author: Hardin, P. J.:

text:
    In the Matter of the Application of LEGRANGE E. SCRAFFORD for a Writ of Habeas Corpus.

      jRendition of a crvhninal to another State — an order discharging the accused isappealable — presumption of regularity, in the absence of the papers under which the warrant was issued, by the Governor.

    An order, made by a special county judge declaring a rendition warrant issued by the Governor insufficient, and discharging the party named therein from the custody of the sheriff and from further imprisonment and restraint, is appealable to the General Term.
    A warrant issued by the Governor of the State of New York, in which it is recited as follows:
    “ Whereas, It has been represented to me by the Governor of the State of Pennsylvania, that Le Grange E. Scrofford stands charged with the crime of removing his property to prevent the same from being levied upon by execution, which he certifies to be crime under the laws of said State, committed in the county of Potter in said State, and that he has fled from justice in said State and has taken refuge in the State of New York, and that said Governor of the State of Pennsylvania, pursuant to the Constitution and laws of the United States, demanded of me that I shall cause the said Le .Grange E. Scrofford to be arrested and delivered to William Dannells, who is duly authorized to receive him into his custody and convey him back to the said State of Pennsylvania, and
    “Whereas, The said representation and demand is accompanied by the papers required by the statute of the United States to justify a surrender of, and whereby the said Le Grange E. Scrofford is shown to have been duly charged with, the said crime and with having fled from said State and taken refuge in the State of New Y ork, which are duly certified by the said Governor of the State of Pennsylvania to be authentic and duly authenticated.”
    “ Therefore you are required,” etc., is sufficient upon its face.
    It is the duty of a court before which the party mentioned in such a warrant is brought upon a return to a writ of habeas corpus, in the absence of any proof as to the contents of the papers upon which the Governor acted in issuing the same, to assume that such recitals are true and sufficient, and to refuse to discharge the prisoner held thereunder.
    Appeal by the People of the State of New York from a final order made in the above-entitled matter by Hon. W. F. Dun-more, Special County Judge of Oneida county, at his chambers in the city of Utica, August 21, 1890, and entered in the office of the clerk of Oneida county on August 23, 1890, discharging one Legrange E. ScrafEord from the custody of the sheriff of Oneida county, and from further imprisonment and restraint, under and by Virtue of a warrant issued by the Governor of the State of New York, upon a requisition made by the Governor of the State of Pennsylvania.
    The appeal was brought to argument and at the same time a motion was submitted in behalf of the defendant to dismiss the appeal. July 30, 1890, the defendant made his petition to the said special county judge for a writ of habeas corpus, and on the 30th of July, 1890, a writ was issued directed to the sheriff of Oneida county, requiring him to produce the defendant before the said judge on the 30th day of July, 1890. On that day the sheriff produced the defendant, in obedience to the writ, and made his return to the writ, in which he said “ his authority for the taking of the said Legrange E, Scrofford into custody and the true cause of the imprisonment or restraint of the said Legrange E. Scrofford was- and is by virtue of a mandate or warrant issued by the Hon. David B. Hill, Governor of the State of New York, for the crime charged to have been committed there in the State of Pennsylvania, of removing his property from the State of Pennsylvania, to prevent the same' from being levied upon by execution, which is a crime under the laws of the State of Pennsylvania, committed in the county of Potter in said State of Pennsylvania. That he has fled from justice in said State of Pennsylvania and taken refuge in the State of New York. ” The return further set out “a copy of said mandate or wai’rant under which the said Scrofford is restrained and imprisoned,” the recital in which was as follows:
    “It has been represented to me'by the Governor of the State of Pennsylvania that Le Grange E. Scrofford stands charged with the crime of removing his property to prevent the same from being levied upon by execution, which he certifies to be crime under the laws of said State, committed in the county of Potter in said State,, and that he has fled from justice in said State and has taken refuge in the State of New York, and that said Governor of the State of Pennsylvania having, in pursuance of the Constitution and laws of the Nnited States, demanded of me that I shall cause the said Le Grange Scrofford to be arrested and delivered to Vm. Dannells, who is duly authorized to receive him into his custody and convey him back to the said State of Pennsylvania, and whereas the said representation and demand is accompanied by the papers required by the statute of the United States to justify a surrender of, and whereby the said Le Grange Scrofford is shown to have been duly charged with the said crime and with having fled from said State and taken refuge in the State of New York, which are duly certified by the said Governor of the State of Pennsylvania to be authentic and duly authenticated.”
    To that return the defendant made an answer, in which he denied ■“ that the governor’s warrant returned by the said sheriff is a valid instrument or warrant, and denies that the said sheriff was justified in arresting and retaining this relator thereon, and avers that the said governor’s warrant was improvidently granted without the requirements provided by law or proof sufficient ^ to sustain the same or to warrant its issuance, and is irregular, null and void.” The answer also stated several other facts, and was verified July 30, 1890.
    Counsel for the respective parties appeared before the special county judge on the return of the writ of habeas corpus and a hearing was had, and thereafter the proceedings were adjourned until July thirty-first. The parties again appeared and the defendant’s counsel insisted that it was the duty of the sheriff to produce the papers on which the warrant was issued. The counsel in behalf of the people insisted “that it was the duty of the prisoner to produce the papers if they wanted to go back of the warranty.” Thereupon the judge held, viz., “ that the sheriff had the affirmative, and that they rested if they did not make application to introduce further testimony.” Thereupon the defendant’s counsel moved that .the prisoner be discharged. “After argument, motion for discharge •of prisoner denied, to which defendant’s counsel excepted.” “ Proceedings adjourned to August 18, 1890, 9 a. m., for the purpose of allowing prisoner to procure papers on which warrant was issued, if they could be produced.” The parties again aj>peared on August •eighteenth,, and the defendant’s counsel stated, viz., “the papers •could not be produced.” The counsel for the People asked leave "“to file an amended return setting out a supplemental warrant, •dated July 31, 1890.” This was objected to by the defendant, and the objection sustained, and the motion was denied ; the sheriff took .an exception. Defendant’s counsel asked if sheriff had any further evidence to introduce. “ Sheriff’s counsel said they had not, and rested their case on the governor’s warrant.” The judge held that ■“ if there was any further evidence to be introduced he would receive it and consider all the points raised together at the end of the proceedings.” To this ruling the defendant’s counsel took an exception. Thereupon the defendant called two witnesses who gave evidence, .and thereafter the defendant again moved for his discharge, and apparently the judge took time to consider and prepared an opinion, the termination of which is as follows, viz.: “We, therefore, hold that the warrant is invalid and the relator'must be discharged.”

      Qha/rles F. Tabor, attorney-general, and L H. Maynard, for People, appellant.

      H. F. <& J. Coupe, for respondent Scrafford.
   Hardin, P. J.:

Article 3 in the Code of Civil Procedure prescribes the practice in regard to writs of habeas corpus. Section 2015 provides that a person imprisoned or restrained in his liberty is entitled to a writ of habeas corpus. Section 2017 provides that the application for the writ must be made by a written petition, and mention the courts and officers who may allow the same. Section 2031 provides that the court or judge before whom the prisoner is brought “ must, immediately after the return of the writ, examine into the facts alleged in the return, and into the cause of the imprisonment or restraint of the prisoner, and must make a final order to discharge him therefrom, if no lawful cause for the imprisonment or restraint, or for the continuance thereof, is shown.” * * * Section 2058 provides, viz.: “An appeal may be taken from an order refusing to grant a writ of habeas corpus * * * or from a final order, made upon the return of such a writ, to discharge or remand a prisoner, or. to dismiss the proceedings.” Section 2059 provides, viz.: “An appeal from a final order, discharging a prisoner committed upon a criminal accusation, or from the affirmance of such an order, may be taken in the name of the People by the attorney-general or the district attorney.” Py section 1991 of the Code of Civil Procedure it is provided that a writ of habeas corpus and writs of' certiorayi “ shall hereafter be styled, collectively, .State writs ; ” and by section 1995 of the Code of Civil Procedure it is provided that parties to a special proceeding instituted by a State writ may appear by attorney; and that section further provides that “ where the attorney-general or the district attorney does not appear for the people, the attorney for the relator is deemed also the attorney for the people.” We are of the opinion that the order is appealable, and that the appeal was properly taken by the service of the notice of appeal upon the clerk and upon the attorneys of the defendant, and that the motion to dismiss the appeal should be denied. (Code of Civil Pro., § 1995; id., § 1300; id., § 799; 1 R. S. [8th ed.], § 1, tit. 5, chap. 8, pt. 1, p. 522; id., § 7, p. 523; Code of Civil Pro., § 2059.)

If, upon the warrant before the judge ujion the return of thehabeas corpus, the copy of an indictment against the defendant or the affidavits which were presented to the Governor, being the. papers upon which he issued the rendition warrant, had been produced, the same might have been examined by the judge and an objection made by the defendant that they were defective in not showing the nature, facts and circumstances of the transaction therein alleged and not disclosing the grounds upon which are based the allegations of illegality” might have been considered. In the case of The People v. Brady (56 N. Y., 184) it appears “the relator traversed this warrant, setting forth in his answer the affidavits which accompanied the requisition; and alleging, among other things, that the affidavits were defective, etc.” The court, therefore, in that case looked into the affidavits which were used before the Governor and held they were insufficient. In the case before us the affidavits or papers presented to the Governor were not produced before the judge on the return of the writ of habeas corpus, and he derived no knowledge or information of their contents, and hence could not make an adjudication thereon; nor are the affidavits, papers or copy of indictment used before the Governor returned to us, and we are not in a situation to consider their contents and to determine from an inspection of the same whether they presented a proper case for the issuing of a rendition warrant or not. It is a familiar principle that a presumption obtains that a public officer has discharged his duty until the contrary appears. In People ex rel. Draper v. Pinkerton (17 Hun, 199) it was held, viz.: “ Where a. warrant is issued by the Governor for the rendition of a fugitive from justice, the court cannot go behind the warrant and inquire into the truth of the facts recited in it. The Governor, in determining that the act of congress has been complied with, has no jurisdiction to inquire into the truth of the charges made, or to look outside of the papers presented, to determine whether or not the person demanded is a fugitive from justice.' The fact that the person has committed a •crime in another State establishes conclusively that he is a fugitive from justice.” It was also said in that case that when “ the rendition warrant is accompanied by the papers on which it issued the question •as to the sufficiency of those papers, as a compliance with the Act of ■congress, is before the court.” That case was approved by the Court of Appeals (77 N. Y., 245), and it was held that the “recitals in a warrant of the Governor of this State for the arrest of a fugitive from the justice of another State are to be taken, at least prima facie, as .true.”- And it was further held in that case that a return to a writ of habeas corf us setting forth such a warrant “ which contains recitals of facts necessary to confer authority, under the Constitution •and laws of the United States, to issue it, is a sufficient justification for holding the prisoner, without producing the papers or evidence on which the Governor acted.” It was made an inquiry in that case whether the warrant is conclusive and whether the defendant may not by evidence show that the papers presented to the Governor were, in fact, defective. If it be assumed in this case that the defendant ■should have produced the papers upon which the Governor acted before the judge, and upon their production it would have been shown defective and insufficient, the assumption cannot avail to the defendant, as the papers were not produced either by him or by the people, and the judge could not, therefore, determine as to their validity or insufficiency. In People ex rel. Jourdan v. Donohue (84 N. Y., 438) it was held, viz.: “ Where the papers upon which a warrant of extradition is issued are withheld by the Executive, the warrant itself can only be looked to for the evidence that the essential conditions of its issue have been complied with, and it is sufficient if it recites what the law requires.” In the opinion delivered in that •ease it was said: “ Where, however, the papers upon which the warrants founded are not produced, but are withheld by the Executive, in the exercise of official discretion and authority, we can look only to the warrant itself, and its recitals, for the evidence that the essential ■conditions of its issue have been fulfilled.” (People ex rel. Draper v. Pinkerton. 77 N. Y., 245.) In that opinion it was further said r “ In this case, as in many others, the warrant only is produced and the papers on which it is founded are withheld. We are to assume that they are withheld in what seems to the Executive the proper performance of official duty. * * * It is enough that the warrant recites what the law requires. We cannot add to it new conditions. * * * We can see no reason why the warrant of the Executive should be required to go beyond a substantial statement of the existence of the conditions necessary to its issue. It was so held in an early case (In re Clark, 9 Wend., 222), and which we-think may be wisely followed.” In In re Glcvrh it was distinctly held that a court or judge “ will not inquire as to the probable guilt of the accused ” upon the return of a writ of habeas corpus. And it was further held that “ the only inquiry is whether the warrant on which he is arrested states that the fugitive has been demanded by the Executive of the State from which he is alleged to have fled, and that a copy of the indictment, or an affidavit charging him with having committed treason, felony or other crime, certified by the Executive demanding him as authentic, have been presented.” In the warrant issued by the Executive in the case in hand, it was said that the Governor of Pennsylvania represented that the defendant stands charged with the crime of removing his property to prevent the same from being levied upon by execution, which he certifies to be crime under the laws of said State, committed in the county of Potter, in said State, and that he has fled from justice in said State and has taken refuge in the State of New York, and that said Governor of the State of Pennsylvania, pursuant to the Constitution and laws of the United States, demanded of me (the-Governor of the State of New York) that I shall cause the said Le Grange E. Scrofford to be arrested and delivered to William Dannells, who is duly authorized to receive him into his custody and convey him back to the said State of Pennsylvania.” The ■rendition warrant further stated that, “ whereas, the said representation and demand is accompanied by the papers required by the statute of the United States to justify a surrender of, and whereby the said Le Grange E. Scrofford is shown to have been duly charged with the said crime, andwith having fled from said State and taken refuge in the State of New York, which are duly certified by the said Governor of the State of Pennsylvania to be authentic and duly authenticated.”

We think this last statement is more than a conclusion of law. It is a plain and clear statement of facts, first, that the representation made by the Governor of Pennsylvania “ is accompanied by the papers required by the statute of the United States to justify the surrender of,” and that the papers show that the defendant has “ been duly charged with said crime, and with having fled from said State and taken refuge in the State of New York.” It also contains the plain and clear statement that the papers “ are duly certified by the said Governor of the State of Pennsylvania to be authentic and duly authenticated.” By section 2 of article 4 of the Constitution of the United States it was made the duty of the Governor, on demand of the executive of Pennsylvania, to deliver up the defendr ant as “ a person charged ” with crime, to the end that he might be dealt with for the crime, and, for the purpose, “ be removed to the State having jurisdiction of the crime.” The performance of the duty imposed by the provisions of the Constitution of the United States, to which we have referred, was further enforced by the provisions of the act of congress passed in 1793, the essential parts of which act are found in section 5278 of the Revised Statutes of'the United States, page 1027. In speaking of the case in which the Governor acts under the provisions of the Constitution, and the statute to which reference has been made in Taylor v. Taintor (16 Wall., 370), the-court said, viz.: “ In such cases the Governor acts in his official character, and represents the sovereignty of the State in giving efficacy to the Constitution of the United States and the law of congress.” We see nothing in the pqpers before us to indicate that the duty imposed upon the Governor was not properly performed, and we are of the opinion that the rendition warrant was valid. The performance of the duty of rendition is further imposed upon the Governor by section 827 of the Code of Criminal Procedure.. That section contains a provision to the effect that a person arrested under a warrant of rendition may have a writ of habeas corpus, if he claims not to be the particular person mentioned in said requisition, indictment, affidavit or warrant annexed thereto, or to the warrant issued by the Governor thereon. ' And it is further provided “that, if after a summary hearing, as speedily as may be consistent. with justice, the prisoner or prisoners shall be found to be the person or persons indicted or informed against, and mentioned in the requisition, the accompanying papers and the warrant issued by the Governor thereon, then the court or judge shall order and direct the officer intrusted with the execution of the said warrant of the Governor to deliver the prisoner or prisoners into the custody of the agent or agents designated in the requisition and the warrant issued thereon, as the agent or agents upon the part of such State to receive him or them; otherwise to be discharged from custody by the court or judge.” The section also contains another very important provision in the following language: If, upon such hearing, the warrant of the Governor shall appear to be defective or improperly executed, it shall be by the court or judge returned to the Governor, together with a statement of the defect or defects, for the purpose of being corrected and returned to the court or judge, and such hearing shall be adjourned a sufficient time for the purpose, and in such interval the prisoner or prisoners shall be held in custody until such hearing be finally disposed of.” It would seem by this provision that if the special county judge had been of the opinion that the warrant of the Executive was defective, he should have complied with this provision which required him to return the same to the Governor with a statement of the defect or defects “ for the purpose of being corrected and returned to the court or judge; ” instead thereof he seems to have been of the opinion that upon discovering any defect in the warrant it was his duty to discharge the defendant. However, as the learned special county judge has held that the recitals in the warrant were insufficient and, apparently, to a large extent based his final action upon such conclusion, we are called upon to meet the question, which, we do by holding that the recitals are sufficient in law. In McCorkle v. Herrman (5 N. Y. Supp., 881) the question whether certain allegations were those of law or of fact was under consideration and the court observed : “ So, in the ease at bar, where the allegation is that due proceedings were taken by which these liens were filed, the pleader has complied with the rule of alleging conclusions of fact, and not alleging the evidence from which such conclusions must be drawn.” We think the recitals in the warrant should have been taken, prima, facie, true and sufficient. (People v. Pinkerton, 77 N. Y., 245.)

We see no force in tlie suggestion made that there was a misnomer. The defendant claimed on the hearing that he spelled his name with an “ a ” and that in the Governor’s warrant o ” was substituted in place thereof. Upon an inspection of the warrant, which was in writing, so far as the name was concerned, it was not entirely clear that the name was written “Scrof” instead of “ Scraf,” besides, the witness Douglas, who was called by the defendant, and who was his brother-in-law, in the course of his testimony was shown the signature of the defendant written by him, and the witness added “ It looks as if it was spelled with an ‘ o ’ there.” It may be observed that with the spelling either way the pronunciation may be such that the sound would he the same whether an co’ or an ‘a’ was used. In People v. Pinkerton (7 Hun, 203) there was a conflict in the evidence as to the real name of the defendant. In disposing of that question, Gilbert, J., said : “ But taking the whole evidence, we think it was correctly determined that he is the person intended, whatever his real •Christian name may be.” That case was approved by the Court of Appeals in 77 New York, 215, and the opinion of Gilbert, J"., approved. Besides, if the special county judge had supposed there was any force in the criticism as to the spelling of the defendant’s name, it would have been more seemly if, in accordance with the provisions of section 827 of the Code of Criminal Procedure, he had returned the same to the Governor to the end that the clerical correction, if needed, might be made. By all that appeared before the judge it was quite apparent that the defendant was the person intended, and that if there was any mistake in the orthography as to his name he was not prejudiced thereby. We think the circumstances relating to the spelling of his name, as they appeared before the judge, furnished no sufficient ground for the discharge of the defendant. These views lead to the conclusion that the order should be reversed.

Martin, J., concurred; Merwin, J., not voting.

Motion to dismiss the appeal denied ; order reversed.


source: Caselaw Access Project

author: Martin, J. :

license: Public Domain

text:
    In the Matter of the Final Accounting of HUMPHREY SISSON, as Assignee of the Estate of WILLIAM W. HERRICK and HENRY H. AYERS, for the Benefit of Creditors.

      Preferences in an assignment — in what order paid, as between different classes, when all cannot be paid.

    By the terms of an instrument of general assignment for the benefit of creditors the assignee was directed, among other things, substantially as follows:

      Piflh. Out of the proceeds of the copartnership property, and the surplus of the individual property, to pay all wages due the employees of the firm.

      Sixth. Out of the said proceeds to pay three certain notes, amounting to the sum. of $2,644.68, which notes were made by the firm in their firm business, and were intended to be preferred next to the employees of the said firm.

      Seventh. Next to pay out of said proceeds the amount owing by the firm to-Catherine P. Herrick, and two notes mentioned, amounting to $450, which were indorsed by Taggart Brothers, which indebtedness was intended to be preferred next to the indebtedness of the last preceding paragraph.
    The one-third of the estate payable to the preferred creditors was insufficient to pay the claims mentioned in the sixth paragraph of the assignment.
    In a proceeding to determine the rights of the preferred creditors, as between themselves:

      Held, that, notwithstanding the provision of chapter 503 of the Laws of 1887, the-assignor still retained the right which he formerly enjoyed to apply his estate ' (to the extent of the one-third thereof, to which preferences are limited by such statute), to the payment of such debts as he should designate, and in any order of preference he might designate.
    That there was nothing in the statute which indicated an intention on the part of the legislature to provide how or in what manner the one-third of the estate, which might be devoted to that purpose, should be divided between the creditors of the assignor.
    That if the one-third was insufficient to pay the debts comprised in any one class, preferred by the assignment, no payment could properly be made upon any claim embraced in a subsequent class mentioned therein.
    That the payment of each class of preferred claims was contingent and conditional upon the payment in full of the claims mentioned in the preceding classes.
    Appeal by Byron Y. Taggart and "William W. Taggart, preferred creditors named in a general assignment for the benefit of creditors, from an order made at the Jefferson County Special Term, and entered in the office of the clerk of the county of Jefferson on the-6th day of October, 1890, and from so much thereof as directs that “ said one-third be applied wholly toward the payment of the preferences mentioned in said first class, to wit:
    To Jefferson County National Bank on note of $1,000 and interest, dated December 6, 1888.............. $765 98
    To Jefferson County National Bank on note of $1,500 and interest, dated December 12, 1888............. 1,147 32
    Tefft, Weller & Co............................... 110 99
    “ And from the refusal of the court to direct that the second class of preferred creditors are entitled to share pro rata with the first class in one-third of said net proceeds,” and from so much of said order as may be affected thereby.
    On the 13th day of December, 1888, William W. Herrick and Henry H. Ayers, who constituted the firm of Herrick & Ayers,, executed a general assignment for the benefit of their creditors, whereby the assignee was directed:

      First. To pay and discharge all the just and reasonable expenses,, costs and charges of executing this trust, and of carrying the same into effect, together with the lawful commissions of the party of the-second part for his services in executing said trust.

      Second. Out of the proceeds of the separate and individual property of each of said parties of the first part to pay any and all wages and salaries actually owing to the employees of said parties of the-first part, respectively, at the time of the execution hereof in full j, and should the individual assets of said parties of the first part,, respectively, be insufficient to pay in full said claims, then to apply the same to they re rata payment thereof.

      Third. Out of the residue of the individual assets as aforesaid, if' any there he, to pay the separate and individual debts of the parties of the first. part, respectively, in full; and if the separate assets of either of the parties of the first part be insufficient to pay his individual indebtedness in full, to apply the residue aforesaid to the-individual liabilities, respectively, pro rata.

      Fourth. If any surplus remain of the net proceeds of the separate- and individual property of either of the parties of the first part, after payment of his individual and separate debts and liabilities-in full, to apply the surplus towards the payment of the copartnership debts and liabilities of the said parties of the first part.

      Fifth. Tbe net proceeds of the copartnership property, with the surplus, if any there be, of the proceeds of .the individual property of the assignors, as aforesaid, shall be applied to the payment of any and all wages and salaries actually owing to the firm employees of the parties of the first part, at the time of the execution hereof, in full; and should said assets be insufficient to pay the same in full, then the payment of the same shall be pro rata.

      Sixth. Out of the said proceeds, if any there be, to pay in full a certain promissory note, made by the said parties of the first part, for $1,000, with interest, dated December 6, 1888, payable three months after date thereof, indorsed by,Humphrey Sisson, and now held by the Jefferson County National Bank of Watertown; also in full a certain other promissory .note, made by the parties of the first part, for $1,500, with interest, dated December 12, 1888, payable three months after date thereof, indorsed by Humphrey Sisson, and now held by the Jefferson County National Bank of Watertown; also a certain other promissory note, dated September 9, 1888, for $144.63, payable two months from date thereof, and owned •and held by Messrs. Tefft, Weller & Co., of New York city.
    The said notes were made by the said firm in their firm business, .and are intended hereby to be preferred next to employees of said firm as mentioned in the last preceding paragraph of this indenture.

      Seventh. Next to pay out of said proceeds all such moneys as may be due or owing by said parties of the first part, as such copartners, to Catherine P. Herrick, of said city of Watertown, in full; also in full a certain promissory note, made by the parties of the first part, dated September 24, 1888, for the payment of $200 and interest ■three months after the date thereof, indorsed by Taggart Brothers, and now held by the Jefferson County National Bank of Watertown; also in full a certain other promissory note, dated October 8, 1888, for the payment of $250 and interest three months from the date thereof, indorsed by Taggart Brothers, and now held by the National Hnion Bank of Watertown.
    The indebtedness mentioned in the paragraph is of said firm, and is intended hereby to be preferred next to the indebtedness mentioned in the last preceding paragraph.
    It is not intended, by the preference of firm obligations mentioned in this and the last preceding paragraph, to make preference to an ¿mount exceeding one-third in value of the assigned estate left after-deducting wages or salaries owing to said firm , and the cost and expense of executing this trust.

      Eighth. To pay and discharge in full (after payment of said preferences), if the residue of said proceeds is sufficient, all the remaining liabilities of the said copartnership, and if the assets shall be-insufficient therefor, then to apply the same to the pro rata payment thereof.
    The one-third of the estate dedicated to the payment of the preferred creditors was insufficient to pay the claims of the first preferred creditors mentioned in the sixth paragraph of the assignment. The appellants were in the second class of the preferred creditors mentioned in the seventh paragraph. The court by the order appealed from directed that the amount designated for the-payment of the preferred creditors should be distributed among-the creditors mentioned in the first class or sixth paragraph of said assignment, and held that the second class, of preferred creditors mentioned in the seventh paragraph were not entitled to participate-in said fund, but that because of the insufficiency of, said fund to-pay the first class in full, the second class should be paid dividends-as common creditors without preference. From that portion of the-order which held that the one-third applicable to preferred debts should be wholly applied to the first class of preferred creditors the appellants appealed.

      Hannibal Smith, for the appellants.

      Watson M. Rogers, for TTumphrey Sisson. •

      Zomsing c& Zansmg, for Jefferson County National Bank.
   Martin, J. :

The only question presented upon this appeal is, whether the court properly ordered the one-third of the estate dedicated to the payment of the preferred creditors of the assignors to be paid to those mentioned in the first class or sixth paragraph of the assignment, or whether it should have directed its payment to those creditors mentioned in the sixth and seventh paragraphs of the assignment pro rata.

• After the payment of the employees of the assignors, the creditors preferred were divided into two classes. Out of the one-third of the estate designated for that purpose, those belonging to the first class were to be paid. After they were paid in full, those belonging to the second class were to be paid out of the remainder of that portion of the estate. The fund was insufficient to pay the first ■class in full, and hence, according to the terms of the assignment, there was nothing in the preferred creditors’ fund which, under the provisions of the assignment, was applicable to debts in the second ■class. Whether the distribution of this fund among the preferred •creditors was to be governed by the provisions of the assignment, is the real question in this case.

Anterior to the enactment of chapter 503 of Laws of 1887, a failing debtor making a general assignment for the benefit of his creditors, possessed the right to prefer such of his creditors as he saw fit to the full amount of his estate. While the right to thus prefer creditors was fully established and generally understood, the legislature- passed the following statute: “ In all general assignments of the estates of debtors for the benefit of creditors hereafter made, .any preference created therein (other than for the wages or salaries •of employees under chapter three hundred and twenty-eight of the laws of eighteen hundred and eighty-four, and chapter two hundred and eiglity-three of the laws of eighteen hundred and eighty-six) shall not be valid except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries, and the costs and expenses of executing such trust; and should said one-third of the assets of the assignor or assignors be insufficient to pay in full the preferred claims to which, under the provisions of this section, the same are applicable, then said assets shall be applied to the payment of the same pro rata to. the amount of each said preferred claims.” (Chap. 503 of 1887.)

The manifest, purpose of tKis act was to prevent failing debtors from applying more than one-third of their property to the payment of friendly creditors. The mischief which the legislature sought to correct arose from the inclination of debtors to thus apply the whole of their property. We find nothing in this statute to indicate a legislative intent to provide how or in what manner the one-third which may be devoted to that purpose shall be divided between the -creditors of the assignor. That right formerly rested in the assignor, and we think still remains with him as to the one-third of the estate which he is permitted to apply to the payment of preferred claims. The one-third he is permitted to have applied to the payment of preferred debts he may have applied to such debts as he shall designate, and in any order of preference he may indicate by his assignment. This right is in no way restricted by the act of 1881.

By the assignment in this case the assignors devoted the one-third .applicable to the payment of preferred debts to the payment of the debts mentioned in class one. The whole fund was first dedicated to that purpose. If it was not sufficient to pay more, then it was dedicated to that purpose alone, and the debts in the second class were not preferred. The preference of the second class was a provisional one, depending wholly upon the sufficiency of the fund to pay the first class, with a surplus. If there was no surplus, then there was no further preference. The fund was insufficient to pay the first class, and hence the contingency upon which a preference was to be extended to the second class did not arise, and the debts mentioned therein were not preferred claims.

The provisions of the statute that, if one-third of the assets should be insufficient to pay in full the preferred claims to which the same were applicable, then they should be applied pro rata, obviously relates to such claims as are absolutely preferred by the provisions of the assignment, and to which, under the assignment, the assets are in fact applicable. As there were no assets that were, by the terms of the assignment, applicable to the payment of the claims of the creditors named in the second class, the preference of the claims mentioned therein being conditional, and the condition upon which such preference was based not having existed, it follows, we think, that the claims mentioned in the second class were not preferred claims to which such fund was applicable, and the creditors named in that class were not entitled to participate in the fund with the creditors named in the first class.

The effect of the statute of 1881 was simply to limit the amount which should be applied to the payment of preferred claims, and an assignor still has the power to designate the manner in which that amount shall be applied. (Matter of Tuller, 22 N. Y. St. Rep., 242; Matter of Boyd, 35 N. Y. St. Rep., 31.)

We are of tlie opinion that the order appealed from was right,, and should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Merwin, J.:

text:
    LAURA A. STEINHAUSEN, Respondent, v. PREFERRED MUTUAL ACCIDENT ASSOCIATION OF NEW YORK, Appellant.

      Mutual accident association — right of the assured at any time to change the beneficiary— competency of admissions made by the assured after the issuing of the certificate of insurance.

    In an action to recover the amount payable upon the death of one Steinhausen, under the terms of a certificate of .membership in a Mutual Accident Association, brought by his wife, the beneficiary named therein, a witness called by the defendant, the Mutual Accident Association, having testified that the deceased had spoken >to him about his physical ailments was asked; “ What did he tell you, if anything, as to his condition? ” This question was objected to, and the objection was sustained, the court ruling that “what the deceased said subsequent to the issuing of the policy was inadmissible; that after the policy was issued the rights of the beneficiary were settled and the assured had no authority to make any statement or declaration of any kind calculated to impair the contract.”
    Meld, that the question was competent and should have been allowed.
    That as, under section 18 of chapter 175 of the Laws of 1883, the assured had the right at any time, with the assent of the corporation, to make a change in the beneficiary without requiring his or her consent, the beneficiary had no vested interest in the certificate or the money payable thereunder.
    That the provisions of chapter 80 of the Laws of 1840, relating to the right of a wife to insure the life of her husband, did not apply to an insurance like the present one. ,
    Appeal by tlie defendant, the Preferred Mutual Accident Association of New York, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Oneida on the 22d day of November, 1889, and also from an order denying the defendant’s motion for a new trial, made upon - the minutes of the judge and entered in said clerk’s office on the 21st day of November, 1889, after a trial at the Oneida Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $5,169.20.
    The action was brought upon a certificate of membership issued by defendant to Frank J. Steinhausen July 27, 1886. This provided that “ the principal sum, represented' by the payment of Three Dollars by each member of the association, as provided in the By-Laws (which sum, however, is not to exceed five thousand dollars), is to be paid to Laura A. Steinhausen (his wife), if surviving (in the event of the prior death of said beneficiaries, or any of them, said sum shall be paid as provided in the By-Laws), within sixty days after sufficient proof that said member at any time .within the continuance of membership shall have sustained bodily injuries effected through external, violent and accidental means within the intent and meaning of the By-Laws of said association and the conditions hereunto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof.” The certificate also provided for the payment of certain sums to the member in case of bodily injuries disabling him from the prosecution of his business. It also provided that the benefits under the certificate should not extend to any bodily injury happening, directly or indirectly, in consequence of disease, nor to> any death or disability which may have been caused wholly or in part by bodily infirmities or disease at any time.
    On the 25th of January, 1889, Steinhausen met with an accident, and on the 27th of January, 1889, he died. The plaintiff claims that the accident was the sole, direct and immediate cause of the death. Steinhausen was by profession a physician, and it was so stated in the certificate.

      S. M. IAndsley, for the appellant.

      Van Auhen c& Pitcher, for the respondent.
   Merwin, J.:

We are of the opinion that the proofs in this case are sufficient to justify the submission to the jury of the questions whether the injury was the sole, direct and immediate cause of the death, and whether there was any violation of that clause of the certificate giving the defendant the right to examine the person of the member in respect to an injury or cause of death when and so often as may be reasonably required. There are, however, some rulings upon evidence that call for more particular consideration.

Upon the trial the1 defendant called as a witness F. W. Klages, who, having testified that within a year of the death of Steinhausen he (Klages) spoke to him about his physical ailments, about his kidneys, was asked this question: “ What did he tell you, if anything, ■as to his condition ? ” This was objected to by the plaintiff as incompetent, and objection sustained, the court ruling that “ what the deceased said subsequent to the issuing of the policy was inadmissible ; that after the policy was issued the rights of the beneficiary were settled, and the assured had no authority to make any statement or declaration of any kind calculated to impair the contract.” The defendant duly excepted. The defendant offered to show by .another witness that, upon the morning before the accident, the deceased said he was suffering from rheumatism and from kidney difficulty. To this there was the same objection, ruling and exception. Another witness, called by the defendant, having testified that upon a certain occasion he noticed that deceased had a difficulty in breathing and placed his hand on his breast, was asked the question : “ Did he say anything at the time of his difficult breathing, ■and at the time he placed his hand on his breast; that is, at the .same time and as he put his hand on his breast, did he make any ■statement as to his condition?” This was objected to as a declaration of the assumed after the policy was issued, and the objection was sustained, and the defendant excepted.

There seems to be no doubt as to the materiality of the declarations. They were not objected to on the ground that they were immaterial. The question, then, is, whether the declarations of the •member, after the issuing of the certificate, are admissible against the beneficiary.

The defendant is a domestic corporation, and within the provision -of section 18 of chapter 175 of the Laws of 18S3, which provides that “ membership in any corporation, association or society transacting the business of life or casualty insurance, or both, upon the -co-operative or assessment plan, shall give to any member thereof the right, at any time, with the consent of such corporation, association or society, to make a change in his payee or payees, beneficiary or beneficiaries without requiring the consent of such payee or beneficiaries.”

The ease of Smith v. National Benefit Society of New York (51 Hun, 575) is claimed by the appellant to be in point. There the plaintiff was a creditor of one Tyler, who procured from defendant an insurance on his life, and subsequently, under a rule of the defendant, the plaintiff was substituted as beneficiary under the policy. The defense was that Tyler obtained the policy with intent to commit suicide. His declarations after the substitution, and up to his death were held to be competent, it being said that, under section 18 above referred to, the deceased had the right, with the consent of the company, to change his beneficiary from time to time without the consent of such payee or beneficiary; that “ the plaintiff got no separate standing by the designation under the policy before the date of the death; before that the sole right was in Tyler. The deceased by his designation of plaintiff as beneficiary, did not make a case to exclude evidence of his declarations. He stood as owner until he died, and the plaintiff was in no better condition in respect to the policy than if the decedent’s representative had brought the action.” This case was affirmed by the Court of Appeals (33 N. Y. St. Rep., 67) but upon another basis. It was, however, said with reference to section 18 above referred to, “that section attaches the beneficial interest to the membership, and permits the member to change the payee or beneficiary of the insurance without the latter’s consent. Where the right of the payee has no other foundation than the bare intent of the member, revocable at any moment, there can be no vested interest in the named beneficiary any more than in the legatee of a will before it tabes effect.”

There are many other cases to the effect that a beneficiary in a certificate like the present has no vested interest. (Hellenberg v. Dist. No. 1, etc., 94 N. Y., 585 ; Luhrs v. Sup. Lodge, etc., 27 N.Y. St. Rep., 88; Sabin v. Grand Lodge, etc., 6 id., 151; S. C., 28 id., 45 ; Luhrs v. Luhrs, 33 id., 688 ; Masonic Mutual Benefit Soc. v. Burkhart, 110 Ind., 189; Bagley v. Grand Lodge, etc., 131 Ill., 498; Richmond v. Johnson, 28 Minn., 447.) in this respect the certificate is different from the ordinary policy of life insurance where a vested interest passes to the beneficiary, and the assured ceases to be a party in interest. ' Upon this ground it was held in Rawls v. American-Mutual Life Insurance Company (27 N. Y., 290), that the admissions of the assured after the issuing of the policy were not admissible, and many similar cases are cited by the respondent where this rule has been followed. The reason is said to be (Swift v. Mass. Life Ins., 63 N. Y., 192) that after the contract of insurance is. effected the subject of insurance has no such relation to the holder of the policy as gives him the power to destroy or affect it by unsworn statements. This rule does not reach this case. In Grossman v. Supreme Lodge, etc. (25 N. Y. St. Rep., 844), the same rule of ■inadmissibility is asserted with reference to the claim of the plaintiff,, as the beneficiary in a certificate of membership in the defendant, which entitled the member to participate in its relief fund to a. certain amount, which at her death should be paid to the plaintiff, her husband, and the case of Fitch v. American Popular Life Insurance Company (59 N. Y., 557) is cited. The Fitch Case was upon an ordinary policy. It does not appear whether the statute of 1883 was applicable to the Grossman Case. Apparently, the plaintiff' had no vested right up to the time of the death of the member. This, however, was not considered.

It is, however, claimed by the plaintiff that, under chapter 80 of the Laws of 1840, she had a right to insure the life of her husband and have a vested interest in the policy, and that this applies to the present case. A contrary doctrine was held in Durian v. The Central Verein, etc. (7 Daly, 168); besides, the act of 1883 does not except the case of wives. We think that the act of 1840 does not help the plaintiff on this question. The insurance there referred to was not intended to cover a case like the present.

We see no escape from the conclusion that the plaintiff had no-vested interest until the death of her husband, and that, therefore, his declarations were admissible the same as if the action was by his. representatives. It follows that the judgment must be reversed.

Hardin, P. J., and Martin, J. concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


author: Y an Brunt, P. J.:

text:
    WALTER K. FREEMAN, Respondent, v. THE UNITED STATES ELECTRIC-LIGHT COMPANY, Appellant.

      Judgment upon the merits — entered upon a dismissal of the complaint.

    Where, on the trial of an action at circuit before a jury, it appears by the clerk’s minutes that the complaint was dismissed, it is improper in the judgment-roll to provide in the postea that the defendant have judgment against the plaintiff, upon the issues in the action, dismissing the complaint upon the merits.

      'Quaere, whether the court upon a jury trial has power to dismiss a complaint upon the merits.
    Appeal by tbe defendant from an order of tbe Supreme Court, ■entered in the office of the cleric of the county of New York on the 6th day of November^ 1890, vacating and setting aside a judgment theretofore entered in the above-entitled action on •June 3, 1890.

      John Holman, for the appellant.

      Henry Yonger for the respondent.
   Y an Brunt, P. J.:

This action was tried at the circuit before a jury, and it appears from the clerk’s minutes that the .complaint therein was dismissed. Thereupon a judgment-roll was filed, the postea in which adjudged ■that the defendant have judgment against the plaintiff upon the issues in this action, dismissing the complaint upon the merits. A motion was made to set aside this judgment as unwarranted^ which was granted, and from the order thereupon entered this appeal is taken.

Without expressing any opinion upon the question as to when the court has power to dismiss a complaint upon the merits, in the disposition of this appeal it is sufficient to say that the clerk has no such power. There was no evidence before the clerk going to show that the court had ever dismissed the complaint upon the merits. The clerk of the circuit certified simply that the complaint had been dismissed; and the clerk of the court, in entering the judgment seems to have evolved out of his own imagination the idea that the complaint had been dismissed upon the merits. Clearly, such a. judicial function has no where in the Code been conferred upon the clerk. All that he could do in the making out of the postea to be contained in the judgment-roll was to follow the minutes to the effect that the complaint had been dismissed.

We think, therefore, that the order was right and should be affirmed, with ten dollars costs and disbursements.

Beady and Daniels, JJ"., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Tan Brunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL J. O’CONNOR, Appellant, v. DANIEL E. SICKLES, Sheriff, etc., Respondent.

      Contempt — requirement that a stipulation he given not to sue for damages.

    An order adjudging a defendant guilty of contempt, and that said contempt had. impaired the rights of the plaintiffs, imposed' a fine, -provided for the payment of the costs and the sheriff’s fees, and directed that the defendant stand committed to the common jail until said fine, costs and sheriff’s fees should be paid, unless he should be sooner discharged by the court, provided that should the defendant appear on a day certain for the purpose of being examined and pay to the plaintiffs a certain sum as a fine for his misconduct, and should he also serve upon the plaintiffs’ attorneys a stipulation binding himself not to bring any action for damages against the plaintiffs or their attorney, because of any proceedings had or ordered therein, that thereupon said defendant should be deemed purged of said contempt and be discharged from the custody of the sheriff and his bond be canceled.
    It was urged by the defendant that the order was improper, for the reason that his liberty was restrained until the stipulation not .to sue should be given.

      Held, that as the judgment-debtor could relieve himself from imprisonment by doing these things which the court lawfully required him to do, he was not put to the alternative of giving the stipulation or staying in jail.
    That, even if the court had no power to insert in the order the alternative presented by the requirement that he should give the stipulation, yet it did the defendant no harm because he could relieve himself from imprisonment by complying with that portion of the order which the court was authorized to make.
    Appeal by Michael J. O’Connor from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 27th day of September, 1890, dismissing the writs of habeas corpus and certiora/ri obtained on behalf of the said Michael J. O’Connor in the above-entitled matter.

      Da/oid M. Weuberger, for the appellant.

      J. E. Weld, for N. Gutmann and another, judgment-creditors, respondents.
   Tan Brunt, P. J.:

The relator was adjudged guilty of contempt by the City Court of New York in proceedings supplementary to execution. An order for.commitment was duly made and entered on the 11th of July, 1890, and a warrant was subsequently issued and the relator arrested thereunder. Writs of habeas corpus and certiora/ri were obtained,, and it was claimed that the arrest under the order of commitment was unlawful and unauthorized, because such ■ order, after having adjudged the defendant guilty of contempt, and that such contempt had impaired, impeded and prejudiced the rights or remedies of the plaintiff, and after having imposed a fine, and after having provided for the payment of the costs and the sheriff’s fees, and after having-ordered that the defendant stand committed to the common jail, there to remain, charged upon said contempt, until the said fine, together with the costs, expenses and sheriff’s fees therein be fully paid, unless he should be sooner discharged by the court, provided that should the defendant appear on a day certain for the purpose of being examined, and pay to the plaintiff a eertain sum as a fine for his misconduct, and should he also serve upon the plaintiffs’ attorney a stipulation binding himself not to bring any action for damages against the plaintiffs or their attorney because of any proceedings had or ordered therein, that thereupon said defendant should be deemed purged of said contempt and discharged from the custody of the sheriff and his bond canceled: The writs were dismissed, and from the order thereupon entered this appeal is taken.

The commitment complied with all the requirements in respect to such proceedings. The appellant was charged and punished for his failure to appear for examination, and the warrant specified the act which he was required to perform and the sum to be paid to relieve himself from the contempt.

It is urged that neither the order nor the commitment give an opportunity to the relator to be relieved of his contempt by the performance of the act, for failure to do which he was committed, but that this liberty was restricted by requiring the stipulation not to sue.

It is clear that the court is not bound to allow a party who has willfully disobeyed its order for his examination to purge himself by submitting to examination. The court has a right to adjudicate as to what extent the contumacy of the judgment debtor has impaired, impeded and prejudiced the rignts or remedies of the plaintiff and to impose a fine therefor, and to direct that the judgment debtor stand committed until he pays the same. This the order and commitment in question did; and if the court should allow, in the commitment the judgment debtor to purge his contempt by doing something else than this, if he complains, he need not take advantage of the privilege, such part of the order being mere surplusage ; if the court had no power to insert it there, the commitment was ■complete without it. The judgment-debtor could relieve himself from imprisonment by doing those things which the court required him to do, and which the court was empowered to'require him to do; and if he did not please to do that, he need not accept the alternative; he could stay in jail.

We think, therefore, even if the court had no power to insert the alternative proceeding in the order and commitment, it did the judgment-debtor no harm, because he could relieve himself from imprisonment by complying with that portion of the order which the court ivas empowered to make.

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

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J.:

text:
    ROSSIE IRON WORKS, Respondent, v. CHARLES S. WESTBROOK, Appellant.

      Venue — place of residence of a corporation.

    Upon an application to change the place of trial of an action brought in the county of New York, it appeared that the defendant was a resident of St. Lawrence county, and that the certificate of incorporation of the plaintiff was filed in that county, and that the town of Eossie, in that county, was therein stated to be the town in which the principal business of the company was to be carried on. It also appeared that the company had a place of business in the county of New York for the transaction of its financial business.

      Held, that the place of trial should be changed to the county of St. Lawrence. 'That the designation of its residence in the certificate of incorporation could only be changed in the manner prescribed by the statute.
    'That the mere fact that the plaintiff had a place of business in another part of the State in no way changed its legal habitation and home.
    Appeal by the defendant Charles S. Westbrook from an order, ■entered in the office of the clerk of the county of New York on the 8th day of October, 1890, denying the defendant’s motion to •change the place of trial in the above-entitled action from the county ■of New York to the county of St. Lawrence.

      Macgrcme Goxe, for the appellant.

      W. P. Butler, for the respondent.
   Yan Brunt, P. J.:

This action was begun by the service of a summons and complaint •on the 7th of August, 1890. Within the time limited a notice of •appearance and a notice of demand to change the place of trial was served upon plaintiff’s attorney.

The defendant was a resident of St. Lawrence county, and the certificate of incorporation of the plaintiff was filed in said county; and in said certificate the name of the town and county in which the principal business of the company was to be carried on was stated to be the town of Rossie and county of St. Lawrence. It appeared that the land, furnaces and mines of the plaintiff were situate in the counties of St. Lawrence and Jefferson, and that a large part of the business of the company for many years had been carried on exclusively in said county, and that it had an office in New York county for the transaction of its financial business. Upon these facts the motion was denied, and from the order thereupon entered the appeal is taken.

We think the conclusion arrived at by the learned judge below was erroneous. The corporation had selected its place of residence. It had stated in its certificate of incorporation that its principal place of business was to be in the county of St. Lawrence, and its annual reports were there filed. It could not change this designation of residence except in the manner prescribed by statute. The mere fact of its having places of business in other parts of the State in no way changed the designation which had been made of its legal habitation and home.

We think, therefore, the motion should have been granted upon the ground that both parties to the action were residents of St. Lawrence county, and the order should be reversed, with ten dollars costs and disbursements and the motion granted.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements and the motion granted.


author: Daniels, J.:

text:
    HENRY A. TAYLOR and Others, as Temporary Administrators of CHRISTOPHER MEYER, Deceased, Respondents, v. THOMAS S. BLAIR and THOMAS STRUTHERS, Appellants.

      Tender of transfer of stock — when necessary under a contract for its repurchase at the option of the holder th&reof at a particular time.

    Upon the purchase of some 500 shares of stock by one Meyer, on April 4,1878, an agreement was made by certain parties “that if, at the end of one year from this date, the said Meyer shall desire to sell the said shares at the price paid f or the same by him, we will purchase the same and pay to him the amount paid by him on the same, with interest.”

      Meld, that it was incumbent upon Meyer, in order to sustain an action brought to-recover the amount paid for such stock, with interest, to prove that, on the 4th of April, 1874, he offered or tendered a transfer of such shares to the parties agreeing to purchase the same.
    That the mere fact that such parties resided in the State of Pennsylvania, where they also resided at the time the agreement was entered into, did not discharge Meyer from the obligation to perform such duty.
    Appeal by the defendants, Thomas S. Blair and Thomas Struthers, from a judgment of the Supreme Court, entered in the office of the-clerk of the county of New York on the 10th day of December, 1887? in favor of the plaintiff, after a trial before the court and a jury at the New York Circuit, at which a verdict was rendered, under the direction of the court, in favor of the plaintiff. The action was commenced by Christopher Meyer, who died during its pendency,, and-it was revived in favor of his personal representatives.
    /S'. P. Wash, for the appellants.

      Louis O. Waehner, for the respondents.
   Daniels, J.:

-The verdict was directed for the amount held to be payable on a contract entered into by the defendants with the intestate. He had subscribed for 500 shares of the capital stock of the Blair Iron and Steel Company, and paid upon his subscription the sum of $10,000, included with interest in the verdict. To induce him to purchase these shares the defendants subscribed and delivered to him this-contract:

“ Whereas, Christopher Meyer has purchased six hundred shares ■of the stock of the Blair Iron and Steel Company, sold by A. S. Diven, trustee of said company, at the price of fifty dollars per share.
“Now we, the undersigned, in consideration of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, do hereby .agree that, if at the end of one year from this date, the said Meyer .shall desire to sell the said shares at the price paid for the same by him, we will purchase the same and pay to him the amount paid by him on the same, with interest at the rate of seven per cent per annum.
“ New York, April 4, 1873.
“ THOMAS S. BLAIR.
“THOMAS STRUTHERS.”

And on the 7th of March, 1874, under his authority, a copy of this letter was delivered to each of the defendants:

“ New York, Mar. 7, 1874,
“ Mr. Thomas S. Blair and Mr. T. Struthers :
“Gentlemen. — Your agreement, dated April4,1873, to purchase from me six hundred shares of the stock of the Blair Iron and Steel Company at the price I paid for the same, with interest at seven per cent, will expire April 4, 1874.
“ I hereby notify you that I desire to sell the said shares under this agreement, and will be ready to receive the amount at any time you will name prior to April 4, 1874.
“ Yours, very truly,
“CHRISTOPHER MEYER.
“■By A. G. T., Jr.”

And on the 4th of April, 1874, the day upon which the agreement was to be performed, the defendant Struthers wrote to the intestate, .a letter, in which he stated, so far as its contents are in the least degree material to this controversy :

“ I was sorry to learn through notice by Mr. Taylor from you that you felt disposed to place yourself in. position to sever your connection with the Blair Iron and Steel Company by parting with your stock. I hope you have not resolved absolutely on taking-that step. I thought I had, by encouraging you to subscribe for that stock, done a good thing for an esteemed friend, arid I think SO' still. Mr. Foster says he did not understand you to assign any reason for not paying the call on stock about which he spoke to you, except the severe loss you had sustained in the bank disaster.. I hope, however, the force of that reason has passed and that your financial position is again right. I felt confident that your ample means would soon raise you above that trouble.”

The Blair Iron and Steel Company had an office in the city of New York, which, when they were there, was stated by the intestate,, in evidence given by him upon a preceding trial, to have been the head-quarters of these defendants, one of whom was the president of the company and the other one of its trastees. The intestate employed the witnesses Henry A. Taylor and Albert Gr. Thorp to act. for him in and about the performance of the agreement delivered to him by the defendants. For this purpose they endeavored to find the defendants at the office of the company, but failed to meet them there after the 7th of March, 1874. The witness Thorp was at the office on the 4th of April, 1874, and inquired for the defendants, but had no papers with him by which he could transfer the shares; neither was any offer made by him to the person found in charge of the office, in the absence of the defendants, to transfer' the stock to them on the payment of the $10,000 and interest. And no offer to that effect was any where made until some time in September succeeding the expiration of the year mentioned in the agreement. At the time designated in it for its performance there was, consequently, no offer or tender made on behalf of the intestate, who was then living, to perform on his part by transferring or offering a transfer of the shares to the defendants.

The complaint did allege that at the end of one year from the said 4th day of April, 1873, the plaintiff Meyer did desire to sell the said shares at the price paid for the same by him, and duly notified the said defendants of such his desire, and requested the said defendants to accept and receive the said shares and pay to him the amount paid on the same by him; but the said defendants neglected and refused, and still do wholly neglect and refuse so to do.

And the position has been taken, on behalf of the plaintiffs, that the defendants have not denied that they had been requested on the 4th of April, 1874, to accept and receive the shares and pay the plaintiff the amount paid on the same by Mm. But this is clearly :a mistake, for by their answer they have denied that the plaintiff •at the end of one year from said 4th day of April, 1873, duly or •otherwise notified them of his desire to sell the said _ shares at the price paid for them by him, or requested them to accept and receive said shares and pay him the price paid for the same by him. And that they neglected or refused to accept and receive the said shares, ■or pay to the plaintiff Meyer the price paid for the same by him, except for the reasons above set forth and the reasons hereinafter set forth in the second, third and fourth defenses of this the defendants’ answer.

These denials, as they were not afterwards changed, completely put in issue the averment, on the part of the plaintiff that the •defendants had been requested to accept and receive the shares and pay the amount which had been paid by him upon them. And before a recovery could be had in the action it was incumbent upon the present plaintiffs to prove that on the 4th of April, 1874, Meyer offered or tendered a transfer of these shares to the defendants. That was a condition precedent, according to the terms of the agreement, upon which the right to recover this money depended.

This subject and the authorities bearing upon it were very minutely considered in Lester v. Jewett (1 Kern., 453), where it was held that an averment and proof of tender or offer to sell and -transfer the stock to the party there contracting to purchase it at the •expiration of the time, was essential to maintain the right of the other party to recover upon such a contract. And this has been followed in National Oleo, etc., Company v. Jackson(21 N. Y. St. Rep., 458); Rutty v. Consolidated, etc., Company (52 Hun, 492), and Pope v. Terre Haute, etc., Company (107 N. Y., 61).

The plaintiffs have endeavored to relieve themselves from the •obligation of proving a compliance with this rule by reason of the fact that the defendants were absent from the State of New York at the time fixed for the final performance of the agreement. And so they were, but the proof establishes the fact that they resided in the State of Pennsylvania at the time when the agreement was entered into, and that the intestate was aware of the fact that they did then reside in that State. And, accordingly, Meyer was bound either to apply to them for the performance of the agreement at their places of resi■dence, or at least, if that would have been sufficient, to make the offer or tender required by the law at their office or place of business in the city of New York. But in each respect there was an entire failure on his part, for no tender or offer of the shares was made at the office nor to the defendants personally.

In the case of Hale v. Patton (60 N. Y., 233) the court held that the defendant was not bound to follow the plaintiff out of the State to pay interest which became due upon a mortgage in order to prevent the principal from becoming due because of a default in payment of the interest for the period of thirty days. But there the plaintiff was a resident of the State, and had absented himself from it at the time when the interest matured. And all that the court held was that readiness, under these circumstances, on the part of the debtor to pay the interest when it became due was sufficient to avoid the principal from becoming due on account of a default of payment. The case contains nothing relieving the intestate from making a tender or offer of these shares either to the defendants personally at their places of residence in the State of Pennsylvania, or at least at their office in the city of New York.

The judgment should accordingly be reversed and a new trial ordered, with costs to the defendants to abide the event.

Yan Brunt, P. J., and Brady, J., concurred.

Judgment reversed and new trial ordered, with costs to the defendants to abide the event.


text:
    SAMUEL E. HUNTINGTON, Executor, etc., Appellant, v. CORNELIA S. MOORE, Respondent, Impleaded, etc.

      Additional allowance of five per cent on the foreclosure of a mortgage on a leasehold estate.

    In an action brought for the foreclosure of a mortgage upon a leasehold estate for twenty one years, with conditions for renewals and reserving a rent certain, an additional allowance of costs may be made to the extent of five per cent upon the amount involved.
    The phrase “real property” in section 3253 of the Code of Civil Procedure does not include leasehold estates, so as to bring an action for the foreclosure of a mortgage thereon, within subdivision 1 of that section.

      Appeal by the plaintiff from so much of an order made at the New York Special Term, on an application for an additional allowance, in an action brought to foreclose a mortgage covering a leasehold interest in real estate, as denied an allowance of five per cent upon the judgment recovered in the action, upon the ground that the court had not power to grant any allowance in excess of two and a half per cent upon the amount of the recovery.

      Henry D. Hotchkiss, for the appellant.

      William A. Abbott, for the respondent.
   Daniels, J.:

The judgment directed is for the foreclosure of a mortgage upon a leasehold estate created by a lease for the period of twenty, one years from the 1st of November, 1888, with conditions for renewals, and reserving a rent certain. The amount secured, and for which a sale has been directed, is the sum of $10,000. The plaintiff moved for an additional allowance of costs, stating in the affidavit presented for that object that a great deal of labor had been expended in preparing for trial to show the facts attending the loan, the payment of which was resisted on the alleged .ground of usury. The court declined to make a greater allowance than the sum of $200 for the want of power. It was held that this was the foreclosure of a mortgage on real property, and that the allowance, therefore, under subdivision 1 of section 3253 of the Code of Civil Procedure, could not exceed the sum of $200. And that is the extreme limit there prescribed in an action for the foreclosure of a mortgage upon real property.

But a leasehold interest was held in Despard v. Churchill (53 N. Y., 192) not to be real property, even where the lease may exceed the period of three years, and for that reason is entitled to be recorded. Two leasehold interests were then before the court, one having about four and the other about five years to run. And they were held to be personal and not real estate. And this conclusion seems equally as applicable to the lease affected by the result of this action. For whether the lease be for five or twenty-five years it cannot affect the nature of the estate created by it, or the principle which should be applied to define it. If .a lease of five years creates a personal interest only, one of a longer term will necessarily be of the same legal nature. And as the former has been established to be personal estate the latter must be the same. These are legal phrases, and it is to be presumed that the phrase “ real property,” as it has been used in this section of the Code, has been employed in its legal sense. And that construction will exclude this action from the restriction created by its first subdivision and place it within the language of the other parts of the section, so far as that has provided the power of making additional allowances in difficult and extraordinary cases.

The affidavit, as it has been made, may not be deemed sufficient to prove this action to have been difficult and extraordinary. But whether it can be so considered or not is á subject which must first be brought to the attention of the Special Term, which is the tribunal to first hear the motion. That has not yet been done, because this action was held to be for the foreclosure of a mortgage on real property. To afford the plaintiff the opportunity of making the application on that ground, this order should be reversed, but, as the point is a new one, it should be without costs of this appeal.

Van Brunt, P. J., and Brady, J., concurred.

Order reversed, without costs of this appeal.


author: Daniels, J.: Yan Brunt, P. J.:

text:
    LOUIS DUBOIS, Respondent, v. W. H. M. SISTARE, Appellant, Impleaded, etc.

      A denial which presents the question, whether the■ defendant is liable to wrrest raises a material issue.

    A complaint alleged that the defendants held in their possession certain shares of corporate stock, for, and which belonged to, the plaintiff. That the plaintiff had tendered to the defendants a certain sum due to the defendants from him on account of such stock, and had demanded a delivery of the stock, of which part had been delivered, hut the balance the defendants neglected and refused to deliver, and as to such part it was averred “ that the defendants have wrongfully detained and converted the same to their own use.” This last allegation was denied by the defendants’ answer.

      Held,, that such denial created a material issue in which was involved the liability of the defendants to personal arrest, and that such denial could not be properly stricken out.

      Appeal by tbe defendant W. H. M. Sistare from an order of tbe Supreme. Court, entered in the office of the clerk of the county of New York on the 12th day of December, 1890, overruling the amended answer of the said defendant Sistare as frivolous and ordering judgment thereon.
    The complaint alleged that the defendants were stockbrokers and had bought on commission certain stocks for the plaintiff, and that the plaintiff had tendered to the defendants the amount due to them and demanded the delivery of such stocks, but that the defendants “ have neglected and refused, and still neglect and refuse, to deliver to him the remainder of said securities, namely, five thousand shares of the capital stock of the Horn Silver Mining Company and fifteen hundred shares of the capital stock of the Iron Silver Mining Company ; that no part of the same have been delivered to this plaintiff, but that the defendants have wrongfully detained and converted the same to their own use, with damage to the plaintiff in the sum of twenty thousand dollars.”
    The answer in question admitted certain allegations of the complaint to the effect that the plaintiff had had dealings with the defendants’ firm, which had purchased for and oh account of the plaintiff upon commission various stocks or shares in mining companies, and that said transactions were had upon margin ; and for a further answer the defendants denied the allegation “ that the defendants have wrongfully detained and converted the same (meaning the 5,000 shares of the Horn Silver Mining Company and 1,500 shares of the Iron Silver Mining Company) to their own use.”

      Henry 8. Bennett, for the appellant.

      .Alexander B. 8imonds, for the respondent.
   Daniels, J.:

The complaint sets forth various dealings between the parties in certain mining stocks, and alleges that the defendants held in their possession, for and belonging to the plaintiff, 6,000 shares of the Little Chief Mining Company, 5,000 shares of the Horn Silver Mining Company and 1,500 shares of the Iron Silver Mining Company It was also alleged that the plaintiff had tendered to the defendants the balance due to them from him, and demanded the delivery of the stock. And that they had delivered to him the 6,000 shares of the Little Chief Mining Company stock, but neglected and refused to deliver the remainder. And the averment is then made “ that the defendants have wrongfully detained and converted the same to their own use.” This averment has evidently been made to legally characterize the defendants’ act in neglecting and refusing to deliver the detained shares of stock. It charged a conversion, which before was, at most, left to mere inference, and may be presumed to have been added, to avoid all uncertainty from what had been previously set forth. The object was to implicate the defendants in a positive wrong, for which, if it shall be maintained, they may be personally taken in execution. This was as pointedly denied by the answer, which has been stricken out. For in its third subdivision, the allegation that the defendants have wrongfully detained and converted the 5,000 shares of the Horn Silver Mining •Company and the 1,500 shares of the Iron Silver Mining Company to their own use, has been denied. This denial created a material issue, including the liability of the defendants to personal arrest. And it could not regularly be stricken out. (Farmers’ Nat. Bk., etc., v. Leland, 50 N. Y., 673.) But it should be tried in the ordinary course prescribed for that object.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Yan Brunt, P. J.:

It seems to me that the fact that the respondent found it necessary to present so elaborate a brief upon this appeal shows conclusively that the answer was not frivolous. I concur in the reversal of the •order, with costs.

Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements,» and the motion denied.


text:
    S. CHARLES WELSH, as Trustee, etc., Appellant, v. HENRY SCHOEN and Others, Defendants. LOUIS ETTLINGER, Purchaser, Respondent.

      Notice of lis pendens — right of one in possession under an unrecorded deed.

    The provisions of section 1671 of the Code of Civil Procedure, to the efEect that a person, whose conveyance or incumbrance is executed or recorded after the filing of the complaint and the notice of the pendency of the action of foreclosure, shall be bound by all proceedings taken in the action after the filing of the notice, to the same extent as if he was a party to the action, includes only the class of cases where no more has been done than the making and delivery of the conveyance or incumbrance.
    Such provisions do not extend to a case where the purchaser or incumbrancer has, in fact,' prior to the filing of the notice of pendency of action, become possessed of the premises.
    Such possession is notice, as complete as the recording of the instrument itself would be, to all persons dealing with or proceeding against the property.
    Appeal by the plaintiff S. Charles Welsh, as trustee, from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 17th day of December, 1890, relieving the purchaser of the mortgaged premises, described in the complaint and judgment in the above-entitled action, from his purchase thereof at a sale under a foreclosure of a mortgage, and from every part of said order, except so much thereof as directs that proceedings thereunder be stayed as therein set forth.
    The order Appealed from also directed the repayment to the purchaser of the sum of $1,180, paid upon the purchase-price,-with the interest thereon, together with exchange and auctioneer’s fees, the expenses of searching and examining the title, and for referee’s, fees, with the costs of the motion.

      Qfatz t/Vathan, for the appellant.

      John JB. Talmage, for the respondent.
   Daniels, J.:

This action was for the foreclosure of a mortgage upon the premises in question. It was commenced by the service of the summons in February, 1890. The original notice of the pendency of the action was filed with the complaint on the eighth of March following, and on the 14th of April, 1890, an amended notice was also filed. When the suit was commenced Leah Diamond appeared by the record to be the owner of the land incumbered by the mortgage. But she had, in fact, executed and delivered a deed of the property to Mary T. Stephens on the 17th day of December, 1889. And she also executed a deed on the 30th day of January, 1890, to Charles Giesmeyer, which was delivered on or about the fifteenth of April of the same year, the grantor in this deed remaining during that interval of time in the possession of the premises and collecting the rent. The parties to the last deed joined in a lease to George A. Marz on the 14th of February, 1890, by which they leased and demised to him the store and back-rooms and three rooms of the second floor of the building on the land, for the term commencing on the day of the date of the lease and continuing to the 1st of May, 1892, and he went-into possession on the 1st of March, 1890, and has since remained in possession under this lease. Neither •of these three persons was made a party to the action to foreclose the mortgage, and under the judgment in which the sale was made. And the court held that to be such a defect in the title as entitled the purchaser to be relieved from his contract of purchase.

The correctness of this decision has been denied under the language .of section 1671 of the Code of Civil Procedure. That section has provided that a person whose conveyance or incumbrance, has been executed or recorded after the filing of the complaint and the notice of the pendency of the action of foreclosure, shall be bound by all the proceedings in the action to the same extent as if he was a party to the action. But this effect has been given to the filing of the notice ¡solely on the existence and the omission to record the preceding conveyance or incumbrance. It includes only the class of cases where no more has been done than the making and delivery of the conveyance or incumbrance. To bring the case within this section the case must extend no further than the execution and delivery of the instruments mentioned. That is the language, as well as the plain significance of it, as it has been employed in this section. Its object was to protect the party prosecuting his action against conveyances and incumbrances, of which he ordinarily could have no knowledge or information on account of their absence from the record. And it would violate this intention to extend the provision to a case . where the purchaser or incumbrancer had, in fact, become possessed of the premises. For that possession is notice, as complete as the recording of -the instrument itself would be, to all persons dealing with or proceeding against the property. It has been uniformly held to be the equivalent of notice resulting from the recording of the conveyance or incumbrance. And it has been so, in effect, declared by the case of Phelan v. Brady (119 N. Y., 587).

Through this possession the plaintiff became chargeable with notice of the title of Mary T. Stephens and of the tenant in the occupancy of a considerable part of the property under the lease of herself and her grantee to him. And he could not be removed and possession given to the purchaser, by any proceeding in the action, because of the omission to join him as a defendant in the action. (Hirsch v. Livingston, 3 Hun, 9.) What the purehaser was entitled to demand under the terms of his purchase was a complete title to the property, together with an immediate right of possession. That he did not and could not obtain. And for want of that he was entitled to be discharged from his purchase and to be otherwise indemnified, as that has been directed by the order. The order should, therefore, be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements. ,


author: Van Brunt, P. J.:

text:
    JOHN PARKER and Another, as Executors, etc., of JAMES LINDEN, Deceased, Appellants, v. MARIA LINDEN and Others, Respondents.

      Notice of the settlement of a judgment — application made at the foot of a decree — extent of the relief which may he thus secured,.

    ' Alter the decision of an action at Special Term, the settlement of the form of the judgment may be made upon a notice of less than eight days.
    Upon an application made upon the foot of a decree, no substantial alteration can be made in the original judgment, nor can an adjudication be made as to any matter which might have been a subject of investigation upon the trial.
    It is only as to matters arising subsequent to the judgment, for the purpose of carrying into effect the judgment already entered, that such an application can be made. '
    Appeal by tbe plaintiffs from an order, entered in tbe office of the clerk of the county of New Tork on the 31st day of July, 1890, amending a decree entered in said office .on the 16th day of J une, 1890; and also from an order denying a motion to vacate said order as having been irregularly made, entered in said clerk’s office on the 11th day of August, 1890.

      I AT. Miller, for the appellants. ■

      A. J. Slcinner, for the respondents.
   Van Brunt, P. J.:

The papers presented upon this appeal are so meagre that it is " with great difficulty that the court has been able to get at the precise position of the parties in respect to this motion.

< There is no question but that the court, after the decision of an ■ action at Special Term, may, upon a less notice than eight days, ' settle the form of the judgment and direct the entry thereof, and, therefore, the order appealed from cannot be reversed upon the ground of irregularity.

But we think that, under the pretext of an application at the foot of the decree, no such substantial alteration of the original judgment can bo permitted, nor can a judgment be entered relating to a. subject-matter which might have been a subject of investigation upon the trial, and which, if the rights of the parties demanded, should then have been considered. It is only as to matters arising subsequent to the judgment, for the purpose of carrying into effect the judgment already entered, that an application at the foot of the decree can be permitted. In the case at bar, without any proof and without any trial, a substantial right of the plaintiffs is adjudicated upon and determined adversely to them. This, we think, the court had no power to do.

The order amending the judgment should, therefore, be reversed, and the application for such relief denied, with ten dollars costs and ■disbursements.

Brady and Daniels, JJ., concurred.

Order amending judgment reversed, and the application for such relief denied, with ten dollars costs and disbursements.


author: .Van Brunt, P. J.:

text:
    In the Matter of the Arbitration Between FILIPPO Di CARLO and WILLIAMSBURGH CITY FIRE INSURANCE COMPANY OF NEW YORK and Others.

      Jurisdiction, when acquired by motion — when an action must be brought.

    A court acquires jurisdiction by motion only where it is expressly provided by-statute that it may do so, otherwise the jurisdiction must be acquired by the bringing of an action.
    An injustice in an award upon an arbitration, entered into under the provisions of a policy of insurance, and not made in conformity with the provisions of the Code of Civil Procedure, must be remedied by action, and not by motion.
    Appeal by Filippo Di Carlo from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 16th day of October, 1890, denying the motion of Filippo Di Carlo to vacate an award of appraisers, under an arbitration made .pursuant to the provisions of policies of insurance issued by certain insurance companies, under which a loss was claimed to have resulted from a ffre in the insured premises.

      R. W. Todd, for the appellant;

      O. E. Brigfvt, for the respondents.
   .Van Brunt, P. J.:

"We do not see liow the court can acquire jurisdiction to set aside this award upon motion. It is not the result of an arbitration under the Code, and, therefore, the provisions of the Code were not applicable to it. And it is only where it is expressly provided by statute that the court may acquire jurisdiction' by motion that it can acquire jurisdiction otherwise than by action.

This arbitration not being a statutory arbitration which could possibly result in a judgment as already suggested, the provisions of the Code as to motions in respect to the award, do not apply. And if any injustice has been suffered upon the part of the moving party, such injustice must be redressed by action. This objection, however, it does not appear was taken in the court below, and, therefore, we think that the order appealed from should be reversed, without costs, and the motion dismissed.

Brady and Daniels, JJ., concurred. •

Order reversed, without costs, and the motion dismissed.