text:
    FELIX DREYFUS, Appellant, v. WILLIAM C. CASEY, Respondent.

      Code of Civil Procedure, sea. 820 — substitution of parties making claims to the subject-mattes' of the action.

    Under section 820 of the Code of Civil Procedure, providing that the defendant, against whom an action to recover a chattel is pending, at any time before answering, upon proof by affidavit that a person not a party to the action makes a demand against him for the same property, without collusion with him, may apply to have such person substituted in his place, it is only necessary to show on such motion that the person not a party to the action makes a demand for the same debt or property without collusion with the defendant, and no proof as to the validity or sufficiency of his claim is required.
    This section creates a distinction between proceedings taken under its provisions and those had in an action in the nature of interpleader, in which latter case it is necessary to show that the claim interposed is substantial and will probably be successful.
    Appeal by tbe plaintiff from an order, made at a Special Term of the Supreme Court, entered in the clerk’s office of the county of New York on December 3,1888, substituting, in the place and stead of the defendant Casey, James E. Carpenter as receiver of the property of Maurice Lillenthal, as defendant herein.

      Otto JSerwitz, for the appellant.

      Olarence JR. Gonger, for the respondent.
   Brady, J.:

This action, which was of claim and delivery, was brought to recover several cases of goods, which were then" in the storage warehouse of the defendant, and the sheriff took possession of the property, which he still retained when the motion to interplead was made. The receiver claimed the property on the ground that it had been fraudulently disposed of by Lillenthal, and, therefore, authorized the application on behalf of the creditors whom he represented.

The application seems to have been made in good faith, without collusion with the defendant or anyone else, and in the discharge of a duty imposed upon him by his appointment as receiver. It was resisted upon the ground that it was not shown, as it should have been by appropriate evidence, that tbe claim interposed against the plaintiff would probably be successful, and that its merits should have been examined for the purpose of determining that question; and, further, that if the merits had been examined upon the facts and the law, the result would have been a denial of the remedy sought. The argument on behalf of the appellant, although elaborate, seems to have overlooked the peculiar provisions of section 820 of the Code of Civil Procedure, and the effect of it where adverse claims are made in an action kindred to this. JBy that section it is provided that a defendant against whom an action to recover a chattel is pending, at any time before answer upon proof by affidavit that a person not a party to the action makes a demand against him for the same property, without collusion with him, may apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place and to discharge him from liability to either by delivering possession of the property, or its value to such person as the court directs. And it further provides that the court may, in its discretion, make such an order. This section was considered and interpreted in Bowery National Bank v. The Mayor (reported in 4 New York State Reporter, 565); and it was there declared that the right of the defendant to succeed in an application made under its provisions was not restricted to- demands which might probably be made successfully against the subject of the controversy. It was only necessary for the defendant to show, in order to avail himself of its provisions, that a person not a party to the action makes a demand for the same debt or property, without collusion with him. The section, it will be observed, applies only to proceedings by motion and by a defendant, as is said in the case of the Baltimore and Ohio Railroad Company v. Arthur (90 N. Y., 237).

The facts required by the section under consideration having been established, and the judge in the court below having, in the exercise of his discretion, made the order asked for, it cannot be disturbed unless it appears that the discretion exercised was abused. There is nothing in the case to justify such a conclusion. The effect of the section, it must also be observed, is to create a distinction under its provisions and an action in the nature of an interpleader, for the reason that in the latter it is necessary to show that the claim interposed is substantial and will probably be successful, in order to entitle the plaintiff to maintain his action as illustrated by the case of the Nassau Bank v. Yandes (44 Hun, 55 and the cases cited). The decision in Vosburgh v. Huntington, made at Special Term (15 Abb. Pr., 254), is not in conflict with the views herein expressed, but if by any interpretation it may be regarded as in conflict, it is sufficient to say of it, as suggested by the learned judge in the court below, that it is overruled by the case of the Bowery Savings Bank v. The Mayor (supra,). And it may be further observed with regard to it, that it does not consider the precise question herein discussed as paramount in importance.

We have, therefore, presented to us as responsive to this appeal, the section to which reference has been made, its interpretation by this court, the statement of the necessary facts by the defendant to invoke its aid under that section, and, therefore, the order granted must be declared to have been properly directed in that respect. It is, nevertheless, incumbent upon us to say, further, that the order entered upon the application is deficient in not stating what shall be done with the property during the pendency of the action. This may be supplied on application, however, to amend, and does not affect file propriety of the order allowing the substitution ordered.

For these reasons the order appealed from should be affirmed, but we think, under the circumstances disclosed, without costs.

Daniels, J., concurred; Yan Brunt, P. J., concurred in the result.

Order affirmed, without costs.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    WILLIAM M. KINGSLAND, as Sole Surviving Trustee, etc., and Others, Plaintiffs, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, Defendants.

      Submission upon an agreed statement of facts — an additional allowance may be granted under section 3258 of the Code of Civil Procedure.

    In a controversy, submitted upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure, the court has power to grant an additional allowance, under section 3253 of the Code of Civil Procedure, where it appears that the case is difficult and extraordinary.

      Neilson v. Mutual Insurance Company (3 Duer, 683); New York Elevated Railroad Company v. Narrold (30 Hun, 466) followed.
    Motion for an additional allowance, under section 3253 of the Code of Civil Procedure, in a controversy submitted upon an agreed statement of facts under section 1219 of the Code of Civil Procedure.

      MacFarlcmd, Boa/rd/mcm d Platt, for the motion.

      Henry B. Beelcmcm, opposed.
   Per Curiam:

This is a controversy submitted upon an agreed statement of facts, under section 1219 of the Code of Civil Procedure. The plaintiff has prevailed, and now moves for an additional allowance, and the question arises whether the court has power to make such an allowance in a case of this kind; that .the case is difficult and extraordinary within the meaning of the statute, hardly admits of dispute.

To authorize the court to grant an additional allowance, under section 3253 of the Code, on the ground that the case is difficult and extraordinary, it must be made to appear, first, that the litigation is an action ; and, secondly, that a defense has been interposed. If these two facts are established, there would seem to be no doubt of the power to award a further sum in addition to costs to the prevailing party. It is clear that a controversy submitted without process, as provided in the Code, is an action. Section 1280 provides that the case, submission and affidavit must be filed in the office of the clerk of the court, to which the submission is made; and goes on to declare, in express terms, that the filing is a presentation of the submission, and “thenceforth the controversy becomes an action, and each provision of law relating to a proceeding in an action applies,” except as otherwise prescribed in section 1281. The latter section prescribes that “ in such an action ” the costs are always in the discretion of the court, but costs cannot be taxed for any proceedings before notice of trial, and, furthermore, that “ the action must be tried by the court upon the case alone.” Section 1281 contains nothing else relevant to the questions arising upon this motion. We think it is equally plain that, in a submitted controversy of this kind, a defense is interposed within the meaning of section 3253 of the Code of Civil Procedure. The position of the defendant is the same as that of a defendant who demurs to the complaint in an ordinary action. He admits the facts as alleged, but denies that they entitle the plaintiff to any relief as against him. The hearing before the General Term is practically the trial of an issue of law. (Neilson v. Mutual Ins. Co., 3 Duer, 683.) It is defined by the Code to be a trial. In an ordinary action an extra allowance may be granted to a defendant who has demurred. (N. Y. Elevated R. R. Co. v. Harold, 30 Hun, 466.) The demurrer is deemed to be a defense under section 3253. A defendant in an action growing out of a submission to the General Term upon agreed facts should be regarded as having interposed a demurrer; and hence the court possesses the power to award him an additional allowance by way of costs, if the case is difficult and extraordinary.

In our opinion the motion should be granted.

Present —Yan Brunt, P. J.; Daniels and Bartlett, JJ.

Motion granted.


author: Van Brunt, P. J. :

text:
    MORTIMER HENDRICKS, Respondent, v. MONTEFIORE ISAACS, as Administrator of the Goods, Chattels and Credits of JUSTINA B. HENDRICKS, Deceased, Appellant.

      Reference of a claim against an estate — the costs are to he awarded as in a special proceeding and not as in an action.

    Upon an appeal from a judgment, entered upon tile report of a referee on a reference of a claim against the estate of defendant’s intestate, and from an order granting costs and allowances:

      Held, that as these proceedings are special proceedings under the statute, the costs in such proceeding are not regulated by the provisions contained in sections 1835 and 1836 of the Code of Civil Procedure, and that the court may award costs, although the conditions precedent to the right of the court to award costs in an action, as prescribed by section 1836, are absent.
    That all the court can, in the first instance, adjudge by way of costs are the referee’s fees and other disbursements necessarily incurred, and that it has no power to grant an extra allowance.
    Upon a previous appeal to the General Term in this action a judgment was rendered awarding costs to the plaintiff in the event of his success upon a new trial.

      Held, that as the plaintiff had succeeded upon the new trial he was entitled to such costs, as it is for the appellate court to determine as to whether, in case of an appeal, the costs should or should not he allowed against an executor or administrator,

      Denise v, Denise (110 N. Y., 562) followed.
    Appeal from a judgment, entered in the office of the cleric of the city and county of New York on May 22, 1888, upon the report of a referee upon the reference of a disputed claim against the estate of the defendant’s intestate, and also from an order made at the New York Special Term, entered on May 11, 1888, in the office of the said clerk, granting to the plaintiff an allowance of three per cent, besides costs.

      William Mam, for tbe appellant.

      Abra/m Kling, for the respondent.
   Van Brunt, P. J. :

The question of the right of the plaintiff to maintain this proceeding and to recover therein, seems to have been disposed of in tbe case of Hendricks v. Isaacs (46 Hun, 239), and, also, by the case of Rohrbach v. The Germania Fire Insurance Company (62 N. Y., 47). It is, therefore, not necessary to discuss those points again.

The only other question which remains to be considered arises upon the appeal from the order granting costs and an extra allowance to the plaintiff. The right to costs seems to be governed by the provisions of the Revised Statutes, which provides that in these proceedings the court may adjudge costs as in actions against executors. "Were it not for the decision of the Court of Appeals in the case of Denise v. Denise (110 N. Y., 562), we would be of the opinion that costs in such proceedings were regulated by the provisions of sections 1835 and 1836 of the Code. Rut in that case it is distinctly held that, as these proceedings are special proceedings under the statute, they are not controlled by the provisions of sections 1835 and 1836, and that the court may award costs, although the conditions precedent to the right of the court to award costs in an action, as required by section 1836, are absent.

In order, therefore, to enable the court to award costs, no certificate of the judge or referee before whom the trial took place was necessary. It also follows that costs as in an action and costs of an action cannot be allowed by the court, and all that the court can, in the first instance, adjudge by way of costs is the payment of the referee’s fees and other disbursements necessarily incurred. The court, therefore, in the award of costs, should have limited itself to the award of such referee’s fees and disbursements, • and had no power to grant an extra allowance.

The claim made that the plaintiff was entitled to the costs of the previous appeal, because costs were awarded upon that appeal to abide the final event, stands upon an entirely different foundation. It is for the appellate court to determine' as to whether, in case of an appeal, costs should or should not be allowed against an executor or administrator. In this case the General Term, in the rendition of its judgment, has awarded costs to the plaintiff in the event of his success upon a new trial, and, having succeeded, he is clearly entitled to those costs. In the case of Denise v. Denise such an award of costs was distinctly upheld.

It would appear, therefore, that the order awarding costs of the trials and extra allowance should be modified by striking therefrom all the costs of such trials, except the referees’ fees and necessary disbursements, and tbe order for tbe extra allowance, and that sucb order as modified be affirmed, without costs; and that tbe judgment appealed from should be modified by reducing the same by the amount of the costs and allowances taxed other than disbursements, and, as modified, affirmed, with costs.

Brady and Daniels, JJ., concurred.

Order as modified affirmed, without costs, and judgment appealed from, as modified, affirmed, with costs.


author: Van Brunt, B. J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of RICHARD J. MORRISSON, Public Administrator and Administrator of the Goods, Chattels and Credits of MARY E. FEYH, Deceased.

      Judgment of divorce entered in another State upon service by publication on a resident of this State — validity thereof.

      Henry Feyh, a resident of Ohio, having married in that State, came with his wife, Mary E. Feyh, to the State of New York, without the intention of acquiring a residence in the latter State, and resided there some six years, from 1869 to 1875, when he separated from his wife, who continued to reside, until her death in 1885, in New York, where she acquired a domicile; while her husband, shortly after such separation from his wife, was married to one Adelaide Nelson in New York,'with whom he lived, residing in various places in this country and Russia, until his death in 1885.
    In 1881 he brought an action in the State of Ohio for a divorce from his first wife, alleging in the petition in such action that he was a resident of Ohio for the year last past and more; that he was a bona fide resident of the county in which the action was brought; that his wife had been unfaithful at divers times and places, having committed adultery both in the State of New York and the State of Ohio, and gave notice of the pendency of that petition, in accordance with the laws of the State of Ohio, by publication thereof in a newspaper printed in Franklin county, in which the action was brought, and on September. 12, 1881, obtained a judgment of divorce adjudging that the defendant therein had committed adultery while the plaintiff and defendant therein were residents of Ohio; after which judgment he again married the aforesaid Adelaide Nelson.
    Upon an appeal by the next of kin of Mary E. Feyh, deceased, from that part of a decree of the surrogate of the county of New York, which awarded distribution of her estate among the legal representatives of Henry Feyh:

      Held, that the decree of divorce obtained in the court of Ohio was valid.

      That it has not as yet been decided in this State, that where a person is domiciled in another State, has married in that other State, his wife has committed adultery there, and an action for divorce has been begun and a decree rendered in that other State annulling the marriage because of this adultery, that such decree is void in this State because the wife, who has, after the separation, made a domicile within this State, has been served by publication.
    That as in the decree it was adjudged, that while the plaintiff and defendant were residents of the State of Ohio the defendant had committed adultery, and as the court had the right to so adjudicate upon this evidence, and under the laws of our State this would have been sufficient to procure a decree of divorce, the court in recognizing the Ohio decree did not run counter to our own public policy or to abstract justice or pure morals, but simply recognized the principle of comity between States and gave due effect to the judgment of a sister State.

      People v. Baker (76 FT. Y., 78); O’Dear. O’Dea, (101 id., 23); Gross v. Oi'oss (108 id., 628) distinguished.
    That as Henry Feyh had invoked the jurisdiction of the court of Ohio and submitted himself thereto, and could not now be heard to question such jurisdiction, the claimants in this proceeding, who occupied precisely the same position that Feyh would have occupied had he been living, could not attack the judgment.

      Hewitt v. Horfhrup (75 N. Y., 510) followed.
    Appeal by tbe next of kin of Mary E. Feyb, deceased, from that part of tbe decree of tbe surrogate of tbe county of New York, of March 19,1888, which confirmed tbe report of a referee, and awarding distribution of tbe estate of Mary E. Eeyh among tbe legal representatives of the husband of tbe deceased.

      JD. Wilcox, for tbe special guardian.

      Alexis G. Smith, for tbe appellant Chorpenning.

      James L. Williams, for tbe administrators of Henry Eeyh, deceased, respondents.
   Van Brunt, B. J.:

In December, 1861, tbe decedent, MaryE. Chorpenning, married Henry Eeyh at Montgomery, Eranldin county, Ohio. They resided in Columbus, Ohio, until tbe year 1869, when they came to tbe city of New York, and resided here until April, 1875. During this time, in 1873 or 1874, it is in evidence that Henry Eeyh stated that be did not claim this as a residence; that bis father and mother bved in Columbus, and that he always claimed that as bis home.

In April, 1875, Henry Eeyh left bis wife because of her infidelity, and they never again cohabited with each other as man and wife; Mary Ellen continuing to reside in New York until her death, which happened on the 31st of March, 1885. She died intestate, and left no issue or lineal descendants. From 1875 to the time of his death, which took place on May, 1885, Henry Feyh resided in various places, namely, Philadelphia, New York, Russia, Jersey City, Ohio, Hartford, Norristown, and Boston where he died. In October, 1875, he married in New York a woman named Adelaide Nelson, and from that time they lived together as husband and wife. During all this time he was a member of a lodge of Odd Fellows at Columbus, Ohio, and kept up his standing therein. On the 10th of March, 1881, Henry Feyh began an action in the Court of Common Pleas, in the county of Franklin, Ohio, for a divorce from Mary Ellen Feyh on account of her adultery, committed both in Ohio and in New York. In the petition, by which the action was begun, he alleged that he had been a resident of Ohio for a year last past and more; that he was a bona fide resident of the county aforesaid, and that Mary Ellen had been guilty of adultery at divers times and places, some of said adulterous acts being, alleged to have been committed in Ohio and some in New York. Notice of the pendency of this petition was given in accordance with the laws of Ohio, by publication in a newspaper printed in Franklin county. No notice or summons in the action was served upon her; and she did not appear therein; and had no notice of the action or proceedings therein, otherwise than by the publication aforesaid. On the 12th of September, 1881, judgment was rendered in said action in favor of Henry Feyh, upon the petition of the plaintiff, the exhibits and the testimony of witnesses sworn and examined in open court, that the said defendant was duly notified of the pendency of the suit, and whereby it was also adjudged and decreed that the plaintiff and defendant were married, as set out in fhe petition, and that the plaintiff had discharged all and singular his marital duties towards the defendant; and that the said defendant had been guilty of the crime of adultery, as alleged in the petition; and it was further adjudged that the marital relations theretofore existing between the plaintiff and the defendant should be set aside, annulled and stand for naught, and the plaintiff released from the obligations of said marriage. The requirements of the laws of Ohio were, in all respects, complied with, and the judgment remains in full force, and there is no allegation, proof or finding that the judgment was fraudulent and collusive, or that any fact necessary to sustain the judgment was not true and not proven upon the trial. After the entry of the judgment of divorce, and upon the 15th of August, 1882, Henry Eeyh was again married to the aforesaid Adelaide Nelson by a magistrate in Philadelphia, Pa., and they continued to cohabit as husband and wife until the death Henry, leaving three children. Mary Ellen having died intestate and childless in New York on the 81st of March, 1885, and having left personal estate, all of which she accumulated after the divorce, letters of administration upon her estate were granted to the public administrator. Henry Feyh never applied for letters of administration, and died intestate at Boston, May 10, 1885, and letters of administration upon his estate were duly granted.

It is now claimed in this proceeding that the divorce proceedings in Ohio were absolutely void, and that at the time of his death Henry Feyh was the husband of Mary Ellen, and, therefore, entitled to the possession of her personal estate. In the disposition of this question we do not think it necessary to discuss, in detail, the number of cases which have been cited as authorities, both by the respondents and the appellants. It will be found upon an examination of these cases that they are all distinguishable in very important particulars from the case at bar.

It has not as yet been decided in this State that where a person is domiciled in another State, has married in that other State, his wife has committed adultery there, and an action for divorce has been begun and a decree rendered in that other State because of this adultery, annulling the marriage, that such decree is void in this State, because after the separation the wife has made her domicile within this State and has been served by publication. It is true that there have been decisions holding decrees of divorce in foreign States to be null and void where the jurisdiction of the State has been evi" dently sought for the purpose of evading the laws of this State, unless both parties have submitted to the jurisdiction of the court, or where a divorce has been granted upon grounds not recognized by the law of this State, and jurisdiction within that State has not been obtained of the defendant. The case which goes the furthest in this direction is that of the People v. Baker (76 N. Y., 78). In that case it was held that where an action for divorce was commenced in the State of Ohio to dissolve a marriage upon the ground of gross neglect of duty, and the proof showed service of process upon the defendant by publication, the defendant residing within this State, a decree rendered in such action was null and void. The court, in its opinion, stated: “ It is urged upon us that-our State cannot, with good grace, hold invalid this judgment of a court of Ohio when our own Code provided at the time of the rendition of it for the giving of judgment of divorce against a non-resident by like substituted service. It is true that until the new Code of Procedure such had been the case. This is but to say that, on the principle of the comity of States, we should give effect to this judgment. But this principle is not applied when the laws and judicial acts of another State are contrary to our own public policy or to abstract justice or pure morals. The policy of this State always has been that there may of right be but one sufficient cause for a divorce a wmeulo, and that policy has been upheld with strenuous effort against persistent struggles of individuals to vitiate and change it.” And it was because this principle had been violated that there was an attempt to change the status of a citizen of the State of New York, for a cause not recognized as sufficient by the laws of this State, that the decree iu the case of Baker was- pronounced null and void.

To the same effect was the case of O'Dea v. O'Dea (101 N. Y., 23) and Cross v. Cross (108 id., 628). But it has not yet been decided, as already stated, that where, under precisely the same circumstances and under the same proof, which we must assume was given in Ohio, a decree of divorce, a vinetdo, would be granted by the courts of this State, we will not recognize such decree when granted by the laws of a sister State. By our own laws a husband or wife may maintain an action against the other party to a marriage, to procure a judgment of divorce^by reason of the defendant’s adultery, where both the parties were residents of the State when the offense was committed, or where the offense was committed within the State, and the injured party, when the action was commenced, was a resident of this State.

By the allegations in the decree, which are found to be true by the court of Ohio, which court had the right to adjudicate upon this question, having jurisdiction of the subject-matter, it was.adjudged that while the plaintiff and defendant were residents of the State of Ohio, the defendant had committed adultery. Under our own laws this would have been sufficient to procure a decree of divorce, and in recognition of the Ohio decree we do not run counter to our own public policy or abstract justice or pure morals, but simply recognize the principle of the comity of States and give due effect to the judgment of a sister State. By the proof in the case at bar every objection raised in the cases cited to the recognition of the decree of the foreign State has been obviated. There is not the slightest ground to suppose that recourse was had to the jurisdiction of Ohio for the purpose of escaping the laws of this or any other State, but, upon, the contrary, it appears upon the whole evidence that the plaintiff simply resorted to the State 'of his domicile for the purpose of enforcing rights which the infidelity of his wife had given. And it is no answer to this proposition to say that, because of his adulteries committed after the separation from Ms wife in consequence of her infidelity, she had a right to obstruct him in the procurement of such divorce.

She knew that he was living with the woman that he subsequently made his wife. She made no objection thereto and took no action because thereof. She evidently did not consider herself injured by reason of that relationship, but recognized the right of her husband to leave her because of her infidelity to him. Under the evidence in this case in the consideration of this question, it must necessarily be conceded that Mary Ellen had acquired a domicile in the State of New York. She had separated from her husband; she resided in this State, bought real estate here, lived in it and died in it. And it seems to us, under these circumstances, we must hold that she had acquired a domicile separate from her husband.

It seems also equally apparent that Heny Feyh never lost his domicile in Ohio though he lived Vherever his work required Mm to be. The evidence shows that he had stated that Ohio was his home. He went there occasionally and kept up his connection at home, remaining a member of the lodge of Odd Eellows there, and undoubtedly regarding the State of Ohio as his domicile. And this is accentuated by the fact that he went to the State of Ohio for the purpose of initiating these proceedings, alleging himself to be domiciled there, when, if he had been domiciled elsewhere for precisely the same reason, and by going through the same proceeding, he might have obtained the same relief. There is no claim whatever but that the statements made by him in his affidavit to procure the publication of the summons were correct, or that anything was done by him for the purpose of avoiding giving notice to the defendant of the proceeding which he proposed to institute. It appears, therefore, to us that if ever a judgment is to be recognized and given effect to, it must be under circumstances such as have been developed in the case at bar.

There is another suggestion, and that is that Henry Feyli, having invoked the jurisdiction of the court of Ohio and submitted himself thereto, cannot now be heard to question such jurisdiction. And the claimants here occupy precisely the same position that Feyli would have occupied had he been living. This position does not rest upon the doctrine of estoppel, as such term is ordinarily used, but upon a principle which has been repeatedly recognized by the courts, that where a party has gone into a court and invoked its jurisdiction, he cannot subsequently attack the decree of the court obtained at his instance, because of the want of jurisdiction of somebody el§e. In the case of Hewitt v. Northrup (75 N. Y., 510) this principle is clearly recognized. In the case at bar, therefore, Henry Feyh cannot be heard to claim the nullity of this decree, he having invoked the jurisdiction of the court and asked its rendition.

It seems to us, therefore, that so much of the decree as is appealed from should be reversed, with costs, and the matter sent back to the surrogate for further action.

Brady and Daniels, JJ., concurred.

So much of decree as is appealed from reversed, with costs, and the matter sent back to the surrogate for further action.


author: Yan Brunt, P. J. :

text:
    In the Matter of the Estate of WILLIAM F. PROUT, Deceased. MOSES P. PROUT, Son of ROBERT T. PROUT, Respondent, v. MOSES P. PROUT, Son of JACOB PROUT; GEORGE PIRNIE and JAMES McNAB, as Administrators, etc., of WILLIAM F. PROUT, Deceased.

      Residí •,ary legatee — is “ a party in interest ” authorized to call to account the administrators of an estate of which his testator inherited a share.

      A residuary legatee under tlie will of a nephew of a decedent whose estate passed l>y the law of inheritance to his nephews and nieces, is a person interested in the estate of said decedent, and may institute proceedings to compel the administrators of such decedent to render an account of their proceedings as such administrators.

      Msher v. Banta (66 N. Y., 468) followed.
    Appeal by Moses P. Prout, son of Jacob Prout, James McNab and George Pirnie, the administrators of William E. Prout, deceased, from an order made at the Special Term of the Supreme Court, and entered in the office of the clerk of the county of New York on the 29th day of January, 1889, directing the said administrators to render and settle an account as such administrators.

      G. H. Crawford, for the appellants.

      E. D. EawJ&ins, for the respondent.
   Yan Brunt, P. J. :

This is an appeal from an order made by the surrogate upon the petition of Moses P. Prout, directing that the administrators of William E. Prout, deceased, render and settle an account of their proceedings as such administrators.

The objection taken is that the petitioner is not a person interested in the estate so as authorize him to present his petition for the purposes above stated. The deceased, William F. Prout, died intestate, leaving personal property, and as his next of kin, six nieces and four nephews, of whom Robert T. Prout, the father of the petitioner, was one. Subsequent to the death of Win. F. Prout, Robert T. Prout, his nephew, died, leaving a will whereby the brother of the petitioner, William, was appointed sole executor, and under which the petitioner was a residuary legatee. This will was admitted to probate by the surrogate of Kings county, and letters testamentary issued thereon to the executor therein named. It is claimed that such executor represents the sole claimant or party in interest in the estate of William F. Prout, deceased, as the personal representative of his nephew Robert T. Prout, deceased, the father of the petitioner. The provisions of the Code are that a petition of this character may be presented by “ a creditor or a person interested in the estate or fund; ” and the interpretation of the term is somewhat obscured by the definition given to it by subdivision 11 of section 2514, where such person is defined as one who is entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor. Although the petitioner is not strictly legally entitled to receive directly from the administration any portion of the estate which they are called upon to administer, yet that he is a person interested in the estate, within the provisions of the section, seems to be distinctly held in the case of Fisher v. Banta (66 N. Y., 468), where the court holds that a legatee bearing the same relation to the original estate as the petitioner does to the estate of his great uncle, had an interest in a similar proceeding before the surrogate.

It is true that there may have been other reasons for the court holding as they did in that case, that the accounting should not be considered as final as the interest of the representatives of the two estates were in nowise hostile, and the interest of the legatees in the last estate were not represented by any independent party, the proceeding being instituted by a person as representative of one estate against himself as representative of another. Were it not for this expression of opinion upon the part of the Court of Appeals we should be inclined to hold that the legatee, under the will of the nephew, had no interest, either absolute or contingent, in any portion of the estate of the great uncle, deceased, but that all the claimants of the petitioner’s father’s estate against the estate of the intestate were represented by the executor. In view, however, of the expression by tbe Court of Appeals upon this question, we think that the order should be affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J.:

text:
    DAVID M. JOHNSON, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Defect in the railing of the stairs in a railway station —proof of similar accidents, happening after the plaintiff’s accident, is not admissible■ — recovery of pi-esent damages for apprehended future consequences — pi'oofasto the (mount of plaintiff’s ea/i'nings, when not admissible.

    In an action, brought to recover damages alleged to have been received by the plaintiff in falling over the railing of a stairs in one of the stations upon the defendant's road, upon the ground of the negligence of the defendant, the plaintiff sought to establish such negligence by proof of the method in which the rail from which the plaintiff fell was constructed, and by proof that other accidents had happened because of such faulty construction.
    Upon the trial some of the witnesses, who testified as to accidents of a similar character, were unable to determine whether the accident happened before or after the accident of the plaintiff.

      Held, that testimony as to other accidents could not be admitted, except for the purpose of showing thaj the defendant had learned by experience that the structure was insufficient, and still maintained it in that defective condition.
    That the fact that accidents had happened, after the one from which the plaintiff . suffered, in no way tended to establish any such proposition, and that it was for the plaintiff to show, when he proved the happening of the accident, that it occurred prior to the time of that by which the plaintiffi was injured and not to leave that matter to be determined simply by conjecture.
    To entitle the plaintiff, in an action of this character, to recover present damages for apprehended future consequences of such an accident, there must be at least such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely so to develop.
    Upon the trial evidence of the aggregate amount of the plaintiff’s earnings during the year or two prior to the accident was admitted. The evidence showed that the earnings of the plaintiff were the result in part of the use of his capital and did not depend entirely upon his personal skill and services.

      Held, that it was error to admit this evidence, as it is only in a case where the earnings proceed entirely from the plaintiff’s labor that such evidence becomes admissible.

      Ehrgott v. Mayor (96 N. Y., 265) distinguished.
    Appeal from a judgment entered at a Circuit Court in the county of New Y ork, upon a verdict rendered-jin favor of the plaintiff, in the office of the clerk of the city and county of New York on May 1, 1888, and from an order denying defendant’s motion, made upon the minutes of tlie justice presiding at the trial to set aside the verdict and for a new trial, which was entered in the office of said clerk on the 27th day of April, 1888.

      E. S. Bwpallo, for the appellant.

      A. G. Vcmderjyoel, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages alleged to have been received by the plaintiff in falling over the railing of tlie stairs of one of the stations upon the defendant’s road. It is not necessary to state the facts established by the evidence in order to determine the questions arising upon this appeal. It is sufficient to say that the action was founded upon the negligence-of the defendant, and it was sought to establish such negligence by proof of the method in which the rail over which the plaintiff fell was constructed, and that other accidents had happened because of such faulty construction. In order that the plaintiff should succeed in this case, it was, of course, necessary to prove that the defendant had been guilty of negligence in respect to their platform and the approaches thereto. They were bound to use that ordinary care and diligence which a person of ordinary prudence would exercise in reference to such structures, considering the uses to which they were to be put. They were not bound to anticipate every danger, neither were they bound to provide for the unexpected. As long as the structure was reasonably suited to the purposes to which it was to be applied, and their attention had not been called to any deficiency resulting from experience, the defendants were not guilty of neligence.

In order to show that this rail was insecure to the defendant’s knowledge, and that, therefore, they were guilty of negligence, the plaintiff offered evidence of other accidents of a similar character which it was claimed had happened. In reference to some of these accidents the witness was unable to determine whether it happened before or after the accident to the plaintiff. A motion was made to strike out some of this testimony, which motion was denied. This was clearly error. Such testimony could be competent only for the purpose of showing that by experience the defendants had learned that the structure was insufficient and still maintained it in that defective condition. The fact that accidents had happened after the one from which the plaintiff suffered in no way tended to establish any such proposition, and it was for the plaintiff to show when he proved the happening of an accident that it occurred prior to the time of that which injured the plaintiff, and not to leave that matter simply to conjecture.

It would seem also that the learned court erred in admitting evidence as to various physical injuries which the plaintiff would be likely to undergo. A physician was examined as an expert, and questions of this character were put to him: “ What is your opinion as an expert, as to the permanency or likelihood of permanency of that injury?” “Would a fall, such as I have described, be likely to produce such a result to the brain, in your opinion, in the ordinary course of nature as would produce that dizziness or that vertigo or pain when there was any heat ? ” The witness was also asked to give an opinion as to the effect, in the ordinary course of nature, as to increasing or diminishing the chances of life, the probability of life. And to this question, he answered that it might not interfere and might not cause death, but the chances are that it would have a tendency that way, etc.

This class of interrogatories in the case of Strohm v. Erie Railway Company (96 N. Y., 305) has been expressly condemned by the court of last resort. • It was there held that consequences which are contingent, speculative or merely possible, are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely so to develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of this occurring as amounts to a reasonable certainty that they will result from tlie original injury. The questions to which attention has been called are clearly within the prohibition here expressed, and were no more direct and certain than those criticised in the case cited, and because of which the judgment in that case was reversed.

There is also another error which seems to have been committed in the consideration of the measure of damages in the case at bar. The learned judge admitted the evidence of the aggregate amount of the plaintiff’s earnings during the year or two prior to the accident. This was undoubtedly upon the strength of the decision of the Court of Appeals in the case of Ehrgott v. Mayor (96 N. Y., 265) in which a ruling admitting evidence of previous earnings was sustained; that case, however, is clearly distinguishable from the one at bar. In the case at bar it appears that the earnings of the plaintiff were the result of the use of his capital, and did not depend entirely upon his personal skill and services. In the case of Ehrgott the admission of the evidence was justified upon- the ground that the jfiaintiff’s income was not from capital invested, but solely from his personal skill and services, and, therefore, it formed- an exception to the rule that previous profits in business are not admissible in evidence in eases of this description, because of their speculative character; and the Ehrgott case was expressly distinguished from the case of Masterton v. Village of Mt. Vernon (58 N. Y., 393) because of this feature which appeared in the case last cited. In no case has it been permitted, where the profits of business arise from the investment of capital, that evidence of such profits should be offered for the purpose of enhancing the damages. It is only in cases where the earnings proceed entirely from the plaintiff’s labor that the evidence becomes admissible. Eor these errors in the admission of evidence a reversal of the judgment becomes necessary.

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

Beady and Daniels, JJ., concurred.

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


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    JOHN PERROW, Respondent, v. DAVID A. LINDSAY, Appellant.

      Inspection and copy of an agreement — general denial of its possession, when not an answer to an application therefor.

    Where a written agreement, entered into between the parties to an action, to recover damages for the breach of which the action is brought, was prepared by the defendant, and retained by him after its execution, it is not a sufficient answer to an application by the 'plaintiff, for the purpose of preparing his complaint, for an inspection and copy thereof, that the agreement is not in defendant’s custody and control, and that it was not in his custody and control at the time of the commencement of the action.
    Where a paper is shown to have been, when last seen, in the possession of the defendant, it devolves upon him to show what he did with it, what has become of it, or how it got out of his possession, and that it is no longer under his control.
    Appeal by the defendant from an order made at a Special Term of the Supreme Court, entered in the office of the’clerk of the county of New York on June 1Y, 1888, granting an application made by the plaintiff for the inspection of an agreement and conferring authority to take a copy thereof.

      FrcmlcVm Fein, for the appellant.

      A. R. Dyetf, for the respondent.
   Yan Brunt, P. J. :

The petition of the plaintiff shows that this action was commenced by the service of a summons, and the defendant has appeared ; that the complaint in the action has not been prepared, and that in order to do so, the plaintiff should have an inspection and copy of a written agreement entered into between the parties to this action to recover damages for the breach of which this action is brought. It further alleges that the agreement was prepared by defendant, and executed by him and the plaintiff at the plaintiff’s place of business; that plaintiff asked defendant for a copy of the agreement to be similarly executed, and defendant answered that he intended to copy the agreement into a book, and that when it was so copied he would, on the following Monday, give the plaintiff a copy thereof; that defendant never did deliver said agreement, or a copy of it; that prior to the commencement of the action petitioner sent to the defendant for a copy of the agreement, and the defendant has never sent any answer thereto ; that the petitioner never had a copy of the agreement, and that an inspection and copy therof is necessary to enable him to prepare his complaint; that the petitioner cannot recollect all the language of the agreement; and he annexes what he believes to be the substance thereof ; and alleges that he may be mistaken in the language as given in the copy annexed; that after the agreement was executed the plaintiff was ready and willing to perform the same and all the conditions thereof, but the defendant repudiated said agreement and refused to perform the same, in whole or in part, and that this action is brought to recover four months’ salary, at the rate of $250 a month, which the petitioner was entitled to receiver under said agreement.

The answer to the petitioner was that the agreement was not in defendant’s custody and control, and that it was not in his custody or control at the time of the commencement of this action. An order was made for a discovery of the agreement, and from such order this appeal is taken.

The ground of appeal is that the defendant has denied having the agreement in his custody or control, and, further, that no inspection is necessary because the plaintiff can declare sufficiently well without [having an inspection of the agreement. It is plain that if a simple answer to an application of this description, that the defendant has not the paper set forth in his custody or control, is to prevail in every case, the provisions for a discovery in the Code may as well be repealed because they would not be of the slightest use under any circumstances. The petition in this case .shows the agreement in the possession of the defendant and a promise on his part to give the plaintiff a copy, which has not been kept; and if, in anticipation of an action upon the agreement, the defendant can put it out of his possession and resist a claim for discovery, then it is time that there was an amendment of the provisions of the Code. We think, however, that is not at all necessary, as the defendant must satisfy the court that the paper is not in his possession, nor under his control ; and where a paper is last shown in 'the possession of the defendant he has to show what he has done with it; what has become of it; or that it has gotten out of his possession, and is no longer under his control. The claim that the plaintiff can declare without an inspection of the instrument is not well taken. The plaintiff may recollect the general tenor of the instrument, but its language or its terms may vary and he is not required to declare, upon a written instrument, which is as much his property as it is the property of the defendant, without having an opportunity to see the precise terms and wording of the instrument declared upon.

The order should be affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    JENNIE M. THOMPSON and JOHN C. THOMPSON, as Executors, etc., of JOHN B. THOMPSON, Deceased, Appellants, v. CHARLES R. THOMPSON, Respondent, Impleaded, etc.

      Motion to amend the record of a trial had in the first judicial district — where and before whom to be made.

    An application to tlie court to suspend tlie entry of judgment in an action, on tlie trial of which, in the first judicial district, an order lias been made directing that the exceptions be heard in the first instance at the General Term, must be made before tlie justice before whom the action was tried, and must be made vvithin the first judicial district.
    An order made by such judge upon such an application, made to and heard before him in the county of Brie, amending the record of the court on the trial by adding at tlie end thereof “and judgment in the meantime suspended,” will be set aside.
    Appeal from an order made at a Special Term of the Supreme Court, held at the city of Buffalo, in and for the eighth judicial district, and entered in the office of the clerk of the county of New York on the 21st day of February, 1889, vacating a judgment theretofore entered in said action on a trial thereof in the first judicial district, and amending the record of the clerk of the court, made on tbe trial thereof, by adding at the end thereof the words “ and judgment in the meantime suspended.”

      Lewis Scmders, for the appellant.

      E. II. Pomeroy, for the respondent.
   Van Brunt, P. J.:

This action had been tried by Mr. Justice Childs and a jury at a Circuit Court held in the county of New York. An order was made directing the exceptions to be heard in the first instance at the General Term, but no provision was made in said order for suspending the entry of judgment. The plaintiff thereupon entered judgment and this motion was made upon notice that it would be brought on before Mr. Justice Childs at his chambers in the courthouse, in the city of Buffalo, on the 31st of January, 1889, at ten o’clock on that day. Upon the coming on of the motion it was preliminarily objected by the counsel for the plaintiff that the motion should be made in the county of New York and could not be made in the county of Erie, which objection was overruled and the motion granted, and an order was entered vacating and setting aside the judgment entered, and amending the record of the clerk of the court by adding at the end thereof the words “ and judgment in the meantime suspended.” Erom this order the appeal is taken.

By section 1000 of the Code it is clear that the judge who tried the cause had the power, at any time before the hearing of the exceptions, to modify or revoke the order directing the exceptions to be heard in the first instance at the General Term, upon notice, in court or out of court. But it is equally clear that section 769 required that such motion should be made in the county of New York. The provisions of this section are that a motion, upon notice, in an action in the Supreme Court, must be made within the judicial district in which the action is triable, or in the county adjoining that in which it is triable, except that where it is triable in the first district, the motion must be made in that district.

The application to set aside this judgment and amend the order directing the exceptions to be heard in the first instance at the General Term, was clearly a motion, as by section 768 a motion is defined to be an application for an order. The requirements of section 1000 are that such applications shall be made upon notice, and the provisions of section 769 are that motions, upon notice in actions triable in the first judicial district must be made in that district. It seems clear, therefore, that Mr. Justice Childs had no power to entertain this motion outside of the county of New York.

The claim upon the part of the respondent that because the motion came up for hearing before Mr. Justice Childs, therefore, in effect, the motion was made here, and it would be ridiculous to ask him to come to New York to hear the motion does not meet the provisions of the Code. They are explicit, reasonably clear and cannot be repealed by judicial legislation. It may be inconvenient, but inconvenience cannot establish rules of practice inconsistent with express legislation. In making the disposition of the appeal that we do, we in no manner express any opinion as to the propriety of Mr. Justice Childs’ order. That question is not before us, the only question being as to his power to entertain this motion in Buffalo.

The order should be reversed, with ten dollars costs and disbursements ; the order to recite that the same is not reversed upon the merits.

Bartlett, J., concurred.

Order reversed, with ten dollars costs and disbursements; the order to i’ecite that the same is not reversed upon the merits.


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    In the Matter of JAMES NEALE PLUMB.

      Surrogate — power to suspend a general guardian — to direct him to pay a gross sum of money to his ward — the discretion as to expenditures must be exercised by the guardian or the court.

    A surrogate has no power to restrain a general guardian from acting as such, and at the same time to direct him to pay out of the cash in his hands a gross sum of money to the infant, to be expended by such infant for school tuition, clothing and her daily expenses. Nor has he power to direct a general guardian to use the principal of the estate for the support and maintenance of the infant, while interest remains uncollected and the debtors owing such interest to the estate are solvent.

      In respect to the supplies which are necessary for the ward, and the means of education suitable for her condition, the ward is not to judge, nor is she to incur bills in her discretion. The discretion exercised in such matters must either be that of the court or of the general guardian.
    Appeal by James Neale Plumb, general guardian of the person and estate of Sarah Lenita Plumb, from an order made on the 15th day of February, 1888, entered in the Surrogate’s Court of the county of New York on the 21st day of December, 1888, modi* fying an injunction order made by said surrogate, dated July 19, 1888, and directing the said guardian to pay certain bills to be incurred by the infant.

      Henry Thompson, for the appellant.

      Dmid MeOlure, for the respondent.
   Van Brunt, P. J.:

This proceeding was instituted for the removal of James N. Plumb, as guardian of the person and estate of the respondent, and an order of reference to take proof as to the facts was duly made. Subsequently the surrogate made an order restraining the appellant from acting as guardian either of the person or estate of the infant during the pendency of the proceeding or until the further order of the court. Appeals were taken from both the foregoing orders, and before the hearing thereof an application was made for an order modifying the injunction order so as to direct the payment, by the guardian, of such sums as might be found necessary for the infant’s support and maintenance during the pendency of the proceedings. Upon such motion it appeared that in the last annual account filed by the guardian, besides certain chattels and bonds, and mortgages and cash on deposit, there was a cash balance in the hands of the guardian of $6,814.36. "Whether this cash was principal or interest does not clearly appear. It does, however, appear' that interest upon the bonds and mortgages has not been collected for more than six months because of the injunctions. The learned surrogate upon this application made an order directing that the guardian pay out of the cash balance in his hands, within ten days after he should receive the same, bills amounting in the aggregate to $800, to be incurred by the infant Sarah L. Plumb, for school tuition and expenses connected therewith for the coming year; and further to pay out of the said balance bills to be incurred in the purchase of necessary clothing, not to exceed in the aggregate the sum of $350; and, also, the sum of twenty-five dollars a week to the infant’s attorneys, said sums to be used by the infant to meet her daily expenses. Various objections are raised to this order by the appellant, The first is that the surrogate had no power to make the order, because of the appeal from the order suspending the guardian pending in this court. Secondly, because if the surrogate had power to alter his order pending the appeal, the order now appealed from provides for an improper and illegal disposition of the infant’s estate in that it improperly provides for the payment of ■expenses out of the estate while the income is allowed to remain uncollected in the hands of its debtors.

That the surrogate had the power, to alter the order pending the appeals seems to be reasonably clear. The surrogate was not ousted of jurisdiction because of the pendency of the appeal. He had the same right to entertain an application in respect to the subject-matter that he would have had, had such appeal not been pending. It is perfectly familiar practice, even after an appeal has been taken to the Court of Appeals, for this court to amend its orders and resettle the same; and this right has been repeatedly expressly recognized by the Court of Appeals. New trials have even been granted after an appeal to the Court of Appeals has been taken, and the power of this court to so grant them has never been questioned. So in the Surrogate’s Court, notwithstanding the appeal, the surrogate has jurisdiction over the proceeding, and may alter an order if the exigencies of the case requires it, even pending such appeal.

The propriety of such alteration, however, is, of course, a subject-matter of discussion, and the subject-matter of appeal in most eases, and should not be allowed for the purpose of defeating rights which have become vested by reason of the existence of the appeal. But the propriety of exercising the right is one question and the want of power is another. We think, however, that the learned surrogate should not have authorized the support of the infant out of what may be the principal of the estate while its income is uncollected. We do not think that there is any power in the court to exhaust the principal for support and maintenance while interest remains uncollected and the debtors are solvent. In the case at bar it distinctly appears that interest upon bonds and mortgages, to a considerable amount, remains uncollected because of the existence of the injunction, and that it may be that principal is applied for the support of the infant while such income is uncollected, and no attempt made to reach the same. And, further, we do not see how it is possible to authorize the infant to expend her own estate ; either the appellant is guardian, or he is not guardian. If he is the guardian of the infant, then the expenditures of the estate must be made through him ; if he is not the guardian, then the maintenance of the infant can only be carried on through the intervention of a guardian of her person and estate. To direct the guardian to pay bills to given amounts which may be incurred by the infant seems to be a direction in respect to the disposition of the funds in the hands of the-guardian which cannot be sustained. We know of no power in the surrogate to give general directions that the infant, no matter what-her age may be, shall have the control and disposition of the funds belonging to her estate. It may be true that the court could direct the guardian to furnish certain supplies for the maintenance and education of his ward, but we do not see where the authority is which will justify the direction given to the guardian to pay bills which -may hereafter be incurred by the ward. As far as the question of spending money is concerned, of course, every ward is entitled, in proportion to its estate, to a certain amount of money over which it has control. But in respect to the supplies Avhicli are necessary for the ward, and the means of education suitable to her condition, it. would seem that the ward is not to judge of that nor can she incur bills at her discretion, but that it must either be the discretion of the court or the guardian which is exercised, and as a consequence it must be the payment of specific bills which are directed by the surrogate in his supervisory power over the guardian, or a direction to the guardian that he shall expend the money in the purchase of supplies for his ward, and the furnishing of education of a particular character. Any other different rule would lead to gross abuses, and, although the conclusion at which we have arrived may seem to be hard, as far as this infant is concerned, yet still it would open the door too wide to depart from the regular and well defined path governing the relations of guardians and wards and the supervisory power which the court has over such relations.

The order should be reversed, with ten dollars costs and disbursements.

Bartlett, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Bartlett, J.:

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    JOHN MULLER, Respondent, v. BERNARD LEVY, Appellant, Impleaded with ISAAC I. LEVY.

      Examination of a defendant sought to enable the plaintiff to frame his complaint■— the affidavits must show that a eause of aetion exists.

    A statement in an affidavit, made for the purpose of obtaining an order for the examination of a party defendant before trial, that the action was brought upon a written contract of employment of the plaintiff by the defendants to recover certain moneys due the plaintiff thereunder, because of a provision thereof by which the plaintiff was to receive ten per cent of the profits earned, and that the plaintiff had performed work thereunder for the defendants, but containing no allegation of a breach of contract by the defendants, nor to the effect that any profits were earned in the business of the defendants, does not show the existence of a cause of action; its existence must be affirmatively established on an application for an examination of a defendant before trial made for the purpose of enabling the plaintiff to frame his complaint.
    Appeal by the defendant Bernard Levy from an order made at a, Special Term of the Supreme Court in the county of New York, and entered in the clerk’s office of said county on or about February 9,. 1889, requiring the said Bernard Levy to appear before one of the justices of the said court and submit to an examination concerning the matters alleged in the affidavit of the plaintiff in this proceeding, brought for the purpose, of enabling the plaintiff to examine the, defendant with a view to framing his complaint in this action.

      Wales F. Severance, for tlie appellant.

      Z. 8. Sampson, for the respondent.
   Bartlett, J.:

When a plaintiff, for the purpose of framing his complaint, obtains an order for tbe examination of a defendant before trial, be must establish by affidavit tbe existence of a cause of action in bis behalf. We have recently bad occasion frequently to enforce this rule, and must reiterate it once more in tbe case at bar. Tbe affidavit upon which tbe order for tbe examination of tbe defendant Bernard Levy was granted, does not state facts sufficient to show that a cause of action exists in favor of tbe plaintiff.

The only averments which it contains tending to establish a cause of action are as follows: “ Tbe action is brought upon a written •contract of employment, by tbe defendants, under tbe firm name of Bernard Levy & Oo., of tbe plaintiff, for tbe years 1887 and 1888, and is to recover certain moneys due tbe plaintiff by tbe defendants, because of a provision in said contract for tbe payment of ten per cent of the profits earned in tbe business of the defendants during tbe years 1887 and 1888. Tbe plaintiff performed work, labor and .services for tbe defendants in and about the business of tbe defendants in tbe city of New York, and fully complied with tbe terms of «aid agreement on bis part.”

In these averments there is no allegation of any breach of contract by tbe defendants, nor any allegation, either upon information and belief, or otherwise, that any profits whatever were earned in ■the business of tbe defendants during tbe years in question. In tbe .absence of such allegations tbe attempted statement of a cause of .action is fatally defective, and tbe application of tbe plaintiff to ■examine tbe defendant is fairly subject to the criticism that it is merely an attempt, not to obtain information for tbe better statement of a known cause of action, but to find out whether be really has any cause of action at all. A party cannot be examined for this ■purpose.

Tbe order appealed from should be reversed and tbe order of ■•examination vacated, with ten dollars costs and disbursements.

Yak Brunt, P. J., concurred.

Order reversed and order of examination vacated, with ten dollars ■costs and disbursements.


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    GERHARD H. BICK, as Administrator, etc., of HENRY BICK, Deceased, Appellant, v. CATHARINE REESE, Respondent.

      Surety company — the amount paid to it for furnishing a statutory undm-talcing is-not a taxable disbursement.

    The amount paid to a surety company which, pursuant to chapter 486 of the Laws . of 1881 and section 811 of the Code of Civil Procedure, furnishes the requisite statutory undertaking given by the plaintiff in order to replevy certain chattels, in an action in which the plaintiff finally succeeds, is not properly inserted, as an item of disbursement in the action, in the plaintiff’s bill of costs submitted to the ' clerk for taxation therein.
    Appeal by tbe plaintiff from an order of tbe Special Term of tbe Supreme Court, entered in the office of the clerk of the county of New York on April 27,1888, which affirmed the clerk’s taxation of plaintiff’s costs in disallowing the item of $125 paid the American Surety Company, which had executed the undertaking on behalf of' the plaintiff, in an action in which certain chattels had been replevied by him.

      D. M. Porter, for the appellant.

      Jonathan Marshall, for the respondent.
   Bartlett, J.:

This suit was brought to recover from the defendant certain, chattels in her possession, to which she claimed title as gifts oausct mortis from the plaintiff’s intestate. In order to replevy the chattels the plaintiff procured the American Surety Company to furnish the requisite statutory undertaking, and for this service paid that corporation $125. The plaintiff succeeded in the action, and, in his bill of costs, inserted this amount as one of the necessary disbursements which he had made in the case. The clerk refused to tax it, and his refusal has been sustained by the court at Special Term.

"We think the clerk and the court below were clearly right in disallowing the"item, The undertaking in replevin was given by the American Surety Company pursuant to chapter 486 of the Laws of 1881, and chapter 416 of the Laws of 1886, which latter act amends section 811 of the Code of Civil Procedure. In neither of these statutes is anything to be found which indicates an intention on the part of the legislature to prefer fidelity or surety companies over private persons who act as sureties. ' It cannot be inferred that there was any design to place such corporations in any more favor.able position under the law than that which would be occupied by individuals who executed similar instruments. It would seem jffain, therefore, that no payment to a corporation for acting as a surety can properly be taxed as a disbursement in an action unless a similar payment, if made to a person for acting as such surety, could properly be taxed. But it has never been supposed or even suggested in any case, so far as we are aware, that the expense of procuring an individual to become a surety on a bond or undertaking, was taxable as a part of the necessary disbursements in an action. Whenever such expenditures are requisite, they must be borne by the party who finds it necessary to incur them. There is no practice or provision of law which authorizes the court to impose them upon the adverse party. The fact that the legislature has authorized surety companies to execute bonds and undertakings as a matter of business, and, therefore, presumably for gain, constitutes no reason why any distinction .should be made in favor of litigants who avail themselves of the . services of such corporations. The intent of the laws on the subject seems to be simply to permit these companies to do what formerly ■could be done only by individuals; but not to place them in a position which will induce litigants to have recourse to them rather than to private persons, as would be the case if compensation paid to such companies for acting as surety could be recovered as part of the costs in a suit, while similar compensation paid to private persons is not recoverable. In order to' justify the clerk in disallowing the item in question, it was not necessary that the defendant should present any affidavit disputing the facts’ set out in the affidavit of the plaintiff’s attorney, for it sufficiently appeared by this affidavit that the disbursement was one which could not properly be taxed, even assuming that the expenditure which it represented was in all respects idghtful as between the plaintiff and the estate of which he is the administrator.

The order appealed from should be affirmed, with ten dollars costs .and disbursements.

Yan Brunt, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.:

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    SAMUEL L. MILLER, an Infant, by WILLIAM C. TOWEN, His Guardian ad litem, Plaintiff, v. RICHARD WOODHEAD, Defendant.

      Execution against the person of a guardian ad litem — when proper.

    Where, in an action brought on oehalf of an infant to recover damages for an injury alleged to have been sustained in consequence of the negligence of the defendant, judgment is entered dismissing the complaint, and an execution has been issued against the property of the guardian and returned unsatisfied, an execution may be properly issued against the person of the guardian for the collection of the costs recovered by the defendant in such action without any application being made to the court for leave to issue it.
    Appeal by Hobart Oakley, the assignee of Richard Woodhead, the above-named defendant (in whose favor judgment was entered in the above-entitled action, dismissing the complaint, after a trial at a Circuit Court in the county of New York on the 3d day of October, 1887), from an order made at a Special Term of the Supreme Court,, and entered on the 9th day of November, 1888, in the office of the clerk of the county of New York, denying, with costs, the motion made by said Hobart Oakley for an order granting to him execution against the person of William C. Towen, guardian ad litem in the above-entitled action.

      Henry P. Starbuoh, for Hobart Oakley, as assignee, appellant.

      John Gray Boyd, for guardian ad litem, respondent.
   Daniels, J.:

This action was brought by the plaintiff, who was an infant of about the age of three years, to recover damages for an injury alleged to have been sustained by himself in consequence of the negligence of the defendant. It was tried at the Circuit, and a verdict recovered in his favor* The judgment upon the verdict was affirmed at the General Term, but reversed at the Court of Appeals. (Miller v. Woodhead, 104 N. Y., 471.) The effect of the reversal was to defeat the plaintiff’s action, and judgment was finally obtained dismissing the complaint and for the recovery of the sum of $756.41 costs;

An execution was issued in tlie action against the property of the guardian and returned unsatisfied. A motion was thereupon made on behalf of the defendant for leave to issue an execution against the person of William C. Towen, who was the guardian ad Utem of the plaintiff. After the argument, and before the decision of the motion, the defendant died, and it was ordered to abate, unless it should be continued by the proper parties within six months from the date of the entry of the order. An administratrix of the estate was appointed by the surrogate of the county of New York on the 8th of June, 1888, within the six months mentioned in the order, but, as she did not make herself a party to the proceeding, the motion finally abated. She, however, assigned the judgment to Hobart Oakley, who is the apnellant, and he afterwards applied for leave to issue an execution against the person of the guardian, and the motion made in his behalf was denied by the court, and from the order entered upon the decision he has taken this appeal. The final abatement of the motion made in behalf of the defendant in the action presented no legal objection to the success of the application made on behalf of the assignee. It decided nothing, but simply terminated the proceeding on the motion, without any decision whatever as to the right of the defendant to the execution against the person of the guardian. It was, therefore, no answer to the application made on behalf of this assignee.

The action was brought for a wrong, upon which, if the plaintiff had recovered, an execution against the person of the defendant might have been issued. (Code of Civil Pro., § 1487.) And as the plaintiff failed to recover finally in the action, the defendant was entitled to an execution of this description for the collection of the costs recovered by him. The Code, by section 1376, has further provided that, “ where the party recovering >a final judgment has died, execution may be issued at any time within five years after the entry of the judgment, by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed, with the name and residence of the person issuing the same.”

The final judgment in the action was recovered on the 15th of November, 1887, and this section accordingly secured the right to issue an execution for its collection at the time when the application for leave to issue it was finally decided. When tbe action bas been brought, as tins was, in the name of an infant plaintiff, the Code, by section 469, has declared that his guardian shall be responsible for the costs thereof. This is an absolute and unqualified liability, and, by section 3249 of the Code of Civil Procedure, it has been further declared, “ where costs are awarded against an infant plaintiff they may be collected by execution or otherwise, from his guardian ad litem, in like manner as if the latter was the plaintiff.” This was a modification, as well as an amelioration, of the preceding law; for, by section 316 of the Code of Procedure, it was declared that, “when costs are adjudged against an infant plaintiff the guardian by whom he appeared in the action shall be responsible therefor and payment thereof may be enforced by attachment; ” and such an attachment, when issued by leave of the court, was enforceable against the person of the guardian. Prior to that enactment the remedy was still more rigorous; for the attachment issued as a process to punish the guardian for nonpayment as a contempt. (Wice v. Com. Fire Ins. Co., 8 Daly, 70; Grantman, v. Thrall, 31 How., 464.) The last change which has, in this manner, been effected by the Code of Civil Procedure has relieved the guardian of some of the severity of the preceding practice, for it has rendered him hable to an execution against his person in the same manner, only, as though he were the plaintiff in the action; and this execution, by section 1376, may be issued in a case where the judgment-creditor is deceased, either by his personal representatives or by the assignee of the judgment when it has been assigned. The right to the execution is absolute and unqualified. And it has been further provided by section 1375 of the same Code that a party recovering a final judgment, or his assignee, may have execution thereupon, of course, at any time within five years after .the entry of the judgment, except where it may otherwise be specially provided for by law, and no other provision of law applicable to this case has been cited or discovered. Under these sections of the Code of Civil Procedure, therefore, the assignee became vested, by virtue of his assignment, with the, unqualified right to issue an execution against the person of the guardian, for the collection of these costs. That right has been in no way made dependent upon any leave or liberty of tbe court, as tbe right to tbe attachment for tbe same object previously was.

No interposition of tbe court, either expressly or by any implication, has been declared a prerequisite to tbe right to tbe execution. But it may be issued “ of course ” within five years after tbe entry of tbe judgment, and tbe right to so issue it has been vested in tbe personal representative or the assignee after tbe decease of tbe judgment-creditor. There was, accordingly, no necessity whatever for either of tbe motions which were made, and as tbe right to issue tbe execution has been absolutely provided for in this manner, it could not be abridged or taken away by tbe decision made on tbe determination of either of the motions. What should have been done on tbe final application was to have dismissed it as entirely needless. In that respect tbe order should be modified, directing tbe dismissal of tbe motion as unnecessary and as so modified affirmed, without costs to either party.

Yan Bbunt, P. J\, and Bbady, J., concurred.

Order as modified affirmed, without costs to either party.


text:
    ELIZA SCHNEIDER, Respondent, v. THE UNITED STATES LIFE INSURANCE COMPANY, in the City of New York, Appellant.

      Life insurance — a forged release of the wife and the acceptance of a surrender of the policy excuses a failure to pay the premium — chap. 341 of 1876.
    Where a policy of life insurance, payable to the wife of the assured, is surrendered by the assured to the company, and the name of the wife is forged to the instrument of release made at the time of such surrender, the omission to pay a premium within the thirty days mentioned in a notice mailed to the assured, pursuant to chapter 341 of the Laws of 1876 (during which period of thirty days the assured made such surrender to the company), is not a defense to an action brought by the wife on the subsequent death of the assured to recover the amount for which the piolicy of insurance was issued.
    Whitehead v. Sew York Life Inswance Oompamy (33 Hun, 426; 102 N. Y., 143) followed’'.

      Appeal by the defendant from a judgment rendered at a Special Term of the Supreme Court, and entered in the office of the clerk of the county of New York on the 12th day of October, 1888, by which it was adjudged that the plaintiff was entitled to recover of the defendant the amount named in the policy of insurance issued upon the life of her husband, less the unpaid premiums, with interest.

      Olwer P. Buell, for the appellant.

      Luems McAdam, for the respondent.
   Daniels, J.:

By the judgment the plaintiff has been permitted to recover the amount for which a policy of insurance was issued by the defendant upon the life of her husband. She had no knowledge of the existence of this insurance prior to his decease. By the formal language of the policy, six dollars and forty-seven cents for one-fourth of the annual premium would become due on the 17 th of April, 1886, and notice of that fact was, on the 15th of March, 1888, given to the plaintiff’s husband, pui’suant to chapter 341 of the Laws of 1876. This notice was not brought to the knowledge or attention of the plaintiff; -but before the thirty days expired, and on or about the 25th of March, 1886, the policy was surrendered by the hushand, whose life was insured, to the company for the sum of $525, which was paid to him. This surrender was accepted and the payment was made upon the authority and release subscribed with the name of the plaintiff and of her husband, as that, in case she had subscribed her name, was permitted to be done by section 3 of chapter 710 of the Laws of 1870. But, as a matter of fact, she neither subscribed nor knew of the release or surrender of the policy, but her name subscribed in this manner was a forgery. Her husband died on the 22d of December, 1886, and after the facts of the issuance of the policy and its surrender in this manner came to her knowledge, this action was commenced to revive it, as an obligation against the company and to enforce its payment for her benefit.

The court at the trial held that the surrender of the policy was not only without the authority but a fraud upon the plaintiff, and that she was entitled to have it revived and enforced according to its terms against the defendant. The defense which was mainly relied upon was tbe omission or failure to pay the premium within the thirty days mentioned in the notice mailed to the plaintiff’s husband on the 15th of March, 1886. But this defense was not sustained by the law, although in ordinary cases such a default would forfeit the policy. (Holly v. Metropolitan Life Ins. Co., 105 N. Y., 437.) But this principle was rendered inapplicable to this insurance by reason of the accepted surrender of the policy by the defendant before a default had taken place in the payment of this installment of the premium. That was held to be the law in Whitehead v. New York Life Insurance Company (33 Hun, 425), which was to this extent affirmedin 102 New York, 143. For as to the two policies which in that instance had been surrendered without right, before the arrival of the time for the payment of the premium, the court held the defendant in the action to be liable, and this holding of necessity maintained the right of the plaintiff in this action to recover against the defendant.

The collection by the plaintiff of a paid-up policy issued by the defendant upon the same life for her benefit, in place of another preceding policy, in no manner affected her right in this action. For that right arises entirely out of what transpired between the parties concerning the policy upon which she was held entitled to recover, notwithstanding this fraudulent surrender of it.

The liability of the company to pay the amount of the policy to the plaintiff is undoubtedly a hardship, but it cannot be excused or exempted from that liability by its reliance on the forged and fraudulent instrument produced as the authority for the surrender of the policy. It is not, however, without a remedy. For as long as it acted upon the certificate of the commissioner of deeds, who falsely certified that the plaintiff had appeared before him and was personally known to him to be an individual described in and who had executed the authority and acknowledged such execution before him, it may be at liberty to resort to him for indemnity for the loss in this manner produced.

The judgment was right, and it should be affirmed, with costs.

VAN BkuNt, P. J., and Beady, J., concurred in the result.

Judgment affirmed, with costs.