author: By the. Court.—Sedgwick, Ch. J.

text:
    JOSEPH W. FISKE, Appellant, v. CHARLES P. TWIGG, Respondent.

      Decided February 4, 1884.

      Supplementary proceedings—depositions taken on, must be filed.

    Proceedings supplementary to execution are special proceedings within the intent of § 825 Code Civ. Pro., and the depositions of witnesses taken thereon must be filed with the county clerk, though they were not used upon the application for the order, which was thereafter entered, appointing a receiver, and though the testimony was taken down and written out by a stenographer paid by plaintiff’s attorney.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by plaintiff from order granting motion of defendant" that plaintiff file in the office of the county clerk certain depositions of witnesses taken in a proceeding, supplementary to execution, instituted by plaintiff.
    The witnesses were examined in the supplementary proceeding by virtue of section 2444 of the Code of Civil Procedure. Section 2433 declares that such a remedy is a special proceeding. Section 825 declares that in this city, a return or other paper in a special proceeding, where no other disposition in prescribed by law, must be filed in the office of the clerk of this county. The affidavit of plaintiff’s attorney, in opposition to the motion, alleged that the testimony of said witness was taken and written out by a stenographer, who was paid by plaintiff’s said attorney, and after the depositions were duly verified, they were taken by said attorney and by him retained. An application was made for a receiver in said proceedings, and from the recitals in the order appointing such receiver it appeared that said order was granted upon the testimony of the judgment debtor only.
    The motion below was made by the judgment debtor.
    The following opinion was rendered by the court below:

      “Truax, J.—Supplementary proceedings are made special proceedings by section 2433 of the Code. The papers in a special proceeding must be filed in the office of the county clerk (§ 825). The affidavits mentioned in the moving papers appear to have been in these proceedings, and they should be filed along with the other papers. Motion granted; no costs.”

      John Brooks Leavitt, for appellant.
    I. The examination of the witnesses is not a paper in a special proceeding in the sense meant by section 825 of the Code. A special proceeding is a prosecution by one party against another, for the enforcement or protection of a right, etc., other than by action (§§ 33, 34). An order to examine a judgment debtor is only made a special proceeding by section 2433, which provides that certain remedies, viz: the three mentioned in sections 25 and 32, are special proceedings. The right to be enforced is in that instance, simply a right to examine a debtor and his witnesses, which right is obtained and ends with such examination and appointment of receiver. We submit that it is clear that the examination of a witness is not such a paper in a special proceeding, as is required to be filed by section 825. Such papers are clearly those upon which the court or a judge thereof takes action. It was never intended by section 825 to make it obligatory to file testimony of various witnesses as to which it might well be, and in many cases would be, that truth in a subsequent action could only be elicited by the testimony of the various witnesses being kept from the inspection of each other. The word “paper” in section 825 does not mean every piece of paper upon which the title of the special proceedings may be written. It means to apply to special proceedings the rules of practice which obtain in actions, viz : that every paper in the cause upon which the court is called to act shall be filed, and no other need be.
    ■ II. The fact that the testimony of those witnesses was reduced to writing does not make that writing necessarily a paper in the special proceeding. There is no requirement that examinations in supplementary proceedings shall be reduced to writing (or shall be filed, unless by section 825). For the convenience of the creditors, and at their sole -expense, this testimony was taken stenographically, and after-wards written out. This motion is not a motion to compel the filing of ‘ ‘ papers ” in a special proceeding, but is an attempt to take from its lawful -owners the possession' of property paid for by them, which is not a paper on which any action of the court or a judge was based.
    III. At most it was not a matter of right for Twigg to have his testimony filed, but it was discretionary with the court; and its discretion we respectfully submit should have been exercised either by denying the motion, or else by ordering that upon being filed it should at once be sealed up, not to be opened except on notice. A court which has the power to exclude witnesses from the courtroom, has surely the power to compel the same result as to testimony taken ex parte, as this was (1 Greenl. Ev. § 432).

      G. M. McKellor, for respondent.
   By the. Court.—Sedgwick, Ch. J.

The appellant’s counsel objects that the depositions were not papers in the special proceeding, because, as I understand, they were not in fact used by the motion for the appointment of a receiver. They were, however, in the proceeding, and while it was pending, before the motion was made.

Another objection is, that the appellant has a private right of property in them. It would be difficult to establish this when it is considered that the deposition is taken by the officer before whom the examination is had. It is sufficient to say that whatever the nature of appellant’s interest, it arose and remained subject to the provision of law, that the paper must be filed.

Another objection is, that before the order appealed from was made, another application of like purpose had been made and denied by order. It does not satisfactorily appear, that such an objection was made to the judge who granted the order appealed from. If it did, the order denying the application should not be used as determining, on the principles of res adjudicata, that the appellant could never thereafter be called upon to file the papers in obedience to the .statute. In substance, the order shows that the court refrained from commanding the appellant to file at that time, as it does not appear that the order was based upon a decision that the appellant was not bound to file at any time or under any circumstances.

Order affirmed, with $10 costs, and disbursements to be taxed.

O’Gorman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    ROBERT KABUS, Appellant, v. SAMUEL FROST, Respondent.

      Decided February 4, 1884.

      Landlord and tenant—covenants to repair—damages for personal injury, when not within scope of.

    In an action for damages from negligence of defendant, the landlord, in permitting the ceiling of a store to become and remain broken, so that it fell upon plaintiff, the tenant, to his great hurt, etc., the plaintiff alleged in the complaint that at the time of the making of the lease, defendant had orally agreed to repair and keep in repair the ceiling. In the written lease the plaintiff had agreed to make certain repairs, in which the ceiling was not included, but it nowhere appeared that defendant had agreed in writing to make any repairs.

      Held, that there was no ground of recovery.
    There was no legal obligation whatever upon defendant to make such repairs, and if such a covenant had been made, the damages suSered would not have fallen within its scope.
    Before Sedgwick, Oh. J., and O’ Gorman, JJ.
    Appeal by plaintiff from judgment entered on the direction of a judge at trial term dismissing the complaint, and from order denying plaintiff’s motion for a new trial made upon the judge’s minutes.
    The action was for damages to the plaintiff from the negligence of the defendant in permitting the ceiling of the store rented by defendant to become and to remain broken and loose, so that it finally fell upon plaintiff to his great hurt.
    The complaint alleged that at the time of the lease, the defendant verbally agreed to repair and keep in repair the ceiling. The written lease provided that the plaintiff should do certain specified repairs, but made no reference to ceilings. The defendant made no written agreement to repair in any way.

      Henry H. Morange, for appellant.

      Johnson & Cantine, for respondent.
   By the Court.—Sedgwick, Ch. J.

The plaintiff offered to prove that before or at the time of the written lease, the defendant, the landlord, agreed verbally to do repairs of a certain kind, among which the plaintiff claims was repairs of the ceilings. Cleves v. Willoughby (7 Hill, 83), is an approved authority against the admissibility of this. The relation of landlord and tenant being created by the written contract, the law attaches definite obligations to the relation which cannot be changed by a previous oral agreement. There are many other cases to support this, which it is unnecessary to cite.

There is no implied warranty or obligation on the part of the landlord that the premises were in a safe condition for use, or that they would not become unsafe (O’Brien v. Capwell, 59 Barb. 497; approved in Jaffe v. Harteau, 56 N. Y. 398). To this also other cases might be cited. There was no general obligation to repair (Doupe v. Genin, 1 Sweeney, 25 ; affirmed in 45 N. Y. 119, and the cases cited). If the specific enumeration in the lease of certain repairs to be made by the tenant, implied that the tenant was not bound to make other repairs, such as to the ceiling, the implication extended no further than to the tenant’s obligation, and had no relation to those of the landlord. The case would be that the landlord was not bound to repair, and the tenant was not bound to repair, and that such a condition of things might remain to the end of the term.

If there had been such a contract, its breach would not justify the tenant in recovering damages that were nob within the contemplation of the parties at the time—such as personal injuries from the falling of the ceiling that had not been repaired.

In fact, there is no ground for the claim in the present case that would not exist in favor of a grantee in fee against his grantor. The difference is the quantity of the interest granted.

On the general rules that pertain to a right to damages from negligence of another, it is apparent that the plaintiff knew whatever there was of threatened danger in the state of the ceiling, and voluntarily incurred the risks.

The case of Arnold v. Clark (45 Super. Ct. 252), supports the judgment.

Judgment affirmed, with costs, and order appealed from affirmed, with $10 costs and disbursements to be taxed.

O’Gorman, J., concurred.


author: By the Court,—Sedgwick, Ch. J.

text:
    JONAS FISCHER, Appellant, v. MAX FISCHER, Respondent.

      Examination before trial—vacated when court has not jurisdiction.—Foreign administrator—;jurisdiction over—actions against—action for distributive share.

    It is competent for the court to vacate an order for the examination of a party before trial on the ground that it appears that the court has • no jurisdiction over the subject matter of the action.
    An action at law is not sustainable for a distributive share of an intestate’s property, although a promise to pay has been made, unless it appear that the administrator holds the property individually upon a new contract of loan to him. The remedy in other cases is in equity, which may not be invoked against a foreign executor or administrator unless it be established that there is a fund or property of the estate in this state.

      Decided February 4, 1884.
    Accordingly, when in such an action, the complaint alleges the appointment of defendant as administrator in another state, and the collection by him as such in said state of certain moneys due his intestate, and that defendant is a resident of this state and has the moneys referred to: in the absence of a specific allegation that such moneys are here, they will be deemed to be in the foreign jurisdiction) and an order for the examination of defendant will be vacated on the ground of lack of jurisdiction over the subject matter.
    Before Sedgwick, Ch. J., and O’Gorman, JJ.
    Appeal by plaintiff from order vacating an order for the examination of defendant before trial.
    The facts appear in the opinion.

      D. S. Riddle, for appellant.
    At the worst, the complaint only alleges the jurisdictional facts imperfectly or not sufficiently at large. But for such defect defendant’s remedy was a motion to make more definite and certain (Code Civ. Pro. § 546), and not a motion to turn plaintiff out of court for imperfecty pleading. The allegations of a pleading must be construed (Code Civ. Pro. § 519). Demurrer is not the remedy for uncertainty in a pleading, but a motion to make.more certain is (Spies v. Access Trans. Co., 5 Duer, 662; Graham v. Camman, Id. 697; Seeley v. Engell, 13 N. Y. 548; Hale v. Omaha Nat. Bank, 49 Id. 627; Richards v. Edick, 17 Barb. 260; Chesbrough v. N. Y. & E. R. R. Co., 26 Id. 9 ; Moffat v. McLaughlin, 19 Hun, 449); to sustain a demurrer, it is not enough that the facts in the complaint are imperfectly or informally averred, or that it lacks definiteness (Marie v. Garrison, 83 N. Y. 14; Pouty v. Whipple, 10 Week. Dig. 387). As above stated, the objection to the complaint on the ground that it does not contain sufficient facts or does not confer jurisdiction is in the nature of a demurrer.

      Blumensteil & Hirsch, for respondent.
   By the Court,—Sedgwick, Ch. J.

If it appeared that the court had not jurisdiction of the subject matter of the action, then it was competent to vacate the order of examination, although that might be doubtful if the objection were that the complaint did not state facts sufficient to constitute a cause of action of which the court would have jurisdiction when properly stated.

The complaint stated that the plaintiff was one of the next of kin of Elizabeth Fisher, always resident of and who died in Hungary; that the defendant obtained in the state of Georgia, from a court competent in such matters, under proper circumstances, letters of administration upon the estate of Fischer, and thereupon collected from a debtor of Fischer, residing in Georgia, $1,000, due to her; that defendant is a resident of the state of New York and has possession of said $1,000; “ that no part was needed to pay debts of the deceased or any funeral or other necessary expenses of her, and that the defendant has paid no such debts or expenses with said $1,000, or upon the credit thereof, and has no claim upon or offset to the same by reason of having paid any such debts or expenses, or for any other like cause, and he has fully administered upon the estate of said deceased, Elizabeth Fischer, under said letters of administration ; and that there remains in his hands as such administrator over $1,000 of the estate of said deceased Elizabeth Fischer, to be distributed among the next of kin.” The complaint demands that the plaintiff be adjudged to account for the said moneys, and to pay over to this plaintiff his distributive share “or other share,” of the same with interest.

An action at law is not sustainable for a distributive share of an intestate’s property to which the plaintiff is entitled, although the personal representative has promised payment, unless there bfe evidence showing that he holds the money, not as executor or administrator, but in his individual character, upon a new contract of a loan of it to him (1 Chitty Pl. 101, and cases in New York and other states cited in the notes).

The remedy is the resort to a court of equity, or other court with like power to compel the administrator to perform his duty, in respect of the property, of which beholds the legal title for the benefit of such persons as are by the law interested in it. Accordingly, the courts of this state having no jurisdiction over administration by foreign executors or administrators, in general, will have no jurisdiction in particular, unless it is established that there is within this state a fund or property. Substantially they will act in rem through the form of an action against the administrator (Vermilya v. Beatty, 6 Barb. 429, and the cases cited).

The complaint states that the defendant is a resident of this state, and that he has the $1,000 referred to. It is consistent with this, that the money is not in fact within this state. As the pleader omits to state the existence of a fact of so much importance to the cause of action, the presumption is that the allegation could not truthfully be made. The matter cannot be dealt with on a supposed presumption that the personal property of a person is where he is actually. The presumption in this case is that the property to be administered is within the jurisdiction of administration. If it were not so, a foreign administrator who was a resident of this state could in all cases be compelled to administer here by a court in equity.

It seems to me that this is not a case of an omission to state a fact, which, with the facts stated, would make a cause of action ; for, on the facts stated, the court has no power to grant the relief which is affirmatively demanded.

Order affirmed, with $10 costs, and disbursements to be taxed.

O’Gorman, J., concurred.


text:
    JACOB HAMM, Appellant, v. THE N. Y. CENTRAL & H. R. R. R. Co., Respondent.

      Decided February 4, 1884.

      Railroads.—Negligence—duty of person using highway crossing track.

    All that the law requires of a person using the highway crossing a railroad track is a reasonable use of the senses, to ascertain if a train is approaching; and if obstructions prevent such person from seeing the approaching train, until he arrives at the track, he is not chargeable with negligence for not seeing it before. But if the obstruction be one which in an inconsiderable space of time will be removed,—e. g., a train in motion,—one using the crossing is called upon by common prudence to wait during that time, and a dismissal of his complaint upon the ground that he failed in this, will- be upheld.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by plaintiff from judgment in favor of defendant entered upon a direction at trial term dismissing the complaint.
    The action was for damages for personal injury caused, as alleged, by negligence of defendant’s servants. A train of defendant’s struck the horses in a wagon driven by plaintiff, as he was driving over a crossing of defendant.
    Further facts appear in the opinion.

      Saloman & Dulon, for appellant.
    The court below also erred in dismissing the complaint on the ground that the plaintiff was guilty of contributory negligence as a matter of law.
    The question of contributory negligence in cases of this character is ordinarily one of fact for the jury. It depends usually upon a variety of circumstances, and upon inferences from the facts proved, calling for the exercise of practical knowledge and experience, and is peculiarly within the province of a jury of twelve men. . . . The instances in which nonsuits have been sustained by reason of the contributory negligence of the plaintiff, or the party sustaining injury, have been exceptional cases in which the court has adjudged that such negligence was established by evidence which left nothing, either of inference or of fact, in doubt or to be settled by a jury (Massoth v. Del. & Hudson Canal Co., 64 N. Y. 524).

    Applying these rules to the case at bar, it is clear that the trial judge erred in holding, as" a matter of law, that the plaintiff was guilty of contributory negligence in attempting to cross the track, without first having waited for the up train to get out of the line of his vision, in order that he might see whether or not there was a train coming-down on the west track. It was a question of fact for the. jury to determine whether, under all the circumstances of the case, a man in the exercise of ordinary and proper prudence would have driven on as the plaintiff did (Dolan v. Del. & Hudson Canal Co., 71 N. Y. 285; Stackus v. N. Y. Central, &c. R. R. Co., 79 ld. 464; Semel v. N. Y. Central, &c. R. R. Co., 14 Week. Dig. 24 ; Adolph v. Central Park, &c. R. R. Co., 76 N. Y. 530).

      Frank Loomis, for respondent.
   By the Court.—Sedgwick, Ch. J.

In this case it is not a question whether the plaintiff should have thought of the possibility of a train coming southwardly on the other side of the train going northwardly. He did think of it. He looked in a certain direction, described by him in the word “ around,” for a flagman. He listened for a coming train, to hear its noise or whistle or bell. Although, according to his testimony, he did not see a flagman, and noise of the going train prevented his hearing the sound from the coming train, it was still a matter of common caution enjoined by law for him to look up the track to see if a train were coming. It is claimed by the able argument for the plaintiff, that he did look, but was prevented from seeing the down train, first by a house.which he was passing, and next by the up train, intervening. Assuming that on this appeal, such a construction must be given to the plaintiff’s testimony, the following are uncontroverted facts in the case.

The train that struck the plaintiff’s horses was on the west track. The plaintiff approached from the east and stopped in front of a house, 36 feet wide. He stopped while the up-train remained in front of him on the east track. As soon as the last car of the up-train had passed north of the crossing or road, where he was, he started his horses on a walk to cross the tracks. Of course, while he was in front of the house, he could not see up the track, and it would be vain for him to look in that direction for the purpose of seeing. But when he reached the westerly line of that house, he, if he had looked, could have seen a longdistance up the track, and if nothing else intervened, would have seen the coming train, would have been in safety, could have stopped, and there would have been no accident.

The plaintiff was driving a four-horse team. The heads of the leaders were twenty-four feet from his seat. When he reached the westerly line of the house, he was eight feet southerly from the house, the horses’ heads were four feet from the easterly track and fifteen feet from the westerly track, on which the down-train that afterwards struck him, was coming. There was no fact shown that would enable the jury to say that he could not have stopped for any reason. The tendency of the testimony is in the other direction.

In Baxter v. Troy & Boston R. R. Co. (41 N. Y. 502), the court said: ‘ ‘ The plaintiff testified that he was well acquainted with the crossing ; that he did not look for the train; that he could not have seen it until upon the track, if he had, on account of the hill, etc. If this was true, the plaintiff was excused from looking, as the law does not require one to look to see something, when it is impossible to see it.” After remarking that the defendant was not required to leave his vehicle and go to the track to observe, the opinion further said: “All that the law requires-is a reasonable use of the senses ; that is, one approaching the crossing must look along the track when his view is unobstructed, and thus ascertain whether there is danger in crossing, to be apprehended from trains approaching in either direction;” and—“but there was evidence given by the defendant strongly tending to show that the defendant could, by looking when at any distance within twenty-five feet from the track, have seen the train if within twenty rods of the crossing, and stopped the team before entering upon the track, and thus avoided the danger. If this be true, his omission to look as required, directly contributed to the injury received, and the plaintiff should have been nonsuited.”

In Cordell v. N. Y. C. & H. R R. Co. (70 N. Y. 119), the rule on this subject is in these words : “If the obstructions prevented the plaintiff’s seeing the approaching train until he arrived at the track, he would not be negligent for not seeing it before.”

The plaintiff then did not show his freedom from negligence, unless the moving up-train prevented his seeing, and this was a satisfactory excuse for the plaintiff going on. If the plaintiff moved at no faster gait than he testified, and did not start before the last car of the up-train had reached the northerly side of the crossing, and if when his leaders were upon the track of the down-train, he saw it 25 or 30 feet from him, there is at least great doubt that the up-train had not gone when he reached the westerly line of the house, so far that if he had looked he could not have seen the coming train. Assuming, however, this to be incorrect, the question will be, if, before he was on the dangerous track, he observed that the moving train obstructed his view. Naturally he was not bound as a matter of ordinary prudence to wait until he could get a view. If the train were an obstruction at a particular point of time, its motion was making it less and less an obstruction, and the motion must have been greater and greater, so that with certainty it maybe considered in a very short time there would have been an open view. It seems, especially when there is an apprehension of the possibility of a train coming up, and the person perceives that within an inconsiderable time he can know whether it is safe for his property or himself to go on, he is called upon by common prudence to wait during that time. I think that the evidence shows that if the plaintiff had looked at the proper place, and waited as long as he should have waited, he would have seen his danger. The judgment should, therefore, be affirmed.

I am further of the opinion that no negligence was shown on the part of the defendant; but it is unnecessary to discuss this, in consideration of the result already announced. „

Judgment affirmed, with costs.

O’Gorman, J., concurred.


author: By the Court.—Freedman, J.

text:
    THE PEOPLE ex rel. WILLIAM C. EMMET, Relator, v. ALLAN CAMPBELL, Comptroller of the City of New York, Respondent.

      Certiorari, writ of.—Remoxdl of chiefs of bureau and clerics under the municipal goverment of New Tori.

    Review of statutes in regard to the removal of incumbents holding office under the city government. Charter of 1857 (chap. 446, §§ 20, 21); charter of 1870 (chap. 187, § 29) Laws of 1873 (chap. 335 §§ 25, 28, 32); construction of the latter, by the court of appeals, in People, ex rel. Mayor, &c. x. Nicholas, 79 N. T. 582.
    Section 28 of the charter of 1873, as re-enacted in section 48, of chapter 410 of the Laws of 1882 (Consolidation Act), under which the present controversy arose, provides in substance that the heads of all departments „shall have power to appoint and remove all chiefs of bureaus, clerks, &c., in their respective departments, but no regular aleri or head of bureau shall be removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation. The relator 'was a regular clerk under the comptroller within the meaning of § 28.
    The only questions presented by the record in this case are,—Whether the relator was sufficiently informed of the cause of his proposed removal and whether he was allowed a sufficient opportunity of making an explanation. Upon these questions the decision of the court of appeals, People
      ex rel. Thomas Keeth v. Hubert O. Thompson, Com’r of Public Works (not yet reported) controls.

      Decided February 4, 1884.

      Held, in accordance with the latter decision, that no trial, not even a summary one. was contemplated by § 28.
    No testimony is required to be taken as to the basis of the comptroller’s action ; it is enough that he assign a sufficient cause for the removal, and furnishes to the relator an opportunity for explanation.
    The relator had no absolute right to an adjournment, nor any further notice, as in his petition he concedes that he had had many interviews witli the comptroller, in each of which he had protested against the charge made against him, and therefore was well aware of the full extent of such charge, and all he could do-was to deny the same, but the comptroller possessed the power to determine the weight to be given to such denial and the whole matter, upon facts within his own knowledge or information satisfactory to himself, which he was not bound to disclose.
    The information given to the relator of the cause of the proposed removal need not be given in writing. In this case, the conversation preceding the service of the formal notice of May 15, 1883, conveyed sufficient information to relator of the cause thereof.
    .The refusal of the comptroller to hear the relator through counsel was not an abuse of his discretionary powers, and does not constitute a sufficient ground for reversing the removal thereafter made.
    The question of the reasonableness of the time allowed for making an explanation rests to a great extent in the discretion of the officer clothed with the power of removal, and unless such discretion is abused, the courts will not interfere. -
    Before Sedgwick, Oh. J., and Freedman, J.
    Hearing upon a writ of certiorari, the papers on which it was granted, and the return thereto.
    The relator presented a petition to the court at special term, which showed :
    1. That for several years prior to the 16th of May, 1883, he occupied the office of disbursing clerk in the auditing bureau of the department of finance, of which the respondent was head.
    2. That some weeks prior to May 16, 1883, it was discovered that one, William B. Carroll, who was coupon clerk in the said auditing bureau, had embezzled large amounts of moneys by obtaining payment on account of interest coupons attached to bonds issued by the city in larger amount than was just.
    3. That in the process of auditing and paying such coupons, the duty of stamping or punching the same by way of cancellation, was to be performed by the petitioner or his assistant.
    4. That there was found in the desk of said Carroll, after his recent death, a quantity of those coupons upon which the cancellation stamp or punch did not appear, and it was charged, therefore, against the relator by the comptroller, that by negligently omitting to punch the coupons, he, the relator, had facilitated the commission of fraud by Carroll.
    5. That in many interviews had with the comptroller, the relator had protested against such charge.
    6. That after such interviews, on the 15th of May, instant, the comptroller served upon the relator a notice, dated on that day, informing him that he proposed to remove him from his office; that the reason of the proposed removal was neglect of duty as disbursing clerk ; and that he would be afforded an opportunity of making an explanation in relation thereto, on the 16th instant, at the comptroller’s office, at 11:30 a. m.
    7. That at the place and time named, the relator, with his counsel attended; that the comptroller occupied an inner apartment, and the relator, therefore, sent in to the comptroller notice that he and his counsel were in attendance ; that the door-keeper returned word that the comptroller desired to see the relator alone, and thereupon the relator entered the room of the comptroller without his counsel.
    8. That the relator then requested to be heard by counsel, and the comptroller then and there refused to receive the relator’s counsel: and the relator then declined to make any explanation, unless he could be heard by counsel, and then withdrew from the comptroller’s presence.

      9. That immediately thereafter, the comptroller served upon the relator a written notice of removal from his office.
    10. That immediately thereafter the relator served upon the comptroller a written protest against his removal without having been heard by counsel, and again requested an opportunity to be heard in resistance to removal, and in explanation of the alleged reasons thereof, by counsel.
    Upon this petition, verified by the affidavit of the relator, motion was made for a writ of certiorari to review the proceeding of the comptroller. The writ was allowed by the court at special term.
    Pursuant to the mandate of the writ, the respondent made a return, as follows:
    1. That during several years immediately preceding the 15th of May, 1883, the relator was the disbursing clerk in the department of finance.
    2. That it was his duty to pay persons presenting coupons for interest upon bonds of the City of New York, and thereupon to receive a receipt for such payment, and cancel the coupons by punching in a hole through them, and thereafter to deliver the canceled coupons to the stock and bond clerk to be filed as a voucher for the payment.
    3. That between January, 1879, and July 1, 1882, the relator paid a large number of coupons, and received such coupons, and delivered them uncanceled to the coupon clerk to the amount of more than $19,000 ; and that others of said coupons paid by the relator amounting to $99,000 were filed in the,comptroller’s office without punching or cancellation."
    4. That others of said coupons, so paid and left uncanceled, and delivered to said coupon clerk were by him appropriated and sold, and subsequently presented for payment, and paid a second time by the relator or his assistant, to the amount of $100,000 and upwards.
    5. That on the 15th of May, 1883, the comptroller had a conversation with the relator, in which he told him that he intended to remove him from his office because of his neglect to cancel such coupons, and because of his having delivered such coupons uncancelled to the coupon clerk ;- and the respondent then requested the relator to explain how paid coupons could remain uncanceled, if he, the relator had not neglected his duty. That the relator then denied that he neglected to cancel any coupons paid by him, and the comptroller then informed the relator that he could not credit his denial, and should immediately remove him from office on account of such neglect.
    6. That subsequently to such conversation, upon the same day, the respondent caused the notice set forth in the petition to be served upon the relator.
    7. That on the next day, the 16 th of May 1883, the relator refused to make any explanation pursuant to said notice, otherwise than through counsel, and respondent refused to hear counsel.
    8. That after such refusal, respondent caused the notice of removal to be served upon the relator.

      William A. Beach, of counsel for relator.

      George P. Andrews, counsel to the corporation, and D. J. Dean, of counsel for respondent.
   By the Court.—Freedman, J.

In respect to the removal of incumbents, holding office or place under the municipal government of the City of New York, a wide distinction was always observed between certain classes, and especially between heads of departments and subordinates within the departments.

Under the charter of 1857, the heads of the finance department and of the law department could be removed by the governor for cause, in like manner as sheriffs may be removed. Other heads of departments could be removed by the mayor, by and with the consent of the board of aldermen (Laws 1857, ch. 446, §§ 20-21).

Under the charter of 1870 heads of departments were removable only after impeachment by the mayor, and trial of charges by the full court of common pleas (Laws 1870, ch. 137, § 29).

Under the charter still in force, heads of departments may be removed by the mayor for cause, and after opportunity to be heard, subject, however, before the removal can take effect, to the approval of the governor, expressed in writing; and to that end the mayor is required, in all cases, to communicate to the governor, in writing, his reasons for the removal (Laws 1873, ch. 335, § 25). This section was construed by the court of appeals in People ex rel. Mayor v. Nichols (79 N. Y. 582). In delivering the unanimous opinion of the court on that occasion, Danforth, J., says: “The power is not an arbitrary one, to be exercised at pleasure, but only upon just and reasonable grounds, and then not until after notice to the person charged, lor in no other way could he have an opportunity to be heard. The proceeding, therefore, must be instituted upon specific charges, sufficient in their nature to warrant the removal, and then, unless admitted, be proven to be true. Defendant might also cross-examine the witnesses produced to support the charges, call others in his defense, and in these and other steps in the proceeding be represented by counsel. In no other way could the person sought to be removed have a due hearing or an opportunity to be heard, and this condition must be complied with before the power of removal is exercised (citing authorities). It follows, therefore, that the proceeding is judicial in its character, and, as a necessary consequence, is subject to review by a writ of certiorari, &c., &c.”

But the subordinates within the departments, including heads of bureaus and clerks, were, with a few exceptions, perhaps, removable at the pleasure of the heads of the departments until the charter of 1873 (Laws 1857, ch. 446, § 21 ; Laws 1870, ch. 137, § 32).

By § 28 of the charter of 1873, re-enacted as § 48 of ch. 410 of the Laws of 1882, commonly spoken of as the consolidation act, under which the present controversy arises, it was provided as follows :

“The heads of all departments (except as otherwise herein specifically provided), shall have power to appoint and remove all chiefs of burean (except the chamberlain), as also all clerks, officers, employees and subordinates in their respective departments, except as herein otherwise specifically provided, without reference to the tenure of office of any existing appointee. But no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation, and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or board. In case of removal, a statement, showing the reason therefor, shall be filed in the department,” &c., &c.

By the charter of 1873 and the consolidation act, therefore, the general power which had always been vested in the heads of the departments to remove their subordinates, was continued, subject to a limitation in respect of two classes of subordinates, viz: regular clerks and heads of bureaus.

It is conceded in the case at bar that the question as to what were the respective rights and duties of the relator and of the respondent upon the facts disclosed by the record, depends upon the construction to be given to section 28 of the charter of 1873, continued by section 48 of the act of 1882. It is also conceded that the rélator was a regular clerk within the meaning of that section.

In allowing the writ of certiorari the learned judge at special term had before him only the petition in which the relator claimed that he had been illegally removed from office because no opportunity had been given to him to make an explanation as required by law. But the case is now to be disposed of on the return to the writ. If the return is false in fact or insufficient in form, the remedy is, in the former case, by action for false return, and in the latter by compelling a further or more specific return.

The allegations of the return that the relator was informed that it was proposed to remove him on account of his neglect to cancel coupons which he had paid and which it was Ms duty to cancel, and that, he was then required to make an explanation in respect thereto, and that he did make to the comptroller a denial of the facts which were alleged to constitute the neglect of duty urged against him, cannot therefore be controverted and they must be taken as true. They clearly establish the existence of sufficient cause for removal, and consequently the only questions presented by the record are, whether the relator was sufficiently informed of the cause of his proposed removal, and whether he was allowed a sufficient opportunity of making an explanation.

Upon these questions the decision of the court of appeals in People ex rel. Thomas Keeth v. Hubert O. Thompson, Commissioner of Public Works, controls, which had not been made when the writ was allowed. Whatever doubts may have existed under earlier decisions, and especially under the broad language of the case of People ex rel. Munday v. Board of Fire Commissioners (72 N. Y. 445), have now been cleared up. In the case of Thomas Keeth (not yet reported) it was expressly held that no trial, not even a summary one, was contemplated by section 28. The unanimous opinion of the court is: “ . . . .It seems to have been intended that the commissioner should exercise this power upon facts within his own knowledge or based upon information received by him, after communicating to the relator his purpose of removing Mm with notice of the reason why he proposed to take such action, and after allowing an opportunity to make explanation as to the facts assigned as grounds for the removal. Ho testimony is required to be taken as to the basis of the commissioner’s action; it is enough that he assigns , a sufficient cause for the removal and furnishes an opportunity to the relator for explanation of the same. This tends to prevent removals without any cause whatever, or upon personal or political grounds. It would be unnecessary to take proof of neglect or omission of duty within the knowledge of the chief of the department, and the statute does not require any such formality.....If the commissioner was to be constituted a court for the purpose of trying every charge which might properly be preferred for violation of duty, it would tend very much to embarrass the action of that officer an(l also interfere with the interest of the public. If a trial was to be had, the law no doubt would have so provided,'and not for an explanation merely. In cases where the legislature intended that the removal should not be made without cause proven, provision is made for the preferring of charges and an examination of the same. This rule prevails as to members of the police force (§ 41, ch. 335, Laws of 1873), and also as- to firemen (§ 77, Ibid.). . . . . In section 25 the removal is only to be had ‘ for cause after an opportunity to be heard,’ which implies that a hearing must be had, which is equivalent to a trial, as the case last cited holds (referring to People ex rel. Nichols v. Mayor, &c., 79 N. Y. 582). The language of this section is direct and peremptory. Under section 28 the officer is to be informed of the cause of removal, and permitted not to have a hearing or trial, but only an opportunity to make an explanation in reference to the charges preferred. There is a difference between a hearing and an explanation. The former may well import, as has been held, a formal trial, while the latter involves merely an oral or written statement as to the charge made without that precision andformality which is required upon a hearing or trial.

Under this authoritative exposition of the law governing the case at bar ; and there being no requirement that the information concerning the cause of the proposed removal must be given in writing, it must be held that the conversation shown by the return to have preceded the service of the formal notice on May 15, 1883, conveyed sufficient information to the relator of the cause of his proposed removal and constituted a sufficient opportunity to him to make his explanation ; that, as no question was then and there raised in respect to the right to be represented by counsel, such right, if it existed at all, was waived ; that all the steps required by the statute to perfect the right of the comptroller to make the removal were then and there completed ; that thereafter it only remained for the, comptroller to make the order of removal and to enter and file the true grounds for the removal; and that consequently the issue and service of the notice subsequent to the said conversation were superfluous and unnecessary to a valid exercise of the power of removal. The relator had no absolute right to an adjournment or to any further notice, especially as in his petition he concedes that prior to May 15 he had had many interviews with the comptroller, in each of which he had protested against the charge made against him. It is evident, therefore, that the relator was well aware of the full extent of the charge made against him, and that all he.could do was to deny the charge. But the comptroller possessed the power to determine the weight to be given to every such denial upon facts within his own knowledge or upon information satisfactory to himself which he was not bound to disclose. Under these circumstances the conclusion is inevitable that when on May 16, the relator refused to say anything further except through counsel and the comptroller refused to hear counsel, such refusal on the part of the comptroller was not an abuse of his discretionary powers and consequently does not constitute a sufficient ground for reversing the removal thereafter made. In the case of.Thomas Keeth above referred to is was distinctly held that the question as to the reasonableness of the time allowed for making an explanation rests to a great extent in the discretion of the officer clothed with the power of removal, and that, unless such discretion is abused, the courts will not interfere.

A final order should be entered, as provided by section 2141 of the Code of Civ. Pro., confirming the determination reviewed, with costs to the respondent fixed at the sum of $25 and disbursements.

Sedgwick, Ch. J., concurred.


author: By the Court.—Truax, J.

text:
    RACHEL MAHON, Respondent, v. TERENCE P. MAHON, Appellant.

      Decided February 4, 1884.

      Contempt.—Order fw precept when should adjudicate pa/rty guilty of'.—Nonpayment referee’s fees, etc.—Service of papers on attorney.

    An order directing the defendant in an action for limited divorce to pay alimony and counsel fee, pendente lite, was granted on defendant’s default, and thereafter on his motion, and upon his stipulating to pay fees and disbursements, the matter was reopened and sent to a referee to take proof of defendant’s ability to pay such alimony, etc. A report being made in plaintiff’s favor, defendant was ordered to pay said fees of the referee and stenographer, and upon his failure to comply, an order was entered for the issuance of a precept, directing his detention, etc., until the same were paid:—Held, on appeal from said last named order, that defendant having appeared in the action by attorney, the order to show cause upon which the order for a precept was based, was properly served on said attorney; and that defendant being liable for said fees as the condition of a favor granted him, should pay them, upon notification of the amount, and an order directing him so to do may be entered without formal demand. But further held, that the order for said precept cannot be sustained, for the reason that it fails to adjudicate in terms that accused has committed the offense charged, and that it was calculated to or did defeat, impair, etc., the rights or remedies of plaintiff. It seems, that said fees are not to be deemed costs within Code Civ. Pro., § 15, forbidding arrest for non-payment of costs in certain cases.
    Before Sedo-wick, Ch. J., Truax and O’Gorman, JJ.
    Appeal from an order of special term directing defendant to pay the sum of $160, and from an order directing that a precept issue to the sheriff of the city and county of New York, commanding him to take the body of defendant.
    Action to obtain a limited divorce. Respondent procured . an order by default, granting her $12 a week alimony, pendente lite, and $100 counsel fee. Subsequently, and on December 11, 1882, as a favor to appellant, default was opened, and the matter referred to a referee, to take proof of appellant’s financial ability to pay alimony and counsel fee; the appellant to stipulate to pay the costs and expenses of the reference, which the stipulation appellant gave.
    Subsequently, on April 12, 1883, on continuing the reference before another referee, expenses of the reference were ordered to be paid by the appellant.
    The referee reported in respondent’s favor. The referee’s fees amounted to $80, and the stenographer’s fees to same amount. A motion was thereupon made to compel the appellant to pay said fees, which motion was granted, and appellant having failed to comply with said order, a motion was made to punish him as for a contempt.
    Thereafter, and on August 16, 1883, it was ordered that a precept issue, directing that the defendant be detained in the common jail until the payment of said fees. The order to show cause upon which this order was granted was not served on defendant personally, but on his attorneys, and the order (August 16, 1883), while it recited specifically the grounds of the motion, viz.: defendant’s non-payment of said fees, did not in terms adjñdicate that he had been guilty thereof.
    Defendant appealed from the said order directing payment of said fees, and from the said order for a precept.

      Culver & Wright, for appellant.
    It is necessary to serve a party with all papers to bring him into contempt. The papers to bring defendant in contempt were not served on him, but on his attorneys (Code, § 802; Ward v. Arenson, 10 Bosw. 589; Fischer v. Raab, 56 How. Pr. 218; aff’d 58 Id. 221).
    The person who made the demand, managing clerk of plaintiff’s attorney, does not show authority to receive the same, or that he was authorized to make a demand. It should be so shown.
    ' The order of August 16, 1883, is void, as it does not adjudicate the defendant guilty of any act which the law recognizes as a contempt of court. It should so appear in the order (see 3 R. S. § 20, tit. 13, ch. 8; Clark v. Bininger, 75 N. Y. 344; Perkins v. Taylor, 19 Abb. Pr. 147; Fischer v. Raab, 81 N. Y. 237, 238).
    The referee’s fees in this action are in the nature of interlocutory costs, and cannot be enforced by arrest (Code, § 15, Laws 1847, ch. 390; Lansing v. Lansing, 4 Lans. 395; Ford v. Ford, 10 Abb. Pr. N. S. 74; Perkins v. Taylor, 19 Abb. Pr. 146 ; Leland v. Smith, 3 Daly, 320; McKelsey v. Lewis, 3 Abb. N. C. 61; Fischer v. Raab, 81 N. Y. 237; Geib v. Topping, 83 N. Y. 46).
    The order is also void on the ground that it calls for an absolute commitment under proceedings in pursuance of section 5 of the statute, while at most a precept under section 4 of the statute could issue (People v. Bennett, 4 Paige, 282 ; Patrick v. Warner, ld. 397; Watson v. Nelson, 69 N. Y. 537; People v. Cowles, 3 Abb. Ct. App. Dec. 507; In re Kelly, 62 N. Y. 198).

      Brewster Kissam, for respondent.
    —The appellant was properly punished for his contempt in failing to obey the order directing him to pay said fees (Code Civ. Proc. § 14; Fischer v. Langbein, N. Y. Daly Reg. August 14, 1883).
    Code, § 15, has no application to the case at bar. The referee’s and stenographer’s fees in question, are not costs within the intent of the statute. They are in the nature of special expenses, which were occasioned by reason of the granting of a favor to appellant, upon his special compact with the court to pay same.
    It was not necessary that the appellant should have been personally served with the motion papers. Pitt v. Davison, 37 N. Y. 235; S. C., 3 Abb. N. S. 398 ; 34 How. 355. Code Civ. Proc., § 802 has no application. It is a substitute for section 418 of the old Code, which was in force at the time of the decision of Pitt v. Davison, supra.

   By the Court.—Truax, J.

Sections 2281 and 2283 provide that if upon the return of an order to show cause it is determined that the accused has committed the offense charged, and that the offense was calculated to, or actually did defeat, impair or prejudice the rights or remedies of a party to an action . . . the court must make a final order accordingly, directing that the accused by punished by fine, or imprisonment, or both, and that a warrant of commitment must issue accordingly. There is no determination or adjudication in this order directing that a precept issue, that the accused has committed the offense charged, and that that offense was calculated to or did actually defeat, impair or prejudice the rights or remedies of the plaintiff. This order should therefore be reversed. Where a party has appeared in an action by attorney it is not necessary to serve him with the order to show cause why he should not be punished as for a contempt; such an order is correctly served if served on the party’s attorney (Pitt v. Davison, 37 N. Y. 235).

The defendant contends that the order directing him to pay the sum of one hundred and sixty dollars, referee and stenographer’s fees, should be reversed on the ground that the person who made the demand does not show authority to receive the same or that he was authorized to make such demand. Under the circumstances of this case, the defendant having obtained a favor upon stipulating that he would “ pay all charges and expenses incurred for referee’s fees,” the demand made, viz., that defendant pay such charges and expenses, and notifying him of the amount thereof, was sufficient. Under the stipulation it became the defendant’s duty to pay such charges and expenses.

This order is affirmed.

We cannot give the respondent the relief she asks for, viz., that both of the orders appealed from and the order of December 11,1882, and April 12, 1883, be vacated and set aside. The order of August 16,1883, is reversed, without prejudice to the plaintiff’s right to renew the motion to commit the defendant, and also without prejudice to his right to move to vacate those orders on the ground that the defendant has not complied with his stipulation.

No costs on this appeal.

O’Gorman, J., concurred.


author: By the Court.—O’Gorman, J.

text:
    In the Matter of the Petition of MICHAEL MANG.

      Decided February 4, 1884.

      Guardian ad litem—who may he appointed.

    Where it appears tliat the father of an infant desirous of bringing an action, is not of sufficient means to fulfill the requirements of Code Civ. Pro. § 469, and general rule 49, the court will not appoint him guardian ad litem of said infant, though it appears that such infant has no other relative or friend of greater means who would assume such position, and that such decision may work hardship to the infant.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from an order of the special term denying the application of the petitioner to be appointed special guardian, of his daughter on the ground that the petition does not show the applicant to be a responsible person, within the meaning of the Code of Civil Procedure § 469, and of the 49 th general rule.
    The facts appear in the opinion.

      R. V. W. Du Bois, for petitioner.
   By the Court.—O’Gorman, J.

It is set forth in the petition, that Louisa Mang, an infant, was driven over by the team and wagon, of which the Schaefer Brewing Company are the owners, and severely injured thereby; that the petitioner is her father, and desires to be appointed her guardian ad litem, to bring suit on her behalf against said company ; that he is forty-three years old, has a wife and five children to support, and earns two dollars a day in the employment of one Fischer, a manufacturer of pianos.

That neither he nor his child Louisa has any relatives or friends of greater means than himself, who would assume the position of guardian ad litem.

The Code of Civil Procedure, section 469, provides that, “ before a summons is issued, in the name of an infant plaintiff, a competent and responsible person must be ap- ■ pointed to appear as Ms guardian for the purpose of the action, who shall be responsible for the costs thereof.”

Rule 49 provides that no person shall be appointed a guardian ad litem who is not of sufficient ability to answer to the infant for any damage which may be sustained by his negligence or misconduct in the defense dr prosecution of the suit, and such ability must be shown by the affidavit stating facts in respect thereof.

In accordance with this rule, in McDonald v. Brass, &c. Manufacturing Co., supreme court, second department (1877), 2 Abb. N. C. 434, Judge Barnard held, that the guardian ad litem should not have been appointed, unless the papers on which the application was made,, showed her pecuniary responsibility; and stayed all proceedings until she had. given security for costs, with sureties.

In the face of these provisions of law and this authority, the learned judge át special term would not have been justified in relaxing the strictness of the rule.

It may work a hardship in this particular instance. But the uncertainty of the law is one of the most dangerous of the defects which can be charged against it, and when rules cease to be binding they cease to be rules.

The order appealed from must be affirmed, without costs.

Sedgwick, Ch. J., concurred.


text:
    HENRY NAYLOR, Respondent, v. BARENT H. LANE, Appellant.

      Attorney—lien .of—cannot be defeated by set-off.

    A defendant has a right to assign to his attorney the prospective costs against his adversary in consideration of the services to be rendered by the attorney in earning such costs, and where such transfer has been made, in case the defense is successful, the claim of the attorney to a judgment for the costs cannot be defeated, by setting off against the same a prior judgment in favor of the plaintiff against the defendant.

      Decided February 4, 1884.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      D. A. Hulett, for appellant.

      Charles E. Crowell, for respondent.
   By the Court.—O’Gorman, J.

This action was tried, and a verdict rendered for the defendant, and judgment duly entered thereon for the sum of $180.63, the same being for costs and disbursements, on June 19, 1883.

On the same day, D. A. Hulett, the attorney for the defendant, Lane, served on the attorney of the plaintiff, notice of entry of said judgment, together with a notice of his own lien on said judgment to the full extent thereof for his taxed costs, &c. On the same day, and before entry of said judgment in favor of the defendant Lane, a judgment was entered in this court, in another action in favor of the plaintiff herein, for $331.64 against said Lane and James A. Biel on a joint and several indebtedness to said plaintiff. Nothing has been paid on either of these judgments. A motion was made at special term on the part of said Naylor, the plaintiff in both of said actions, that the judgment obtained by the said defendant, Lane, against said Naylor, in the first mentioned action, should be set off against the judgment obtained by the said Naylor in the action secondly above mentioned, by reducing the amount of the said judgment against Lane, and that the judgment in favor of said Lane, and against the plaintiff, should be canceled and satisfied of record. In opposition to this motion, an affidavit of said Hulett, attorney of said Lane, was read, setting forth that he had been the attorney for said Lane in said action, in which judgment had been recovered in favor of said Lane, and against the plaintiff, Naylor. That he has not been paid for his professional services in said action by said Lane, and believes that he will not be paid by him, that from the time of his employment by said Lane, there had been an agreement with Lane that all costs recovered in the action should belong to him, Hulett, and not to the defendant.

The learned judge at special term granted the said motion to set off, and the defendant Lane has appealed.

It seems to me that the appeal should be sustained.

The effect of setting off one judgment against the other in this case, is that the amount of the judgment in favor of dendant, Lane, for costs, has been paid by the plaintiff to Lane, whereas it did not belong to Lane, but to Lane’s attorney as taxed costs in the action, and by special agreement with Lane, of which the plaintiff had notice.

The lien of the attorney on a judgment recovered for the amount of his costs, &c., is well settled, and has sometimes been regarded as an equitable assignment of the judgment to him (Marshall v. Meech, 51 N. Y. 140; Dimick v. Cooley, 3 Civ. Pro. Rep. 141; citing Coughlin v. N. Y. Cent. R. R., 71 N. Y. 443; Wright v. Wright, 70 ld. 96). To protect the attorney’s lien in the case at bar, there was no necessity that notice should have been served on the plaintiff (Moloughney v. Kavanagh, 3 Civ. Pro. Rep. 253).

Notice in this case, however, was given, and no settlement of the litigations between the parties themselves by set off, or otherwise, which defeated the lien of the attorney, was proper (In re Bailey, 4 Civ. Pro. Rep. 140).

Sanders v. Gillett, 8 Daly, 184; and Garner v. Gladwin, 12 Week. Dig. 9 (the cases cited in the argument below), seem to me to differ in their essential elements from the case at bar, and are not controlling.

The order appealed from should be reversed, and the motion denied, with $10 costs.

I concur.—Perry v. Chester, 53 N. Y. 240, Sedgwick, Ch. J.


text:
    JOHN A. BAGLEY v. PETER BOWE.

      Decided February 4, 1884.

      Assignment for the benefit of creditors—when fraudulent.

    Where an assignment for the benefit of creditors purports to transfer all the property of the assignees, proof of an intentional omission from the schedule of property assigned of items of valuable property, is sufficient to establish a fraudulent intent (Shultz «. Hoagland, 85 N. Y. 464). Where the assignment grants to the assignee power, in his discretion, to sell or dispose of the assets of the assignors for “such consideration in money, or other thing as he may deem sufficient,” it is evidence of a fraudulent intent, and renders the assignment void.
    Where the evidence of fraud is clear and strong and preponderating, a verdict should be directed by the court, against the party claiming the property under such an assignment, as in this case.
    Before Truax and O’Gorman, JJ.
    Motion for a new trial on verdict directed for the defendant on exceptions taken by the plaintiff which were ordered to be heard in the first instance at general term. The facts appear in the opinion of the court.

      Edwin B. Smith, for appellant.

      Charles F. McLean, for respondent.
   By the Court.—O’Gorman, J.

The evidence that the assignment by Dart to the plaintiff was made with intent to hinder, delay, and defraud the creditors of the firm of “Sweezey & Dart” was very clear and strong, and would have sustained a verdict of fayor of the defendant. The question now is whether it was so clear, strong and preponderating, as that a verdict for the plaintiff could not have been sustained. If it were, the trial judge was right in directing a verdict for the defendants, and it was his duty to do so.

On January 28, 1881, Sweezey, a member of the firm of Sweezey & Dart, merchants in this city absconded, having raised large sums of money, amounting to about $62,000, on fictitious paper, from or through Bogart &Co., note brokers. On January 29, an attachment was obtained by that firm against the property of “Sweezey & Dart.”

On February 3, while the property was in the hands of the sheriff, Dart made a general assignment of all the property, of the firm of “Sweezey & Dart,” and also of his own individual property to the plaintiff. This assignment, after certain preferences and reservations, empowers the assignee, in his discretion, to compound and compromise the debts due to the firm, and to give acquittances and release for all debts due or to become due to the firm and to sell the assets of the firm for such consideration in money or other thing as he may deem sufficient.

After execution of this assignment, the attachment of Bogart & Co. "was removed, but other attachments were issued against the prowerty of “Sweezey & Dart,” which was held by the sheriff, in spite of plaintiff’s demand for the same, and was sold under the attachment. The inventory and schedule of assets and assignee’s bond were not filed until April 11, 1881. The evidences of fraudulent intention in the whole transaction are numerous and convincing. Ninety-six bales of sewing twine, the property of the firm, were not intended by the assignor Dart to be conveyed to the assignee, and were not referred to in a list of assets made out by Dart and furnshed to the creditors, nor inserted in the schedule of assets. The excuse for this omission was that the bales had been consigned to Sweezey & Dart, and were the property of the Wilton Co. of New Hampshire. For this excuse there was no foundation whatever. In fact the Wilton Co., of which the mother-in-law of Dart was the chief owner, was, at the date of the assignment, indebted to Sweezey & Dart in the sum of $913.50. The relations between this company and Sweezey & Dart appeared to depend on a written contract between them, as to which, however, defendant, Dart, on his examination, professed himself, unable to give any information.

Mention of'a “ trademark” belonging to the firm, of acknowledged value, was also omitted from the list of assets and schedules, under a claim that it had been assigned on January 27, to one Reynolds, in consideration of a check for $1,500, signed by him. This check has never been paid or presented for payment; and this “ trademark” has been since used by a manufacturing corporation, of which Dart, his lawyer, and Reynolds, are corporators, and in whose employment Dart now is. In the schedule filed by the assignee, this Reynolds is set down as a creditor for $1,597.80, and is one of the creditors preferred in the assignment.

■ On these facts alone and others, as they were elicited by examination of the witness Dart, there was enough to show fraudulent intent in this assignment (Shultz v. Hoagland, 85 N. Y. 464).

The defects on the face of the document itself are equally conclusive. The power granted to the assignee, in Ms discretion, to sell or dispose of, the assets of the firm of Sweezey & Dart for “ such consideration in money or other thing as he may deem sufficient,” is beyond the limits of power which the law allows to be vested in an assignee for the benefit of creditors, and might indeed be used to hinder, delay and defraud them. The insertion of this clause in the assignment is evidence of a fraudulent intent on the part of the assignor, and renders the assignment void (Rapalee v. Stewart, 27 N. Y. 310).

There is no force in the exceptions to the rulings of the learned trial judge as to evidence.

The defendant should have judgment on the verdict with costs; and the motion for a new trial should be denied, with $10 costs.

Truax, J., concurred.


author: By the Court.—O’Gorman, J. Sedgwick, Ch. J.

text:
    EDWARD W. McGINNIS, et al, Appellants, v. HENRY SMYTHE, Respondent.

      Decided February 4, 1884.

      Sale of stocks, by brokers—to close out or cover stocks purchased and carried for a customer—notice of same, and sufficiency thereof.—Evidence.

    Where the testimony of the witnesses is conflicting as to the facts of a certain interview between the parties, the jury may determine as a question of fact, as to which of the witnesses they will believe.
    The judge on the-trial charged the jury as matter of law, that the notice given to defendant by plaintiffs according to defendant’s testimony was insufficient to enable them to close him out without further direction, leaving the jury to determine whether they should believe him or the plaintiffs, and the jury founded their verdict upon defendants version of ■ the facts:—Held to be correct.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Appeal by plaintiffs from a judgment in favor of the defendant, on verdict of a jury, for the sum of $1,099.03, damages and costs, and from an order denying a motion for a new trial, made on the judge’s minutes.

      Charles P. Crosby, for appellant.
    More, Arlington & More, for respondent.
   By the Court.—O’Gorman, J.

On October 14, 1882, the plaintiffs, composing the firms of McGinnis Bros., and Fearing & Parmenter commission merchants in grain, contracted to sell for the defendant, and on his account, eight thousand bushels of No. 2 corn, at 70ff cents per bushel “ short,” deliverable any time during the year 1882 at the seller’s option.

Defendant deposited with plaintiff as margin, the sum of $600. Between said October 14, and the subsequent November 23, at 12 noon, the said corn advanced in price, reaching at that day and hour 85i cents a bushel; and on the preceding day, defendant’s margin was exhausted, and plaintiff wrote to send them his check for $550, as more margin. On that same day, November 22, 1882, the defendant wrote to plaintiffs in answer, declining to send the check, but offering to give his note for $600, and that that would be acceptable to plaintiffs.

On the morning of November 23, the defendant called at the office of the plaintiffs, and had an interview with Edward McGinnis, the senior member of the firm. No other person was present at. the interview, and each of these gentlemen gives a different and conflicting account of the conversation which then occurred between them.

McGinnis swears that the defendant said he could not advance any more, and used the words: “You had better cover it,” that is to say, close the transaction by buying in the corn and delivering it.

The defendant, Smythe, on the other hand, testifies that McGinnis said to him : “ Let me close you out; let us buy that boat load, and we will take what ready money you can give us, and your note for the balance ;” that he, defendant, emphatically declined that proposition ; that he did not want to be closed out, and would not be clósed out, and did not authorize a purchase, and that the interview closed, the matter being left, as far as appears on the evidence, undetermined.

On that same day, November 23, at ten minutes to twelve, the plaintiffs caused the corn to be purchased at the price of 85¿ cents a bushel, by Roland Smythe, one of their agents, who was a son of the defendant.

Somewhat later on the same day, the book-keeper of the plaintiffs received a message by telephone, which purported to come from the defendant, Smythe, in these words: “ Tell my son, Roland, to cover my short sale when it eases up a little.” This message was immediately telephoned to Roland Smythe, who answered that it had teen covered. The corn was purchased at the price of cents a bushel.

The corn market did, in fact, ease later on that day, and continued to fall in price until December 28, when it reached 66J cents a bushel for corn such as that which defendant had contracted to sell. Thus, if the plaintiffs had not purchased the corn for the defendant on November 23, but had waited until December 28, and had then purchased at that price and closed his contract by delivery, there would have been coming to the defendant from the plaintiffs $355 on the contract-, in addition to the $600 deposited by him as margin, making in all $958, for which sum he prayed judgment by way of counter-claim, in his answer.

On November 24, the day after the purchase made by the plaintiffs, defendant, as he testified, called on one of the plaintiffs’ firm and repudiated the purchase, as unauthorized by him.

It is in evidence that the defendant never had any transaction in corn with the plaintiffs other than this in suit, and that it was the only transaction in corn that he ever had.

There is no evidence of any special contract between plaintiffs and defendant as to supplying margin, and it is admitted that the defendant from time to time, since November 23,1882, demanded of plaintiffs that they should purchase the corn for him, and deliver it according to the contract.

No error appears to have been committed on the trial.

The course taken by the court as to the damages, does not seem to have been erroneous. No particular instruction to the jury on this subject was asked by the plaintiff, nor was any objection made to the charge of the court. The defendant made several demands down to the time fixed, as the point for the assessment of the damages. If the contract were open at the time of any particular demand that it should be closed, and the plaintiff did not accede to such demand, the defendant, at his option, concedes the contract to be on foot, after the demand, and in this way entitled himself to the benefit of a future demamL

The learned trial judge charged the jury as matter' of law, that the notice given to defendant by the plaintiffs, according to defendant’s version, was not sufficient to enable them to close him out without further direction, and in the charge he is sustained by the authority of controlling decisions (Gruman v. Smith, 81 N. Y. 25; Baker v. Drake, 66 Id. 518; Markham v. Jaudon, 41 Id. 235; Knowlton v. Fitch, 52 Id. 288 ; Stenton v. Jerome, 54 Id. 480 ; White v. Smith, 54 Id. 522, 526). He left the jury to determine, as a matter of fact, which of the witnesses they would believe as to the interview of November 23. There was no evidence of any waiver of notice by the defendant. The jury found a verdict for the defendant, and there was enough of evidence to sustain the verdict.

The judgment of the court below should be affirmed, with costs, and the order denying a new trial, affirmed, with $10 costs.

Freedman, J., concurred.

Sedgwick, Ch. J.

The course taken by the court as to the damages, does not seem to have been erroneous. No particular instruction to the jury was asked by the plaintiff, nor was any objection made to the charge of the court on this point. The general principle, that the court acted on, was correct.

I concur with Judge O’Gorman.


text:
    JONES A. BROWN, Appellant, v. THE BROADWAY AND SEVENTH AVENUE RAILROAD COMPANY, Respondent.

      Negligence, question of. —Street raib'oad cars, their rights and liabilities. —Public processions and parades, and regulations for their protection and escort.

    A person injured by a passing horse-car while taking part in a procession or parade upon the public streets, is to be held to the same proof to establish his case as an ordinary passer-by.
    In these cases, the plaintiS must establish by a preponderance of testimony that he was free from all negligence, and that the defendant was guilty of negligence in' the premises.

      Decided February 4, 1884.
    The statute provides-for protection of street railroad cars, from processions and parades, as also for measures to be taken by processions and parades for protection and escort from the police, while using the streets on their march (Laws of 1872, chap. 590).
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal from judgment entered on verdict for the defendants, and against the plaintiff on the merits, by direction of the trial judge ; and from an order denying plaintiff’s motion for a new trial on the minutes of the judge. The facts appear in the opinion of the court.

      Gebhard & Barnum, for appellant.

      Robinson, Scribner & Bright, for respondents.
   By the Court.—O’Gorman, J.

At the close of all the testimony, the learned trial judge expressed his opinion that as the case then stood on the evidence, the plaintiff had not shown himself by a preponderance of evidence to have been free from negligence on his part; nor had he shown, by a preponderance of evidence, the negligence of the defendants.

After a careful examination of all the testimony, I have arrived at the same conclusion.

The plaintiff claims that on the night of October 6th, 1882, at about eleven o’clock, while crossing Broadway, a little above 23d street, where Broadway and Fifth avenue intersect, and nearly opposite to the entrance to the Fifth Avenue Hotel, he was knocked down by one of the horses of the defendants’ car, and injured..

He was, at the time, one of an organized body of about twenty persons, composing a procession marching in quasi military array, called the G. A. Post, and who had marched up Fifth avenue and crossed 23d street, going north. The men carried torches and were preceded by a drummer.

The plaintiff, although in ■ court at the trial, was not examined as a witness, and "there is no evidence showing exactly how the accident occurred, but witnesses on his behalf, testified that the defendant’s horses drawing one of their cars coming up from Broadway at the rate of ten miles an hour, broke into the. procession and that the plaintiff was knocked down.

The defendants’ car, however, was visible, and was seen by the witnesses when it was crossing, or had just crossed 23d street, about 75 feet from the place where the accident occurred. If plaintiff had stopped and stood still for a second, when the car was; at this distance, he would not have been hurt. There was plenty of time to stop. Plaintiff had as good a chance to see the car coming as the witnesses had:

The place all around was well lighted by various lamps at the time.

It does not appear that the persons composing this organization and procession had any special right to use, or occupy the public streets, or any other or greater right than belonged to any other citizens, or that they had taken any of the steps provided for by statute (Laws 1872, ch. 590), to procure any special license or privilege as to a special use of the streets on the night when this accident took place.

The plaintiff must, therefore, be held to all the ordinary responsibilities and obligations of any ordinary traveler on1 a public street, and was bound to exercise ordinary care and vigilance, in avoiding danger, even although such danger arose from the negligence or recklessness of others ; and as it clearly appeared that he, having time and opportunity to get out of the way of the defendants’ horses and avoid a collision with them, failed to exercise such care and vigilance, he could not recover in this action, and the learned trial judge was right in directing a verdict for the defendant (Barker v. Savage, 45 N. Y. 191; Belton v. Baxter, 54 Id. 245; Hart v. Hudson R. B. Co., 84 Id. 56). So far I have referred to the case as presented by theplaintiff, on the testimony of the witnesses produced on his behalf.

The testimony on the part of the defense, shows that defendants’ car was stopped, as was their invariable custom, on Broadway, a little below 23d street. That it, on resuming its course, proceeded at a slow pace; that the horses were stopped by members of the- procession ; that the defendants’ horses became excited by the noise ; that the plaintiff endeavored to catch the head of one of the horses, and in doing so, fell on his knee and elbow, and then picked himself up and walked off; and that the injury' received by him was quite slight.

It is also in evidence that the procession was very disorderly. The preponderance of proof seems to me to be clearly that defendants’ car was not driven at any unusual or dangerous rate of speed, and that no negligence causing the accident is attributable to them (Crocker v. Knickerbocker Ice Co., 92 N. Y. 652).

The defendants, as common carriers of passengers, and independent of any statutory provision in their favor, had an equal right to use the public street with the plaintiff, and no persons using the streets, either singly or alone, or in conjunction with others, have the right so to monopolize the highway as to unnecessarily obstruct or impede the passage of defendants cars to the delay and inconvenience of the passengers therein.

The statute, however, above cited (Laws 1872, ch. 590), specially provides for protection of street railroads in the passage of their cars without interference from processions or parades ; and also provides for the measures which may be taken by processions or parades for protection and escort from the police, while using the public streets in their march.

The judgment appealed from should be affirmed, with costs, and the motion for a new trial denied, with $10 costs.

Sedgwick, Ch, J., and Truax, J., concurred.


author: By the Court.—O’Gorman, J. Sedgwick, Ch. J. By the Court.—O’Gorman, J.

text:
    ROBERT R. GREER, Respondent, v. THE PEOPLE’S TELEPHONE, &c. CO., Appellant.

      Decided January 7, 1884.

      Contract for service—salary to be fixed in the future.

    Where the plaintiff -was employed, September 1, 1881, by the general manager of the defendant, at a salary of not less than $1,800 per annum, to be fixed by the board of directors at their next meeting, and the directors did not fix plaintiff’s salary until February 24, 1882, and then at the rate of $960 per annum, and did not inform plaintiff of the fact until October 81, 1882, when he was discharged,—Held, that the verdict of the jury awarding plaintiff the salary of $1,800 per annum should be sustained.
    Before Sedgwick, Ch. J., and O’ Gorman, J.
    Appeal from judgment entered in favor of plaintiff, on March 21,1883, for $453.42 and costs; and from order denying a motion for new trial.
    The facts appear in the opinion.

      Rufus F. Andrews, for respondent.

      Hastings & Southworth, for appellant.
   By the Court.—O’Gorman, J.

The plaintiff was employed by the defendant on September 1, 1881, and was then told by the general manager of the defendants that his salary would not be less than $1,800 per annum ; and that his salary would be fixed by the board of directors at their next meeting.

Plaintiff afterwards received, from time to time, various small sums of money, $5, $10, and $15,—which he borrowed from the general manager and from different members of the board of directors.

The defendant’s board of directors did not fix plaintiff’ s salary until February 24, 1882, when it was fixed, by resolution of the board of directors, at $960 per annum.

Plaintiff testified that he was not informed that his salary had been thus fixed, until October 31, 1882, on which day he was discharged.

The defendants then offered to pay him twenty dollars, which would be the balance then due as salary at the above mentioned rate, which payment he refused to accept.

He signed receipts on April 5, 1881, for $80 “ in full for the month!s salary for March, 1881,” and for various other sums, in full for salary up to dates of the receipts.

As to these receipts, he testified that when he called the attention of the defendants’ book-keeper to the fact that they were worded, as being “ receipts in full,” he was told by the book-keeper that ‘1 that had nothing to do with the contract between plaintiff and the company, that the executive committee would protect him, and that he, the bookkeeper, had to conform to the form the company had adopted.

At the close of the testimony for the plaintiff, the counsel for the defendants moved to dismiss the complaint, which motion was denied ; and after the close of the case, he moved that a verdict be directed for the defendants, which motion also was denied.

At the close of the plaintiff’s case, there was evidence before the jury sufficient to sustain a verdict for the plaintiff, and if on the whole case there was enough to warrant them in coming to the conclusion that the defendants were chargeable with knowledge of what was said to the plaintiff, on the subject of salary, by their chief manager, at the time the plaintiff was hired by him ; and that if after such hiring by their agent, they accepted the services of the plaintiff until the day of his final discharge (October 31, 1882), without informing him that they had by formal resolution fixed a lower salary for him than their general manager had led him to expect he should receive, the plaintiff had been misled through their fault, and they and not he should suffer for their negligence.

It was the province of the jury to decide on the weight and effect of all the evidence in the cas'e, and the issues were left to them fairly by the trial judge for their verdict.

As no order denying motion for new trial was entered, the appeal taken as from such order, should be dismissed, with $10 costs ; and the judgment should be affirmed, with costs.

Sedgwick, Ch. J.

I agree to affirm.

On a motion on behalf of defendants for re-argument of appeal, or for leave to go to the court of appeals, the following opinion was rendered, February 4, 1884.

By the Court.—O’Gorman, J.

The application is based on an alleged mistake as to a matter of evidence, made by me in my opinion, in that I stated that the plaintiff was employed by' defendants on September 1, 1881. The learned counsel for the defendants claims that it appears on the evidence that the time of the alleged employment was about August 15, 1881, to take effect on the first day of September thereafter; and that the agreement being thus for services to commence at a future time, and by its terms not to be performed within one year, was void. The plaintiff testified, “I was first engaged by the defendants to do temporary work, on August 15, 1881. After -my work was then completed, I was offered the superintendency' of construction under the general manager Warren, to take effect September 1, 1881. At that time, I took charge of the office, and was employed by the defendants, &c.” This statement of the plaintiff, I regarded as fixing the date of the employment, at September 1, 1881.

The plaintiff further testified: “I was informed by Mr. Warren, yvhen I was first employed, that my salary would not be less than $1,800.. He told me that about August 15, 1881, when I was first employed there. It was understood my appointment took place from September 1, 1881. These látter statements are not inconsistent with that first referred to, viz : that on September 1, 1881, plaintiff took charge of the office, and was employed by the defendants then.

This question as to the bearing of the statute of frauds on this case, does not appear to have been in any way noticed by the counsel on the trial, or by the learned judge in his charge, and it was for the first time called to the attention of the court on the argument of the appeal.

I do not understand that the plaintiff claimed that the defendants hired him for any fixed or definite period, but only at the rate of $1,800 a year; and the learned trial judge seems to have so regarded the case, and so, in effect, charged the jury.

Unless the plaintiff’s case depended on proof of a contract of hiring, to continue in terms for a year or more, the question whether the contract was made on September 1, the day when it went into effect, or a month before that day, would be immaterial.

The jury were justified in believing that the contract was made on September 1, when the employment began ; and they were also justified in believing, as they no doubt did believe, that there was no evidence of any contract to hire the plaintiff for a year certain, but only an agreement to pay him a sum for each month that he was employed at the rate of $1,800 a year. There is no evidence of a contract by its terms not to be performed within one year.

Thus, the question as to the statute of frauds is in no respect pertinent to this case.

The question as to the effect of the receipts in full signed by the plaintiff, was discussed by*the defendant’s counsel, and fully presented in his printed points. It does not appear that the attention of the trial judge was called to it. The case of Ryan v. Ward (48 N. Y. 204), is, however, conclusive on the subject. A recept in full furnishes only prima facie evidence, and is open to explanation or contradiction ; and explanation satisfactory to the jury appears to have been given in the case at bar.

In my opinion, the motion for a re-argument, or for leave to go to the court of appeals, should be denied, with $10 costs.

Sedgwick, Ch. J., concurred.


text:
    JOHN MUNROE, Respondent, v. THIRD AVENUE R. R. Co., Appellants.

      Decided February 4, 1884.
    Negligence, contributory.—Street railroads.

    To start a street car suddenly when a passenger is getting ofll from the same, is negligence.
    The fact of a passenger getting off a car while still in motion is not per se, and as matter of law, negligence on the part of the passenger, but is a question for the jury.
    The degree of care and caution required under all the circumstances is also a question for the consideration Of the jury.
    In general, negligence is a mixed question • of law and fact, and is to be determined by a jury.
    To justify a nonsuit on the ground of contributory negligence, it must appear so clearly, that no construction of the evidence, or inference from the facts, would justify a contrary conclusion.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from judgment in favor of plaintiff for $1,141.60, on verdict of a jury ; and from an order denying defendants’ motion for new trial.
    The facts appear in the opinion.

      Lauterbach & Spingarn, for appellant.

      Charles P. Miller, for respondent.
   By the Court.—O’Gorman, J.

The plaintiff, a man of seventy-two years of age, was on May 7, 1883, traveling on defendants’ cars going up-town. When at 50th street, or half way between that street and 51st street, he said to the conductor, “ Stop at the next street, I want to get off.” The plaintiff then went out on the rear platform on the west side of the car, put his right foot down on the step, holding his stick in his right hand, and holding with his left hand the rail of the rear dash board. The speed of the car, slacked up before it reached 51st street, and it stopped there, as plaintiff thought, or almost stopped; and as he stepped down it started again with. a jerk and he was thrown heavily on the crosswalk. His left foot caught in something, and' he was dragged about three feet.

This evidence disclosed the presence of negligence on the part of the defendants.. To start a car suddenly with a jerk when a passenger is getting off from it, is negligence (Roberts v. Johnson, 58 N. Y. 613; Colt v. Sixth Ave. R. R. Co., 33 Super. Ct. 189 ; S. C., 49 N. Y. 671; Lax v. Forty-second, &c. R. R. Co., 46 Super. Ct. 448).

Whether the evidence also disclosed the absence or presence of negligence on the part of the plaintiff contributing to the accident, was the question to be determined at the trial of this case. The fact of a traveler getting off a car while still in motion, is not “per se,” ai d as matter of law, negligence, but is a question for the jury (Maher v. C. P., N. & E. R. R. R. Co., 67 N. Y. 52; Eppendorf v. B. C. & N. R. R. Co., 69 2d. 195 ; Pouilon v. B. & Seventh Ave. R. R. Co., 61 Id. 621; Nichols v. Sixth Ave. R. R. Co., 38 Id. 131).

The degree of care and caution required of a man of the age of the plaintiff, and whether, in the manner of his getting off the car, he exercised, such care, as, under all the circumstances, a prudent man should have exercised, was also a question for the jury.

In general, negligence is a mixed question of law and fact, and is to be determined by a jury.

To justify a nonsuit on the ground of contributing negligence of the plaintiff, the negligence must appear so clearly that no construction of the evidence or inference from facts, would have warranted a contrary conclusion, etc. (Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464; Wendell v. N. Y. C. & H. R. R. R. Co., 91 Id. 420; Thurber v. H. B., M. & F. R. R. Co., 60 Id. 326).

The judgment appealed from, should be affirmed with costs, and the order appealed from be also affirmed, with $10 costs.

Sedgwick, Ch. J., concurred.


author: Per Curiam.

text:
    EDWARD M. BURGHARD, as Receiver, &c., Appellant, v. PHILIP L. SONDHEIM, et al., Respondents.

      Decided February 4, 1884.

      Assignment for the benefit of creditors.

    Where the assignment was of all the property contained in Schedule B, to pay the debts mentioned in Schedule A, and referred to the schedules as annexed, but as a matter of fact they were not annexed, and were not recorded with the assignment. Held, that the schedules were not a necessary part of the assignment which was complete without them, and sufficient under the statute.
    Before Sedgwick, Ch. J., and Tettax, J.
    Appeal from judgment at special term in favor of the respondents, dismissing the complaint.
    The facts appear in the opinion.

      Charles H. Smith, for appellant.
    I. Whatever is declared on the face of an instrument to refer to an annexation such annex is a part of it, and should be read with it (Van Vliet v. Slausson, 45 Barb. 317; Coddington v. Davis, 1 N. Y. 186; Rogers v. Kneeland, 10 Wend. 219); and being part of it should be recorded with it in the county clerk’s office (L. 1877, p. 543, c. 466, §§ 2, 24). Where a schedule is made a part of the conveyance and is referred to as containing the specification of the property conveyed, and was intended to be annexed, it must be annexed not only as a description of the property but as necessary, by the very terms of the instrument, to complete the transfer (Moir v. Brown, 14 Barb. 39 ; Scott v. Guthrie, 25 How. 481). The absence, therefore, of the schedules A and B from the record, leaves it silent as to the persons to be benefited.
    II. The validity of an assignment for the benefit of creditors takes effect by virtue of the record thereof. This is the inception of it and jurisdiction to permit and entertain subsequent proceedings depends upon this act of recording. These jurisdictional essentials consist of 1, the writing ; 2, subscribing by assignor and assignee ; 3, assent of assignee in writing; 4, acknowledgment by both.; 5, duly recording in the county clerk’s office, and were provisions to remedy an abuse and are to'be strictly followed (Fairchild v. Gwynne, 16 Abb. 23; Taylor v. Trancose, 76 N. Y. 599). An assignment was recorded without an assent of the assignee in writing. Proof of oral assent was held immaterial. The failure to record the assent in writing, rendered the instrument inoperative and void as against creditors claiming under an attachment (Rennie v. Bear, 24 Hun, 123). The instrument designates two schedules alleged to be annexed to it. This renders these schedules part and parcel of the instrument, inseparable from it, to be handed with it for record to the county clerk, and to be recorded with it.
    The 67 N. Y. 199, cited in the court below, is not an authority. That appeal was dismissed for want of jurisdiction (p. 204). And the schedules in the act provided for are not those provided for by the instrument itself.

      Melvin & Sleckler, for respondents.
    I. An assignment that passes title is sufficient, although the subject matter conveyed is only generally described. Schedules were not necessities. Says Folger, J.: “The right to assign does not rest upon the statute. The act does not give the right. The right exists at common law. It recognizes the existence of the power in the citizen to make an assignment for the benefit of his creditors, and does no more than prescribe the mode in which the power shall be used.” “It is a statute, not of creation, but of direction ” (Thrasher v. Bentley, 1 Abb. N. C. 39). Says Church, Ch. J.: “ The evident purpose of the statute was to secure a faithful performance of the duties of the trustee under the assignment. The assignment placed the property beyond the reach of the ordinary process of courts, and it was to give creditors security for it in that condition that the act was passed” (People v. Chalmers, 60 N. Y. 154). So far, then, as the assignor is concerned, an assignment by him , without schedules at all is valid. The common law required no schedules, and in the light of the foregoing decisions and the general rule that a general description of the assigned property is sufficient to convey title, this assignment is sufficient. Mr. Bishop states the requisites of such an assignment to be: 1. A conveyance of the debtor’s property, 2. A trust, 3. To sell the property, 4. To distribute the proceeds (Bishop Insolvent Assignments, 106).
    II. The assignment is complete without the schedules, although schedules be referred to in it. They are not necessarily a part of the assignment. At common law they were not required. The statute does not require them as part of the assignment (Laws 1877, ch. 466 ; 3 R. S. 7 ed. 2276; Kellogg v. Slauson, 11 N. Y. 302; Matthews v. Poulteney, 33 Barb. 127). . 1 ‘ Where the description in the body of the assignment is of all the debtor’s property with a refence to schedules, and the schedules are in fact not annexed, at the time of the delivery of the instrument such omission will not invalidate the assignment” (Birchell v. Strouse, 28 Barb. 293; Platt v. Lott, 17 N. Y. 478 ; Turner v. Jaycox, 40 N. Y. 470; Wronkow v. Killeen, 3 Month. L. Bul. 82). In Produce Bank v. Morton (67 N. Y. 199), held, that an omission to make and deliver schedules did not invalidate the assignment. Here was an omission to comply with a plain statutory direction, absolute and requisite. An omission of assets from schedules does not make the assignment void (Shultz v. Hoagland, 85 N. Y. 464).
   Per Curiam.

This is an appeal from a judgment of the special term in favor of the defendants. The action was brought to set aside an assignment for the benefit of creditors. ° The assignment was of all the property contained in schedule B, and was made to pay the debts mentioned in schedule A. The assignment referred to these schedules as annexed to it, but, as matter of fact, they were not so annexed and were not recorded in the office of the county clerk with the assignment. It is on this ground that the plaintiff seeks to set aside the assignment. Neither of the s chedules was a necessary part of the assignment. That instrument was complete without them. It conveyed all of the assignee’s property in trust to pay all his debts. That was all that the statute required.

The judgment is affirmed, with costs.