author: Daniel G. Rollins, Referee. Per Curiam.

text:
    CHARLES E. HOVEY, et al., Appellants v. GEORGE ELLIOTT, et al., as Executors, etc., Respondents.

      Jurisdiction of the Supreme Court of the District of Columbia, and the validity of its decrees, must be determined by the laws of the United States, and the construction and interpretation of the same by the Supreme Court of the United States.

    In this case the referee found that the decree in question was invalid for want of jurisdiction of the said Supreme Court of the District of Columbia to enter the same.

      Held, that the referee reached the right conclusion, and the judgment is affirmed upon the opinion of the referee relating to the question of jurisdiction of said court.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided October 24, 1892.

      Appeal by plaintiffs from a judgment entered upon the report of a referee, dismissing the complaint.
    The facts and points involved in the case appear fully from the following opinion of the referee, before whom the case was tried, and upon which the court, at general term, affirms the judgment.
   Daniel G. Rollins, Referee.

“In June, 1873, there was pending before the mixed commission on. British and American Claims, then sitting at the city of Washington, in the District of Columbia, a certain claim in behalf of one Augustine It. McDonald. McDonald entered into a written agreement with the plaintiffs in this action, whereby, in consideration of services thereafter to be rendered by them in the prosecution of such claim, it was provided that they should receive a sum equal to twenty-five per centum of the amount that should be recovered—6 the payment of which sum ’ the agreement proceeds to say, ‘ is hereby made a lien upon the said claim, and upon any draft, money, or evidence of indebtedness which may be paid or issued thereon.’

“ In September, 1873, the commission awarded to McDonald, in satisfaction of his claim, the sum of $197,000.

“In August, 1874, McDonald assigned the whole of this award to one William White.

“ In the following October these plaintiffs filed, in the supreme court of the District of Columbia, a bill in equity against McDonald and White, alleging therein that McDonald was indebted to them, under the agreement aforesaid, in the sum of $49,297.50, and that they had a lien to the extent of such sum upon the award in his favor. The bill prayed, among other things, that the defendants, McDonald and White, be restrained from assigning or collecting more than three-fourths of the amount of the award in McDonald’s favor, and that a decree be entered establishing the complainants’ lien upon the remaining one-fourth. Such proceedings were thereafter had that one-half part of the sum so awarded was paid into court to meet the claim and lien of these plaintiffs.

“ Of the funds thus deposited, George W. Riggs, a banker in Washington, D. C., was appointed receiver. As such receiver, pursuant to the direction of the court, he invested such funds in certain bonds of the District of Columbia, guaranteed by the United States, and payable at its treasury.

“To the plaintiffs’ bill the defendants interposed a demurrer, which was thereafter sustained. An amended complaint was met by a second demurrer, which was also sustained, and on June 24, 1875, a decree was entered dismissing the plaintiffs’ bill with costs. On the same day the plaintiffs entered an appeal from that decree to the general term of the supreme court of the District of Columbia.

“ Four days later (that is, on June 28, 1875), another decree was entered in precise conformity with the earlier one, except that its contents were supplemented by a direction to the receiver to pay to the defendants, McDonald and White, the funds in his hands belonging to the cause.

“ Pursuant to such direction, and on the day of the entry of the decree wherein it was contained, the receiver delivered to McDonald the bonds in question, but not until he had first consulted the judge holding the court in which such decree had been entered, and been by bim advised that that course was proper for him to pursue. McDonald on the same day sold and delivered the bonds to the banking firm of Riggs & Co., of which the receiver was a partner, obtaining upon such sale their then market value.

The bonds were promptly taken by Riggs & Co. to the Treasury of the United States, and were there surrendered. In their place there were issued to Riggs & Co. certain new bonds, which were thereafter, in the month of December, 1875, sold and delivered to various purchasers. On July 2, Í875, these plaintiffs took an appeal to the general term of the supreme court of the District of Columbia from the aforesaid decree of June 28, 1875. On March 4,1876, that decree, as well as the earlier decree of June 24,1875, were reversed with costs. The cause was remanded to the special term, with leave to the defendants in the action to answer the complainants’ biH.

“In May, 1876, McDonald and White interposed an answer, denying the validity of the complainants’ claim. Upon the issues thus joined testimony was taken at diverse times during the years 1875 and 1876.

“In June, 1877, the complainants obtained an order from the supreme court of the District of Columbia at general term, requiring the defendants, McDonald and White, to 1 pay over to the registry of the court ’ the sum of $49,297.50, which had been paid them by the receiver. This order was disobeyed, and thereupon the complainants, in September, 1877, moved the defendants, McDonald and White, to show cause ‘ why they and each of them should not be punished for disobedience of the order as for a contempt.’ On December 8, 1877, the supreme court of the District of Columbia made a decree at general term, that ‘ the rule upon the defendants to show cause why they should not he decreed to he in, and punished as for a contempt of court, etc., be made absolute, and that the said McDonald and White be taken and deemed to be in contempt of the aforesaid order,’ etc. Such decree further provided that ‘ unless McDonald and White, within six days from the entry of this' order, and the service of a copy thereof upon their solicitors, shall in all respects comply with the said order of June 19, 1877, and pay unto the said registry of this court the sum of $49,297.50, the answer filed hy them in the cause he stricken out, and that this cause proceed as if no answer therein had been interposed ; and that, until the said defendants shall comply with the said order of June 19, 1877, all proceedings on the part of said defendants in this cause be and the same are hereby perpetually stayed.’

On December 29, 1877, the supreme court of the District of Columbia, at general term, on motion of the complainants, and proof of non-compliance on the part of the defendants, McDonald and White, with the requirements of the decree of December 8,1877, ‘ ordered, adjudged, and decreed that the answer filed in this cause by the defendants, McDonald and White, be stricken out and removed from the files of the court, and that this cause do proceed as if no answer herein had been interposed.’

“On February 12, 1878, the supreme court of the District of Columbia, at general term, made decree as follows: ‘ The answer of defendants having been removed from the files for their contempt in refusing to obey the order of court and deposit in the registry the sum of $49,297.50, it is now ordered, adjudged, and decreed that the bill be taken pro confesso against them.’

“ On April 17, 1878, that order was made absolute by another order or decree which, after reciting material allegations in the complainants’ bill as ‘ standing without denial on the part of the defendants,’ ordered and adjudged that the complainants have a lien upon the claim of Augustine E. McDonald against the United States * * * of $197,190, and upon any draft, money, evidence of indebtedness, or proceeds thereof.’

“ The present action was commenced on April 16, 1884, one day less than six years after the entry of the decree last above mentioned.

It is claimed by the plaintiffs herein that Eiggs & Co. were purchasers pendente lite of the bonds on which they (the plaintiffs) had a lien; that the evidence of that lien is conclusively established by the decree of the supreme court of the District of Columbia, and that their cause of action against the defendants accrued when that decree was entered, and at no earlier date.

The defendants on the other hand claim—

“First. That at the time of the purchase of the bonds in question by Riggs & Co. there was no Us actually pendens. Second. That the bonds were negotiable instruments transferable by mere delivery; that they were purchased by Riggs & Co. in good faith, and that the doctrine of lis pendens has here, therefore, no application. Third. That even if the plaintiffs had a lien upon the bonds in question, and if such bonds were received and were subsequently sold by the defendants with knowledge of the plaintiffs’ claim, that lien was practically extinguished at the time' of the sale, so that whatever cause of action they may have had against Riggs & Co. then accrued, that is to say,, in December, 1875, more than six years before the commencement of this action, which is, therefore, barred, as these defendants claim, by the statute of limitations. Fourth. That the supreme court of the District of Columbia exceeded its jurisdiction in making the aforesaid decree of April 17, 1878; that such decree is wholly void, and that, as it is the sole foundation of the plaintiffs’ claim, the defendants are entitled to judgment.

“ First. In support of the first of these four propositions urged in defendants’ behalf, it is claimed that upon the entry of the decree of June 24, 1875, dismissing plaintiffs’ bill, the Us theretofore pendens utterly ceased so to be; that this decree of June 24 was vacated by the decree of June 28, from which no appeal was taken until July 2, four days after the purchase of the bonds by the defendants, and that, therefore, no lis was pending at the time such purchase was made.

“ These two decrees of June 24 and June 28 were both before the general term of the supreme court of the District of Columbia, and were both reversed by its decree of March 4, 1876 ; they are both referred to by the Supreme Court of the United States in Hovey v. McDonald, 109 U. 8., 150, and their relation to each other is there commented upon. At page 158, the judge, pronouncing the opinion of the court, says: e The correction of the form of the decree ’ [of June 24th] ‘ by adding the direction to the receiver to pay over the money in his hands to the defendants was a thing of course. It was merely expressing the legal effect and consequences of the decree. It was an amendment which the court below was competent to make notwithstanding the appeal.’

“ The decree of June 28 seems to have been entered without notice to the complainants. Up to the time of its entry they had complied with all the requirements of the law necessary to give them a status as litigants in the pending cause. In the absence of a well-settled law or practice that would make such a finding necessary, I cannot hold that the entry of the supplementary or amendatory decree had the effect, which defendants’ counsel claim that it produced, of extinguishing such rights as complainants may theretofore have had under the doctrine of lis pendens. The decree of June 24 is indorsed, ‘ Decree sustaining demurrer and dismissing bill;’ that of June 28 is indorsed, iOrder discharging receiver.’ These indorsements are not without significance as in some degree interpretative of the intended effect of the decrees in question, and their true significance. While there are some technical difficulties in upholding the plaintiffs’ claim that the bonds were sold pendente lite, I have finally reached that conclusion.

“Second. Were the bonds here in question negotiable instruments ? Each bond was in form a certificate to the effect that the District of Columbia was indebted unto a person therein named, or his ‘ assigns,’ in a specified sum, payable at a specified date at the Treasury of the United States, with interest semiannually ; the certificate declares that the issuance of the bond is authorized by an act of Congress, which pledges the faith of the United States that the United States» will provide, by certain specified means, the revenues necessary to pay the interest on the bond and to create a sinking fund for paying the principal at maturity. The register of the treasury certifies on each of these bonds that it has been registered in the office of such register in accordance with the provisions of the aforesaid act. On the back of the bonds there is a blank form of assignment, for the authorization of a transfer of the bond on the books in the office of the register, followed by a blank form of acknowledgment, which is in turn followed by a 4 note ’ explaining how the assignment should he executed and acknowledged in case such execution and acknowledgment should not be effected at the treasury department.

It appears in evidence that it has long been the custom of bankers and brokers dealing in these securities to pass them from hand to hand like negotiable paper, when properly indorsed, with an assignment in blank, so as to permit the registered holder to insert. at his pleasure the name of any person to whom he wishes the bonds to be transferred. The Supreme Court of the United States held in County of Wilson v. National Bank, 103 U. S., 776, that ‘ in order to make a promissory note or other obligation for the absolute payment of a sum certain on a certain day negotiable, it is not essential that it should in terms be payable to bearer ” or “ order.” Any other equivalent expression, demonstrating the intention to make it negotiable, would be of equal force and validity.’ In White v. Vermont & Massachussetts R. R. Co. 21 How., 575, the same court also enunciated the rule that bonds which 'are intended by the obligor to be negotiable must be so regarded. Now, can it be fairly said that the maker of these bonds has indicated on their face an intention to j give them the character of negotiable instruments ? Bonds of the United States are issued in two forms. Some of them are registered on the books of the treasury, and interest thereon is payable only to the per-1 son in whose name the registration is made, or to some other person to whom has been made a duly registered assignment. Bonds issued in the other form are payable to bearer, and the amounts of interest thereon, as they severally fall due, are indicated by coupons that may be detached at the pleasure of the holder. It was contended in Mechanics’ Bank v. New York & New Haven R. R. Co., 13 N. Y., 599, that certificates of stock in the defendant-corporation were to be regarded as negotiable instruments. In delivering the opinion of the Court of Appeals, Comstock, J., said (p. 623):

(Aside from the absence of any language of these certificates which can impart to them a negotiable character, both the laws of the corporation and the certificates themselves contain special restrictions which seem to me to put this question at rest. I do not suppose that a corporation, without something very extraordinary in its charter, can place such restraints upon the sale of its stock that the individual holder may not transfer as good a title in equity as he himself possesses, by any mode of assurance good upon general principles of law. But if' a natural person has an undoubted right so to express the terms of his obligation that it shall not be negotiable in the commercial sense, or in any sense which can give to the purchaser a title superior to that of his vendor, I see no reason to doubt that corporations possess the same right. Has the defendant so expressed itself in these certificates of stock? I think it has. It has distinctly declared, both in its bylaws and on the face of the certificates, that shares can be transferred only on the books and on the surrender of the evidence of the previous owner’s title.’

The fact that the company made the shares transferable only on its books, and on the surrender of the previous owner’s title, seems to be regarded by our Court of Appeals as conclusive of its intention that the shares should not be negotiable.

“ In view of the fact that the bonds here in question contain a certificate of registration in the office of the register of the treasury, and prescribe the form of assignment by which they may be transferred on the books of that office, I hold that these bonds were not intended to be, and were not and are not, negotiable.

“ Third. Is the‘plaintiffs’ right of action barred by the statute of limitations ?

“ This is the second trial of this suit. It was first tried before Hon. Edward Patterson, now a justice of the supreme court, as referee.

“ He found that the action was of such a character as to fall within the six-year limitation of the statute, and that the cause of action accrued more than six years before suit was brought.

“And accordingly he gave judgment dismissing the complaint. Upon appeal to the general term of the Superior Court this j uclgment was affirmed. The opinion of Judge Ingraham in favor of affirmance was concurred in by Judges Sedgwick and Freedman. The judgment was subsequently reversed by the Court of Appeals upon the ground that the plaintiffs’ right of action was not complete against the defendants until April 17, 1878, when the decree pro confesso was entered against McDonald and White, and that, therefore, the plaintiffs’ action was not barred by the statute of limitations. The prevailing opinion in the Court of Appeals was written by Bradley, J., with whom concurred Judges Potter, Van, and Parker. Haight, J., wrote a dissenting opinion, and favored affirmance of the judgment below upon the ground that the cause of action .arose at the time of the sale of the bonds by Biggs &• Co. Judges Follett and Brown concurred in this dissent. It thus appears that of eleven judges who have heretofore passed upon this question, seven have found that the action is barred by the statute of limitations, and four have found that it is not. Those four, however, constituted a majority of one of the divisions of our Court of Appeals which pronounced the judgment of reversal, and of course, therefore, their view must now prevail unless there is some essential variations between the facts as they appear upon the present trial and the facts which were before the Court of Appeals when it ordered the reversal of the judgment entered on Judge Patterson’s report.

“It is claimed by counsel for the defendants that there is such essential variation.

“ They argue that the basis of Judge Bradley’s conclusions was the finding of the former referee that the payment by McDonald to these plaintiffs of the sum stipulated in their agreement was ‘ to be made a lien ’ upon the claim, etc., etc., and that if the learned judge had been advised by the appeal-book of the precise terms of the agreement (as was not in fact the case) he would have taken a different view of the matter.

“ The agreement, after fixing the amount of the plaintiffs’ compensation, provides that its payment ‘ is hereby made a lien upon the said claim.’ In its decree of April 17, 1878, the supreme court of the District of Columbia refer to the lien in these words: ‘ The payment of which sum was agreed to be and made a lien on the said claim.’

“ Referee Patterson granted the plaintiffs’ third request to find at the former trial, and found that the payment of the sum agreed on as the plaintiffs’ compensation from McDonald 6 was made a lien upon the said claim and upon any draft,’ etc., etc.

“ In the course of his opinion in favor of reversing the judgment below, Judge Bradley says: 6 Plaintiffs’ right to a lien existed in contract entered into before the award was made by the commission, by the terms of which the payment of their claim for services was to be made a lien upon it.’ Elsewhere he refers to the contract on which the plaintiffs rely as executory, and he then says: (The lien upon which the plaintiffs relied existed in executory contract and was cognizable in equity only until it was perfected, either by recognition or contract of McDonald, in terms making it so in presentí after performance by the plaintiff, or by decree to that effect.’ He says at a later stage of his opinion; ‘ The contract in question may be treated as an agreement to give the plaintiffs a lien dependent upon the terms and conditions of the contract, and while it attached as a lien in equity upon the award when made, it was not, by force of the contract, made a specific lien in presentí or recognizable at law until it was perfected by the decree.’

“ After careful consideration of the opinion of Judge Bradley, and of the action of the Court of Appeals upon the application of these defendants for a reargument, it seems to me that if the facts as they then appeared before the court had been precisely such as appear upon the present trial, its decision in the matter of the statute of limitations would not have been changed.

“ When Judge Bradley referred to the agreement as ‘ executory ’ he had in mind, I think, the fact that the services with which the lien was associated were to be thereafter rendered, and that unless they should be in fact rendered the lien would be inoperative. And the learned judge then proceeded to the conclusion that the plaintiffs’ lien could not become perfect until, after the services should have been in fact rendered, such lien should either be acknowledged by McDonald or recognized by decree. Acting upon that interpretation of the meaning of the decision of the Court of Appeals, I feel bound to hold that this action is not barred by the statute of limitations.

Fourth. Does the final decree of the Supreme Court of the District of Columbia, entered on the 17th day of April, 1878, furnish sufficient support for its judgment in favor of these plaintiffs ?

It is claimed in their behalf that their lien is conclusively established by such decree, and that, even if the Supreme Court of the District of Columbia was clearly in error in taking the steps which led up to the making of that decree, the error is one which can only he taken advantage of in a direct proceeding for its correction, and its existence must in this collateral proceeding be wholly disregarded.

The testimony shows that the bill of complaint in the District of Columbia action alleged the execution of the aforesaid agreement between the plaintiffs and the defendants, and the rendering of the services called for by that agreement so as to perfect the plaintiffs5 lien. It further shows that in May, 1876, an answer was interposed by the defendants, McDonald and White, denying that the plaintiffs had rendered any services under said agreement, and alleging that the execution of that instrument had been obtained by fraud. It shows, too, that testimony had been taken in the action by both the plaintiffs and defendants, and that when the cause came upon the calendar at special term in April, 1877, it was certified to the general term, there to be heard in the first instance.

“ I have already referred in detail to various proceedings in the Supreme Court of the District of Columbia between June, 1877, when McDonald and White were orderéd to pay into the registry the sum of $49,297.50, and April, 1878, when, in disregard of the answer of McDonald and White and of the testimony that had been taken in their behalf, that court entered judgment in accordance with the prayer of the complainants. There was no adjudication, nor was there pretence of adjudication, upon the actual merits of the matters in controversy, for the court had theretofore stricken the defendants’ answer from the files, and had avowedly and distinctly pursued that course by way of punishing the defendants for their contempt in refusing to obey the court’s order for the deposit of moneys in its registry.

Now, it is a well-settled doctrine of our Federal jurisprudence that the United States courts have no common-law jurisdiction, but such jurisdiction only as has been conferred upon them by statute. The statutory authority for punishment for contempts in those tribunals is limited to the imposition of a fine or of imprisonment. Section 17, Judiciary Act, 1789; Revised Statutes, U. S., § 725; Section 34, Act of February 21, 1871; Anderson v. Dunn, 6 Wheat., 227; Ex parte Robinson, 19 Wall., 512.

It seems clear that in pronouncing its decree of April 17, 1878, under the circumstances that I have already referred to, and after the striking of the defendants’ answer from the files by way of punishment for their contempt, the Supreme Court of the District of Columbia transcended its authority.

Is its decree for that cause void ?

McVeigh v. U. S., 11 Wall., 259, was decided upon the following state of facts : Certain property there in controversy had been seized by a United States marshal in 1863 and libeled for forfeiture upon the allegation that its owner had held an office of honor under the Confederate Government, and that he had in various ways given aid and comfort to the rebellion. In response to the monition which had cited all persons interested in the property, or claiming an interest, to appear and make their allegations in that behalf, the owner had appeared and had filed claim and answer. The district attorney thereafter moved that such claim, answer and appearance be stricken from the files on the ground that the claimant, as his answer disclosed, was, at the time of filing the same, 4 a resident within the city of Richmond, within the Confederate lines, and a rebel.’ The motion of the district attorney was granted; a decree of condemnation of forfeiture was entered, and the property was sold. The decree was subséquently affirmed by the circuit court, and thereafter the case was taken by writ of error to the Supreme Court of the United States. Mr. Justice Swayne, delivering the unanimous opinion of the court, 11 Wallace, 259, said : (In our judgment the district court committed a serious error in ordering the claim and answer to be stricken from the files. As we are unanimous in this conclusion, our opinion will be confined to that subject. The order, in effect, denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.’

At a later day the validity of the same decree was brought collaterally in question in the case of Windsor v. McVeigh, 93 U. S., 274, which was an action of ejectment. In delivering the opinion of the Supreme Court, Mr. Justice Field, after citing the language above quoted from the opinion of his associate justice, said : 6 The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. Until notice is given the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be by the law of its organization over the subject-matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or charges made; it is a summons to him to appear and speak, if he has anything to say why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, Appear, and you shall be heard,” and when he has appeared, saying : “ Your appearance shall not be recognized, and you shall not he heard.” In the present case the district court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered. It is difficult to speak of a decree thus entered with moderation ; it was in fact a mere arbitrary edict, clothed with the form of a judicial sentence. The law is and always has been that whenever notice or citation is required the party cited has a right to appear and to be heard ; and when the latter is denied, the former is ineffectual for any purpose. The denial to a party in such a case of the right to appear is, in legal effect, a recall of the citation to him.....The position of the defendants’ counsel is that, as the proceeding for the confiscation of the property was one in rem, the court by seizure of the property acquired jurisdiction to determine its liability to forfeiture, and consequently had a right to decide all questions subsequently arising in the progress, of the cause, and that its decree, however erroneous, cannot, therefore, be collaterally assailed.....The doctrine invoked by counsel that where a court has once acquired jurisdiction it has a right to decide every question which arises in a cause, and that its judgment, however erroneons, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application.

. . . . Though the court may possess jurisdiction of a cause, of the subject matter, and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgments; it must act judicially in all things, and cannot then transcend the power conferred by law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract.....The judgments mentioned, given in the cases supposed, would not be merely erroneous; they would be absolutely void, because the court in rendering them would transcend the limits of its authority. .... So a departure from established modes of procedure will often render a judgment void; thus the sentence of a person charged with felony upon conviction by the court without the intervention of a jury would be invalid for any purpose.....The doctrine stated by counsel is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent and character of its judgment, the law which is applicable to it.....It was not within the power of the jurisdiction of the district court to proceed with the case so as to affect the rights of the owner after his appearance had been stricken out and the benefit of the citation to him thus denied. For jurisdiction is the right to hear and determine; not to determine without hearing.’ “ Mr. Justice Wood, delivering the opinion of the Supreme Court of the United States in United States v. Walker, 109 U. S., 258, said: ‘ Although a court may have jurisdiction over the parties and the subject-matter, yet if it makes a decree which is not within the powers granted to it by the law of its organization, its decree is void.’

Thomas M. Wheeler, attorney, and H. B. Titus of counsel, for appellants.

In the case just cited, the Supreme Court upheld a collateral attack upon a decree of the Supreme Court of the District of Columbia. That court was authorized to hold terms for the transaction of orphans’ court business; it was proceeding with the settlement of the account of an administratrix of a decedent’s estate. Over that account, and over the administratrix herself, the court had unquestioned jurisdiction. The decedent had been administrator of another estate, not fully administered at the time of his death. An administrator de bonis non of such other estate had been appointed, and the decree directed the accounting administratrix to pay over to such administrator de bonis non a certain sum of money. The Supreme Court of the United States held that the administratrix de bonis non was not entitled to recover from the accounting administratrix; that the supreme court of the district had exceeded its jurisdiction in making the order, and that the order was therefore void. This course was taken, not in a direct proceeding to review the decree, but in an action at law on the administrator’s bond.

Upon these authorities, and numerous others to which I have been referred by counsel, I hold that the validity of decree of the Supreme Court of the District of Columbia may properly be inquired into in this action ; and upon careful consideration of all the evidence, I am of the opinion that such decree is invalid for want of jurisdiction of the court wherein it was entered to enter the same; and because of this invalidity I find that the defendants herein are entitled to judgment.”

R. D. Harris, attorney, and William G. Choate and John Selden of counsel, for respondents.

Per Curiam.

Upon the case as now presented the right of the plaintiff to any relief whatever rests upon the alleged decree of the Supreme Court of the District of Columbia entered on the 17th day of April, 1878. The referee found that the decree was invalid for want of jurisdiction of the court wherein it was entered to enter the same.

The question of validity or invalidity of the decree must be determined by the laws of the United States, and by the interpretation of those laws by the Supreme Court of the United States. Whether a decree of the same character made under the same circumstances by a court of the state of New York, or of any other state, would or would not be valid, is an immaterial question, if under the decisions of the Supreme Court of the United States the decree was one which a federal court was wholly incompetent to make. Upon a careful examination of all that has been cited upon this point by both parties, we are of the opinion that the learned referee reached the right conclusion.

The judgment should be affirmed, with costs, upon that part of the opinion of the referee which relates to the question of jurisdiction.


source: Caselaw Access Project

author: McAdam, J. Per Curiam.

license: Public Domain

text:
    JACOB LORILLARD, Respondent v. WILLIAM P. CLYDE, et al., Appellants.

      Contract of guaranty—Action to recover dividends, at the rate of 7% per annum,, on $150,000 of the capital stock of the Philadelphia and Pew York Steam Navigation Company.

    Defendants claimed that the dissolution of the corporation, by proceedings set forth in their answer, released them from the performance of the con-, tract of guaranty, and the effect of those proceedings upon the contract, and how far they furnish a legal excuse for non-performance, is the main question for decision.

      Held, by the court below, and now on appeal, that the contract was not affected by said proceedings and they constituted no defence to the action.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided October 24, 1892.
    Appeal by defendants from a judgment rendered in favor of plaintiff, after a trial before the court at the trial term without a jury.
    The facts and points in the case appear fully in the following statement and opinion of the court below, upon which the judgment appealed from is affirmed.

      “ The plaintiff and defendants, were engaged in the business of transporting freight between New York and Philadelphia. The plaintiff owned what was called the outside line, and the defendants ran what was known as the inside route. They were competing for trade, a course detrimental to both. The parties came together on May 5, 1874, entered into an agreement in writing for the purpose of consolidating the conflicting interests, and uniting their capital under one management, a scheme supposed to be mutually beneficial. It provided for the consolidation of the two lines, in a corporation to be formed under the laws of the state, with a capital of $300,000. The property put in hy Lorillard was valued at $170,000. That contributed by the defendants was rated at $130,000. The parties were to take stock to the extent of their respective interests, and the defendants were to purchase $20,000 of Lorillard’s stock, which would bring that held by him down to $150,000, and increase that possessed by them to an equal amount. The arrangement was carried out, the corporation formed, the property conveyed to it and stock issued and transferred in the manner stated. The agreement further provided that the defendants should have the management of the corporation and business, and that they should guarantee to the plaintiff a dividend of not less than seven per cent, per annum for seven years. The agreement went into effect July first, 1874. The defendants were to receive for their management the usual commission of two and a half per cent, in and five per cent, out on the freight carried, and it was agreed that the management of the line should be in good faith and as economical as consistent with the interests of the business. The defendants have, by force of judgments and otherwise, paid the agreed seven per cent, up to the first day of July, 1879. The present action is to recover the so-called dividends from that time until July first, 1881, when the time for their payment according to the terms of the contract expired.
    “ The main defence urged by the defendants is contained in the twelfth paragraph of their amended answer, as follows: e That the consideration for which • they entered into the covenant to guarantee to the plaintiff a dividend of not less than seven per cent, per annum for seven years upon the capital stock held by the plaintiff, was the provision contained in said agreement that the defendants should have the management of said corporation and business, and receive the commissions and other benefits provided for in said contract for the full period of seven years for which said dividend was guaranteed. That in violation of said agreement the said plaintiff, on or about the 14th day of April, 1879, procured an action to be brought by the attorney-general in the name of the people of the state, in the Supreme Court, against said corporation and these defendants and Benjamin Betts, John A. Leslie and Amos Rogers, as officers and incorporators thereof, for the dissolution of said corporation. That the action then brought in the name of the people was in fact instituted and carried on in the interest and for the benefit of the plaintiff, and was continued and managed throughout by him and his private counsel, and at his sole instance, and that shortly after the commencement of this action, the plaintiff was, by an order of the Supreme Court, duly entered in said action, made a party plaintiff with the people, and thereafter remained a party thereto. That on or about the 10th day of July, 1879, by an order of the Supreme Court made in said action, one Howard P. Moody was appointed the receiver of the said corporation, and thereupon entered upon the performance of his duties as such receiver and took possession of all the steamers, assets, books and property of the said corporation. That final judgment was thereafter entered in said action dissolving said corporation and vacating its charter, and all the property and assets were sold or disposed of and its business wound up and destroyed. All of which matters, acts and things were done or procured to be done by the said plaintiff, and that from and after the appointment of the said receiver the defendants were deprived of all and any management dr control of said corporation or its business.’

      “ How far the proceedings just referred to furnish the defendants with a legal excuse for not performing their contract with the plaintiff is the main question now to be decided.”
   McAdam, J.

“ Formeradjudications made in actions between the same parties on the identical agreement have conclusively determined several matters which must now be regarded as authoritatively settled. First. That the contract sued upon is valid and enforceable. Lorillard v. Clyde, 86 N. Y., 384. Second. That the defendants were liable upon it during the time the corporation subsisted defacto, although there existed causes for its dissolution. Same v. Same, 16 J. & S., 409, aff’d 99 N. Y., 196. Third. That separate actions may be brought on the contract as the installments fall due, and separate recoveries had in each. Same v. Same, 122 N. Y., 41. Fourth. That the plaintiff was in no legal sense a party to the action by the people of the state, and not concluded by the findings therein. Same v. Same, 16 J. & S., 409 ; 99 N. Y., 196, supra.

The only phase of litigation not fully covered by these determinations is the effect of the final dissolution of the corporation upon the rights and liabilities of the parties; and in disposing of this issue the nature and purpose of the special agreement sued upon must be kept prominently in view. The contract was made prior to the formation of the corporation, was not merged in it, but was to exist independently of it. It was not an obligation to pay dividends, technically so-called, for that term means a sum which a corporation sets apart from its profits to be divided among its members. Lockhart v. Van Alstyne, 31 Mich., 76; Taft v. The Hartford R. R. Co., 8 R. I., 310; Morawetz on Corporations, § 457. And no corporation can declare a dividend except from surplus profits. 2 R. S., 7th ed., p. 1364, § 1. And it is an offence to withdraw or pay a stockholder any part of the capital stock. Penal Code, § 594.

“ It is evident, therefore, that the term dividends was used in the agreement arbitrarily, not in its literal sense, and merely as indicating a profit the plaintiff was to receive not from the corporation but from the defendants, for they were to pay the plaintiff the so-called dividends whether the corporation made profits or losses, and without regard to the amount of either. The payments were to continue absolutely, and at all events for the period of seven years, the promise to pay being the consideration, upon which the plaintiff consented to the consolidation, transferred the competing line to the corporation and yielded its management to the care of the defendants.

“ The plaintiff did all he agreed to do, and the defendants took the responsibility of every contingency that might happen for seven years thereafter.

The plaintiff had the right to assume that the defendants, upon taking control of the corporation, would manage it within the limits of the corporate' charter. The power to control certainly implied the duty of managing the trust faithfully and with due regard to the state as well as to the individual rights and interests of all concerned. The defendants must be held to have known that in case of misuser of the corporate franchises, or departure from any of the specific objects for which the corporation was instituted, it was liable to have its charter annulled at the suit of the state ; for, as Justice Story said in Terrett v. Taylor, 9 Cranch, 51: ‘A private corporation may lose its franchises by a misuser of them, and they may be resumed by the government under a judicial judgment upon a quo warranto to ascertain and enforce the forfeiture. This is the common law of the land, and the tacit condition annexed to the creation of every such corporation.’

The possibility of forfeiture depending, as it did, upon the proper management of the corporate affairs by the defendants, was not permitted by the plaintiff to be made a condition upon which the payments promised were to cease, and no such condition can be added now by implication or otherwise. The plaintiff did not rescind the agreement, and brought no action calculated to determine it, or to absolve the defendants from its complete performance.

“Suits to determine the forfeiture of corporate franchises must he at the instance and under the authority of the King, in England, and of the state in this country. Private individuals have no control of the proceedings, for they are matter of public and not of private concern. The provisions regulating such actions are contained in section 1798 of the Code, and the form of judgment is prescribed by section 1801; and there is nothing in either section, or in the procedure, which operates upon or affects the agreement in suit.

“ If it had been an agreement where dividends were to he paid from the earnings of the corporation, it would even then be unnecessary to consider the effect of the judgment dissolving the corporation, for the reason that the want of earnings would he a complete defence in itself without reference to the cause of their non-existence. But, as before suggested, it is immaterial under this agreement whether there were profits or even losses, for, without regard to either, or the sources from which losses might arise or profits accrue, the plaintiff was to receive from the defendants a sum equal to seven per cent, upon his capital stock, and this they were to pay absolutely and without reference to any future possibility. The rule is that when a party has undertaken absolutely to do a thing he is not excused from liability by the occurrence of events which render the performance of his promise impossible; or, as Blackburn, J., expressed it, We think it firmly established, both by decided cases and on principle, that where a party has either expressly or impliedly undertaken, without any qualification, to do a thing and does not do it, he must make compensation in damages, though the performance was rendered impracticable by some unforeseen cause over which he had no control. Ford v. Cotesworth, L. R., 4 Q. B., 134. If a person create a charge upon himself he is bound thereby, notwithstanding the occurrence of any contingency, because, if he had chosen, he might have provided .against it by the stipulations in his contract. Chitty on Con., 11th Am. ed., 1074-1075 ; 3 Am. and Eng. Enc. of Law, 900.’

“The claim that the proceeding by the state which resulted in taking from the defendants the management of the corporation interfered with their performance of the contract with the plaintiff is sufficiently answered by the fact that the action of the state was founded solely on the misconduct of the defendants as managing agents. Morawetz on Corp., 1016. The defendants should have foreseen and prevented these consequences. Proper management would have averted them and rendered state or private interference or loss of control impossible. In this aspect of the case reference may be made to another rule, which holds that where performance of a contract is rendered difficult, or even impossible, by the act of the party who is chargeable therewith, such impossibility furnishes him with no defence to an action founded on the obligation Ghitty, supra, § 1079; Woolner v. Hill, 93 N. Y., 576. The action was brought by the state, and Lorillard was subsequently joined as co-plaintiff by consent. His presence added no force to the proceeding. He did not seek or obtain any personal relief, nor could he receive any in that action. The judgment did not pass on his legal rights under the contract in suit, and nothing was adjudicated against him. The fact that the plaintiff encouraged the state to assert its rights against the defendants and indemnified its costs did not turn that litigation into one of his own. Lorillard could gain no personal advantage by that litigation, and he suffered no pecuniary loss from it. The state was asserting a sovereign right in an action which it alone could maintain, and joining a private individual as co-plaintiff or relator neither impaired nor enlarged the scope of the proceeding. If the litigation had been one calculated to transfer the management of the corporation from the defendants to the plaintiff, or if Lorillard had been joined as defendant, and had, with the other defendants, been adjudged guilty of the wrongs committed, the judgment in that proceeding might have had some significance, but that is not this case. If the plaintiff’s contract had been with the corporation, its dissolution might, perhaps, have terminated it. Corporations are born of the state and may die by expiration of charter, or by annulment, or dissolution. At common law the assets of a dissolved corporation reverted to the Crown, and the debts due by it were canceled. 2 Kent’s Com., 307; Angell & Ames on Corp., 667. The statute changed this inequitable principle by declaring that on the dissolution of a corporation, the directors or managers thereof (unless some other person be appointed by the legislature or the court) shall be trustees of the creditors and stockholders. 2 R. 8., 7th ed., p. 1531, § 9. So that, although the corporation may die, its estate is to be administered in practically the same manner as the estate of any natural person. The expiration of the charter does not terminate the corporate existence in such a sense as to prevent an action in the corporate name by its sole surviving director to establish its rights of property for the benefit of stockholders. Taylor v. Holmes, 127 U. S. R., 489. Nor does a lease to the corporation terminate by its dissolution. People v. Trust Co., 82 N. Y., 283. The case of the People v. Globe M. L. I. Co., 54 How., 240, affd 91 N. Y., 174, was a contract for personal services which, in its nature, was terminable on the death of either of the contracting parties. And so People v. O’Brien, 111 N. Y., 54. But it is idle to discuss what effect the death of the corporation would have produced if the contract would have been made with it, or made dependent on its continued existence. The contract was entered into by the defendants on their own behalf; was not dependent on continued corporate life for vitality or energy, and nothing within the range of possibility excuses its performance. Beebe v. Johnson, 19 Wend., 500 ; Harmony v. Bingham, 12 Ib., 99 ; Booth v. Spuyten D. R. M. Co., 60 N. Y., 487. This principle was settled as far back as Paradine v. Jayne, given us by the old reporter, Alleyn, in 23 Charles II. The defendant there had taken a lease, covenanting to pay rent. He pleaded that a certain German Prince by the name of Prince Rupert, an alien born enemy to the King and Kingdom, had invaded the realm with a hostile army of men, and with the same force had entered upon the defendant’s possessions and him expelled, whereby he could not take the profits. On demurrer the court resolved that the matter of the plea was insufficient, and that he ought to pay his rent; and this difference, says Alleyn, was taken, that when the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him; but where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. This was then, has ever since been, and is now the law. The obligation the plaintiff seeks to enforce was not created by the law, but By the voluntary act and contract of the parties, and the strict rule in regard to literal performances is applicable. A number of cases affirming the principle stated will be found collated in 2d Smith’s Leading Cases, 8th ed., 39. If inexorable impediments lie in the way of performance and a loss must ensue, the law leaves the loss where the contract places it. If. the parties have made no provision for a dispensation, the rule of law gives none. It does not allow a contract fairly made to be annulled, and it does not permit to be interpolated what the parties themselves have not stipulated. To do otherwise would be to make the construction of a contract depend, not upon the intention of the parties when it was entered into, but upon the incidents of the future. Vide Smith, supra, pp. 40, 41. The exceptions to the rule are clearly stated in Dexter v. Norton, 47 N. Y., 64-65, and apply only where the parties contemplated the continued existence of the particular person or thing which is the subject of the contract, and such person or thing is, without the fault of either party, rendered incapable of answering the purpose of the contract, as in the case of a particular musical hall destroyed by fire (3 B. &. S., 286); the sale of a certain horse to be delivered at a future day and the horse died in the interval. Benjamin on Sales, 424; Carpenter v. Stevens, 12 Wend., 589. In the case of an apprentice who became permanently ill, and of a woman who, from illness, was unable to perform as a pianist (4 C. P., 1 L. R., 6 Ex., 269, L. R.), it was unnecessary to guard expressly against these contingencies, for they were excepted from the very nature of the undertaking. To come within the rule excusing performance, the incapacity to perform must be involuntary and without fault. In the cases put had it appeared that the hall had been destroyed or the horse killed by the negligent act of the promisor, he would have been clearly liable to make good all loss for not furnishing the thing agreed. So if the illness of the apprentice or sickness of the pianist had been caused by their own misconduct neither would have been excused from responding to damages. The law reasons and acts upon sound logical principles and considers causes in determining effects, for the legal consequences flowing from one spring may not flow from another. The case at bar, though near the border line, rests securely on that side which finds recognition in the general rule stated,, and does not reach into or invade that domain where the principle illustrated by the exception finds application. Here the administration of the corporate franchise was the direct result of wrongful conduct on the part of the defendants in their management of the property intrusted to their care and control. This circumstance affects largely the legal result of the question submitted for decision. Suppose the defendants had wrongfully created corporate liabilities on which judgments had been recovered against the corporation, or had by some neglect allowed the vessels of the line to be libeled, and the management had in consequence passed from them to strangers under execution, or marshal’s sales of the corporate property. Could it have been seriously contended that such a change in the condition of things would have furnished the defendants with any legal excuse for not performing their contract with the plaintiff ? Certainly not. The plaintiff had $150,000 of his capital invested in the enterprise, and apart from the question of stipulated profits, which were incidents merely, he was interested in having the management conducted within the limits of the law, and had a right to call the attention of the state to any infraction of the charter which imperiled his capital, and this without impairing any of his legal rights, remedies or collateral obligations against those guilty of the wrongs the state attempted to right. The fact that the proceeding was instituted on information imparted by the plaintiff can have no other effect than if the facts communicated had been given by a stranger. The attorney-general was charged with a public duty, and how or from whom he obtained the information upon which he acts is matter, of little concern, so long as the information proves true and the proceeding results successfully to the state. Much of the fault found with corporations is their increasing tendency to extend their operations beyond their organic purpose. They are mere creatures of the law. Their rights and liabilities are defined by it, and it becomes the duty of the state to keep them within the limits of the powers conferred. A corporation organized to manufacture cannot engage in shipping, banking, insurance or railroading. 'Nor can corporations chartered for either of these specific purposes engage in enterprises foreign to the object of their creation. Corporations are given especial privileges, not to favor those to whom the franchises were granted, but with a view to the advantages that may accrue to the public, as in this instance from facilities afforded for travel and the movement of trade and commerce. The state is, as to domestic rights and corporations, a sovereign power. It may, through want of knowledge of an infraction of its laws, or from indifference, tolerate trivial transgressions, for toleration is not licence; but when it is called upon to right wrong, its authority is more far-reaching than many at times contemplate. This attribute of the state is to be exercised whenever the public good requires its interference, and it matters not who awakens it to its sense of duty. The people are the sequestrators, not the informant through whose agency the machinery is put in motion. Nor are the motives of the informer of any moment so long as the end justifies the means and the legal result is established which approves the action of the state in the premises. Motives can never make that wrong which in its own essence is lawful. It may be a misfortune to the defendants that they lost the source from which they expected to realize the moneys promised to the plaintiff, but after the court, in an action to annul the charter, determined that this individual misfortune was necessary to the public good, it is idle to dwell upon this phase of the case with solicitude. The efforts to prove that the plaintiff was a participator in the wrongs adjudicated to have been committed by the defendants have failed, and as a result he stands free from whatever legal consequences might have followed if he had been particeps criminis with them. There are cases in the books (and among them Hollingshead v. Woodward, 107 N. Y., 96; Sturges v. Vanderbilt, 73 Ib., 390 ; Munna v. Potomac Co., 8 Peters, 281; Reade v. Frankforth Bank, 23 Maine R., 321), holding that the dissolution of a corporation is its death; that parties dealing with it contract with reference thereto; that no judgment can thereafter go against it; that a stockholder therein ceases to he such, so far as exemption from corporate penalties is concerned; but a discussion of the reasons for these decisions is unnecessary, because the principles decided do not reach the issues presented by the present record. For the same reason it is unnecessary to consider the rule that where an act is done by public authority which renders further performance of a contract impossible, the contract is dissolved. Melville v. DeWolf, 82 E. C. L. R., 842; Jones v. Judd, 4 N. Y., 411; Hildreth v. Buell, 18 Barb., 107. The contract was not made with the corporation, nor was it dependent on its continuation for support. There is no defence to the action, and the plaintiff is entitled to judgment for $33,757.50, the amount claimed, and interest.”

Boardman & Boardman, attorneys, and James C. Carter, William N. Dykman and Edwin C. Boardman of counsel, for appellants.

Glover, Sweezy & Glover, attorneys, and Richard L. Sweezy and Asa Bird Gardiner of counsel, for respondents.

Per Curiam.

The judgment appealed from is affirmed, with costs, on the opinion of the court below.


author: By the Court.—Freedman, J.

text:
    JACOB K. HETSCH, Appellant v. T. BRIGHAM BISHOP, Respondent.

      Order of arrest, exception to the sufficiency of hail and proceedings thereon.

      Held, that this order cannot be sustained. The plaintiff had not waived his right to the examination of the sureties, but had proceeded regularly to enforce it.
    Before Freedman and Gildersleeve, JJ.

      Decided December 5, 1892.
    Appeal from an order denying plaintiff’s motion to compel the sheriff of New York to accept a notice of exception to the sufficiency of bail given by defendant, and providing further that if the plaintiff decline to permit the approval of the sureties to stand, that the order of arrest should be considered vacated.

      Myer J. Stein, for plaintiff-appellant, argued:—
    I. Plaintiff either was or was not absolutely entitled to the justification of the sureties. There was no question of discretion involved. It has always been supposed hitherto, that when a defendant gave bail in the sheriff’s office, and the sheriff caused a copy of the bail-bond to be served on the plaintiff’s attorney, and such attorney served a notice of exception within the statutory time, that under such circumstances, he had the absolute right to have the sureties justify in open court and to have the question submitted to the court, as to their sufficiency, and be heard as to the sufficiency of the form of the undertaking. Code, §§ 573, 581. The notice of exception served on the sheriff in this case was not only to the sufficiency of the sureties but to the form of the undertaking. The sheriff’s counsel recognized the right of plaintiff to except to the sureties and to the j ustification by serving the undertaking. If he intended to rest upon the ex parte approval of the undertaking by the judge he should not have served copy of the bail-bond. Having done this, he is estopped now from claiming that the plaintiff had no right to except to the sufficiency of the sureties and to the form of undertaking. This undertaking was served by the sheriff’s attorney upon plaintiff’s attorney on June 1, 1892. On that day a notice of exception was duly served, and on the same day it Avas returned, because it had already been approved by the court. This was taking the position that the matter was at an end, and that the plaintiff had no rights in the premises. The plaintiff either had the absolute right to except to these sureties and have his notice of exception stand and have them justify in open court under the provisions of the Code, which we have cited, or he had no rights whatever. Section 572 of the Code provides that it is not necessary that the undertaking should he approved or accompanied by an affidaAÚt of justification of the bail, but that the officer taking the acknowledgment of the undertaking must, if the sheriff so requires, examine under oath, to a reasonable extent, the bail, concerning their property and circumstances, and if this is done, that it must be reduced in writing, subscribed by them, and annexed to the undertaking. This is largely formal and was done in the present case by the commissioner of deeds connected with the sheriff’s office. Section 577 provides that within three days after the hail is given, the sheriff must deliver to the plaintiff’s attorney copies certified by liim of the order of arrest, warrant and undertaking, and that such attorney, within ten days thereafter, must serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted them, and. the sheriff is exonerated from liability. Section 578 provides that within ten days after the receipt of the notice, the sheriff or the defendant may serve upon plaintiff’s attorney notice of justification of the bail or other bail, specifying places of residence and occupation of each of the latter, before a judge of the court, or a county judge, at a specified time and place. Section 579 provides that the bail must be residents of and householders or freeholders within the state. Section 580 provides that for the purpose of justification, each of the bail must attend before the judge at the time and place mentioned in the notice and be examined on oath on the part of the plaintiff touching his sufficiency, in such manner as the judge in his discretion thinks proper, and that the judge may adjourn the examination from day to day, and if required by the plaintiff’s attorney, the examination must be reduced to writing and subscribed by the bail. Section 581 provides that if the judge finds the bail sufficient, he must annex the examination to the undertaking, endorse his allowance thereon, and cause the same to be filed with the clerk, and that the sheriff is thereupon exonerated from liability. It would seem that these provisions are too plain to admit of any cavil, and provide that if an exception to bail is duly served by the plaintiff, he has the right to have the parties appear in court and to examine them, and if they are found sufficient, then and not till then can they be approved by the court, and then and not till then is the sheriff released from liability, as bail. In this case, it is not claimed that the plaintiff made any waiver of his rights. In fact, as soon as the bail bond was served upon him, he took prompt action, excepted to the sufficiency of the sureties and to the form of the undertaking, and as soon as this notice was returned, he promptly made his application to the court. There is no provision in the Code which we have been able to find, which permits a judge to take away the right of the plaintiff to examine bail. Of course, we can all conceive of a situation where the plaintiff might come before the court asking a favor of some kind and the court could then order that as a condition of granting the relief, the plaintiff should waive his right to examine the sureties, but there is nothing of that kind in this case. That the right of arrest and to hold to bail is a substantial one, is beyond question. The taking away of this, affects a substantial right of a litigant. Levy v. Salomon., 105 N. Y., 520, 533.
    II. If the application rested in the discretion of the court, it is then respectfully submitted that this is a case where the discretion should have been- exercised in favor of the plaintiff. The action was one in which his Honor, Judge McAdam, granted the order of arrest, and after an examination of facts, which have never been disputed, held that it was a proper case for arrest, and fixed the bail at the sum of three thousand ($3,000) dollars. The papers presented show that it is an aggravated case. The defendant fled the jurisdiction when under arrest in the City Court action, gave fraudulent bail, which was rejected by the court, and when execution was issued against his person he was not to be found. That action, which was one of conversion, resulted in a judgment against him, which has not been paid. Shortly after, when he was finally surrendered by one of his bail, he turned around and from motives which are perfectly plain, swore out a warrant for the arrest of the plaintiff in this action for perjury and dragged him through a lengthy examination before a police judge and obtained the matter to be widely advertised in newspapers. The defendant, when arrested in this action, claimed that he was unable to give bail in the sum fixed by the judge and the same was reduced to one thousand dollars. He was allowed to go in the custody of his counsel, and then refused to surrender to the sheriff, and only did so after a motion had been made to punish his attorney for contempt. He then gave an undertaking with two sureties (relatives) upon the same, who pretended to be residents of the city of New York. It appeared, however, that they were then actually living in New Jersey. Whether they were bona fide residents of New York might be a question open to discussion. At least, that was one of the questions which the plaintiff believed he had the right to inquire into and discuss before the court. One of the pieces of property given by the defendant’s wife was mortgaged. Its value was problematical. The balance of the security given by her was personal property, which is always of a very illusive nature when an attempt is made after litigation to realize. The other surety, a son of defendant, pretended that he was a resident of the city of New York, although actually living in New Jersey at the time, and he gave some suburban property in Brooklyn as security, and also illusive personal property. These persons living in New Jersey would no doubt have been very difficult to find, if an attempt was ever made to subject them to a liability as bail. Under these circumstances, and knowing the defendant’s record, that he had fled the jurisdiction, and finally, was surrendered by one of his bail, it was perfectly natural that the plaintiff’s attorney should desire to examine the bail, in this action, and it would seem that under the state of facts disclosed, that if it were a matter resting in the wise judicial discretion of the judge, that he should have permitted such examination. We all know that a formal affidavit of justification, made without the opportunity for cross-examination by the adverse party, amounts to little. The affidavits of the sureties, taken in the sheriff’s office, were so made. The learned judge, in approving the same, probably did so, as a matter of form, and possibly may have understood at the time that they were satisfactory to the plaintiff, although no stipulation or proof was presented to him to that effect. It would seem, at least, that on his attention being called to the facts to which wre have referred, that he should have been only too glad to have given the plaintiff an opportunity to examine the sureties in open court and test their responsibility. The motion before the court was to compel the sheriff to accept service of the notice of exception, and vacate the ex parte approval of the bail. It is respectfully submitted that the court should have been content with either denying or granting the motion and should have stopped there.
    III. In any event, that portion of the order which goes beyond a denial of the motion should he stricken out. It is respectfully submitted that the portion of the order in this language should be stricken out and the order modified accordingly. “ If the plaintiff declines to permit the approval of the sureties to stand, the order of arrest granted by Mr. Justice McAdam may he considered vacated.”

      William E. Stillings, for the sheriff, in opposition, argued:—
    I. Whilst the Code gives the plaintiff a right to an examination of the sureties on a bond or undertaking, the court undoubtedly has a right to control its mandates and any proceeding which grows out of the issuing thereof, and if the court exercises that right by approving a bond or undertaking, plaintiff must accept such approval, whether it is satisfactory to him or not. If the sureties had attended before a justice of this court pursuant to a notice to appear and justify, and their examination had been taken and their testimony did not disclose sufficient property owned by them to qualify as sureties, as provided by the Code, and the justice before whom such justification was had should deem them suffieientand approve the bond or undertaking, such approval would be final. The Code, section 580, reads as follows : “ For the purpose of justification, each of the bail must attend before the judge at the time and place mentioned in the notice, and be examined on oath on the part of the plaintiff, touching his sufficiency in such manner as the judge in his discretion thinks proper. If required by the plaintiff’s attorney, the examination must be reduced to writing and subscribed by the bail.” Section 582 says, if the judge finds the bail sufficient, he must annex the examination to the undertaking, endorse his allowance thereon and cause them to be filed with the clerk. It is clearly left to the discretion of the judge to decide whether the bail is sufficient. A justice has an undoubted right to vacate an order of arrest upon any grounds, and certainly as in this case, the judge Avho grants the order of arrest can vacate it. All that is necessary is that the justice shall deem it proper to do so. That being so, it follows that the justice who issued the order of arrest in this case may vacate it or impose as a condition for not vacating it any stipulations or requirements he wishes. In this case the learned judge imposed as a condition for not vacating the order of arrest that the plaintiff or his attorney shall not insist upon an examination of the sureties.
    II. The justice who issued the order of arrest having-power to vacate it and having by his decision ordered that the order of arrest be vacated unless the approval of the sureties is allowed to stand, and the plaintiff by his appeal herein having manifested his choice not to let said approval stand, the only result of this appeal, even if this court should hold that plaintiff Avas entitled to an examination of the sureties, would be an affirmance of that part of the order which vacated the order of arrest.
    HI. But if the learned justice erred in approving the bond before plaintiff had examined the sureties, the sheriff should not be prejudiced thereby. The court should protect its executive officers in carrying out its mandates. After a justice of this court had approved the bond, the sheriff had no alternative but to allow the defendant to go from his custody. And by the order appealed from, the learned justice has clearly manifested that it was right and proper, in his opinion, that the bond should be approved and so stand. If the court should now reverse the order of Mr. Justice MoAdam and decide that defendant’s sureties must submit to an examination, it would in effect decide that the bond should never have been approved before plaintiff had examined said sureties, and that the defendant should not have been allowed to go from the custody of the sheriff until the bond had been approved after an examination. But if the sheriff should not be able to retake the defendant and the sureties on the bond should prove worthless, perhaps having become so since said approval, the sheriff might be mulcted in damages to the amount of the bond. It would be unjust and inequitable that an executive officer should be made to suffer for doing his duty, and even if the court should take the view that plaintiff has been deprived of some right, it should not seek to give him relief at the expense of a public officer who has simply discharged his duty.
   By the Court.—Freedman, J.

The material facts to be considered on this appeal are as follows :—

The action is for malicious prosecution. On the 26th óf May, 1892, the defendant was in the custody of the sheriff under and in pursuance of an order of arrest theretofore granted in the action which requires the sheriff to hold him unless he gave bail in the sum of f1,000. On the day named the defendant did give such bail to the sheriff. The undertaking delivered for that purpose was executed by the wife and the son of the defendant, as sureties, who therein claimed that they were permanent residents of the city of New York, although they then temporarily resided at Clifton, N. J. Each of the sureties made an affidavit of justification before a commissioner of deeds in the office of the sheriff. The sheriff thereupon released the defendant from custody. On May 26, 1892, the undertaking was approved ex parte by a judge of this court. On June 1 the sheriff served a copy of the undertaking upon the attorney for the plaintiff, and upon the same day the said attorney duly served upon the sheriff and upon defendant’s attorney notice of exception to the sufficiency of the undertaking and of the sureties. This notice was returned by the sheriff to plaintiff’s attorney, with a notice to the effect that the return of the notice of exception was for the reason that the undertaking, and the sureties thereon, had been approved by a judge of this court before the receipt of the notice of exception. Thereupon the plaintiff’s attorney, upon an affidavit showing the facts, and alleging that he had not examined the sureties or consented to the approval of the undertaking, that he believed the sureties to be insufficient, and that the defendant would probably escape, and insisting upon his right to examine the sureties, moved that the sheriff be compelled to receive the notice of exception and that the ex parte approval of the undertaking be canceled. After a hearing this motion was denied and an order entered denying the same and providing further, that if the plaintiff should decline to permit the approval of the sureties to stand, the order of arrest might be considered vacated. From this order the plaintiff appealed.

This order cannot be sustained. The plaintiff had not waived his right to the examination of the sureties and had proceeded regularly to enforce it. The ex parte approval of the undertaking was not necessary under section 576 of the Code of Civil Procedure, and as it was without any notice to the plaintiff or his attorney, it was, to say the least, merely formal and did not bind the plaintiff. Under section 577 the sheriff was bound to serve a certified copy of the undertaking upon plaintiff’s attorney, and the latter had ten days thereafter to serve notice that he did not accept the bail. Such notice having been duly and immediately given, it became the duty of the sheriff or the defendant, under section 578, to serve notice of justification before a judge of the court, and under section 580 the sureties should have attended pursuant to such notice for the purpose of justification and submitted to an examination by plaintiff’s attorney touching their sufficiency. The manner of the examination is in the discretion of the judge, but, if required by the plaintiff’s attorney, the examination must be reduced to writing and subscribed by the bail. It is only upon the conclusion of such an examination that the contested sufficiency of the bail is to be finally determined, and if then the judge finds the bail sufficient, he must, under section 581, annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk, and thereupon, and not before, the sheriff is exonerated from liability. The language of the section last referred to is too plain to admit of dispute.

For the reasons stated the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

Gildersleeve, J., concurred.


author: By the Court.—Dugro, J.

text:
    FREDERICK L. DEGENER, Respondent v. JOHN T. UNDERWOOD, et al., Appellants.

      Trial before referee—Effect of order of reference entered before-service of amended answer and notice of trial—Waiver of objection by going on with trial instead of moving to vacate proceedings.

    After the issues herein were referred to a referee, the defendants served an amended answer to which plaintiff served a reply. No notice of trial was served after issue joined on the amended answer. The defendants objected to proceeding before the referee at the opening of the trial, on the ground that the issues to be tried were not made until a date subsequent to the order of reference. The referee proceeded with the trial and rendered a report in the plaintiff’s favor. Held, that defendants were debarred from raising this question by their own laches in not seeking relief by motion to vacate the order of reference and proceedings held before the referee, prior to the presentation of their defence.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided December 5, 1892.
    Appeal by defendants from a judgment entered upon the report of a referee in plaintiff’s favor. The action was brought to recover a certain balance alleged to be due plaintiff for services and materials furnished in the construction of a machine for malting manifolding paper. Further facts appear in the head-note.

      James A. Hudson, for appellants.

      J. E. Ludden, for respondent.
   By the Court.—Dugro, J.

There is authority for a appears and makes a defence, a new trial will not be granted because of a failure to give notice of trial (Yonge v. Fisher, 2 Dowl. N. S., 637 ; Doe D’Antrobus v. Jepson, 3 B. & A. D., 402; Thermolin v. Cole, 2 Salk., 646; see 3 Wait’s Pr., 31 and 397; Rumsey’s Pr., vol. 2, page 405); but regardless of this, it is quite certain that the appellants should be held to be debarred from now raising any question as to the service of a notice of trial, because of them laches in not seeking relief by motion to vacate the proceedings had before the referee prior to the presentation of their defence.

By the order of July 9, the clerk was directed to enter judgment as of the 9th day of April, 1891. The judgment thus to be entered was for the sum found by the referee, with interest thereon from April 2 to April 9, and the costs and disbursements, in all $40.53, less than the amount of the judgment entered by the clerk. The entry of the judgment should be corrected accordingly. A careful examination of the case discloses no error requiring a reversal. The judgment, entered as ordered, to be corrected, is affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.


author: Per Curiam.

text:
    WILLIAM A. HAGGERTY, Appellant v. JAMES J. PHELAN, Respondent.

      Amended answer, terms on which leave to serve same should be granted. Where a demurrer was sustained to a portion of the answer with leave to amend upon payment of costs within a time specified, defendant paid costs but neglected for nearly a year to serve such amended answer, and when the cause was about to be reached for trial moved to be relieved from his default and to be allowed to serve such amended answer which motion was granted on payment of twenty dollars additional costs. Held, that the order should also have imposed as a comdition, the payment of the accrued term fees, and order modified accordingly.

    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Appeal from order allowing defendant to serve an amended answer on terms, his time to do so having long expired.

      Charles M. Hall, for appellant.

      Samuel E. Duffey, for respondent.
   Per Curiam.

Order modified by imposing payment of fifty dollars accrued term fees in addition to the costs provided in the order, and, as modified, affirmed without costs of appeal.


author: The Court held (Per Curiam),

text:
    ELLA M. SEYBOLD, Respondent v. WILLIAM BOSTELMANN, Appellant.

      Agency—When party lending money may be the disbursing agent of the debtor—Plaintiff at defendant's request advanced certain moneys to aid in the prosecution of a certain enterprise in which defendant was interested. Some of the money was paid by check to plaintiff's . husband who was defendant’s agent in charge of the work. The remainder was paid directly at the oral request of the agent in charge to discharge obligations incurred in the prosecution of the work. Held, that the only question was as to advances not made by check drawn to the order of the agent in charge, but made to others at his request. As to such payments, plaintiff may be regarded as the disbursing agent of defendant. To have first put the money in the hands of the agent in charge would have been a mere ceremony.

    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 2, 1892.
    Appeal by defendant from judgment entered on a verdict in- favor of plaintiff, and from an order denying motion for a new trial. The action was brought to recover money advanced by plaintiff to defendant.

      James Demarest, attorney, and L. Laflin Kellogg of counsel, for appellant.

      A. G. N. Vermilya, for respondent.
   The Court held (Per Curiam),

as stated in the head note. Judgment and order affirmed, with costs.


text:
    EDWARD BREARTON KINSELLA, Appellant v. THE SECOND AVENUE RAILROAD COMPANY, Respondent.

      Action for negligence—Examination of plaintiff before trial. Order for same should restrict examination to questions as to the time when

      and fhe place where fhe alleged accident occurred and as to residence of plaintiff at fhe time of fhe accident.

    Before Sedgwick, Ch. J., and McAdam, J.

      Decided May 2, 1892.
    Appeal by plaintiff from order denying a motion to vacate an order requiring plaintiff to submit to an examination before trial. The action was for personal injuries caused by the alleged negligent management of one of defendant’s street cars, whereby plaintiff was run over by the horses attached thereto while crossing the street.

      W. Bourke Cockran, attorney, and Wales F. Severance of counsel, for appellant.

      Merrill & Rogers, attorneys, and Jason Hinman of counsel, for respondent.
   Per Curiam.

Order modified as indicated in head note, and as modified, affirmed without costs.


text:
    LOUISE LANGE, Respondent v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.

      Trial—Defendants should not be allowed to prove their defence on the cross-examination of plaintiff before plaintiff rests.

    Before Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal by defendants from judgment entered upon verdict in plaintiff’s favor and from an order denying motion for a new trial. The action was brought to recover damages to the use of plaintiff’s premises caused by the maintenance and operation of defendants’ elevated railroad in sixth avenue in front thereof.

      Davies, Short & Townsend, for appellants.

      Byram L. Winters, attorney, and Edward S. Clinch of counsel, for respondent.
   The Court (Dugro, J., writing, Gildersleeve, J., concurring)

affirmed the judgment and order, with costs.


author: The Court held (Per Curiam)

text:
    THOMAS S. CLARKSON, et al., Appellants v. FREDERICK S. HOWARD, Respondent.

      Broker's Commission—Where several brokers are endeavoring to sell the same property, the one effecting the sale only is entitled to the commission. The mere fact that one of the unsuccessful brokers first introduced the principals does not establish his right to recover. Alden v. Earle, 56 Super. Ct. Hep., 366 121 N. Y. 688, followed.

    Before Freedman, P. J., Dugro and Gildersleeve, J J.

      Decided July 5, 1892.
    Appeal by plaintiffs from judgment entered upon a verdict directed by the court in favor of defendant. The action was brought' to recover broker’s commissions for selling defendant’s house. It was established on the trial that the sale was effected to the same proposed purchaser by another broker.

      Ogden, Beekman & Ogden, for appellants.

      Cannon & Atwater, for respondent.
   The Court held (Per Curiam)

as stated in head note. Judgment affirmed, with costs.


author: The Court (Per Curiam)

text:
    THOMAS S. BASSFORD, Respondent v. CHARLES H. WHITE, Appellant.

      Contract for attorney's services—Compensation based upon results of litigation—Measure of damages tvhere retainer of attorney is revoked by client before services are completed. ■ Plaintiff was retained by defendant in certain street opening proceedings affecting defendant's premises, to diminish the assessment and increase the award, plaintiff to receive one-fourth of the amount saved, as contingent compensation. After plaintiff had taken certain steps, but before the hearing by the commissioners, defendant revoked plaintiff's authority and employed another attorney. Held, that plaintiff was entitled to recover one-fourth of the amount saved to defendant by the proceedings, being the agreed compensation, less the fair value of the services and disbursements necessary to complete the plaintiff's undertaking, after his authority was revoked.

    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal by defendant from judgment entered in favor of plaintiff upon the decision of a judge after trial of the issues without a jury. The action was to recover the contract price of certain legal services which plaintiff agreed to render, but ivas prevented from fully performing the same by the revocation of his authority by defendant prior to the completion of the legal proceedings in question.

      James C. De La Mare, for appellant.

      Ernest Hall, for respondent.
   The Court (Per Curiam)

approved the rule of damages applied the court (McAdam, J.) as stated in head note. Judgment affirmed, with costs.


text:
    ANNIE BARRETT, an infant, by Guardian, etc., Respondent v. GEORGE WALDO SMITH, et al., Appellants.

      Evidence—Negligence. Proof of subsequent admissions by witness, the servant of defendants, denied on cross-examination, and inconsistent with direct testimony, when competent. In an action for personal injuries caused by the alleged negligent management of defendants' truck whereby plaintiff was run over at 108th street andéth avenue, the driver testified in behalf of defendants that no unusual accident was brought to his attention except when he was arrested. He was arrested at 125 th street and denied, on cross-examination and over objection by defendants, having asked the police officer “Is this the 108th street racket 9 ” Held that the testimony of the police officer in rebuttal that the driver asked said question was competent.

    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal by defendants from a judgment entered upon a verdict in plaintiff’s favor and from an order denying a motion for a new trial.

      James A. Seaman, for appellants.

      Richard O' Gorman, Jr., for respondent.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    THE PEOPLE, etc., ex rel. MICHAEL G. MINCHEN, Relator, Appellant v. CHARLES F. MACLEAN, et al., Commissioners, etc., Respondents.

      Certiorari to rveiew proceedings of police commissioners. Where the writ directs the commission to certify all the acts and proceedings sought to be reviewed, it unll be presumed from the absence of the

      statement in the return that it contains all of such acts and proceedings, and from the fact that the judgment of the commissioners in the case is not referred to in the return, that all the acts of the Board have not been returned and a further return containing such statement with other proper matter should be directed.

    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Proceedings by writ of certiorari to review judgment o of the police commissioners removing relator from the police force.

      Louis J. Grant, for relator, appellant.

      William H. Clark, counsel to the corporation, for respondents.
   By the Court.—Dugro, J.

Return remanded for correction in the particulars stated in the head note.

Freedman, P. J., and Gildersleeve, J., concurred.


text:
    THOMAS BOLGER, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Easements taken by elevated railroad—Valuation thereof by trial court will be reviewed by general term and if not sustained by the evidence, the injunction may be modified by suspending its operation for a reasonable time to enable the defendants to take condemnation proceedings. Blumenthal v. N. Y. Elevated R. R. Co., 42 N. Y. State Rep., 683 followed. Judgment also modified by deducting from the money part thereof so much of the extra allowance as was based on the sum fixed as the valuation of the easements.

    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided October 24, 1892.

      Appeal by defendants from a judgment entered upon the decision of a judge at special term in plaintiff’s favor. The action was brought to secure an injunction and incidental damages with respect to defendants’ elevated railroad in First avenue in the city of New York upon which plaintiff’s premises abutted. The trial court fixed the alternative to the injunction or “ fee damage ” at $3,500. The general term found that the evidence was not sufficient to justify a finding of more than $3,000, but that substantial damage was shown.

      Davies, Short & Townsend, for appellants.

      E. B. & C. P. Cowles, for respondent.
   Per Curiam.

Judgment modified as indicated in head note and, as modified, affirmed without costs of the appeal to either party.


text:
    John E. Ahrens, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 2, 1892.
    Appeal by defendants from judgment entered upon the report of a referee in favor of plaintiff.
    Davies & Rapallo, attorneys, and John S. Wood of counsel, for appellants. Edwin M. Felt, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   The Court (McAdam, J., writing, Sedgwick, Ch. J., and Freedman, J., concurring,)

held that the judgment should be affirmed, with costs.


text:
    Frank Wennemer, Respondent v. Philip Braender, Appellant.
    Decided May 2, 1892.
    Appeal by defendant from judgment entered upon a verdict in .favor of plaintiff and from order denying a motion for a new trial.

      Bartlett, Wilson & Hayden, attorneys, and Philip L. Wilson of counsel, for appellant. Louis A. Wagner, attorney, and Lewis Sanders of counsel, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    Peter Mager, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 2, 1892.
    Appeal by defendants from judgment entered upon the report of a referee in favor of plaintiff.
    Davies & Rapallo, for appellants. Sackett & Bennett, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

Judgment with costs.


text:
    Rosa Scheier, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 2, 1892.
    Appeal by defendants from judgment entered upon the report of a referee in favor of plaintiff.
    Davies & Rapallo, for appellants. Sackett & Bennett, for respondent.
    Before Sedgwick, Ch. J., Freedman and McAdam JJ.
   Per Curiam.

Judgement modified by requiring delivery by plaintiff to defendants at the time • of delivery of the conveyance described in the judgment, of a release of the property rights in question, executed by the holder of the mortgages existing upon the premises, and as modified affirmed without costs to either party.


text:
    Gustav Zimmer, et al., Respondents v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 2, 1892.
    Appeal by defendants from judgment entered upon the report of a referee in favor of plaintiffs.
    Davies & Rapallo, for appellants. Sackett & Bennett, for respondents.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

Judgment modified by requiring delivery by plaintiffs to defendants at the time of delivery of the conveyance described in the judgment, of a release of the property rights in question, executed by the holder of the mortgage existing upon the premises, and as modified affirmed, without costs to either party.


text:
    Mary L. Jones, et al., Respondents, v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 2, 1892.
    Appeal by defendants from judgment entered upon the report of a referee in favor of plaintiffs.
    Davies & Rapallo, for appellants. Sackett & Bennett, for respondents.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

Judgement modified by requiring delivery by plaintiffs to defendants at the time of delivery of the conveyance described in the judgment, of a release of the property rights in question, executed by the holder of the mortgage existing upon the premises, and as modified affirmed, without costs to either party.


text:
    Eliza A. Burggraf, et al., Respondents v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 2, 1892.
    Appeal by defendants from judgment entered upon the report of a referee in favor of Davies & for Sackett & Bennett, for respondents.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
   Per Curiam.

Judgment by requiring delivery by plaintiffs to defendants at the time of delivery of the conveyance described in the judgment, of a release of the property rights in question, executed by the holder of the mortgage existing upon the premises, and as modified affirmed, without costs to either party.


text:
    Clark R. Griggs, Respondent v. Melville C. Day, et al., as Surviving Executors, etc., Appellants.
    Decided May 2, 1892.
    Appeal by defendants from order denying motion to strike from the judgment roll plaintiff’s proposed findings of fact and conclusions of the of the referee been in the iff’s favor.
    William R. Bronk, for appellants. John McDonald, for respondent.
    Before Sedgwick, Ch. J., and McAdam, J. The court found that defendants’ attorney had assented to.the incorporation in the judgment roll of said proposed findings of fact and conclusions of law.
   Per Curiam.

Order affirmed, with costs.


text:
    Tobias Oberfelder, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided May 2, 1892.
    Appeal by defendants from judgment entered upon decision of a judge at special term in the plaintiff’s favor.
    Davies & Rapallo, attorneys, and Brainard Tolles of counsel, for appellants. E. B. & C. P. Cowles, for respondent.
    Before Freedman, P. J., and McAdam, J.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Flora Jacobs, Appellant v. David Morrison, individually, etc., Respondent.
    Decided July 5, 1892.
    Appeal by plaintiff from judgment entered upon the findings and decision of a judge at special term dismissing the complaint.
    Reeves & Todd, attorneys, and Ambrose G. Todd of counsel, for appellants. J. George Flammer, for respondent.
    Before Freedman, P. J., and Gildersleeve, J.
   Opinion by Freedman, P. J., holding that as the evidence was not printed in the record it must be assumed that the facts found were supported by the evidence and that the facts found justify the conclusions of law based thereon. Gildersleeve, J., concurred. Judgment affirmed, with costs.


text:
    The People, etc., ex rel. John J. Gilroy, Relator, Appellant v. Charles F. MacLean, et al., Commissioners, etc., Respondents.
    Decided July 5, 1892.
    Appeal by writ of certiorari by relator from judgment of the board of police commissioners dismissing him from the police force of the city of New York.
    Louis J. Grant, for relator, appellant. William H. Clark, counsel to the corporation, and William A. Sweetser of counsel, for respondents.
    Before Freedman, P. J., and Gildersleeve, JJ.
   Opinion by Dugro, J., Freedman, P. J., and Gildersleeve, J., concurred. Judgment of commissioners affirmed, and writ dismissed, with $50 costs and disbursements.


text:
    George Peyser, Respondent v. John C. McCarthy, et al., Appellants.
    Decided July 5, 1892.
    Appeal by defendants from judgment entered upon a verdict in favor of plaintiff: and from an order denying motion for a new trial.
    Henry D. Hotchkiss, for appellants. John Fennell, for respondent.
    Before Freedman, P. J., and Dugro, J.
   Opinion by Dugro, J., Freedman, P. J., concurred. and order with costs.