rep., 252) the General Term of this court, in the first department, held the rule applicable in a case of great hardship, where everything to accomplish the purpose intended had been done by the member in strict accordance with the regulations of the association, and nothing remained to be done except the issuance of the new certificate by tlie association, and that was prevented only by the death of the member. The Court of Appeals reversed even that judgment with hesitation, and only upon the distinct ground that nothing remained for the insured to do to accomplish a full compliance with the law of the association, and that the association had no alternative but to issue the new certificate, if only the member had lived long enough to receive it.

We regard this case of Luhrs v. Luhrs, in the Court of Appeals, as conclusive in its reasoning in favor of the contention of the appellant in this case. Here the member had done nothing which was required by the laws of the association to accomplish the change of beneficiary. He had done nothing which, under the laws of the association, authorized its officers to make the change, much less required them to do so. He had simply assumed to make the change himself in a manner equally unauthorized by the laws of the association and the law of the land.

Upon the principles thus firmly established in reason and by authority, we regard the conclusions of law of the learned court at Special Term, to the effect that the wife and daughter were joint and equal beneficiaries in the certificate in question, and each entitled to receive one-half the money secured thereby, as not warranted by the undisputed facts of the case.

The judgment, which was in accordance with those conclusions, must be reversed.

Macombbr, J., concurred.

Judgment appealed from reversed and a new trial granted, with costs to the appellant to abide the event.


author: Barnard, P. J. :

text:
    JAMES W. TODD, Appellant, v. MORTON R. DOREMUS, Respondent.

      Justice’s Court — issue must be joined on tlie return day of a summons and before an adjournment — Code of Ciril Procedure, see. 2934.
    Upon the return day of a summons, issued out of the court of a justice of the peace, the plaintiff in the action did not appear, but sent word that he desired an adjournment. Upon the motion of the court the case was adjourned until a later day, on which the plaintiff appeared, put in his complaint, proved his-case, and judgment was rendered in his favor, the defendant having failed to appear.

      Held, that no issue having been joined upon the return day the justice lost jurisdiction, and that the proceedings taken upon the adjourned day were void.
    Appeal by the plaintiff, James W. Todd, from a judgment and order of the County Court of Westchester county, entered in the office of tlie clerk of said county on the Yth day of March, 1891, reversing the judgment of a justice of the peace of the town of New Rochelle in favor of plaintiff, which latter judgment was docketed in said clerk’s office on the 12th day of January, 1891.

      O. JI. <& J. A. Young, for the appellant.

      Frank M. Buck, for the respondent.
   Barnard, P. J. :

The plaintiff is an assignee of a claim for goods sold by J. Ií. & N. II. Martin to tlie defendant. He procured a summons from a justice of thé peace returnable on the 5th of January, 1891. At the return day the plaintiff did not appear, but sent word that he desired an adjournment until some later period. The defendant appeared by counsel and asked to dismiss the proceedings because the plaintiff had failed to appear.

This application was denied and the case was adjourned, “ on motion of the court,” until the 12th of January, 1891, at which day the plaintiff proved his case and took, judgment.

The defendant failed to appear. The complaint was not put in until the adjourned day.

The practice is settled upon the point presented. The statute requires that the plaintiff shall appear within the hour after the return hour. The issue is then to be joined. (Code, § 2934.)

The adjournment may be had after issue joined either upon the application of the plaintiff or of the defendant, or upon the motion of the justice himself.

"When the justice adjourns the case without an issue he loses jurisdiction of the action even if the plaintiff appears and asks an adjournment to obtain counsel. (Duel v. Sykes, 13 N. Y. Supp., 166.)

If there be no appearance, judgment must be given for defend■ant. (Code, § 3013; Wilcox v. Clement, 4 Denio, 160.)

In this case there was no appearance and no issue and no refusal of defendant to plead, because there was no complaint put in. The justice, therefore, lost jurisdiction of the case and the judgment of the County Court should be affirmed, with costs.

Pratt, J., concurred.

.Judgment of County Court affirmed, with costs.


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE H. NICHOLS and Another, Respondents, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Appellant.

      Supervisors — county charge — mandamus—the necessity of the disbursements by a sheriff to suppiress an alleged riot presents an issue for thejw'y.

    ’The owners of a manufactory gave notice to tlie sheriff of tlie county in which the factory was, that certain persons threatened to destroy their premises and •required him to protect them, and they advanced him moneys with which he paid his deputies. The sheriff subsequently assigned his claim for the amount ■thus advanced to the owners of the manufactory.
    In a proceeding by mandamus, taken by such owners to enforce this claim against the county, the return denied that the employment of deputies was necessary.

      Held, that this raised an issue which should have been submitted to the jury for .decision, before any consideration was had of the question whether a sheriff .could, in this manner, make the county liable.
    Appeal by tbe defendant, the Board of Supervisors of Queens County, from an order entered in the clerk’s office of said county on the 20th day of February, 1890, granting a peremptory writ of mandam-us.

      James W. Oovert, for the appellant.

      Scmford H. Steele, for the respondents.
   Barnard, P. J.:

There was an issue of fact presented by the evidence which should have gone to the jury. The petition stated that the sheriff of ■Queens county employed deputies and officers for the defense of the property of the Laurel Hill Chemical Works. That the Laurel Hill Works gave notice to the sheriff that certain evil-disposed persons had collected in the vicinity of the woi'ks and threatened to destroy or injure the same. That the deputies and officers were necessarily paid for this service. That the money paid was advanced to the sheriff by the relator Nichols and that the shexiff had assigned the claixn to the relator The return denies any unlawful assembly of persons with an intent or with any threats of destruction or injury to the Laurel Hill Chemical Woxlts. The return expressly denies that the said special deputies and officers were needed to protect the works from destruction or damages, and that the expenditure, therefore, was necessarily made.

The proof upon the trial tended to show that there had been what is termed a strike on the part of the employees and that a considerable body of the retiring workmen and others had collected around the works. There was proof tending to show acts of violence; one to a boy who was bringing a dinner pail to his father who was working for the company after the strike. Another act of violence was the fact that a driver on one of the trucks of the relator’s company was stopped. These acts were seven or eight hundred feet from the works. There was no proof which established, at all hazards, that the works were threatened. The acts of violence may have been solely addressed to the prevention of other workmen supplying the place of the retiring workmen and with no intention of injury to property. If Vas for the jury to say whether the employment of the officers was necessary. The sheriff was bound to protect the property of the company by legal means.” (Laws of 1855, chap. 428, § 3.)

The sheriff had the right to call for aid from the military. (Laws of 1878, chap. 275, amending Revised Statutes.) If this force had been called out, the pay of the force would have been a county charge. Whether or not the sheriff could make the county liable, by using money advanced by the threatened company to hire men, cannot be presented until it is found whether the advance was necessary to protect the property of the company.

The order directing a verdict and the judgment thereon should be reversed, and a new trial granted, costs to abide event.

Pratt, J., concurred; Dykman, J., not sitting.

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


text:
    PARKER P. BALDWIN, Respondent, v. THE CITIZENS’ INSURANCE COMPANY OF NEW YORK, Appellant.

      Fire insurance — conditions, of ownership in fee simple and that the property must be detached — waiver.

    When applying for a policy of fire insurance a broker, who acted for the party seeking the insurance, informed an officer of the insurance company that the building to be insured stood on leased ground. The officer, having considered the question, subsequently sent to the broker a policy of insurance which contained a condition that all insurance thereunder should be void if the subject thereof was on ground not owned by the insured in fee simple.

      Held, that the policy was valid, notwithstanding the fact that this condition of the policy was not complied with.
    The policy further provided that the subject of insurance must be detached not less than one hundred feet. The real distance was seventy feet, but the jury fuund that the risk was not increased by reason of the distance being less than that prescribed by the policy.

      Held, that under this finding of the jury the assured was entitled to recover.
    An insurance company may waive a condition in a policy by parol, although the policy require a written indorsement of such waiver to be made upon it.
    Appeal by the defendant, The Citizens’ Insurance Company of New York, from an order entered in the office of the clerk of Kings county on the 26th day of January, 1891, denying defendant’s motion for a new trial made upon the minutes of the court, and also from a judgment for plaintiff, entered in said office on the 31st day of January, 1891, after a trial at the Kings County Circuit, before the court and jury, at which a verdict was rendered in favor of the plaintiff for the sum of $1,314.40.
    The policy of insurance under which the recovery was had contained, among others, the following conditions, namely: “This entire policy * * * shall be void * * * if the subject of insurance be a building on ground not owned by the insured in fee simple.”

      George B. Bonney, for the appellant.

      James D. BelK for the respondent.
   Barnard, P. J.:

The plaintiff owned a wooden building which stood upon land' owned by the city of Brooklyn, and which he held in possession under a lease from the city. The policy contains a condition that all insurance shall be void if the subject thereof was on ground not owned by the assured in fee simple, and that also contains a condition or warranty that the subject of the insurance was detached not less than 100 feet.

As to the ownership of the land, there was proof given tending-to show that the broker of the insured at the time of his application informed the assistant secretary that the land was owned by the city. The assistant secretary took time to consider the question, and expressly sent the policy to the broker. When the jury found ■the fact that the company had issued the policy with full notice-that the building was on leased land the policy was good in this respect. (Van Schoick v. Niagara Fire Insurance Co., 68 N. Y., 434; Bennett v. Buchan, 76 id., 386; Richmond v. Niagara Fire Insurance Co., 79 id., 230.)

The condition as- to the distance at which the insured building was detached was the subject of conflicting evidence, not as to the real distance being about seventy feet, but as to whether the risk, was increased. The jury have found the fact that the risk was not increased by the barn, and the right to recover, notwithstanding a condition like this where the risk was not increased thereby, is upheld in Burleigh v. Gebhard Fire Insurance Company (90 N. Y., 220).

It was in the power of the company to waive a condition. Such waiver may be established by a parol agreement, notwithstanding the policy calls for a written indorsement upon the policy itself. (Steen v. Niagara Fire Insurance Co., 89 N. Y., 315.)

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

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


author: Barnard, P. 'J.:

text:
    MARGARET HYNES and Another, as Administrators of MICHAEL J. HYNES, Deceased, Appellants and Respondents, v. WILLIAM A. CAMPBELL, Respondent and Appellant, and Another, Respondent.

      Assignments — assignee liaible for moneys received before the filing of his bond— payment, of money advanced under a composition agreement not finally consummated, to unpreferred creditors while preferred creditors remain unpaid.

    A debtor made an assignment and certain of his unpreferred creditors entered into a composition deed by which they agreed to release him on payment of twenty per cent of their claims; the time limited in this deed was about to expire when a firm, which was negotiating for the debtor’s stock and business, advanced moneys to the assignee, before the filing of his bond, to pay, and with which the assignee did pay such twenty per cent to the unpreferred creditors. Subsequently, the firm decided not to buy the business, but the assignee did not repay . to the firm the amount so advanced by it.
    In 'an aclion brought by a creditor of the assignor to compel an accounting by the assignee :

      Held, that the moneys thus advanced to the assignee were, in fact, a part payment of the purchase-price of the debtor’s stock and business.
    That the assignee’s payment to unpreferred creditors, while preferred creditors remained unpaid, was illegal; and that he was liable to the assigned estate for the amount of said advances.
    Appeal by the plaintiffs, Margaret Hynes and Henry IT. Bowers, as administrators of Michael J. Hynes, deceased, from so much of a judgment entered in the clerk’s office of Kings county on the 14th day of January, 1891, as directed the defendant, William A. Campbell, as assignee of the defendant Daniel Yan Winkle, to pay to William R. Barricklo, attorney for the said assignee, an allowance of seventy-six dollars; and further, that said assignee retain the sum of $439 for his disbursements, expended and to be expended.
    Also an appeal by the defendant, William A. Campbell, as f ollows:
    Please take notice that the defendant William A. Campbell appeals to the General Term of this court for the second department from so much and such portions of the order, judgment and decree herein entered in the office of the clerk of the county of Kings, on the 14th day of January, 1891, as reads as follows:

      “ First. That said exceptions so filed by said defendant Campbell be, and they hereby are, each and all overruled, and that said referee’s corrected report, dated November 19, 1890, and with his findings, dated the same day, filed November 20, 1890, and the original report and findings as corrected be, and the same hereby are in all things confirmed, and that said assignee is indebted to said estate in the sum of $1,103.91, and interest, from April 15,1887, $248.37, to wit, the sum of $1,352.28.
    “ Second. That out of the said funds in the hands of said assignee as assignee of the said estate of Daniel Yan Winkle as aforesaid, the assignee pay * * "x‘ the further sum of $436.61 to Messrs. ITascall, Clarke & Yander Poel, plaintiff’s attorneys, for their costs herein, together with the sum of 67^V dollars as an extra allowance herein.
    “ Fow'th. That the rest and residue of said funds remaining in the hands of said assignee, William A. Campbell, after deducting the sums hereinbefore set forth, to wit, the sum of $1,019.22, is hereby directed to be paid by said assignee, William A. Campbell, to the plaintiffs herein.
    “ Fifth. In the event of the aforesaid sums of moneys not being paid by said assignee within thirty days from the service of a copy of this order on the attorney for said assignee, judgment may be entered against said William A. Campbell for the several sums hereinbefore set forth, with interest from the entry of this order.
    “ Sixth. That the said assignee do take good and sufficient vouchers for each and eveiy payment so made, and if after reasonable diligence any of the persons so entitled to share in the said distribution cannot be found, or shall decline or neglect to accept their said share, then the share so belonging to such person shall be deposited in the People’s Trust Company of Brooklyn to the credit of such persons.

      “ Seventh. It is further ordered, adjudged and decreed, that upon payment of the sums hereinbefore provided, with accrued interest, the said assignee shall upon presenting due proof of the same to one of the judges of this court, be entitled to an order relieving him of his liability as such assignee and releasing the sureties upon the bond filed by the said William A. Campbell, as assignee of said estate, from all liability upon matters included in the aforesaid accounting, to all creditors who have appeared, and to such creditors as have not appeared after due citation, and to such creditors as have not presented their claims after due advertisement, and that the said application may be made without further notice.”
    The original plaintiff ivas Michael J. Hynes, who died during the pendency of this action, and the present plaintiffs, who were his administrators, were substituted in his place as parties plaintiff.

      T. F. Haseall, for the plaintiffs.

      William H. BarrioMo and William A. Campbell, for the defendant.
   Barnard, P. 'J.:

The plaintiff is a judgment creditor of the defendant Daniel Yan Winkle. He is also a preferred creditor under the assignment made by Yan Winkle to the defendant Campbell. Soon after the assignment a composition deed was entered into whereby certain of the unpreferred creditors agreed to accept twenty cents in satisfaction of their debts. This agreement included nearly all the nnpreferred debts of Yan Winkle. The stock and business of the assignor was such that the firm of Karst & Costello wished to form a company and buy it in gross for a sum sufficient to pay all the debts under this composition. The amount was fixed at $8,500. Karst & Costello paid $2,500 in cash to Campbell with which to pay the unpreferred debts, which he did so far as the same would go, and which sum nearly paid up the unpreferred claims against Campbell. The balance of the $2,500 was used for the estate expenses. Karst & Costello then refused to carry out the agreement. The property was not delivered and the $2,500 was not returned. Karst & Costello Avere not among the creditors of Campbell, but were to be interested in the company to be formed. The assignee is liable to account for this $2,500. It Avas an executory sale of the stock to Karst & Costello.

It is true it Avas based upon an expectation that the company’s scheme Avould have been carried out, but it Avas a receipt of part payment for the' sale. The motive which led the firm to require the payment of the unpreferred creditors with this part payment has no relevancy. The assignor was bound to execute the assignment, and if he paid unpreíerréd debts before the balance of the $8,500 was paid, he did so at his own risk. The $2,500 belonged to the trust estate and the referee properly held it to be assets.

The judgment should be-affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment affirmed, with costs, upon plaintiffs’ appeal, and also-affirmed, with costs, on defendants’ appeal.