author: “Curtis, C. J. By the Court.—Freedman, J.

text:
    RICHARD D. CROTTY v. DUNCAN E. McKENZIE.
    I. ATTORNEY’S LIEN.
    1. As between plaintiff’s attorney and his client.
    The attorney has a lien on the judgment in favor of his client, for compensation for his services.
    1. Measure of lien. The sum agreed to be paid, or if there is no agreement, then the reasonable value of the services. (a.) Seasonable value, prima, facie evidence of; Costs.

    1. The sums recovered by a party, sub nomine costs, as an indemnity for his expenses, are, prima fade, the measure of the compensation to which his attorney is entitled.
    3. As between the plaintiff’s attorney and the defendant. Liability of defendant for compensation of plaintiff’s attorney after a settlement between him and plaintiff.
    1. Not liable unless,

    1. Notified before the settlement that plaintiff’s attorney claims a lien.
    3. The settlement was made collusively, without the knowledge of the attorney, with the view of depriving him of his compensation.
    3. Measure of liability—Cannot exceed the amount of the verdict or judgment.
    3. Enforcement of.
    1. How not to be enforced.

      (a.) Cannot be by issuing execution on a judgment satisfied of record.
    1. The satisfaction must first be vacated on motion.
    H. EXECUTION.
    1. Judgment satisfied of record.
    1. An execution cannot issue thereon.

      (a.) Sweet v. Bartlett, 4 Sandf. 661, is not an authority to the contrary.

    Before Sanford and Freedman, JJ.

      Decided March 5, 1877.

      Appeal by attorney for plaintiff.

    This is an appeal taken by plaintiff’s attorneys from an order made at special term setting aside an execution and levy made thereunder.
    •Execution was issued October 25, 1876. The judgment upon which it purported to be issued was satisfied óf record on October 17, 1876, and so marked upon the docket. Upon affidavit showing these facts, defendant moved to set aside the execution and levy.
    Plaintiff’s attorneys opposed on the ground that they had a lien on the judgment for services rendered to the extent of $210.80, of which $160.80 were for taxable costs, and the remaining $50.00 had been agreed by the plaintiff! to be paid to" them, and that the case had been settled fraudulently and collusively between defendant’s attorneys and a Mr. Thompson, who had, to some extent at least, been intrusted by plaintiff’s attorneys with the possession of the papers and the management of the suit, with the design to defeat plaintiff’s attorneys’ lien for costs.
    lío notice of such lien had ever been given to defendant or his attorneys.
    The court granted the motion, and plaintiff’s attorneys appealed.
    At special term the following opinion was delivered.
   “Curtis, C. J.

The plaintiff recovered a judgment, August 31, 1876, for $278.80. The defendant appealed to the general term. The judgment included plaintiff’s taxed costs, $160.80, and $50 agreed by the plaintiff, to be paid to his attorney. The plaintiff and the. defendant’s attorneys entered into an arrangement by which the judgment was paid and satisfied October 17, 1876, without the knowledge of the plaintiff’s attorney. The latter, upon discovering it, issued an execution on the judgment, requiring the sheriff to levy the amount of his costs and counsel fee. The defendant now moves to vacate this levy and execution, and the attorney claims that his client, the plaintiff, is pecuniarily irresponsible, and that the parties entered into the arrangement in order to defraud him of his costs, and with knowledge of his lien.

“ There is no substantial proof impeaching the good faith of the satisfaction of the judgment, and it does not appear that the plaintiff’s attorney took the precaution to protect his lien for costs by serving a notice of it upon the judgment debtor. The lien and the right to enforce it are controverted on the part of the defendant.

“In Rooney v. Second Avenue Railroad Co. (18 N. Y. 868) the somewhat divergent views expressed in reference to the effect of the Code upon the lien of an attorney upon the judgment recovered by him, are considered, and the conclusion is arrived at, that such lien is not abolished, and is not measured by the actual costs, but covers any portion of the damages which may have been stipulated for the compensation of the attorney’s services. This court early took this position and refused to set aside an execution issued by the plaintiff’s attorneys to collect the costs, on which they had a lien by judgment, when the plaintiff and defendant, without their knowledge, had settled the litigation and satisfied the judgment. Oakley, C. J. (all the rest of the judges concurring), stated that it was the determination of the court to sustain the lien of the attorney, and that, where his right to the costs was established, the court would protect it so far as it could, because, however the matter might be technically, the costs were in reality his property. It was further held that an attorney had no lien for his costs, until a judgment was entered, or at least not until after verdict, and that until the lien attaches, the parties can settle the suit regardless of his claim for costs. But after the attorney’s' right to costs is fixed by a verdict or judgment, then the parties are no longer at liberty to settle, disregarding his interests in the matter (Sweet v. Bartlett, 4 Sandf. 681).

“In the case of Ward v. Syne (9 How. Pr. 18) it was also held by the general term of the court of common pleas (Judges Daly and Woodruff concurring), that the Code did not affect the attorney’s lien for his services.

“ In Ackerman v. Ackerman (14 Abb. Pr. 229) the general term of the court of common pleas held that although the lien of the attorney for costs was one which the court would enforce, yet payment by a judgment debtor to a judgment creditor of the judgment, was valid against the lien of the attorney, unless the debtor had notice of the attorney’s claim by way of lien to a portion of such judgment.

“ It was also held that although an execution could be issued upon a judgment which had been satisfied, yet that if the satisfaction was voidable for any cause, it must be vacated by the court before execution could be issued.

“In Bishop v. Garcia(14 Abb. Pr. N. S. 72), the principle was concurred in, that if an attorney desires to protect his lien for costs and expenses against the settlement of a judgment, he must give notice of the lien to the judgment debtor.

“In Sweet v. Bartlett (supra) the defendants do not appear to have raised the objection that they had not been notified of the attorney’s lien for costs, and the effect of such an omission on the part of the plaintiff is not considered; but as that arises in the present case, it would seem a more just and equitable rule that the plaintiff’s attorney should, before attempting to enforce his lien, be required to give such notice, and that it would be better to apply to the court, before he issues Ms execution, for an order to vacate the satisfaction of the judgment.

“In Marshall v. Meeks (51 N. Y. 140). these, views as to an. attorney’s lien for his costs are confirmed, and it was held that where the judgment was for costs solely, it was in itself a legal notice of the lien, which could be discharged only by payment to the attorney, and by a divided court, it was held, that where the judgment issues for both damages and costs, such lien could only be protected by notifying the judgment debtor. This mode of protecting this lien by such notice is recognized in Pulver v. Harris (52 N. Y. 73), and in Lesher v. Egidus (3 Hun, 217).

Culver, Bertram & Phillbrook, plaintiff’s attorneys, and appellant in propria personæ, and H. B. Phillbrook, of counsel, urged:

I. The attorney for party recovering a judgment is assignee of the judgment to the extent of costs, and also his fee, if agreed upon, and courts will always protect his rights (5 Bosanquet & Pulner, 99; 10 Wend. 617; 15 Johns. 405; 4 Sandf. 661; 40 N. Y. 580; 12 Abb. Pr. 325; 7 Id. 210; 16 How. 173; 1 Id. 94; 8 Hun, 136; 4 Cow. 416; 9 How. 460; 1 Sprague, 11, 126, U. S. Dist. Ct.; 10 Wall. 483, U. S. Supreme Ct; Rooney v. Second Avenue R. R. Co., 18 N. Y. 368).

The attorney being assignee of the judgment to the extent of costs and fees, whoever has knowledge of his interest has sufficient notice (4 Barb. 47; 12 Johns. 343 : 1 Johns. Cas. 51; 10 Wend. 617; 6 How. 161; 3 Id. 386).

Butler, Stillman & Hubbard, attorneys, and of counsel, for the defendant and respondent, urged:—I. An execution cannot be issued upon a judgment which has been satisfied by the filing of a certificate as prescribed by the Revised Statutes. If the satisfaction is voidable for any cause, it must be vacated by the court before execution can be issued (Ackerman v. Ackerman, 14 Abb. Pr. 229, and cases cited; Foote v. Dillaye, 65 Barb. 521; Booth v. Farmers & Mechanics’ Bank, 4 Lans. 307; 3 Rev. Stat. 6 ed. 620, §§ 22, 24). 1. After satisfaction of record, there is no judgment upon which an execution .can issue. Since the adoption of the Revised Statutes, the. satisfaction is a part of the record of the court, and operates to extinguish the judgment (Booth v. Farmers & Mechanics’ Bank, supra). 2. The lien of an attorney is only an equitable lien, the proceeds not being in his hands. His remedy in the ürst instance is to move the court to vacate the satisfaction-piece (Ackerman v. Ackerman, supra; Ward v. Wordsworth, 1 E. D. Smith, 598; Rooney v. Second Avenue R. R. Co., 18 N. Y. 368; Pearl v. Robitchek, 2 Daly, 138; McDowell v. Second Avenue R. R. Co., 4 Bosw. 670; Bishop v. Garcia, 14 Abb. Pr. N. S. 69, 72). The case of Sweet v. Bartlett, (4 Sandf. 661), relied upon by appellant, was decided before the practice was settled; if it has the effect claimed by the appellant, it has been substantially overruled by the court of appeals; it does not appear that in that case the judgment was satisfied of record, nor that this question was argued at all; and in that case there was positive evidence or fraud (See opinion of Curtis, Ch. J., in this case; Marshall v. Meeks, 51 N. Y. 140; Pulver v. Harris, 53 Id. 73; Lesher v. Roessner, 3 Hun, 217).

“It is with reluctance I feel constrained by the weight of the later authorities to set aside an execution issued in accordance with what might seem to be the settled practice of this court, as expressed in Sweet v. Bartlett (supra).

“ The execution and levy sought to be set aside on the part of the defendants must be vacated, but without costs.” ,

II. There was no fraud in the settlement. This has been established in this court, and until that adjudication is reversed, the decision is conclusive. 1. Ho notice of any lien was ever given. The authorities are conclusive upon the point that such notice is absolutely necessary in order to defeat a settlement (See cases cited supra). The fact that a judgment is partly for costs and partly for damages does not constitute notice, either actual or implied (Marshall v. Meeks, 51 N. Y. 140).

By the Court.—Freedman, J.

Before the Code, costs were taxed under the name of attorney’s and solicitor’s fees, and the taxable costs formed the measure of the compensation of the attorney or solicitor. By the Code all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions, and all rules and provisions of law restricting or controlling the right of a party to agree with an attorney or counsel for his compensation, are repealed, and the measure of such compensation is left to the agreement, express or implied, of the parties.

At the same time, the Code allows certain costs to the party as an indemnity for his expenses in the action.

The lien of the attorney upon the judgment he recovers is not affected by the change, because such lien did not arise from any fee-bill, but was established by a long current of authority.

Such lien, however, is no longer measured by the taxable costs. The compensation to which he is entitled for his services may now be determined as in other professions, namely, either by express contract, or where there is no agreement as to amount, by the value of the services rendered, which means a reasonable value (Stow v, Hamlin, 11 How. Pr. 452 ; Garfield v. Kirk, 65 Barb. 464); and the sum so agreed upon, or said value, may, according to circumstances, exceed or fall below the taxable costs (Rooney v. Second Ave. R. R. Co., 18 N. Y. 370); although, in the absence of an agreement upon. the subject, the sum recovered by a party as an indemnity for Ms expenses are prima facie the measure of the compensation to wMch the attorney is entitled.

It is only when circumstances warrant it that the court, in the absence of an agreement, will allow the attorney better compensation than the bill of costs, as taxed, will afford (Cregier v. Cheesbrough, 25 How. 200).

Whenever there is a lien, it attaches for the entire amount which he is entitled to claim as the measure of his compensation (Rooney v. Second Ave. R. R. Co., 18 N. Y. 368; Ackerman v. Ackerman, 14 Abb. 229 ; Marshall v. Meech, 51 N. Y. 141). But it has been held that such lien does not attach before judgment, or at least not till after verdict (Shank v. Shoemaker, 18 N. Y. 489 ; Sweet v. Bartlett, 4 Sandf. 661).

There is no doubt, however, that in case of collusion or fraudulent design the protection of the court may, even before verdict, be extended to the attorney, so far as to deny to a party the benefit of a proposed discontinuance, or of a supplemental answer showing settlement, except upon the condition of payment of the costs of the action (Dietz v. McCallum, 44 How. Pr. 493, and cases therein cited).

Thus it will be seen that it is the settled policy of the courts to protect the rights of the attorney, so far as it may be done consistently with other rules of law; for, as it was said in Sweet v. Bartlett (4 Sandf. 661), however the matter might be technically, the costs are in reality his property.

But notwithstanding this benevolent disposition exists on the part of the courts, the attorney has no right to rely upon it as against the adverse party to the action. As against him the attorney should protect himself, and in many, if not most cases, this can be done by a notice.

Without notice the adverse party in the action is under no obligation to the attorney not to settle with his client.

True, when the judgment recovered is solely for costs, it is in itself legal notice of the attorney’s lien. But when it is damages and costs, the rule is now held to be otherwise. In such case the judgment is no notice at all, not even as to costs, and actual notice is necessary (Marshall v. Meech, 51 N. Y. 140 ; Pulver v. Harris, 52 Id. 73). And before judgment the full bench of this court has stated the rule to be as follows : “If an attorney has omitted to protect himself by a notice forbidding a settlement without him, and the parties compromise the action before judgment, of which he has notice, he then proceeds in the suit for his costs at the peril of establishing conclusively, that the adverse party had the design, when making the settlement, of defeating his demand for the costs. If he fail in satisfying the court of this, his proceedings, subsequent to notice, will be set aside” (McDowell v. Second Avenue R. R. Co., 4 Bosw. 670).

The result of the foregoing examination is that, as between themselves and their client, plaintiffs attorneys had a lien on the judgment recovered to the extent of $210.80. But how does the case stand as against the defendant 1 The judgment being for damages and costs, it was, under the decision of the court of appeals in Marshall v. Meech, no notice to him for any purpose, nor was any notice of the lien claimed by the attorneys ever served upon him. Besides, in the settlement complained of, they were represented by a Mr. Thompson, who seems to have possessed some apparent authority from them.

But the gravest mistake made by them was committed in issuing an execution upon a judgment that had been regularly satisfied of record,

An execution cannot be issued upon a judgment which has been satisfied by the filing of a certificate as prescribed by 2 R. S. 362, §§ 22, 24. If the satisfaction is voidable for any cause, it must be vacated by the court before execution can be issued. This has been expressly held by the general term of the court of common pleas, and is undoubtedly sound law (Ackerman v. Ackerman, 14 Abb. Pr. 229, and cases cited). The reason is that since the adoption of the Revised Statutes the satisfaction is a part of the record, and operates to extinguish the judgment (Booth v. Farmers’ & Mechanics’ Bank, 4 Lans. 307). This reason applies with two-fold force to the lien of the attorney, which is only an equitable one, as long as the proceeds are not in his hands.

Plaintiff’s attorneys should, therefore, have moved to vacate the satisfaction before issuing execution. Sweet v. Bartlett (4 Scindf. 661) is not an authority for their position. It does not appear that in that case tire judgment was satisfied of record, nor was the question raised so far as the report shows ; but it does appear distinctly that, after the settlement, the attorney obtained an affirmance, procured a remittitur, entered a fresh judgment thereon, and then issued execution upon the latter judgment.

The order should be affirmed with costs to be paid by the appellants personally.

Sanford, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    JOHN RYAN, Plaintiff, v. THE MAYOR, &c., OF NEW YORK, Defendant.
    r. DEMURRER TO ONE OF SEVERAL DEFENSES, ON THE GROUND OF INSUFFICIENCY.
    1. Order sustaining demurrer with leave to defendant to amend. Effect of.

      {a.) Determination. Such order is a determination that the averments in the defense demurred to constitute no defense ; and remaining unreviewed, the determination is conclusive on the trial of the cause.

    EL ANSWER.
    1. Implied denial, what is not.

      (a.) A denial of an averment of rendition of services in a certain capacity is not a denial of an averment of recognition and employment in such capacity.

    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided March 5, 1877.

      Exceptions heard at general term.

    The action was brought by the plaintiff to recover four months’ salary, to wit, from September 1, 1871, to January 1, 1872, as attendant on and messenger of the superior court.
    The complaint and answer were as follows :
    ‘‘ The complaint of the plaintiff respectfully shows to the court:

      “First. That the defendants are a municipal corporation organized and existing under and by virtue of their ancient charters and the laws and statutes of the State of New York.

      “Second. That under the provisions of an act of the legislature of the State, passed April 11, 1849, constituting section ‘28’ of the Code of Procedure, this plaintiff was appointed by the board of supervisors of the county of New York, in or about the month of February, 1869, an attendant and messenger of the superior court of the city of New York, and employed for no definite period to attend upon the said court, and to perform the duties required to be performed by him.

      “Third. That thereupon he entered upon the performance of his duties as such attendant and messenger, and continued to perform the same up to or about June 15, 1874, under and by the direction of the several judges of said court, who recognized and employed this plaintiff in and about said court as such attendant.

      “Fourth. That by a resolution of the board of supervisors of the county of New York, duly passed on or about February 13, 1869, the compensation to be paid this plaintiff was fixed at one thousand dollars per annum.

      “Fifth. That the plaintiff has been paid for his services as attendant and messenger upon the said court as aforesaid at the said rate of one thousand dollars per annum up to the month of September, 1871, and that for the months of September, October, November and December, 1871, he has not been paid, and there is now due therefore at the said rate the sum of §333.33 with interest.

      “Sixth. That the claim of this plaintiff has been presented to the comptroller of the defendants, and more than thirty days have elapsed since such presentation and payment demanded, and that said claim has not been paid, and still remains due to the plaintiff, &o.”
    Defendants’ answer to the complaint was as follows:

      “First. Defendants aver that on February 13,1869, the board of supervisors of the county of New York had no power, authority or jurisdiction to appoint the plaintiff to the office of messenger or attendant as alleged in the complaint herein. That the said office of the plaintiff had not theretofore existed, and pursuant to section 4 of chapter 854 of the Laios of 1868, the said board of supervisors were prohibited from creating the same.
    “Second. And as a second and further defense herein, defendants deny that the plaintiff performed any service whatever as attendant and messenger in the superior court in the city of New York, during the months of September, October, N ovember and December, 1871.
    “Defendants demand that said complaint be dismissed with costs.”
    The plaintiff demurred to the first defense for insufficiency.
    The demurrer, after argument, was sustained at special term, and an order entered sustaining the demurrer and giving defendant leave to amend. Defendant neither appealed from the order nor amended his pleading.
    In this condition of the pleadings, the case came on for trial before the court and a jury.
    On the trial the court directed a verdict for the plaintiff for the full amount, and ordered defendant’s exceptions .to be heard in the first instance at general term.

      Elliott Sandford, attorney, and of counsel, for plaintiff, on the points decided by the court, urged:
    I. When the action was tried below, the case stood as if .the first defense had never been pleaded. A defendant cannot avail himself at the trial of defenses to which demurrers have been interposed and sustained (Baldwin v. U. S. Telegraph Co., 1 Lans. 125, 135). The only issue, therefore, to be considered at the trial, .was the rendition of services.
    II. During the trial, defendant’s attorney moved to dismiss the complaint for the reason that the plaintiff had not shown that he had been recognized as an officer by the judges. The motion was correctly denied, for the reason that there was no such issue in the case, the complaint alleging that such was the fact and the answer not denying it. furthermore, there was proof already before the court that plaintiff had been employed and rendered service under the eye of the court, and that, in law, was an appointment and a recognition.

      Win. C. Whitney, counsel to the corporation, and Charles P. Miller, of counsel for defendants, on the points decided by the court, urged:
    The position taken by defendants is, that the allegation in the second paragraph or subdivision of their answer, which denies “that plaintiff performed any services whatever, as an attendant and messenger in the superior court,” during the months for which suit is brought, raises the issue fairly, for if plaintiff performed no service, there could have been no ratification or recognition—there being nothing to ratify or recognize.
   By the Court.—Freedman, J.

Plaintiff’s claim to compensation rests upon his appointment by the board of supervisors, his recognition as such appointee by the judges of the court, and the rendition of services in pursuance thereof. The answer of the defendants, as interposed, contained two distinct defenses pleaded separately, The first was to the effect that the supervisors had no power to appoint, and the second put in issue the rendition of the services. They were not connected by any averment.

On plaintiff’s demurrer to the first defense it was held at special term (50 How. Pr..91), upon the authority of Brennan v. Mayor, &c. (62 N. Y. 365), that the naked plea of want of authority in the supervisors was, in the absence of any denial of the alleged adoption and ratification of the appointment by the court, insufficient in law to constitute a defense, but leave was granted to the defendants to amend their answer on payment of costs.

Of this privilege they did not see fit to avail themselves, nor did they appeal, and consequently the adjudication of the special term disposed of defendants’ first defense.

Under the former practice, when judgment was given for the plaintiff upon his demurrer to a plea, the defendant was bound in all cases in which the judgment given was not a final one, but merely a respondeas ouster, to plead anew, or his default in not pleading could be entered; and though the nature and office of the demurrer have been essentially changed under the new system introduced by the Code, yet the effect of an adjudication such as has been made in this case, is very much the same as it was before. The defense which has been disposed of by the proceedings on the demurrer is no longer available.

Moreover it appears that the allegation of plaintiff’s amended complaint that the several judges of the court recognized and employed the plaintiff in and about said court as an attendant, is nowhere denied in the answer, and hence it must, under the requirement of section 168 of the Code, be taken as true for the purposes of the action.

It is therefore plain that the only issue to be determined on the trial related to the rendition of the services. On this point the testimony was sufficient to authorize the direction of a verdict. Defendant’s counsel did nob ask to have this question submitted to the jury. True, he asked to be allowed to go to the jury on the question of recognition. But that question, as already showed, was not in issue, and having made a request for a specific purpose, for which he had no right to make it, he cannot on appeal and on a mere exception resort to it for another and different purpose (Schroff v. Bauer, 33 N. Y. Superior Ct. 199, and cases there cited).

None of defendants’ exceptions being tenable, the exceptions should be overruled and judgment absolute ordered for plaintiff on the verdict, with costs.

Curtis, Ch. J., and Sanford, J., concurred.


text:
    MARSHALL IBBOTSON, Plaintiff and Respondent, v. ALBERT KING (sued as Alfred King) impleaded, etc., Defendant and Appellant.
    I. NEW TRIAL.
    1. Motion fob, on the minutes, at what term to be made.

      (a) At the same term at which the cause is tried.

      Special Term orcler made within four days of the end of the term at which which the cause was tried, upon notice and after hearing counsel for both sides, granting leave to move for a new trial on the minutes; effect of.
    1. It does not authorize such motion after the expiration of the term at which the cause was tried.

      2. Motion bob on a case made.

      (a) When and for what causes not granted.

    1. When there is a conflict of evidence on the facts submitted to the jury, and no motion is made either to dismiss the complaint on the ground that the plaintiff had failed to prove a cause of action, or for a direction to the jury to find a verdict for defendant on the ground of insufficiency of the evidence to sustain a verdict against him, a motion for a new trial on a case made will not be granted, either on the ground that the verdict is without evidence, or on the ground that it is insufficiently supported by the verdict.
    1. What cannot be questioned under these circumstances. On such a motion the question whether the facts so 'submitted, even if found in plaintiff’s favor, will warrant in law a verdict for him, cannot be raised if there are no exceptions sufficient to bring it before the court.
    1. The principio of the decision in Rowe v. Stephens, 34 N. Y. Superior Ot. R. p. 436, applied to a motion on a case made.

    H. EVIDENCE.
    1. Res inter alios acta—what is not.

      (a) Sub-Agents. When the defendant relies for his defense upon the character of a transaction had between a third person and the employer of an employee of his agent, in relation to a matter entrusted by the agent to his immediate employee, ri report by the employee, who had the transaction with the third party, to his employer, (being the immediate employer of the agent), at the time of handing him the proceeds of such transaction, as to what the transaction was, is admissible in favor of the third party or one eluiminy under him, as tending to show the circumstances under which such proceeds were accepted.
    Before Sanford and Freedman, JJ.

      Decided March 5, 1877.

      The action was brought against the defendant as maker of a promissory note for $360, signed Martin & Co.
    The defendant denied that he was ever a partner of the firm of Martin & Co., and also pleaded usury.
    At the trial, which took place May 5, 1876, testimony was given on both sides, and plaintiff had a verdict, upon which judgment was entered.
    During the same term, to wit, on May 23, 1876, defendant moved, upon notice to plaintiff’s attorney, at a special term, held for the hearing of motions before a judge other than the one before whom the trial was had, for a new trial on the minutes.
    The court, at such special term for the hearing of motions, after hearing the defendant’s attorney in support of said motion, and plaintiff’s attorney in opposition, declined to entertain, and on May 23, 1876, made a special term order, which was entered on that day, whereby it was ordered “that defendant have leave to move before the justice before whom the cause was tried, for a new trial on the minutes of the trial; and in case such motion is denied, to make a case, with leave to turn the same into a bill of exceptions.”
    The term at which the cause was tried ended May 26. Thereafter defendant’s attorney, about September 28, 1876, served on plaintiff’s attorney a notice that on the above order, and the minutes of the trial of the cause, and an affidavit by defendant’s attorney setting forth “that when the jury went out to consult he left the court-room for a few moments, and upon his return he found to his surprise that the jury had, during his short absence, rendered a verdict in favor of the plaintiff, and had been discharged, and the plaintiff’s counsel had left the court-room, and consequently he had no opportunity to move for a new trial on the minutes,”—a motion would be made at the special term of this court, before his Honor Wi. E. Cubtis (the judge before whom the cause was tried), on October 3,1876, that a new trial be ordered on said minutes, or for such other or further order in the premises as might be just.
    When the motion, initiated by this notice, came on to be heard, plaintiff’s attorney read in opposition an affidavit, setting forth “that defendant appealed from the judgment to the general term on May 10,1876, and served his proposed case July 13, 1876, amendments to which were served July 24, 1876, which amendments were accepted by defendant’s failure to notice the same for settlement, as required by the rules of court; that defendant’s attorney noticed a motion for a new trial herein in May, 1876, but Judge Speib, who was holding special term, declined to hear the same, but gave defendant leave to make his motion before Judge Cubtis, who tried the cause ; that defendant neglected , to make such motion before Judge Cubtis at May term.”
    The motion for' a new trial on the minutes was denied, and an order to that effect entered ■ October 13, 1876, and an appeal was taken from such order to the general term on October 15, 1876.
    The cause came before the general term upon this appeal from the order denying the motion for a new trial on the minutes, and on the appeal from the judgment.
    For the purpose of the appeal from the judgment, a case was made and settled containing the following single exception:
    James E. Boyd was recalled on behalf of plaintiffs, and asked, “ When you brought this money—the $300, back to Beman, did you report any thing to him ?” He answered “ I did.” He was then asked, “What took place?” Defendant’s counsel objected, the objection was overruled, and an exception taken (fol. 88 of fclie case). The witness answered, “Muck, as I was told that Mr. Wilson had no more than §300, and that when the note was paid the balance would be handed over to Mr. Beman.”
    The preceding evidence had shown that Runyon W. Martin, acting as agent for the alleged firm of Martin & Co., had given the note in suit to one Beman to get discounted for the firm of Martin & Co. Beman entrusted the note to James R. Boyd, who took it to Mr. Wilson and obtained from him §300 thereon, and Boyd had previously testified that Wilson at the same time promised to hand over the balance when the note was paid.

      Wm. P. Lee, attorney, and of counsel for appellant, on the points decided by the court, urged:
    I. It has been intimated by the counsel for the plaintiff that he shall claim that the order denying the motion for a new trial on the minutes should be affirmed, for the reason that the motion was not made within the time required by the rules. 1. The cause was tried at the May term, 1876, and the motion was made in May.. The fact that it was not finally heard until October cannot prejudice the appellant. 2. At any rate, the objection as to the time of moving for a new trial should have been taken when the motion was heard, and as a preliminary objection. This was not done, and plaintiff cannot avail himself of it here..
    II. The question which was allowed by his, honor-the Chief Judge, was not properly allowed. The question was immaterial, as what took place between Beman and Boyd could not affect the rights of the defendant King, if he were not a partner in the firm of the makers of the note, as is claimed that he was not, nor yet could it affect the rights of the makers of the. note, whoever they might be. The question, therefore, should not have been admitted.

      Daniel G. Wild, attorney, and of counsel for respondent, on the points decided by the court, urged:
    I. The motion for a new trial on the judge’s minutes was properly denied. 1. The cause was tried in May, 1876, and a motion on the judge’s minutes could only be made at the same term (Code, § 264). 2. The motion was not made until October, 1876. The objection that the motion was not made within the time prescribed by law, was expressly raised by the affidavit of plaintiff’s attorney on the motion.
    II. The exception is untenable. Beman, the witness, was acting for B. W. Martin, the agent of the defendants, Martin & Co. Boyd had been employed by Beman to get the note discounted, and the testimony objected to is the report made by Boyd to Beman of the fact that he could get $300 on the note, and that when the note was paid, the balance could be paid over to Beman. The testimony was admissible as the acts and statements of the defendants’ agent; and it was also part of the transaction itself; the defendant having claimed that the discount was usurious, it was competent to show that it was arranged through their agent, Beman, that defendants were to receive the balance of the note over $300.

       Note by Reporters.—The question as to whether leave to move at a subsequent term or terms may not be granted under sections 174 and 405, does not appear to have arisen. It was not adverted to by counsel or by the court, either because it was assumed that the principle of the decisions, holding that the time to appeal could not be extended under section 174, applied to a motion for a new trial, or because the application at special term was not for leave to move at a subsequent term, and the order gave no such leave. The latter, from the views presented by the counsel in their points, and the fact that the order simply gave leave in general terms, the term at which the cause was tried not having closed, would seem to be the real cause why the question was not raised. It seems to the reporters, however, that neither the court nor any judge thereof can give leave for the making of such a motion at any term other than that at which the cause was tried.

   By the Court.—Freedman, J.

Section 264 of the Code provides that a motion for a new trial, if heard ' upon the minutes, can only be heard at the same term or circuit at which the trial is had. The motion, therefore, was made too late. It should have been made on h case.

But even if it had been regularly made, either in - time on the minutes, or subsequently on a case, it might well, and indeed within the principles laid down in Rowe v. Stevens (N. Y. Superior Ct. 436), it should have been denied. It stated no ground upon which it was made, and, as matter of fact, no motion had been made for a nonsuit or the direction of a verdict, nor had any exception been taken to the charge of the court, under which all the issues appear to have been fully and fairly submitted to the jury.

Under these circumstances I do not feel called upon to examine the entire testimony with the view of testing the correctness of the finding of the jury.

The question was properly allowed. As the defendant claimed that the note had been usuriously discounted, it was competent and material for plaintiff to show, by way of rebuttal, what the real arrangement was; and as the whole arrangement had been "made by an agent of defendant’s firm, plaintiff had a right to show under what circumstances the money was handed over to, and accepted by such agent.

The judgment and order appealed from should be severally affirmed with costs.

Sanford, J., concurred.


text:
    ROBERT COCHRAN, Plaintiff and Respondent, v. CHRISTIAN GOTTWALD and DANIEL A. MURPHY, Defendants and Appellants.
    I. COSTS — JUDGMENT FOR.

    1. Order of general term reversing the judgment and ordering a new t>'idl with costs to the appellant to abide the event,—effect of, upon the costs. '

    1. Respondent, on again succeeding upon the new trial, cannot include in his bill of costs as a taxable item, the amount adjudged to him for costs by the judgment reversed.

      (a.) This although the reversal was for a technical error.
    Before Sanford and Freedman, JJ.

      Decided March 5, 1877.
    Appeal from an order denying defendant’s motion for leave to re-tax their costs.

      Spencer L. Hillier, attorney, and of counsel for appellant, cited,
    Pennel v. Wilson, 4 Robt. 610 ; Id., 5 Id. 667; Kennedy v. Harlem R. R., 3 Duer, 659; 4 Bosw. 626 ; 2 Lans. 97; Hamilton v. Butler, 19 Abb. 446 ; North v. Sargent, 14 Id. 223 ; Goodyear v. Ogden, 4 Hill, 104; 17 Wend. 50; 27 Barb. 354.

      A. J. Ferry, attorney, and Charles Meyer, of counsel, for respondent.

       Note.—See previous in this case, 40 N. Y. Superior Ct. 442, also 41 Superior Ct. 817.

   By the Court.—Freedman, J.

The question presented by this appeal is a very simple one, though both parties have taken advantage of the many irregularities heretofore committed in this case, to involve it in doubt. It relates to the right of the defendants to a bill of costs amounting to $177.77 under a judgment which has been reversed. The action was for the recovery of the possession of personal property, and the judgment awarded the possession to the defendants and assessed its value. The judgment was entered upon the report of a referee, and it was reversed by the general term for an erroneous assessment of damages, with costs to the appellant (plaintiff) to abide.the event, and a new trial ordered.

Upon the second trial the defendants again prevailed, taxed their costs at $101.19, and entered judgment not only for these costs, but also for $177.77, the costs and disbursements taxed on the first occasion.

This, judgment was, in several other respects not necessary to be mentioned here, irregular. These irregularities were corrected on plaintiff’s motion, and, among other things done, the provision as to the award of the $177.77 of costs was stricken out.

Subsequently the defendants moved at special term for leave to re-tax their costs before the clerk, which motion was denied, and from the order of denial entered thereon, the present appeal is taken.

The motion was founded upon an affidavit, and the only ground assigned for it, so far as the papers on this appeal show, was that inasmuch as the reversal of the first judgment was for a mere technical error of the referee, their right to the costs included in said judgment should not be impaired by it, and that hence the whole amount of such costs should be re-allowed precisely as they had once been taxed. No items were pointed out which could have been allowed on a re-taxation as just and proper ones, independently of the ground assigned for the motion, nor were the items which made up the sum of $177.77 brought before the court.

The proposition advanced by the defendants was, therefore, one which should have been urged upon the general term that adjudged the reversal, and which, whether urged or not, had certainly been determined by that tribunal against the defendants, for the decision was that, the judgment should be reversed with costs to the appellant (plaintiff) to abide the event. The reversal thus adjudged carried with it a reversal of the bill of costs, the amount of which had been inserted in the judgment, and it adjudged the costs of the appeal to the plaintiff in case of final success.

After such adjudication neither the clerk nor the court at special term possessed the right to allow the defendants to tax costs for proceedings that had been vacated for error. The statutory right of a party to costs attaches only to such proceedings as are regular. The order should be affirmed with costs.

Sanford, J., concurred.


author: By the Court.—Curtis, Ch. J. Freedman, J. (Concurring).

text:
    JACOB ABERLE, Plaintiff and Appellant, v. JOHN HENRY FAJEN, Defendant and Respondent.
    landlord and tenant.
    Permission to alter premises by removal op partitions.

      Damages in an action for waste.

    Two questions were presented to the jury in this case:
    1st. Whether permission had been given to the defendant to remove the partitions;
    2nd. Whether such removal caused any, and what amount of damage.
    The evidence was such that the jury might conclude that there was a license or permission, either in the original lease, or subsequently, from a former owner, to the defendant to make the change, which was binding upon the plaintiff or-ratified or recognized by him when he came into possession,, and therefore the verdict of the jury for the defendant-should be sustained. *
    If a jury finds for a defendant when they should have found' nominal damages for the plaintiff, it furnishes no ground, for a new trial (Stevens v. Wilder, 42 W. Y. 351; Devendorfc. 0. West, 42 Barb. 227).
    The following points from opinion of Freedman, J.:
    This action is analogous to former actions of waste, and. to sustain it plaintiff must show an injury to the freehold or reversion. The jury had a right to look, beyond the evidence as to the cost of restoration. Alterations of this kind are not necessarily acts of. waste. They may be in some instances, and as was. claimed by the defendant in this case, a benefit to the estate. The case having been submitted to the jury by the trial judge more favorably to the plaintiff than he was entitled to, the controversy should not be re-opened.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided May 8, 1877.

      Appeal by the plaintiff from a judgment entered upon a verdict in defendant’s favor, and from an order denying a motion for a new trial.
    The action is to recover damages for the removal of two partitions in the rear of a store, eight feet eight inches wide, occupied by the defendant as a tenant under a letting from a former owner, and converting the materials. The defendant answers that such acts were by plaintiff’s consent and permission, and were a benefit to the building and the plaintiff.

      Simon Sultan, for appellant.
    I. The first request to charge was not embraced in the charge of the court to the jury, and was improperly refused. The charge confined itself in general terms to the question whether there had been a permanent injury to the entire structure, of which the defendant merely held a part. The question really was whether there had been a permanent injury to the premises demised, and whether there was such injury as to the plaintiff. If there was, the plaintiff was entitled to a verdict (See Nottingham v. Osgood, reported in note in Sedgwick on Damages, 6th ed. 167). The request was to charge what the defendant’s rights were under the lease, and that the removal of partitions or the alteration of the premises to something different from what they were, are not such rights. The court, however, only charged “that the building was the inheritance which the owner had a right to have.” A proposition entirely disconnected from the propositions contained in the request (Douglass v. Wiggins, 1 Johns. Ch. 435; 1 Addison on Torts, Am. ed. 280 ; 2 Edm. Rev. St. 344; McGregor v. Brown, 10 N. Y. 114).
    II. The learned judge erred in submitting to the jury the question whether the injury affected the plaintiff’ s freehold permanently. 1. The evidence is undispuled that the partitions were affixed inseparably to the land and were a part of the freehold, and all the material composing the same had been destroyed with the exception of the doors. Defendant could not restore these partitions, he could at most replace them with others of perhaps similar, perhaps inferior material. Here was therefore a permanent injury to the reversionary estate of the plaintiff in the very act of destruction (Voorhees v. McGinnis, 48 N. Y. 278). 2. The act of the defendant being therefore an injury per se, it was not to be determined by the jury, it was a question of law for the court, not of fact for the jury (McGregor v. Brown, 10 N. Y. 117).
    III. The verdict was clearly against the evidence and the charge and direction of the court. 1. The theory upon which the case was submitted to the jury was that a wrong had been committed by the deféndant, for which he was to answer in damages. Two things were required to be done by the jury. 1st. Assess the damages for the simple wrong. 2nd. Instruct the court upon the evidence by finding upon the question wdiether the wrong was a lasting" injury to the freehold. 2. The charge was substantially the direction of a verdict for the plaintiff, and imposed the simple duty to assess damages, according to the measure stated by the court. 3. Instead of doing as directed, the jury returned a verdict of no damages, disregarding the evidence of damage entirely, as well as the instruction of the court, or in other words, answered the simple question how much it would cost to restore the partitions, that it would cost nothing.
    IV. The verdict being clearly against the law, and contrary to the charges and direction of the court and against the evidence, should have been set aside. 1. A verdict is always set aside when it is contrary to the charge of the court (Jacobsohn v. Belmont, 7 Bosw. 14; Ayres v. O’Farrell, 4 Roberts, 668; Clark v.
      Richards, 3 E. D. Smith, 89). 2. So when there is no evidence to sustain it (Rathbone v. Stanton, 6 Barb. 141).

      Charles H. Bailey, for respondent.
    I. A landlord or reversioner cannot recover against his own tenant, lawfully in possession, for altering the condition of the leasehold premises, on any other ground than that of waste (Livingston v. Hayward, 11 Johns. 429 ; Livingston v. Mott, 2 Wend. 605). To sustain this action he must show an injury to the freehold or reversion ; in other words, an injury to his own estate (Addison on Torts, 309-312). The English law of waste, though stricter than our own, has not gone further than to declare that substantial alterations in the form and arrangement of a house, so that it is no longer the same house, is per se an invasion of the proprietary rights of the landlord or reversioner. Such would seem to be the law here also ; and the illustration of the doctrine furnished by a case, is the changing of a dwelling-house into a warehouse (Douglas v. Wiggins, 1 Johns. Ch. 435). Alterations of a less extent are not necessarily acts of waste. Accordingly, it has been held in England, that where a lessee opened a new door in a house, whereby the house was not in any respect weakened, or injured, it was a question for the jury, whether there was or not any injury to the rights of the reversioner (Young v. Spencer, 10 B. & C. 145). In our own courts also, the question in such cases has been made to turn on the point of damage or no damage. “ The very term waste,” says Justice Marcy, “implies the idea of detriment to the landlord or reversioner. Without damage, it would seem there could be no waste” (Jackson v. Tibbitts, 3 Wend. 341; Addison on Torts, 280 note [m]). “If the plaintiff complains of the removal of doors and partitions in the house, he must show that the alterations made were of a permanent character, making a real change in the form and arrangement of the building, or that they deteriorated'the property” (Addison on Torts, 313).
    II. It is not denied there may be acts on the part of the tenant, which imply damage to the freehold, and are per se acts of waste; such as cutting down timber or ornamental trees, taking down buildings or completely changing their character, converting a furze brake kept for game into pasture land, &c., &c. But minor alterations made by the tenant of a building occupied by him, in order to make it more convenient or useful in respect of the very purposes for which it was designed and let, are not in themselves waste. To be so they must be injurious to the freehold; and whether or not they are so injurious is a question of fact for the pry.
    III. In this case the question was so submitted with remarks more favorable to the plaintiff than he was entitled to, and the jury have found for the defendant. The evidence fully sustains the verdict.
    IV. A new trial will not be granted on the ground that the verdict is against the weight of evidence, or contrary to the law and evidence, except on condition of payment of the costs incurred ; and where the court can see that such costs will probably equal or exceed the damages which the plaintiff may recover, a new trial will be refused (Graham on New Trials, 603 ; Exp. Bailey, 2 Cow. 479).
   By the Court.—Curtis, Ch. J.

There was a conflict of testimony between the witnesses, as to whether the replacing of the partitions, and the restoration of the building to its former condition, would cost $35 or $90. The defendant claimed that his change was a benefit to the plaintiff.

Henry Immen, from whom the plaintiff received a deed of the building April 25, 1874, testified that about February, 1874, he let the premises to the defendant, who had possession under the lease when the building was conveyed to the plaintiff, and has since continued in such possession. He also states, that he, while owner, gave the defendant permission to remove the partitions in question. The lease is not in evidence, or shown to have been reduced to writing, and it is not clear from the case whether this permission was a provision of the original lease, or subsequently granted. But there is no question raised, as to the fact of such permission being granted by Mr. Immen, and that the defendant told the plaintiff about May 1 or 2,1874, that he was about to remove the partitions, and that the plaintiff did not when thus informed in such conversation with the defendant, raise any objection to his doing so. The defendant removed the partitions about a week after this, the same evening that he was previously told by the witness Petty, that plaintiff desired him not to remove them until he had seen him. The defendant testified that he “ had nothing to do with Petty,” and appears not to have recognized him or known him as authorized by the plaintiff to act in the matter.

The questions arising upon the issues were passed upon by the jury, under a charge which affords no ground for complaint or exception on the part of the plaintiff.

It is evident the court, in its charge, viewed the question of damages, as one where the jury were to assess the amount between $35 and $90, or to determine whether these amounts were exaggerated. There were two questions presented to the jury by the evidence for their consideration. The first, was whether permission had been given to the defendant to remove the partitions, and the second was whether such removal caused any damage.

The evidence was such, that the jury might conclude that there was a license either in the lease, or subsequently from the former owner to the defendant, to make the change, which was binding upon the plaintiff as a subsequent grantee or recognized or ratified by the plaintiff when he came into possession. This permission was distinctly shown by the former owner, when he testified as to the letting, and without objection.

The evidence is not of a character to call for the granting of a new trial, on the ground that no damages were found by the jury. The damages, if any, were trifling, and in a suit brought where the costs are much greater than the pecuniary amount involved in the controversy, the court cannot entirely overlook the maxim De minimis non curat lex (Exp. Baily, 2 Cow. 479).

The questions of fact were within the province solely of the jury, and the judge did not err in denying the defendant’s motion to set aside the verdict on the ground that it was in conflict with the charge and the evidence.

The jury had a right, in determining the question of damages, to look beyond the mere evidence of the cost of restoration. If they found for the defendant, when they should have found nominal damages for the plaintiff, it would furnish no ground for a new trial (Stevens v. Wilder, 42 N. Y. 351 ; Devendorf v. Wert, 42 Barb. 227).

The judgment and the order denying the plaintiff’s motion for a new trial appealed from, should be affirmed.

Sanford, J., concurred.

Freedman, J. (Concurring).

The defendant was lawfully in possession of the premises under a lease which had not expired. The action to recover damages for the removal of the partitions was therefore analogous to the former action for waste. To sustain such action, plaintiff must show, an injury to freehold or reversion, or, in other words, to his own estate.

There was evidence that should have been submitted to the jury, upon which the jury might have found a license. But that question was not submitted to them, the court holding, in effect, but erroneously, in my judgment, that, as matter of law, no license had been shown.

The case was submitted to the jury on the theory that the plaintiff was under all circumstances entitled to some damages. They were instructed that, if the act complained of constituted a single trespass, which did not injure „the building permanently, the plaintiff was to be paid just simple damages. If, on the contrary, it affected the building permanently, then the court might treble the damages as found by the jury.

As to the damages to be found they were charged as follows:

Now, in order to come to a conclusion of what the plain, simple damage had been in the removal of these partitions, you. will take into consideration the plaintiff’s witnesses. They have given you the damage in the neighborhood of $90. Then you have to turn and look at the defendant’s witnesses, and they have given you $35 or $36. It is for you to say which of these are right, and it is your province to say that both are exaggerated,—on the one hand too much, and on the other too little.”.

And finally they were told to render a separate answer, either in the affirmative or negative, as to whether' or not the removal of the partitions caused permanent ór lasting damage.

The jury found that no damage whatever had been sustained, and they rendered a verdict for defendant.

This verdict was to some extent against the charge of the court, but I am not prepared to say that it was against evidence. The sum of §90, named by plaintiff’s witnesses, and the sum of $35 or $36, named by defendant’ s witnesses, represented their respective opinions as to the cost of the restoration of the partitions. But the jury, in determining the question of damages, had a right to look beyond the evidence of the cost of restoration. Alterations are not necessarily acts of waste. In some instances they may even be, as is claimed by the defendant to have been in this case, a benefit to the estate. Nor did the plaintiff claim to recover for the mere value of the materials which had composed the partitions.

Inasmuch, therefore, as the manner in which the case was submitted to the jury was more favorable to the plaintiff than he was entitled to, and the jury, notwithstanding such fact, have found that he sustained no injury, the controversy should not be reopened. The trial judge seems to have entertained the same view, for he denied plaintiff’s motion to set aside the verdict and for a new trial.

For the foregoing reasons, the judgment and order should be affirmed, with costs.


author: By the Court.—Curtis, Ch. J.

text:
    WILLIAM A. LEONARD, Plaintiff and Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant and Respondent.
    RAILROAD COMPANIES, THEIR DUTIES AND RESPONSIBILITIES.
    Negligence; when the question of, should be submitted to the JUK7.

    Although the general rule is that a person approaching a railroad crossing should use both eyes and ears to discover and avoid an approaching train, there may be circumstances, or a state of facts, existing in some eases, where the most vigilant exercise of these organs will fail to wgrn and protect him, and in such cases the law does not charge a person with contributory negligence.

      M. g., the present case, where another long train of cars was passing in an opposite direction, and making a great noise, tending to show that if the bell of the train by which the injury was committed had been rung, the person injured could not have heard it.
    Other instances: As where the noise was caused by a wagon, or by a steam saw-mill, or by falling water, or by another train (Davis ». H. Y. 0. & H. R. R. R. Co., 47 K 7. 403; Richardson ». Same, 45 Id. 849; Ingersoll «. Same, 6 N. 7. Supreme Court [71 <& Cl] 416).
    In cases like the present one, the law requires the exercise of such a degree of care as prudent persons, knowing the danger to be encountered, and giving attention to their safety, would me to shield themselves from danger, and the question whether a person crossing a railroad track is negligent in not looking or listening for an approaching train, and whether he could have stopped in time to avoid the danger, are questions for submission to the jury (Weber ». H Y. 0. & II. R. R. R. Co., 3 N. 7. Weelckj Dig. 472; and the case of Sehatter ®. Gardiner, 47 N. 7. 402, cited therein).
    In this class of cases, when the conduct of the plaintiff is mixed with, and dependent upon, the acts of the defendant, and upon the surrounding circumstances, the questions of negligence fairly belong to the jury, in its general consideration of the whole facts of the case, and. should be submitted to them (Cases referred to in support of this point: Borst z>. L. S. & M. S. R. Co., 4 Hun, 349, affirmed by court of appeals, June, 1876 ; Thurber v. Harlem B. & F. ,R. R. Co., 60 1 E 331; Ingersoll v. H. Y. C. & H. R. R. R. Co., -6 W. 7 Supreme Court, 419). The effect of .these last decisions cited is not wholly in accordance with the mlings of this court in Sutherland v. H. Y. C.&K R. R. R. Co., 41N. 7. Superior Court (9 J. <&S.) 17.

      Held, that in this case, the questions of negligence were pure questions of fact, that should have been submitted to the jury.

      A railroad company operating trains upon a road owned by another company, is liable for negligence in running its trains thereon, and for the negligence of the flagmen stationed at the crossings, and for other servants or employees engaged in the signal service of that road. It is immaterial, so far as the public or the person injured is concerned, to whom the road or its signal service or other appurtenances that are in use at a crossing belong. The duty that there shall he no negligence in the premises devolves and rests upon the company running the trains by which a person is injured (Michigan Central R. R. Co. y. Kunonn, 39 III. 373; Clement y. Canfield, 3S Vt. 303; Wyman y. P. & K. R. Co., 46 Maine, 163; Webb y. Same, 57 Id. 117).
    Before Curtis, Ch. J., and Sanford, J.

      Decided May 8, 1877.
    This was an appeal from an order denying a motion made at the special term on a case for a new trial.
    This action was brought for the recovery of §50,000 damages against the defendant for injuries sustained by the plaintiff, in being run over by defendant’s cars, on June 17, 1874, at the corner of Fifty-seventh street and Fourth avenue, in the city of New York.
    The answer admits the incorporation of defendants, denies the remaining allegations of the complaint, and ■ alleges contributive negligence on the part of the plaintiff.
    At the time of the injury, parties were engaged in sinking the railroad tracks through Fourth avenue in that city, and for that purpose had removed the tracks from the position formerly occupied in the center of the Fourth avenue, and placed them upon the extreme west side of the avenue, the western track being in fact, upon the west sidewalk, and the other occupying a position in the avenue close to the curb.
    The excavation of the avenue progressed in sections, and at the time in question, one excavation commenced north of Fifty-seventh street, and extended southerly about half the block between Fifty-seventh and Fifty-sixth streets.
    This excavation was some fifty feet wide, and over it at Fifty-seventh street had been thrown a flat temporary bridge to allow the "public to cross the avenue during the improvement.
    The bridge was just long enough to span the excavation, and its west end lapped upon the bank and came within thirty-two inches of the east railroad track.
    The material taken from the excavation was piled up to a considerable height around it, and that taken from the excavation above Fifty-seventh street had been piled in the avenue below Fifty-seventh street to such an extent that commencing at the south end of the excavation half way between Fifty-seventh and Fifty-sixth streets, the pile filled all the space of the avenue between the curb on the east side and the east track of the railroad on the west line of the avenue, and rose to the height of some fifteen feet, and extended southerly two or three blocks, and 'the space between the east track and the excavation was entirely filled up to the bridge, so that a person standing upon the bridge even on the west end of it could not see a train coming up on the easterly track.
    A railroad flagman, whose station-house was at the northwest corner, was employed to guard that street intersection, and to signal trains passing on the tracks, and teams, and persons desiring to cross the avenue. At the time of the accident the plaintiff was the publisher of a journal called the Time Table, and was living east of the Fourth avenue at the corner of Lexington avenue and Fifty-eighth street, and was crossing through Fifty-seventh street intending to stop 'at the defendant’s Grand Central Depot, to ascertain if any change was contemplated by the defendant in running its trains. He was in the habit of crossing the Fourth avenue almost daily, and knew the position of the tracks.
    Before reaching the bridge the plaintiff saw a train some distance above coming down from the north on the west track, and when he reached the bridge he intended crossing the tracks in advance of such train, and had time in which to do so, as he thought, but he was stopped at the west end of the bridge by the flagman, who signalled him to stop.
    The flagman then occupied a position in the middle of Fifty-seventh street just west of the west track, and was signalling this incoming train to some teams which were approaching, and when he saw plaintiff upon the bridge he signalled him personally to stop, and he did so at once, at the west end of the bridge.
    After stopping the plaintiff, the flagman turned his face northward towards the train approaching from that direction, and waved his flag in the usual manner, and as the train approached stepped upon the track in front of it and remained there a few moments, and as the train neared him stepped off the track in an oblique northeasterly direction, which brought him between the easterly and westerly tracks where he remained waving his flag till that train had' passed, -when he ceased all signals to the plaintiff, lowered his flag, and started off, trailing his flag on the ground.
    The plaintiff was watching both the train (from the north) and the flagman, and when he saw the first pass, and the latter cease his signals and trail his flag, he stepped from the bridge towards the track looking straightforward, and was instantly struck by the defendant’s train, that was going north from the depot on the easterly track, and thrown - thirty feet into the rocks, in the excavation north of Fifty-seventh street, receiving wounds and fractures permanently impairing his sight, hearing, and health. This train, by reason of the embankments and obstructions could not be, and was not previously seen by the plaintiff.
    The flagman did not signal the train from the south, and apparently did not discover its approach, any more than the plaintiff, although from the flagman’s position he could have seen it if he had turned his face in that direction.
    There is no proof'that the engineer of the southern train either rung his bell or blew his whistle, although it is possible had he done both, the sound would have been droWned in.the noise of the northern train, which was very long and made a great deal of noise.
    On these facts, the court nonsuited the plaintiff, and denied plaintiff’s motion to allow the case to go to the jury, to which decision and refusal the plaintiff duly excepted.
    The plaintiff moved for a new trial at special term upon a case and exceptions, and from the order denying such motion appeals to the general term.

      De Witt C. Brown (Edward Gebhard, attorney), of counsel, for appellant.

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

Though the court of appeals have held that every person approaching a railroad crossing should use both eyes and ears to discover any approaching train, there may be circumstances where the most vigilant use of these organs will fail to warn and protect.

The evidence in the present case shows that the plaintiff could not, in consequence of embankments and obstructions, see up or down the track, until he stepped on to it, between two and three feet from the west end of the bridge. There was no opportunity for him to look until he emerged from between the obstructions on to the track, and as he was in the act of so stepping forward, looking before him, he was struck and thrown into the excavation. hFo exercise of prudence would have enabled him to have looked up and down the track. In looking forward, as he stepped forward, he exercised such care as a prudent man ordinarily would exercise under these circumstances. To have looked into the embankments to the right and to the left as he stepped from the passage-way between them on to the track, would have been useless and imprudent.

The testimony also shows that the train of cars that was coming in from the north at that time, was a very long one, and made a very loud noise, and though there is no evidence that a bell was rung on the defendant’s train, the proof strongly tends to show, that even if it had been rung, the plaintiff could not have heard it. The law in a case like this does not charge a person with contributory negligence, where the surrounding and external circumstances are such that the senses of sight and hearing cannot be exercised. There are many instances in which these circumstances, as for example, the noise caused by a wagon, or by a steam saw-mill, or by falling waters, or by another train, have been recognized by the courts as a sufficient excuse for not hearing an approaching train (Davis v. N. Y. C. & H. R. R. R. Co., 47 N. Y. 403 ; Richardson v. Same, 45 Id. 849 ; Ingersoll v. Same, 6 N. Y. Supreme Court [T. & C] 416).

In the recent case in the court of appeals of Weber v. N. R. C. & H. R. R. R. Co. (N. Y. Weekly Dig. 472), it is held that the law requires, in cases like the present, the exercise of such a degree of care as prudent persons knowing the danger to be encountered and giving attention to their safety would use to shield themselves from danger therefrom, and that the questions whether a person crossing a track is negligent in not looking or listening while he is on the crossing, and whether he could have stopped in time to avoid the danger, are questions for the jury. The case of Schattler v. Gardiner, 47 N. Y. 402, is cited in the opinion in support of this ruling. In this latter case, where there were also obstructions to seeing and hearing, Grover, J., says: “ These questions upon the evidence should have been submitted to the jury.” The doctrine, that these questions of negligence in this class of cases, where the conduct of the plaintiff is mixed with and dependent upon the acts of the defendant and the surrounding circumstances, in most cases fairly belong to the jury in its general consideration of the whole facts of the case, is sustained in Borst v. L. S. & M. S. R. Co., 4 Hun, 349, affirmed by court of appeals, June, 1878. The same was also held in Thurber v. Harlem B. & F. R. R. Co., 60 N. Y 331. In a case similar to the present, it was held that the evidence of obstructions to the sight and hearing of the approaching traveler at the crossing, made his alleged negligence a question for the jury and their decision upon it final (Ingersoll v. N. Y. C. & H. R. R. R. Co., 6 N. Y. Supreme Ct. 419).

The effect of these decisions is not wholly in accordance with the rulings in Sutherland v. N. Y. C. & H. R. R. Co., 40 N. Y. Superior Ct. (9 J. & S. 17), which the defendant cites to sustain the dismissal of the complaint in the case under consideration.

In addition to these obstructions to sight and hearing, as bearing upon the question of the plaintiffs negligence, there were other facts shown on the trial of the case, which were also proper to go to the jury in its general consideration of the whole facts.

The evidence,shows, that the defendant was running its train at the intersection of the Fourth avenue and Fifty-seventh street, two thoroughfares in the heart of a great city, at a rate of speed that threw the plaintiff thirty feet when he was struck by it; and the witness Bessiga, who resided in the immediate vicinity, testified “ There were a great many accidents occurred there every day, and I don’t know whether I saw this particular one.” It also appears .that the plaintiff crossed there almost daily, and must have been conversant with the tracks and the service signals of the road, and that he was watchful and obeyed the danger signal of the flagman, when signalled to stop, and proceeded on when the signal was lowered, after the train from the north passed. All these facts tend to enlighten the minds of the jury in passing upon the questions of negligence, which in this case are pure questions of fact.

It is true, the defendant insists that it is not shown, that it was their flagman, or their road, but it admits that the train was operated by it, which inflicted the injuries upon the plaintiff.

There is no good reason why a railroad company,, operating trains upon a road owned by another company, should not be liable for negligence in running its trains. The exigencies of the protection of the public require that it should be amenable to the same laws and regulations that bind the owner, and the-courts have so held (McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522).

If the defendant operated this train on a road belonging to another company, and subject to the protection and signalling of this flagman, both as respects itself and the public at this crossing, it should be responsible for his negligence, for the same reason that it is protected by his care from liability, when persons cross the track, negligently disregarding his signals.

When various companies run trains over the same road in a large city intersected by the crossings of streets, the protection of citizens in the use of the streets should not depend upon inquiries to be made of the signalling flagmen of the road, as to which company-employs them, or whether they are duly authorized to signal danger or safety as this or that train passes. It must be assumed in such exigencies, that when a company chooses to run trains over a road guarded by flagmen, that it elects to be protected by these flagmen properly discharging their duties, and to be made liable in case they neglect them. No conflicting view would be consistent with safety, either to themselves or the public. The law does not give immunity from liability to a company operating its trains negligently, because it appears that it operates them upon a road and with a signal service that belongs to another company. As far as the person inj ured in passing over the crossing by such company’s train is concerned, it is imm aterial to whom the road or its signal service or its other appurtenances belong that are in use at that crossing. The duty primarily devolves upon the company running the train, that there shall be no negligence in respects to these matters as far as persons crossing are affected (Michigan Central v. Kanouse, 39 Ill. 272; Clemont v. Canfield, 28 Verm. 302 ; Wyman v. P. & K. R., 46 Maine, 162; Webb v. Same, 56 Maine, 117). It is apparent that without having a flagman at this intersection in question, the defendant was guilty of negligence in running a train at the rate of spefed this was run, which struck the plaintiff, and. even with a flagman it is questionable if the defendant was justified in running it at so high a rate of speed in a locality, when this class of accidents was of such frequent occurrence.

In Borst v. Lake S. & M. S. R. Co. (4 Hun, 349), it is held, that when a person waiting for an opportunity to -cross the track is signalled by a flagman stationed at the crossing, he has a right to rely on the flagman, and to suppose that he has performed his duty.

The evidence on the part of the plaintiff was sufficient to warrant the submission of the case to the jury, and the order appealed from dismissing the complaint should be reversed, and a new trial granted with costs to abide the event.

Sanford, J., concurred.


text:
    THOMAS M. TYNG, Plaintiff and Appellant, v. LUTHER R. MARSH, et al., Defendants and Respondents.
    PRACTICE; RULES OF COURT.
    Enforcement by order.

      Bule 10 of this court and 44 of general rules.

    The rules of the courts seek to secure cases and exceptions properly settled and definitely determined, as to their form and contents, before coming before the appellate courts for consideration, and to give all parties opportunity to have the questions brought up fairly and accurately for review.
    If a party appellant, prints, files and serves a case that is not the case as settled, a wrong is committed, and it is a necessary incident to the powers and jurisdiction of a court in the administration of justice, that it should have control over its files and records, to prevent their use wrongfully. And such control can be enforced by order as in this case, in conformity with rules 10 and 44.
    The authority and force of these rules was provided lor in section 470 of the Code, and in Laws of 1870, chapter 408, section 13. When the statutes or the rules of the courts do not cover a case, the rules of the court of king’s bench are followed (Dubois ». Phillips, 5 Johns. 335; Rule 97).
    Before Curtis, Ch. J., and Sanford, J.

      Decided May 8, 1877.

      Appeal from ah order made May 24, 1876, at the special term, that the plaintiff’s printed case be ordered off the files of the court, and that Ms case and exceptions be deemed abandoned, because not filed within the time, and as required by the rules, and practice, and order of the court.

      Robert L. Fowler, for appellant.

      Wm. F. Shepard, for respondents.
   By the Court.—Curtis, Ch. J.

Previous to the making of the order appealed'from, the plaintiff was by order required to file Ms case as settled, within a certain time,‘or that it should be deemed abandoned. The order also required that he should procure the case as settled to be engrossed or printed.

„The plaintiff has printed, filed and served a case, in which he has omitted to insert certain exhibits that were in the case as settled, and which is in other respects a departure from the case as settled.

The defendants charge that the omitted exhibits are documents made by the plaintiff, and are material in the action, both as contradicting the plaintiff’s oral testimony, and on the general questions of the case, and that they were offered in evidence by the defendants, and they aver, that they believe such omission was intentional on his part.

The plaintiff responds to this, by saying that he understood that the exhibits which were not printed in the case were omitted in accordance with the defendants’ stipulation. If the plaintiff thus misunderstood this stipulation and was misled, he should have •applied without delay by motion to the court for relief, ■and for leave to correct the case as printed, served and filed.

The chief point that the plaintiff urges is, that the special term had no power to declare the case and exceptions abandoned, or to order the printed case off the file.

The rules of the courts seek to have cases and exceptions settled and definitely determined, as to their form and contents, before coming before the appellate courts for consideration, and also to give all parties an opportunity to have the questions brought up fairly and accurately for review. If a party appellant chooses to print, file and serve a case, that is not the case as settled, it is obvious that a wrong is committed. It is a necessary incident to the administration of justice, that a court should have control over its files, so far as to- prevent their use thus wrongfully, and as is here claimed in bad faith, to prejudice a party in a suit.

The order that the case and exceptions be deemed abandoned is in conformity with the 44th rule. The authority and force of these rules in governing matters before the courts was provided for in section 470 of the Code, and in section 13, chapter 408, of the Laws of 1870. Where the statutes or their rules do not cover a case, the courts follow the rules of the king’s bench. (Dubois v. Philips, 5 Johns. 235; Rule 97). The order appealed from gives effect to the order of March 29, 1876, which, not having been complied with, or appealed from, became operative upon such non-compliance.

The papers on the appeal do not sustain the claim of the appellant, that the defendants’ objections are technical and unsubstantial, or that he offered to remedy the discrepancy between the printed case and the case as settled at any time before the defendants made this motion.

The order appealed from should be affirmed with costs.

Sanford, J., concurred.


text:
    WILLIAM S. KEILEY, as Receiver, &c., Plaintiff and Respondent, v. CHARLES DUSENBURY, Impleaded, &c., Defendant and Appellant.
    Receiver, &c., assignee for the benefit of creditors, &c. —Successor to, how appointed.—Money paid into court, protection of.—Effect of wrongful payment.—Parties RECOVERING THE SAME, ACQUIRE NO TITLE THERETO.-TRIAL BY JURY, WAIVER OF.
    Money paid into court and held in its custody, is a deposit of such a character that it is a stringent duty of the court and all its officers to protect- the same by all the lawful means within their power, from fraudulent diversion or misapplication.
    When a wrongful payment of money, in the custody of the court, has been procured by collusion or by fraudulent concealment or false representations, the parties to such acts, or those profiting thereby and obtaining the money, acquire no legal title to the same, and the person rightfully entitled thereto has his remedy by action to recover the money, &c., and in some cases, by proceeding summarily against the wrongdoers.
    The recitals in an ex parte order (directing the custodian of the money to pay the same), as to who is or who appears to be the person entitled to the same, do not protect the wrongful recipient of the fund from liability for the same to the person rightfully entitled to it, when the order has been procured by collusion or fraud practiced upon the court.
    Such an order has none of the elements to constitute a bar, as res adjudkata against the lawful claimant.
    The resignation of an assignee for the benefit of creditors must be made to the supreme court. Its acceptance and the discharge of the assignee from the trust, and the appointment of his successor, are all matters for the action of said court (1 S. S. 730, §§ GO, 70, 71; Leggett v. Hunter, 19 IV". Y. 459; Cruger v. Halliday, 11 Paige, 819; Thatcher v. Canda, 3 Keyes, 157).
    The property and trusts created bj'’ such an assignment cannot be transferred by the resignation of the trustee in favor of some one else, unaccompanied with the consent of the cestuis que trust or the order of the supreme court.
    A receiver is clothed with no powers to waive the equitable rights of the judgment creditors, for the protection of whom he was appointed.
    Where a party proceeds to a trial before the court without a jury, and without objection or a demand for a trial by jury, be must be deemed to have waived his rig]it to a trial by a jury, if any he had (Black ». White, 37 N. T. Superior lie-ports, 330).
    Before Curtis, Ch. J., and Sanford, J.

      Decided May 8, 1877.
    This is an appeal by the defendant Busenbury, from a judgment entered against him personally, for §3,076.50.
    It appeared at the trial, that on January 24, 1857, Peter Morris, John A. Morris, and James Gumming, became and ever since have remained, judgment creditors of Selah Hiler, one of the defendants, and that on November 7, 1873, by the order of the supreme court in a proceeding then pending, this defendant, Selah Hiler, became entitled to a certain fund or sum of §7,187, in the custody of the chamberlain of the city of New York, to be drawn out only upon the order of the court of common pleas.
    It further appeared that on November 7, 1872, an instrument purporting to bean assignment of this fund to one George W. Haight for the benefit of certain creditors, was executed by the defendant Selah Hiler.
    Upon application of the above named judgment creditors, who are not named in this assignment, the plaintiff, on December 19, 1873, was duly appointed receiver of all the debts, property, equitable interests, and things in action of the defendant Hiler, with leave to sue for and recover any of his estate. The plaintiff duly qualified as such receiver, and has taken the steps necessary to vest in himself as such receiver all the title and estate of Hiler to this fund of $7,187, which Hiler had on December 19, 1873.
    On or about January 8, 1874, this fund of $7,187 came into the hands of the defendant, Dusenbury, with notice that the judgment creditors above named claimed the whole or a part of the fund, and with knowledge that the plaintiff was appointed such receiver, with leave to sue for and recover this money.
    The testimony in the case does not show that Dusenbury received any direct assignment of this fund or the title thereto from any one, but he claims that his position is that of an assigmee under the assignment from Hiler to Haight, by the resignation of the latter in his favor. It appears from the testimony of Dusenbury himself that he received the entire fund or sum of $7,187, and there is no evidence that he has parted with any considerable portion thereof, except the sum of $1,000 to the defendant, Sackett.
    There is no evidence that the persons named in the alleged assignment assented to the removal or resignation of Haight, and there is testimony that one of them did not so assent.
    This action is brought by the. receiver to have that ' assignment set aside as void and fraudulent as against these judgment creditors, and that the defendants other than the chamberlain be made liable for the money received by each respectively.
    In October, 1873, Hiler was served with an order for his examination, and was examined at various times as a judgment debtor thereunder down to December 19, 1873, when the plaintiff was appointed receiver.
    On December 13, 1875, the defendant Hiler, while still forbidden to dispose of his property, and more than a year after he had executed the alleged assignment covering the fund to the defendant, Haight, obtained by S. H. Randall, Esq., his attorney, an absolute order, ex parte, commanding the chamberlain to pay this fund to Hiler himself. On the same day, and before the money could be drawn from the chamberlain by Hiler, the judgment creditors and real parties plaintiff in interest herein obtained an order to examine the chamberlain, and among other things forbidding the chamberlain to pay this money over to the defendant Hiler.
    On December 15, 1873, the defendant Dusenbury claimed this fund by S. H. Randall, Esq., the same attorney who two days before had obtained the order directing the chamberlain to pay this fund to the defendant Hiler, and the same day he obtained an order to show cause why the order restraining the chamberlain from paying said fund to Hiler or his order or to the defendant Charles Dusenbury, trustee, should not be vacated. This was obtained in part upon the affidavit of Dusenbury, saying he learned on December 13, that the attorney for the plaintiffs (the judgment creditors herein), had obtained a stay restraining the chamberlain from paying over the fund, which Dusenbury prays may be vacated. An affidavit of Mr. Randall was read on this application, stating he had been the attorney for the trustee Haight, under the assignment, from May, 1873, and that he was now the attorney for Dusenbury as trustee in whose favor Haight had resigned.
    Upon that motion the defendant Dusenbury sought a determination as between the judgment creditors and himself, as to the title to the fund in controversy, and his motion to allow the money to be paid to himself as trustee, was denied with costs, December 23,1873, and the order denying it was served on Dusenbury’s attorney the same day.
    The defendant Dusenbury appeared and opposed the motion of the judgment creditors for the appointment of a receiver, and filed his own affidavit, and the papers showing his alleged title to this fund in opposition, but the motion was granted, and the order continued the injunction restraining Hiler and his servants,, agents and attorneys from interfering with this or any property of Hiler’s.
    On January 7,1874, the defendant Dusenbury, acting through his attorney, S. H. Randall, Esq., obtained an ex parte order from the court of common pleas directing the city chamberlain to pay over this fund to himself. Under this last mentioned order, the chamberlain paid the fund to Mr. Randall, who at once paid it to his client.
    In applying for this order for the chamberlain to pay over the fund, the existence of the order of December 13, 1873, restraining the chamberlain from so paying it, and also the existence of the order of December 33, denying Dusenbury's motion to allow the fund to be paid to himself, was not disclosed to the court.
    On the trial at special term the court found that the alleged assignment from Hiler to Haight was made with intent to hinder, delay, and defraud the creditors, of the assignor Hiler, and these judgment creditors, Morris, Cummings and Morris, and that it was fraudulent and void; and that the defendant Dusenbury never became vested with the title of the money receive^ by him, as alleged trustee, from the city chamberlain ; but wrongfully, and fraudulently procured possession of the same, and that the plaintiff, as receiver, was entitled to a judgment against the defendant Dusenbury for the amount of the judgment, in favor of the judgment creditors Morris, Commings and Morris, against Hiler, with interest thereon and costs.
    From this judgment the defendant Dusenbury appeals.

      Hall & Blandy, attorneys for appellant; Ira D. Warren, of counsel.

      L. A. Gould, attorney for respondent; D. M. Porter, of counsel.
   By the Court.—Curtis, Ch. J.

The defendant Dusenbury has acquired his rights, if any, to the fund in question, in one of two ways. He either derived his right to it, or to the custody of it, tinder the order of the court of common pleas, made January, 1874, which recites that he appears to be the person having the legal title and right to the possession of it, and which also directs the city chamberlain to pay it to him ; or else he acquired it, under the assignment for the benefit of creditors made by Selah Hiler to the defendant Haight, November 7, 1872. Haight is claimed to have resigned this position as assignee in favor of the defendant Dusenbury.

Money paid into court, and held in its custody, and to be paid out upon its order, is a deposit of such a character,' that it is a stringent duty not only of the court but of each and all of its officers, whether they are attorneys, clerks, or receivers, to protect it by all the lawful means in their power from improper or fraudulent diversion, or misapplication. When a wrongful payment of money in the keeping of the court is procured by collusion, and by fraudulent concealment, or false representations, the parties to such acts, or those profiting by them, acquire no legal title to the fund, and the person rightfully entitled to it has his remedy by action, and in some cases by proceeding summarily against the wrong-doer.

The recitals in an ex parte order, as to who appears to be the person entitled to the fund, and the direction to the custodian of it, to pay it to such person, -when the order is procured by collusion and imposition upon the court making the order, do not protect the wrongful recipient of such fund from liability for it, to the person rightfully entitled to it. An order of this character, made without notice, has none of the elements to constitute a bar, as res adjudicata against the lawful claimant.

On December 19, 1873, the plaintiff was appointed receiver of all the debts, property, equitable interests, and things in action of the defendant, Hiler, under proceedings supplementary to execution. This appointment was made upon the application of these judgment creditors, and he thereupon duly qualified as such receiver, and became vested with the right to the fund in question, subject to the rights, if any, of the defendant Dusenbury.

On January 7, 1874, the defendant Dusenbury, through his attorney, Mr. Randall, applied to the court of common pleas, for the order directing the fund in court to be paid to him. At the time of making this application, both he and his attorney had notice that the judgment creditors of Hiler claimed the whole or a part of this fund, and that the plaintiff was appointed receiver, with leave, among other things, to sue for, and recover this money. He also knew, at that time, of the existence of the orders of the court of common pleas of December 13, 1873, and of December 19, 1873, the first restraining the city chamberlain from paying it out, and the latter denying his own application that the fund be paid to himself. Yet, with a knowledge of the existence of these facts, both on his part and his attorney’s, and by going before a different judge from' the one who had made these existing orders, and by not disclosing their existence, this ex parte order for the payment to-himself of the fund, with its recital of his rights to it, was obtained.

The steps taken by this defendant, and his concealment of these previous orders, were obviously acts in bad faith on his part, for the purpose of getting this money into his possession, in the face of the existing orders of the court to the contrary. It is impossible in such conduct to see anything but a gross abuse, accomplished by wrongful acts, and which cannot in any aspect protect this party to it and the recipient of the. money thus obtained, from being made liable for it to the person lawfully entitled to it, as the receiver of the defendant Hiler, and the representative as such of these judgment creditors.

But a claim to this fund is made by the defendant Dusenbury, irrespective of such title as may have been acquired under the order that the city chamberlain pay jt to him.

It is suggested that he succeeded to an interest in it as the successor of the defendant Haight to the trust created by the assignment for the benefit of creditors, made by Hiler to the defendant Haight, and which the latter resigned in favor of Dusenbury, and that the latter is thereby made to stand in the same position as the original assignee. If this assignment to Haight had any validity, it is difficult to perceive how the execution of the trusts under it can be transferred by a mere resignation of the trustee, in favor of some one else, unaccompanied with the consent of the cestiois que trust, or the order of court who is thereupon to stand in his place. If Haight, the assignee, wished to resign, there should have been a petition to the supreme court, for the acceptance of his resignation, and a discharge from the trust, arid the appointment of the new trustee in his place' should have been made by the court (1 R. S. 730, §§ 69, 70, 71; Leggett v. Hunter, 19 N. Y. 459 ; Cruger v. Halliday, 11 Paige, 819 ; Thatcher v. Canda, 3 Keyes, 157). The evidence in the case fails to show that the defendant Dusenbury succeeded to the status of Haight as assignee under the assignment, or became legally vested with any rights or interests thereunder to the fund in question.

There is also evidence justifying the finding of the court, that this assignment was made by Hiler to delay and defraud creditors, and was fraudulent and void as against the creditors of Hiler. Being an insolvent judgment debtor, he assigned his property, this fund, for the benefit of some of his creditors, leaving out these judgment creditors, whom the plaintiff, as receiver, represents, and directed the surplus to be held subject to his order. This is a trust for the use of the assignor, and renders the assignment void upon its face (Goodrich v. Downs, 6 Hill, 438).

However inconsiderate and uncalled for were the statements made, probably in ignorance of the facts, by the plaintiff in respect to this fund, after the making of the order for its payment by the chamberlain, he, as a receiver and as an officer of the court, was clothed with no powers to waive the equitable rights of these judgment creditors he was appointed to protect, and which was also known to Dusenbury.

The case shows that the defendants proceeded to the trial before the court without a jury, and without objection to so proceeding, and without demanding that the trial be had before a jury. Under such circumstances and not raising any objection until the case came on for argument before the appellate court, the defendants must be deemed to have waived such rights, if any they had (Black v. White, 37 N. Y. Superior Ct. R. 320).

It was strongly pressed at the argument, that Dusenbury even if the assignment was held void, should not be subjected to personal liability for the funds he had paid out. If Dusenbury was the assignee, and acted in good faith, it would be in accordance with well settled principles that he should be thus protected. But, as it is impossible to come to the conclusion that he either was assignee, or acted in good faith, he is not entitled to such protection. Nor does the disposition of such portions of the fund as he has parted with, appear to be of a character that calls for the equitable interposition of the court on his behalf.

The judgment appealed from should be affirmed, with costs.

Sanford, J., concurred.