text:
    William A. Coursen v. Frederick V. Hamlin and others.
    (Before Oakley, Ch. J., Emmet and Hoffman, J.J.)
    November 22;
    December 10, 1853.
    An order for the payment of money under subdivision 8, § 244 of the Code, will not be made, unless the answer contains a plain, explicit, and full admission that a definite sum is due to the plaintiff. It will not be made when, in order to ascertain whether a specific sum is due, a critical examination of the pleadings, or of books and accounts, is necessary.
    The provision in the Code is regarded by the court as a recognition and declaration of the rule which formerly prevailed in the Court of Chancery, and as going no further.
    The rule in that court was settled, that an order for the payment of money into court, or to a party before a final decree, could not be made unless upon an explicit and full admission by the defendant in his answer, or upon his examination before a master, that a specific sum was due.
    A counter claim cannot be set up in an answer, which cannot be decided without bringing other parties before the court, who have no interest in the determination of the causes of action set forth in the complaint.
    A partner is not allowed to claim for his services in settling the affairs of the firm, unless a special agreement is averred and proved.
    Order at special term, so far as it directed a payment to plaintiff, reversed; in all other respects affirmed.
    TW complaint was filed by the plaintiff, as the special partner in a limited partnership, against the defendants as the general partners, who conducted the business of the firm under the name and style of Hamlin, Sloan & Squires, and the relief demanded was, that the defendants should be enjoined from interfering with or disposing of the goods, property, or credits, of the partnership; from collecting any moneys due thereto; that a receiver might be appointed to take charge of all the assets of the firm, and make distribution thereof; and that the defendants Hamlin and Sloan, under the direction of the court, should render a full account of the partnership, and of the goods, credits, and effects belonging thereto, and that in such accounting the plaintiff might be allowed interest on his share of the capital remaining unpaid from the time of its dissolution, and might be paid the amount due to him from the firm, with interest thereon, and might have such further or other relief as might be just.
    The complaint charged that Hamlin and Sloan were each of them largely indebted to the firm for moneys drawn out by them beyond the shares to which they were respectively entitled, but admitted that nothing was due from Squires. Hamlin & Sloan answered together, Squires separately. Those parts of the pleadings upon which the questions decided arose, will be found fully stated m the opinion of the court.
    The cause -was now heard upon the pleadings and upon, the following case and bill of exceptions.
    The issues of fact joined in this action came on to be tried at a special term of this court, held by the Hon. "Win. W. Campbell, one of the justices thereof, without a jury, on the thirtieth day of June, in the year 1853.
    The counsel for the plaintiff opened the cause upon the pleadings and claimed that there was an amount admitted by the answer of the defendants for distribution, and moved that the court order said amount to be paid by the defendants to the plaintiff, and a reference to take and state the accounts of each of the partners in the partnership mentioned in the complaint, and to ascertain, determine and settle their rights and interests respectively in the assets which remain uncollected and-belong to the said late partners.
    The counsel for the defendants, Hamlin and Squires, thereupon objected to the granting of said motion, and insisted that this action was founded upon the agreement for a copartnership entered into between the parties and the relation which they had sustained towards each other under that agreement during the time specified in it, and that the claim of the plaintiff therein was entire to recover the "whole amount, which upon the taking of the accounts between the parties, should be found due to him from the defendants, or any or either of them, and that but one judgment could be given in the action for the payment of money by the defendants to the plaintiff. That it was not competent nor lawful for the court in this case, to render judgment for the plaintiff for the amount collected by the defendants and admitted in the answer (if any) and then to order a reference in the case to ascertain what other, or further sums might be due from the defendants to the plaintiff, and thereupon give a further judgment for the amount, (if any) which should be found to be due. That the whole cause should be tried by the court or referred.
    His honor the judge overruled said several objections, and decided thereupon, that it was competent to the court to grant the motion for an order for the payment to the plaintiff, of the amount admitted by defendants’ answer, and for a reference to take and state the partnership accounts, to which decision of the said judge, the counsel for the defendants Hamlin and Squires, then and there excepted.
    The court then looked into the complaint and answer of the said defendants, and thereupon decided that the sum of six thousand dollars was admitted by the defendants, upon said pleadings, to be in their hands ready for distribution, and which should be adjudged to be paid by the defendants to the plaintiff, and directed an order accordingly for its payment. To which decision the -counsel for the defendants, Hamlin and Squires, then and there excepted.
    The counsel for the defendant, Frederick Y. Hamlin, then further objected to a reference, to take and state the accounts of the partnership referred to, and set up in the complaint, on the ground that the answer of said defendant Hamlin, sets up a set off or counter claim growing out of previous copartnerships. The counsel for the plaintiff insisted that said claims were not, nor was either of them, a subject of set off, under statute of set off, nor of an equitable set off, nor a counter claim, for which a separate judgment could be rendered for the defendant, Frederick Y. Hamlin, in this action, against the plaintiff, under the provisions of the code of procedure. His honor the judge sustained the objections, and directed an order of reference to take and state the partnership accounts, and to his decision thereon, the counsel for the defendant, Frederick Y. Hamlin, then and there excepted.
    The counsel for the defendant, Frederick Y. Hamlin, then moved the court to make it a part of the order of reference directed in this action, that the referee to be appointed should take proof of said claims set up in defendants’ answer, which was objected to by the counsel for the plaintiff, and the objection was sustained by the judge, and to the decision thereupon, the counsel for the defendant, Frederick Y. Hamlin, then and there excepted.
    And, in as much as the said several matters so occurring upon the trial of this action do not appear by the record thereof, the said judge, upon the prayer of the defendants, Hamlin and Squires, hath affixed his seal to this bill of exceptions, the thirtieth day of June, in the year 1853.

      J. T. Brady, for the defendants,
    insisted that the judgment at special term ought to be reversed, upon the following grounds.
    I. The court erred in deciding that two separate judgments might be rendered in this action.
    II. The court also erred, in ordering judgment for a certain sum, on the ground that it was admitted in the answer to be due. (a) Because no such imperfect or partial judgment could legally be rendered. (b) Because the admission was qualified and not absolute, and made in relation to certain counterclaims.
    III. The court should have allowed the counter-claims to be considered in the reference, as this is a case in which a joint and not several judgments might, and, on the pleadings, must be rendered. The defendant, Sloan, is not liable for the so-called admitted balance.
    IV. The court had no right to give judgment, founded exclusively on the supposed admissions in the answer. The whole answer must be taken together, and, if so taken, no judgment upon it against either of the defendants could properly be rendered.

      I. Dayton, for plaintiff, contra.

    I. The court had the power to make the order for the payment to the plaintiff of the amount admitted by the answer of the defendant to be due him (Code, § 244; Clarkson v. De Peyster, 1 Hop. Ch. R. 274; Roberts, administrator, v. Law, 4 Sandford’s Sup. Court Rep. 642; Tracy v. Humphrey, 3 Code Rep. 190).
    H. Whether the sum of six thousand dollars is admitted by the answer of the defendants to be due the plaintiff, is not a question arising on these exceptions. Whether a certain amount is, or is not admitted by the pleadings to be due, is a question in respect to which, on objection, a judge cannot make a mistake. An objection was not made, nor does any appear on the exceptions, that the amount stated to be admitted is not admitted by the answer. The court will not look into the pleadings to examine the truth of matters taken for truth at special term (Munson v. Hegeman, 5 Howard’s Prac. Rep. 223; 10 Barber’s Sup. Ct. Rep. 112).
    HI. In point of fact, if the court will go into the inquiry, the sum of six thousand dollars and upwards is admitted, by the answer of the defendants, to be in their hands, and due to the plaintiff.
    IV. The claim set up in the answer of the defendants, by way of counter-claim on the part and behalf of the defendant Frederick V. Hamlin, was properly disallowed by the court below (Code, § 150, Statute of Set-offs, 2 R. S. 354, 4 ed. 604; Murray v. Toland, 3 John’s Ch. Rep. 573; Dale v. Cook, 4 John’s Ch. Rep. 11; Barber v. Spencer, 11 Paige, 517).
    V. The judgment of the special term ought to be affirmed.
   By the Court. Hoffman, J.

This was an appeal from an order made at the special term on the 30th of June, 1853, the case being heard on the pleadings alone.

The plaintiff sets forth that he was a special partner in the firm of Hamlin, Sloan & Squires, composed of the defendants and himself, under written articles of partnership, dated the 1st of January, 1849, and stated in the complaint. He sets out the grounds of his action in detail, and the relief sought is an injunction, receiver, an account of the partnership transactions, and payment of the amount which may be found due.

The averments in the answer need not be stated until the points raised in the cause are discussed.

The order at the special term was made upon the pleadings alone, and directed that the defendants pay and deliver to the plaintiff the sum of $6000 which appears by the pleadings to be a just claim on the part of the said plaintiff from the said defendants, and applicable to the payment of the plaintiff’s claim herein, and that the said sum be chai'ged against the plaintiff on a final settlement .of the accounts of the firm of Hamlin, Sloan & Squires. This is the first branch of the order which is appealed from, the other clause objected to will be afterwards noticed.

The appeal is taken on behalf of the defendants, Hamlin and Squires. These defendants alone appeared by counsel on the hearing below. The order probably was meant to extend to them only.

As to the defendant S.quires, the complaint itself states that he had received only the share which he was entitled to under the articles of partnership, and that all the assets are in the hands of the defendant Hamlin. It is not perceived how the order can be sustained as against him.

But apart from this, and as to the defendant Hamlin, we consider the order to be incorrect. We regard the fifth subdivision of the 244th section of the Code which has been referred to, as recognising and declaring the rule which prevailed in the court of chancery, and as going no further. It was very clearly settled in that tribunal, that an application to pay money into court, or to a party before final decree, or, at least, before a report of a master, must be founded upon a full and explicit admission in the answer, or examination of the defendant, of a sum being due. The court will not examine the case to decide whether it is so. The order would not be granted if any examination of books „ or accounts was necessary to attain the result. It was refused in one case, though made upon the affidavit of an accountant that from, an examination of schedules and books of the defendant a certain sum was due. (Mills v. Hanson, 8 Vesey, 68; Roe v. Gudgeon, Cooper’s Cases 304. See also the important case of Gilbert v. Colt, before Chancellor Sandford, stated from MSS. 1st Hoffman’s Ch. Pr. 323 n.)

Is there any such plain admission in the answer of this sum of $6,000, being due by the defendants or either of them to the plaintiff 2

The plaintiff alleges that there is due to him on account of his share in the said partnership the sum of $14,600 as nearly as he can estimate the same. That he has endeavored to ascertain the partnership property in the hands of Hamlin. That permission to the book-keeper to make out the settlement has been refused. But that from such information as he is able to obtain,” he alleges “ that there is now in the hands of said Frederick Y. Hamlin, belonging to the said firm, subject to distribution and due to the said plaintiff in great part, the sum of $6,000, and that said Hamlin refuses to make distribution of the property of the partnership.”

In reply to this allegation the defendants referring to it explicitly aver, that “ the debts have been paid; that there are no liabilities of the firm ‘(with some specified exceptions); that the amount of the assets, exclusive of certain discounted notes, is about $33,500, and including such notes, about $40,000; and that the extent of the right or interest of the said Coursen therein is believed to be as hereinafter stated.”

They then proceed to set out various counter demands, which they insist should be allowed against the plaintiff’s share of these assets. There is clearly nothing like an admission of liability in a definite sum to be found here. The court must be compelled to ascertain by a minute examination of the case as presented, whether a sum may be considered as due. The authorities cited show that this duty is not imposed upon it.

But if it were imposed, the result in this case would not be certain; that is, it would not clearly appear that Hamlin owes the plaintiff on this account $6,000 or about that sum; or ever had on hand moneys from the assets to pay him.

From an examination of the statements in the pleadings the following are probably the results.

That the debt to the plaintiff is about the sum claimed of $14,200. That the debt of the defendant Hamlin to the firm at the date of the answer was not over $1,600. That the outstanding assets were about $33,000. That these enter into the computation of profits, and of course make part of the debt due to plaintiff. It is on the assumption that the assets can be realized, that he becomes entitled to the debt which he claims. But upon clear principles in settling partnership accounts, the assets are first to be applied inpayment of demands of creditors or partners made quasi creditors, and the personal responsibility of each for his balance due is only to be ultimately resorted to.

There is nothing on these pleadings to show that Hamlin had, at the date of his answer, any amount in hand from this sum of $33,000.

It is by no means to be concluded that the statements thus made are accurate or approach to accuracy. It is only considered that these are the most probable results from the pleadings as they now stand.

The next objection of the defendant is, to that part of the order which directs that the alleged claims set up in the answer, by way of counter-claim on the part of the defendant Hamlin, be disallowed.

As to the counter-claim which is stated to have arisen by reason of a demand against the plaintiff, arising out of the concerns of the firm of "Fitch, Sloan & Hamlin, we are of opinion that the matter cannot be entered upon in this suit; that the members of that firm should be parties to any proceedings to adjust it.

The other alleged counter-claims are for a compensation for services rendered in settling the concerns of the firm of Fitch, Hamlin & Sloan, and Hamlin, Sloan & Teft. Besides other objections, it is sufficient to say that there is no statement of an express agreement to pay for such services; and that a partner cannot, without such agreement, be allowed a compensation.

The order is in these particulars correct. The order of the special term must be vacated as to the direction to pay over the $6,000, and be, in all other respects, affirmed.


source: Caselaw Access Project

author: By the Court. Emmet, J.

license: Public Domain

text:
    Chegaray v. Mayor and Corporation of New York.
    (Before Oakley, Ch. J., Emmet and Hoffman, J.J.)
    November 21;
    December 17, 1853.
    Under the Revised Statute relative to the assessment and collection of taxes every building erected for the use of a seminary of learning, whether the seminary be incorporated or not, and whether public or private, is exempt from taxation.
    The building in question was originally planned as three distinct houses; but soon after the foundations were laid, it was agreed between the owner and the plaintiff, that it should be altered and finished so as to adapt it exclusively as one building, to the use of a boarding-school for young ladies; and it was altered and finished accordingly.

      Held, that by a reasonable construction of the statute, it was to be considered strictly as a building erected for the use of a seminary of learning.

      Held, that it did not lose its character as such by the fact that the scholars were boarded and lodged, and part of the building used for the dwelling of teachers.

      Held, that the defendants having admitted, by their answer, that they had received taxes unlawfully collected from the plaintiff, were precluded setting up as a defence, that the plaintiff ought to have sought her remedy by a certiorari or mandamus, or in an action against other persons.
    This, substantially, is the same case as Chegaray v. Jenkins (reported, 3 Sand. S. C. Rep. 409). It involves the same questions, and seeks to recover the same amount. The judgment of this court in Chegaray v. Jenkins, was reversed by the Court of Appeals, on the ground that, whether the taxes upon the building occupied by the plaintiff were lawfully assessed or not, the defendant Jenkins, who, as a constable, had collected them, was protected by the warrant from the receiver of taxes, under which he had acted (1 Selden, p.-376). In consequence of this reversal, this action was brought against the corporation of the city, claiming to recover, as unlawfully assessed, the amount of the taxes which Jenkins had collected, and which the complaint alleged that he had paid over to the defendants.
    The defence set up in the answer was, that the building which the plaintiff claimed to be exempt from taxation, as a seminary of learning, consisted in effect of three dwelling-houses, which were principally used, and were liable to be taxed, as such. The answer did not deny that the defendants had received the several sums collected by Jenkins, as alleged in the complaint.
    The cause was tried before Hr. Justice Paine and a jury, on the 20th December, 1852, and, upon the trial, the counsel for the plaintiff read in evidence the following stipulation.
    “It is hereby stipulated, that on the trial of this cause, the following facts are to be admitted, as duly proven, viz.:
    “ That the building occupied by the plaintiff, as charged in the complaint, that is to say, Eos. 14, 16 and 18, Union place? was originally intended for a school, to be occupied as such by the plaintiff, and was continued and completed accordingly. That the building was originally planned for three houses, but was altered and finished as one, for the purpose of being used as a school. That, in carrying up the walls, doors were either cut, or left open, in the brick partition walls of the buildings, for the purpose of connecting the three, and the building was finished as one house. The corner house, or what was intended to be such, was finished without door for entrance hall, or staircase, the whole of the lower floor being left flush, and finished as one large exhibition or music-room, openings being left in the brick partitions, so that the staircase of the next building could be used for access to the second story. In the basement, and also on the third floor, the building was finished without partitions, so as to be used as refectory and dormitory. The whole building was originally planned as three distinct houses, but shortly after the foundation was laid, an arrangement was made between Hr. Euggles (the owner) and Madame Chegaray, that the building should be altered and finished for the purpose, and exclusively to the uses, of a school, and could not be used for the purpose of a public or private dwelling-house or houses without entire alterations, and at an exceedingly heavy expense.
    “ It is further stipulated, to admit as a fact, subject to objection as to the competency of such testimony, that Columbia College and the Eew York University Buildings have been, and are used for the purpose of dwelling-houses for professors, and boarding for students, and that portions of those buildings have been at times let out for purposes unconnected with education.
    “ It is further stipulated to admit, for the purpose of this trial, that Heloise D. Chegaray, the plaintiff in this suit, was, at the time of assessment and levy hereinafter mentioned, and has been for some years previous thereto, the lessee and occupant of certain premises on Union. Place, in the eighteenth ward of the city of New York, known as Nos. 14, 16 and 18 Union place.
    “ That the assessors legally elected and holding office in said ward, did assess house and lot No. 14, in the sum of fifty-five dollars twenty-two cents ; house and lot No. 16, in the sum of one hundred and twenty-five dollars fifty-two cents ; house and lot No. 18, in the sum of one hundred and forty dollars fifty-seven cents ; said houses and lots being the said premises leased and occupied by the said Heloise D. Chegaray.

      “ Tire said assessment was confirmed, according to law, by the Board of Supervisors of the city and county of New York, on the 12th day of October, A.D. 1846, and a warrant issued by them, in due form of law, to the receiver of taxes in said city, to' collect from Madame Chegaray, who is the plaintiff in this action, the sums mentioned opposite to her name, according to the provisions of the statute in such case made and provided, such sums being the sums above mentioned, as assessed upon the premises leased and occupied by her.

      “ That such assessment of taxes was not paid previous to the twentieth day of January, A.D. 1848, and has not since been paid.

      “ That a warrant was issued by the receiver of taxes of the city of Eew York, in due form of law, to the defendant, Joseph Jenkins, a constable of said city, commanding him to levy the amount of tax set opposite the name of the said plaintiff, by distress and sale of the goods and chattels of the plaintiff, and that the said amounts are the amounts above mentioned as assessed.
    “ That under and by virtue of such warrant, the defendant levied upon the property belonging to the said plaintiff, for the taking and converting of which this action is brought.
    “ That all notices required by law to be given or published in the premises, were duly given or published.

      “ And it is further stipulated, that it shall be admitted on trial, that the premises above mentioned, at the time of such assessment and levy, above mentioned, were occupied by Madame Ohegaray, as a boarding and day school for young ladies ; and one of the rooms of said premises was used as a dormitory and office.
    “ It is further stipulated, that either party may read from the printed case, in the suit of Chegaray v. Jenkins, in this court, the facts contained therein. And, if required, the plaintiff will produce on the trial, the maps referred to in said case.
    “Henbt E. Davies,
    “ Att’y for Defts.
    “ Tugkee & Crapo,
    “ For Plaintiff.”
    The plaintiff then rested.
    The defendants’ counsel then read, subject to objection as to its competency, a printed circular, showing the terms and character of the plaintiff’s school, as a boarding and day school for young ladies.
    And it was admitted by the counsel for the plaintiff, that the premises in question are, and were, at the time the same were assessed for the tax sought to be collected by the defendant, occupied in accordance with the terms expressed in the circular, and for the purposes therein mentioned.
    It was further admitted by the counsel for plaintiff and defendant, that the property specified in the plaintiff’s complaint, was levied on by a constable of the city of New York, and the money collected therefrom in manner and form as in said complaint is stated.
    The jury thereupon, under the charge of the judge, found a verdict for the plaintiff for $2,400, subject to adjustment as to amount, and subject to the opinion of the court, upon a case to be made; either party to have liberty to turn the same into a bill of exceptions.

      T. U. Tucker

    moved for judgment for the plaintiff upon the verdict, and argued as follows :

      I. The premises occupied by the plaintiff, at the time of the assessment, and of the levy, was a “ building erected for the use of a seminary of learning,” and, as such, was exempt from taxation (1 Rev. Stat, sec. 4, title 1, chap. 12, part 1, p. 388 ; Opinion of Court of Appeals, in Chegaray v. Jenkins, 1 Selden, . 376 ; 3 Sand. 409).
    II. The distress warrant and levy referred to in the complaint, were, as to the plaintiff, illegal. Her right to the property levied on, was not divested thereby. 1. The premises in question being exempt by law from taxation, neither the assessors nor supervisors had any jurisdiction in relation thereto, their powers and duties being specifically confined to taxable property (Suydam & Wyckoff v. Keys, 13 Peters, 444; 1 Rev. Stat., part 1, chap. 12, title 2, art. 2.). 2. The Revised Statutes, in relation to the collection and assessment of taxes, contain no provisions which can apply to property exempt from taxation. They direct the assessors to ascertain the property which is taxable, and make a roll of such only. They authorize the assessors to reduce the amount of a tax, or correct a mistake in one, but do not authorize the remission of a tax, nor provide any means of compelling them to remit a tax. 3. The premises of the plaintiff being absolutely exempt by law, her legal rights could not be affected by any proceedings of the assessors or supervisors, in relation to a subject as to whiph the statutes gave them no authority (1 Rev. Stat., part 1, chap. 12, title 2, art. 2, sec. 8, 15, 17, 22, 23; Elliott v. Piersoll, 1 Peters, 328).
    III. The officer who made the levy on the plaintiff’s property, in so doing, acted as the agent or servant of the defendants, duly authorized. They are liable for his acts, and the consequences thereof (Clark v. Corporation of Washington, 12 Wheat. 40; Chestnut Hill Turnpike Co. v. Rutter, 4 Leig. & R. 6). Whenever a corporation can order an act to be done, they are liable for the consequences (3 Starkie, 50; The Mayor, &c. v. Bailey, 3 Hill, 531, 538). All corporations act through agents, and when the act of the agent is illegal, the corporation is directly responsible (Gortloe v. City of Cincinnati, 4 Ham. 500).
    IV. The defendants actually received and retained the plaintiff’s property, levied on by a city constable, for a tax from which her premises were exempt. The plaintiff has a right to recover the property and money so received by the defendants, and as money had and received by them for the plaintiff’s use. Assumpsit will lie against a corporation for damages, assessed ,by a j ury, for land of the plaintiff taken by the corporation (Stafford v. Corporation of Albany, 4 John. Rep. 1; Angell & Ames on Corporations, sec. 379, 380, 385; Smith, assignee, v. Birmingham Gas Co., 1 A. & E. 520; Yarborough v. Bank of England, 16 East. 6).
    V. The Revised Statutes having provided no mode in which the assessors or supervisors might be compelled to erase the plaintiff’s building from the assessment roll, she would be wholly unprotected against a distress for an illegal tax, unless her right of action against the defendants can be maintained.

      R. J. Dillon for the defendant,
    insisted that the verdict should be set aside and a verdict and judgment thereon be ordered for the defendants.
    I. The premises occupied by the piamtiff were not exempt from taxation. 1. It is not a public establishment. Every building mentioned in the third class of exemptions, is a public building, except a “ seminary of learning” and “ school house and upon the principle in the construction of statutes, noscitur a sociis, they must be public, otherwise they are not exempt. (Chegaray v. Jenkins, 3 Sandf. 409.) 2. No “ seminary of learning” is exempt, unless the building was erected for such. The buildings in question were erected for private investment, and were built in the usual manner of dwelling-houses, and to be used as such, with alterations, after the seven years’ lease of the plaintiff should expire. 3. If the exemption embraces a private “ seminary of learning,” then it follows, that if it were originally erected for such, it would be for ever thereafter exempted from taxation, although it might at any time afterwards cease to be used as such. Such being the necessary consequence of such a construction, shows that such could not have been the intention of the legislature. 4. It is not a “ school house,” in the usual and ordinary signification of the word. 5. The opinion of Ruggles, C. J., in Chegaray v. Jenkins, 1 Selden, 376, is not the opinion of the court, and must be considered obiter dicta.

    II. The assessors, tax commissioner’s, and board of supervisors, had jurisdiction of the property, and acted judicially in determining that it was not exempt. Their decision is conclusive until it is reversed. It cannot be reviewed collaterally. (Van Rensselaer v. Whitbeck, 7 Barbour, 138; Osborne v. Danvers, 6 Pick. 98; Chegaray v. Jenkins, 1 Selden, 818.)
    III. The remedy of the plaintiff is by an application to the assessors and to the supervisors, or by certiorari, or by mandamus, or by trespass against the five supervisors who issued the warrant to Jenkins. (Chegaray v. Jenkins, 1 Selden, 382. 1 R. S. 393, sec. 22; Act of 1850, ch. 121, secs. 18, 28.)
    IV. The case shows no cause of action against the defendants. 1. The case shows no act done or authorized by the defendants in the collection of the tax. 2. The allegations that the defendants issued the warrant to Jenkins, and that Jenkins paid the money to the defendants, are conclusions of law not pretended to be an averment of the fact, and admitted by the plaintiff to be incorrect, unless the court should deem the facts stated to warrant the averments as conclusions of law. 3. There is no relation of master and servant, or of principal and agent, existing between the corporation and the persons authorized to assess and collect the taxes. Unless such relation exists, the corporation is not liable in cases like the present. They do not grant the authority to assess the taxes; such authority is granted by the annual tax law of the state. Bor do they assess the taxes; taxes are assessed by assessor’s, elected by the people, and confirmed by the board of supervisors, over whom the defendants have no control. Bor are the taxes assessed for their benefit alone; they are assessed for county and state purposes. The amount of the former is not easily ascertained ; that of the latter exceeds $200,000 a year, embracing the mill and school tax. The corporation does not receive the taxes after they are collected; they are paid to the chamberlain, as the treasurer of the county, who pays over to the comptroller of the state so much as are state taxes, and disburses the residue, partly upon the warrants of the supervisors for county purposes, and partly upon the warrants of the corporation for city purposes. The defendants have no control of the funds for their own purposes, as a corporation, but only for such purposes as shall be expressly authorized by the annual act. They can neither direct what property shall be assessed nor what shall be relieved; such power belongs to the supervisors. Nor can they direct what shall be paid into the hands of the chamberlain, and what he shall reject. The defendants do nothing in the collection of the taxes, as the agents of the state, for the purposes of local government and in aid of the finances of the state. (Act of 1813, vol. 2, p. 399, sec. 150, 151, 152, 155; Act of April 6, 1816, p. 123, sec. 1, 2; 1 R. S. 714, 4th edit. chap. 13; Act of 1850, ch. 121; Angell & Ames, sec. 30 to 36; Martin v. Mayor, 1 Hill, 545; Wilson v. Mayor, 1 Denio, 595; Bailey v. Mayor, 4 Hill, 531; 2 Denio, 434.)
    Judgment should be rendered for the defendants, with costs.
   By the Court. Emmet, J.

This action was brought to recover from the defendants an amount levied upon the property of the plaintiff under a warrant issued by the receiver of taxes, upon the ground that the premises were exempt from taxation, and that the defendants had received the amount collected.

When the subject matter of the present suit was before this court in the case of the present plaintiff against Jenkins, the decision against her was rested upon these grounds; first, that the exemption clause of the statute related to an incorporated seminary of learning, as well as to an incorporated academy; arid next, that the act of 1823, as amended by the act of 1825, was decisive against the plaintiff and that such act of 1825 was not repealed. (3 Sand. Sup. C. Rep. 409.)

The court of appeals have shown that, in the latter position, this court was mistaken, and that the act of 1825 was repealed.

Conceding the force of the reasoning of the learned judge in this court upon the construction of the act as it now stands, we cannot escape from the conclusion that the court of appeals have overruled it, and settled a different interpretation. It is true that such court decided the cause against the plaintiff upon a ground entirely distinct from this question, and that it was unnecessary to have said a word upon the point. But that point was raised; was argued by the counsel; was elaborately discussed by the court, and seems to have been positively decided, We think we are warranted in saying that it was decided by the whole court, with the exception of one judge. The construction has then the sanction of the court, whether the whole of the reasoning of the presiding judge received their approval, or not.

II. The statute provides that every building erected for the use of a college, incorporated academy, or other seminary Of learning, shall be exempt from taxation. The first and most natural meaning of this phrase is, that the building was from the beginning designed for a seminary, and that this design continued throughout the period of its construction. In the present case it appears from the stipulation (all the clauses being considered together) that the building was probably first intended for private dwellings. But when the foundation only was laid, the agreement took place between the owner and the plaintiff^ and every portion of the building subsequently erected was constructed for the use, and adapted to the purposes of a seminary.

It is a reasonable construction of the clauses of the statute in question to hold, that this building, under these circumstances, is within it, that it was erected for the use of a seminary of learning. It would be perhaps an unreasonable construction to hold that an existing building used for other purposes, and then altered, could be exempt. We shall not attempt to define where the line of discrimination is to be found.

HI. The liability of the defendants to pay the money, if the legal defences stated in their answer are invalid, is fixed by their own admissions. The allegation of the complant is positive that several sums as collected by the constable were paid and delivered to the defendants. They omit to deny this allegation in every form. We cannot be bound to trace the destination of the money beyond this, nor to discuss the complicated relations which the chamberlain of the city bears to the city, the county, and the state. That officer is the officer of the city to some extent, at least, in regard to the moneys raised by taxes. If the portions of what he received can be severed and traced, the defendants have released the plaintiff from doing so and have assumed that task themselves.

Judgment must he entered upon the verdict for the plaintiffs, The counsel of the parties, we understand, have agreed to adjust the amount,


author: By the Court. Duer, J.

text:
    Neustadt and another v. Flora Joel, impleaded with others.
    (Before Duer, Campbell, and Bosworth, J.J.)
    December 10, 1853.
    A general creditor cannot maintain an action to get aside an assignment ag fraudulent and void ag against creditors, The rule that such an action can only be brought by a judgment creditor, has not been filtered by the Code,
    Appeal from a judgment at special term sustaining demurrer to the complaint,
    The complaint stated that Alfred and Louis Joel were ' copartners and dealers in jewelry, under the name of A, Joel & Co.; that at various times previous to the 1st January, 1853, the plaintiffs (doing business under the name of Heustadt & Barnett) sold the said A- Joel & Co. merchandise to the amount of $2,1-91 t=ul, and that the credit had expired on the sales, and the amount was due and unpaid; that the said A, Joel & Co. had recently come to the United States, and established themselves in business on an extensive scale, and had contracted large debts by making purchases of the plaintiffs and others; that they, said A. Joel & Co., had recently made an assignment of their stock in trade as copartners (and whether other property, the plaintiffs had no knowledge or information to form a belief) to the defendant Flora Joel; that Flora Joel was the sister of the said Alfred and Louis, and a young woman without any means, and obtained a livelihood by the manual labor of embroidering shoes, &c.; that the assignment had been made ostensibly to secure a pretended indebtedness of Alfred and Louis of $5,000 or $6,000 to one Mrs, Levy, resident in England; that the debt was fictitious, and set up by the assignors in collusion with the assignee, and that the assignment was color* able only, and made to defraud creditors, and that the assignee was a party to the fraud; that the said Alfred, Louis, and Flora, had commenced to sell at auction the property pretended to be assigned; that the auctioneer, H. H. Leeds, had received and held a portion of the proceeds of such property as had been Bold; that great and irreparable injury would be done to the plaintiffs if the Joels should dispose of said property, and the pretended assignment should be allowed to stand and be carried Into execution, or the auctioneer be allowed to pay over the funds received by him, and unless an injunction issue. The complaint then prayed for judgment for the debt, with interest, against A. & L. Joel, and costs of the suit, an injunction against all the defendants, and that the assignment should be declared fraudulent, null .and void, and that a receiver be appointed.
    1 ' The defendant, Flora Joel, demurred to this complaint; and showed, among other causes, that the plaintiffs were creditors at large, and had no lien by judgment, or execution, or otherwise, on the property assigned; that they had not exhausted their remedies at law in execution) and did not show that they had any judgment and execution issued and returned unsatisfied, and were in no position to impeach or disturb any disposition that A- Joel & Co. might have made pf thph’ property,"

      John Graham, for plaintiffs,

      J. B. Herbert Judah, for defendant, Flora Joel,
   By the Court. Duer, J.

The plaintiff is a general creditor, Who peeks to set aside an assignment made to the defendant, Flora Joel, as fraudulent and void, as against creditors, and, it is plain, that, as against her, he is not entitled to the relief, or any part of the relief, which he demands, unless his right as a creditor to impeach the assignment is apparent upon the face of the complaint, It is needless to cite authorities to prove that before the Code no such action could be maintained by a creditor, without averring that he had obtained a judgment against the debtor making the assignment, and that upon this judgment an execution had been issued, and returned unsatisfied ; nor do we understand it to be denied that such was the settled law. The whole argument, upon the part of the plaintiff, rests upon the assertion, that the law in this respect has been altered by the Code, and that by force of the alteration every creditor has now the same right to have a fraudulent assignment set aside for his benefit, as was formerly possessed by judgment creditors alone.

This very important alteration of the law, as hitherto administered, is alleged to have been effected by § 219 of the Code 5 but upon examining the provisions of that section, it seems to us manifest, that they have no bearing whatever upon the question of the right of a general creditor to maintain' an action like the present.

The sole object of the section is to enumerate and define the cases in which a temporary injunction may be granted, but all of these are cases in which it appears by the complaint, that the. plaintiff is entitled to the relief demanded, against the defendant, to restrain whose acts or proceedings the injunction is sought. The section, doubtless, enlarges the powers of the court to grant injunctions, but does not enlarge the rights of the plaintiff, in any case, to maintain his action, but leaves the question, whether he is or is not entitled to the relief demanded by his complaint, to be determined by the existing law; the law as previously understood and established. Governed by this law, the judge at special term has decided the issue raised by this demurrer in favor of the defendant, and governed by the same law, we cannot do otherwise than affirm his decision.

It would, perhaps, be a salutary change in the law to allow a remedy to creditors in cases like the present, even before their debts have passed into judgment; but such a change, however desirable, can only be made by the exercise of legislative power, and is wholly beyond that of the judiciary. •

The judgment appealed from is affirmed, with costs.


text:
    George A. Schufeldt, Receiver, v. Charles Abernethy.
    (Before Duer, Campbell., and Bosworth, J.J.)
    December 16, 1853.
    An assignment for the benefit of creditors gave an authority to the assignee to Bell the property assigned, “upon such terms and conditions as in his judgment may appear best, and most for the interest of the parties concerned.”

      Seld, that these words, by a necessary Implication, gave a discretionary power to the assignee to sell Upon credit, and, therefore, according to the judgment of the Court of Appeals in Nicholson v. Leavitt, rendered the assignment, upon its face, fraudulent and void.
    This was a complaint filed by the plaintiff as receiver of Cornelius Lockwood, a judgment debtor, to set aside an assignment made by the debtor to the defendant.
    The assignment preferred creditors, and the only grounds upon Which it was sought to be set aside were, that it contained a provision authorizing the assignee to sell the assigned property on such terms and conditions as in his judgment might be deemed best,” and that no schedule of the property was annexed to the instrument as required by its terms.
    The cause was argued, at special term, before Mr. Justice Campbell, and the assignment held to he void as to creditors. From his judgment the defendant appealed.

      C. F. Sandford, for appellant,
    made and argued the following points.
    1. The assignment in questioU was made and accepted with the bond fide intention of distributing the property of the assignor among his creditors, and not for the purpose of hindering, delaying, or defrauding them. 1st. The answer denies any fraudulent intent, and none appears from the proofs, 2nd. There was an actual bond fide indebtedness from the assignor to the preferred creditors, prior to the assignment. 3rd. The assigned property was subject to the lien of an execution previous to the assignment, and an advance was made by the preferred creditors, in addition to their previous claim, df a suni sufficient to remove said lien. 4th, The transfer is absolute and unqualified, without reservation df benefit or control to the assignor. 5th. There was an actual and immediate delivery of the assigned prtiperty and books tif aéC'dunt, Cohstituting’ the) assignor’s whole effects. 6th. There is no resulting trust in favor of the assignor until all his debts áre paid.
    II. The omission to annex schedules to an assignment for the' benefit of creditors is not per se fraudulent; and, if it raise a presumption of fraud, the same may be repelled by the facts Uhd circumstances attending the execution of the instrument! (Cunningham v. Freeborn, 11 Wend. 241, 254; Keyes v. Brush, 2 Paige, 311; Stevens v. Bell, 6 Mass. 339; Havens v. Richardson, 4 New Hamp. 124; Pierpont v. Graham, 4 Wash. C. C. R. 232.) The facts proved, already adverted to, tend to repel & presumption of fraud. 2nd. The preparation of a complete inventory, and the delivery thereof to the assignee simultaneously with the execution and delivery of the assignment" itself, are, in effect, equivalent to annexing a-schedule, and fully obviate any objection arising from its omission, ■
    The omission of a schedule, to which reference is made as "annexed,” leaves no such uncertainty in the words of descrip-" tion, as would invalidate the instrument, considering it as a conveyance. 1st. The annexation thereof is not rendered by such reference a condition precedent to the complete execution of thd transfer. (Woodward v. Marshall, 22 Pick. 468; Keyes v. Brush, 2 Paige, 311; West v. Steward, 14 Mees. and Wel. 47.) 2ndj The general words of description used cover the whole property of the assignor, ánd although the subsequent specification of particular articles would have controlled and limited the meaning, had a schedule been actually annexed, Specifying particular articles only, and not purporting to be a complete inventory of the assignor’s effects, still the entire omission of any schedule will not be regarded as defeating the operation of thti' general words, the obvious intent of the instrument being to convey the whole of the assignor’s property, and the omission of the Schedule being, obviously, a mete misprision, cured by the proofs. (Clap v. Smith, 16 Pick. 247.)
    IV. The trusts created by the assignment aré such as have long been sanctioned Und sustained by the courts, and their legality was unquestioned, Until the recent decision of the Court tif Appeals in Nicholson v. Lemitt, reversing the judgment of this court, and approving the prior case of Barney v. Griffin (2 Com. 865), threw a dotibt Upon the construction of that clause in the instrument, Which vests in the assignee discretionary powéi* ovér the terms of sale. 1st. The general principle that preferences among creditors may be secured by a voluntary assignment for their benefit is deemed too well established to be controverted. (Murray v. Riggs, 15 John. 571; Grover v. Washburn, 11 Wend. 194.) 2nd. The trust to sell upon such terms and conditions, as, in the judgment of the assignee, should appear most for the benefit of the parties concerned, Was lawful, and its execution would involve no hindrance or delay as against creditors» (a.) The law requires a trustee to exercise his best judgment in the management of his trust, and the courts, upon application of any interested party, will restrain ahy erronéótis exercise of judgment. The trustee, exercising his judgment, is still amenable to the law, and liable for any Violation thereof. (Rogers v. De Forest, 7 Paige, 272.) (5.) The trust under consideration vests no stich authority in the assignee to sell on credit, as is Contemplated by the decisions of the Court of Appeals, above referred to. (c.) There is a marked distinction between those cases and the present one. In tire former, the authority to sell on Credit is express and abso-’ lute. In the latter, if it exist at all, it must be implied, (d.) Courts Will not imply a violation of law. On the contrary, if it be established that an authority to sell on credit is unlawful and fraudulent, it will be presumed that no authority to make SUch sale was contemplated in, or conferred by, the instrument in question, (e.) But the Very terms of the instrument preclude the implication of such an authority. ' The assignee is expressly directed to “ convert” the assignor’s effects into "money,” not into notes or debts. (/.) It is believed that the courts, and the profession generally, do not regard the decisions above referred to as establishing the doctrine claimed by the plaintiff in this casé* A contrary position has been repeatedly taken by the judges of the Supreme Court at special term. (Southworth v. Sheldon, 7 How. Pr. 414; Whitney v. Krows, 11 Barb. 198.)

      V. The advance made to the plaintiff in the execution, by the preferred creditors, for the purpose of relieving the property from the execution lien, was made in good faith, and Upon the condition that the assignment should be executed. If the assignment be set aside, the preferred creditors have an equitable claim to the extent of such advance. The ruling of the court, at special term, in authorizing the assignee to retain the amount so advanced out of the assigned property, was in accordance with law and equity,
    VI. The judgment of the court at special term, in pronouncing the assignment fraudulent and void as against creditors, was erroneous, and should be reversed. The assignment should be decreed valid, and judgment be entered for the defendant, with ’costs of the appeal,
    J. C. Dimmick, for respondent, contra.

    I. Assignments creating preferences are not encouraged, but simply tolerated by law; the parties claiming under them must be prepared to show with certainty their validity; the law will hot aid them by any presumptions in their favor, (Webb v. Dagget, 2 Barb. 9; Woodburn v. Mosher, 9 Barb. 257.)
    H. The assignment in question vests in the assignee a discretion to sell upon such terms and conditions as in his (the assignee’s) judgment may appear most for the interest of the parties concerned, thereby depriving the creditors of their prior and better right to dictate the terms upon which the property should be sold, and empowering the assignee to sell Upon credit if he sees fit, and thereby do of his own volition what he has ho right to do, except by consent of the creditors, or by order of the court. (Barney v. Griffin, 2 Com. 365; Nicholson v. Leavitt, 4 Sandf. 252, Overruled in Court of Appeals. See Judge Edmonds’ opinion.)
    HI. The assignment itself is imperfect, ánd never was so executed as to vest the property in question in the assignee ; there is a failure in describing the property assigned, arising from the want of the schedule mentioned in the assignment, thus showing that the instrument in question Was never executed or intended as a full and perfect assignment, and all property therefore belonging to the judgment debtor, of which defendant has possessed himself by virtue of this incomplete instrument, must be regarded as held by him for the benefit of the plaintiff, representing the creditors of the judgment debtor, (Anvill v. Loucks, 6 Barb. 470; Porter v. Williams, 5 H. Practice Rep. 441; Wilkes & Fontain v. Ferris, Sh'ff, &c., 5 John. Rep. 335; Moir & Norton v. Brown, 14 Barb. 39.)
    IV. If the assignment should be regarded as executed, it is clearly fraudulent; it is in effect an assignment of so much of the assignor’s property as he should thereafter elect to put on the schedule. (5 John. Rep. 335.)
   By the Court. Duer, J.

Were we at liberty to follow our own convictions, we should probably have no difficulty in holding that this assignment is valid, and consequently Would feel it our duty to declare that the judgment at special term, as erroneous, must be reversed.

But we are not at liberty to follow our own views, The Court of Appeals, in reversing the judgment of this court, in Nicholson v. Leavitt, has established the doctrine, that an assignment made by an insolvent debtor for the benefit of his creditors, is, upon its face, fraudulent and void, when, by its terms, a discretionary power is given to the assignee, by the exercise of which, the immediate conversion of the property into money, or the immediate distribution of the proceeds of its sale among the creditors, may be prevented or delayed, Such a provision, it seems, is conclusive evidence of an intent to delay the creditors, and an intent to delay creditors, it also seems, is equivalent to an intent to defraud them,

It may be that the discretion is given with a Sole view to benefit the creditors by enlarging the fund out of which their debts are’to be satisfied, but this circumstance, whether manifest or proved, is deemed immaterial. The assignment, to be Valid, must either by express words, or by its necessary legal Construction, devote all the property which it embraces, not only absolutely and unconditionally, but immediately to the payment of the creditors. It must be fiiade the duty of the assignee to sell the whole, with the least possible delay, and for cash; and where a discretion is given, the exercise of which, in a particular mode, would be inconsistent with the discharge of this duty, not only the objectionable clause, but the whole instrument is void; Such is the doctrine, which Was first an-1 bounced by Bronson, J., in Barney v. Griffin (2 Comst. 365), Which the Court of Appeals, in Nicholson v. Leavitt, has adopted and affirmed, and which we, therefore, are now bound to say, is established as law. In obedience to the law thud established, we are constrained to declare, that this assignment, although we entertain not the slightest doubt as to the actual good faith of the parties, is, upon its face, fraudulent and void.

The discretionary power given to the trüstée in the assignment, which, on the sole ground that it Contained the power, was set aside as fraudulent in Nicholson v. Leavitt, was that of selling the property assigned for “ cash or upon credit;” The authority of the trustee in the ease now before ns, is to sell the property upon such terms and conditions, as in his judgment may appear best and most for the interest of the parties com cerned.” The words are not the same, but, we apprehend, that in the meaning there is not the slightest difference. “ Terms and conditions,” can only mean terms and conditions of payment, and unless in connexion with the words that follow iti the clause which we have quoted, they convey by a necessary implication, a discretionary power to sell upon credit—they are absolutely without significance or purpose-Mhey are not merely superfluous, but senseless;

The objection is not met by saying that ás á salé Upon credit is an illegal act,'the court will not presume that the discretion given will thus be exercised; The question is not whether the discretion Will he exercised, hut whether it was meant to he given, and is given, by the words that are used; for as we understand the decision of the Court of Appeals, it is the intent of the debtor to delay his creditors, as manifested by his grant of the discretionary power, not the probability, or improbability of the future exercise of the power, that vitiates and nullifies the assignment;

It may be true that wheñ there áre several modes df exercising a discretion, one of which is prohibited by law, the others not, the court, in Order to sustain the grant, will presume that a lawful authority only was meant to he given. But the difficulty in this case is, that if yon take away the poWer to sell upon credit, no discretion remains, since there can be no exercise of a discretion as to the terms and conditions of a sale, when it is for cash, and cash alone, that the salé can be made. There is no discretion where the duty is single and imperative. We repeat then, that the question relates only to the intent of the debtor in granting a discretionary power, as evidenced by the terms of the grant, and that, in this Case, the debtor meant that the assignee should sell the property upon credit, if in his judgment that course would be most beneficial to the parties interested, and that this intent is manifest, from the terms he has used, we think it is impossible to doubt. We can perceive no reason for giving to the words of this assignment a different construction from that which Would be certainly given to the same Words in an ordinary power of attorney. Where the power given to the attorney is to sell real Or personal property, upon such terms and conditions as he may deem most for the interest Of his principal, the validity of a sale made by him in good faith, upon .credit, we apprehend has never been doubted. The sale, however, cannot be valid, unless the Words embrace and convey the authority,

¡Nor, in our judgment, is this construction of the words used in this assignment varied Of affected by the direction that follows in the clause that We have quoted, “to convert the property into money.5’ The duty of converting the property into money is expressed of implied in every assignment, since Where the creditors are to be paid in money, süch a conversion Must of necessity precede the payment. It is to this ultimate and necessary conversion that the direction in question must be construed to refer, since if construed as imposing the duty of Making the conversion by an immediate sale of the Whole property, the discretion previously given to the assignee of selling upon such “terms and conditions as in his judgment might appear best,” is taken away entirely, and the words of the entire clatise are seen at once to be repngnant and contradictory. As it is certain, however, that there was no such contradiction in the mind of the assignor, we are compelled in this, as in alt similar cases, to adopt a construction which, as removing the apparent repugnancy., will most probably be consistent with the real intention.

If there can be a distinction made between the cases, in which the power to sell upon credit is given by express words, and those in which the words, although general, can only he satisfied by holding that they embrace the power, We must leave it to be made in the Court of Appeals, since we are ourselves unable to see that there is any ground in reason upon Which the distinction can be rested.

Holding, therefore, as we do, that this case is in principle the Same as Nicholson v. Leavitt, and yielding our personal convictions, as we must, to the controlling authority of that decision, no other course is left to us than to affirm the judgment at special term.

Judgment affirmed, with coste.


author: By the Court. Bosworth, J.

text:
    Renard & others v. Hargous.
    Á justice of the Superior Court, on the 28th December, 1848, Issued Sm attádhment against the property of H. & Cd., merchants at Vera Cruz, as non-resi* dent debtors. The application for the attachment did not state that the contract, from Which the debt arose, was made within this state, or that all the applicants were residents of the state J and it appeared on the face Of the pleadings, that One of the applicants Was, in fact, a resident in France.

      Meld, that the Justices of the Superior Court, from the 1st of January, 1830, until the 1st of July, 1847, had authority, Undér the provisions of the Revised Statutes, as em officio Supreme Court Commissioners, to issue attachment against absconding or non-resident debtors.

      Meld, further, that although the office of Supreme C. Commissioner Was abolished from and after the 1st Of July, 1847, yet the power of the Justices of the Superior Court to issue sUeh attachments, Was preserved and continued to them by the 7 th section of the act providing for the election of the Justices of that Court, passed 12th May, 1847.

      Meld, therefore, that the judge who issued the attachment ih question, had jurisdiction,

      Meld, further, that the attachment, and the proceedings thereon, were flot rendered void by the fact, that one of the applicants resided in France, it appearing that the debt was due to them as partners, and that their business, as a mercantile firm was conducted in the city of New York, where the partners who managed the business then resided.
    (Before Duer, Campbell, and Bosworth, J.J.)
    December 8;
    December 31 1853.
    The application for the attachment stated, that the debt arose upon a contract, whereby the debtors contracted to sell certain merchandise delivered to them, and account for, and pay over the proeeeds to the applicants; hut the demand proved upon the trial, and for which the verdict was given, included a sum of money advanced by the applicants to the debtors in the city of New York. iSsId, that the sum so advanced ought not to have been included in the verdict, and must be deducted therefrom, as it was no part of the demand stated in the application; and therefore no part of the demand for which the defendant, by virtue of the bond given by him, -to discharge the attachment, was liable
    Gash upon exceptions, directed to be heard in the first instance at the general term.
    The action was brought upon a bond given by the defendant, to discharge an attachment against the property of L. S. Hargous & Co., merchants of Vera Cruz, as non-resident debtors.
    The complaint charged that, upon the written application of the plaintiffs, duly verified pursuant to the statute, and stating that Louis S, Hargous and Emile Voss, co-partners in business, under the firm of L. 8, Hargous & Co., were non-residents of the State, and were indebted to the plaintiffs in the sum of $3,360.92 and upwards, arising upon contract, the Honorable L, H. Sandford, one of the justices of this court, issued the attachment in question, against all the real and personal estate of the debtors within the city and county of New York ; that the sheriff, to whom the attachment was directed, in obedience thereto, attached certain property and effects of the debtors, and that the defendant, in order to discharge the attachment, on the 10th of January, 1849, executed to the plaintiffs, and delivered to Mr. Justice Sandford, for their use, a bond or obligation, in the words and figures following. The complaint then set forth the bond at large, which was in the penalty of $6,721.84, and was conditioned to he void, if the defendant should well and truly pay to the plaintiffs the amount justly due and owing to them from the non-resident debtors, at the time the plaintiffs became attaching creditors, “ on account of the debt claimed and sworn to by them in their application for the attachment,” with interest, costs, and disbursements.

      The complaint then averred, that in the month of June, 1847, they placed in the hands of 1. S. Hargous & Co,, as their factors and agents, at Yera Cruz, twenty*seven hales of merchandise, and also ten bales twisted cottons, and twenty-eight bags of cocoa j that in the month of August, in the same year, Har= gous & Co, sold the cocoa, the net proceeds of which were $560,80; that in the month of April, 1848, they sold the cotton, the net proceeds of which were $392,15 ; and that they had collected and received the proceeds of both sales. That on th§ 13th April, 1848, Hargous & Co. sold and delivered the twenty-seven bales of merchandise to one E, Stryboss, and received from him as a balance of the purchase money, and for the use of the plaintiffs, the sum of $5854.82.
    The complaint further stated, that Hargous & Co. had ship* ped and consigned to the plaintiffs at New York, a quantity of ox-hides, with the bills of lading, and averred that they, the plaintiffs, had made advances on account of this shipment, amounting to $2,830; and that the net proceeds of the sale of the hides, which they made on account of Hargous & Co., as the shippers, was $2,027.33, leaving a balance due to them of $802.67.
    The complaint then averred that, crediting Hargous & Co, with the proceeds of the sale of the ox-hides, and also with $4,253.52, the amount of remittances made by them, there remained due to the plaintiffs $3,368.92, for which sum, with interest, and the costs and disbursements incurred by them on the attachment, judgment was demanded,
    The answer admitted, by not denying the execution and delivery of the bond, and also the allegations in the complaint relative to the sale and proceeds of the cocoa and cotton, and the moneys received from Stryboss, It set up the following defences.
    1. That the attachment was not applied for, nor obtained, pursuant to the statute, but that the same, and the application therefor, were wholly unlawful,-^the contract from which the alleged indebtedness arose, not having been made within the State of New York, and the plaintiffs not having been residents of the State when the contract was made, nor when they applied for the attachment, Pierre Renard, one of the plaintiffs, being at that time, and ever since, a resident in France; that the bond of the defendant was, therefore, null and void, having been obtained by an unlawful, duress of the property and effects of Hargous & Co,
    2. That the ox*hides mentioned in the complaint had been shipped to the plaintiffs on their own account, and at their own risk, and not on account and risk of Hargous & Co. ; that they had been purchased by, or under the order of, one Rams* dell, a duly authorized agent of the plaintiffs, who had also directed them to be shipped to the plaintiffs, and that, credit* ing Hargous & Co, with the advances and payments they had made, on account of the hides, with interest, commissions, and other charges, there was no balance remaining due to th§ plaintiffs.
    The plaintiffs, in them reply, admit that Pierre R. Renard was, and is, a resident in France, but aver, that all the other partners, both when the contract was made and at the time of the application for the attachment, were residents of the State, They deny that Ramsdell had any authority from them to purchase, or direct the purchase of hides on their account, or that Hargous & Co. had any right to believe that he possessed the authority; and aver, that the shipment made to them by Hargous & Co. was wholly unauthorized, and had never been ratified by them.
    Hpon these pleadings the cause was heard before Mr. Justice Duer, and a jury, in May, 1851.
    The plaintiffs, upon the trial, gave in evidence the applica* tion for the attachment, which wag made and sworn to by Mr, A. Kettletas, one of the plaintiffs. It stated that the indebted* ness of Hargous & Company arose upon a contract, " whereby they were to sell certain merchandise delivered to them, and account for and pay over the proceeds to the applicants.” The affidavit of two disinterested witnesses annexed to the applica* tion, was also read, which stated that Hargous and Voss, each of them, was a non-resident of the State of New York, and a resident of Vera Cruz, in Mexico, and that the plaintiffs (the applicants) carried on business in the city of New York, and that one or more of them wag a resident of the State.
    . The counsel for the defendants objected to the application and the proceedings thereon being read in evidence, upon the grounds stated in the answer. The objection was overruled by the court, and the counsel excepted.
    The counsel for the plaintiffs then proved the sale by Hargous & Co. of the cocoa and cotton mentioned in the complaint, and the delivery to them of the twenty-nine bales of merchandise, and rested the cause.
    The counsel for the defendants then moved, that the complaint should be dismissed, upon the grounds stated in the answer, and upon the additional ground that Hr. Justice Sand-fore had no jurisdiction to issue the attachment. The motion was denied, and the counsel excepted.
    The controversy relative to the existence of the debt claimed to be due from Hargous & Co., it has appeared from the statement that has been given of the pleadings, turned solely upon the question, whether the plaintiffs were bound to accept the shipment of hides as properly made on their own account, or were justified in treating it as unauthorized, and casting the loss that resulted upon Hargous & Co. A mass of evidence, consisting of the depositions of witnesses, and of a voluminous correspondence bearing upon this question, was given upon the trial; but, as the questions of law arising upon it were not deemed by the court at general term, of much interest or importance, and could not be understood without setting forth the evidence in detail, it has been omitted. It is sufficient to say that, when the evidence was closed, the judge was of opinion, that there were no questions of fact necessary to be submitted, and charged the jury as follows.
    First,-—-That Eamsdell had no authority to make or order on behalf of the plaintiffs, any of the purchases or shipments of hides which had been made, or to draw any of the drafts which he had drawn tipon the plaintiffs; and, secondly, that there were no facts or circumstances in evidence, from which the said jury could legally infer the existence of any such authority, or that the plaintiffs had in any way, or to any extent, ratified or adopted the acts of Eamsdell, in respect to the purchase or shipment of said hides, or the drawing of said drafts; and, thirdly, that upon the whole evidence, the jury was bound bj the law of the land to give a verdict for the plaintiffs, for the whole balance claimed in the complaint as due to them, with interest thereon ; to each of which opinions, decisions, and charges on the law, the defendant, by his counsel, did there and then except, and the defendant did then and there insist upon the following objections, to wit:
    1. That the sum of eight hundred and twenty-two dollars and sixty-seven cents, claimed by the plaintiffs in their complaint, as due to them by reason of the excess of then- charges and advances, over and above the proceeds of the ox-hides, in the complaint mentioned, was not recoverable in this action against the defendant, because, if in fact due, it was not due or owing on account of the debt claimed, and sworn to by the said plaintiffs in their application for the said attachment—such debt so claimed and sworn to, being a contract, whereby L. S. Hargous & Co. were to sell certain merchandise delivered to them, and account for and pay over the proceeds to the said plaintiffs.
    2. That the said Ramsdell was at least authorized to invest the proceeds of the cotton and cocoa, amounting to nine hundred and sixty-one dollars and ninety-five cents, in the ox-hides, and, consequently, defendant was entitled to a credit or deduction to that extent, from the debt claimed to be due to the plaintiffs.
    The judge overruled the objections, and the counsel excepted.
    The jury then found a verdict for the plaintiffs for $4,099.50, and the judge directed that the exceptions that had been taken should be heard, in the first instance, at the general term, and judgment upon the verdict in the mean time be suspended.
    The exceptions were now fully argued by
    T. J. Glover and Charles O’Conor, for the defendants,
    and G. F. Betts, for the plaintiff.
   By the Court. Bosworth, J.

The defendant insists that the proceedings under the attachment are void on two grounds. 1. On the ground that Justice Sandford was not authorized by law to issue an attachment, at the time the one in question was issued. 2. On the ground that it did not appear by the papers on which it was issued, that all the applicants resided in the State of New York; and that it is confessed by the pleadings that, in point of fact, one of them never did reside in this State.

The statute establishing this court was passed on the 31st of March, 1828. ( 3 R. S., 2d ed. 261.)

The 23d section provides, among other things, that, “ the said justices, and each of them, shall moreover be, and they are hereby authorized to perform all the duties which the justices of the Supreme Court, out of term, are authorized to do and perform, by any statute of this State : ” P. 264.

The defendant’s counsel insists that this section speaks as of the time the act of 1828 took effect, and that if a statute should subsequently be passed, authorizing the justices of the Supreme Court to do acts, out of term, which they had no previous authority to perform, the justices of this court would not be authorized, by any fair construction of this section, to perform such acts.

Even if this be the true construction of the section, it would follow, that any justice of this court, by force of § 23 of the act of 1828, may do any act which a justice of the Supreme Court could perform, out of term, when that act took effect, unless the authority conferred by it has been subsequently restricted or abrogated.

When the act of 1828 took' effect, a justice of the Supreme Court was authorized to issue attachments against non-resident debtors. (1 R. L. of 1813, p. 157, § 1.)

Power and authority to grant attachments, in such cases, was therefore conferred on a justice of this court at the time of its creation.

The existing statute, in relation to attachments in such cases, was passed on the 4th of December, 1827, and took effect on the 1st of January, 1830. It is a re-enactment of the pre-existing law on the same subject, with some modifications and additions. (2 R. S., p. 3.)

By the revised act, the justices of the Supreme Court and the chancellor, were relieved from the duty of entertaining applications for such attachments. (2 R. S., p. 35, § 1; 3 R. S., 2d ed., p. 621.)

Thé act of 1801, found in 1 R. L., p. 157, was repealed from and after the 31st of December, 1829, as were all acts amending the same, or relating to the subject matter thereof. (3 R. S., p. 151.)

A justice of the Supreme Court, from and after the 1st of January, 1830, until the 1st of July, 1847, could not issue such an attachment. (Laws of 1847, vol. 1, p. 323, § 16, and p. 343, §76.)

The section of the revised statutes designating the officers who may grant such attachments, does not include within the number “ a justice of the Superior Court,” by that title or description. “ Supreme Court Commissioners ” are among the designated officers. A justice of the Supreme Court is not of the number. On and after the 1st of January, 1830, there was not any statute of this State existing which authorized any justice of that court to perform such an act. Before that day, all preexisting statutes, relating to the issuing of attachments in such cases, had ceased to exist. The act of 1801 (1 R. L., p. 157) being repealed, a justice of this court could not issue an attachment under it, and the R. S. having taken effect on the 1st of January, 1830, and containing in itself all the statutory law, then relating to the subject matter thereof (3 R. S., p. 151), a justice of this court, as such, could not issue an attachment under the revised statutes, for the reason that no such officer is named in § 1, p. 35 of. 2 R. S.

By another section of the revised statutes, the justices of this' court were declared to be, by virtue of their office, “ Supreme Court Commissioners,” and were required to perform all the duties herein conferred on such commissioners;” subject to all the provisions of the title, in which that section is found, except that they were prohibited from making any order in any cause or matter pending in the Supreme Court. (2 R. S., p. 281, § 33.)

The grant of power made by this section is in the precise phraseology of that, making every recorder of a city, and every judge of a county court of the degree of counsellor in the Supreme Court, by virtue of their respective offices, Supreme Court commissioners; except that in the latter, the concluding clause omits the words, “ on such commissioners.” (Id. § 32.)

There is nothing in that title conferring authority on a “ Supreme Court Commissioner,” to issue such an attachment. It is not by force of any grant of power found in that title, that a Supreme Court commissioner could claim any such power. If that officer had not been included among those enumerated in 2 R. S., p. 35, he would have had no authority to issue such an attachment. (2 R. S., p. 280, § 19.)

But recorders of cities, and judges of county courts, though made, by virtue of their offices, by § 32 of 2d R. S. 281, Supreme Court commissioners, are specially named in the act which enumerates the officers, who may issue such attachments.

It is somewhat singular that the latter section should, in addition to specifically designating Supreme Court commissioners, name every officer who, by § 32, was then ex officio a Supreme Court commissioner, except a justice of the Superior Court of the city of New York.

It may be urged, that as recorders of cities, and as judges of a county court, of the degree of counsellor at law, were expressly authorized, as such, to grant attachments, they were so authorized, not as Supreme Court commissioners, but as recorders and county judges. This would indicate that the words, Supreme Court commissioners,” as used in that section, were meant to designate only that class of persons who were nominated and appointed as such by the Governor, with the consent of the Senate. (1 R. S., 96 & 107, § 15.)

I think it quite evident, that as all laws authorizing the issuing of attachments against non-resident debtors, in force when this court was created, ceased with the 31st of December, 1829, to exist, and with them every statute authorizing a justice of the Supreme Court to grant it; the only authority of a justice of this court to entertain an application, after the 31st of December, 1829, was derived from the act, making them ex officio Supreme Court commissioners, and the section allowing Supreme Court commissioners to grant such attachments. This construction makes it necessary to assume, in order to affirm the existence of the power, that the words Supreme Court commissioners, as used in that section, include as well officers who were ex officio such, as those appointed such by the Governor, and which construction is not necessary to confer the authority on any other ex officio Supreme' Court commissioner than justices of this court. Such a construction should be given, if maintainable, for the reasons, that such is the practical construction the section has received from January, 1830, to July, 1817. The consequences of holding all proceedings coram nonjudice, and void, which have been had with the fullest confidence that such was the true construction, would be so serious, that a new construction, which should produce them, should not be given, unless absolutely unavoidable.

Assuming, then, that a justice of this court, on and after the first of January, 1830, by virtue of being ex officio a Supreme Court commissioner, had the authority, the question remains, Has the authority been abrogated, or does it yet continue ?

Section 8, of Art. 11, of the present constitution, abolished the office of “ Supreme Court Commissioners” from and after the 1st of July, 1817. (Laws of 1817, vol. ii., p. 111.) From and after the 1st of July, 1817, therefore, a justice of this court, in the absence of all legislation upon the subject, could have no authority to do any act, which he could previously perform only and solely by reason of his being ex officio such a commissioner. Ceasing to be such an officer, all the authority that he could exercise only by reason of being such an officer, would be abrogated by the extinction of the office. But up to the 1st of July, 1817, by force of the act creating him ex officio a Supreme Court commissioner, and of the act authorizing such a commissioner to issue such attachments, he had power to grant them.

On the 12th of May, 1817, an act was passed to elect the justices of this court. The seventh section provides that “The justices of the Superior Court, whose election is provided for by this act, shall have and possess the same powers, and perform the same duties as the justices of that court now have, and possess, and perform.”—'Laws of 1817, p. 281, § 1.

When that act was passed, they had and possessed the power to issue such an attachment. We think the legislature did not intend to exonerate them from the performance of that duty. That this section was designed to confer, by its comprehensive phraseology, on the justices to be elected, all the powers which those then in office exercised and possessed, whether such powers related to statutory proceedings, or to actions instituted in the court of which they were members.

It is true that § 76 of the Judiciary Act required all proceedings of this kind, pending before any Supreme Court commissioner, on the first Monday of July, 1847, to be transferred to one of several officers named in it. But the transfer, by that section, might be made to an “ officer now [then] authorized to hear and determine such suit or proceeding, or who shall continue in office after the day last aforesaid.”—Laws of 1847, p. 343.

A justice of this court was such an officer. He was to continue in office until the 1st of January, 1848. (Laws of 1847, p. 280, § 3.) He had such power and authority at the time the Judiciary Act was passed, viz. May 12,1847. (Id., p. 319; id., p. 343, § 76.) He was to remain invested with the same power after the 1st of January, 1848, if the construction which we have given to § 7 of the act of May 12, 1847, be correct. (Id., p. 281, § 7.) We think, therefore, an attachment could properly have been issued by a justice of this court at the time the one in question was granted.

Was there a defect of jurisdiction, because it did not appear, by the papers on which the attachment issued, that all the joint creditors applying for it resided in the State of New York?

The application does not state where the contract was made, on which the alleged indebtedness arose. It describes all the applicants as being “ of the city of New York,” and concludes by stating that “ your applicants, or some of them, reside in the state of New York,” and that the persons proceeded against “ reside at Vera Cruz and Mexico.”

The affidavits of the two witnesses testify to the facts, that the persons indebted are residents of Vera Cruz, or elsewhere, in the republic of Mexico, and that the “ applicants carry on business in the city of New York, and one or more of them is a resident of the state of New York.” It does not appear, by the papers, where the contract was made, nor where the debtor resided at the time it was made.

The complaint describes the contract as having been made in Mexico and that F. F. Eenard, one of the applicants, did not reside in the state of New York when the contract was made, nor at any time thereafter, nor at the time the attachment was applied for.

The reply asserts, that the attaching creditors were partners, were doing business, as such, in the state of New York, when the contract was made; that some of them were then citizens and residents, and were so at the time of applying for the attachment ; and insists that the non-residence of one member of the firm did not render the attachment void.

It was decided, in the matter of Brown (21 Wend. 316), that the only fact to which the two witnesses need testify, is the non-residence of the debtor, and that they need not testify to the residence of the creditor, nor anything in relation to the contract. Brohson, J., said, The fact that there is such a debt, and such a creditor as the statute specifies, may be established by other evidence.”—P. 319. In that case, the application stated that the demand arose upon contract made within this state. The evidence of the parties’ own oaths was furnished, that such a contract had been made as warranted the attachment, no matter where the creditors resided. In the case before us, for aught that appears, the contract may have been made within this state, but the fact is not affirmatively stated.

In Staples v. Fairchild (3 Coms. 41), while the court held that the only fact, required to be proved by the two witnesses, was that of the non-residence of the debtor, yet, it also held that the proceedings were void, because the application did not affirmatively state, either that the contract was made within this state, or that the creditor resided within it. As the papers in question do not state that the contract was made in this state, it is indispensable to the acquisition of jurisdiction, that they should, in order to satisfy the statute, in some form allege that the creditor resided in this state. The attaching creditors constituted a firm. Its place of business was within this state ; and the members of the firm actually controlling the business were citizens and residents. So much is shown by the papers. Is this sufficient to give jurisdiction ?

2 R. S. 36, § 8, provides that, “ whenever partners are creditors of any debtor, any petition and affidavit required by the preceding articles, of creditors, may be made and signed by either of the partners.”

§ 9 requires of creditors, residing out of this state, but within the United States, further evidence of the contract on which their demand arises, than is required of resident creditors.— Vide § 11 id.

Suppose that P. F. Renard had resided in Connecticut, or any other of the United States, instead of being a resident of Paris, would any other evidence in relation to the contract have been required, than such as is required, when all reside within the same state ?

Does § 9 (2 R. S., p. 36) require that the creditors authorized by it to “ unite in any petition” should all reside “ out of the (State,” in case they constitute a firm? If so, and if the construction contended for by defendant’s counsel be correct, then it follows that if a partnership is a creditor, though all its members reside within the U. States,” yet, if some of the members reside within, and some out of this state, they cannot unite in a petition with a resident creditor, under § 3, 2 R. S., p. 3, for the reason that all the members do not reside out of the state ; jmd they cannot apply alone, for the reason, that all do not reside within the state. On such a construction, the rights of a firm, all of whose members reside out of the state, would be guperior to those of one transacting business in the state, under fire sole control of resident partners, but having one of the firm residing out of the state.

Does not a case fall both within the letter and the spirit of the act, which presents a firm, as the petitioning creditors, whose place of business, and the property connected with it, are within the state, under the actual control and management of citizens and residents, although one or more of the members may reside out of the state ? Or must every member be a resident creditor, in all cases where the contract was not made within the state ?

Those of the applicants, who reside within this state, were creditors of the persons proceeded against, and were creditors by reason of the demand on which the attachment issued. One of the applicants, who resided out of the state, was also a creditor, by reason of being a member of the firm with which the contract was made. But a partnership being the creditor, its place of business being here, and its business being controlled and managed by the creditors who resided here, and who applied for the attachment, we are of the opinion that the proceedings should not be held void, merely because one of the partners resided out of the state. That the act should be liberally construed in this respect, and proceedings under it not be held void, by the adoption of that limited construction for which the defendant contends.

The other questions that were discussed by the counsel, we think, are free from difficulty.

We entirely agree with the judge who tried the cause, that the evidence clearly shows that Ramsdell had no authority to make any purchase or shipment of hides on account of the plaintiffs, or to draw the bills which he drew upon them; and that no facts or circumstances were proved, from which the jury could legally infer that he possessed such authority, or that the plaintiffs had, in any manner, adopted or ratified his unauthorized acts. The plaintiffs were, therefore, entitled to a verdict for the whole balance of the moneys which Hargous & Co. had collected and received on their account; but we are all of opinion that the judge erred in directing the jury to include in their verdict the sum of $802T678o, which was the balance of the advances made by the plaintiffs, in New York, upon the shipment of iron. The demand of the plaintiffs, as sworn to in their application for the attachment, was limited to the proceeds of the merchandise which had been placed in the hands of Hargous & Co., at Vera Cruz, for sale. The sum advanced by the plaintiffs in New York assuredly constituted no part of these proceeds, and, therefore, constituted no part of the demand, which the defendant, by the condition of his bond, if established, was bound to satisfy.

The plaintiffs must consent that this sum of $802.67 shall be deducted from the verdict, or there must be a new trial. If they make the deduction, they will be entitled to judgment upon the verdict, as reduced, with costs.

       The plaintiffs consented to the deduction, and the amount of the verdict was adjusted by the counsel of the parties.