text:
    The People of the State of New York ex rel. Edwin W. Fiske, Respondent, v. William H. Devermann and Others, Defendants; Walter Jones and Others, Appellants. People of the State of New York ex rel. Edson Lewis, Appellant, v. William H. Devermann, Edwin W. Fiske and Others, Respondents.

      An alternative writ of mandamus — not reviewed on appeal— duty to malee a return or demur — signing a statement of a canvass in blank — when it becomes effective — a second' canvass of votes not compelled or permitted — no duty to withdraw an impi-oper certificate of canvass.

    The granting of an alternative writ of mandamus is so much a matter of discretion that it is not the subject of review upon appeal. It may be granted without notice, and. cadnot be quashed or set aside upon motion for any matter involving the merits, and the persons to whom such writ is directed must either make a return to it or demur.
    Section 2975 of the Code of Civil Procedure prohibits the persons to whom an alternative writ of mandamus is directed from applying to have the writ set aside on the merits, and such a-result cannot be accomplished by an appeal from an order granting such writ.
    The signing of statements in blank of a canvass of votes at an election by the inspectors of election, in advance of the canvass of the votes; is wrong and irregular, but if by the consent and action of the canvassers such statements are afterwards filled up with the result agreed upon by all of the members of the board of canvassers, from such time the statements become effective.
    Upon an appeal from an order granting an alternative writ of mandamus, all disputed questions of fact are to be assumed in favor of the relator.
    Election ballots rejected by canvassers, if attached to their certificates of canvass, would not control or vary the result as expressed by the certificate.
    Where inspectors of election have once made a canvass of votes, they cannot be compelled or permitted thereafter to make a now one.
    No duty rests upon two of the members of a board of canvassers to withdraw a certificate of canvass improperly made and filed by them, which was -made subsequently to the close of the canvass, after a valid certificate of canvass had been made and filed.
    Appeal by the defendants Walter Jones and others, in the first above-entitled proceeding, from an order of the Supreme Court, made at tbe Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of June, 1894, directing that an alternative writ of mandamus issue to the respondent, and staying and restraining the canvassing of certain certificates of election.
    Also, an appeal by the relator Edson Lewis, in the second above-entitled proceeding, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 11th day of August, 1894, as denies his motion for a peremptory writ of mandamus.

      Roger M. Bhermcm, for the appellants Jones and others in the first above-entitled action, and for the relator in the second above-entitled action.

      Joseph 8. Wood, for the relator in the first above-entitled action, and for Fiske and others, respondents in the second above-entitled action.
   Cullen, J.:

These two appeals involve the same questions of fact. The relators Fiske and Lewis were candidates for the office of mayor of the city of Mount Yernon at the election in May last. Devermann, Hoffman and Jones were inspectors of election at the polls in the second election district of the fourth ward. At the polls were two ballot boxes, one to receive ballots for city officers, the other for ballots on the question of certain city expenditures. At the close of the polls and the commencement of the canvass it was found that while 309 votes had been cast for city officers, but 305 ballots were in the box. These were canvassed and a statement of the result announced. On the opening of the other box there were found in it ballots for Fiske as mayor. As to whether there were 305 or 306 ballots in the first box, and whether three or more in the second box, is disputed. It appears that the inspectors signed the statements of the canvass in blank some time before the canvass commenced, and each inspector retained a copy. Upon the discovery of the ballots for city officers in the second box, dispute arose between the insj>ectors as to the course to be taken in regard to them. Devermann and Hoffman insisted upon counting them. Jones objected. What did then transpire is a matter of much dispute. It appears, however, to be conceded by Devermann and Hoffman in their affidavit that they agreed to the claim of Jones and filled out the cerr tificate of the canvass according to the result as found from the count of the first box and not counting the ballots found in the second box. These inspectors assert that it was agreed by all that the four rejected ballots should be attached to the certificate held by Eevermann, and his copy of the certificate filed with the city clerk. Jones denies this. Eevermann failed to file his copy certificate with the city clerk and then Jones filed his. Afterwards, Eevermann and Hoffman filed a new certificate, by which the relator Fiske was credited with the additional four ballots. The relator then applied for a mandamus to the city clerk directing him to return the two certificates, and to the inspectors directing them to forthwith make a legal statement of the canvass in the place of the two on file. On a hearing of this application the court directed an alternative writ to issue and meanwhile stayed the canvass of the returns by the common council. The first appeal is from that order.

The grant of the alternative writ was so much a matter of discretion that it is not the subject of review on appeal. The Code of Civil Procedure (§ 2061) permits such writ to be granted without notice. By section 2015 an alternative writ cannot be quashed or set aside upon motion for any matter involving the merits. The respondents must either make a return to the writ or demur. If the appellants deemed the facts stated in the writ insufficient to entitle the relator to relief they should have demurred. If the facts were stated untruly they should have made a return to the writ. In either case a decision on the merits could have been had long before even the argument of this appeal. "We are asked to reverse the order directing the writ to issue, not on any question of irregularity, but solely on the merits. As the appellants by the express terms of the Code could not have moved to set aside the writ on such grounds, we think they are precluded from accomplishing that object by an appeal. If we reverse the order appealed from it would be in effect merely setting aside the writ. The appeal from the order, so far as it directs the issue of an alternative writ of mandamus, should be dismissed.

Assuming the power of the court in proceedings of mandamus to grant a stay, we think that the stay in this pai’ticular case was improvidently granted. The signing of the statement in blank in advance of the canvass was, of course, wrong and irregular. But by tbe consent and action of tlie canvassers the statements were filled up with the result agreed upon by all of their number. Prom this time they became effective. On this appeal all disputed questions of fact are to be assumed in favor of the relator. But giving the greatest force to the affidavits on his behalf, it is clear that the canvassers did canvass the vote, erroneously it may be, but nevertheless canvassed it and rejected the v allots found in the wrong box. The ballots rejected if attached to the certificate would not have controlled or varied it. (People ex rel. Noyes v. Board of Canvassers, 126 N. Y. 401.)

Devermann, however, did not attempt to comply with what he states to have been the agreement, but proceeded to make a new certificate and canvass in which Hoffman joined. The inspectors having made a canvass, could not be compelled or permitted to make a new one. By section 132 of the Election Law (Chap. 680 of the Laws of 1892) even where the returns are sent back to inspectors for omissions or clerical errors they are forbidden to change or alter any decision before made by them. Here, as already stated, the two. other inspectors admit that they acceded to Jones’ claim and decided not to count the ballots. The certificate filed by Jones was, therefore, valid and a true statement of the action and canvass of the inspectors. So much of tlie order as grants a stay should be reversed.'

■ The second appeal is. fr.om an order made at Special Term denying the relator’s motion for a peremptory writ of mandamus directed to the common council of the city of Mount Vernon commanding it to disregard upon any canvass the second certificate filed by Devermann and Hoffman and directing those inspectors to withdraw such return. On the facts stated we can see no appeai’ance of authority for this second return. It was the action of only two of the inspectors. It was not made at the close of the canvass but subsequently thereto and after a valid certificate of canvass had been made. The writ should, therefore, have been granted so far as the application related to the common council. As to the inspectors Devermann and Hoffman no duty rested on them to withdraw the particular paper filed by them nor was it in their power to do so. If the certificate was void it should be disregarded.

The order made in the first proceeding should be reversed so far as it grants a stay of proceedings, and the appeal from the remainder of the order should be dismissed.

The order made in the second proceeding should be reversed so far as it denies the application for a peremptory writ of mandamus to the common council, and so far as it denies a peremptory writ of mandamus against the inspectors should be affirmed. On these appeals neither party should recover costs as against the other.

Brown, P. J., concurred; Dykman, J., not sitting.

In the first-entitled action, order reversed so far as it grants a ¡stay of proceedings ; appeal from remainder of order dismissed.

In the second above-entitled action, order so far as it denies application for mandamus to common council, reversed; balance of order affirmed, without costs.


source: Caselaw Access Project

author: Cullen, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. Winfield S. Spencer, Relator, v. The Village of New Rochelle and Others, Respondents.

      Certiorari — aet of an inferior tribunal reviewed by — valuation for tax oi' assessment reviewable under chapter 269 of 1880 — an assessment made without notice to the owner, is void.

    Proceedings of an inferior tribunal can be reviewed by the General Term of the Supreme Court under an ordinary common-law writ of certiorari returnable at the General Term, in the absence of any statutory provisions to the contrary, except where another method of review may be given by law.
    Proceedings by which a tax or local assessment is imposed are judicial in their nature, and have always been in the State of New York the subject of review by certiorari.
    By chapter 269 of the Laws of 1880 the power is given to review the valuation of property or the legality of placing the property on the roll for the purpose of taxation. The word “assessment” is used in such statute in the sense of valuation, and not in the sense of a final imposition of a specific sum for taxes or for a local improvement. Prior to the enactment thereof, review by certiorari could not always be had, as certiorari did not lie to review any intermediate decision, but only the final determination, i. e., the levy of the tax.
    .By the charter of a village it was made the duty of an owner of land fronting on a street to construct the curb and gutter in such manner and of such material as the trustees of the village might direct, and upon his failure to comply with such direction the trustees of the village were authorized to do the work, and the expense thereof was made a lien upon the land, the trustees being directed in such case to issue a warrant for the collection of such expense out of the goods of the owner, and in the event of a failure to so collect the expense the lands were directed to be sold; there was no provision in the charter for the giving of notice to and no opportunity afforded for a hearing by the landowner, and no notice was in fact given to him of the proceedings taken to enforce such assessment, and no hearing was had therein.

      Held, that the assessment made was void for the reason that the owner of the land, if heard, might have shown that the expense was less than the sum charged against him.
    Certiorari issued out of the Supreme Court and attested on tbe 23d day of February, 1894, directed to the presidént and trustees of the village of New Rochelle and others, commanding them to return to the office of the clerk of the county of Westchester all their proceedings, doings and actions in relation to the assessment fdb the costs and expenses of certain curbing made by them in said village.

      O. H. <& J. A. Yoimg, for the relator.

      Ma/rtm J. Keogh, for the respondents.
   Cullen, J.:

This is a certiorari to review the action of the trustees of the village of New Rochelle in levying an assessment on lands of the relator for resetting curbs on the streets upon which such lands, front.

The respondents first claim that the writ should be dismissed because the petition does not comply with the requirement of chapter 269, Laws of 1880, and the writ is made returnable at the General Term instead of at Special Term as required by that act. This claim is based upon an entire misconception of this proceeding. The writ has not issued under the statute named, but is an ordinary common-law writ of certiorari by which the proceedings of any inferior tribunal can be reviewed by this court in the absence of statutory provisions to the contrary and except where there may be another method of review given. (People ex rel. The Mayor v. Nichols, 79 N. Y. 582.)

Proceedings by which a tax or local assessment is imposed are judicial in their nature and have always been in this State the subject of review by certiorari. Eor this doctrine there is an unbroken line of authority from LeRoy v. Mayor (20 Johns. 430) to People ex rel. Heiser v. Gilon (121 N. Y. 551). The decision in People ex rel. Trustees v. Supervisors (131 N. Y. 471) has, therefore, no application to the case at bar. The act of 1880, cited above, relatfes to a different subject. By it is given the power to review the valuation of property or the legality of placing the property on the rolls for the purpose of taxation. Assessment in that statute is used in the sense of valuation, not in the sense of final imposition of a specific sum for taxes or for a local improvement. Formerly such review could not always be had, for certiorari did not lie to review any intermediate decision, but only the final determination, i. e., the levy of the tax.

We do not see how this assessment can stand. By the charter of the village* as amended by the addition of section 32 to title 5 of chapter 249 of 1864, as amended by chapter 357 of the Laws of 1874, it is the duty of the owners of land fronting on streets to construct curbs and gutters in such manner and of such material as the trustees may direct. Upon a failure to comply with such direction the trustees may do the work and the expense is made alien upon the land. The trustees are directed to issue a warrant for its collection out of the goods of the owner, and on failure to collect the charge the lands are to be sold. There is no provision in the charter for notice to or opportunity for hearing by the landowner, and, as a matter of fact, in this case no notice was given or hearing had. The owner if heard might have shown that the expense was less than the sum charged against him. For this reason the assessment was void. (Stuart v. Palmer, 74 N. Y. 183 ; Remsen v. Wheeler, 105 id. 573.)

The proceedings of the trustees levying the assessment should be reversed, with costs. *

Brown, P. J., and Dtkman, J., concurred.

Proceeding of the trustees levying the assessments reversed, with costs.


text:
    Mary E. Thrall, Respondent, v. Edwin A. Thrall, Appellant.

      Parties may make laws for themselves — alimony pendente lite,, made only for future support.

    It is a well-settled rule that parties may make laws for themselves which courts are bound to administer, if no question of public policy is concerned.
    Alimony pendente lite can, as a rule, be made only for future support, and should commence only at the time of notice of an application for its payment.
    Appeal by the defendant, Edwin A. Thrall, from so much of an order of the Supreme Court, made at the Kings County Special Term on the 31st day of July, 1894, and entered in the office of the clerk of the county of Kings, as provides that the plaintiff be allowed fifty dollars per week for her support and maintenance pendente lite from the 12th day of May, 1894, and directing that the arrears of alimony payable under such order be paid within ten days after the service of a certified copy thereof, and be thereafter paid on Saturday of each week during the continuance of such : order.

      Alfred Taylor, for the appellant.

      Alexander Cameron, for the respondent.
   Cullen, J.:

This is an appeal from an order made by the Special Term in an action for separation granting the plaintiff fifty dollars a week alimony pendente Ute.

The defendant insists that the application should have been denied on the ground that the plaintiff has not a meritorious cause of action, and that, if granted, the amount allowed is excessive, in view of the financial condition of the defendant. The action was instituted in 1891. Thereafter the parties executed a deed of separation by which the defendant covenanted to pay the plaintiff fifty dollars a week for her support. 'As long as such payments were made the proceedings in this action were to be stayed, and upon default in such payments it was stipulated that an order might be made by the court granting plaintiff alimony at the same rate. The defendant made default on May 19, 1894', and notice of application for alimony was given on July fifth. It is a well-settled rule that parties may make law for themsqlves which the courts are bound to administer if no question of public policy is concerned. (Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447; Sentenis v. Ladew, 140 id. 463.)

The provisions of the deed of separation are a complete answer to defendant’s objections both to the alimony and its amount. We do not say that the defendant would be allowed to stipulate himself into prison by agreeing to a sum beyond his power to pay. But there is' no danger of that character here, as the defendant on his own statement is worth at least $30,000, and the action can be brought on for trial at any time.

We are of opinion, however, that the allowance of alimony was ordered to be made from too early a time. It seems settled by authority that alimony pendente lite can as a rule be made only for future support, and should commence only at the time of notice of an application for its payment. (Collins v. Collins, 10 Hun, 275; Beadleston v. Beadleston, 103 N. Y. 402; McCarthy v. McCarthy, 137 id. 500.)

There is no provision in the deed of separation increasing the power of the court in this respect. For the unpaid weekly allowance prior to the motion for alimony the plaintiff must recover by her trustee in a suit upon the covenants of the deed or await final judgment when the court may make such allowance for this period as may be just. (Percival v. Percival, 124 N. Y. 637.)

The order appealed from should be modified so as to direct the payment of the alimony to commence on July fifth, and as modified should be affirmed, without costs of appeal.

Brown, P. J., and Dykman, J., concurred.

Order modified so as to direct payment of alimony to commence on July fifth, and as so modified affirmed, without costs.


text:
    Michael Kline, Respondent, v. Charles Green, Appellant.

      Chapter 91 of 1892 — notice required thereby — lien of a liveryman upon a horse boa/rded by him — when inchoate — not defeated by a conversion of the horse.

    Under tie provisions of chapter 91 of the Laws of 1892 a livery stable keeper has a reasonable time after a demand made upon him by the owner of an animal boarded by him, for possession of such animal, to make out and deliver the written notice provided for by such act, and for that purpose he may detaiu the animal during such period, and when the notice is given, it relates back to the time of the demand made by the owner.
    The lien provided for by such act is inchoate from the time of the entry of the animal into the stable, and becomes perfect the moment the statutory notice is given; and such lien cannot be defeated by the fraud of the owner of the animal in obtaining the possession thereof from the livery stable keeper.
    The possession of the animal is not necessary for the purpose of giving the statutory notice, but where the owner of a horse boarded by a livery stable keeper, to whom the owner is indebted for its board, wrongfully takes his horse from the possession of the livery stable keeper, if the livery stable keeper does not serve the statutory notice, he does not acquire a complete lien upon the horse. He has but the option of a lien, an option to be exercised by his subsequent action in giving the statutory notice' within a reasonable time.
    It is necessary for a livery stable keeper to give such notice before he can maintain an action to recover the possession of the horse, although such horse may have been wrongfully taken by the owner.
    Appeal by tbe defendant, Charles Green, from a judgment of the County Court of Rockland county in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 11th day of September, 1893, upon the decision of the court affirming the judgment of the justice of the peace of the town of Orange-town, Rockland county, awarding the possession of a horse to the plaintiff.

      Alonzo Wheel&t', for the appellant.

      George A. Wyre, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of the County Court, affirming a judgment in favor of the plaintiff, recovered in the court of a justice of the peace. The action is replevin to recover a horse. The plaintiff, a livery stable keeper, kept and boarded the horse, and for snob keep the defendant was indebted to him in the snm of about $100. The horse was taken away by the defendant from the plaintiff’s stable. There was evidence tending to show that the defendant obtained possession of the horse by fraud. The plaintiff, three days after the horse was taken away, demanded from defendant the payment of his claim or the return of the horse. On the failure of the defendant to comply with the demand this action was brought.

That the fraud of the defendant could not destroy the lien of the plaintiff is clear. But the plaintiff failed to give the owner any written notice of the amount of his charges and his intention to detain the horse. By chapter 91, Laws of 1892, a livery stable keeper is given a lien on animals boarded provided that such notice in writing be givqn to the owner. It has been held that under this statute the stable keeper has a reasonable time, after the demand made upon him for the animal by the owner, to make out and deliver the written notice, and that for that purpose he may detain the animal during such period. When the notice is so given it relates back to the time of the demand made by the owner. (Eckhard v. Donohue, 9 Daly, 216; Ogle v. Ding, 2 City Ct. Rep. 85.) In these cases it is said that the lien is inchoate from the entry of the horse in the stable, and ripens into a lien the moment the statutory notice is given. These decisions and the reasoning upon which they proceed are doubtless correct. But the difficulty in this case is that the plaintiff has done nothing to consummate his lien. Though the horse had been taken from his possession wrongfully, it may be assumed, there was no obstacle in the way of his serving the statutory notice upon the owner. Possession of the horse was not necessary for this purpose. The plaintiff did not have a complete lien at the time the horse was taken from him. He had but the option of a lien, an option to be determined by his subsequent act in giving the statutory notice within a reasonable time, or by his failure so to do. At the time this action was brought, though three days had elapsed, he had not exercised this option so as to create a lien. As it was necessary for the stable keeper to obtain the right to detain an animal that he should give the owner written notice of liis claim, we think it was equally necessary to give such notice before he could seek to retake the animal.

The judgment of the County Court and justice should be reversed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment of the County Court and justice reversed, with costs.


author: Dykman, J.:

text:
    Elizabeth Holz, Respondent, v. Woodside Brewing Company and Others, Defendants; Charles M. Hartmann and Another, Appellants. Same v. Same.
    Action No. 1.
    Action No. 2.

      Bills and notes — order of liability of indorsers.

    It has always been a principle of commercial law that indorsers of promissory notes become liable by their indorsements in the order of the appearance of their names upon the back of the paper, the person to whose order the paper was payable being considered as the first indorser and the maker being liable to all the indorsers.
    Lawful obligations are incurred by the voluntary assumption of legal liability. They may be either expressed or implied. A person may write his name upon a note in silence, and then the liability which he incurs is implied from the position his name occupies on the paper. He is presumed to have placed -his name thereon intending to assume the responsibility which the law attaches to the position of his name thereon, and it is beyond the power of the law or the courts to augment or diminish the burden he assumes.
    When a person indorses a promissory note which contains in its body the name of another as payee he incurs the liability of a second indorser, such being the implication of the law from the position of his name, but such presumption may be overcome by proof of a different intention.
    Appeal by the defendants, Charles M. Hartmann and another, in the first above-entitled action from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of March, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit.
    Also, an appeal by the defendants, Charles M. Hartmann and another, in the second ahove-entitled action from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of April, 1894, upon the verdict of a jury rendered by direction of the court afte-r a trial at the Kings County Circuit.

      M. Sallheimer, for Hartmann and Zeydel, appellants.

      Joseph A. Burr, for the respondent.
   Dykman, J.:

These two suits are brought upon promissory notes made by the Woodside Brewing Company, payable to the order of the plaintiff j for $1,000, and indorsed by the four other defendants.

Both notes bear the same date and are alike in all respects except the time of payment. The note in action No. 1 was payable in one year and the note in action No. 2 was payable in fifteen months.

The complaint in both actions averred that the note was indorsed by the four defendants for the purpose of obtaining credit for. the maker upon the note, and the proof upon the trial fully sustained the allegations.

A verdict was directed by the trial judge in favor of the plaintiff in both cases, and two of the indorsers have appealed from the judgment entered in both cases.

Much learning has been displayed in the consideration of the liability by the indorsers of promissory notes made in form like the notes upon which these suits are prosecuted.

It was ever a principle of commercial law that indorsers of promissory notes became liable upon their indorsements in the order of the appearance of their names upon the back of the paper, the person to whose order the paper was payable being considered as the- first indorser and the maker being liable to all the indorsers.

The earlier cases in this State, where notes like these fell under the consideration of the Supreme Court, evince an effort to hold the indorsers liable in a character which they did not assume and to an extent which the form of the paper did not justify. Commencing with the case of Herrick v. Carman (12 Johns. 160), such indorsements were treated as guaranties and such indorsers were treated as guarantors or makers, until the case of Hall v. Newcomb (3 Hill, 233 ; 7 id. 416), where the principle was declared erroneous and the previous cases were overthrown.

Since that time the decisions have been in harmony with the principles which underlie the relative, obligations of the different parties to promissory notes, and the contract which the law writes over the name of every person who places his name upon such paper.

Lawful obligations are incurred by the voluntary assumption of legal liability. They may be either expressed or implied. A person may write his name upon a note in silence, and then the liability which he incurs is implied from the position his name occupies upon the paper.

He is presumed to place his name with reference to the responsibility which the law attaches to the position, and it is beyond the dominion of the law or the courts to augment or diminish the burden he assumes.

When, therefore, a person indorses a promissory note which contains in its body the name of another as payee, he incurs the liability of a second indorser, because that is the implication of the law from the position of his name, and no other or greater liability can be imposed upon him. Our views upon that subject are expressed quite fully in the case of Strong v. Sheffield (66 Hun, 349).

If, therefore, the liability of the indorsers and the rights of the •plaintiff were measured by the note alone, she could not recover against them, because their names would appear subsequent to her name on the note if it was placed in its regular order, in blank ■thereon, and, by paying the note, either of the indorsers could demand payment from her upon her previous indorsement.

Such is the effect of the decisions in the cases which are quoted upon the brief of the appellants.

But the proof introduced by the plaintiff has removed this case from the domain of such decisions.

The action was brought by the plaintiff, as holder of the paper in question, and the production of the note was prima facie evidence of her title thereto, but it became necessary for her to repel the inference arising from the -form of the note. To meet that necessity proof was introduced to show that neither of the indorsers could maintain an action against the plaintiff as first indorser.

That proof was made by proving that the notes in suit were given to retire a note of $5,000 made by the Woodside Brewing Company to the plaintiff, upon which an action was about to be commenced, and. to obtain an extension of the time of payment of the larger portion of that note, and to prevent the suit upon the same.

That a payment of $1,000 and the accrued interest was made in cash, and four notes, of which these in suit are two, were delivered to the plaintiff and accepted by her as a settlement, and that she thereupon delivered the old note to the attorney for the brewing company.

That evidence was sufficient to overcome the presumption which] as we have stated, would arise against the plaintiff from the form of the note, and to show that the indorsers were privy to the consideration between the maker of the note and the plaintiff, and never expected nor intended that the plaintiff should be responsible to them for the payment of the note in any event.

The evidence further showed that the defendants who indorsed the notes did so to secure a further credit for the brewing company, and the extension of the credit and the surrender of the old note was a sufficient consideration for the making and indorsement of the new notes.

The relation between the plaintiff and these indorsers is the same in legal effect as it would have been if the plaintiff had been an accommodation- indorser for them. Moreover, had the plaintiff indorsed these notes without recourse to her, such indorsement would have carried out the intention of the parties, and then the notes would no longer yield a prima facie presumption of liability of the plaintiff to the other indorsers, as we have seen they otherwise did. (Moore v. Cross, 19 N. Y. 229.)

The foregoing views are sustained by the cases of Coulter v. Richmond (59 N. Y. 478); Meyer v. Hibsher (47 id. 268); McPhillips v. Jones (73 Hun, 516).

The judgment should be affirmed in both cases, with costs.

Brown, P. J., concurred; Cullen, J., not sitting.

Judgments affirmed, with costs.


author: Dykman, J. :

text:
    Thomas Reilly, Appellant, v. Atlas Iron Construction Company, Respondent.

      Negligence — servants of different masters are not fellow-servants — rational conclusions from facts proved.

    Employees who are at work in the construction of a building, if servants of different masters, are not co-employees within the rule respecting the negligence of fellow-servants.
    Upon the trial of an action brought to recover damages resulting from alleged negligence, causing personal injury to the plaintifE, it was proved that a pile of brick rested upon a platform supported upon the beams of the first story of a building in process of construction; that said pile of brick had remained in. the same position for about two weeks and was surrounded and supported by a wall of brick eight inches in thickness and laid up dry, and that the platform extended outside of the wall of brick about the width of two planks; that bricks fell from this pile into the cellar of the building and injured the plaintiff at a time when servants of the defendant were moving a derrick past the southeast corner of the pile.

      Neld, as there was no reason to suppose or believe that the bricks would have fallen without interference, and there was no disturbing cause present when they fell, except the derrick, that the rational conclusion was that the defendant’s men in moving the derrick caused it to strike against the pile of brick and displaced and precipitated the bricks into the cellar and caused the injury complained of and that a proper case had been made out for presentation to the jury.
    Appeal by the plaintiff, Thomas Reilly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of December, 1893, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Kings County Circuit.

      Ghwrles J. Patterson, for the appellant.

      Gha/rles O. Nadal, for the respondent.
   Dykman, J. :

This is an appeal by the plaintiff from a judgment entered upon a dismissal of the complaint at the Circuit. The action was brought for the recovery of damages for negligence, and the material facts in the case are these :

The plaintiff was at work in the cellar of a house which was in course of construction in Brooklyn. Tlie building was to be about 100 feet square, and, at tbe time of tlie accident, tlie brick walls were above the level of tlie sidewalk.

The beams for the first story had been set in place on the east side, and upon the beams near the rear of the building there was a platform of planks about twenty-six feet long and fifteen feet wide. There was-a pile of brick upon that platform.about twelve or fourteen feet square and about three feet high.

On each side of that pile of brick there was an eight-inch wall of brick, built dry, but the bricks were placed crosswise, and built in at the ends and corners so as to bind the walls. It had remained in the same condition for about two weeks, and there was a margin of about the width of two planks outside of the brick pile. There was an open space in the rear of the first floor which was not covered by beams.

The defendant was doing the iron work upon the building, and in connection with the operations thereon used a large derrick which rested on the beams of the first story. The derrick consisted of two heavy upright timbers with their lower ends resting upon a crossbeam, with wheels underneath it, upon which the derrick could be moved.

The men in the employ of the defendant had occasion to move the derrick from the front to the rear of the first floor of the building, and this is the testimony of the witness, who gave an intelligent account of the occurrence :

“ I was on the premises at the time the accident happened; I was in this open space in the cellar shoveling sand at the time; I mean that space in the rear of the cellar which was not covered by beams; .my duty there -was filling sand, filling these barrels for Reilly and other men who were carting them away. The barrels were being carted away at that time; where I stood there was nothing above my head; I saw the men of the Atlas Iron Construction Co. moving this derrick; they were moving it from the east; they were facing it .around to the west of the building then; I could not say whether they moved it with bars or shoved it with their shoulders; they were pushing it; any way, I saw them come past the corner of the pile of bricks; I was looking at them, the corner next to Smith & Gray’s, towards the rear of the building, that would be the southeast corner of the pile of bricks; when the men were moving the derrick past the southeast corner of the pile of bricks the bricks fell down; they let the derrick stand there till the man was picked up; just before the bricks fell down they were moving the derrick ; I could not say whether the derrick hit the brick or not, but it was up close to it, against the brick, I could not say touching them. * * * These men were moving the derrick up to the time the brick fell.”

The witness further said: They stopped the derrick as soon as the brick commenced to fall; they did not stop the derrick till the brick commenced to fall; this open space came, to the best of my knowledge, five or six feet to the pile of brick; this derrick, from one upright to the other, may be six or seven feet; it was moving on rollers; they have two wheels under it.”

A number of brick fell upon the plaintiff and injured him very seriously.

There is no question respecting the negligence of fellow-servants involved in this case, as the plaintiff and the men who moved the derrick were servants of different masters, and, therefore, were not co-employees. (Sanford v. S. O. Co., 118 N. Y. 511; Sullivan v. Tioga R. R. Co., 44 Hun, 301.)

Neither can there be airy serious question respecting the negligence of the men who moved the derrick if they caused it to collide with the bricks and precipitate them into the cellar. They knew, or should have observed, that the plaintiff and others were at work in the story below. The open spaces were sufficiently large to enable them to see men at work in the cellar, and they must be held to have known that the movement of the derrick against the bricks would precipitate them into the cellar in the midst of the men at work there. Under such circumstances the action of the defendant’s men in charge of the derrick was careless and dangerous if they moved it against the bricks.

It becomes necessary, therefore, to inquire and determine now whether the evidence was sufficient to justify a jury in finding that the defendant’s men moved the derrick against the brick and caused them to fall into the cellar and injure the plaintiff.

The following facts are material upon that question: The pile of brick rested upon a level platform and was surrounded and supported by a wall of brick eight inches in thickness; that is, the brick were placed lengthwise and laid up dry. It had remained in the same position about two weeks. The floor upon which it was built extended outside of the wall about the width of two planks. There is no reason to suppose or believe that the bricks would have fallen without interference, and there was no disturbing cause present when they fell except the derrick. The bricks fell when the men were moving the derrick past the southeast corner of the pile. “ Just before the bricks fell down they were moving the derrick * * * These men were moving the derrick up to the time the bricks fell.”

From the facts established by the evidence, and from the circumstances surrounding the occurrence, the rational conclusion seems to be that the defendant’s men in moving the derrick caused it to impinge against the pile of brick, and that such impingement displaced the bricks and precipitated them into the cellar upon the head of the plaintiff and inflicted the injuries for which he seeks compensation in this action.

The circumstances are inconsistent with any other hypothesis, and the falling of the bricks can be accounted for upon no other theory.

Even, however, if different minds might reach diverse conclusions, and a jury may draw a different inference, the case is yet a proper one for the determination of a jury.

It cannot be said that our conclusion is destitute of justification, and if a jury should draw the same inferences that we do from the testimony, and find a verdict in favor of the plaintiff, it would not be disturbed by the court for want of support in the evidence.

Our conclusion is that the case is a proper one for the determination of a jury, and that the judgment should be reversed and a new trial granted, with costs to abide the event.

Cullen, J., concurred; Brown, P. J., not sitting.

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


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    In the Matter of the Final Judicial Settlement of the Accounts of Mary E. Townsend, as Administratrix, etc., of Stephen P. Sherwood, Deceased. Charles A. Hoag, Appellant; Charles Townsend and Another, Respondents.

      Word “prior" in reference to a, judgment defined — preference in the payment of judgments from the personal pi'operty of a deceased judgment debtor.

    “Prior” and “ subsequent ” are opposite terms, and although the word priority is sometimes used in the sense of pre-eminence and preference, yet it is generally used to signify antecedence and precedence, and by the term “prior claim,” as used in subdivision 3 of section 2719 of the Code of Civil Procedure, it is intended to denote claims which have antecedence. The word prior, when employed to describe a judgment, can signify nothing except priority in point of time; a judgment cannot be prior in any other respect.
    The provisions of subdivision 3 of section 2719 of the Code of Civil Procedure plainly contemplate a preference of some sort in the payment of judgments out of the estate of a decedent, and according to the maxim expressio unius est excktsio alterius the prohibition of preference of debts “ except those specified in the fhird class” creates the inference that preference may be given in the payment of the debts which are specified in the third class.
    Under the common law one judgment against a decedent docketed previous to . his death had no preference in payment over another.
    Under the provisions of section 2719 of the Code of Civil Procedure judgments docketed and decrees enrolled are entitled to preference in payment out of the personal estate of a deceased debtor, according to the priority, in point of . time, of the docketing of the judgment or the enrolling the decree and without f reference to any supposed lien of the judgment , or decree upon the real estate of the decedent; and a judgment which has been docketed or a decree which has been enrolled more than ten years before the death of the decedent is entitled to be paid out of the personal estate of a deceased debtor in preference to a junior judgment or decree which has been obtained within ten years.
    Appeal by Charles A. Hoag, a judgment creditor of Stephen P. Sherwood, deceased, from that portion of a decree of the Surrogate’s Court of the county of Dutchess, entered in the Surrogate’s Court of .Dutchess county on the 29th day of May, 1894, settling and allowing the accounts of the administratrix of Stephen P. Sherwood, deceased, which excludes the appellant from a fpro rata share in the fund distributed thereby.

      li&rrich da Losey, for the appellant.

      Jos. Morsohauser, for Charles Townsend, first judgment creditor, respondent.

      U. D. Ilufowt, for the administratrix, respondent.
   Dykman, J.:

This is an appeal from the decree of the surrogate of Dutchess county upon the final settlement of the accounts of the administratrix of Stephen P. Sherwood, deceased.

The decree of the surrogate shows a balance of money in the hands of the administratrix of $394.61.

On the 15th day of November, 1819, Sarah J. Smith recovered a judgment against Stephen P. Sherwood, which was docketed in the Dutchess county clerk’s office on that day, for $519. That judgment has been assigned to Charles Townsend, and he claims the entire balance in the hands of the administratrix, as the first judgment creditor of the deceased.

Charles A. Hoag obtained a judgment against the deceased, which was docketed in the Dutchess county clerk’s office oh the 16th day of April, 1880, for $418.02, and he now claims payment of his judgment pro rata with the first judgment above mentioned.

The fund for which the administratrix rendered an account was acquired by the deceased about two years previous to his death.

The surrogate directed the money to be applied upon the judgment which.was prior in point of time.

The order of payment of the debts of deceased persons by their personal representatives is prescribed by section 2119 of the Code ■of Civil Procedure as follows, so far as the provision is applicable to this case: * * *

Third. “Judgments docketed and decrees entered against the deceased according to the priority thereof respectively. * * * Preference shall not be given in the payment of a debt over other debts of the same class, except those specified in the third class.”

The determination of the question involved in this appeal demands the construction of subdivision 3 above quoted, and the meaning of the term priority as it is employed in that statute.

Prior and subsequent are opposite terms, and although the word priority is sometimes used in the sense of pre-eminence and preference, yet it is generally used to signify antecedence and precedence, and when we speak of prior claims we intend to denote claims which have antecedence.

The statute plainly contemplates a preference of some sort in the payment of judgments, because although the portion of the statute quoted prohibits a preference in the payment of one debt over another, except those specified in the third class is a negative provision, yet, according to the maxim expressio unius est exehisio alterius, the inference is that preference may be given in the payment of the debts which are specified in the third class.

Moreover, the word prior, when employed to describe a judgment, can signify nothing except priority in point of time, because a judgment cannot be prior in any other respect.

Under the common law one judgment against a decedent docketed previous to his death had no preference in payment over another, but the order of jDayment of the debts of deceased persons was regulated and prescribed by our Revised Statutes (2 R. S. 87, § 27),_ and the language of the section is the same as the language in section 2719 of the Code of Civil Procedure, except that the word “ entered ” follows the word “ decree ” in the Code of Civil Procedure instead of the word “ enrolled,” used in the Revised Statutes; and the clause prohibiting preferences, except as to debts specified in the third class, is contained in a separate section in the Revised Statutes, while in the Code of Civil Procedure it is placed in the same section. That section of the Revised Statutes came under review by Chancellor Walworth, in the case of Ainslie v. Radcliffe (7 Paige, 440).

The question involved in that case was similar to the one now presented to us, and the chancellor decided that by the provision of the Revised Statutes judgments docketed and decrees enrolled are entitled to preference in payment out of the personal estate of the deceased debtor, according to the priority in point of time of docketing the judgment or of enrolling the decree, and without reference to any supposed lien of the judgment or decree upon the real estate of the decedent. And a judgment which had been docketed or a decree which had been enrolled more than ten years before the death of the decedent is, therefore, entitled to be paid out of his personal estate in preference to a junior judgment or decree which had been obtained within the ten years.

The case of Matter of Hazard (73 Hun, 22) is easily distinguished from this. That matter brought section 1251 of the Code before the court, and it was there decided that under that section docketed judgments became liens at the time of such acquisition simultaneously upon real property subsequently acquired by the judgment debtor, and without priority between them.

There is no question respecting the liens of judgment presented by this appeal, and the Haza/rd case has no application to this case.

That was a proceeding to determine the rights of certain parties in the surplus arising from the sale of real property under a judgment in an action to foreclose a mortgage on real property, and as the money assumed the place of the land, it became necessary to determine the question of priority of the liens upon the land, or whether there was any preference of payments between such judgments.

The decree of the surrogate should be affirmed, with costs to be paid by the appellant.

Brown, P. J., and Cullen, J., concurred.

Decree of the surrogate affirmed, with costs to be paid by appellant.


author: Cullen, J.: Brown, P. J., concurred; Dykman, J., dissenting.

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    George Wilber, Respondent, v. Mary Wilber and Others, Appellants.

      Equity — action to quiet claims to real estate — to remove a cloud upon title to perv sonal property — when not maintainable.

    Equity will not entertain an action to remove a hostile claim as a cloud on the title to real estate, unless the instrument under which the claim is made is on its face valid, and its validity arises1 out of facts not appearing in the proof necessary for the claimant to make in an action to enforce his claim. The action to quiet claims to real estate is not equitable, but legal and purely statutory, no such action being maintainable except in compliance with the statute.
    Equity will not take cognizance of suits in equity as to chattels, where it would not entertain jurisdiction of similar suits as to real estate.
    An action, brought to determine and declare the several rights and interests of the plaintiff and the defendants in certain personal property, is not maintainable where the complaint alleges that the defendants have, or claim to have, some right or interest in such property; that they are in the possession thereof, and refuse to permit the plaintiff to take possession.
    Dykman, J., dissenting.
    .Appeal by the defendants, Mary Wilber and others,•'from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 24th day of July, 1894, upon the report of a referee.

      L. B. Saokett, for the appellants.

      Wood c& Morschauser, for the respondent.
   Cullen, J.:

This is an appeal from a judgment entered upon the report of a referee.

We are met at the threshold of the discussion of this case with the objection that the action cannot be maintained. The plaintiff alleges that he is the owner of certain personal property consisting of farming utensils, live stock, etc., on the farm of the plaintiff and defendants. That the defendants have, or claim to have, some right or interest in said personal property; that the defendants are in possession of the property and refuse to permit the plaintiff to take possession of the same. Thereupon the defendants pray judgment that the several rights and interests of the plaintiff and defendants in said property be determined and declared. The judgment follows the prayer and declares that plaintiff owns certain of the chattels; that each of the defendants owns others of the chattels, and that certain of the chattels are owned in common.

We know of no precedent for an action of this character. The action is concededly not for a partition of chattels owned in common nor for an accounting between the parties as partners. The plaintiff seeks to establish no equitable title to the chattels nor to enforce any trust. He rests solely on his legal title, and avers that the defendants have or claim an interest in the chattels. If the defendants are part owners with him, he has no right to take the chattels from their possession. His only remedy is by the action for partition given by the Code of Civil Procedure. If he denies defendants’ interest in the chattels his remedy is replevin or con version. Even as to real estate, equity will not entertain an action to remove a hostile claim as a cloud on the title unless the instrument is on its face valid and its invalidity proceeds out of facts not appearing in the proof necessary for the claimant to make in an action to enforce his claim. The action to quiet claims to real estate is not equitable, but legal and purely statutory, no such action being maintainable except in compliance with the statute. Certainly, equity will not take cognizance of suits in equity as to chattels where it would not entertain jurisdiction of similar suits as to real estate.

The judgment appealed from should be reversed and complaint dismissed, with costs.

Brown, P. J., concurred; Dykman, J., dissenting.

Judgment reversed and complaint dismissed, with costs.


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    Samuel W. Hastings, Late Constable of the County of Kings, Appellant, v. Jacob Nagel and Others, Respondents.

      Replevin suit — sheriff, how far protected — effect of the delivery of an 'affidavit of claim— a receiptor for property is a bailee, not merely a custodian thereof.

    When, in a replevin suit, a sheriff is directed to take possession of certain specified goods from a designated person, the warrant does not authorize the sheriff to take the property from any person other than the person designated therein, hut it protects him in taking it from such person, no matter to whom the property belongs, and no action can be maintained against such sheriff on account of such taking, unless there has been a delivery to the sheriff of the affidavit of claim, provided for by section 1709 of the Code of Civil Procedure, in which case, if the chattels are not delivered to the claimant, an action will lie against the sheriff for the seizure under the provisions of section 1710 of the . Code of Civil Procedure.
    A constable, after levying upon certain personal property, consisting of clocks, left the same in the store where the levy was made, in charge of a clerk, taking a receipt in the following words:
    “Brooklyn, December 23,1890.
    “Received from S. W. Hastings, Constable,’ forty-four assorted clocks now in store of premises No. 1131 Broadway, Brooklyn, to be held as safe-keeping in storage, to he called for, by me. LUDWIG HERRING.”

      Held, that the clerk was the bailee of the property and not the servant of the constable.

      Ai>peal by tlie plaintiff, Samuel W. Hastings, late constable of the county of Kings, from a judgment of the County Court of Kings county in favor of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of March, 1894, upon the verdict of a jury rendered by direction of the court after a trial in the County Court of Kings county, reversing a judgment of a justice of the peace of the city of Brooklyn, and also from an order made on the 29th day of January, 1894, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

      Herman Vogel, for the appellant.

      George Carlton Comstock, for the respondents.
   Cullen, J.:

This is an appeal from a judgment of the County Court of Kings county in favor of the defendants, entered upon the verdict of a jury directed by the court.

The main facts are not disputed. On a justice’s judgment against one Yiemeister an execution was issued to the plaintiff as constable. He levied on forty-four clocks in Yiemeister’s store. He did not take the clocks away, but left them with one Herring, a clerk of Yiemeister’s, taking the following receipt:

“ Brooklyn, December 23, 1890.
Received from S. W. Hastings, Constable, forty-four assorted clocks now in store of premises No. 1131 Broadway, Brooklyn, to be held as safe-keeping in storage, to be called for, by me.
“ LUDWIG HERRING.”

Subsequently the E. Kroeber Clock Company brought an action in 'the Supreme Court against Yiemeister and Herring to recover possession of property, including the clocks in suit. Under a writ of replevin in that action the sheriff took the clocks. The plaintiff then brought this action against the sheriff for conversion of the clocks levied on, and the present defendants were substituted instead of the sheriff.

We think that the verdict was properly directed for the defendants. The liability of the defendants in this action is but the same as that of the sheriff had they not been substituted in his place. We concede that the plaintiff made a valid levy on the clocks and acquired a property therein sufficient to maintain an action against any wrongdoer who interfered with them. We may also concede that the title of the plaintiff would prevail against that of the Kroeber Clock Company, the plaintiff in the replevin suit, though the nature of the clock company’s claim of title does not appear in this record. But such facts do not determine the question of the plaintiff’s right to maintain this action. In the replevin suit the sheriff was directed to take the goods described from the possession of Yiemeister and Herring. The warrant did not authorize the sheriff to take the property from any other person than the defendants, but it did protect him in taking it from the defendants, no matter to whom the property belonged, and no action against him could be maintained except after affidavit of claim. (King v. Orser, 4 Duer, 431; Bullis v. Montgomery, 50 N. Y. 353.)

There can be no question that the property was in the possession of Herring. Herring was not the servant of the plaintiff, having mere custody of the property as distinguished from possession. He was a bailee of the property. The receipt given to the plaintiff establishes that fact. Hence the case of McDougall v. Travis (24 Hun, 590) is not in point.

The plaintiff had a plain remedy. Hnder section 1709 of the Code of Civil Procedure he could deliver to the sheriff an affidavit specifying his claim. If the chattels were not delivered up to him he could then, under section 1710, maintain his action against the sheriff for the seizure. Blit that section expressly provides that no action shall be maintained against the sheriff except as therein prescribed.

The judgment and order denying motion for a new trial appealed from should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.^

Judgment and order affirmed, with costs.


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    Cora E. Bliven, Appellant, v. George H. Robinson and Others, as Executors and Trustees, etc., of Joseph Colwell, Deceased, Respondents.

      Remaindermen — not bound, by the act of the life tenant — query whether the life ten- - ant {a cestui que trust) can estop himself — dismissal of a complaint, when it is upon the merits.

    No action or assent by an equitable life tenant of a trust fund can bind the remaindermen, and it is susceptible of grave doubt whether the beneficiary of the income of the trust fund, unassignable itself, can estop herself in respect thereto by her covenants or agreements.
    The complaint in an action was dismissed, not because of the failure of the plaintiff to produce proof in support of her claim sufficient to present a question of fact- for determination, but after the court had determined questions of fact and made findings of fact and law.

      Reid, that the complaint was dismissed upon the merits;
    That the fact that the cause was decided on the spot had no different effect, legally, than the rendition of a verdict by a jury without retiring.
    Appeal by the plaintiff, Cora E. Bliven, from a judgment of the Supreme Court in favor of the defendants, entered in tjie office of the cleric of the county of "Westchester on the 22d day of September, 1892, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint upon' the merits, and also from an order of the Supreme Court, made at the Westchester Special Term and entered in said clerk’s office on the 26th day of April, 1894, denying the plaintiff’s motion for an order correcting and modifying the decision and judgment nunepro tumo, so as to conform to the stenographer’s minutes taken on the trial, by striking therefrom the words “ upon the merits.”

      Alfred B. Gruikshcmic, for the appellant.

      William B. Ellison, for respondents Slcellen & Colwell, executors, etc.

      Thomas Darlington, for the respondent George H. Robinson, executor, etc.
   Cullen, J.:

This is an appeal from a judgment dismissing plaintiff’s complaint on the merits, entered-on the decision of the Special Term.

The plaintiff is the daughter of one Joseph Colwell, deceased, and one of the beneficiaries under his will. The defendants are executors of that will. At the time of his decease Colwell was a partner in business with one Hepworth. The agreement of co-partnership provided that the death of either partner during the partnership term should not be deemed a dissolution of the partnership, but that the same should be continued by the surviving partner till the expiration of the term for the benefit of himself and the wife and children of the decea'sed partner. By the will of Colwell his executors were directed to hold his residuary estate in trust in separate shares, the income thereof to be applied to his children dinting life, and upon the death of any child the principal of the share to go to his issue. The defendants loaned the bulk of his residuary estate to Hepworth to carry on the partnership business, and Hepworth thereafter failed. At the time of these loatís, or some of them, the plaintiff wrote letters to and executed an agreement with the executors, which it is alleged that the defendants will set up as a justification for their action in proceedings for an accounting. This suit is brought to set aside and cancel such instruments on the ground of fraud.

It is first to be stated that a large part of the appellant’s argument is devoted to a discussion of questions that cannot be determined in this action. It is doubtless true that no action or assent by the equitable life tenant of the fund can bind the remaindermen. It is susceptible of grave doubt whether the beneficiary of' the income of a trust fund unassignable, itself can estop herself by her covenants or agreements. Whether the will of Colwell or the agreement executed by plaintiff authorized the investment made by the executors may be debatable. But this action is not for an accounting against the executors nor to determine the effect of the instruments executed by the plaintiff, but solely to cancel those instruments on the ground of fraud. The case, therefore, presents that single issue.

We think the evidence justifies the trial court in its findings that no fraud was practiced upon the plaintiff.

The plaintiff at the time of the execution of the papers was the wife of a lawyer, the same lawyer who now brings this suit on her behalf. The important instrument, the agreement or release of ■May, 1885, was submitted to her husband and its form amended by him. The husband said he told the plaintiff not to sign it, and the plaintiff says the same. But the plaintiff is unable to state whether the paper was brought to her for signature by her husband or by her brother, one of the executors and defendants. It is conceded that there were negotiations between plaintiff’s husband and the lawyer of the executors concerning this instrument, and the instrument was executed in the form finally agreed upon with the husband. The proofs did not establish any fraudulent or dishonest misrepresentations made to the plaintiff for an inducement for her act, though there may have been immaterial inaccuracies in the statements to her.

The interest of herself and her brother, one of the defendants, was identical. We, therefore, do not see that the plaintiff was imposed upon, and she must stand by her acts, leaving their effect to be determined when the question may arise.

The complaint was properly dismissed on the merits. It was not a case of a nonsuit. The complaint was not dismissed because of a failure by plaintiff to produce proof in support of her claim sufficient to present a question of fact for determination. The court determined the questions of fact and made findings of fact and law. That it decided the cause on the spot has no different legal effect than the rendition of a verdict by a jury without retiring. In either case the question of fact is decided.

The judgment and order denying motion to modify judgment •appealed from should be affirmed, with costs.

Bb.own, P. J., concurred; Dykman, J., not sitting.

Judgment and order affirmed, with costs.


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    Mary E. Burns, by Edward McNichol, her Guardian ad Litem, Appellant, v. The City of Yonkers, Respondent.

      Highway — absence of guards — damages for personal injuries — primary canse of an accident — negligence of a municipality— its duty as to highwa/ys, distinguished from that of a town.

    The balking of a horse and the backing of a vehicle off a highway down a steep bank, whereby the person driving was thrown out and injured, although, in one sense, the primary cause of an accident, will not prevent the person injured, if she be free from fault, from recovering damages for personal injuries from a municipality which was bound to maintain the highway in a proper condition.
    It is the duly of municipalities and towns to place some guard at dangerous and exposed places along highways, where the happening of accidents from the failure to place guards may be reasonably anticipated.
    The principle that the liability of a town for damages for personal injuries sustained by reason of the unsafe condition of a highway is limited to the liability of its highway commissioners, does not apply to a city or village.
    It was shown upon the trial of an action brought to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant, a city, in failing to provide safeguards on a highway, that the width of the highway, which ran along the side of a hill, at the place where the accident happened, was but seven feet; that to the west of the track there was a space of three feet on the same level, then a slope of thirteen feet with a descent of two feet, then a precipitous fall of four feet, then a descent of sixteen and one-half feet vertical in a space of thirty-one feet horizontal, and that to the east of the track there was a slight rise for fourteen feet, and then a steep ascent.

      Held, that it was proper to submit to the jury the question whether the city was negligent in failing to provide at that place some safeguard;
    That it could not be said, as a matter of law, that there was no evidence to justify the jury in finding that the city was guilty of negligence.
    Appeal by the plaintiff, Mary E. Burns, by Edward McNichol, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Westchester on the 2d day of June, 1891, upon the disr missal of the complaint directed by the court after a trial before the court and a jury at the Westchester Circuit.

      Ellis & Sarrigcm, for the appellant.

      James M. Sunt, for the respondent.
   Cullen, J.:

This is an appeal from a judgment in favor of the defendant, entered upon a nonsuit at Circuit. The plaintiff was driving a horse and wagon along the Saw Mill River road, in the city of Yonkers. The horse balked and backed the vehicle off the highway down a steep bank. The plaintiff was thrown out and injured. For that’ injury she brings this action, claiming that the defendant-was guilty of negligence in not providing guards or barriers along the highway.

Though in one sense the balking of the horse may be said to have been the primary cause of the accident, this would not prevent a recoveiy by the plaintiff if she were free from fault. [Macauley v. Mayor, 67 N. Y. 602.)

It is not claimed on this appeal that the plaintiff was guilty of contributory negligence, at least as a matter of law.

The complaint was dismissed on the ground that no negligence was shown on the part of the defendant.

The liability of municipalities and towhs for failure to erect barriers along the highway has been the subject of many recent adjudications in this State. There is no doubt that it is their duty to place some guard at dangerous and exposed places, where the happening of accidents from the failure to place guards may be reasonably anticipated. But the question is whether, under the circumstances of the particular case, the place is such that reasonable care upon the part of the municipality would treat it as dangerous and provide guards.

In Monk v. Town of New Utrecht (104 N. Y. 552), and Hubbell v. City of Yonkers (Id. 444), where the roadways of the streets were in good condition, curbs set and sidewalks constructed beyond, it was held that there was no duty to erect guards to prevent one driving over the slopes of the embankment which lay beyond the sidewalk. In Lame v. Town of Hancock (142 N. Y. 510) the town was held not liable for the absence of guards along a country highway in a sparse settlement, the road not passing a place of danger. But that case proceeds chiefly on the principle that the liability of the town is limited to the liability of the highway commissioners, a principle which does not apply to an action against a city or village. On the other hand, towns have been held liable for failure to provide guards in Ivory v. Deer Park (116 N. Y. 476) where the road ran. along the brink of a railway cut; in Maxim v. Town of Champion (4 N. Y. Supp. 515; affd., 119 N. Y. 626), where the road was supported by a retaining wall along the side of a gully, and in Holcomb v. Town of Champion (12 N. Y. Supp. 882; affd., 128 N. Y. 599), where the road ran along a retaining wall eleven feet high. In the case at bar the road ran along the side of a hill. The track is but seven feet wide; to the west of the track there is a space of three feet on the same level, then a slope of thirteen feet with a descent of two feet, then a precipitous fall of four feet, then a descent of sixteen and one-half feet vertical in thirty-one feet horizontal (a slope about that of an ordinary railway .embankment) to the tree upon which the wagon struck. To the east of the track there is a slight rise for fourteen feet, and then a steep ascent. It would be a gross exaggeration to say that the descent thus described was a precipice, but the situation is certainly far different from that of the streets in the Monlc and Hubbell cases. We think the case lies in that intermediate territory where it is the province of the jury to determine the question of danger and that of negligence in failing to provide security against the danger. We cannot say as a matter of law that there was no evidence to justify the jury in finding negligence.

The judgment should be reversed and a new trial ordered, costs to abide event..

Dykman, J., concurred; Brown, P. J., not sitting.

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


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    Delia Ann Horton, as Administratrix, etc., of Benjamin F. Horton, Appellant, v. Stephen D. Horton and Another, Individually and as Executors of George W. Horton, Deceased, Respondents.

      J'Release — must hetpleaded.

    A release of a cause of action is an affirmative defense, and must be pleaded in order to justify the reception of evidence upon the trial to establish the same.
    Appeal by the plaintiff, Delia Ann Horton, as administratrix,’ etc., of Benjamin P. Horton, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of "Westchester on the 5th day of March, 1894, upon the decision of the court rendered at the Westchester Special Term dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said cleric’s office on the 5th day of March, 1894, directing the entry of such judgment.

      Oha/rles W. Colemam, for the appellant.

      W. M. Du Bois, for the respondents.
   Cullen, J.:

This is an appeal from a judgment rendered at the Special Term dismissing the plaintiff’s complaint.

We have little’doubt that the decision of the trial court was right on the facts proved, and that it was justified in finding that the plaintiff did execute the release despite her final statement to the contrary. But the plaintiff objected to the proof of the release on the ground that no such defense was pleaded and excepted to the ruling of the court admitting it in evidence. This objection was well founded. A- release of a cause of action is an affirmative defense, and must be pleaded. (McKyring v. Bull, 16 N. Y. 297; Kirchner v. New Home Sewing Machine Company, 135 id. 182.)

The judgment appealed from should be reversed and new trial ordered, costs to abide event.

Brown, P. J., concurred; Dykman, J., not sitting.

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


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    Yette Reich, as Administratrix, etc., of Marcus Reich, Deceased, Respondent, v. Henry A. Peck and Another, Appellants.

      Verdict of a jury, when not disturbed on appeal — damages resulting from, death through negligence — when the negligence of others is not imputable to the deceased.

    The verdict of a jury upon questions of fact must stand where no rule of law is violated and the verdict is supported hy testimony, unless the preponderance of evidence in favor of the party against whom the verdict was rendered is so great as to indicate the presence of passion, prejudice or misapprehension.

      Upon the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate, by reason of the alleged negligence of the defendants, it was shown that the plaintiff’s intestate and two companions, while in a rowboat at anchor, 'were run down by a schooner sailing under the direction of a person in the defendants’ employ, and that the plaintiff’s intestate was killed.
    The defendants’ counsel requested the trial judge to charge the jury that “if there was any negligence by his (the decedent’s) companions in the rowboat which contributed to the -accident, such negligence is chargeable as matter of law to the deceased, and the plaintiff cannot recover.” The request was denied and an exception was taken.
    It did not appear from the evidence who owned the rowboat, or whether it was hired, or how the men came together, or what part each took in the management of the boat, further than that the deceased was in the middle of the boat and did the rowing ; that one of his companions dropped the anchor, and that the other was told not to mind anything, and just to sit in the stern of the boat.

      Held, that the facts were insufficient to show that the deceased was in any way responsible for the conduct of his associates in the boat, or that their negligence, if any, was imputable to him, and that the refusal of the court to charge as requested was proper.
    Appeal by the defendants, .Henry A.- Peck and another, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of January, 1891, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an Order entered in said clerk’s office on the 11th day of January, 1891, denying the defendants’ motion for a new trial made upon the minutes.

      Joseph K. Murray, for the appellants.

      A. AT. Weller and Benjamin W. Downing, for the respondent.
   Dykman, J.:

The plaintiff in this action is the widow and administratrix of Marcus Reich, deceased, and this action is brought to recover the damages resulting from his death.

’While the deceased was fishing from a small boat at anchor in Hempstead Harbor with two other men, the boat was run down and upset by a schooner belonging to the defendants, and then sailing in the harbor under direction of a captain in the defendants’ employ, and the intestate of the plaintiff was killed.

Two questions were involved in the trial of the case, first, whether the deceased was guilty of negligence which contributed to the catastrophe, and whether his death was caused by the mismanagement and negligence of the captain of the vessel.

There was testimony introduced on the part of the plain tiff which tended to show mismanagement and carelessness on the part of the captain, and the testimony offered on behalf of the defendants tended to show that the schooner was carefully and properly managed, and that she would have cleared the small .boat if a sudden gust of wind had not struck her when she was near it and driven her upon it.

The questions were properly submitted to the jury, and the plaintiff obtained a verdict for $4,500. The defendants have appealed from the judgment and also from the order denying a motion for a new trial on the minutes of the court, but it is not a case for the interference of an appellate court. It cannot be said that the evidence on behalf of the defendants predominates. The testimony of the captain of the schooner seems to be sufficient to exonerate him from blame, but it was submitted to the jury and failed to secure the adoption of that body of fact triors.

We cannot reverse because we think the verdict might have been in favor of the other side. Where no rule of law is violated and the verdict is supported by testimony, and the preponderance of evidence is not so strong the other way as to indicate the presence of passion, prejudice or misapprehension, the verdict must stand.

The counsel for the defendants requested the trial judge to charge the jury that, “ If there was any negligence by His companions in the rowboat which contributed to the accident, such negligence is chargeable as matter of law to the deceased, and'tlie plaintiff cannot recover.” That request was denied and there was an exception.

It did not appear from the evidence who owned the boat or whether it was hired, or how the men came together, or what part each took in the management of the boat further than that the deceased was in the middle of the boat and did the rowing. Rahm dropped the anchor and Riguet was told not to mind anything and just to sit in the stern of the boat.

The facts are insufficient to show that the deceased was in any way responsible for the conduct of his associates in the boat, and it is not, therefore, a proper case for the application of the rule of imputable negligence.

We detect no error in the-record, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Brown, P: J., and Cullen, J., concurred.

Judgment and order affirmed, with costs.


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    Cordelia Armstrong, as General Guardian and Trustee for Madeline W. Forbes and Another, Respondent, v. Samuel Warren, Appellant.

      Designation of a beneficiary under a life insurance policy issued by a fraternal organization— indorsement on a life insurance policy — delivery is necessa/ry to give it vitality as a deed — -chapter 690 e/1892, § 238.
    "Where the designation of a beneficiary under the provisions of a life insurance policy issued by a fraternal organization, proceeds from the mere gift or bounty of the insured, the assent of the beneficiary to a change of payee is not necessary under the provisions of section 238 of chapter 690 of the Laws of 1892: such statute, however, subjects the right of the insured to the qualification that the change shall be made upon the consent of the society in the manner and form prescribed by its by-laws.
    To give an indorsement made by an insured, since deceased, on a life insurance policy, directing the payment of the amount of the policy to a person designated therein, vitality as a deed, it is necessary that it should have been delivered to, or for the benefit of the person named in such indorsement.
    Appeal by tlie defendant, Samuel Warren, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester 'on the 17th day of July, 1894, upon the decision of the court rendered after a trial at the Westchester Special Term adjudging that the plaintiff, as general guardian of Madeline W. Forbes and another, is entitled to the whole of a certain fund of $2,990.

      James J. Allen, for the appellant.

      J. Mortimer Bell, for the respondent
   Cullen, J.:

This is an appeal from a judgment of the Special Term in favor of the plaintiff. The action was originally instituted, against the Royal Arcanum to recover the amount of a benefit certificate payable on the death of Horatio Forbes to his two children, Madeline and Olive. The defendant conceded its liability on the certificate, but one Samuel Warren also claimed half of the fund as guardian of Madeline W. Forbes. The fund was, therefore, paid into court and Warren substituted as defendant.

The claim of the plaintiff is based upon an indorsement made by the deceased upon the certificate in July prior to his death.. This is in the form following:

To Sv/p. See’y 8. O. R. A.:
“ I herewith surrender and return to the Supreme Council of the Royal Arcanum the within benefit certificate, No. 51,636, and direct that a new one be issued to me, payable to Cordelia Armstrong as trustee for and guardian of my children, Madeline W. and Olive H. Forbes, residing at 437 Lincoln avenue, Mt. Yernon, N. Y., related to me as sister.
“ HORATIO FORBES, [l. s.]
“ Signed in presence of
“ R. M. J. Armstrong.”

After the death of Horatio Forbes, the execution of this indorsement was proved by the subscribing witness and the instrument recorded in the register’s office of Westchester county, where the deceased resided, on January 15, 1894. The defendant Warren was appointed general guardian of Madeline W. Forbes on November 23, 1893. The first contention of the plaintiff is that the indorsement changed the beneficiary from the infants named in the certificate to herself as trustee and guardian. Had this been an ordinary insurance policy, the deceased would have had no right to dispose of it. The title to the policy would have been in the children to whom the insurance was payable. But the statute has modified this rule as to fraternal organizations. Where the designation of the beneficiary proceeds from the mere gift or bounty of the insured, his assent to a change of payee is not necessary. (§ 238, chap. 690, Laws of 1892; Smith v. National Benefit Society, 123 N. Y. 85.)

But this statute subjects this right of the insured to the qualification that the'change shall be made upon the consent of the society-in manner and form prescribed by its by-laws. (§ 238, supra.)“ There is no claim that the Royal Arcanum ever consented to a substitution of beneficiaries, or even had notice of the indorsement till after the decease of the insured. It follows, therefore, that there was no valid transfer of the insurance.

The second claim of the plaintiff is that the indorsement signed by the deceased constituted a valid, legal appointment of herself as guardian of the infants, and that the appointment of the defendant is superseded and void. We should be very loath to hold that this instrument, the sole intent of which was a contemplated change of the payees of the benefit certificate, could operate as a deed appointing a guardian. It is not necessary to determine the construction of this instrument. While the trial court found that the deceased duly executed this instrument, which might include a delivery, it also found, at the request of the defendant, that the certificate and indorsement remained in the possession of the deceased till his death. This latter finding' must control (Traders’ Nat. Bank v. Parker, 130 N. Y. 415), and in fact determines that there was no delivery of the instrument. To give the instrument vitality as a deed, it was necessary that it should have been delivered to the plaintiff, or for her benefit. (Govin v. De Miranda, 76 Hun, 418.)

The judgment appealed from should be reversed- and a new trial ordered, costs to abide event.

Brown, P. J., concurred; Dykman, J., not sitting.

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


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    Thomas Palmer, Respondent, v. James Gordon Bennett, Appellant.

      Damages for libel — it is not necessa/ry that the person libeled be named — Statute of Dimitations — absence from the State — the return to the State must be public and notorious.

    In an action brought to recover damages resulting from an alleged libel it is not necessary in order to justify a recovery that the plaintiff should have, been named in the alleged libelous article; it is sufficient if the description or reference contained in such article identifies him.
    If it is affirmed in a newspaper article that A and B are the same person, and that B has committed an offense, it is thereby necessarily affirmed that A has committed the offense. If A and B are in fact different persons and the charge made is false as to both, then there is a libel on each; if false as to either, then there is a libel on the one who is innocent.
    Where at the time of tire publication of a libel the person publishing the same was absent from the State, the time limited, during which an action must be brought therefor, begins to run under the provisions of section 401 of the Code of Civil Procedure, only from the time of such person's return to the State ; such a return to set the statute running must be public or notorious, so that the person libeled either knew of the return, or with due diligence could have ascertained it, and have served process on the person responsible for the publication of the libel, and the burden of proof is upon the publisher to show a return of such a character.
    Appeal by tlie defendant, James Gordon Bennett, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of March, 1894, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 10th day of April, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Jolm Townshend and F. B. Gandler, for the appellant.

      Edmct/rd M. Grout, for the respondent.
   Cullen, J.:

This is an appeal from a judgment for the plaintiff entered on the verdict of a jury at Circuit. The action was for libel. In the defendant’s newspaper there was published an article thus headed:

“ President and Pauper.
“ Speculator Dissipates a Railroad Magnate’s Fortune.
“ In a Police Court at Last.
“A policeman recognizes in bis prisoner a former wealthy employer.” Then follows a detailed account of the arrest of an intoxicated tramp who gave the name of Edward E. Palmer, his arraignment at the police station and at the Police Court, and the recognition of him by the police officer as the former president of the De Kalb Avenue railroad. The article concludes as follows:
“ Edward E. Palmer was for several years president of the De Kalb Avenue Railroad Company in Brooklyn, and was at one time president of a bank in that city. He had a charming family, and elegant residence on De Kalb avenue and was possessed of considerable wealth. ' He speculated in cotton and lost everything, and then took to drink. He has for some years' been lost to his old friends. He lives with his family a short distance out of the city. He is not doing anything and has no means, and when arrested was trying to raise a drink to brace up his shattered system.”

The plaintiff is named Thomas, he had been president of the De Kalb Avenue railroad for eight years and the only president of that name, and had resided on De Kalb avenue for twenty-three years. The defendant answered denying that the article was published of the plaintiff and set up the Statute of Limitations.

The first point urged- against this recovery is that the libel did not refer to the plaintiff, but to Edward E. Palmer, the person arrested, and that the court erred in submitting that question to the jury instead of dismissing the complaint. We do not understand the defendant to contend that it was necessary that the plaintiff should have been named, or that it was not sufficient that the description or reference in the libel should identify him. That such is not the law is well settled, (Townshend on Libel, §§ 131, note, 543; Sumner v. Buel, 12 Johns. 475.) But his claim is that the article was published of the prisoner, Edward E. Palmer, and that of him the libelous portion of the article was true. In a sense this is correct. The article was published of that Palmer, the prisoner, but it does not follow that it might not reflect upon others. If false it contained a libel on Edward E. Palmer because of the charge of his vagrancy and arrest. But when the article charged the identity of the plaintiff and Edward. E. Palmer, there was then a libel on the former. If it is affirmed that A and B are the same person, and that B has committed an offense, it is thereby necessarily affirmed that A has committed the offense. If A and B are in fact different persons, and the charge made is false as to both, then there is a libel on each; if false as to either, then there is a libel on the one who is innocent. The evidence fully justified the submission to the jury of the question whether the article referred to the plaintiff as well as to the man arrested, and the motion to dismiss the complaint was properly denied.

The defense of the Statute of Limitations was not so clearly established as to take that question from the jury. Indeed, we doubt whether it was made out at all. The defendant was absent from the State when the libel was published and the cause of action accrued. The answer averred this fact; hence, the time limited began to run only from the defendant’s return to the State. (Code Civ. Proc. § 401.)

This provision of the Code is in the same language as that of the Revised Statutes on the subject. The authorities are clear that a return to set the statute running must be public or notorious so that the plaintiff either knew of the return or with due diligence could have ascertained it and served process on the defendant. (Cole v. Jessup, 10 N. Y. 96; Fowler v. Hunt, 10 Johns. 464; Ford v. Babcock, 2 Sandf. 518.) The burden of proof was on the defendant to show a return of this character. The trial court assumed that the returns in June and October, 1888, set the statute in motion. In the view most favorable to the defendant this was a question of fact for the jury. The defense of the statute was, therefore, submitted to the jury more favorably to the defendant than he was entitled to and he has no valid complaint in this respect.

The judgment and the order denying motion for a new trial appealed from should be affirmed, with costs.

Dykman, J., concurred; Brown, P. J., not sitting.

Judgment and order affirmed, with costs.


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    Anton Spiehler, Appellant, v. Leopold N. Asiel, Respondent.

      Application for judgment in New York, where the venue is in Westchester county — it may be made by consent — application to vacate an irregular judgment — terms imposed — submission of a case for summary determination.

    Where the venue ®f an action triable in the Supreme Court is laid in the county of Westchester, an application for judgment therein cannot be properly made in the county of New York except by the consent of the parties ; such consent is, however, given by the submission of such application without objection.
    Although no consent has been given, the granting of such application, so made, is a mere irregularity, and does not render the judgment void.
    It is the duty of the party who deems himself aggrieved by an irregular judgment to take proceedings to set it aside; he cannot disregard it.
    After issue has been joined in an action, the orderly way of procedure is to bring the cause on for trial, but, by the consent of the parties, the case may be submitted for summary determination upon the pleadings and a stipulation.
    If a person against whom an irregular judgment was rendered, instead of promptly applying for relief therefrom, contumaciously resists the same, terms should be imposed upon his subsequent application to vacate such judgment, as a condition for the relief sought.
    Where a judgment in an action was granted under a misapprehension that the parties had consented to the granting thereof, such judgment should be vacated upon the application of the party aggrieved, although it was such a judgment as might have been properly rendered in the action.
    Appeal by tlie plaintiff, Anton Spiehler, from an order of the Supreme Court, made at the "Westchester Special Term and entered in the office of the cleric of the county of Westchester on the 5th day of June, 1894, denying the plaintiffs motion to vacate and set aside a certain decree, and also from an order of the Supreme Court, made- at the Kings County Special Term on the 5th day of June, 1894, adjudging the plaintiff to be in contempt.

      G. A. Clement, for the appellant.

      F. R. Mimratli, for the respondent.
   Cullen, J.:

These are appeals from two orders of' the Special Term, one adjudging the plaintiff guilty of contempt in failing to comply with a decree of specific performance; the other from an order denying a motion subsequently made by the plaintiff to set aside said decree.

The motion, to punish for contempt was heard and decided before the motion to vacate the decree. The order adjudging the plaintiff in contempt was properly made. The motion on the pleadings was heard and the judgment rendered at a term of the court held in the county of New York. The venue of this action was laid in Westchester county. The application for judgment could, therefore, not be properly made in the county of New York, except by consent. But such consent was in fact given by the submission of the application without objection. Even if consent had not been given it was a mere irregularity and did not render the judgment void. It was the duty of the plaintiff if aggrieved to seek to set the judgment aside; he could not disregard it.

The motion to vacate the judgment should have been granted. The complaint alleged defendant’s default and prayed for a specific performance of a contract for an exchange of lands. The answer denied the defendant’s default, alleged that the title of the plaintiff to his property was defective and prayed for specific performance, or in lieu thereof damages. After the action had been pending for some time the defendant tendered a stipulation withdrawing his objections to plaintiff’s title and noticed a motion for judgment on the pleadings and stipulation. The motion was submitted to the court and the decree granted. This decree ordered the plaintiff to perform the contract, convey his property and pay certain moneys for rents, and also ordered the defendant to convey his property to the plaintiff. After issue had been joined the orderly way would have been to bring the cause on for trial. We think, however, that the cause might have been submitted by the consent of the parties for summary determination on the pleadings and stipulation. But the judgment was evidently granted finder a misapprehension. It was granted on the recital in the decree of the consent of the parties. It is not now questioned that the consent extended only to the submission of the application, not to the granting of the judgment. There has been, therefore, no judicial determination of the rights of the parties, and the decree granted by error should not stand even though it be such as could properly be rendered. The plaintiff instead of promptly applying for relief from the judgment, contumaciously resisted it, and terms should now be imposed as a condition for the relief sought.

Tbe order denying motion to vacate judgment should be reversed and judgment vacated on plaintiff paying within ten days the costs of both motions at Special Term and the costs and disbursements of both appeals therefrom, and, on failure to comply with such conditions, the orders appealed from should be affirmed, with ten dollars costs on each appeal and disbursements.

Brown, P. J., and Dykman, J., concurred.

Order denying motion to vacate judgment reversed and judgment vacated on plaintiff paying within ten days costs of both motions at Special Term and costs and disbursements of both appeals therefrom, and, on failure to comply with such conditions, the orders appealed from are affirmed, with ten dollars costs and disbursements on each appeal.