author: . Herrick, J.:

text:
    ALMON H. MUSSEN, Appellant, v. THE AUSABLE GRANITE WORKS, Respondent, Impleaded with Others, Defendants.

      Jurisdiction of the Supreme Gourt cannot he limited — section 1103 of chapter 410 of 1882, giving the courts of the first district exclusive jurisdiction,isunconstitutional.

    The Constitution of the State of New York (art. 6, § 6) provides that “there shall be the existing Supreme Court, with general jurisdiction in law and equity; ” and, by section 1103 of chapter 410 of the Laws of 1882, it is provided that “ the Supreme Court in the first judicial district, the Court of Common Pleas and the Superior Court shall have exclusive jurisdiction of all actions or special proceedings wherein the mayor, aldermen and commonalty thereof (New York city) are made a party defendant.”
    An action was brought in the fourth judicial district to enforce a lien, given by chapter 315 of the Laws of 1878, upon funds in the treasury of the city of New York, alleged to belong to the Ausable Granite Works, to which the city of New York was made a party defendant.
    The Ausable Granite Works demurred upon the ground that the Supreme and other courts of the first district had exclusive jurisdiction of the action.

      Held, that the jurisdiction of the Supreme Court was as wide as the boundaries of the State, and that each part of it had all the powers of the court.
    That the legislature had no power to qualify the jurisdiction of the court, and that the section of the act, attempting to do so by limiting the territory within which a suitor might go into court, was unconstitutional.
    That the word “jurisdiction,” as used in the Constitution, meant jurisdiction of every kind, the person, subject-matter and territory.
    That, among the powers always possessed by the court was the power, in a proper case, to change the place of trial.
    That the section in question prevented this, and was, in that respect, in derogation of the power granted, and confirmed to the court by the Constitution of the State.
    Appeal by the plaintiff Almon H. Mussen from a judgment of the Supreme Court, entered in the office of the clerk of the county of Essex on the 26th day of November, 1891, sustaining a demurrer of the defendant, the Ausable Granite Works, to the complaint and granting the defendant final judgment for costs, with notice of an intention to bring up for review upon the appeal an order, dated the 27th day of October, 1891, upon which said judgment was entered.

      A. W. Boynton, for the appellant.

      F. A. Rowe, for the respondent.
   . Herrick, J.:

The plaintiff and appellant brings this action to enforce a lien given by chapter 315 of the Laws of 1818 against certain funds in the treasury of the city of New York, alleged to be due and belonging to the defendant and respondent, the Ausable Granite Works. The City of New York is made a party defendant, and is served with a summons and notice of the object of the action. The venue of the action is laid in Essex county, in the fourth judicial district. The respondent, “The Ausable Granite Works,” demurred to the complaint on the grounds that the Supreme Court in the fourth judicial district has no jurisdiction in this action; that the Supreme Court in the first judicial district, the Court of Common Pleas and the Superior Court in and for the city and county of New York, have exclusive jurisdiction of this action, and that the complaint does not state facts sufficient to constitute a cause of action.

The demurrer was siistained in the court below on the ground that the Supreme Court has no jurisdiction.

The demurrer as to jurisdiction and the decision in the court below are based on section 1103, chapter 410, Laws of 1882, reading as follows: “ The Supreme Court in the first judicial district, the Court of Common Pleas and the Superior Court shall have exclusive jurisdiction of all actions or special proceedings wherein the mayor, aldermen and commonalty thereof are made a party defendant.”

The Constitution (art. 6, § 6) provides that “ There shall be the existing Supreme Court with general jurisdiction in law and equity.” That is a provision as to the Supreme Court as a whole. Its jurisdiction is as wide as the boundaries of the State, and every person, natural or artificial, within such boundaries is subject to that jurisdiction.

For convenience in the transaction of business the State has been divided up into districts, but the court in each district is the Supreme Court of the State, and each has the same power, no more or less than the other; it is the power and jurisdiction of the Supreme Court, not the Supreme Court of the first judicial district, or the fourth judicial district, but the Supreme Court of the State.

The jurisdiction is given to each and every part of the Supreme Court, each possessing all the power granted to the court; and to confine jurisdiction in certain classes of cases to one part of tlie court is to deprive the rest of the court of its jurisdiction, or to limit or qualify it. The jurisdiction is general, unlimited and unqualified, and the legislature has no power to limit or qualify it. (People ex rel. Hill v. Supervisors, 49 Hun, 481; People ex rel. Mayor, etc., v. Nichols, 79 N. Y., 582.) And any act of the legislature which deprives the court of the .jurisdiction it had at the time of the adoption of the Constitution, or limits or qualifies it, is unconstitutional and void. (Alexander v. Bennett, 60 N. Y., 204; City of Brooklyn v. Mayor, etc., of New York, 25 Hun, 612; Popfinger v. Yutte, 102 N. Y., 42; Hutkoff v. Demorest, 103 id., 380.) If the act in question is valid, the Supreme Court in each district or county can be given exclusive jurisdiction in cases where the defendant is a resident of such district or county; if exclusive jurisdiction can be given in one class of cases it can in any, and thus the court be .stripped largely of the powers heretofore exercised by it, and made a court of limited and special instead of general jurisdiction.

The suitor also has rights under this section of the Constitution that cannot be taken away from him. He has a right to go into the Supreme Court anywhere for relief. To apply to the court, not to a particular member or territorial division of it. He cannot by legislative enactment be compelled to go before a particular member of it or to a specific county, although the court in the exercise of its power may, in furtherance of justice, subsequently send him there, but he has a right to apply to it for relief -wherever within the limits of the State he finds it exercising its functions. Yet if this law is upheld, there is nothing to prevent the legislature to compel any resident of the State, no matter where he lives, if he seeks relief against a resident of New York city, because of some transaction that took place upon the St. Lawrence, to go to the first judicial disdrict in the county of New York for it, for if they can compel suits against a corporation located in the first judicial district to be brought there, they can also compel suits against natural persons.

If the act in question is to be regarded simply as fixing the venue in the kind of actions in question, it is open to the same objection. The term “jurisdiction,” as used in the Constitution I think means “jurisdiction” of every kind that a court can possess, of the person, subject-matter, territorial, and generally the power of tlie court in the discharge of its judicial duties. Among the powers that have been exercised by courts of general jurisdiction from time immemorial has been the power to change the place of trial of an action, not involving real property, in furtherance of justice. It was one of the powers exercised by the then existing Supreme Court at the time of the adoption of section 6, article 6 of the Constitution.

The statute in question strips the court of that power; it confines the trial of actions to which the city of New York is made a party to the county of New York, and prevents the court from exercising its power to change the place of trial, and is in that regard in derogation of the powers granted and confirmed to the court by the Constitution.

For these reasons I think the court below erred, and that the judgment and order appealed from should be reversed, with costs and printing disbursements in the court below and of this appeal. The defendant and respondent to have leave to answer upon the payment of such costs and disbursements. ■

Putnam, J., concurred; Mayham, P. J., not sitting.

Judgment and order reversed, with costs and disbursements, with leave for the defendant to answer on payment of costs.


source: Caselaw Access Project

author: Putnam, J.:

license: Public Domain

text:
    CHARLES C. FOLLMER, Respondent, v. WILLIAM M. FROMMEL, Appellant, Impleaded with Another, Defendant.

      Pleading — a partnership note — general denial — a defendant may show that the note loas given for an individual debt of one partner — estoppel.

    In an action brought against the firm of Frommel & McKinstry upon a note the complaint alleged that,on September twenty-ninth,the defendants,as copartners, made and delivered to the plaintiff their note. The answer of Frommel, who alone defended, was a general denial. Upon the trial it appeared that the partnership was formed October first. Evidence was offered by the defendant to show that the note was given by McKinstry in the firm name for a past-due indebtedness of McKinstry to the plaintiff, which was excluded.

      Held, that this evidence was competent under a general denial.
    That proof of the execution of the note by McKinstry raised the presumption that it was firm paper, but that Frommel had a right to rebut that presumption by showing that it was an act of one partner for his own benefit, and, therefore, not the act of the firm, but in fraud of its rights.
    That the fact that, upon the trial of the action before a referee, the defendant procured an adjournment, and obtained an order allowing him to set up as a special defense that McKinstry gave the note for his individual past-due debt, and that thereafter the defendant failed to amend his answer by pleading the defense, did not estop him from urging that the referee erred in excluding evidence of this defense upon the subsequent trial, there being no evidence that the plaintiff had been influenced or injured by the defendant’s failure to amend.
    Appeal by tbe defendant William M. Frommel from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Warren county on tbe 24th day of October, 1891, upon a recovery by tbe plaintiff of $215.40 and interest, after a trial before a referee.

      J. II. Bam, for tbe appellant.

      Charles B. Patterson, for tbe respondent.
   Putnam, J.:

This action is brought against defendants as copartners on a note purporting to be made by tbe firm, tbe defendant Frommel only defending.

Tbe plaintiff alleges the copartnership of the defendants, and that they, on or about September 29, 1890, duly made, executed and delivered to tbe plaintiff tbe note in suit. Tbe defendant Frommel, in his answer, interposed a general denial. On the trial it was shown that tbe note, which was executed by tbe defendant McKinstry, was given for lumber sold September 29, 1890. The partnership was formed on October 1, 1890. The defendant then offered to show that said note was so given by McKinstry in the name of the firm for a past-due indebtedness from McKinstry to plaintiff. This evidence was objected to on the ground that it was inadmissible under the general denial contained in the answer and excluded by the referee. If this proof bad been received and made, it would clearly have constituted a defense to tbe action. Tbe law applicable to such cases, as stated in Parsons on Contracts, is quoted with approval in Union National Bank v. Underhill (102 N. Y., 340), as follows: “ Whenever a j>arty receives from any partner in payment for a debt due from that partner only, whether tbe debt be created at the time or before existing, or by way of settlement of, or security for a debt or indebtedness, an obligation of the firm in any form, the presumption • of the law is that the partner gives this and the creditor receives it in fraud of the partnership, and has consequently no demand upon them.” Hence, had the defendant made the proof offered, the presumption would have arisen that the note was given in fraud of the partnership, and unless the plaintiff could have answered that presumption he must have failed in the action.

The question then arises whether the defendant was entitled to offer such evidence under the general denial contained in his answer. The allegation in the complaint is, that on September 29, 1890, defendants, as copartners, made and delivered to plaintiff their note. Defendant denies this allegation in the complaint. The plaintiff then was bound to show the execution and delivery of the note by the copartners. He shows this presumptively by showing the execution of the firm note by McKinstry, one of the partners. The note being madé by a partner in the firm name is presumed, in the first instance, to have been made on account of the firm business. But this is only a presumption. The defendant may controvert such a presumption, and I think can do so under a general denial. The question before the jury was, was the note in suit executed by the firm ? To award judgment for the plaintiff the referee must find that it was. The plaintiff must show by competent testimony that the paper was executed by the partnership. How does he show it ? By showing the execution by one copartner in the name of the firm, which raises the presumption that it was a firm paper. But the reason that one partner can bind the firm and make contracts in the name of the firm is, that each partner is a general agent of the copartnership in firm business. But, as held in Farmers and Mechanics' Bank v. Butchers and Drovers' Bank (16 N. Y., 125); and in The Union National Bank v. Underhill (102 id., 340), while each partner is a general agent of the firm in partnership business, and can bind the firm by making notes in such business, he has no more authority than a mere stranger to make such a note for his own accommodation or for othei-s. Therefore, when the plaintiff rested on the presumption that the note executed by McKinstry in the name of the firm was a partnership note and binding on the firm, the defendant Frommel, under a general denial, could show that McKinstry gave such note to pay Ms past-due private debt in fraud -of the firm, and that such note was void as to him. The evidence offered, if received, wouM have shown that McKinstry had no right to sign the firm name to the note in suit, and wouM have raised the presumption, being given for a private debt of McKinstry to plaintiff, that the latter knew the note was given in fraud of the firm and without authority. Hence the evidence offered was in direct contradiction of the evidence offered by the plaintiff that the note was a firm note.

If McKinstry had been Trommel’s agent and, without authority, had executed a contract or made a note in his name, defendant, being sued on such contract or note, under a general denial could have shown that he did not execute or make the contract in suit, and to establish such fact that the agent had no authority to make it in his name. (See Hier v. Grant, 47 N. Y., 278.)

Under a general denial a defendant must be allowed to controvert by evidence anything plaintiff is bound to show to establish his cause of action. Plaintiff alleges that defendants, as copartners, made the note in suit. Defendant Frommel denies this. Plaintiff must prove that the firm made the note. Frommel can show under his denial that the firm did not make it, because McKinstry, as agent of the firm, had no right to sign the firm name to the note given for his individual debt. (See Benton v. Hatch, 43 Hun, 146; Griffin v. Long Island R. R. Co., 101 N. Y., 354; 20 Abb. N. C., 342, note; Williams v. Walbridge, 3 Wend., 415.)

It is suggested that defendant having on the'trial obtained an adjournment in order to procure from the Special Term an order to amend his answer, setting up as a special defense that the note in suit was given by McKinsti-y in the firm name -to pay his individual debt, and having obtained such order, and not having availed himself of it, should be estopped from claiming that the referee erred in ■excluding the evidence so offered under the general denial.

I am unable to see how an estoppel can exist in this case. The defendant on the trial made a mistake as to the legal effect of his answer. But it is held that a party is never estopped by his admission or assertion of a legal conclusion. (Brewster v. Striker, 2 Comst., 19.) But, again, an estoppel vn pais is where an act or omission of a party has influenced another to a line of conduct or to act in a way prejudicial to Iris interest, if the party doing such act or making such admission is not prevented from retracting. The cases cited by plaintiff will illustrate this proposition. In this case the defendant proposed to amend his answer and obtained the order of the Special Term allowing him to do so on terms. He did not avail himself of the order, and afterwards aj>peared before the-referee and on the trial claimed, under the general denial, to show the facts excluded as above by the referee. The plaintiff has not acted or been influenced or injured by the proposal of defendant to-amend his answer. It does not appear that the plaintiff, in consequence of defendant’s procuring the adjournment and obtaining the order to amend, has done any act that he would not have done had such an adjournment not been had or said order not been obtained. Hence it is not a case of an estoppel.

These facts render it unnecessary to consider the question discussed by counsel whether under the general denial the defendant could properly show a want of consideration for the note in suit and also the other questions discussed by the parties.

It is suggested by respondent that the first offer of defendant, even if proper under a general denial, did not propose to prove facts sufficient to constitute a defense, and hence the objections thereto were properly sustained by the referee. As I have endeavored to show under doctrines well settled by the courts, had the evidence offered been given it would have raised the presumption that the defendant McKinstry gave, and plaintiff received, the note in suit in fraud of the partnership, and hence, as to the defendant, that said note was void.

Hence I think the referee erred in sustaining the objections to the offer of defendant, and that the judgment should be reversed, the referee discharged and a new trial granted, costs to abide the event.

Herrick, J., concurred ; Mayham, P. J., not sitting.

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


author: Herrick, J.:

text:
    THE NATIONAL BANK OF TROY, Appellant, v. MARSHALL W. SCRIVEN and Others, Respondents.

      Partnership — a general assignment by one partner — his authority — a certiflmte of acknowledgment — parol evidence — credibility of a witness.

    One partner may execute a general assignment for the firm, if duly authorized so to do by the other partner.
    Where a certificate of the acknowledgment of such an assignment fails to state anything as to the authority of the partner who executed it, the officer may testify that the partner executing it stated that he acknowledged it for the copartnership. It is not necessary that the statement as to authority should appear in the certificate.
    In an action in which the contest was as to which of two general assignments by the same firm was valid, an attorney testified that he understood that the partner executing the first assignment stated in a certain interview that he had no express authority from the other partner so to do.

      Held, that, upon cross-examination, he might be asked whether he had not been asked at the time for legal advice as to the legality of the assignments, and whether he had not said that in his opinion the first assignment was valid.
    That this was proper as going to the credibility of the witness.
    What evidence tends to impeach a witness and is competent, considered.
    Appeal by tlie plaintiff, tlie National Bank of Troy, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Rensselaer on the 23d day of July, 1891, dismissing the complaint, separately, as to the defendant Henry ~W. Smith, and as to the defendant Marshall W. Scriven, after a trial before a referee.

      Frank S. Black, for the appellant.

      Smith de Wellington for the respondent Smith.

      George B. Donna/n, for the respondent Scriven.
   Herrick, J.:

Prior to August 1, 1885, Marshall "W". Scriven and Elisha ~W. Hydorn were copartners in trade doing business under the copartnership name of M. W. Scriven & Co., at Troy, N. Y.; on that day a general assignment was made in the name of the copartnership to J. B. Hydorn for the benefit of creditors. Such assignment was executed for the copartnership by Elisha W. Hydorn, he claiming that he had authority from Scriven to make the assignment.

At the time of the assignment the firm of M. W. Scriven & Co. was indebted to the plaintiff to the amount of about fourteen thousand dollars, and in such assignment the plaintiff was made a preferred creditor of the first class by itself. J. B. Hydorn took possession under this assignment, but never filed a bond.

On the 7th of August, 188S, the said Scriven and Hydorn made a second general assignment for the benefit of creditors, executed by each partner personally to the defendant Henry W. Smith.

Smith filed a bond and took possession under this second assignment, the assignee under the first assignment giving the property up to him. Smith converted the property into money, and is now ready to distribute it. In their second assignment the plaintiff is placed in the second class of creditors with a number of others, and will apparently, if the second assignment stands, receive very little upon its claim.

The plaintiff did not know of or consent to the second assignment, and has not in any way waived its rights under the first assignment. It requested the first assignee, J. B. Hydorn, to take proceedings to enforce his title as such assignee, to discharge the duties of his trust, and to protect the rights of the plaintiff under such assignment; this he failed and refused to do, and the plaintiff, having in the meantime procured judgment upon its claim and the execution thereon being returned unsatisfied, commenced this action, in its own behalf, to enforce said first assignment, asking, among other things, “that said assignment of August first be declared valid, and be carried out so far as to pay.plaintiff’s claim in full.”

It is claimed, upon the part of the defendants and respondents, that the first assignment was not legally executed.

That a general assignment for the benefit of creditors may be legally executed by one of the members of a copartnership, of all the partnership assets, when he is f ully authorized to do so by the remaining copartner or copartners, is too well settled to require discussion. (Hooper v. Baillie et al., 118 N. Y., 413.)

In this case the assignment recites that it is an indenture made by and between Marshall ~W. Scriven and Elisha W. Hydorm copartners doing business under the firm name and style of M. "Wl Scriven & Co., and it is signed : “ Marshall W. Scriven, Elisha W. Hydorn. By Elisha W. Hydorn.”

The certificate of acknowledgment recites that Elisha W. Ilydorn and J. Bartlett Ilydorn (the assignee) came before the justice taking the acknowledgment; that the justice knew them to be the same persons mentioned and described in the foregoing instrument, and that they severally acknowledged before him that they executed the same.

The sufficiency of this certificate is challenged, because there is no statement in the certificate that Elisha W. Ilydorn was authorized to sign Scriven’s name. This I do not think necessary; if he was authorized by the firm it was sufficient. (Hooper v. Baillie, 118 N. Y., 413-416.) If he had authority to execute the assignment of the firm property, he had authority to execute it in the name of the firm and by himself, and to acknowledge it as such. (Klumpp v. Gardner, 114 N. Y., 153-160.) It appears from the testimony of the justice of the peace who took the acknowledgment that Elisha W. Ilydorn stated that he acknowledged it for the copartnership; that was a sufficient acknowledgment within the case of Hooper v. Baillie; and if the officer omitted to embody it in his certificate, that defect, if it is one, may be cured by evidence as to what did take place and as to what the acknowledgment really was. The policy of the law is to uphold the certificate when the substance is in it. (See Claffin v. Smith, 15 Abb. N. C., 241, and cases. cited; Kelly v. Calhoun, 95 U. S., 710.)

The officer taking the acknowledgment could be compelled to correct a mistake in the certificate and make it conform to the facts. (Am. and Eng. Encyclopedia of Law, 149, and cases cited.) TTis testimony as to what took place before him is uncontradieted; that, as we have seen, was a sufficient acknowledgment in behalf of the copartnership; if it was a necessary part of the certificate he could be compelled to insert it; and it now appearing in the case, it seems to me that the instrument was sufficiently acknowledged within the statute and properly executed, if, in fact, Elisha W. Ilydorn was authorized by his copartner to make an assignment for the benefit of creditors. That question was sharply contested and is the most important question in the case.

Without entering into any general discussion of the evidence, oías to what it tended to show, it seems to me that errors were committed in tlie reception and rejection of evidence bearing upon that question, for which the judgment should be reversed. As we have seen, the most important question in the case is as to whether ilydorn was authorized by Scriven to make the assignment; that question in turn depended to a large extent upon the testimony of Ilydorn, and, consequently, upon his credibility as a witness.

Upon the question of authority one Samuel Foster was called as a witness for the defendants and testified, among other things, that after the first assignment, and before the second, he had a conversation with .Elisha W. Ilydorn in reference to the first assignment, at which Mr. Scriven and others were present, and at which not only did Mr. Scriven deny that he had authorized Ilydorn to execute the assignment, but Ilydorn conceded that Scriven had not authorized him, but supposed he would not object; and also stated, after giving details of the conversation, that “there was considerable more said at that conversation to the same effect; and Mr. Smith and I, both distinctly understanding from the statement of Ilydorn and Scriven that the first assignment had been made by Ilydorn without the authority or consent of Scriven, advised the making of the second assignment, which was accordingly done.”

Upon the cross-examination the question was asked of the witness as to whether his legal- advice or opinion was there asked as to whether said second assignment was illegal and invalid as to plaintiff, because of the existence of the first, as to which he answered “ Yes.” He was then asked: “ Did you then, as an attorney at law, give as your advice or opinion that said first assignment was legal and valid, and that the second was illegal and invalid as to this plaintiff ? ” This was objected to by the defendant as incompetent, and the objection sustained. Again he was asked: “ Did you then give it as your opinion and advice as an attorney at law that an action in behalf of this plaintiff to establish the first assignment as valid, and declaring* the second assignment void, could be successfully maintained ? ” This question was also objected to by the defendants, and the objection sustained.

Several other questions of the same character and tendency were asked by the plaintiff, objected to by the defendants, and the objections sustained. The questions were asked for the purpose of affecting the credibility of the witness, and for the purpose of showing that the witness’ acts and statements were inconsistent with his-answers upon the direct-examination, and as tending to impeach his testimony given upon his direct-examination. I think the questions were competent for the purpose indicated. Acts, conduct or statements inconsistent or conflicting with the testimony of a witness on direct-examination are competent. (Homer v. Everett, 91 N. Y., 641.)

Evidence was also given to impeach Elisha W. Hydorn, and the plaintiff gave evidence to sustain him. The court limited the number of witnesses on each side. Among other witnesses called by the plaintiff was Edward J. McKenna, who was asked : “ Hid you ever hear him spoken of as to his reputation for truth and veracity ? A. No, sir. Q. Or his honesty ? A. Always considered it good ; I never heard it discussed.”

On motion of the defendants this last answer was stricken out. The witness further testified that he had known Hydorn thirteen or fourteen years; that he had heard him talked about politically; had done business with him ; knew his associates ; only knew his reputation for truth and veracity from personal knowledge ; never heard it talked about except politically. He was then asked : “ Q. From your knowledge, based upon the facts which I have questioned you about, would you believe him under oath ? ” This was objected to-by the defendants'as incompetent, and the objection was sustained.

These rulings, I think, were erroneous ; the reasons therefor are sufficiently set forth in People v. Davis (21 Wend., 309, 316) and Adams v. Greenwich Insurance Company (70 N. Y., 166, 170), without repeating them here.

For the causes herein set forth the judgment should be reversed, a new trial granted, the referee discharged, with costs to abide the event.

Putnam, J., concurred; Mayham, P. J., not sitting.

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


text:
    JOHN CARROLL, Respondent, v. JOHN LANGAN, Appellant.

      Recorder of the city of Albany — his powers are local — supplementary proceedings.

    It is provided by section 10 of chapter 150 of the Laws of 1819, as amended by section 10 of chapter 284 of the Laws of 1872, that “ the recorder of the city of Albany shall have power to do and perform all the acfs and duties that may by law, or according to the rules and practice of the Supreme Court, be done and performed by a justice of the Supreme Court at Chambers, including proceedings supplemental to execution.”

      Held, that the recorder had no power to grant an order in supplementary proceedings to be executed anywhere except within the bounds of the city of Albany.
    That his power as a Supreme Court commissioner was divested by article 14, section 8 of the Constitution of 1846.
    That section 12 of .said article, providing that all local courts established in any city shall remain with their present powers, left the Recorder’s Court a local court with merely local jurisdiction.
    That, under article 6, section 19 of said Constitution, authorizing the legislature to establish inferior local courts, it could confer upon the existing Recorder’s Court local, civil or criminal jurisdiction, and no more, and this was done by the said act of 1849.
    That the act of 1849 did not continue a power existing in the recorder, but conferred a new power upon him and his court.
    Appeal by the defendant John Langan from a judgment of the Supreme Court, entered in the office of the clerk of the county of Rensselaer on the 30th day of April, 1891, upon a recovery by the plaintiff of $400.93 and costs, after a trial before the court and a jury, at a Circuit Court held in and for Rensselaer county, with notice of an intention to bring up for review upon the appeal an order, entered in said clerk’s office on the 30th day of April.. 1891, denying a motion for a new trial.

      J. B. Zcmgcm and IZugh Beilly, for the appellant.

      John T. Norton, for the respondent.
   Putnam, J.:

Judgment was obtained by defendant in the Supreme Court against plaintiff, a resident of Rensselaer county, on February Y, 188Y, and entered in Albany county, where defendant resided. Execution was issued upon said judgment in Rensselaer county and returned unsatisfied to tlie Albany county clerk’s office. On January 15,1890, the recorder of the city of Albany made an order in said action in supplementary proceedings requiring plaintiff to appear before a referee in Rensselaer county to be examined. Plaintiff failing to appear, the recorder issued an order requiring him to show cause, at chambers, in the city of Albany, why he should not be punished as for contempt. Plaintiff appeared and objected to the jurisdiction of the recorder, who made an order adjudging him in contempt, 'under which a warrant was issued to the sheriff of Rensselaer county, by virtue of which plaintiff was arrested and imprisoned.

This action was then brought for false imprisonment. The plaintiff obtained a verdict, the court on the trial holding that the recorder had no power to make the order under which plaintiff was imprisoned. The learned judge who presided at the trial afterwards, on a motion for a new trial, examined the question involved carefully and wrote an opinion in which he adhered to his views expressed on the trial.

He held, under the authority of the case of Hayner v. James (17 N. Y., 316), that the legislature could confer upon the recorder of the city of Albany the power granted by section 10, chapter 150 of the Laws of 1819, as amended by section 10, chapter 281, Laws of 1872, to be exercised, however, only in the city of Albany. A statute conferring a similar power upon the recorder of- Troy, which was considered in the case of Hctyner v. James (supra), expressly limits the power of the recorder to act “within said city.” No such limitation is contained in the acts of 1819 and 1872 (supra), as to the recorder of Albany. But the learned justice in the court below was of opinion that such limitation is to be implied, and that the act does not extend his jurisdiction to the county of Rensselaer.

Prior to the adoption of the Constitution of 1816 the recorder of the city of Albany, by virtue of his office, was a Supreme Court commissioner, and as such exercised the powers of a judge of the Supreme Court at chambers. (See 2 R. S., m. p. 281, § 32; 279, § 18.)

The Constitution, however, article 11, section 8, abolished the office of Supreme Court commissioner and divested the recorder of his power as such conferred upon him by the former statute. (See Nash v. People, 36 N. Y., 609-615; Renard v. Hargous, 13 id., 259.)

It is true, as claimed by appellant, that tbe abrogation of the office of Supreme Court commissioner did not annihilate the powers and duties that appertain to it. These powers could be bestowed by the legislature upon other classes of officers brought into existence or permitted to exist by the Constitution, as held in Hayner v. James (supra). Therefore, the legislature could confer upon the recorder of Albany the same powers as he formerly had as a Supreme Court commissioner, except as prohibited by the Constitution.

Section 10 of the act of 1849, as amended in 1872, is as follows:

“ Section 10. The recorder of the city of Albany shall have power to do and perform all the acts and duties that may by law, or according to the rules and practice of the Supreme Court, be done and performed by a justice of the Supreme Court at chambers, including proceedings supplemental to execution.”

The question is, could and did the legislature confer, by said section, upon the recorder power to grant an order in supplementary proceedings to be executed in any part of the State outside of the city of Albany ? If the legislature could confer upon the recorder power to act beyond his local jurisdiction in supplementary proceedings, it could confer power to act in all counties of the State in other proceedings.

The Constitution of 1846 deprived the recorder of all power as a Supreme Court commissioner. The subsequent provision (art. 14, § 12), providing that all local courts established in any city or village with their .present power’s and jurisdiction should remain, left the Recorder’s Court a local coui’t with a merely local jurisdiction. The recorder no longer had the power of a Supreme Court commissioner. The Constitution of 1846 also provided that inferior courts of ci’iminal and civil jurisdiction may be established by the legislature in cities. Under this power the legislature could, in 1849, establish in the city of Albany a local court, and, doubtless, could also confer upon the existing Recorder’s Court local, civil or criminal jurisdiction. But under the Constitution it could do no more. As held in Geraty v. Reid (78 N. Y., 67): “ The only authority conferred is to establish local and inferior courts. The jurisdiction of the local court must Toe exercised within the locality, and its process cannot be executed outside of it.” And it was held in that case by the Court of Appeals that the justices of the peace in the city of Brooklyn cannot be given jurisdiction outside of the city of Brooklyn, ■under the Constitution, and that the act of the legislature considered in that case should be so construed as not to confer jurisdiction only within said city. In Landers and Others v. The Staten Island Railroad Company (53 N. Y., 450), it was held that the legislature could not confer upon the City Court of Brooklyn, a civil court, power to act where the defendant resided out of the city or was not served with process therein. And in that case it was held that the power conferred upon the legislature by the Constitution, to give further civil and criminal jurisdiction to said City Courts, meant “ local ” jurisdiction. (See, also, People ex rel. Townsend v. Porter, 90 N. Y., 68; Brandon v. Avery, 22 id., 469; Rockwell v. Raymond, 5 N. Y. Supp., 642; Hutkoff v. Demorest, 103 N. Y., 384.)

These cases, and .many others that might be cited, are authorities that the legislature, under the Constitution, could confer upon the recorder of the city of Albany in 1849 civil jurisdiction to be exercised locally, but not such jurisdiction to be exercised in other parts of the State. (See, also, the case of Hayner v. James, supra.)

It is claimed, on the part of defendant, that the acts of 1849 and 1872, above referred to, confer upon the-recorder all the powers of just/ices of the Supreme Court at chambers for the whole State; a power extending over the State of New York. That the acts of 1849 and 1872 (supra), in fact, make him a State officer, with powers at chambers only, bounded by State limits.

We think the Constitution's interpreted by the Court of Appeals in the eases above, and 'others that might be, cited, prevents the exercise of such powers by the recorder of the city of Albany. That the acts of the legislature above quoted should be deemed to confer upon the recorder powers to be exercised within the city of Albany, and not in other counties of the State. That under well-settled principles the act of 1849 should be so construed as not to confer upon the recorder powers to be exercised outside of the city. It is held that, where a statute is susceptible of two constructions, both equally reasonable, one of which will render it valid, and the other void, that the court will accept the former. (The People ex rel. Snikler v. Terry, 108 N. Y., 1.) So the power conferred on the recorder to act in proceedings supplementary to execution by the acts of 1849 and 1872 should be deemed to be a power to be exercised within this city.

But the appellant claims that the cases above cited., and similar authorities,' do not apply here, because in each of those cases the court, whose jurisdiction was questioned, was created and established after the adoption of the Constitution, while the Recorder’s Court existed prior, to the Constitution, and his powers were continued by the provisions of the Constitution that “ all local courts established in any city or village * * * shall remain, until otherwise directed by the legislature, with their present powers and jurisdictions.” The answer is, that the recorder’s powers as a Supreme Court commissioner was not continued by the above-quoted provision, being taken away from the recorder by the express language of article 14, section 8.

As above attempted to be shown, when the act of 1849 was passed, the recorder, by the Constitution itself, was divested of all power as Supreme Court commissioner, being then a mere local officer with local jurisdiction, and having no power as a justice of the Supreme Court at chambers. It makes no difference that at some former time the recorder was a Supreme Court commissioner. lie was not in 1849. The act of 1849 did not then continue an existing power in the recorder. It conferred upon him a new power. It was equivalent to the creating of a new court, and the cases above cited seem very plainly to apply.

We hence conclude that the view taken by the judge at the Special Term was correct, and that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


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    ESTHER A. MERRITT, Appellant, v. MARTIN MERRITT, Respondent.

      Ante-nuptial agreement for support — substitution of a bond — its condition — the action on the bond is at law — evidence.
    Esther A. Merritt, in 1869, entered into an ante-nuptial contract with Martin F. Merritt, who subsequently became her husband, to release all claims to his property, in consideration of receiving her support, which should be a lien upon his property. In 1883 the husband conveyed certain property to his son, who in return gave his father a bond to contribute to his mother’s support his proper share, proportioned to the amount of property which he received from his father. Other transfers were made by the father to his other children, who executed-similar bonds.
    After the death of the husband Esther A. Merritt began an action to recover from the son a definite sum, which she alleged was his pro rata share of her support since her husband’s death.

      Held, that, so far as the plaintiff was concerned, the bonds were substituted for the lien which she had under the ante-nuptial agreement, and that she had a right to enforce the conditions in them intended for her benefit.
    That it was an error to exclude from the evidence the several bonds taken by the husband from his several children, as the bonds and proof of the property received by each child would show the pro rata share to be contributed by each.
    Appeal by the plaintiff Esther A. Merritt from a judgment of the Sullivan County Court, entered in the office of the clerk of that county on the 11th day of July, 1891, dismissing the complaint in the above-entitled action, with costs, after a trial in said court before the court and a jury, at which the court directed that the complaint be dismissed, with costs.

      George H. Smith, for the appellant.

      T. F. Bush, for the respondent.
   Herrick, J.:

This action was brought in the County Court upon the following state of facts: On the 8th day of May, 1869, the plaintiff, whose maiden name was Esther A. Gfillet, entered into an ante-nuptial contract with Martin F. Merritt, the defendant’s father, by which in case of their inter-marriage the plaintiff agreed to release all her claim to dower or third interest in the property of said Martin F. Merritt, both real and personal; and in consideration thereof the plaintiff was to receive her support during life in case she survived him, such support to be a charge and lien upon his property; and the said Merritt made it, by said agreement, “ incumbent upon his said heirs, so long as she and they or either of them can satisfactorily agree, that they shall make such provision for her, the said second party, and in case they fail to provide for said second party’s maintenance as comfortably as when she was the wife of said first party, that in that case the said second party is to make provision for herself, and the expense thereof to be a charge upon any and all of my real estate or property that I now own or may hereafter acquire, notwithstanding any contract, deed or will that I may hereafter make or suffer to be made; ” and he further agreed that such agreement should be a lien upon any and all of his estate, both real and per- . sonal. Such agreement was delivered to the plaintiff May 8,1869, and recorded in the Sullivan county clerk’s office September 8, 1874.

On the same day, the plaintiff executed and delivered to the said Martin F. Merritt, in consideration of said ante-nuptial agreement, and of his marrying her, a release of all claims to dower or third in any and all property the said Merritt might die seized of, both real and personal, which release was recorded in the Sullivan county clerk’s office.

Shortly after the execution of said agreement and release the plaintiff married the said Martin F. Merritt, and they thereafter lived together as husband and wife, until his death January 14, 1890. The complaint alleges that at the time of such agreement and marriage Martin F. Merritt was the owner and in the possession of a large amount of property, both real and personal.

That in the month of April, 1883, the said Martin F. Merritt transferred to four of his sons, including the defendant, various pieces of property, and in November and December of the same year he transferred to three other children various other property, and thereby his said children became the owners and possessed of all the property of said Martin F. Merritt; that at the time of such transfers, and as a part consideration therefor, the children of Martin F. Merritt executed, and delivered to him their several bonds, conditioned that in case the plaintiff should survive the said Martin F. Merritt, they would each contribute his and her pro rata share towards the plaintiff’s support as long as she should live. Upon the trial the ante-nuptial agreement and release were put in evidence. Also a deed of real property from Martin F. Merritt and the plaintiff, his wife, to the defendant, dated April 7, 1883. Also a deed from the same parties to the defendant and two other children of Martin F. Merritt, of other real property, dated April 25,1883. Plaintiff also put in evidence a bond executed by the defendant to Martin F. Merritt, dated April 25, 1883, which recites that Martin F. Merritt has conveyed to Martin Merritt certain real estate, on condition that Martin Merritt shall contribute to the support of Martin F. Merritt during his life, and shall also contribute to the carrying out of the ante-nuptial contract between plaintiff and Martin F. Merritt; it recites the amount that shall be paid to Martin F. Merritt during his lifetime, sixty-two dollars and fifty cents annually, and provides that after his (Martin’s) death he shall contribute his due share according to the property he has then received to carry out said ante-nuptial contract.

The plaintiff offered in evidence similar bonds executed by the other children of Martin F. Merritt, who, it was claimed in the complaint, had received conveyances of his property; the plaintiff also offered in evidence deeds from Martin F. Merritt and the plaintiff, his wife, to the said several children of Martin F. Merritt; upon the objection of the defendant the court refused to admit either the bonds or deeds in evidence.

Other evidence was offered by the plaintiff that was not received by the court, but as to which there is no occasion to advert now, it apparently being rejected for the same reason that the court refused to receive the bonds and deeds.

In rejecting the evidence the court said : “ This action is virtually to obtain an enforcement of the ante-nuptial agreement. It is no doubt proper and right that this defendant, with the other heirs and next of kin, should carry out that ante-nuptial agreement, so far as it binds them, but if they refuse to do it the remedy is for an enforcement of that agreement, and pertains entirely to a court of equity.” . .

At the close of the evidence of the plaintiff the court directed the dismissal of the complaint. '

I clo not tliink the action is one in equity; it is an action to enforce the condition of the bond. Under the ante-nuptial agreement the plaintiff was given a lien upon Martin F. Merritt’s* property to enforce it; by uniting with her husband in the deeds to his children, she released all lien she had upon the property described in those deeds, and the several bonds taken by the husband, so far as she was concerned, were substituted for the lien given by the ante-nuptial agreement; the agreement to support the father and to carry out the terms of the ante-nuptial agreement were the consideration for the conveyances to the children; the plaintiff in turn contributed her share of the consideration, moving the children to execute their several bonds by her signature to the deeds. And she had a right of action to enforce those conditions in the bonds that were intended for her benefit. (Arnold v. Nichols, 64 N. Y., 117; Todd v. Weber, 95 id., 181; Rector v. Teed, 120 id., 583.)

The amount the defendant was to contribute was to be determined according to the property he had received from his father; the other bonds offered in evidence and rejected were stated to be for the same purpose as the one given by the defendant. In other words, each one who received a share of the father’s property was to contribute to the plaintiff’s support in an amount proportioned to the share of the estate he or she received.

Hence, in determining the proportion that was due on the defendant’s bond, it became competent and material to show a like agreement on the part of the other children; and the amount of the property each one had received, and the bonds and deeds so executed were, I think, admissible in evidence for the purpose indicated. The reception of evidence to determine the defendant’s due share, according to the property he has received,” does not constitute an accounting which changes the action to aproceeding or action in equity.

I think the trial court erred in holding that the action was one in equity, of 'which the County Court had no jurisdiction, and that it also erred in rejecting the bonds and deeds offered in evidence by the plaintiff, and that for such errors the judgment should be reversed and a new trial granted, with costs to abide the event.

Putnam, J., conchrred; Mayham, P. J., not sitting.

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


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN CLINGAN, Appellant, v. ANDREW S. DRAPER, State Superintendent of Public Instruction, Respondent.

      Superintendent of Public Instruction — his power to remove a school officer — disobedience of his order — his return conclusive— “willful” equivalent to “intentional.”
    The Superintendent of Public Instruction is given power to remove any school officer who willfully disobeys his decision, order or regulation. Difficulties arose in a school district, and chapter 54 of the Laws of 1891 was passed in order to adjust them. Subsequently a meeting was had in the district, and certain action was taken which upon appeal was declared by the superintendent to be void. At the same time he directed John Clingan, a trustee, to do certain acts to close up the matters of the school district, pursuant to the act of 1891; and further ordered him, upon a day fixed, to show what he had done, and that if it should appear that he had not acted promptly and in good faith that he show cause why he should not be removed as trustee.
    ■Clingan appeared before the superintendent and admitted that he had absolutely refused to perform the orders of the superintendent, whereupon he was removed. In a proceeding by certiorwi to review the action of the superintendent:

      Held, that although the proceeding was summary, as the facts were admitted, the removal should be sustained.
    That the return of the superintendent to the writ was conclusive as to the facts therein stated.
    That, assuming that facts stated in the affidavit on which the writ was issued, and not contradicted by the return, were to be considered upon a hearing, the court would not reverse the decision of the superintendent as to a matter where the statute made his decision conclusive.
    That “willful” in the statute giving the superintendent power of removal was equivalent to “intentional.”
    Certiorari, dated November 17,1891, issued to review the order of Andrew S. Draper, State Superintendent of Public Instruction, removing the relator, John Clingan, from the office of school trustee of District No. 1 of the town of New Paltz, in the county of Ulster.

      D. M. De Witt, for the relator.

      IA/nson c& Van Bwren, for the respondent.
   Herrick, J.:

This is a certiorari to review the action of the defendant as State Superintendent of Public Instruction, in removing the relator from his office of trustee of School District No. 1 of the town of New Paltz, Ulster county. The power of the Superintendent of Public Instruction to remove school officers is under section 18 of title 1 of chapter 555 of the Laws of 1861, reading as follows: “ Whenever' it shall be proven to his satisfaction, that any school commissioner, or other school officer, has been guilty of any willful violation or negléct of duty under this act, or any other act pertaining to the common schools, or of willfully disobeying any decision, order or regulation of the superintendent, the superintendent may by an order under his hand and seal, which order shall be recorded in his office,, remove such school commissioner or other school officer from his-office.”

It appears that in 188Y or 1888, at an annual school meeting held in District No. 1 of the town of New Paltz, the qualified voters resolved that an arrangement should be made with the Normal and Training School in said town for the instruction of the pupils in said school district, and that such an arrangement was entered into whereby the Normal School took charge of instructing the pupils of said district upon an annual payment, by the said district, of the sum of $800; that said agreement was continued from time to time, and at the annual school meeting held August 5, 1890, it was resolved that said agreement be continued for the ensuing year; the sum of $110 was voted to be raised to be paid to the Normal School, which, together with the public school moneys allotted to said district, would make the full sum of $800.

That the relator, John Clingan, was, on the 6th day of August, 1890, elected trustee and proceeded to hire two teachers for said district; he paid them the sum of $110, and levied and assessed a tax of $300 upon the district for the purpose of paying such teachers, and issued a warrant for the collection of such tax; then one of the residents and taxpayers of the district appealed to the Superintendent of Public Instruction from the action of the relator in employing such teachers, in paying out the school moneys to them and levying a tax upon the district to raise the additional amount; that appeal was not decided until September 11,1891, and it was then, among other things, decided that the relator had legal authority to employ such teachers, and that his action in so 'doing' must be upheld, and that the district must pay the teachers so-employed. In so far as it concerned the employment of teachers. that appeal was not sustained; in some other respects, not necessary-now to recount, it was; and, among other things, the relator was directed to cancel the old tax bill, restore all moneys collected under it and issue a new one to raise the moneys necessary to pay the wages of the teachers so employed by the relator, the superintendent deciding that the school moneys remaining in the hands of the local board of managers of the State Normal School were not applicable to pay such teachers.

In the meantime, pending such appeal, and before its decision, and on the 10th day of March, 1891, chapter 54 of the Laws of 1891 was passed, which was intended to settle the difficulties in the school district. It provided for the admission of pupils from School District No. 1, free of charge, to the practice department of the Normal School; that the State school moneysullottedto said District No. 1 in the year 1891 and thereafter should be paid over by the supervisor of New Paltz to the local board of managers of said Normal school; and it further provided that “ The present district officers of School District No. 1, town of New Paltz, Ulster county, shall continue in their respective offices and discharge their duties pertaining thereto until any and all present indebtedness of said district is liquidated, and thereafter no school district meeting shall be held, nor school district officers chosen, and all school money remaining to the credit of said district after the liquidation of such indebtedness shall be paid over to the local board of managers of the State Normal School, located at New Paltz.” On the 4th day of August, 1891, a meeting of residents of said District No. 1 was held, at which the relator was elected a trustee, and other persons were or claimed to be elected to the several school district offices. At such meeting resolutions levying a tax for the sum of $250 for teachers for the then ensuing year, fifty dollars for incidental expenses, the sum of -$695 for teachers’ wages employed by the trustee during the preceding year, were passed. After such meeting an appeal from the proceedings thereof was duly taken to the Superintendent of Public Instruction, and such proceedings were had upon said appeal that, on the Ith day of September, 1891,' the superintendent made a decision wherein he sustained the appeal, and held the meeting of August 4, 1891, and all acts in pursuance thereof, to be unlawful, void, and of no effect; the order also directed the relator what to do as trustee of the school district, to close up its affairs pursuant to chapter 51 of the Laws of 1891; and further ordered that the relator show before him on the 29th day of September, 1891, what proceedings he had taken in fulfillment of the order; and that if it should then appear that he had not proceeded promptly, intelligently and in good faith to obey the same, that he show cause at the same time and place why he should not be removed from the office of trustee.

Pursuant to said order the relator made a report to the defendant at the time and place named of his proceedings thereunder, whereupon such proceedings were had that the defendant did then and there remove the relator from his office of school trustee, and it is to review such order of removal that this proceeding is brought.

The return of the defendant is-conclusive as to the facts therein set forth. (People ex rel. Sims v. Fire Commissioners, 73 N. Y., 437.) That return set forth that the relator appeared in person and by counsel before the defendant on the return day of the order herein-before referred to, and by the return and by the statement of his counsel admitted that he had violated that and a previous order of the superintendent, and had neglected and refused to comply with the orders of the superintendent, and that he had advised teachers to commence suits against the district for their wages, instead of levying a tax to raise the money to pay them as the superintendent had ordered him to do. As above stated the facts stated in the return are conclusive upon the court here, and these facts being true abundantly justified the defendant in removing the relator from office.

The proceeding was, perhaps, summary, but the facts were admitted; there was no occasion for proof. But it is claimed that there are facts stated in the affidavit upon which the writ was issued which are not denied in the return, and, therefore, the court may consider them, under the case of the People ex rel. Peck v. Commissioners, etc., of Brooklyn (106 N. Y., 64). The claim of the relator is, that the real reason the defendant removed the relator was that he refused to discontinue a proceeding he had brought to compel the local board of managers of the Normal School at New Paltz to pay over the public school moneys they had received, to be paid to the teachers employed by the relator.

Even if that were so, I see no reason to reverse the order of the superintendent. He had made a decision of that question himself, it was in a matter over which he had jurisdiction. He also, there and then, made a decision in regard to the matter, and it was in a matter where the statute made his decision conclusive. The conduct of the trustee as to school matters was also subject to his supervision and control. He, then and there, made an order, which he had a right to make, directing the relator to abandon his proceedings against the local board of managers of the Normal School, the relator then and there refused to abandon the proceedings, and expressly-announced, by his' counsel present with him, his intention of continuing such proceedings.

This, I think, constituted a willful disobedience of an order or decision of the superintendent within the meaning of the statute. Willful, I think, in this statute means intentional (Anderson v. How, 116 N. Y., 336); and the relator certainly intended to disobey the defendant’s order. It was not a case of neglect, omission or misapprehension, but of absolute refusal, and an announcement of an intention of doing directly the reverse of what he was ordered to do.

The writ should be quashed, and the determination of the defendant affirmed, with fifty dollars costs and printing disbursements.

Putnam, J., concurred; Mayham, P. J., not.sitting.

Writ of certiorari quashed, with fifty dollars costs and printing disbursements.


author: Mayham, P. J".:

text:
    HIRAM A. DOUGLAS, Respondent, v. THE PHENIX INSURANCE COMPANY OF BROOKLYN, New York, Appellant.

      Foreign attachment — jurisdiction of State courts — the domicile of a corporation — situs of debt —foreign statutes — a demurrer does not admit conclusions — taking property without due process of km — IT. S. Const., amendment lk, sec. 1.
    In an action by a resident of the State of New York upon a policy of fire insurance covering property in that State and'issued by a corporation of that State, it appeared by the answer that the company had an agent in the State of Massachusetts, upon whom, by its laws, process could be served; that creditors of the plaintiff, had begun a proceeding by attachment or trustee process in that State, by service upon the agent, and it was claimed that this constituted a valid lien, upon the money payable under the policy, so that if the company should pay the plaintiff it would still be liable to the foreign attaching creditors.
    The plaintiff interposed a demurrer to the answer.

      Held, that the demurrer was properly sustained.
    That as the answer did not allege service upon the plaintiff, and as its effect was to admit that the plaintiff was a resident of the State of New York, and that the domicile of the defendant was also there, it did not show that the situs of the claim» was in Massachusetts, or that an actual levy had been made upon the plaintiff’s claim there; it could not, therefore, be said that the attachment had any operation upon the debt.'
    That State courts have no extra territorial jurisdiction, and the intangible right, the res, must be within their jurisdiction.
    That the fact that the defendant, by complying with certain laws of Massachusetts, had been permitted to do business and have an agent there did not alter the domicile of the corporation.
    That if the situs of the debt was changed by legislation in Massachusetts, the statutes making the change should have been pleaded.
    That a demurrer did not admit conclusions of law or of fact.
    That, therefore, an allegation in the answer that the jurisdiction of the Massachusetts court was complete, had no effect upon the question whether, in fact, it had jurisdiction.

      Semble, that the legislature of Massachusetts could not, upon the facts above stated, pass an act allowing attachment proceedings to be taken against the plaintiff without personal service upon him, since it would violate section 1 of the fourteenth amendment of the United States Constitution forbidding a State to deprive a person of property without due process of law.
    Appeal by the defendant, the Phenix Insurance Company «of Brooklyn, N. Y., from a judgment of the Supreme Court, entered in the office of the clerk of Franklin county on the 27th day of November, 1891, upon a recovery by the plaintiff of $1,454.73 and costs; and also from an order, entered in said clerk’s office on the 25th (jay of November, 1891, sustaining a demurrer to the amended answer and ordering judgment as above stated.
    This action was prosecuted to recover the amount claimed to be due the plaintiff on a fire insurance policy issued by the defendant.
    . The complaint was in the ordinary form in such actions, and also contained an allegation that the defendant was a domestic corporation organized under the laws of the State of New York, and that the plaintiff, at the time of the issuing of the policy, was a resident of the State of New York and the holder and owner of the policy. The answer, after admitting many of the allegations of the complaint, alleged, in substance, that creditors of the plaintiff residing in the State of Massachusetts had, by attachment or trustee process, issued or granted in that State, attached the claim of the plaintiff sued upon in this action. To this alleged defense the plaintiff interposed a demurrer on the ground that the same was insufficient in law upon the face thereof.
    This demurrer was sustained and the trial court ordered judgment for the plaintiff in accordance with the prayer of the complaint, with costs, and from that judgment the defendant appeals to this court.

      G. A. Seixas, for the appellant.

      William P. Cantwell, for the respondent.
   Mayham, P. J".:

By the demurrer the plaintiff admits all the allegations of .fact, if any, in the answer demurred to, and the first question to be examined on this appeal seems to he whether that part of the answer interposed as an affirmative defense was sufficient upon its face to show that the attachment alleged to have been issued in Massachusetts, in. favor of creditors of the plaintiff residing there, was a valid and effectual lien on the- debt due, the plaintiff from the defendant on this insurance policy, so that if the defendant should pay the plaintiff,, it would still be liable to the attaching creditors.

’ It is quite clear that if this foreign attachment had so far levied upon this claim as to suspend the plaintiff’s control over it and transfer the same to the custody of the law, in trust for the payment of the claim of the attaching creditors of the plaintiff, that that, fact, properly alleged, would constitute a defense to this action, either in abatement, if the attachment proceedings were still pending, or in bar, if the attachment creditors had recovered the money of' the defendant, provided the plaintiff had been properly before the court in the attachment proceedings. (Embree & Collins v. Hanna, 5 Johns., 101; Donovan v. Haut, 7 Abb. Pr., 29; Martin v. Central Vermont R. R. Co., 50 Hun, 349.)

But the defendant, in order to avail itself of such a defense, must, in its answer, allege facts showing that the foreign attachment has, by its operation, divested the plaintiff of his right to the control of the property or rights in action upon which it is levied or claimed to have operated, and that under it, jurisdiction has been acquired of the person of the plaintiff and of the property, or at least of the property which is within the jurisdiction and control of the attaching tribunal. The answer does not allege that the attachment was served on the plaintiff, and it, in effect, admits that the plaintiff is a non-resident of the State of Massachusetts, and that the domicile of the defendant is in the State of New York, and that the jsolicy was issued in this State to the plaintiff on property in this State, where the loss occurred, but it alleges that by reason of certain provisions of the laws of Massachusetts the defendant was, by complying with the laws of that State, authorized to do business therein. That the defendant had complied with such laws, and had an agency in that State on whom legal process could be served, and that the process of attachment was served on the agent of the defendant in the State of Massachusetts.

No other service is alleged in the answer, and no allegation is contained in the same that any actual seizure under the attachment was made of the claim of the plaintiff against the defendant, or that such claim was in that State; nor does the answer allege, as a fact, that the plaintiff’s claim, on which the attachment is claimed to operate, had any existence in the State of Massachusetts.

Under the allegations of fact in the answer, we do not think that the attachment could be held to operate on the amount due on this policy.

It cannot be claimed that the courts of Massachusetts have extra territorial jurisdiction. It seems to be the settled rule that the State courts are confined, in the exercise of their jurisdiction, to the limits of their own State, and jurisdiction between citizens of different States is, by the Federal Constitution, conferred on the Federal courts. In Plimpton v. Bigelow (93 N. Y., 592), the court says:

“ In the case of tangible property, capable of actual manucaption, it must have an actual situs within the jurisdiction. But credits, choses in action and other intangible interests are made by the statute susceptible of seizure by attachment. The same principle, however, in this case as in the other, the res, that is the intangible right or interest, to be subject to the attachment must be within the jurisdiction.” Again, in the same case, the court says: “When the defendant who owns a credit is within the jurisdiction, there is no difficulty, through proceedings mpersonam, in reaching and applying it in discharge of his debt to the plaintiff. But where he is out of the jurisdiction, and the debt or duty owing to him, or the right he possesses, exists against some person within the jurisdiction, attachment laws fasten upon that circumstance, and by notice to the debtor or person owing the duty or representing the right, impound the debt, duty or right to answer the obligation which the attachment proceeding is instituted to enforce.”

The answer in this action does not, in terms, charge that the plaintiff had a debt due him from the insurance company in the State of Massachusetts, nor can it be inferred from the answer, except from the fact that the defendant, while chartered by the laws of New York and domiciled in that State, having its principal place of business there, had established an agency in the State of Massachusetts. There seems no warrant for holding that the defendant owed this debt for the purpose of attachment in all the States’ of this Union where it had an agency, and that the situs of the debt was where the defendant saw fit to locate a person on whom process against the defendant might be served.

In discussing the question of the location of a corporation for the purposes of an attachment, Andrews, J., in Plimpton v. Bigelow (supra), says: “ If the corporation by having its officers, and by transacting business in a State other than its domicile of origin, is deemed to be itself present as an entity in such foreign State to the same extent and in the same sense as it is present in the State which created it, it may be conceded that its shares might properly be attached in such foreign jurisdiction.

“But we regard the principle to be too familiarly settled by repeated adjudication of the Federal and State courts to admit of further controversy, that a corporation has its domicile and residence alone within the bounds of the sovereignty which created it, and that it is incapable of passing personally beyond that jurisdiction.”

Again, as to personal property consisting of debts, dioses in action and contracts, the sit/as seems to be that of the residence of the creditors. In Williams v. Ingersoll (89 N. Y., 523), Earl, J., says: “A debt always under 'general jurisprudence has its situs either at the domicile of the creditor, or where the written obligation upon which it is due is held, and not at the situs of the debtor.”

It follows, therefore, that in the absence of any special provisions of law, this debt from the defendant to the plaintiff, on the policy in question, had its situs in the State of Newr York, and could not be reached under an attachment issued under the laws of Massachusetts, as there was no property in that State upon which the attachment was or could be served, and no personal service of the attachment on the plaintiff. But it is insisted by the appellant that the answer alleged the jurisdiction of the Massachusetts court and the full and complete control of the property under the attachment. The difficulty of that contention is that the allegations of this character in the answer are conclusions and not allegations of fact.

While the demurrer admits all the allegations of fact in the pleadings, to which it is interposed, it does not admit the conclusions either of fact or law set out in the pleading. In Angell v. Van Schaick (56 Hun, 256), the court, in discussing the manner of pleading foreign statutes, uses this language: “After setting forth the foreign statutes and averring that they were the whole of the laws and statutes of Pennsylvania relating to the subject, the pleader alleges that by such statutes the plaintiff was absolutely prohibited from exercising his trade without a license, and that he was prohibited by such statutes from recovering in this action. But these averments are mere inferences and deductions drawn from the statutes, and are not in any sense allegations of fact.-

In interposing the demurrer, the plaintiff did not thereby admit the construction put upon the statutes by the pleading demurred to, or the correctness of the inferences, but only the truth of such facts as were properly stated in the answer.” The language of this latter paragraph is almost identical with that used by the Court of Appeals in Bogardus v. New York Life Insurance Company (101 N. Y., 337).

In the case at bar the defendant has omitted entirely the provisions of the Massachusetts statutes or any appropriate reference thereto as facts, but states only the conclusions which the pleader draws from such statutes. This we think insufficient, and the demuiTer to such answer does not admit the conclusions of the pleader.

But if it could be held that the Massachusetts statutes are sufficiently pleaded in the answer, still, as the situs of the claim of the plaintiff is in the State of New York, where .the plaintiff resides, and where the defendant has its domicile of origin, and where the contract of insurance between the plaintiff and defendant was made, and no personal service in the attachment proceedings having been made on the plaintiff, it would seem to follow that he was not before the court in such attachment; and that no jurisdiction over his person or property was acquired in such attachment proceedings.

If this be so, the plaintiff had no hearing or opportunity to be heard on this attachment proceeding, and no statute that the legislature of Massachusetts could enact could deprive the plaintiff of his interest in this policy under the provisions of section 1 of the fourteenth amendment of the Constitution' of the United States, which, among other things, provides: “ Nor shall any State deprive any person of life, liberty or property without due process of law.”

It had been held in Stuart v. Palmer (74 N. Y., 191) that “due process of law requires an orderly proceeding, adapted to the nature of the case, in which the citizen has an opportunity to be heard and to defend, enforce and protect his rights. A hearing, or an opportunity of being heard, is absolutely essential. We cannot conceive of due process of law without this.” In Martin v. Central Vermont Railroad Company (50 Hun, 350) Learned, L, says: “It seems hardly necessary to argue that a judgment which deprives a man of his property cannot lawfully be recovered without notice to him. We do not mean that against absent debtors the law may not authorize an attachment of the alleged debtor’s property. It may thereby acquire jurisdiction of the thing, but in order to make that jurisdiction perfect it must give due notice to the owner before it attempts to divest his title.”

But in this case the proceedings in rem seem to have been instituted and property to have been seized, and the only defect was in giving" notice to the owner.

In the case at bar no proceedings in rem were operative in the State of Massachusetts. The res was not within that State. It was but a right in action against the defendant, and the situs of that right was in New York, and the process of the Massachusetts court, which can operate only in that State, did not attach to it in this State, or operate to bring either the plaintiff or his interest in this policy within the jurisdiction of the laws or the process of the courts of the State of Massachusetts.

The answer, therefore, as to the new matter, did not constitute a defense to this action, and the demurrer thereto w.as properly sustained, and judgment for the plaintiff upon the demurrer was proper and should be affirmed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


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    HUGH MEA, Respondent, v. ANNA M. PIERCE, Appellant.

      Amendment of a complaint-upon the trial — changing an action of tort into one upon contract — not permitted.

    Hugh Mea brought au action for a tort against Anna M. Pierce, which, upon the trial, was dismissed on the ground that it was barred by the three years’ statute of limitations. Mea then upon the trial made a motion to amend the complaint by inserting an allegation that over a year before the commencement of the action the claim was put in the hands of an attorney for collection; that Pierce requested that no action be brought, and in that event promised to pay $500 in settlement -t that Mea agreed to this and settled the cause of action in consideration of the agreement and of $500 so to be paid, and that the sum had not been paid.

      Held, that it was error to permit the'-amendment.
    That, upon the question of power, it was doubtful whether the court could, upon the trial, allow an amendment, the effect of which was to change an action in tort into an action upon contract.
    That if the question rested only in discretion, it was not a proper exercise of discretion nor in furtherance of justice.
    That, as all the facts were known to Mea, and the answer had long been served, there could be no question of surprise nor of hardship, since the dismissal of this action would not bar the action on contract if that cause of action, in fact, existed.
    Whether the complaint, as amended, alleged an accord and satisfaction was doubtful.
    Appeal by the defendant Anna M. Pierce from an order of the Supreme Court, entered in the office of the clerk of the county of St. Lawrence on the 2d day of November, 1891, allowing the plaintiff to amend her complaint upon the trial by inserting the following:

      “ And tbe plaintiff further shows, that one year before the bringing of this action this claim was put into the hands of an attorney for prosecution and the defendant notified of the fact, and claim made upon her for damages which plaintiff had sustained; that the defendant requested that no action should be brought, and that if no action was brought for negligence she would settle and pay the plaintiff $500.00 on demand; that plaintiff assented and agreed to said terms and settled the said cause of action in consideration of said agreement and $500.00 so to be paid; that thereafter plaintiff demanded the payment of the said money, which was refused by the defendant; that the damages and injury so caused to the plaintiff and sustained by him were $500.00.”

      A. B. Shepard and John O. Keeler, for the appellant.

      G. 8. Dorxoin. for the respondent.
   Putnam, J.:

The cause of the action stated in the complaint was the alleged negligence of defendant by which plaintiff, without negligence on his part, was injured in July, 1887, and sustained damages to the amount df $5,000. The allegations in the complaint that defendant’s husband and agent agreed to settle the matter, which was the reason of delay in bringing the action, does not in any manner change its nature. The action was commenced in November, 189.0, and defendant, among other defenses, pleaded the statute of limitations. On these pleadings the plaintiff went to trial in October, 1891, and on the opening of the plaintiff and the pleadings the defendant moved the dismissal of the complaint, on the ground that it appeared that the cause of action stated therein was barred by the statute of limitations. The court thereupon granted the motion. The plaintiff then made a motion to amend by inserting at the end thereof allegations that over a year before the commencement of the action the claim was put into the hands of an attorney for collection; that defendant requested that no action should be commenced, agreeing that if a request was granted she would pay plaintiff $500 on account of his injuries on demand; that plaintiff assented and agreed to said promise settling said cause of action in consideration of said agreement and $500 to be so paid; tlie defendant neglected and refused to pay said $500. The defendant objected to the amendment, but the court allowed the same and the cause went over the term.

It was sought by the amendment to' change the cause of action from tort to one of contract. A contract made by defendant to settle plaintiff’s cause of action for $500. The cause of action under the amended pleadings was the promise made by defendant a year before the commencement of the action to pay plaintiff $500 on account of the injuries he had received two years before such promise.

There are two questions to be considered: Had the court power on the trial to allow the amendment in question ? If it had such power, was it in furtherance of justice to exercise it ? There have been cases holding that the court may allow an amendment changing the cause of action from contract to tort. (See Eighmie v. Taylor, 39 Hun, 366.) If such an amendment can be made at any time by an order of the Special Term, I see no reason why such an order cannot be granted by the court on the trial under section 723 of the Civil Code.

I think, however, that section 723 (supra) should not be construed as giving the court, on the trial, power; a plaintiff on his original complaint being defeated, to allow him to substitute a new and different cause of action. The power given to the court by section 723 (supra) is to allow an amendment to the pleadings by inserting an allegation material to the case — not a power to substitute a new cause of action. (See Barnes v. Quigley, 59 N. Y., 265; N. S. Co. v. Sheahan, 122 id., 462-466; Gas-Light Co. v. Rome, W. and O. R. R., 51 Hun, 119; Fisher v. Rankin, 25 Abb. N. C., 191; Halsey v. Tradesman's National Bank, 24 N. Y. St. Rep., 953; Ransom v. Wetmore, 39 Barb., 104; Davis v. N. Y., L. E. and W. R. R. Co., 110 N. Y., 646.)

Assuming, however, that the court below had the power to allow the amendment in question, I think it was a case where the court should not have exercised such power. It was not in furtherance of justice to do so.

The plaintiff knowing that his action was commenced over three years after the accident, which he claims was caused by the negligence of the defendant, and after the alleged settlement and promise by defendant to pay $500, elected to bring tbe action on tbe original •canse of action, and not upon the subsequent promise of defendant. Tbe defendant answered it alleging that tbe claim on which tbe action was founded was barred by tbe statute of limitations. Tbe answer was served long before tbe trial. Plaintiff was, therefore, not taken by surprise. Knowing that such an answer was interposed and knowing all tbe facts, be elected to .come to trial and was defeated. Under the circumstances tbe defendant was entitled to a judgment dismissing tbe complaint. Tbe plaintiff elected to come to trial on bis pleading as it stood; and having been defeated, it was not, I think, in furtherance of justice to allow him to substitute a new cause of action to save himself from such defeat.

It was a case where tbe complaint should have been dismissed. Had that course been taken the judgment on such dismissal would not have been a bar to a subsequent action on tbe contract of settlement if tbe plaintiff bad, in fact, any cause of action thereon. I should doubt, however, whether plaintiff bad such cause of action. After such settlement be elected to bring his action on tbe original claim for defendant’s alleged negligence, wbicb shows his understanding that such claim was not settled by tbe agreement set up in bis amended pleading. Also, in such amended complaint tbe allegation is that tbe cause of action was settled not by tbe agreement to pay $500, but by the agreement and $500 so to be paid. In other words, by tbe agreement and its performance. Therefore, it is quite doubtful whether tbe contract of-the parties, as alleged in tbe amended complaint, is an accord and satisfaction on which an action can be maintained. Tbe original cause of action remained as tbe plaintiff evidently understood it did. (See Kromer v. Heim, 75 N. Y., 577.) However, it is not necessary, in consequence of tbe views above stated, to pass upon this point.

Tbe order should be reversed, with ten dollars costs and printing disbursements to tbe defendant, and tbe motion to amend denied, with ten dollars costs.

Herrick, J., concurred; Mayham, P. J., not sitting.

Order reversed, with ten dollars costs and printing disbursements, and motion to amend denied, with ten dollars costs.


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    ANNIE LOSEE, Respondent, v. THE WATERVLIET TURNPIKE AND RAILROAD COMPANY, Appellant.

      Street railroads— starting a ca/r — when negligent as to a passenger toho has got up to leame the car without, notifying the conductor.

    A street ear having stopped in order that a passenger might alight, and she having-done so the conductor rang the bell and the car started. At this time another passenger, Annie'Losee, had risen from her seat and had taken three steps towards the rear of the car, by the starting of which she was thrown down. She had not signalled the conductor to stop, or attracted his attention in any way. Upon the trial of an action brought by her to recover damages alleged to have resulted from the negligence of the railroad company, the instruction of the court to the jury was to the effect that if Losee arose in the car to get off, or for some other purpose, it was negligence, as matter of law, for the conductor to start the car without warning her.

      Held, that this charge was erroneous.
    That the question of the defendant’s negligence was one of fact.
    That the question was whether, if the plaintiff was standing when the conductor-started the car, he was negligent in starting the car without warning her, and whether the conductor should have seen her in the absence of any signal from her.
    Appeal by the defendant, the Watervliet Turnpike and Railroad Company, from a judgment of the Albany County Court, entered in the office of the clerk of said county on the 19th day of June, 1891, upon a verdict in favor of the plaintiff for $415, with notice of an intention to bring up for review upon the appeal an order denying a motion for a new trial, and all questions of fact which arose upon the trial.

      Al/phem T. Bulkley, for the appellant.

      John JBJ. Gleason, for the respondent.
   Putnam, J.:

A conductor of a street-railroad car should give passengers a reasonable opportunity to alight, and. failure to do so is negligence. (Poulin v. Broadway and Seventh Ave. R. R. Co., 61 N. Y., 621.) lie is only bound, however, to afford a reasonable time. A party wishing to alight must not loiter. It is not clear, from the testimony, that plaintiff was not afforded a reasonable opportunity to leave the defendant’s car at the time of the accident, which is the subject of this action, or that the evidence discloses negligence on the part of the conductor.

I infer that no notice was given to him, nor was it shown that he knew plaintiff wished to alight. Plaintiff was sitting by Miss Gardner. The conductor stopped the car for the latter to alight, who arose from her seat, went out of the car and stepped on the ground, when the bell was rung and the car started. At this time the plaintiff testifies she had taken three steps towards the rear end of the car where the conductor was. Therefore, it appears that the car was stopped long enough for a passenger to alight. And, although plaintiff was then on her feet, it was not shown that she signalled the conductor to give him any notice that she wished to leave the car, or that his attention was in any way attracted to her.

■ To sustain the judgment there must be legitimate evidence of negligence. The jury has no right to guess at it. Plaintiff must prove it. This case is not like that of MacDonald v. Long Island Railroad Company (116 N. Y., 546). Where a railroad company stops at regular stations it is bound to stop at such places long enough to afford passengers a reasonable time to alight, whether the conductor knows whether any passengers wish to leave the car or not. On street railways tlie'conductor only stops when signalled by a passenger. It is true, that when he stops for one passenger .who signals him, another may take advantage of the opportunity to leave the car. But to establish negligence on the part of the conductor the circumstances must be such that his attention was or should have been called to the intent of the passenger to alight. Here there is not the slightest evidence that the plaintiff made any effort to attract the attention of the conductor, either by ringing the bell or in any other way; nor any evidence that the conductor saw. her, or circumstances shown indicating that he should have seen her. It is not shown that he started the car hastily. The passenger who sat next plaintiff arose, and, as far as the evidence discloses, deliber: ately left the car, and at that time the plaintiff had only taken three steps towards the conductor. I infer from the evidence she must have been some distance from the door, as it does not appear that her head fell against it or outside of it. Under such evidence it is a question of some doubt whether plaintiff made out a case of negligence against the defendant which should have been submitted to the jury.

Admitting, however, that the case was properly submitted to the jury by the trial judge, nevertheless, in that case it was a question of fact for the jury to determine from the testimony given, whether the act of the conductor was or was not, under all the circumstances,, negligent. And I think that some exceptions taken by the appellant to the charge of the judge to the jury renders a new trial of the case necessary. The judge charged the jury as follows:

“ If you find from the evidence that this plaintiff was in the act. of getting off * * * she had started, left her seat for the purpose of getting off or for any other purpose, and the car started while she was on her feet and thrown, he had no right to start it without giving her warning to take her seat, or an opportunity to-get her seat.” To this an exception was taken.

Again the judge charged : “ If she started before the signal she-was not guilty of negligence, but the company was negligent.” To-this no exception was taken.

In answer to the sixth request to charge the court charged: No,,, if the car was standing still, she had a right, to get up, and had a, right to attempt to get out, or a right to move over, and the conductor had no right to start it again until he saw she either moved out or sat down, or gave her notice to sit down. She must do one thing or the other within a reasonable time.” The defendant excepted.

By these instructions the jury were told that if plaintiff arose in the car for the purpose of getting off or for some other purpose the conductor had no right to start the car without warning her — as a legal proposition. The jury were not instructed that they might so-find, or that they could determine, from all the facts of the case, that the starting of the car,.under the circumstances, was improper,, but were instructed that the conductor had no right, if the plaintiff' was standing for any purpose, to start the car without warning her. In effect, they were told that such an act was wrongful, and hence negligent. The judge stated this as a legal proposition. The jury might, perhaps, have found, as a fact, from the circumstances proved, that the conductor was negligent in starting the car even if the plaintiff was only standing, without attempting to alight. I do-not think that the court could properly charge, as a legal proposition, that such a starting of the car was improper. The evidence given in the dase was such that the jury could have found that the plaintiff was on her feet for the purpose of changing her seat merely, or for the purpose of alighting from the car.

I think it should have been submitted to the jury as a question of fact, whether, under the circumstances, plaintiff standing in the car, either to go out or change her seat, the conductor was or was not justified in starting it when he did. There was evidence that the car had stopped long enough for a passenger to alight; that no signal was given to the conductor. There was no evidence that his attention was called to her, or that he knew she wished to leave the car. If the question had been submitted to the jury, they might have found that, although plaintiff was standing in the car, either changing her seat or to go out, yet the conductor was not negligent in not seeing her, and had the right at the time to start the car. Rut the court, by the instructions above quoted, took away these questions from the jury, holding that, if the plaintiff was standing at the time the conductor started the car, he had no right to so start it without warning her, it necessarily following that his act was wrongful and negligent. I think the court should have submitted this question to the jury as one of fact. It was for the jury to say not only whether plaintiff was standing up to change her seat or to leave the car, but also whether the conductor should have seen her in the absence of any signal, and whether his act in starting the car when she was standing up, was or was not wrongful. The exception taken by defendant to the said instructions of the judge seem to have been sufficient. (See People ex rel. Dailey v. Livingston, 79 N. Y., 292; Freund v. Paten, 10 Abb. N. C., 316.)

It is impossible to say that the instructions above referred to did not influence the verdict, and hence the judgment should be reversed and a new trial granted, costs to abide the event.

.Herrick, J., concurred; Mayham, P. J., not sitting.

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