author: Learned, P. J.:

text:
    EVA M. LOOP, Respondent, v. JAMES M. NORTHUP and JOHN I. SEELEY, Appellants.

      Liability of sureties on an administrator’s bond to pay a fine imposed on the administrator for contempt.

    An order of a Surrogate’s Court imposed a fine upon an administrator for not. appearing, when cited to do so, in proceedings instituted by a party interested in the estate to require the administrator to render an account of his proceedings.

      Held, that, in the absence of an adjudication that the administrator had assets in his . hands and was obligated to pay a certain sum therefrom to such party, it was not an order of the court touching the administration of the estate, under which the-sureties on the bond of the administrator were liable to pay the fine imposed upon the administrator, because of his contempt of court in not having appeared pursuant to such citation.
    Appeal by the defendants, James M. Northup and John I. Seeley, from a judgment of the Supreme Court, entered in the office-of the clerk of the county of Washington on the 17th day of March, 1890, after a trial before the court and a jury at the Washington County Circuit, at which a verdict was rendered in favor of the-plaintiff for $200.

      L. Fraser, for the appellants.

      8. W. Bussell, for the respondent.
   Learned, P. J.:

This is an appeal from a judgment on a verdict directed by the court. The action is against the sureties on an administrator’s bond, and the recovery is for the full penalty of the bond.

The plaintiff filed a petition in the Surrogate’s Court for an accounting, and a citation was issued returnable May 1, 1888. No record appears of'that day, and it would seem that there was no appearance of any party. But, in pursuance of a letter of the administrator, the surrogate adjourned the matter to the seventh.

' On the seventh it was adjourned to the sixth of June, and was ordered to be continued before the special surrogate by reason of the incompetency of the surrogate. No record of the sixth of June appears, but in an order of June twenty-seventh it was recited that the parties appeared and adjourned to that day. On the twenty-seventh of June the administrator did not appear. The special surrogate made an order that the administrator show cause on the twenty-fifth of July why he should not be punished for contempt, and ordered that such order might be served personally in the State of Yermont, where the administrator resided. An affidavit, taken before a judge of probate in Yermont, of the service in Yermont ■of this order was produced before the special surrogate. This affidavit appears not to be valid. (Code Civ. Pro., § 844; Laws 1848, chap. 195, § 2, as amended 1867, chap. 557.)

On the twenty-fifth of July an order was made by the special surrogate, reciting these several proceedings and the service of the last order in Yermont, adjudging that the administrator had been guilty of contempt of court in disobeying its orders, and ordering him to pay to the petitioner for her damages, costs and expenses, by reason of the contempt, $250, in not having faithfully discharged his trust and not having obeyed the decree of the surrogate. And it was ordered that said sum be an allowance by way of damages, etc., to the petitioner, “ enforceable in any court having jurisdiction,” and that an attachment issue.

On the 27th of March, 1889, on a petition of the plaintiff, the special surrogate authorized the plaintiff to sue the bond. It may be doubted whether proceedings to punish for contempt can be ■commenced by service of an order in another State. And it has. been already pointed out that the proof of such service appears to be insufficient under tbe statutes. There was also a question made whether there was, in fact, any appearance of the administrator before the special surrogate, which appearance the defendants denied. But the court did not permit this question to go to' the jury. There are, however, other questions of more importance, and, therefore, we pass those above suggested.

The plaintiff on the trial rested solely on the orders above set forth. She gave no evidence (other than those) that there was anything owing to her from the administrator. The defendants offered in evidence a receipt in full, signed by her for her share in the estate. But the court excluded this, on the ground that it was a collateral attack on the decision of the surrogate. It seems to us that there are very plain reasons why the plaintiff cannot recover in this action. In Hood v. Hood (85 N. Y., 561), after a careful examination of the subject, it was held that, before any action could be maintained against the sureties, there must be a decree against the executor, a refusal or neglect to perform it, or an execution returned unsatisfied. This rule was again recognized in Haight v. Brisbin, (100 N. Y., 219). Again in Perkins v. Stimmel (114 id., 359) the same rule was applied to an action on a bond of a general guardian.

There is nothing in section 45 (2 B. S., 91) which conflicts with this rule. That section authorizes the surrogate to direct a suit on the bond for the payment of legacies if there be assets ; if there be not sufficient assets, then an abatement is to be made. Now, this contemplates that the surrogate shall, by an accounting, ascertain whether there are assets, and whether the assets are sufficient, before he shall direct the payment of the legacies. It necessarily implies a decision of the surrogate on those points and a direction to pay. It would be contrary to all sound principles that the surrogate should direct a suit on the bond to recover a legacy, without first finding out and deciding whether there were assets applicable thereto. Hence, under this section, as under all those referred to in the cases above cited, there must be a determination by the surrogate before an action against the sureties will lie.

This is apparent for another reason. The bond is security for all persons interested in the estate. It is not the right of one legatee alone to have the whole'benefit.

It may be urged that the proceeding before the special surrogate was an accounting and a determination of the amount owing to the plaintiff. But this is not correct. The proceeding by the plaintiff was for an accounting. But the administrator did not appear at the time to which the matter was ad journed ; and the special surrogate did not revoke the letters or issue an attachment. (Code of Civ. Pro., § 2727.) Nor did he proceed to take the account and hear the allegations and proof of the parties. (§ 2780.) But he instituted a proceeding to punish the administrator for not ajjpearing. Por this the administrator was adjudged in contempt. Now, by section 2284, if an actual loss or injury has been produced to a party, then, in certain cases, a fine may be imposed sufficient to indemnify. Where it is not shown that such actual loss or injury has been produced, then there may be a fine of $250, and costs and expenses.

There is nothing in the order indicating that any actual loss or injury to the plaintiff was shown; and there is no determination by the special surrogate of any amount of such loss or injury. (Swenarton v. Shupe, 40 Hun, 41; Clark v. Bininger, 75 N. Y., 352.) And it does not appear, as it did in the last-cited case, that .any proof of actual loss or injury was given.

That there was really no accounting or determination of the amount owing appears from the order itself, which continues the matter until the administrator shall be personally brought into court. The imposition of the fine, therefore, was like the fining a witness for non-attendance; it did not in any way dispose of the issues in the case.

It is not necessary to question the validity of the order of the special surrogate. Because the fine imposed, $250, was within the limit which may be imposed, where no actual loss or injury has been produced to any party. And, therefore, we have no reason to conclude from the order, or from any of the proceedings, that the special surrogate decided that the administrator was owing this plaintiff any sum of money. The special surrogate fined the administrator, for his failure to appear and account, a sum not exceeding $250. lie even made this sum include the costs and expenses, which might have been added. This the special surrogate could do, assuming that the proceedings were regular, without any proof that the plaintiff was a legatee, or that the administrator had any assets in his hands, ■or that the administrator owed her anything. If the special surrogate had gone further than this, and had imposed a fine sufficient to indemnify the plaintiff, he would have been obliged to take proof and ascertain what her loss and injury were, if she had suffered any. Certainly she had suffered no loss, unless she were a legatee whose legacy had not been paid; and unless the administrator had assets in his hands applicable to her legacy.

In the court below this order of the special surrogate was treated as an adjudication that the administrator had assets in his hands, out •of which he ought to pay the plaintiff $200. Unless that was so •adjudicated no right to recover was shown. Because no proof of any claim of the plaintiff was made, except by the production of the •orders of the special surrogate. Now, it is plain that nothing of that kind was adjudicated. The order shows no evidence upon that point and is entirely silent in respect thereto. The special surrogate vindicated the dignity of his court by fining the administrator for not obeying its order; and that was all. And it is noticeable that •even the petition of the plaintiff, which was the beginning of all the proceedings in the special Surrogate’s Court, does not aver that there is any sum of money owing to her from tíre administrator.

It is not disputed that if, on a proper proceeding, the special surrogate had adjudged that the administrator owed the plaintiff a certain sum, such adjudication would have bound the sureties. But the difficulty is that he has done no such thing. He has' fined the administrator for contempt, as he might have fined him for abusive •conduct in the court room. And such a fine would not have been an order of the court “ touching the administration of the estate,” for which these defendants would be liable.

The judgment should be reversed, new trial granted, costs to abide event.

Mayham, J., concurred in result.

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


source: Caselaw Access Project

license: Public Domain

text:
    BEULAH ROUSE, Respondent, v. THE CATSKILL AND NEW YORK STEAMBOAT COMPANY, Appellant.

      Civil damage aat — does not cover the case of a bar wpon a steamboat.

    The provisions of chapter 640 of the Laws of 1873, the civil damage act, providing that “ any person or persons owning or renting, or permitting the occupation of, any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable ” in damages in certain cases, are not applicable to a case in which liquor is sold at a bar in the bar-room of a steamboat in the course of a voyage on a river within the State of New York. •
    Appeal by the defendant, The Oatskill and New York Steamboat Company (Limited), from a judgment of the Supreme Court, entered in the office of the clerk of the county of Columbia on the 10th day of July, 1889; and also from an order denying the defendant’s, motion for a new trial, which was entered in said clerk’s office on the same day, after a trial before the court and a jury at the Columbia County Circuit, at which a verdict was rendered in favor of the plaintiff for $1,000, whereupon the defendant’s counsel moved that the verdict be set aside as excessive and for a new trial upon the minutes, which motion was denied.

      Peter Ocontine, for the appellant.

      J. Pider Oady, for the respondent.
   Learned, P. J.:

This is an appeal by defendant from a judgment on a verdict and from an order denying a new trial. The action is brought, under the so-called civil damage act, to recover damages sustained by plaintiff in her means of support by the death of her father, Frederick W. Rouse, whose death is alleged to have been caused through his intoxication occasioned by his drinking liquors sold to him by one John Little. It is not alleged or claimed that the defendant sold the liquors. But it is claimed that defendant rented to Little a part of the building in which the liquor was sold and had knowledge that liquors were to be sold therein.

There are several questions of importance in this case. One is whether there was evidence of the intoxication of the deceased on which to go to the jury. Another, and one of very great weight, is whether there was evidence for tbe jury that the death of the deceased was caused by intoxication. Still another is whether the verdict was not excessive. But in the view which we take of this case we pass these over without expressing any opinion thereon.

The defendant was the owner of the side-wheel steamboat, called the Walter Brett, running nights on the Hudson river between New Baltimore and New York city, and stopping at intermediate landings. There was in the bow of the steamboat a bar-room, below deck. In the forward end of the bar-room was the bar. The bar was never opened except on the voyages of the steamboat up and down the river and after she got out from the dock into the stream. John Little ran the bar and had the proceeds. He was also steward of the boat; bought the provisions and boarded the crew. He was the steward on the Oatskill and the Brett and all the boats the defendant had except one. Although he was thus in the defendant’s employment as steward, it is not alleged in the complaint, or proved, that the sales of liquor at the bar were made by defendant. Indeed, it appears that Little was himself the proprietor of the bar; and it is not claimed that the defendant was interested therein.

The claim of the plaintiff is, then, that the defendant is liable because it permitted the occupation of the bar by Little, or rented it to him, having knowledge that intoxicating liquors were to be sold there.

Of course, there is no common-law liability. If liable at all, defendant is liable by force of the statute, chapter 646, Laws of 1873. The material part is: “Any person or persons owning or renting or permitting the occupation of .any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable,” etc. The question is, whether this steamboat was within the words “ building or premises.”

In examining this question we must notice that the act of Little in selling liquor to the deceased was an unquestionably lawful act, and that the act of the defendant in permitting Little to occupy the bar, with knowledge of his intent,* was also unquestionably lawful. A statute, then, which exposes an innocent defendant to possible liability for damages by reason of a lawful act should not be extended beyond its evident meaning.

The word “build” is derived from the word “bold,” meaning a dwelling. A building is defined to be “ a structure in the nature of a house built where it is to stand.” (Murray’s Dictionary.) “As commonly understood, a house for residence, business or public use, or for shelter of animals, or storage of goods.” (Century Dictionary.) And very generally, though not always, the idea of a habitation for the permanent use of man, qr an erection connected with his permanent use, is implied in the word “ building.” Bouvier defines the word as “ an edifice erected by art and fixed upon or on the soil, composed of different pieces of stone, brick, marble, wood or other proper substance, connected together, and designed for permanent use in the position in which it is so fixed.” A building is a part of the land. One would not call a tent a building. As said in one case of the word building: “ In its broadest sense it can mean only an erection intended for use and occupation as a habitation, or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed.” (Truesdell v. Gay, 79 Mass. [13 Gray], 311.) A vault for the interment of the dead, although above ground, is not a building under the statute against burglary. (People v. Richards, 108 N. Y., 137.) Whether it would be a building under this statute we need not inquire. But we are confident that it would be a great misuse of language to speak of a steamboat as a building. If one were to say that he saw a building floating down the river with many people in it, he never would be thought- to mean a vessel. A vessel is not fixed in the earth, and does not form a part of the land. Even when fastened to the shore it would not pass by a conveyance of the land. And though, in some exceptional cases, buildings may be removed from the land, still the prevailing idea is that of permanence.

The cases cited by plaintiff under the criminal law of England, as To burglary, speak of permanent buildings, not of vessels. So in our own statutes it was deemed necessary to declare that the word building,” as used in the chapter on burglary, includes a railway car, vessél,” etc. (Penal Code, § 504.) So, also, in regard to the crime of arson. (§ 493.) From these sections it may be inferred ■that, without such definition of the word, a vessel would not be included.

We next come to the word “premises.” The word, in its legal use, originally described the first of tlie eight parts of a deed, viz., .all which preceded the habenchm. The object of this part of the ■deed was to rightly name the feoffer and feoffee, and to comprehend the certainty of the lands to be conveyed by the feoffment. (Coke Lit., 6®.) It is very easy to see how, from this meaning of the word, it came to designate the lands. A large part of the portion of the deed thus named was taken up with the description of the lands. Hence the word premises, in the latter part of the deed, was used as meaning the lands only, as, for instance, “the above-described premises.” In this way the word has come into general use with the meaning, lands; affording an instance, among many nthers, of the tendency to use a general and indefinite word, rather than one of precise and definite meaning. But the word, however loosely used in this way, always means land and the building thereon. It is not applied to vessels. The plaintiff cites cases from Alabama where parties were convicted of selling liquor to be drunk •on the premises, although the land on which it was drunk was not their own. Whether the convictions were correct or not is immaterial on the present point. Premises certainly meant land of some one.

Nor is there anything in the language of the statute in question which should change the views above expressed. It speaks of renting or permitting the occupation of any building or premises. These are words which, in ordinary use, are applied to the renting •or permitting the occupation of land. “ Rent ” is a profit out lands and tenements. To rent is to grant the right to occupy lands, paying a certain sum therefor. It is true that in a loose way “ renting ” may be used for “ hiring.” But certainly it would be extending the meaning of the word in this statute to make it applicable to vessels.

In construing this statute we cannot be much aided by decisions. We must try to ascertain what the words fairly mean. That is one guide to the intention of the legislature. We must take what they ■said. If they meant more, they should have said so. Whether or not the legislature should forbid the sale of spirituous liquors on vessels and on railroad cars is not for us to say. This statute does not forbid any selling in any place. We have no reason to suppose that the legislature intended to make railroad companies responsible for injury to means of support, occasioned by the sale of such liquors in their cars with their knowledge. And it is well said by the defendant that, if the plaintiff’s construction is correct, the owner of a foreign steamer coming to any port, in this State would be liable as this defendant has been made liable.

We have no right to extend this statute beyond the plain and distinct meaning of the words, under a wish to prevent some of the evils of drinking spirituous liquors. Though not strictly a penal statute, it imposes a new liability, and that, too, on an innocent party. And it cannot be extended by implication.

We are of opinion that the vessel was not included in the words “ building or premises,” and that the judgment and order must, for tliat reason, be reversed. Whether there was sufficient evidence as ‡0 the cause of the death of the deceased we .do not decide.

The judgment and order must be reversed and a new trial granted, costs to abide the event.

Landon and Mayham, J J., concurred.

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


text:
    In the Matter of the Petition of WALTER J. EATON, as Assignee for the Benefit of Creditors of JAMES MOIR, for the Instruction of the Court in Regard to the Payments to be Made Among the Creditors Preferred by the Assignment Made by Said JAMES MOIR.

      Assignment for creditors — rule as to pro rata distribution, under chapter 503 of 1887,. among preferred creditors.

    An instrument of general assignment for the benefit of 'creditors conveyed the property of the assignor, in trust, to convert the same into money, “ and out of' the proceeds of such sales and collections:

      “First. To pay and discharge the just and'reasonable expenses,- costs and charges of executing this assignment, and of carrying into effect the trust hereby created, together with the lawful commissions to the party of the second part for his services in executing said trust, and also to make payments required by chapter 328 of the Laws of 1884, as amended by chapter 283 of the Laws of 1886.

      “Second. To pay New York State National Bank, Albany, a draft drawn by J. K. Post & Company. * * *

      “ Third. To pay to the said New York State National Bank, Albany, any and all loss or damage which the said New York State National Bank, Albany, has now sustained, or may hereafter sustain, by reason of the nonpayment of certain promissory notes indorsed by the party of the first part and discounted. * * *

      “Fourth. To pay to George Moir the sum of nine thousand dollar's, and to John McTague the sum of eighteen hundred dollars. * ” *

      “Fifth. And after fully paying and discharging all the aforesaid debts, as above provided, the said party of the second part shall pay all and singular all other debts and liabilities of the party of the first part.”
    By chapter 503 of the Laws of 1887, providing that preferences, other than the wages of employees, shall be valid only to the amount of one-third in value of the assigned estate, it is directed that should said one-third 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 he applied to the payment of the samepro rata to the amount of each said preferred claims.”
    One-tliird of the assigned estate proved insufficient to pay in full the debt owing to George Moir, preferred by the fourth paragraph of the assignment, and the debts mentioned in the paragraphs of the assignment preceding such fourth paragraph thereof.

      Held, that, under the assignment, the debts preferred were to be paid in the order in which the paragraphs in which they were mentioned were, respectively, numbered.
    That, in such order, tne debts mentioned in each paragraph were to be paid in full before any payment was made upon the indebtedness mentioned in the succeeding paragraph.
    That the words “pt'o rata ” in the statute applied, in a case like the present one, where the one-third of the assets, which might be applied in payment of preferred claims, was not enough to pay all the preferred creditors, to the creditors embraced in some one class, and not to any right of preference or payment between the different creditors in the several classes of preferred creditors.
    Appeal by George Moir from so muclr of an order made at Special Term, and entered in tbe office of tbe cleric of Albany county on tbe 29tb day of July, 1890, as provided as follows:

      “ Third. One-tbird in value of tbe assigned estate, after deducting sueb costs and expenses, wages and salaries, from such. assigned estate, shall be applied to the payment in full of tbe other preferred claims in the order stated in tbe general assignment made to said Walter J. Eaton ; that is to say, out of such one-tbird tbe preferred' claims of each successive class, in tbe order in which such classes are set forth and numbered in tbe instrument of assignment, are "to be paid in full before any part of sncli third is applied to the payment of the claim mentioned in any succeeding class; and when the moneys so applicable to the claims set forth in any one class are insufficient to pay all the claims of that class, then such moneys so-applicable to that class shall be distributed fro rata among all the claimants having claims which are preferred in such class.”
    The assignment in this case w-as made under date of November 8, 1889, by James Moir to Walter J. Eaton, and by the terms thereof the estate of the former was conveyed to said Walter J. Eaton, in trust, nevertheless, to take possession of the same and sell the same with all reasonable dispatch and convert the same into money, and also to collect all such debts and.demands hereby assigned as may be collectible and with and out of the proceeds of such sales and collections,.
    - First. To pay and discharge the just and -reasonable expenses, cost and charges of executing this assignment and of carrying into effect the trust hereby created, together with the lawful commissions to the party of the second part for his services in executing said trust, and also to make payments required by chapter 328 of the Laws of 1884, as amended by chapter 283 of the Laws of 1886.

      Second. To pay New York State National Bank, Albany, a draft, drawn by J. K. Post & Company upon and accepted by said party of the fkst part for the sum of two thousand ($2,000) dollars, which is due January 11, 1890, and also a draft drawn by J. IL Post & Company upon and accepted by the said party of the first part for the sum of fifteen hundred dollars ($1,500) which is due January 13, 1890, both of which drafts have been discounted by said New York State National Bank, Albany, for the benefit of the said party of the first part, the proceeds being deposited to his-account and also a sight draft drawn by said party of the first part, on J. K. Post & Company, for the sum of twenty-six hundred and twenty-eight dollars and forty-four cents ($2,628.44), which has. been presented and duly protested.

      Third. To pay to the said New York State National Bank, Albany, any and all loss or damage which the said New York State National Bank, Albany, has now sustained, or may hereafter sustain by reason of the non-payment of certain promissory -notes indorsed' by the party of the first part and discounted for his benefit by the said New York State National Bank, Albany, the proceeds being-placed to his credit, which said notes are now owned and in the possession of the New York State National Bank, Albany.

      Fourth. To pay to George Moir the sum of nine thousand dollars ($9,000), and to John McTague the sum of eighteen hundred ($1,800) dollars; to John Benoit the sum of five hundred ($500) dollars; to Captain Joseph Yartan the sum of four hundred and four dollars and fifty cents ($404.50); to Captain Goudreau, of the boat Richard Retallick, the sum of six hundred and fifty dollars ($650).

      Fifth. And after fully paying and discharging all the aforesaid debts as above provided, the said party of the second part shall pay all and singular all other debts and liabilities of party of the first part, and if the residue of the said proceeds remaining be not sufficient to pay and discharge all such other debts and liabilities in full, then the said party of the second part shall apply the said residue of such proceeds ratably and in proportion to the respective amounts thereof. * * *

      A. B. Dyett, for the appellant, George Moir.

      Matthew Hale, for the New York State National Bank, respondent.

      M. T. Hun, for the petitioner, respondent.
   Learned, P. J.:

This is an appeal from an order giving construction to the assignment, made on application of the assignee, and on notice to George Mpir, a preferred creditor, who is the present appellant.

The appellant’s first position is that, by the terms of the assignment itself, there is no preference created among the several classes of preferred creditors, designated as first, second, third and fourth, but that all of those classes stand on an equality by the terms of the assignment.

The assignment, in the usual form, directs the assignee to convert the assets into money,’ and with and out of the proceeds, first, to pay and discharge the just and reasonable expenses,” the lawful commissions and the payments required by chapter 328, Laws of 1884, as amended by chapter 283, Laws of 1886. Now, it is very evident that the payments provided for by this clause are to be made in preference to those of the second clause. Expenses and commissions must clearly be paid before any preferred creditors. In like manner the employees protected by the statute, named as above in the assignment, are to be paid before other creditors. It, therefore, necessarily follows that the payments provided for in this first clause must have a preference over all those named in succeeding clauses.

The assignment proceeds, “second, to j>ay New York State National Bank, Albany,” and specifies two drafts drawn by J". K. Post & Company, on and accepted by the assignor and discounted by said bank, and a draft drawn by the assignor on said J. K. Post & Company, protested.

It then proceeds, “ third, to pay the said New York State National Bank, Albany, any and all loss and damage ” which said bank may sustain by the non-payment of certain promissory notes.

It then proceeds, “fourth, to pay to George Moir the sum of nine thousand dollars; ” and to other persons certain sums mentioned. The fifth clause is for the payment of all other debts.

Now, if the contention of the appellant were correct, there would have been no reason for making two classes such as the second and third. The payee was the same in both. And if, as the appellant urges, the numbering of the classes did not indicate the ■order of preference, all the debts payable to the New York State National Bank would have been included in one class. There could be no other reason for making two classes except the wish of the assignor that the Post drafts should have a preference even over other drafts held by that bank. It seems to us that the meaning of the assignment is unquestionable, and that the preferred creditors were intended to have preference among each other according to the order of these respective classes.

The language of the court in Greenfield's Estate (24 Penn. St., 232), cited by the appellant, that “ it is believed that no case can be found where it has been held that the prefix of a numeral alone gives priority,” hardly applies here. There is more than the prefix of a numeral. There is a direction to pay, first, such and such debts, second, such and such. When one is directed first to do a certain thing, and second another, it is not a forced construction to understand that the first is to be done in full before* the second is attempted.

The case of Colgin v. Redman (20 Alabama, 651), cited by appellant, held that debts in the first class were to be paid before those in the second class; only that all in such class were to share pro rata. That is our view in this case. Moir, the appellant, although his name is the first mentioned in the fourth class, has no preference over others in that class. But the creditors in the first, .second and third classes have, respectively, preference according to their classes, and all of them before those of the fourth class. No doubt would probably ever have risen as to this were it not for the question we now come to consider.

Chapter 503 of the Laws of 1887 provides that any preference, other than for wages of employees, shall not be valid except to the amount of one-third in value of the assigned estate, and should said one-third 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.”

The assignee has in his hands, applicable to debts, about $25,000. The amounts preferred in the second class are about $6,100; the amount in the third class does not appear; the amount in the fourth is about $12,000. The appellant insists that the one-third of the assets shall be applied pro rata to all of the claims named in the second, third and fourth classes. The learned court below held that such one-third should be applied first pro rata to the creditors in the second class, and the balance pro rata to the claims in the other classes successively. We think the construction of the learned justice was correct. This statute was not intended to interfere with anything but the amount which might be given to preferred creditors. It did not intend to limit' or control the power of the assignor to the extent of one-third of the assigned estate, to dispose of it as he chose, giving preference as it might please him. The doctrine of this State has been, and is, except as modified by that statute, that an insolvent debtor may make any preferences which he may choose. As to one-third of his property the debtor may do this still. In this present case, according to the estimate of the assignee, the one-third is sufficient at least to pay in fiill the first and the second class. If the assignor had made no third or fourth class, then the persons named in those classes would have been among the creditors-not preferred, and the first and second would have been paid in. full. Now, when the assignor has directed that these creditors of the third and fourth classes shall be paid after the first and second,, but before all others, can it be supposed that he intended that in case of an insufficiency of assets those of the third and fourth should be paid pro rata with the second? Certainly the addition of more classes, after the second, was not intended, under any circumstances, to put such added classes on an equality with the second.

The provision in the statute is to pay pro rata when the one-third is insufficient to pay in full the preferred claims to which such one-third is applicable, and the question is to what claims it is-applicable. The one-third is applicable just as the assignor directed, and in the order in, which he directed. He may be presumed to-have known the law, and, perhaps, to have known something of the extent of the estate. In giving a preference to the second and third-classes over the fourth, he must have anticipated that it was possible that there would not be enough for all the preferred creditors. And he did not say that, in case of such deficiency, all the preferred1 classes (except the first) should share pro rata. He practically said the contrary. There is no analogy between this case and that of legacies; for the reason that in this assignment a preference is expressed. In a will there is usually no preference expressed. But when, in a will, a priority is given, either by principles of law or by express language, effect is given to it.

In the present case priority is given by express language. It is not taken away by the statute. The statute interfered only with the extent of the debtor’s right of preference, not with the manner in which he should exercise that right. The words pro rata apply when there is not enough of the one-third to pay all the creditors in some certain class; and not to the right of preference between several classes.

The order is affirmed, with costs.

Landon and Mayham, JJ., concurred.

Order affirmed, with costs.


text:
    ALBERT T. BROWN, Respondent, v. SARAH TEEL and MARY A. HUNN, Appellants, Impleaded, etc.

      Action to compel the determinatiooi of claims to real property — sufficiency of the, complaint therein — evidence that a claim was made.

    In an action to compel the determination of claims to real property, it is not sufficient evidence that a claim was made on behalf of the defendant to show that she •was asked to execute a deed of the property, and failed to do so; nor is it a compliance with section 1639 of the Code of Civil Procedure, which requires the-complaint to “set forth facts showing” that the defendant unjustly claims an estate in the land, to simply allege that the defendant “ unjustly claims an estate,” without stating any facts in support of such allegation.
    In order to authorize the institution of such a proceeding, it must appear that a claim was made by the defendant before its commencement, and the assertion oí a claim in the defendant’s answer is not sufficient unless the answer admits that the defendant claimed an estate in the land prior to the commencement of the proceeding.
    Appeal by tbe defendant Sarah Teel, and by the defendant Mary A. Hunn, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Washington on the 7th day of April, 1890.
    The action was brought to compel the determination of claims to certain real estate described in the complaint, of which the plaintiff alleged that he was the owner in fee simple.
    The allegation of the complaint, as to the claim of the defendants, was as follows: “ VI. That the defendants, who are children and grandchildren of said Elisha Brown, deceased, unjustly claim an estate in fee in said premises.”

      George B. Lawrence, for the appellant Sarah Teel.

      Yonng da Kellogg, for the appellant Hunn.

      Lyman H. Korthujo, for the. respondent.
   Learned, P. J.:

This is an appeal by the defendants Teel and Hunn from a judgment against them in a proceeding to compel the determination of claims to real property.

Elisha Brown, now dead, on the 18th of December, 1875, entered into an agreement, under hand and seal, with his son, the plaintiff. By this the plaintiff agreed to support and to take care of Elisha during his life, and in consideration thereof Elisha agreed to give plaintiff the property in question. It was provided that if Elisha should become dissatisfied with his support by the plaintiff, he might cancel the agreement, paying plaintiff a certain price'for what he had done. Elisha was to have the use and the possession of the property during his life. It was also provided that should the agreement be carried into effect during the natural life of Elisha, “ then this agreement shall be considered a good and sufficient title to the above described house and lot to the said plaintiff.”

This agreement was left with the justice of the peace who drew it. It was not witnessed or acknowledged. The justice died in 1877. Elisha died in 1878. On August 26, 1878, the administrator of Burbank, the justice, delivered the instrument to plaintiff. ITe acknowledged it December 17, 1879, and put it on record. Elisha, until his death, lived with the plaintiff. Since Elisha’s death the plaintiff has had the undisturbed possession and enjoyment of the premises. The defendants are children and grandchildren of Elisha, and with the plaintiff are the heirs-at-law.

The complaint alleges that they unjustly claim a fee in the premises. Against several of them judgment was taken by default. Two of them appeared. Mary A. Iiunn denies the complaint generally. Sarah A. Teel, among other things, denies that she has ever claimed any estate in the premises. She, however avers, that plaintiff took possession of all the real and personal property of Elisha, and she asks an accounting.

On the trial the court rendered judgment against all of the defendants, including the appellants, who had appeared, barring them of all claim and awarding costs against defendants Iiunn and Teel. The action was commenced in January, 1889. In February, 1889, defendant Teel offered to release all claims to the land and to have the action discontinued as to her without costs, but declined to pay costs. A simi'liar offer was made by her in April, 1889. These offers were not accepted by the plaintiff.

On the trial, in order to show that these defendants made claim to this property, the plaintiff gave in evidence a letter from him to Mrs. Teel, written in December, 1888, saying that his father left him a little property, and as he was about to sell it he wanted the heirs to sign. off. It did not appear what the reply was. And no-such letter was shown to have been received by defendant Hunn.

On this appeal neither of the defendants urge that, in equity, they have any interest- in the premises, nor do they rest upon their legal title. But they say that, never having made any claim to the premises, they have been wrongf ully made parties to this proceeding, and that they have been unjustly required to pay costs. Therefore, they rely on all the objections which may be shown to exist against plaintiffs action.

This proceeding, like an action of interpleader, is brought by one who has no claim or demand against the defendants. Its object is to compel them to bring to trial claims which they are alleged to have-against the plaintiff. Hence it is an important element in the plaintiff’s right to maintain the action that the defendants shall unjustly claim an estate in land of the plaintiff. The Code (§ 1639) requires the complaint to “ set forth facts showing the plaintiff’s right to the real property,” etc., and showing “ that the defendant unjustly claims an estate therein of the character specified in the last section.” The defendants insist that this complaint sets forth no facts, but merely asserts that the defendants unjustly claim a fee in the premises. We think that the defendants are right. The case of Austin v. Goodrich (49 N. Y., 266) is directly in point. There a demurrer to a similar complaint was sustained because, among other grounds, no facts were stated showing that defendants unjustly claimed title. And it hardly needs argument to show that when a statute requires the complaint to state facts, showing that defendants unjustly claim a certain estate, it is not a compliance with the statute simply to allege that the defendants unjustly claim an estate without alleging-any facts showing this.

As, however, the parties in this case went to trial we ought to examine whether the defect in the complaint was supplied by proof. If it were, we might probably disregard the defect, or allow the complaint to be amended to conform to the proof. But on examining the ease we find no proof whatever that the defendants ever made, before tlfe commencement of the action, any claim to the premises in question. The only evidence tending in that direction is, that the plaintiff wrote the letter above mentioned to Mrs. Teel asking the heirs to sign off. The letter does not distinctly state that plaintiff has the title, for he says that he wants the heirs to sign off, because lie is going to sell the land. No evidence was given as to what reply, if any, was made to the letter. And no evidence that “the defendant Iiunn ever received such a letter. We cannot hold that when one is asked to execute a deed to another of certain land, and makes no reply, there is evidence that the party thus asked makes a claim to the land. We do not know of any obligation under which a person lies to execute a deed of land simply because the owner asks it. It does not appear that these defendants, prior to the -commencement of the action, had disturbed, or threatened to disturb, the plaintiff in possession, or had asserted that they had any title.

The learned justice who tried the case found, as a fact, that the two defendants, Teel and Iiunn, unjustly claimed an estate in fee in an undivided portion as heirs-at-law of Elisha. And that finding •seems to be based on the fact that, prior to the action plaintiff mailed a letter, as above stated, to defendant Hunn, and that defendant Teel received a similar letter and refused to execute the deed requested. There is no evidence of such refusal, and there is no ■evidence that defendant Iiunn received the letter. We think that the evidence fails to show that these defendants, justly or unjustly, made any claim of title to the premises before the commencement •of the action.

'We do not think it necessary, in this view of the case, to decide whether the written agreement between plaintiff and Elisha was an ■executory contract for the conveyance of -the premises in ease plaintiffs should support Elisha, or whether it operated as a deed on the death of Elisha and on proof that plaintiff did thus support him. If the former, then, if plaintiff wished to have a legal and not merely an equitable title, he should have brought an action for performance of the contract. If the latter, then he Cannot maintain the present proceeding until the defendants shall have laid claim to some estate in the premises adverse to his. Nor need we inquire, in the view we take, whether or not the proof was sufficient to show that the plaintiff had fulfilled his part of the agreement. It is ■enough for us to say that neither does the complaint aver, nor the proof show, that the defendants claimed an estate in the premises.

The claim which they must have made, in order to permit plaintiff to bring this action, must have been made before its commencement. We cannot look to the answers of the defendants as an assertion of such claim, unless the answers admitted that defendants had claimed such an estate. And these answers deny that. The plaintiff asked, in his complaint, for costs of the action, and thus the defendants were compelled to litigate.

The judgment as to the defendants Teel and Hunn is reversed and a new trial granted, costs to abide the event.

Landon and Mayham, JJ., concurred.

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


text:
    OLIVER B. WHITNEY, Respondent, v. LAWRENCE E. WARDELL, Appellant.

      Moidence — as to copartnership, when hearsay and incompetent.

    In an action against the surviving member of the firm of Walter J. Caywood & Co. to recover on a promissory note made by it, the question at issue was whether the defendant Wardell was a member of the firm.
    •On the trial the plaintiff asked one of his witnesses: “Did you ever hear Walter J. Caywood say anything about Warden’s having an interest in the firm?” Which question was objected to on the ground that any statement by Caywood was not binding on the defendant unless made in his presence. To this question the witness was allowed to answer: “I had no conversation, except to ask him who was his partner, and he said Lawrence E. Wardell.”

      JSelcl, that the evidence was hearsay and incompetent.
    Appeal by the defendant, Lawrence E. Wardell, from a judgment ■of the Ulster County Circuit, entered in the office of the clerk of the ■county of Ulster on the 28th day of October, 1889; and also from an order denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes of the court, after a trial before the Ulster county judge and a jury, in the city of Kingston, on .September 26, 1889.

      A. T. Clearwater and John Mush, for the appellant.
    A. H. Van Burén and Eldorus Bcn/ton, for the respondent.
   Learned, P. J.:

This is an action to recover against defendant as surviving partner ■of the firm of W. J. Caywood & Co., on a promissory note of $200 made by said firm. The action was commenced in a Justice’s-Court, and after judgment there, an appeal was taken to the County Court where it was retried. A judgment was recovered for the plaintiff, and from that judgment and from an order denying a new trial the defendant appeals.

The only question was whether the defendant was a member of that firm. There was evidence to go to the jury on that point; and though the evidence ivas conflicting the County Court properly refused, so far as we see, a new trial on the ground that the verdict, was against the evidence. It was, however, a closely-contested question of fact, and the defendant was entitled to have no other evidence admitted than such as legitimately bore on the issue.

The plaintiff asked one of his witnesses, Allerton, “Did you ever hear Walter J. Cay wood say anything about Wardell’s having an interest in the firm ? ” The defendant objected on the ground that the statement was not binding on him unless made in his presence. The ob jection was overruled and defendant excepted. The witness answered : “ I had no conversation except to ask him who was his partner, and he said Lawrence E. Wardell.”

This statement was no evidence against the defendant. There was a sharp conflict between plaintiff’s evidence of defendant’s admission that he was á partner and defendant’s denial of such admission. Hence it was most important that no hearsay or inadmissible evidence should be received. We do not see how that statement of Caywood made out of court, and not in Wardell’s presence, could be evidence against Wardell. Some other questions are raised on, the appeal which need not be discussed here.

But in a case where the question of fact was so sharply contested this improper evidence.may have done harm to the defendant. A jury might very naturally think that Cay wood’s statement that Wardell was his partner would bind the firm like the act of a partner, and that hence Wardell was, by the weight of evidence, shown to have been a partner.

The judgment and order must be reversed, and anew trial granted, costs to abide the event.

Landon and Mayham, JJ., concurred.

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


author: ■Learned, P. J.:

text:
    WILLIAM V. OOTHOUT, JOHN OOTHOUT, SARAH SYKES, EMMA OOTHOUT and FRANCIS LATHAM, Appellants, v. MARY ROGERS and BENJAMIN ROGERS, Respondents.

      Will — absolute gift in fee, when not cut down to a life estate by a subsequent clause of the will.

    A testator, by his will, gave to his daughter, Sarah, a certain house and lot as therein stated “toher own proper use and behoof forever, also the sum of $1,400, to be paid to her in annual installments of one hundred dollars, and interest on the whole sum unpaid, annually, until the whole of said bequest is paid, commencing one year next after my decease.”
    By a subsequent clause of his will he provided: “ It is hereby understood that the devises and bequests made, respectively, to my daughters, Elizabeth, Sarah and Louisa, are made, and are, for the absolute uáe, control of each of them during their natural lives, and after the decease of either of them then to their surviving children, respectively, according to law, as the said annual sums, devises and bequests may remain in the hands and under the control of either of my executors, at the free election of either of my said daughters, and upon, such terms as either of my daughters may make with such executors ”

      Held, that the house and lot devised to the daughter, Sarah, passed to her in fee, and that her surviving children took no interest therein upon her death under the provisions of the will.
    That the words of the will, in the first item thereof above referred to, clearly indicated a disposition on the part of the testator to give the entire interest, use and benefit of this land absolutely to Sarah, and the subsequent provision relating to her surviving children was too ambiguous and uncertain in its terms to cut down to a life estate the estate given to Sarah by the former provision of the will.
    Appeal by tbe plaintiffs from a judgment of the Supreme Court, entered in the office of the clerk of the county of Schoharie on the 14th day of May, 1890, after a trial at the Schoharie County Circuit, before the court without a jury, at which judgment was directed in favor of the defendants dismissing the plaintiffs’ complaint. .
    The action was brought to recover the possession of a house and lot situated in the county of Schoharie, and the question presented involved the proper construction of certain clauses contained in the will of Samuel Hodgson, which will contained, among other provisions, the following:

      “ Third. I give and devise unto my daughter Elizabeth, wife of John S. Sehermerhorn, my house and lot lying in the village of Cobleskill, how occupied by said John and family, to her own proper use and behoof forever; also the sum of fourteen hundred dollars, to be paid to her in annual installments of one hundred dollars, and the interest on the whole sum unpaid, annually, until the whole of said bequest is extinguished, commencing one year after my decease.
    “ Fourth. I give, devise and bequeath unto my daughter Sarah, wife of Andrew D. Oothout, my house and lot lying in the village ■of Richmondville, now occupied by said Andrew and family, to her own proper use and behoof forever; also the sum of fourteen hundred dollars, to be paid to her in annual installments of one liundred dollars, and interest on the whole sum unpaid, annually, until the whole of said bequest is paid, commencing one year next .after my decease.

      “Fifth. Having heretofore paid and advanced to my daughter Erancis, wife of Hiram Mann, at different times, the sum of two thousand one hundred and twelve dollars, I direct that this amount shall be in full of her portion of my estate.
    “ Sixth. I give and bequeath unto my daughter Louisa, wife of Robert Euller, one thousand three hundred and eighty-five dollars, paid in two amiual installments and the interest, commencing one year next after my decease. It is hereby understood that the devises and bequests made, respectively, to my daughters, Elizabeth, Sarah and Louisa, are made, and are, for the absolute use, control of each ■of them during their natural lives, and after the decease of either of them, then to their surviving children, respectively, according to law, as the said annual sums, devises and bequests, may remain in the hands and under the control of either of my executors, at the free election of either of my said daughters, and upon such terms 'as either of my daughters may make with such executors.”

      L. W. Baxter, for the appellants.
    ■ W. JB. Fdwards, for the respondents.
   ■Learned, P. J.:

This is an action of ejectment and was tried before the. court. 'The court decided in favor of the defendants, and the plaintiffs iappeal. The question involved arises solely on the construction to be given to the will of Samuel Hodgson, who died in 1853, seized in dee of the premises, and especially on the construction to be given ±o the fourth and sixth clauses.

By the third clause the testator gave to his daughter Elizabeth a house “ to her own proper use and behoof forever,” and, also, $ 1,400, to be paid in several installments of $100, and interest on the unpaid .sum, until the' whole of the bequest is extinguished.

By the fourth he gave to his daughter Sarah the house and lot in ■question to her own proper use and behoof forever,” and, also, a similar bequest of $1,400, payable in the same manner above specified.

By the sixth he gave to his daughter Louisa $1,385, payable in two annual installments and the interest. The clause then continues: •“ It is hereby understood that the devises and bequests made, respectively, to my daughters Elizabeth, Sarah and Louisa, are made and .are for the absolute use, control of each of them during their natural lives, and after the decease of either of them, then to .their surviving children according to law, as the said annual sums, ■devises and bequests may remain in the hands and under the control ■of either of my executors, at the free election of either of my said daughters, and upon such terms as either of my daughters may make with such executors.”

Sarah Oothout, the devisee named in the fourth clause, went into possession of the premises at the death of her father. Subsequently she conveyed the premises, and the defendants are in possession under that conveyance and under subsequent conveyances and wills. .She and her grantees have been in possession ever since her father’s death. She died in 1879. The plaintiffs are her only children and ■they commenced this action in 1889. They claim that by the will :Sarah Oothout took only a life estate, and that the fee in the remainder went to them on her death. It will be seen that the question is, what effect the sixth clause had upon the fourth clause, which unquestionably gave Sarah a fee.

“ It is well settled by a long succession of well-considered cases that, when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit ■of the estate absolutely to the donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words inferential in tlieir intent.” (Clarke v. Leupp, 88 N. Y., 228; see, also,. Campbell v. Beaumont, 91 id., 464.) It is unnecessary to cite other eases. But the principle is better and more concisely expressed in Lambe v. Eames (L. R., 10 Eq., 267): “ Wherever the will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention to cut down the absolute gift as the prior part does to make it.” Nearly the same language is found in Byrnes v. Stilwell (103 N. Y., 460).

In the present case we think it is plain to what the testator ref erred in this sixth clause. To Elizabeth and Sarah he had given, respectively, in fee a lot of land ; to each of them and to Louisa he had given a pecuniary bequest. All these bequests were payable in installments. The testator considered the question to whom these installments should go in case either of the daughters should die before all of the installments should have been paid. Should they be a part of the estate of the deceased daughter, or should they go to her children ? To settle this he provided that these unpaid installments should go “ to their surviving children, respectively, according to law, as the said annual sums, devises and bequests may remain in the hands and under the control of either of my executors.” When he spoke of annual sums, devises and bequests remaining in the hands of executors he had no reference to land, notwithstanding the use of the word “ devises.” He plainly had reference to the-moneys which were in the hands of the executors, and which were to be paid annually by installments. There were no annual devises,, accurately speaking. This use of the word devises ” in the middle of the sentence shows what it means in the beginning of the same, sentence, where he says: “ It- is hereby understood that the devises and bequests made respectively to my daughters,” etc. The beginning of the sentence is not to be separated from the end. We must look at the sentence as a whole to understand what was the testator’s, meaning. Of course, it is well known that, in accurate language, the word “ devise ” applies to land only. It is, however, sometimes inaccurately applied to personal property. (Bouv. Law Diet., sub voce.)

Now, it is plain that the third and fourth clauses gave an absolute fee in the respective lots of Elizabeth and Sarah. The question, then, must be, under the rule above cited, whether this sentence in the sixth clause shows as clear an intention to cut down those estates as the prior part of the will did to make them. It is evident that the subject of this sentence was some property which was not only under the control of the executors, but about which the daughters could make terms with the executors. This is intelligible if it applies to the bequests, but meaningless if it applies to land. And that the whole sentence refers to personal property is more apparent from the circumstance that the testator speaks of the devises and bequests made to Louisa as well as to Elizabeth and Sarah. There was no gift of land to Louisa. When, therefore, he spoke of her devises and bequests, he could have referred only to the bequests of personal property.

We have examined the cases cited by the plaintiffs in support of their construction of the will. It does not seem to us useful to comment upon them. In every case the peculiar language of the will in question is to be construed. And it is seldom, if ever, that the language is the same in two instances.

It seems to us, taking the whole of the sentence in the sixth clause, on which the plaintiffs rely, and construing it in connection with the rest of the will, that the testator did not intend to cut down the absolute devises of land contained in the third and fourth clauses. As to the misuse of the word devises ” in this sentence, we can only, in the language of the Court of Appeals, ascribe to the conveyancer inexactitude of expression.”

The judgment should be affirmed, with costs.

Landon and Mayiiam, JJ., concurred.

Judgment affirmed, with costs.


author: LANDON, J.: Learned, P. J.

text:
    JOHN G. GREENE and ABRAM G. VEEDER, Comprising the Firm of GREENE & VEEDER, Respondents, v. ANTHONY WALTON, RUGENE M. OLMSTEAD, GEORGE BUSKERK, CALVIN L. BRANDOW and ALBERT SHEAR, Appellants.

      Insurance — liability of the directors of the compa/ny, under chapter 267 of 1815, although the policy provides that they shall net be liable.

    A corporation, organized under chapter 267 of the Laws of 1875, the eighth section of which provided, “ The directors * * * shall be jointly or severally liable for all debts due from said society or corporation contracted while they are trustees,” issued a certificate of insurance by which it insured the life of a certain bay horse. The certificate provided that the company would pay the owner of the horse the proceeds of an assessment of one per cent, not to-exceed $100; and further provided: “As this society is purely mutual the payment of assessments is not obligatory, but is the voluntary contribution of its members: ” and, further, that “the directors of this society, either individually or as a body, shall not assume any liabilities personally by reason of the issuance of this certificate.”
    In an action brought by the owners of the horse thus insured against the directors, to recover the amount of the insurance:

      Held, that the provision of the policy, relating to the immunity of such directors from personal liability, was repugnant to the provision of the statute and was void upon grounds of public policy. (Learned, P. J., dissenting.)
    That the statute formed part of the charter of the corporation, which could make no contract forbidden thereby.
    That this provision of the contract was not for the benefit of the corporation, but of its directors, for whom the corporation had no power to make contracts.
    That the directors, who were such at the time of the issuance of the certificate of insurance, were liable, under the provisions of the act of 1875, for the obligation created thereby,

      Qucere, whether the directors could, by direct contract with the insured, protect themselves from personal liability.
    Appeal by each of the several defendants from a judgment of the County Court of Schenectady county, entered in the office of the clerk of the county of Schenectady on the 2d day of July, 1889,. affirming the judgment of a justice of the peace of the city of Schenectady, in favor of the plaintiffs.
    The action was brought by the plaintiffs against the defendants,, as directors of the National Stock Owners’ Mutual Benefit and1 Indemnity Society, to recover upon a certificate of insurance issued by said society, containing the following, among other provisions:

      “ Therefore, the said ‘ National Stock Owners’ Mutual .Benefit and Indemnity Society ’ agrees that upon receiving satisfactory proof of the death of the «aid described horse by death, other than by willful neglect, between February 3, 1888, and February 3, 1889, at noon, to pay to said Greene & Yeeder, his heirs or assigns, the net proceeds of an assessment of one per cent to be levied upon all, as members of Glass A, not to exceed the sum of one hundred dollars, to be assessed for, according to the constitution and by-laws,, within sixty days after said proof of death having been filed with the secretary and approved and accepted by this society, providing,, however, that the said death occurs while the said Greene & Yeeder is a member of this society, and is not in arrears for any dues or assessments made upon him at the time of said death, or that this certificate has not been previously canceled, and also provided the said member conforms to the following conditions and agreements: * * *

      “ Second. An assessment of not more than one per cent upon the benefit asked by each member will be made when it shall be necessary to raise funds to pay losses, and for no other purpose. As this society is purely mutual the payment of assessments is not obligatory, but is the voluntary contributions of its members. * * *
    “ Fifth. That the holder of this certificate agrees that a failure on his or her part to pay any assessment required by the constitution and by-laws forfeits all rights which he or she may have acquired as a holder of this certificate; and also agrees that the society may cancel this certificate and retain any and all moneys that may have been paid to them thereon. * * *
    “ Twelfth. It is distinctly understood and agreed that the directors of this society, either individually or as a body, shall not assume any liabilities, personally, by reason of the issuance of this certificate.”

      Edwcurd D. Gutter and A. P. Strong, for the appellants.

      Edwin G. Angle, for the respondents.
   LANDON, J.:

• The policy provides that “the directors of this society, either individually or as a body, shall not assume any liabilities personally 'by reason of the issuance of this certificate.”

The statute (Laws of 1875, § 8, chap. 267) provides that “ the directors * * * shall be jointly or severally liable for all debts due from said society or corporation, contracted while they are trustees,” etc.

The provision of the policy is repugnant to the provision of the statute, and is void upon grounds of public policy. The statute forms part of the charter of the corporation and the corporation can make no contract which its charter forbids. ' (Abbott v. Johnstown H. R. Co., 80 N. Y., 27.)

The corporation has power to make contracts for itself in aid of its business, but it has no power to make contracts in behalf of its directors. Presumably the directors are competent to make their own contracts. This conti'act is not for the benefit of the corporation, and it is not a contract between the plaintiffs and the defendants; nor is it one like Lawrence v. Fox (20 N. Y., 268), in which the benefit which one party might secure to himself he can secure to another; for the corporation could not secure a like benefit for itself. Sound public policy requires that a corporation shall make no contract nullifying, as to its directors, the provisions of the organic act as to their personal liability. Otherwise a corporation might do business, not under the conditions prescribed by the statute to secure upright dealing, but under opposite conditions, and thus put at naught the wholesome restraints imposed by the sovereign power.

It is not necessary to decide that the directors could not by direct contract with the plaintiffs protect themselves from personal liability. This contract was made while the defendants were trustees, and although it did not mature until after their successors were appointed, yet when it did mature it was the debt which was contracted while defendants were trustees. The policy promised payment to plaintiffs of “ the net proceeds of an assessment of one per cent to be levied upon all, as members of class A, not to exceed the sum of $100, to be assessed for according to the constitution and by-laws.” No such “net proceeds of an assessment” have been paid.' The reasonable construction of the policy is that such an assessment would produce something.

The provision in the policy, “As this society is purely mutual the payment of assessments is not obligatory, but is the voluntary contributions of its members,” was not strictly true. Every policyholder had to pay his assessment or forfeit his policy. Such a penalty for non-payment might prove adequate to procure payment. The plaintiffs were entitled to recover something. It appears that an assessment was made; if there is any error, it is that it was not shown that the net proceeds of the assessment amounted to $100. Whether that error affects the merits we do not know; and we ought not, -in order to promote the success of a scheme of insurance like this, to be astute in inquiring, and hence, under the rule applicable to appeals' from Justices’ Courts, we may affirm the judgment. .(Code Civil Pro., § 3063.)

Mayham, J., concurred.

Learned, P. J.

(dissenting):

This is an appeal from a judgment of the County Court affirming .a judgment recovered by the plaintiffs before a justice of the peace.

The action is brought against the defendants as directors or managers of the “ National Stock Owners’ Mutual Benefit and Indemnity Society,” upon a certain certificate or guaranty policy of insurance issued to plaintiffs by said society, by which it insured the life of a -certain bay horse, “ Tom,” belonging to plaintiffs.

The agreement of the certificate is to pay plaintiffs the proceeds •of an assessment of one per cent to be levied on all as members of Class A, not to exceed $100.

One of the provisions of the certificate is as follows: “As this .society is purely mutual, the payment of assessments is not obligatory, but is the voluntary contributions of its members.” Another is, that the society agrees to deposit in the post-office a notice of the assessment directed to each certificate-holder, etc.

The last provision is: “ It is distinctly understood that the directors of this society, either individually or as a body, shall not assume any liabilities personally by reason of the issuance of this certificate.” The society was incorporated under chapter 267, Laws of 1875, and the alleged liability is under section 8.

The first question arises on the provision last cited, declaring that the directors shall not assume any personal liability by reason of the ■certificate. I see no reason to doubt the validity of that provision. It was competent for the plaintiffs, themselves members of this-mutual society, to make such agreement as they pleased and to waive-any right given to them by the statute. (Phyfe v. Eimer, 45 N. Y., 102.)

This is not a question as to the validity or invalidity of by-laws. It is simply a question whether a person- may not waive a right which is given him by statute. The liability imposed on directors by the statute is for the benefit solely of persons contracting-with the company. No rule of public policy is violated when such, persons waive this liability. The plaintiffs could release the-defendants from liability after the death of the horse. We see noréason why they might not before.

The case of Richardson v. Thurber (104 N. Y., 606) has no-application. That simply decided that the neglect in an assignment to provide for the statutory preference to employees did not make the • assignment void, but that the statute qualified the assignment.. It is not suggested that an employee could never voluntarily release-his right to a preference.

But it is said by plaintiffs that it was the duty of the society to-make an assessment, and that the defendants are liable, under section 8, because this was not done. Passing the previous objection (which applies to this agreement also) I may notice that the- alleged liability under section 8 is for “debts,” payable one year from the-time they shall have been contracted. These words do not include-the obligation o the society to make an assessment. That is a duty,, not a debt. It is not a thing payable, but a thing to be performed. The complaint does not charge defendants with neglecting to perform the duty of making an assessment, but with the failure to pay a debt of the society arising on the certificate of insurance and the death of the horse.

As a matter of fact, it is testified that there was an assessment in March, 1885, after proof of the loss of the horse; though the-plaintiffs do not remember receiving notice thereof. Further, if the defendants neglected their duty in making this assessment, it does • not appear that any damage was caused; for it is especially provided in the certificate of insurance that “the payment of assessments is. not obligatory, but is the voluntary contributions of its members.”' It is impossible to infer, therefore, that the plaintiffs have suffered' any loss. They themselves can request the members to contribute to compensate plaintiffs for their loss. The assessment, if made,, would be nothing more than what they can do. By the terms of the certificate the assessment imposed no legal duty on the members.. The truth is that the parties to the certificate seem to have intended that no one should be liable for anything; and they have succeeded,, except as to the cost of litigation.

There are many other matters discussed at length, and with ability,, by the counsel on each side. But it seems to us unnecessary, in the-view we have taken, to express any opinion on such matters.

I think the judgments of the County Court and of the justice of the peace should be reversed, with costs against plaintiffs.

Judgment affirmed, with costs.


author: Mayham, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HENRY L. GREGG, Appellant.

      Indictment — when it does not state “ the act constituting tfue crime ” — a mayor of a city, when not a police oficial within the meaning of chapter 163 of 1890 — when not required to take the test oath.

    An indictment, purporting to charge a violation of sections 1 and 3 of chapter 163-of 1890, providing that it shall he unlawful for any police official in the several cities of this State “to he either directly or indirectly interested in the manufacture or sale of spirituous or malt liquors,” alleged that the mayor of the city of Hudson did “willfully, fraudulently and intentionally engage in the manufacture and sale of spirituous liquors ” while holding the office of mayor of said city, and acting as such, and as head of the police under the provisions of the city charter.
    On the hearing of a demurrer interposed to such indictment:

      Held, that the allegation that the defendant did “willfully, fraudulently and intentionally engage in the manufacture and sale of spirituous liquors,” was not a compliance with section 275 of the Code of Criminal Procedure, requiring that {in indictment must contain “a plain and concise statement of'the act constituting the crime. ”
    That the allegation that the defendant did “ engage in the manufacture and sale of spirituous liquors,” did not constitute a charge that he was, “ either directly or indirectly, interested in the manufacture or sale of spirituous or malt liquors” within the provisions of sections 1 and 3 of chapter 163 of the Laws of 1890.

      The charter of the city of Hudson specified, among other duties of the mayor, that “as the head of the police of the city he shall preserve peace and good order therein.”

      Meld, that this provision did not make him a police official within the meaning of sections 1 and 3 of chapter 163 of 1890.
    That -the mayor of Hudson was not required to take the test oath prescribed by section 3 of chapter 163 of 1890, not being one of the officers designated in that section.
    Appeal by tbe defendant Henry L. Gregg from an order made at a Court of Sessions of the county of Columbia, June 18, 1890, •overruling a demurrer to the indictment against the defendant, and from a judgment of conviction of tbe crime of violating section 1 of chapter 163 of the Laws 1890, rendered against him by said Court of Sessions on tbe 18th day of June, 1890.
    Tbe indictment charged that tbe said Henry L. Gregg did heretofore, and previous to tbe finding of this indictment, at tbe city of Hudson, in this county, willfully, fraudulently and intentionally engage in tbe manufacture and sale of spirituous liquors and malt liquors, ale, wine and beer, while holding tbe office of mayor of tbe city of Hudson, and under the provisions of chapter J68 of tbe Laws of 1872, as amended, known as tbe city charter, and acting as such, and as bead of police under tbe provisions of said charter, and while executing tbe functions of said office of mayor and head of police, without taking, signing and filing tbe oath prescribed by section 3 of said chapter 163 of the Laws of 1890, as required by said act, he, tbe said Henry L. Gregg having been elected to said office of mayor in December, 1888, to enter upon tbe discharge of bis duties January 1, 1889, and to continue and including December 31,1890.
    To this indictment tbe defendant, on being arraigned, filed a demurrer, specifying four grounds :

      First. That it appears on tbe face of said indictment that tbe same does not conform to tbe requirements of section 276 of tbe Code of Criminal Procedure, in that it does not contain a plain and concise statement of the act constituting the crime.

      Second. That it appears on tbe face of tbe indictment that it does not conform to tbe requirements of section 276 of the Code of Criminal Procedure, in that it does not set forth tbe act charged as an offense.

      Third. That it appears on the face of the indictment that the act or omission charged as a crime is not plainly and concisely set forth therein as provided in subdivision 6 of section 28é of the Code of Criminal Procedure.

      Fourth. That it appears on' the face of the indictment that the facts stated therein do not constitute a crime.
    The court overruled the demurrer, and no plea having been entered by the defendant, a judgment of conviction and sentence was pronounced and entered by the court against the defendant, from which the defendant appeals to this court.

      Ma/rh Pants and Gadman c& Peak, for the appellant.

      A. V. L. Oochran, district attorney, for the respondent.
   Mayham, J.:

The technical, and in many instances prolix, forms of pleading in criminal actions or proceedings existing before the enactment of the Code of Criminal Procedure were, by that instrument, abolished, and the forms of pleadings in criminal actions and the rules by which their sufficiency is to be determined is now regulated by that enactment. (Code of Crim. Pro., § 273.)

Put this does not leave the pleader in criminal actions without well-defined rules by which he must be governed, and the sufficiency of his pleading determined.

Section 275 of the Code of Criminal Procedure prescribes what, an indictment must contain.

First. “ The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties.”

Second. A plain and concise statement of the act constituting the ’ crime, and section 276 undertakes, as a part of the legislative enactment, to prescribe a general form by which the pleader may be governed in conforming to the rules prescribed in and by section 275, and it" provides that if it be a misdemeanor, having no general name, the pleader must insert a brief description of it as given by the statute, and add “ committed as follows,” and after giving the name, time and place of the alleged offender and offense, the pleader is directed to “ set forth the act charged as an offense.”

If these are the rules by which the sufficiency of pleading is to be ■determined, as provided by section 273, we must compare the indictment in these cases with them to determine whether it substantially ■conforms to these requirements.

The indictment to which the defendant interposes this demurrer purports to be for violations by the defendant of sections 1 and 3 of chapter 163 of the Laws of 1890. Section 1 of that act provides that: It shall be unlawful for any excise commissioner, excise inspector, police commissioner, police inspector, captain, sergeant, roundsman, patrolman, or other police officials, or subordinate of .any police department, or any commissioner of excise or inspector of excise in the several villages, towns and cities of this State to be either directly or indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer. * * *

The defendant presents three principal questions by this demurrer, ■each of which seem worthy of careful consideration:

First. Does the indictment set forth the act constituting the crime with sufficient definiteness to answer the requirements of section 275 and section 276 of the Code of Criminal Procedure?

Second. Does the indictment charge a crime under the provisions of section 1 of chapter 168 of the Laws of 1890?

Third. Is the defendant, as mayor of the city and ex officio the “ head of police ” of the city of Hudson, embraced within the description of police officials as referred to in section 1 of chapter 163, Laws of 1890 ?

We think the first question propounded above must be answered in the negative. The indictment charges, in general terms, that the defendant “ willfully, fraudulently and intentionally engaged in the manufacture and sale,” etc.

No other and more definite designation of the act charged is given in the indictment. There is no concise statement in the indictment of the act constituting the crime, as required by subdivision 2 of section 275 of the Code of Criminal Procedure; nor does the indictment anywhere set forth the act charged as an offense as clearly required by the form prescribed by the legislature in section 276 of the Code. These requirements are clearly embraced in the Criminal Code and must be considered in determining the sufficiency of an indictment.

The object of a statement of the act charged as criminal in an indictment is to inform the accused of the exact nature of the charge made against him. That is the primary object of all pleading in criminal as well as civil proceedings.

It is not enough to allege that the accused committed murder, without alleging the name of the victim, or to charge burglary or forgery without stating what was burglarized, or in what the forgery consisted; nor is it sufficient to allege in general terms, under section 1 of chapter 163 of the Laws of 1890, that the defendant “ fraudulently and intentionally engaged in the manufacture and sale of spirituous,” etc, without any statement of the time, place or manner.

But we are not left in this case to a pioneer construction of these sections of the Criminal Code when applid to indictments of this character. This question was fully considered in an indictment, not distinguishable in principle from this, in the case of the People v. Burns (53 Hun, 278), where Ingalls, J., uses this language: u The' omission of such statement in the indictmeht constituted a material defect, as without it the defendant would he liable to surprise upon the trial and quite likely to be prejudiced by such omission.. The defect, therefore, must be regarded as matter of substance, and not merely of form, as it was the right of the defendant to be informed, not merely of the crime charged, but also of the act which constituted it,” and held that the indictment was fatally defective for that reason. This is in accordance with the rule laid down in People v. Dumar (106 N. Y., 509, 510).

The next inquiry is, does the indictment charge a crime under the provisions of section 1 of chapter 163 of the Laws, of 1890? The indictment charges that the defendant did willfully, fraudulently and intentionally engage in the manufacture and sale of liquors while holding the office of mayor, etc., hut. does not charge, in terms, that he is “ directly or indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer.” The allegation of the indictment might be strictly true, and yet the defendant might in no way be interested in the manufacture or sale, within the language of the statute; he might be a common laborer in a brewery or distillery, or an engineer running a distillery, and thus engaged in the manufacture of distilled or fermented liquors, and yet be in no way imterested in its manufacture; and the same might be said of an agent employed by the month tq sell, or a teamster-employed under a salary for its delivery, and yet 'having no interest in the business; and it could not be said that he was interested within the language of this act, because, in construing a penal statute, we must deal with the language employed by the legislature, and are not at liberty to import into it other language for the purpose of broadening its signification.

It must be construed strictly, at the samé time giving full force and effect to the language actually employed by the legislature. It is true that words used in a statute need not in all cases be used in an indictment. But the legislature, in the Criminal Code, have furnished a rule which should be followed. Section 283 of the Code of Criminal Procedure, upon the subject, provides as follows; Words used in a statute to define a crime need not be strictly pursued in an indictment, but other words conveying the same meaning may be used. But we have seen that the word “ engage ” used in the indictment does not convey the same meaning as the word “interested” employed in the statute. We think, for this reason, that the indictment in this particular does not charge the commission of a crime under section 1 of chapter 163, Laws of 1890.

In the People v. Dumar (supra) the court says: “ If there was no accusation of a crime, the paper, however formal in other respects, would not be an indictment.”

It is quite true, as claimed by the learned district attorney, that a demurrer to an indictment is not permitted for imperfections of form, and upon this subject we are referred to the ease of the People v. Clement (107 N. Y., 205), where the court says: “The Code of Criminal Procedure enumerates the grounds upon which a demurrer may be interposed (§ 323), and does not permit a demurrer for imperfections in the form of the allegations, but, on the contrary, section 285 declares that no indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” The soundness of this proposition, or the authoritative utterance of the Court of Appeals cannot be questioned. But the objections we have discussed do not relate to matters of form, but, as we think, relate to the substantial rights of the defendant.

Tbe third and last proposition which we are called upon to consider is, whether the defendant comes within the list of officials named in section 1 of chapter 163 of the Laws of 1890.

The charter of the city of Hudson makes the mayor a member of the common council, and, when present, its presiding officer. Section 15 of the charter (Laws of 1872, chap. 468, § 15) provides as follows: “As the head of the police of the city he shall preserve peace and good order therein.” This is the only provision of the charter that we have been able to find that in any way connects him with the police, except that by the same section he has power to remove any policeman. Does this provision make him a police official within the meaning of section 1 of chapter 163 of the Laws of 1890 ? We think not. He certainly is not police commissioner, police inspector, captain, sergeant, roundsman, patrolman. Does he come within the other designation — other police o fficial or subordinate of any police department? We think not. As chief executive officer of the city the mayor is ordinarily invested with authority of heading the police, or giving directions to the police force, for the purpose of preserving order and maintaining peace, but in no ordinary acceptation of that term can he be regarded as a police official; and we think it would be doing violence to the ordinary meaning of the term, as well as to the intention of the legislature, in the absence of an express declaration of legislative intent, to hold that the mayor of Hudson is one of the police officials of that city.

If the legislature had intended to make the mayor a constituent part of the police, his name would have preceded that of police commissioner instead of leaving it to be spelled or guessed out of the term “police official,” and named in connection with subordinates to the police department.

We find no rule of construction that would justify us in holding that the mayor is a police official, when he is nowhere expressly designated as such, when such construction would make him amenable to the provisions of a criminal or penal statute.

“It is a well-established rule of law that statutes which create criminal offenses are to receive a strict, and not a liberal, construction, and they should not be enlarged by interpretation beyond their fair meaning and import.” (Sherwin v. People, 100 N. Y., 361, 362.) If we are right in this view, then the major of Hudson was not required to take the test oath prescribed by section 3 of chapter 163 of the Laws of 1890, as he was not one of the officers designated in that section.

The judgment of the Court of Sessions of Columbia County overruling the defendant’s demurrer to the indictment, and the conviction thereon, must be reversed, and the defendant must have judgment on the demurrer.

Learned, P. J., and Landon, J., concurred.

Judgment of Court of Sessions reversed and judgment for defendant on demurrer.


author: Landon, J.:

text:
    DAVID H. HARVEY and CHARLES G. EDDY, Respondents, v. EDWARD M. WALKER, Appellant, Impleaded with CHARLES F. WALKER.

      Denial by defendants, upon information and belief, that they we partners — hearsay evidence as to a pwtnership — use of words “ & Go.”

    In an action brought in a justice’s court to recover the value of goods sold and delivered to the defendants, the complaint alleged that the defendants were copartners and that the plaintiffs sold and delivered goods to the defendants as copartners. The defendants answered separately, and each denied, upon information and belief, each and every allegation contained in the cause of action set forth in the complaint. Plaintiffs’ counsel asked that the answers be stricken out and be treated as nullities, as the defendants could not deny, upon information and belief, matters within their personal knowledge, which request the justice granted and gave judgment for the plaintiffs upon the evidence given before him.

      Held, that the court erred in granting the motion to strike out the answers.
    That the allegation of the partnership of the defendants was an allegation requisite to the cause of action, and, therefore, was covered by the denial.
    That the admission of testimony that one of the defendants stated to one of the plaintiffs that one Walker, the other defendant, was his partner, was inadmissible and hearsay as to such other partner, and that it was improperly received in evidence as against him.
    That evidence to the effect that one of the defendants used the words “& Co.” after his name, and represented that the other defendant was his partner, was also incompetent.
    Appeal by the defendant Edward M. Walker from a judgment ■of the County Court of Rensselaer county, entered in the office of the clerk of the county of Rensselaer on the 27th day of May, 1890, affirming a judgment of the Justices’ Court of the city of Troy.
    The action was brought in the Justices’ Court of the city of Troy, by which judgment was rendered on January 22, 1890, in favor of the plaintiffs.
    The plaintiffs, in a verified complaint, set forth three causes of action against the defendants for goods sold and delivered to the defendants. These causes of action are separately set forth in three separate paragraphs, numbered first, second and third. The first paragraph alleges that the defendants were copartners, etc., and that the plaintiffs sold and delivered goods to the defendants as copartners, •etc. The second alleges that ITiram T. Whited sold and delivered to defendants, as copartners, certain other goods, etc., and assigned the demand to plaintiffs. The tim’d alleges that Truman E. Ingalls •sold and delivered other goods to defendants as copartners, etc., and assigned the demand to plaintiffs.
    The defendants answered separately and denied, upon information and belief, each and every allegation contained in the pretended first cause of action set forth in said complaint, and in like form separately as to the second and third causes of action. Each answer was verified in the usual form. After the issue was joined, plaintiffs’ counsel asked the court to strike out the answers of both defendants and treat them as nullities, upon the ground that the answers were not in the form permitted by the Code, since the defendants could not deny upon information and belief matters within their personal knowledge, and that the verification of such an answer is contrary to the Code. The justice reserved his decision upon the motion, but afterwards treated the answers as nullities, and upon the •evidence taken upon the trial rendered judgment for the plaintiffs. From this judgment the defendant Edward M. Walker appealed.

      H. JD. Bailey, for the appellant.

      J. A. Gipperly, for the respondents.
   Landon, J.:

A denial in a verified answer made upon information and belief, is good. (Bennett v. Leeds Manfg. Co., 110 N. Y., 150.) The plaintiffs insist that the denial went to the allegations contained in the first cause of action, and that the allegation of the partnership of the defendants was not any allegation requisite to the cause of action, and, therefore, is not covered by the denial. The answer evidently goes to the allegations of the paragraphs of the complaint, as numbered, and thus covers the allegation of partnership. Besides the allegation of each paragraph of the complaint is that the goods were sold to the defendants as partners, and thus a partnership in their purchase, if not general, was an essential part of plaintiffs’ case. The court erred, therefore, in disregarding the answers, and that error requires a reversal, unless the plaintiffs proved tlieir case by evidence admissible, notwithstanding the objections thereto' interposed by the defendants.

The main question of fact seems to have been whether the appellant Edward M. Walker was a partner of his co-defendant., Charles G. Eddy testified that he sold the goods to C. F: Walker,, and that C. E. Walker, prior to the sale, told him that Edward Mi-Walker was his partner. This was objected to as inadmissible and hearsay as against Edward M. Walker. It clearly was so, and it. was error- to overrule the objection and receive the testimony. There was abundant evidence that O. F. Walker used the name of O. F. Walker & Co. and represented that Edward M. Walker was liis partner. This evidence was received notwithstanding appellant’s objections. It was not admissible. There is slight, if any, evidence competent against Edward M. Walker showing that he was such partner.

The judgment against him should be reversed, with costs.

Learned, P. J., and jVÍayham, L, concurred.

Judgment against Edward JVI. Walker reversed, with costs..


text:
    LEVI J. DUEL, Respondent, v. BYRON H. SYKES and MICHAEL J. HAYES, Appellants.

      Justice of the peace — effect of an adjournment before joining issue.

    Where both parties to an action in a Justice’s Court appear upon the return of the summons, an issue must be joined before an adjournment, unless the parties otherwise agree, or the defendant refuses or neglects to plead; and in case the justice adjourns the action without issue joined, he loses jurisdiction thereof.
    Appeal by the defendants from a judgment of the County Court •of Washington county, entered in the office of the clerk of the •county of Washington on the 15th day of July, 1890, confirming a judgment of a justice of the peace in favor of the plaintiff.
    The action was brought to recover the price of a calf, which the ■defendants agreed to purchase of the plaintiff and to pay him therefor three and one-half cents per pound upon delivery.

      J. B. MeGormieTc, for the appellants.

      James White, for the respondent.
   Landon, J.:

Upon the return of the summons the defendants specially appeared by counsel and took objections to the jurisdiction. The plaintiff, without pleading, asked the justice to hold the case open until he •could obtain counsel, twenty-five miles away. Defendants objected, urging that the court had no power to hold the case open or adjourn before issue joined. The court held the case open, or adjourned it, for two days. The defendants upon the adjourned day objected that the case was discontinued by the adjournment. The objection was overruled, issue was joined and trial had. The defendants now urge that the case was discontinued by the adjournment and that the court had no further jurisdiction of it. Section 2934, Code of Civil Procedure, provides that “where both parties appear upon the return of the summons, an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead.” Section 2959 provides that, “ at the time of the return of a summons or of the joinder of issue without process, but at no other time, the justice may, in his discretion and upon his own motion, .adjourn the trial of the action not more than eight days, unless the defendant has been arrested j in which case no such adjournment shall be made.”

"We think these two sections must be construed so as to harmonize with each other, and hence conclude that when both parties appear issue must be joined before adjournment, unless they otherwise agree or the defendant refuses or neglects to plead. The section last cited is in title 4 under the caption “ Proceedings between the joinder of issue and the trial,” thus indicating no intention to make an exception to the rule prescribed in section 2934, which is in the preceding title of the same chapter. We are obliged to reverse the judgment. By the unauthorized adjournment the justice lost jurisdiction. (Peck v. Andrews, 32 Barb., 445.)

The judgment is reversed, with costs.

Learned, P. J., and Math am, J., concurred.

Judgment reversed, with costs.