text:
    The People of the State of New York ex rel. Henry Bradley v. The Board of Supervisors of Essex County.

      Boa/rds of supervisors — decisionas to a contested seat, after an adjudication by the courts — when revicwable by am'tiorari.

    Wien the question which settles the right of a claimant to the office of supervisor of a town has been substantially passed upon in his favor by the Court of Appeals, and he has received the certificate of election and has qualified and has been awarded by the courts, as acting supervisor, the custody of the books in the possession of his predecessor, the county board of supervisors has no power to determine a contest as to his seat, and exclude him therefrom, and its illegal action in so doing will be set aside on certiorari.
    Certiorari, issued out of the Supreme Court at General Term in tbe third department on the 2d day of December, 1892, to review the action and proceedings of the board of supervisors of Essex county, taken and had on November 15,1892, whereby said board assumed to pass upon the election and qualification of the relator to the office of supervisor of the town of Minerva in said county, and his right to a seat in said hoard as the supervisor representing said town, and denied him recognition therein, seating one William H. Sullivan, and giving him recognition as the supervisor of said town.

      John Foley, for the appellant.

      Mobert Fornburg/i, for the respondent.
   Mayham, P. J.:

The questions in this matter have been before the courts in various forms, and have all been determined in favor of the' relator.

The legality of the votes by which he was declared elected has been determined by the Court of Appeals, and pursuant to the decision of that court the disputed ballots were ordered counted, and upon such count the relator has been declared elected supervisor of the town of Minerva, Essex county.

The record on this certiorari shows that after receiving hip certificate of election, he duly qualified, filed his bond and' oath of office, and demanded of his predecessor the possession of the books 'and papers pertaining to his office, which was refused. That upon application to the court after the due hearing of the parties interested, the court awarded him the custody of said books, etc., as the acting supervisor of said town.

We are clearly of the opinion that the question which settled the right of the relator to this office was substantially passed upon by the Court of Appeals and that the board of supervisors had no power under the provisions of subdivision 1 of section 7 of chapter 482 of the Laws of 1875, if that law had not been repealed, to determine any contest between the relator and Sullivan, who was seated by the action of the board. But chapter 482 of the Laws of 1875 was, on the 18th of May, 1892, in all things repealed, and could not, therefore, furnish any legal authority for the action of tbe board of supervisors on the 15th day of November, 1892, when the board assumed to exclude the relator and seat Sullivan as a supervisor of that town.

We are, therefore, of the opinion that the action of the board of supervisors in seating Sullivan and excluding the relator was illegal and shohld be set aside and reversed, with fifty dollars costs and disbursements to the relator.

Let an order be entered accordingly.

Putnam and Herrick, JJ., concurred.

Action of supervisors reversed and judgment on certiorari ordered for relator, with fifty dollars costs and disbursements.

         People ex rel. Bradley v. Shaw et al., Comprising the Board of Canvassers of the Town of Minerva (133 N. Y. 493). — [Reporter.

       Session Laws of 1892, ch. 686, vol. 2, page 1798. — [Reporter.


source: Caselaw Access Project

author: Putnam, J.:

license: Public Domain

text:
    James Spears, Respondent, v. Eben Willis, Appellant.

      Agreement for the assignment of a patent and the formation of a copartnership — dissolution of the pan'tnership —accounting — equitable rights enfoi'ced — cont/raat unlawfully destroyed by ■ one of the pan'tners — a new contract made by him personally inures to the pan'tnership.

    In 1879, one Willis, being the owner of a patent for an improvement in “sap-spouts,” agreed orally with James Spears to sell him an undivided half interest • in the patent for a certain sum, and that they, as copartners, should enter into the business of making and selling sap-spouts under the patent. They entered into such partnership and carried on the business under the firm name until 1887, when the firm entered into a contract with a third party by which the latter was given the exclusive right to sell the sap-spouts to the public in consideration of his buying from the firm a certain number each year. The spouts made by the firm were not in strict conformity with the specifications of the patent.
    In the fall of 1887 Spears removed from the town where the business was carried on, and Willis then stated to him that the business was not enough to divide, but that he must buy out the business or sell, and thereupon tore the firm name from the contract for the exclusive sale of the spouts, and notified the other party thereto to change the account to his (Willis’) name, which was done and remittances under this contract were thereafter made to Willis personally, and he refused to account to Spears therefor.
    Spears thereupon sued Willis, demanding an assignment of an undivided half interest in the patent, a dissolution of the partnership and an accounting. It appeared that Spears had never paid the purchase price for his interest in the patent and that Willis had never demanded payment, but Willis’ answer admitted the sale of the undivided half interest in the patent to Spears and the formation of the partnership.

      Held, that aside from such admissions, by the verbal agreement between the parties, under which they had as copartners carried on the business for eight years, treating the patent as partnership property, and under all the circumstances of the case, the plaintiff acquired an equitable title or interest in the invention which equity would protect;
    That the fact that the partners, who, under the partnership agreement, were to manufacture sap-spouts under the patent, in fact made and sold spouts varying from the specifications of the patent, did not interfere with the plaintiff’s right to recover his share of the partnership profits;
    That the defendant should account for all sales, under the contract for the exclusive sale of the spouts, down to the day of the entry of judgment;
    That as he had unlawfully assumed to destroy that contract and to make a new one for his own benefit, he should be deemed to hold it for the benefit of the firm, and that this was so, notwithstanding the fact that the spouts furnished since the defendant’s attempted destruction of said contract, although in sub- - stance in the form and pattern used immediately prior to the making of that contract, were not exactly the same (Herrick, J., dissenting).
    Appeal by tlie defendant, Eben Willis, from an interlocutory judgment of the Supreme Court, entered upon the report of a referee in the office of the clerk of St. Lawrence county on the 6th day of September, 1892, requiring an accounting of the defendant to the. plaintiff and appointing a receiver of the firm of Willis & Spears, and dissolving said firm.
    The action was brought to compel an assignment from the defendant to the plaintiff of an undivided half interest in letters patent No. 189,330 of the United States, dated April 10, 1877, for an improvement in sap-spouts ; and to obtain a dissolution of the partnership existing between the parties under the firm name of Willis & Spears, and an accounting, with a sale of the firm property, including the said letters patent, and a division of the surplus pro-, ceeds between the parties equally!

      Theodore H. Swift, for the appellant.

      L. P. Hale, for the respondent.
   Putnam, J.:

In the autumn of 1879, defendant being the owner of letters patent No. 189,330 for an improvement in “sap-spouts,” the parties entered into an oral agreement that defendant should sell to plaintiff an undivided half interest in said patent for $500, and that plaintiff and defendant, as copartners, should enter into the business of manufacturing and selling sap-spouts made under said letters patent. Thereafter they entered into said partnership and carried on said business under the name of Willis & Spears until 1887. The referee finds (and the evidence seems to sustain his findings) as follows, viz. :

“ 5th. That on or about the 19th day of January, 1887, Willis & Spears entered into a contract with Charles Millar & Son, of which the following is a copy:
“£ Utica, N. Y., Jem. 19, 1887.
“£ Charles Millar & Son :
“ ‘ Gentlemen — We do hereby give you the exclusive sale for the Willis Sap-spout for the United States, during the lifetime of the patent, about eight years, in consideration of your buying outright the spouts we now have on hand, paying for them $11 per M for the large size or No. 1, $10 per M for the small size or No. 2 and additional spouts required for this year are to be paid for at the same rate, and also in consideration of your buying not less than one hundred M. spouts each year after this. The price of spouts to be advanced or reduced in case of an increase or diminished cost of manufacturing them, and you are to fix the price to jobbers and the retail dealers yourselves in proportion. Terms of payment, half March 15th, and half May 15, of each year.
“ ‘ (Signed.) WILLIS & SPEARS.
Utica, N. Y., Jam,. 19, 1887.
“ £ Messrs. Willis & Spears :
“ ‘ Gentlemen — We hereby accept your proposition of this date giving us the exclusive sale in the United States of the Willis sap-spout for the terms mentioned.
Yours truly,
“£ (Signed.) ££ £ CHAS. MILLAR & SON.’ ”
££ 8th. The sap-spouts manufactured by the said copartners were not made in strict conformity to the specifications of the patent No. 189,330, but at the commencement of said copartnership the spouts were made after patterns furnished by said defendant and which patterns were embraced in said sale and were used as a part of the partnership property, and from, time to time different alterations and improvements have been made in the spout which was manufactored by said copartnership, and there is now being manufactured and furnished to'said Millar & Son a spout substantially in the form and of the pattern which was in use by and being manufactured by said firm of Willis & Speai’s immediately prior to and at the time of the making of said contract with said Millar & Son. And the spouts which have been manufactured and sold by said copartnership and which have been furnished to said Millar & Son are each marked Pat. 1887.”
“ 10th. In the fall of 1887, the plaintiff removed from Colton to Canton where he has since resided and since that time he has taken no active part in the partnership business and has given no time or attention to said business. Prior to such removal both the said copartners had resided at Colton and the partnership business had been carried on from that place, and each party had contributed about equally of his time and attention to said business.
“ lltli. Soon after the removal of said plaintiff from Colton the defendant stated to him that he should not continue the business of making sap-spouts and divide with him and that there was not enough of the business to divide, that he must buy out the business or sell; to which the plaintiff replied that he would sell his interest in the business and would name a low figure, but no further negotiation was had and no proposition or agreement made, and thereafter-the defendant notified said Millar & Son that he was carrying on said business in his own name, and requested them to change the account to his name, and he tore the name of Willis & Spears from said contract, and from that time the correspondence and remittances from Millar & Son -were to the defendant personally.”

The defendant claims that from the period that he so tore the name of Willis & Spears from said contract the plaintiff has had no interest in the said business, and he refuses to account with him or to convey to him a one-half interest in the said patent. Plaintiff has never paid the purchase price for said patent, nor has the defendant ever demanded such payment. The defendant continued to furnish sap-spouts to Millar & Son up to the time of the trial of, the action.

The answer admits the sale of an undivided one-half of the patent, right in question by defendant to plaintiff, and the formation of the partnership, as alleged in the complaint, and hence, no issue in these. regards being raised in tbe pleadings, tbe conclusions of tbe referee founded on such admissions cannot be deemed erroneous. Were there not such admissions, however, —by the verbal agreement between the parties under which they had as copartners carried on the business for eight years, treating said patent right during that period as partnership property, and under all the circumstances of the case, the plaintiff acquired an equitable title or interest in said invention, which equity will protect. The evidence disclosed an equity in favor of plaintiff, rendering a judgment for specific performance proper. (Burr v. De La Vergne, 102 N. Y. 416-422; Somerby v. Buntin, 118 Mass. 279 ; Hapgood v. Rosenstock, 23 Fed. Rep. 87; Adams v. Messinger, 147 Mass. 189; Binney v. Annan, 107 id. 91; 18 Am. & Eng. Ency. of Law, 139.)

We, therefore, conclude that the referee did not err in holding that the equitable title to said patent vested in the firm of Willis & Spears, and in directing an assignment thereof by defendant to plaintiff pursuant to the oral contract and a sale of the partnership assets, including said patent right.

The defendant claims that the plaintiff was not entitled under the complaint to compel an accounting or to recover in this action, because, as alleged, the partnership was formed to manufacture spouts under the patent No. 189,330, while, in fact, no spouts were ever made under that patent. That all the spouts manufactured by the copartnership were made under another patent owned by defendant. The referee finds that the spouts that were manufactured by said copartnership were not made in strict conformity with the specifications of said patent right No. 189j330, but were made after patterns furnished by defendant, and which patterns were embraced in the sale and used as part of the partnership property, and from time to time alterations and improvements were made.

The fact that the copartners who, under the partnership agreement, were to manufacture spouts under the above-mentioned patent, in fact made and sold spouts varying from the specifications thereof, does not interfere with the plaintiff’s right to recover his share of the partnership profits. It is not material under what patent they made their spouts. Whatever spouts were made were manufactured by them as copartners, and each member was entitled to his share of the profits and to call the other to account. We, therefore, conclude that the referee properly directed an accounting to be had of the partnership transactions between the parties. If there was any variance between the allegation in the complaint and the proof in the regard above mentioned, such variance was not. material. (Civil Code, §§ 539, 510.)

We also think that the judgment properly provided that defendant account for all sales of sap-spouts to the day of the entry of judgment. The copartners, on January 18, 1887, made a written contract with Charles Millar & Son for the sale to the latter of all spouts which the firm should thereafter manufacture during the life.of the patent, about eight years. This contract was owned by the-firm and was valuable. The defendant afterwards, without the. knowledge or consent of plaintiff, assumed to destroy said contract,, and make a new one in his own name and for his own benefit, and thereafter to sell spouts under said new contract made under an improvement of said patent No. 189,330 invented by said defendant.

When the contract with Charles Millar & Son was made plaintiff, and defendant were copartners and the owners of all benefits and advantages and profits to be derived under said contract. If plaintiff in any way failed to perform his duty as a copartner, either by' moving from Colton to Canton, or in neglecting the partnership business, or in any other way, defendant could have procured a dissolution of the copartnership, but until he did so the partnership continued. The evidence failed to show a legal abandonment of the partnership enterprise by plaintiff. Thé relation between the-parties was one of trust and confidence. Each was bound to act in entire good faith to the other. Nor could a clandestine stipulation or contract be made by either for a private advantage to himself. The defendant had no right to destroy the valuable contract which the firm owned with Charles Millar & Son or to take a new contract, in his own name. Such an act was a fraud on the firm. It was. somewhat like one member of a copartnership taking a renewal lease-of premises occupied by the firm, as in Mitchell v. Reed (61 N. Y. 123), and Struthers v. Pearce (51 id. 357). The fraud here, however, is much more flagrant than in the cases cited, because the defendant before making a new contract was compelled to cancel a. valid and valuable contract owned by the firm without any authority whatever to do so.

Under the circumstances the new contract made by defendant with Charles Millar & Son, and his receipts thereunder should inure to the benefit of the copartnership. The contract made by the firm would not expire until 1895. Defendant having unlawfully assumed to destroy that contract and take a new one for his own benefit should be deemed to hold it for the benefit of the firm he has attempted to defraud. This is so, notwithstanding the sap-spouts furnished, since the defendant attempted the destruction of said firm’s contract with Charles Millar & Son, although in substance in the form and pattern as used immediately prior to the making of the said contract, as the referee finds, are not exactly the same. (See IT Am. & Eng. Eney. of Law, 1058, 1059, 1060; Story on Part. § ITé; 3 Kent’s Comm. 51.)

, It is probably true as defendant claims that plaintiff has no interest in the new patent invented by defendant. (Burr v. De La Vergne, 102 N. Y. 115.)

Rut the referee does not provide for the 'assignment of such patent or a sale thereof as a part of the partnership assets. He directs an assignment of an undivided one-half interest in said letters patent No. 189,330, and a sale of said patent right.

It follows that the judgment should be affirmed, with costs.

Mayham, P. J., concurred; Herrick, J., dissented.

Judgment affirmed, with costs.


text:
    Samuel T. Guilford, Respondent, v. Cynthia Crandall, Appellant, Impleaded with Clara M. Jacobie.

      Existence of a judgment for the mortgage debt as a bar to an action of foreclosure— section 1630 of the Code of Civil Procedure —judgment by confession.

    The provision of section 1630 of the Code of Civil Procedure — that where final judgment for the plaintiff has been rendered, in an action to recover any part of a mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution has been returned wholly or partly unsatisfied— applies to a judgment by confession.
    While a judgment which, under said section 1630, will prevent an action to foreclose a mortgage, must have been obtained on account of the mortgage debt or some part thereof, it need not be recovered on the bond and mortgage or against the mortgagor.

      On the trial of an action brought to foreclose a mortgage executed by a married woman, it appeared from the evidence, and was found, that the mortgage was given to secure a balance due to the plaintiff (the mortgagee) on the purchase price of goods sold by him to a firm of which the husband of the defendant (the mortgagor) was a member; that to secure this balance the plaintiff had originally received a confession of judgment, executed by the firm, and a mortgage executed by the defendant and her husband upon premises then owned by the husband; that the original mortgage had been foreclosed and the premises bid off in the name of the present defendant, who thereupon executed the mortgage in suit on the same premises, for the same amount-as the original mortgage, in pursuance of an agreement between her and the plaintiff, to the effect that the foreclosure and sale under the original mortgage should not extinguish the claim of the plaintiff against the firm which had given the confession of judgment, but that the defendant’s mortgage should be in effect in exchange for the original mortgage, leaving the original indebtedness unpaid. It further appeared that an execution had been issued on the confession of judgment, but had not been returned when the action was begun.

      Held, that the fact that the plaintiff had not exhausted his legal remedy on the confession of judgment prevented his maintaining the action.
    Appeal by tbe defendant, Cynthia Crandall, from a judgment of the Supreme Court adjudging the foreclosure of a mortgage and directing a sale of the mortgaged premises, rendered at the Montgomery Special Term and entered in the office of the cleric of "Warren county on the 6th day of August, 1892, with notice of an intention to bring up for review upon such appeal an order appointing a referee to compute the amount due, and denying a motion to dismiss the complaint, entered in said cleric’s office April 30, 1892, and an order denying an allowance of costs to the defendant Crandall, made July 25, 1892.

      U. Prior King, for the appellant.

      J. H. Bain, for the respondent.
   Putnam, J.:

The firm of Crandall & Boynton, composed of William H. Crandall (husband of defendant) and Loren D. Boynton, on March 8, 1888, bought of plaintiff his stock of goods for $2,764.67, paying in cash $500 and securing the balance of the purchase price by the note of the firm for $764.67 and a mortgage of said Crandall and his wife (the defendant) on real estate owned by him.

On the 14th day of February, 1889, to further secure the same debt for the purchase price of said goods, Crandall & Boynton executed to plaintiff a chattel mortgage covering their entire stock, and also an assignment of all their accounts and choses in action. On the 6th of Marcli, 1889, under said mortgage, plaintiff took possession of said stock'of goods, and-on the twenty-ninth of March sold the same, and on such sale bid them in himself for $1,140. The amount realized by plaintiff from said chattel mortgage and accounts does hot clearly appear.

On the 10th day of April, 1889, Crandall & Boynton executed a confession of judgment to the plaintiff for $1,400 containing the following statement: “ This confession of judgment is for a debt or liability justly due to the said plaintiff, arising from the following facts: On the 8th day of March, 1888, the defendants purchased from the plaintiff, goods, wares and merchandise, for and to a large amount, and upon which said purchase there is now due, owing and unpaid, the sum of $1,400, and said sum is now justly due and owing from the defendants to the plaintiff therefor.”

The referee found that this statement, executed after plaintiff had collected his chattel mortgage and accounts, sworn to by each of the members of the firm of Crandall & Boynton, should be deemed to represent the true indebtedness of said firm to plaintiff at that time, the balance due plaintiff for the purchase price of said stock -of goods. He states in his opinion: From this it would clearly appear that these parties understood and had agreed that after all the money and property which plaintiff had received had been applied, there still remained an indebtedness from Crandall & Boynton to plaintiff on account of said purchase — the said sum for which said judgment was given. Plaintiff had at that time realized on the goods sold under the mortgage, and had realized on all property received, so far as appears, exeenting the Monty judgment which was paid in some months or more afterwards.

“ It is quite evident from the testimony in the case, and the facts and circumstances proved, that this debt, acknowledged by Crandall & Boynton in the confession of judgment, was all the firm owed plaintiff at that date, and that this judgment is as binding and conclusive on the plaintiff as it is upon the defendant therein, is a proposition so plain as to need no argument.”

The referee, therefore, determined that the balance due plaintiff for the purchase price of said goods was said sum of $1,400, less the amount of tlie Monty judgment, which was collected after said judgment was made.

I think the evidence sufficient to sustain the finding of the referee in this regard, on the question of fact submitted to him, and that such finding could not properly be reversed on the facts.

At this time, therefore, there was due plaintiff $1,400, 'secured by a judgment by confession, and also by the mortgage executed by Crandall and wife on Crandall’s real estate. This mortgage plaintiff foreclosed, obtaining judgment May 18, 1889, the amount reported due thereon being $1,601.50. The property was sold on July 0, 1889, and bid in by plaintiff’s attorney, in the name of defendant, for $1,450. The defendant thereupon executed the mortgage set out in the complaint for the amount of the prior mortgage and interest. The findings of fact of the referee as to this transaction are as follows:

“48th. That the indebtedness of Crandall &' Boynton, mentioned in said confession of judgment, and for which judgment was entered on said confession, was, and is a part of the same indebtedness secured by the bond and mortgage dated March 8, 1888.”
“ 50th. That the consideration of the bond and mortgage mentioned in the complaint in this action, was the indebtedness which Crandall & Boynton owed the plaintiff, and for which the bond and mortgage dated March 8,1888, was given to secure, or a part thereof.”
“ 53rd. That said mortgage was foreclosed pursuant to an agreement between the plaintiff and the defendant, that the attorney for the plaintiff would bid in the property for the defendant, Cynthia Crandall, and she was to give plaintiff a mortgage on the same property to secure the same, or a part of the same, indebtedness represented by the mortgage of March 8, 1888.”

These findings of fact are not excepted to by plaintiff, and must be deemed to establish the facts as therein stated and set out. I think, also, that the determination of the referee is amply sustained by the evidence. The mortgage in suit being given for the amount of the old mortgage, instead of for the sum at which the property was bid off, shows the intent of the parties that the indebtedness secured by the confession of judgment and prior mortgage dionld not be extinguished, but remain and be secured by the mort gage now sought to be foreclosed. The referee determined that the amount due plaintiff on said mortgage was the amount of said judgment less the sums collected since its confession. It was conceded that an execution on said judgment had been duly issued and was not returned when the action was commenced.

Appellant claims a reversal, because of the judgment entered in favor of the plaintiff on the confession of Crandall & Boynton, for the same debt secured by the mortgage in suit, and on which an execution has been issued and not returned.

By section 1630 of the Civil Code, it is provided that, “ Where final judgment for the plaintiff has been rendered in an action to recover any part of a mortgage debt, an actio» shall not be commenced or maintained to foreclose the mortgage unless an execution * * * has been returned wholly or partly unsatisfied.” It will be seen by the language above quoted that such judgment must be obtained on account of the mortgage debt or some part.thereof, but need not be recovered on the bond or mortgage, or against the mortgagor. (Pattison v. Powers, 4 Paige, 549, 550, 551. And see Scofield v. Doscher, 72 N. Y. 494.)

In this case it appears by the findings of the referee that the debt which the mortgage in suit was given to secure was the balance due plaintiff for the purchase price of the goods sold to Crandall & Boynton over the amount he had received from the chattel mortgage and accounts. To secure this, he had a judgment by confession and the mortgage of March 8, 1888. This latter was foreclosed and the property .bid off in the name of defendant for $1,450. She did not pay this sum, but executed the mortgage in suit for the amount of the foreclosed mortgage. The foreclosure of the first mortgage and the sale to defendant might have operated to extinguish the claim which plaintiff held against Crandall & Boynton and the said judgment. But it was competent for plaintiff and defendant to, make an agreement that such foreclosure and sale should not have that effect, as they did. The agreement in fact made was, that the mortgage which plaintiff held, made by Crandall and wife, should be changed for one of the same amount made by defendant. It was an exchange of securities, leaving the original indebtedness unpaid. All the parties interested consenting, such an agreement is valid.

It is suggested by respondent that section 1§2>0 (supra) does not apply to a judgment by confession; .that only a final judgment im, an action is referred to, and that under section 1273, Civil Code, a judgment entered on a confession is one recovered without action. The language of the former statute was as follows : “ If it appear that any judgment has been obtained in a suit at law for the moneys demanded by such bill or any part thereof, no proceeding shall be had in such case unless to an execution against the property of the defendant * * * the sheriff shall have returned that the said execution is unsatisfied,” etc. (2 R. S. § 156, p. 192.)

This provision of the Revised Statutes which, it will be seen, is similar to section 1630 (supra), was held to prevent a foreclosure of a mortgage where a judgment by confession had been obtained for a part of the mortgage debt. (Pattison v. Powers, 4 Paige, 549; Lovett v. The German Reformed Church, 12 Barb. 67.)

There seems to be no reason why the provisions of the Civil Code that a foreclosure action should not be maintained when a final judgment for the plaintiff has been rendered in an action co recover the mortgage debt or any part thereof, should not apply to a judgment obtained by confession as well as by action. The object' of the statute is to compel the plaintiff to exhaust his legal remedies before coming into equity, and hence section 1630 (supra) should apply as well to a judgment by confession as if rendered in an action. Section 1276 of the Civil Code provides that a uidgment by confession, “ may be docketed and enforced against property in the same manner and with the same effect as a judgment in an action rendered in the same court; and each provision of law relating to a judgment in an action, and the proceedings subsequent thereto, apply to a judgment thus taken.” • I think under this section the provisions of section 1630 (supra) may be deemed to apply to the judgment by confession entered in favor of plaintiff and against Crandall & Boynton for the debt secured by the mortgage in suit, and hence plaintiff, having failed to exhaust his legal remedy on the judgment, cannot maintain this action.

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

Herrick, J., concurred.

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


text:
    Samuel T. Guilford, Respondent, v. Clara M. Jacobie, Appellant, Impleaded with Cynthia Crandall.

      Prior mortgagee as defendant in an action brought - to foreclose a second mortgage— form of the judgment —pendency of an action subsequently brought to foreclose the prior mortgage ■ — costs.
    It is proper to make the owner of a past-due prior mortgage a party defendant to an action brought to foreclose a second mortgage on the same premises, in order that the amount of the prior mortgage may be determined and be paid out of the proceeds of the foreclosure sale, and its lien be discharged.
    When the owner of a past-due prior mortgage has been made a defendant in an action brought to foreclose a second mortgage, it is proper that the judgment • in such action should provide that the referee’s fees and expenses of sale be first paid out of the proceeds of the sale, and that the amount due on the prior mortgage be then paid before any payment to the plaintiff on account of his mortgage, or for costs, but the prior mortgagee is not entitled to have the premises sold subject to his mortgage, or to a direction that the amount of his mortgage be paid before the referee’s fees and expenses of sale.
    While the pendency of an action to foreclose a second mortgage is not a legal defense to a subsequent action brought to foreclose a prior mortgage, still such subsequent action does not prevent the plaintiff in the action on the second mortgage, in which the prior mortgagee is a defendant, from proceeding therewith, and from bringing the mortgaged premises to a sale.
    When a prior mortgagee commences an action to foreclose his mortgage, during the pendency of an action to foreclose a second mortgage, in which the prior mortgagee is a defendant, the question as to whether the judgment in the action on the second mortgage shall provide for the payment to the prior mortgagee of the costs and disbursements incurred in his action to foreclose his mortgage, in addition to the amount due on his mortgage, is addressed to the discretion of the trial court.
    Appeal by tlie defendant, Clara M. Jacobie, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of Warren county on the 14th day of September, 1892, denying her motion for a modification of the judgment rendered in an action brought by Samuel T. Guilford to foreclose a second mortgage upon premises in Warren county^ executed to him by the defendant, Cynthia Crandall. The complaint alleged that the defendant, Clara M. Jacobie, was the assignee and owner of a past-due prior mortgage upon the same premises, and that she had or claimed some interest in or lien upon the mortgaged premises prior to the lien of the plaintiff’s mortgage. The complaint demanded that the defendants be foreclosed of all right, lien and equity of redemption in the mortgaged premises; that the premises be sold, and that the plaintiff be paid out of the proceeds of the sale the amount due on his mortgage and costs ; that the defendant Crandall be adjudged to pay any deficiency that might remain; and that “ the amount due upon the bond and mortgage upon said premises held by defendant, Clara M. Jacobie, be ascertained and paid before payment of the sum due to plaintiff upon his said bond and mortgage.”
    The defendant Jacobie appeared in the action, but did not answer, and a reference was ordered to compute the amount due upon her mortgage, as well as the amount due upon the plaintiff’s mortgage, and on the coming in of the referee’s report, a judgment was rendered, confirming the report and directing a sale of the mortgaged premises, and that “ out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale as provided by sections 1626 and 1616 of the Code of Civil Procedure, the said referee pay to the plaintiff’s attorney the sum of three hundred thirty-seven dollars and seventy-three cents, adjudged to the plaintiff for costs and charges in this action, with interest from the date thereof after paying defendant Jacobie’s mortgage, and that said referee out of the proceeds of such sale pay to the defendant, Clara M. Jacobie, the sum of $1,203.83, with interest thereon from the Jtli day of July, 1892, being the amount due upon her mortgage, and out of the balance of the proceeds of such sale he pay to the plaintiff or his attorney the sum of $1,265.82, with interest thereon from the date hereof, and that he pay over the surplus moneys arising from the sale, if any there should be, to the Treasurer of the County of Warren.”
    Thereafter the defendant Jacobie made a motion to modify this judgment, upon affidavits which alleged that it was admitted before the referee to compute the amount due “ by the attorney for the defendant, Clara M. Jacobie, that an action to foreclose the said Clara M. Jacobie’s bond and mortgage, was commenced by her against Henry Mickle and twenty-four other defendants, in the month of September, 1891, and that the plaintiff herein has served an answer therein, setting up the following defenses: First, a general denial; second, the Statute of Limitation; ihwd, payment, except $700; fourth, the commencing and pendency of the above-entitled action, and that said action was then pending; that said admissions made at that time are according to the facts, and that said action began by said Clara M. Jacobie upon her prior mortgage is still pending at issue and untried. That the amount reported due upon said Jacobie’s prior bond and mortgage was the amount due for the principal and interest, and did not include any costs or disbursements of the action pending for the foreclosure thereof.”
    The defendant Jacobie asked that the judgment be modified as follows:

      “ First. By providing therein that said sale should be had and made subject to the defendant’s, Clara M. Jacobie, mortgage.
    “ Second. That if the first proposition is denied, that the fees and exjienses of sale, as provided in sections 1626 and 1676 of the Code of Civil Procedure, shall not be paid until the said defendant Jacobie is paid the full amount due upon her mortgage.
    “ Third. That in case the first proposition is denied, that the said Clara 1VI. Jacobie be paid the sum of $1,203.83, with interest from the 7th day of July, 1892, together with the costs and disbursements of the action brought by her as above stated, to the time of such payment, to be taxed by the Clerk of "Warren County.”
    The motion was denied, and from the order of denial the defendant Jacobie appealed.

      II. Prior King, for the appellant.

      J. H. Bain, for the respondent.
   Putnam, J.:

The order should be affirmed. The defendant Jacobie’s mortgage is past due; there is no dispute as to the amount secured by it, and the judgment of which she complains provides for its payment out of the first proceeds of the sale, after deducting the referee’s fees and expenses thereon, before any part of such proceeds are received by plaintiff on account of his mortgage debt or costs.

It was proper for plaintiff to make the prior mortgagee a party defendant, that the amount of her mortgage might be determined and paid out of the proceeds of the sale, and its lien discharged. (Met. Trust Co. v. Tonawanda, etc., R. R. Co., 13 Hun, 524; Holcomb v. Holcomb, 2 Barb. 20 ; Vanderkemp v. Shelton, 11 Paige, 29; Western Ins. Co. v. Eagle Fire Ins. Co., 1 id. 284; 3 Rumsey’s Pr. 111; Emigrant Industrial Sav. Bank v. Goldman, 75 N. Y. 132.)

It has been held that the pendency of plaintiff’s action to foreclose his mortgage was not a legal defense to a subsequent action by defendant to foreclose her prior mortgage. (Adams v. McPartlin, 11 Abb. N. C. 369.)

But such subsequent action does not prevent plaintiff from proceeding in this case, and bringing the mortgaged premises to a sale under the judgment properly entered herein, and carrying out the provisions of said judgment. The question whether defendant Jacobie should be allowed in addition to the amount on her mortgage for principal and interest the costs and disbursements incurred in her (unnecessary) action to foreclose her mortgage, was one addressed to the discretion of the court below.

The order must be affirmed, with costs and printing disbursements.

Mayham, P. J., concurred.

Order affirmed, with costs and printing disbursements.


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    Rufus Heaton, Respondent, v. Theodore M. Leonard, Appellant.

      Statute of Limitations — Oocle of Oivil Procedure, § 395 — the debtor’s check as cm acknowledgment in writing.

    A check made by a debtor, for less than the amount of a claim against him, offered to his creditor in the way of compromise, is not such an unqualified acknowledgment of the debt as is required under section 395 of the Code of Civil Procedure, to prevent the Statute of Limitations running against the claim.

      Quaere, whether a debtor’s check, merely offered to the creditor and not delivered or accepted, is a “writing,” within the meaning of said section 395, which requires the acknowledgment or promise, necessary to constitute a new or continuing contract, to be contained in a writing.
    Appeal by the defendant, Theodore M. Leonard, from a judgment of the Supreme Court, rendered at Special Term and entered in the office of the clerk of Clinton county on the 7th day of April, 1892, affirming, upon an appeal taken to the County Court of Clinton county, and certified from that court to the Supreme Court, a judgment of a Justice’s Court in favor of the plaintiff.

      John II. Booth, for the appellant.

      E. O. Everest, for the respondent.
   Putnam, J.:

This action was brought in a Justice’s Court on an alleged account amounting to twenty-nine dollars and fourteen cents. The defense asserted by defendant was a general denial and the Statute of Limitations. During the trial plaintiff withdrew one item of five dollars. The account accrued over six years before the commencement of the action, but within six years defendant offered plaintiff a check for twenty-four dollars and fourteen cents, signed by him in settlement of the claim, and, although plaintiff refused to receive it, he claims it was a sufficient acknowledgment in writing to take the case out of the Statute of Limitations.

The testimony in the case was probably sufficient to sustain the judgment of the justice, unless the defense of the Statute of Limitations was well taken.

The question is whether the check given by defendant to plaintiff was a sufficient acknowledgment in writing to constitute a new and continuing contract, so as to prevent the Statute of Limitations from running against the claim in suit, within section 395 of the Code of Civil Procedure, the check being merely offered to plaintiff and not delivered, in consequence of his refusal to accept it.

Prior to the Code of Procedure and the present Civil Code, it was held that to revive a demand barred by the statute there must be an express promise to pay, either absolute or conditional, or an acknowledgment of the debt as subsisting, made under such circumstances that such a promise maybe fairly implied. (Wakeman v. Sherman, 9 N. Y. 91; Bloodgood v. Bruen, 8 id. 362; Sands v. Gelston, 15 Johns. 519.)

Under said Codes the same acknowledgment has been held necessary to take a case out of the operation of the Statute of Limitations, as before, except that the acknowledgment must now be in writing. (Shapley v. Abbott, 42 N. Y. 447.)

The check, however, which the plaintiff claims is a sufficient acknowledgment in writing to save his claim, appears by the evidence to have been tendered by tlie defendant in the way of a compromise. Defendant testified that he told plaintiff when he tendered the check that it was more than he (defendant) owed him (plaintiff). This is not contradicted, plaintiff testifying that defendant did state, “ It is more than I owe you.” It does not appear how much greater defendant claimed the amount of the check was than the sum for which in fact he was indebted to plaintiff. It seems, therefore, that the amount due plaintiff was in dispute. The check was offered in the way of a compromise,.for less than the amount claimed by plaintiff, and more than defendant conceded to be due, and hence was not such an unqualified acknowledgment of the debt as is required by the authorities. (Allen v. Webster, 15 Wend. 288, 289; Sands v. Gelston, 15 Johns. 511; Creuse v. Defiganiere, 10 Bosw. 122.)

It is also doubtful whether, under the circumstances, the check can be deemed “a writing” within the meaning of section 395 (siopra). It was offered by defendant to plaintiff, but 'not received, and hence never had any legal inception -or delivery. It was the same as if the defendant, after writing the check, had left it in his check book. Many cases might be cited where debts have been revived by letters or writings delivered to the creditor or his agent, and in certain cases to third persons. But my attention has not been called to any authority holding that a check or paper written, but never delivered to either the creditor or any other person, a paper that never had any legal inception, was “ a writing ” within section 395 (sujyra). In DeFreest v. Warner (30 Hun, 94), the written acknowledgment was contained in a deed delivered to and accepted by the grantees. In Manchester v. Braedner (101 N. Y. 346), the defendant delivered to the plaintiff orders on third persons. As if in this case the check had been delivered to and retained by plaintiff. In McCahill v. Mehrbach (37 Hun, 504), the defendant sent a letter to the plaintiff acknowledging the debt. In Morrow v. Morrow (12 Hun, 386), the executor inserted in the inventory sworn to by him and filed with the surrogate, a note he had heretofore executed to 1ns testator. In Anderson v. Sibley (28 Hun, 16), the parties executed an agreement to arbitrate and on such arbitration to waive the Statute of Limitations. The defendant afterwards revoked tlie arbitration. Many other similar cases might be referred to. In all that I have examined the letter, paper or writing, held to be “ a wrii/mg ” sufficient to prevent the operation of the Statute of limitations, had been delivered to some person. It was not a paper merely offered by the debtor and which in fact had never left his possession.

I am in doubt, therefore, whether the check in question, which was merely offered and not accepted, was “ a writimg” within the meaning of section 395 of the Civil Code. But for the reason first stated, the judgment should be reversed, with costs.

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

Judgment reversed, with costs.


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    Edward Boom, Respondent, v. William Reed, Appellant.

      Decision of a judge of the Albany Oity Oourt u/pon questions of fact — rete?'inary surgeon— the rule as to skill and diligence.

    The rule that the finding of a justice of the peace on a question of fact will not be interfered with, unless made with such an obvious disregard of the weight of evidence as to create a conviction that it must have proceeded from passion, prejudice, corruption or palpable mistake, applies to a finding upon a question of fact by a judge of the City Court of Albany.
    The same rules are applicable to the case of a veterinary surgeon bringing an action to recover for the value of his services, as apply to other physicians and surgeons : he must possess and exercise a reasonable degree of learning and skill, and must use reasonable and ordinary care and diligence in the exercise of his skill and 'the application of his knowledge.
    The fact that a veterinary surgeon, having undertaken the cure of a sick horse, left the horse in a critical condition, promising to call early the next morning, but neglected to ever call again, is such evidence of negligence as will prevent a recovery for his services.
    The fact that a veterinary surgeon, in treating a horse, prescribes for one malady . when the horse is suffering from another, constitutes a failure to exercise a reasonable degree of skill.
    Appeal by tire defendant, William Beed, from a judgment of the County Court of Albany county, entered in the office of the clerk of that county on the 14th day of November, 1892, reversing, upon appeal, a judgment of the City Court of Albany in favor of the defendant, rendered upon a trial in that court before one of the judges thereof.

      Thomas A. Murrmj, for the appellant.

      Willia/m A. Allen and W. & Ilevenor., for the respondent.
   Putnam, J.:

This action was brought in the City Oourt of Albany to recover for services rendered, and medicines. furnished, by the plaintiff as veterinary surgeon, in attending upon a sick horse of the defendant, and on account of which plaintiff claimed judgment for ten dollars.

The defendant admitted the employment of plaintiff, but denied that the services rendered and medicines furnished were of the value of ten dollars. lie also alleged lack of knowledge, unskillful treatment and negligence of the plaintiff in the treatment of said horse whereby said defendant was compelled to employ another veterinary surgeon, Tinder whose skillful treatment the horse recovered.

On the trial the plaintiff was sworn as a witness and testified as to his attendance upon and furnishing medicine for defendant’s horse, and as to the value of said services and medicine. He testified that he prescribed for inflammation of the bowels. On the part of the defendant evidence was produced tending to show that the horse did not have inflammation of the bowels, for which the plaintiff treated him. That the last time plaintiff visited the horse he was no better, and that Boom was informed of that fact. The horse was at that time throwing himself, getting up and throwing himself continuously. That one could hear him out on the sidewalk, and people complained of the noise. That defendant kept a man in attendance upon him. That the animal being in this condition, plaintiff left, agreeing to call again the next day very early, but in fact he never came. That plaintiff’s last call was on Monday, and on Tuesday night defendant called in another veterinary surgeon.

The rule is well established that this court will not interfere with the findings of a justice on a question of fact unless made with such an obvious disregard of the weight of evidence, as to create a conviction that it must have proceeded from passion, prejudice, corruption or palpable mistake. (Tracy v. Hartman, 1 Hilt. 350 ; Conklin v. Thompson, 29 Barb. 218.)

Therefore, the city judge on the evidence in this case was at liberty to find as facts, wbat tbe evidence produced by the defendant as aforesaid tended to show.

Doubtless the same rules are applicable to the case of a veterinary surgeon bringing an action to recover for the value of his services, as have been held applicable to other physicians and surgeons. He must possess and exercise a reasonable degree of learning and skill. He must use reasonable and ordinary care and diligence in the exercise of his skill and the ajiplication of his knowledge. (Carpenter v. Blake, 10 Hun, 358; Hathorn v. Richmond, 48 Vt. 557.)

I think on the evidence in this case the City Court could properly find want of care and diligence on the part of the plaintiff in treating defendant’s horse, in fact great negligence. The evidence produced by defendant, which the trial judge had the right to believe, showed that plaintiff being called to treat the animal, and having undertaken its cure on the day of his last visit, the horse at that time being very ill, agreed to call the next morning early, but neglected to ever call again. I think the action of the plaintiff in leaving the animal he had assumed to take charge of in 'such a dangerous condition, and failing again to call, according to his promise, was such clear negligence as justified the judgment rendered by the trial court. (See Williams v. Gilman, 71 Maine, 21; Ballou v. Prescott, 64 id. 306.)

I am of the opinion also that the City Court on the evidence could properly determine that defendant’s horse was suffering from an impaction of the colon,” instead of inflammation of the bowels, and, therefore, that the plaintiff, who prescribed for the latter disease, did not exercise a reasonable degree of skill in his treatment of the horse.

The questions in the case were of fact. There was evidence tending to sustain the judgment of the trial court. I think the judgment directed by him on that evidence should not have been disturbed.

It follows that the judgment of the County Court should be reversed, and that of the City Court affirmed, with costs in the County Court and in this court.

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

Judgment of County Court reversed, and that of City Court affirmed, with costs in County Court and on this appeal.


author: PutNam, J.:

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    Nicholas Sauerborn, as Administrator, etc., of Kate M. Sauerborn, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Contributory negligence as aground of nonsuit — duty of a person crossing a railroad in a vehicle driven by another ■ — failure to sound a locomotive bell or whistle.

    In an action brought to recover damages for a personal injury, alleged to have been caused by the defendant’s negligence, it is only in exceptional cases that a nonsuit can be granted on account of the contributory negligence of the party injured.
    In such an action, it is only where it clearly appears from all the circumstances, or is proved by uncontradicted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from, the jury.
    In an action against a railroad company, to recover damages for the death of a person caused by a collision with a train while crossing the railroad tracks in a vehicle driven by another, the court charged the jury that it behooved the driver and the deceased to take extraordinary pains to prevent their being on the tracks when a train was passing, and thus prevent a collision; and that the deceased had the duty imposed upon her to aid her companion in all ways in which a person riding in a vehicle should do, by looking and by suggestion, and by assistance, to prevent any injury to either of them by a collision with a train.

      Selcl, that this instruction was not open to the objection that it charged the jury that the deceased was not responsible for the same degree of care as was the driver, because she was a guest.
    The failure of a defendant railroad company to ring the locomotive bell or blow the whistle on approaching a crossing, is not negligence as matter of law, but the question is one of fact for the jury, under all the circumstances of the ease.
    Appeal by tlie defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of Schenectady county on the 23d day of April, 1892, upon a verdict rendered at the Schenectady Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover the damages sustained by the next of kin of Kate M. Sauerborn, by reason of her death, alleged to have been caused by the negligence of the defendant railroad company at a highway crossing.

      8. W. Jackson, for the appellant.

      JDamiel Na/ylon, Jr., and Alonzo P. Strong, for the respondent.
   PutNam, J.:

The legal questions involved in this case have been so often considered that we deem an extended discussion unnecessary.

The appellant contends that the judgment cannot be sustained because plaintiff failed to show the absence of contributory negligence on the part of the deceased, and also because of certain exceptions to the charge of the trial judge, and his refusal to charge.

It is well settled that it is only in exceptional cases that a nonsuit can be granted on account of the contributory negligence of the party injured. It is only where it clearly appears from all the circumstances or is proved by uncontroverted evidence that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury. (Massoth v. The D. & H. C. Co., 64 N. Y. 529.)

Ve have carefully examined and considered the testimony in the case and are of opinion that this was not one of those exceptional instances where the trial judge could properly have withdrawn the question as to the contributory negligence of deceased from the jury.

There was evidence tending to show that Miss Brown and deceased when approaching the track where the accident occurred exercised unusual care, stopping twice, listening and looking up to the time the wagon wheels reached the track; also there were freight trains on tracks 3 and 4, one going east and the other west, which obstructed the view easterly. The testimony in connection with other evidence in the case rendered it probable that deceased was not guilty of negligence in failing to observe the passenger train on track No. 2 which caused her death.

The question was not whether the deceased could have seen said passenger train, but whether under the circumstances she was negligent in not seeing it. (Greany v. L. I. R. R. Co., 101 N. Y. 424, 425.)

After they reached the railroad tracks it cannot be deemed as matter of law negligence on the part of Miss Brown to attend to her horse while driving over them. (Moore v. N. Y. C. & H. R. R. R. Co., 49 N. Y. St. Repr. 516-520.)

Besides, tlie evidence indicated tbat while they were so crossing deceased was looking for approaching trains.

It is claimed that the court erred in charging the jury that deceased was not responsible for the same degree of care as was Miss Brown, because she was a guest. The charge in this regard we think correct. The judge said: “ Here was a four-track road, and it behooved them to take extraordinary pains to prevent being on the track at the time when a train was going along, and thus prevent a collision. Miss Sauerborn had the duty imposed upon her to aid her companion in all ways a person riding in a vehicle should do, by looking and by suggestion, and by assistance to prevent any injury to either of them by a collision with a train.” The instructions .given, as a whole were unobjectionable. (See McCaffrey v. The D. & H. C. Co., 41 N. Y. St. Repr. 223.)

The charge in regard to defendant’s failing to ring the bell or blow the whistle was not erroneous. The jury were instructed that as a matter of law it was not negligence to omit these signals. It was submitted to the jury as a question of fact whether, under all the circumstances of the case, such signals should have been given by the defendant.

The defendant was not, we think, entitled to have the jury instructed as a legal proposition that the failure of the defendant to ring the bell or blow a whistle when approaching the crossing where deceased was killed would not constitute a wrong or negligence of' the defendant. Whether it would or not was a question of fact for the jury.

The judgment should be affirmed, with costs.

MayhaM, P. J., and HbreioK, J., concurred.

Judgment affirmed, with costs.


author: Herrick, J.:

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    George H. Richardson, Appellant, v. Jonathan Levi and Others, Respondents.

      Executory contract of sale of personal property, without wa/rranty — promptness required in rejecting the property as defective — perishable fruit — appeals from Justices’ Courts — power to grant new trials.

    If a purchaser of personal property desires anything more than the law implies in every contract of sale he must specifically contract for it.
    If one purchasing personal property without a warranty is satisfied that the property when received by him does not comply with the terms of sale, he must notify the vendor promptly and offer to return it, and if, after an opportunity to ascertain any defects in the property he does not promptly notify the vendor or offer to return it, he will be deemed to have accepted the property.
    A complaining letter in reference to the quality of personal property received under an executory contract of sale does not amount to a rejection or offer to return the property.
    The defendants, in business in Schenectady, ordered of the plaintiff, in business in New York, -a quantity of bananas, and on giving the order stated to the plaintiff that the bananas were to be in good condition when they reached Schenectady, and that if they were not good merchantable bananas they were to be the plaintiff’s and not the defendants’. The bananas were shipped to Schenectady on the thirteenth of the month, received by the defendants on the fourteenth, and subsequently sold by them ; on the nineteenth the defendants wrote to the plaintiff: “ The bananas must have been heated too much as they arrived in very poor condition and are hardly salable,” and refused to pay the full purchase price, whereupon the plaintiff sued them therefor.

      Held, that the contract of sale was an executory one;
    That there was no warranty — the statement made to the plaintiff at the time of making the contract being no moré than the law implies in all sales;
    That the defendants’ letter did not import a rejection or offer to return.
    But that assuming the letter to have been intended as a notice of rejection, it was too late' — a delay of five days after the receipt of perishable fruit, claimed to be overripe, being far from the promptness which the law requires from one seeking to disavow a purchase.
    The General Term has no power to grant a new trial in the case of an appeal from a judgment of a County Court rendered on an appeal in which a new trial is not asked for, from a judgment of a Justice’s Court.
    Appeal by tbe plaintiff, George IL Richardson, from a judgment of the County Court of Schenectady county, entered in the office of the clerk of that county on the 6th day of June, 1892, as amended September 2, 1892, affirming on the plaintiff’s appeal, with costs to tbe defendants, a judgment for thirteen dollars damages, and costs, rendered in favor of tlie plaintiff by a Justice’s Court.
    The plaintiff, by his complaint, demanded judgment for twenty six dollars, with interest and costs.

      Robert J. la/ndon, for the appellant.

      J.. Teller Sehooleraft, for the respondents.
   Herrick, J.:

The plaintiff commenced an action against the defendants in the Justice’s Court of Schenectady county to recover the purchase price of bananas sold by him to the defendants.' The defendants admitted the sale and delivery of the bananas, but alleged that they were purchased by the defendants in pursuance of an agreement that the bananas were to be good and merchantable bananas when they were received by the defendants at Schenectady, N. T. That when said defendants received said bananas at Schenectady, N. Y., they were not good, merchantable bananas, and defendants at once notified plaintiff and then and there refused to accept the said bananas.

Upon the trial the defendant who personally made the agreement testified that he called upon the plaintiff at his store in New York city, that the plaintiff showed him some bananas, and that he said: I don’t like them. I want some half green and half ripe No. 2 bananas, in good condition when they reach me at Schenectady, and when they are received by me at Schenectady if they are not good merchantable bananas they are yours and not mine. He said they were seven shillings a bunch. They sent me 24 bunches. I received them on March 14th; they were sent on March the 13th ; they were all rotten when they came; we did the best we could and sold them for what we could; the bananas would be worth ten shillings a bunch here; there were 24 bunches; they were worth $5 ; we sold them because we could not send them back; I sent them a check for §13 and they sent it back. I sent the check because I did not want trouble.” He furthermore testified under the plaintiff’s objection that he sold the bananas, because they could not be kept, and were in an overripe condition. On the nineteenth of March the defendants sent the plaintiff a letter, of which the following is a copy:

“ SCHENECTADY, 3, 19, 90.
Georg-e H. RiohaedsoN, Esq.,
Dear Sir — The bananas must have been heated too much as they arrived in a very poor condition and are hardly salable.
“ Resp.
“J. LEVI & CO.”

The evidence here set forth presents substantially the' defendants’ case. In the Justice’s Court a verdict was rendered in favor of the plaintiff for the sum of thirteen dollars, and from the judgment entered thereon the plaintiff apjiealed to the County Court; the County Court affirmed .the judgment of the Justice’s Court; this I think was error.

The contract of sale was an executory one. (Reed v. Randall, 29 N. Y. 358-361 ; Coplay Iron Co. v. Pope, 108 id. 232.)

There was no warranty. The defendants’ only claim is that they stated that the bananas were to be in good condition when they reached Schenectady; if they were not good merchantable bananas, that they were to be the plaintiff’s, and not the defendants’. (See evidence, supra.)

This language is no more than the law implies in all sales, and if the purchaser desires anything more than the law implies in every contract of sale he must specifically contract for it. (Benj. on Sales [2d Am. ed.], § 600 ; Peck v. Armstrong, 38 Barb. 215 ; Reed v. Randall, 29 N. Y. 358-362; Gaylord Manufacturing Co. v. Allen, 53 id. 515; Dutchess Company v. Harding, 49 id. 321; Gentilli v. Starace, 133 id. 140.)

If one purchasing property without a warranty is satisfied that the property when received by him does not comply with the terms of sale, he must notify the vendor promptly and offer to return it,- and if, after opportunity to ascertain any defects in the property, he does not promptly notify the vendor or offer to return it he will be deemed to have accepted the property. (Reed v. Randall, 29 N. Y. 358, 362, 363; Delafield v. De Grauw, 3 Keyes, 467; McCorwick v. Sarson, 45 N. Y. 265 ; Gurney v. Atlantic & G. W. R. Co., 58 id. 358-364; Brown v. Foster, 108 id. 387; Fairbank Canning Co. v. Metzger, 118 id. 260; Mason v. Smith, 130 id. 474.)

In this case the defendants, after receiving the fruit, proceeded to exercise ownership over it by selling it. It is claimed that they gave notice to the plaintiff by the letter above set forth. The terms of the letter do not import a rejection or offer to return.

A complaining letter does not amount to a rejection or offer to return. (Mason v. Smith, 130 N. Y. 480.) But assuming it to have been intended as a notice of rejection, then it seems to me that it was not made in time. Such notice should be given promptly, and what would perhaps be considered a reasonable compliance with the rule under some circumstances would not under others.

Here the parties are dealing with a perishable article, fruit; the ■ complaint is that it is overripe, and yet the defendants say nothing in regard to it until they have had it five days; they receive it on the fourteenth, write the letter referred to on the nineteenth, which is received by the plaintiff on the twenty-first. This, under the circumstances, was too long a delay, and is very far from the promptness which the law requires from one seeking to disavow a purchase.

The question is presented as to whether this court has the power to grant a new trial. The case comes before us on an appeal from a judgment of the Justice’s Court, the appeal having been taken in the first instance from such court to the County Court and from the County Court here. Appeals from Justices’ Courts are governed by articles 1, 2 and 3 of title 8, chapter 19, of the Code of Civil Procedure. Article 2 provides for appeals where a new trial is not had and is not asked for in the appellate court; article 3 applies to appeals for a new trial in the appellate court.

The appeal before us is one where a new trial is not asked for in the appellate court, and, therefore, comes under article 2. Section 3063 provides for the judgment which may be rendered on such appeal; it reads: “ That the appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits. It may affirm or reverse the judgment of the justice, in' whole or in part, and as to any or all of the parties and for errors of law or of fact.”

This appears to me to be a limitation upon the powers of the appellate court. The General Term, it seems to me, has no more power in tbis respect than lias the County Court, to which appeals from justice’s judgments are taken in the first instance. If a County Court upon appeal cannot grant a new trial, the General Term, when a case comes to it from a County Court, cannot do so.

Reliance is placed upon the case of Hathaway v. Fitchburg R. R. Co. (49 N. Y. St. Repr. 466), as an authority that this court can grant a new trial. In that case no discussion of the question was had as it was assumed without investigation that section 131Y of the Code authorized the court to grant a new trial, and that assumption was acquiesced in. Section 131Y is a part of chapter 12 of the Code of Civil Procedure, and applies to appeals taken from courts of record, and it has been held has no application to appeals from justice’s judgments. (Ryan v. Parr, 40 N. Y. St. Repr. 946; Bornnett v. Townsend, 43 id. 98.)

It seems to me, therefore, that in the case of appeals that are not for a new trial from Justice’s Court judgments, this court has no power to grant a new trial.

Let, therefore, the judgment herein be reversed, with costs.

MayhaM, P. J., and PutNAM, J., concurred.

Judgment reversed, with costs.


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    Addie La Chapelle, Respondent, v. Mary Burpee, Appellant.

      Power to take by devise, not suspended by imprisonment — section 707 of the Penal Code —power of alienation not suspended by a devise on condition subsequent.

    Section 707 of the Penal Code, which prescribes that “A sentence of imprisonment in a State prison for any term less than for life forfeits all the public offices and suspends, during the term of the sentence, all the civil rights and all private trusts, authority or powers of, or held by, the person sentenced,” does not deprive a person so imprisoned of the power to take or convey by grant or devise.
    A testator, by his will, gave “subject to conditions hereafter named,” to his wife a home in his house during her life, and to his daughter, as long as she remained unmarried, a home with her mother, and devised the home to his son “on condition that after he is liberated from prison he shall live in the house with his mother and sister Gertie, and shall furnish firewood and comfortable board for them in the same manner as I have done as long as his mother shall live.” The will further directed that in case the son should elect not to accept its provisions, the executors might sell the premises and apply the interest of the proceeds to the support of the testator’s wife and daughter, as above provided, and that whatever was left at the wife’s death should he divided between the testator’s children surviving her. At the time of the testator’s death and the probate of the will, the son was in State prison under an unexpired sentence under a conviction of felony for a term of years, but was pardoned the following year, accepted the terms of the will, and entered into possession of the premises, and thereafter joined with his mother in a conveyance thereof by deed to a third party. The testator’s daughter was married prior to the death of the testator and to the execution of the deed.

      Held, that the power of alienation was not suspended by the fact cf the son’s imprisonment, nor was his power to accept the devise (and consequently the power of alienation) suspended by the terms of the will until his liberation from imprisonment, but the title vested in the son on his father’s death, subject to the condition or covenant compelling him to furnish firewood and board to his mother and sister after his liberation ,
    That if this latter provision created an estate with a condition subsequent, instead of being a mere covenant or personal charge upon the devisee (which is not decided), the estate was not thereby rendered inalienable;
    That, consequently, the deed executed by the son (the devisee) and the widow (the beneficiary of the condition or covenant), the daughter having married — conveyed a good title.
    Appeal by the defendant, Mary Burpee, from a judgment of the Supreme Court in favor of the plaintiff, entered in 'the office of the cleric of Warren county on the 24th day of December, 1892, on a decision rendered at the Warren county Special Term upon a trial before the court without a jury.
    The action was in ejectment. To the complaint, which was in the ordinary form, an answer was interposed, alleging among other things that the premises in question were originally owned by one Orin Lashua of whom the plaintiff and defendant were children as was also one Edward Lashua who was convicted of the crime of robbery in the first degree on the 15th day of November, 1881, in the Court of Sessions of Warren county, and thereupon sentenced to a term of ten years’ imprisonment at hard labor, at Clinton prison in said State; the said offense having been committed in Warren county. That the said Edward Lashua began the service of such sentence on the 22d day of November, 1881. That at the time of the death of his said father, and also at the time of the execution and probate of the alleged last will and testament in the answer mentioned and described, the said Edward Lashua was confined in said prison, under and serving out tbe said sentence. That the said Edward Lashua continued in said prison, serving said sentence from the date last aforesaid, until July 27, 1886, when he received a pardon from the Governor of said State. That on or about the 26th day of October, 1885, the said Orin Lashua made an alleged last will and' testament in the manner and form as set forth in the following opinion.
    Section 707 of the Penal Code is as follows: “ A sentence of imprisonment in a State prison for any term less than for life forfeits all the public offices and suspends, during the term of the sentence, all the civil rights and all private trusts, authority or powers of, or held by, the person sentenced.”

      Charles P. Patterson, for the appellant.

      Pelcoiw 8. Potter, for the respondent.
   Putnam, J.:

This was an action of ejectment brought to recover land in Warren county of which one Orin Lashua died seized.

On October 26, 1883, deceased executed a will which after his decease, and on November 16, 1885, was admitted to probate by the surrogate of Warren county, and contained the following provisions:

Second. I give to my wife, Margaret Lashua, a home in my dwelling house during her natural life, and also to my daughter, Gertie, I give a home with her mother as long as she remains single or unmarried; the above is subject to conditions hereafter named ;
“ Third. I give and bequeath to my son, Edward Lashua, my house and lot on condition that after he is liberated from prison he shall live in the house with his mother alid sister Gertie, and shall furnish firewood and comfortable board for them in the same manner as I have done as long as his mother shall live, and the household goods that belong to me shall remain for their use in the house;
Fourth. I further direct, in case my son Edward shall elect not to accept the provisions of the legacy to him, then my executors hereinafter named are authorized, if they shall think it advisable, to sell the premises and apply the interest from the proceeds to the support of my wife and daughter as above provided ;
“ Fifth. I also further direct, if my son declines to accept, that whatever is left at my wife’s death shall be equally divided between my children that survive her.”

At the time of the probate of said will Edward Lashua was in the State prison under sentence of felony, about six years of his sentence being unexpired. He was, however, pardoned on July 27, 1886, and the court below finds that he “ elected to and did accept the terms and conditions of said will, and entered into the possession cf said property on or about, the 27th day of July, 1886, as devisee and owner thereof under said will, and continued in the possession thereof as such owner until the 22d day of March, 1888, when he joined with his mother in a conveyance by deed to the plaintiff in this action, for a valuable consideration, whereby each of them assumed to and did convey to the plaintiff all the right, title and interest which either of them had in said property; * * *

that the beneficiary, G-ertie Lashua, named in said will, was married prior to the execution of said deed.

“ That at the time of the execution of said deed, Edward Lashua and Margaret Lashua were the only persons who had any interest in or title to said property.”

It will be seen by the above-quoted provisions of the will that the widow of the testator was bequeathed a home in his dwelling during her natural life. She was to have this home from the date of his death, but was not entitled to firewood and board until the liberation of Edward from State prison. The latter, under the terms of the will, took the house and lot from the date of the death of his father, but was not compelled to furnish board and firewood for his mother and sister until the expiration of his sentence.

Counsel for defendant claims that at the time the will took effect Edward Lashua, being in State prison under sentence for a felony and all his civil rights being suspended (Penal Code, § 707), could not aeccept the provisions of the will of his father in his favor. Also, that by the terms of the will Edward was not called upon or authorized to act or accept the bequest in his favor until his imprisonment ended. That hence, under provisions of the will, and also because of Edward’s imprisonment, the title to the property was in abeyance until his dischai-ge from State prison. And, therefore, the bequest in favor of Edward was void as illegally suspending the power of alienation. It is well settled that the power of alienation cannot be suspended for an absolute term, however short. (Hone's Exr. v. Van Schaick, 20 Wend. 566 ; Tucker v. Tucker, 5 N. Y. 408.)

Therefore, if it is true that, by the terms of the will, or from the fact of his being a convict, Edward was not called upon, or could not accept the bequest in his favor until the expiration of his sentence, if the title of the property was in abeyance until that period, the bequest was void.

The construction to be placed upon section 701, Penal Code, is not well settled. In Miller v. Finkle (1 Park. Crim. Rep. 374), under a similar provision of the Revised Statutes, it was, in effect, held that one sentenced fox; a felony to State prison could not transfer personal property. It has been held that a convict could be sued, but could not maintain an action. (Davis v. Duffie, 8 Bosw. 617; 4 Abb. Pr. [N. S.] 478; Bowles v. Habermann, 95 N. Y. 249.)

But in Avery v. Everett (110 N. Y. 317), the effect of a life sentence as to the property and civil rights of a convict was considered at great length. Under the statute, one sentenced for life is thereafter to be deemed “ civilly dead.” While, under section 707 of the Penal Code, the sentence for a less tenn suspends the “ civil rights ” of the person sentenced. Certainly, a convict who, under the statute, is “■ civilly dead,” is to be deemed as much deprived of “ civil rights” as if those lights were suspended.

In the authority last cited, it was shown that at common law one attainted could be grantor and grantee after attainder, and the grant would be valid against any person except the King; he can take a grant or grant to others; while he cannot enter into executoiy contracts and enforce them, he may transfer his property by will or deed. The case also holds that the provisions of the Revised Statutes, which were similar to those of the Penal Code {supra), should be considered as merely declaratory of the common law.

The authority cited thus determines that one under sentence of imprisonment for life, though civilly dead, may take by grant or devise, or transfer his property by will or deed. It naturally follows that one imprisoned for a term of years may also take or convey by grant or devise.

Therefore, Edward Laslma, on bis father’s decease, could take the house and lot bequeathed to him. He could be the devisee. The power to take by grant or devise implies the power to accept, and he could, therefore, accept the bequest so made in his favor. I do not think the position of the appellant can be sustained, that by the terms of the will, the acceptance could not be made until Edward was discharged from State prison, and until that time the title of the house and lot was in. abeyance. Under the provisions of the will the title of the lot at once vested in Edward, subject to the condition or covenant compelling him to furnish board and firewood to his mother and sister. He could accept the bequest at once after his father’s decease, of course subject to the condition or covenant above mentioned.

I conclude, therefore, that the title vested in Edward Lashua on the death of his father, and hence that there was not an illegal suspension of the power of alienation. If the bequest in question created an estate upon condition, it was a condition subsequent. The title vested in Edward prior to his discharge from prison, and, therefore, prior to his liability for board and firewood, and hence the condition was subsequent. This being so he could at any time convey his interest in the house and lot, subject to the condition. (Mich. State Bank v. Hastings, 1 Doug. [Mich.] 225-252. See 3 Am. & Eng. Ency. of Law, 422, 423.)

It follows that there -was no suspension of the power of alienation.

In the opinion of the trial court it is suggested that the provisions of the will requiring Edward to furnish meals and wood to the widow of deceased was not a condition, but a covenant and personal charge upon the devisee. He cites the case of Jackson v. Martin, (18 Johns. 31). The language of the will in that case, however, differs from that used in the bequest under consideration. In that case there was an unqualified devise to the son of the testator without condition, but with certain directions for the devisee to obey. Here the house and lot is left to Edward “ on oondition ” that he should furnish firewood and meals to his sister and mother. The language of the devise in the case last cited is so different from that contained in the will of Lashua that it can hardly be deemed an authority. Although it is held that conditions subsequent are not favored (Ludlow v. The N. Y. & Harlem R. R. Co., 12 Barb. 440; Chapin and Wife v. School District, 35 N. H. 450, 451; 4 Kent’s Comm. 132), yet the language of the bequest under consideration is such that it is not clear that its effect was not to create such a condition. But if the effect of the bequest was to create an estate with a condition subsequent the estate was not thereby rendered inalienable. There were persons in being who could convey an absolute title, viz., Edward Lashua, the devisee, and the widow and daughter of testator, or for whose benefit the condition was created. These parties united could convey an absolute title. (See 23 Abb. N. C. 416, note entitled “ Suspension of alienation by conditions.”)

The daughter, Gertie, having married prior to the death of the testator and the widow having joined in the deed to plaintiff, and thus consented to the conveyance under which plaintiff claims, I think she established her title to the premises described in the complaint, and that the judgment should be affirmed, with costs.

Herrick, J., concurred.

Judgment affirmed, with costs.


author: Putham, J.:

text:
    George Mark, Respondent, v. The Village of West Troy, Appellant.

      Action on a claim against a municipality — services rendered as counsel, at the request of the president and the attorney of a milage ■— statutory prohibition against contracting debts without authorimtion.

    The requirement of the charter of the village of West Troy, of a formal presentation of an itemized and verified bill to the board of trustees as a prerequisite to the maintenance of an action on a claim against the village, is not satisfied by proof of the presentation of a bill to the chamberlain and.president of the village.
    Proof of the employment by a party’s attorney ■will not of itself entitle another attorney to recover from the client payment for services rendered as cpunsel, but there must be proof of a retainer by the .client.
    When the charter of a village expressly provides that no officer of the village or other person shall contract any debt on the part of the village unless specially authorized by the board of trustees so to do, an action to recover from the village payment for services rendered in its behalf by an attorney as counsel, cannot be maintained on proof of employment by the president and attorney of the village, without proof of special authority from the board of trustees for such employment.

      Appeal by tlie defendant, the Village of "West Troy, from- a judgment of the Supi’eme Court in favor, of the plaintiff, entered in the office of the clerk of Albany county on the 26th day of March, 1884, upon the report of a referee.
    The action was brought by the plaintiff to recover a claim for services rendered to the defendant by Galen R. ITitt, an attorney at law, which claim had been assigned by Mr. Hitt to the plaintiff.
    The evidence showed that the services were rendered by Mr. Hitt, as counsel for the defendant village, upon the trial of two actions against the village in the Supreme Court, at the request of J. H. Gleason, "the attorney of record for defendant in those actions, and of John H. Hulsapple, who was then president of the defendant village.

      Eugene JMeJLecm, for the appellant.

      Galen JR. JHJitt, for the respondent.
   Putham, J.:

We regret that we are unable to agree with the views adopted by the referee in this case. Plaintiff’s assignor performed meritorious and valuable services in actions where defendant was a party and should receive compensation therefor.

But the claim on which the action is brought was not shown to have ever been presented as required by defendant’s charter. (Chap. 52, Laws of 1879, §§ 28, 29, amending §§ 32, 33 of the charter.) The act requires that a bill shall be made out in items and verified and formally presented to the board of trustees before an action can be maintained. It must be presented at a regular or stated meeting. The only proof of presentation of the bill was to one Hart, chamberlain and Hulsapple, president of defendant. That was not a presentation to defendemos trustees, required by the charter as a prerequisite to an action. The formal presentation to the defendant’s, trustees should have been alleged in the bill and proved upon the-trial.

Again, plaintiff failed to show the retainer of his assignor by defendant. An attorney, as such, has no authority to employ counsel. (Matter of Blakely, 5 Paige, 313, 314.) Again, the charter (Chap. 52, Laws of 1879) of defendant expressly provides (§ 32, amending § 37) that no officer of the Tillage, or any other person, shall contract any debt on the part of the village unless specially authorized by the board of trustees so to do, and hence the president of defendant could not retain Mr. Hitt. The plaintiff, as part of his case, was bound to show an employment of Mr. Hitt, in pursuance of the provisions of the charter, which he failed to do, and hence, we think the court erred in not granting the motion for nonsuit.

This case is not like that of Moore v. The Mayor, etc. (73 N. Y. 238), and kindred eases, where a party in good faith enters into a contract with public- officers, within their power to make and perform, in which case the officers are estopped from alleging the irregularity of their action to the prejudice of the party who so performed. Those cases do not apply, if there is a statutory prohibition of power, unless exercised in the regular way. (Clute v. Robison, 28 Hun, 284.) In this case there was a prohibition in the charter of defendant which prevented the president or attorney from retaining Mr. Hitt unless specially authorized by the board of trustees. It was incumbent on plaintiff to establish this special authority to maintain his action.

Downing v. Rugar (21 Wend. 178) and Hills v. Peekshill Bank, (26 Hun, 161), cited by respondent, were cases where public officers, consisting of two or three, assumed to act in the name of all or of a majority, and it was assumed that all the officers acted, or were duly notified of the meeting where action was had. In this case it was not shown that the trustees of defendant ever acted, or assumed to act, in the matter of retaining Mr. Hitt. If it had appeared that a special meeting of defendant’s trustees had been called in the matter of retaining Mr. Hitt as counsel, and that a mere quorum had attended, who passed a resolution to employ him, it would probably be assumed that those trustees who did not attend had been notified of the meeting.

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

Mayham, P. J., concurred ; HeeRioK, J., not acting.

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


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    George D. Clark, Appellant, v. William Hooper, as Executor, etc., of John Woodward, Deceased, Respondent.

      Replevin in Justice’s Court — return of the chattel to the defendant before the retwn day — undertaking — justification of sureties.

    The undertaking, required "by section 2925 of the Code of Civil Procedure, tc entitle the defendant in a replevin suit in a Justice’s Court to a return of the replevied chattel before the return day of the summons, need not have subjoined to it, at the time it is filed with the justice, the affidavit of justification • of sureties prescribed by section 812 of the Code of Civil Procedure.

      Semble, that even if such affidavit of justification should be attached when the undertaking is filed, that the omission to do so may be disregarded under section 729 or supplied on the return day by permission of the justice granted under the authority of section 730 of the Code of Civil Procedure.
    Appeal by the plaintiff, George D. Clark, from a judgment of the Supreme Court dismissing his complaint, entered in the office of the clerk of Essex county on the 25th day of March, 1891, on a decision of the court, rendered upon a trial by the court without a jury.

      John II. Qv/rmvngham., for the appellant.

      Robert JDornburgh, for the respondent.
   Putnam, J.:

This action was brought under the provisions of section 2928, Civil Code. Defendant’s testator was a constable of Ticonderoga, Essex county, and as such, on November 6, 1886, replevied a colt from the plaintiff by virtue of a summons, affidavit, undertaking and requisition in an action in Justice’s , Court. The summons was returnable on November thirteenth.

On the twelfth of November plaintiff filed with the justice a notice that- he required a return of the chattel replevined; also an affidavit that he was the owner of the same and an undertaking for $400, with two sureties, duly acknowledged. No question was made upon the trial as to the proper form of such papers. The undertaking was not accompanied with any affidavit of justification of the sureties as required by section 812, Civil Code, nor was such undertaking approved by such justice. On the thirteenth day of November, the return day of the summons, the parties appeared before said justice and the plaintiff in the' replevin suit took the proper objection to the sufficiency of the undertaking, without such affidavit, to be effectual for the return of the property replevied, which objection was overruled. The defendant in such replevin suit offered sureties to justify and they were examined, against the objections and exceptions of plaintiff in that suit, and they made the affidavit showing that they were each residents and freeholders in said county, and were worth the sum of $400 over and above all liabilities that they owed or had incurred, and exclusive of property exempt by law from levy and sale under execution. Said sureties were then further sworn and examined, and the justice approved of the sureties to the undertaking and allowed the same, and wrote his approval and allowance upon the undertaking. On the same day, November thirteenth, the defendant’s testator had notice of such allowance, and the plaintiff herein (the defendant in said replevin suit), demanded the said colt, and that the same be delivered to him. Defendant’s testator refused to deliver said colt to the plaintiff and delivered it to the plaintiff in said replevin suit.

It will be seen by the above statement that the only question for our consideration is whether the undertaking which the plaintiff in this action (the defendant in the action before the justice) gave in pursuance of section 2925, Civil Code, required the affidavit of justification prescribed by section 812, Civil Code, to be subjoined thereto when filed with the justice, and his approval thereon at that túne, as held by the trial judge, or otherwise.

It is apparent that such an affidavit and approval, if required, can serve no useful purpose. Under the provisions of the statute the undertaking may be filed at any time before the return day, and the sureties are required to justify upon the return of the summons, and it is at that time that the justice has authority to allow the undertaking. The undertaking has no effect, ño proceedings are ' taken thereon, nor can the same be allowed until the return day of the summons. It would seem a useless ceremony, therefore, to require an affidavit of justification on^the undertaking when filed, inasmuch as the justice cannot act in the matter until the return of the summons, and the sureties are required to then justify.

Section 2925 (supra) requires an undertaking similar in all respects to those required by sections 1104 and 1112, Civil Code. Judge Rumsey, in his valuable Practice, holds that an undertaking given Tinder section 1704 does not require an affidavit of justification by tlie defendant’s sureties to be delivered to tlie sheriff; that the only requirement is that the sureties shall afterwards justify pursuant to the provisions of section 1705. 3 Rumsey’s Pr. 191.

Nor, in our judgment, do the requirements of section 812, as to the justification of sureties, apply to the undertaking required hy section 2925 (supra). The former section should not be deemed applicable, for the reason that the latter provides for the personal attendance of the sureties before the justice on the return of the summons, and their justification at that time, and sections 2925 and 2926 evidently contemplate an allowance of the undertaking after such justification. In other words, the provisions of section 812, as to an affidavit of justification by the sureties, do not apply because other provisions are made for such justification in sections 2925 and 2926.

In cases where no justification of the sureties is required, unless an exception to their sufficiency is taken, there is a propriety in requiring an affidavit of justification to be appended to the undertaking when filed. But under section 2925 the sureties are required to justify on the return day of the summons before the justice, and in the presence of the parties, without any exception. Proof of the sufficiency of the sureties is then made, and the justice then allows the undertaking. Therefore, a prior affidavit is not required. (See 3 "Wait’s Law & Prac. [5th ed.] 219.)

Were it otherwise, however, if there should have been an affidavit of the sureties appended to the undertaking in question when filed, yet, as we have seen, the defect was not material. The affidavit, as above suggested, could serve no useful purpose, and, therefore, the defect was one that might properly be disregarded, pursuant to the provisions of section 729, Civil Code. Or the justice could properly allow an affidavit of justification to be appended to said undertaking on the return day, as he did, under the authority of section 730, Civil Code. These sections apply to Justices’ Courts. (§ 3347, Civil Code, subd. 6.)

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

Mayi-iam, P. J., and HbRRIOK, J., concurred.

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