author: Parker, J.: Follett, J.

text:
    American Sugar Refining Company, Respondent, v. Charles H. Fancher, Assignee, etc., of Charles Burkhalter and Another, Appellant, Impleaded with Charles Burkhalter and Others, Defendants.

      Sale of goods induced by fraud — when it mop be rescinded by the vendor — when a constructive trust is not created as to the proceeds of the portion of the goods sold by the vendee prior to the rescission — between creditors equality is equity.

    A sale of goods induced by fraud, is voidable at the vendor’s option. On discovering the fraud, he may rescind the contract and reclaim the goods from the fraudulent vendee; and as an assignee for the benefit of creditors is not a bona fide purchaser, but takes only the defeasible title of his assignor, the vendor in such case may also compel a return of the goods from him.
    'To the equitable doctrine that, as between creditors, equality is equity, there is no exception founded on the greater supposed sacredness of one debt over another, or on the fact, that it arose out of a violation of duty, or that its loss involves greater apparent hardship.
    When a vendor waits until Ms vendee, having the title, possession and absolute right of disposition, as his own property, of the merchandise sold to him, has disposed of the same, and then, to obtain an advantage over the creditors of the vendee, who is insolvent and has in the meantime made a general assignment for the benefit of creditors, rescinds the sale induced by fraud, a constructive trust as to the proceeds of the sale of the portion of such merchandise, sold by the vendee prior to the rescission by the vendor of the original sale, will not be beld by courts of equity to have been created for the benefit of the vendor. Follett, J., dissenting.
    Appeal by the defendant, Charles IT. Fanclier, assignee, etc., of Charles Burkhalter and another, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in tlie office of the clerk of the county of New York on the 24th day of May, 1894, upon the decision of the court rendered at the New York Special Term adjudging that the plaintiff recover of the appellant $10,606.62, and that the appellant execute and deliver to the plaintiff an assignment of such of the outstanding accounts and bills belonging to the firm of Charles Burkhalter & Co. prior to its failure as may represent any portion of any merchandise mentioned in tlie complaint as having been sold and delivered by the plaintiff to the firm of Burkbalter & Co., and further adjudging that tlie payment of tlie same shall be a first lien and charge upon the moneys and assets in the hands of the appellant as assignee of the said firm of Burkhalter &
      Co. and upon the proceeds thereof; also an appeal from the interlocutory judgment entered in said clerk’s office on the 24th day of May, 1894, upon the report of a referee, with notice of an intention to bring up for review on such appeal said interlocutory judgment.

      Frederick Seymour, for the appellant.

      Frederick F. Kellogg, for the respondent.
   Parker, J.:

About a month before C. Burkhalter & Co. made a general assignment to this defendant for the benefit of creditors, the plaintiff sold and delivered to them on credit a quantity of sugar at the agreed price of $19,124.41. The sale was induced by false and fraudulent representations made by C. Burkhalter & Co. as to their solvency.

Twenty-six days after the execution of the general assignment, plaintiff served upon the assignee a notice in writing rescinding the sale on account of the fraud and demanding a return of so much of the sugar as was then in the possession of the assignee, and that he account for and deliver to the plaintiff the proceeds of such goods as had been disposed of.

All of the sugar except $2,400 worth was before the assignment •sold and delivered to the customers of the firm upon various terms of credit, which had not then expired, and that which remained unsold plaintiff obtained possession of, after serving the notice of rescission, through an action brought for the purpose. Thereafter this suit was commenced, which has resulted in a judgment against the defendant for $11,809.83, which is adjudged to be .a “first lien and charge upon any and all moneys and assets of every nature now or hereafter in the hands of the said defendant, formerly of the said firm of C. Burkhalter & Co.,” and the defendant is also directed to execute and deliver to the plaintiff instruments of assignment necessary to transfer all accounts and bills and claims receivable representing any portion of the merchandise sold by plaintiff to C. Burk-halter & Co.

The learned referee, in presenting the reasons which led him to make a report in favor of the plaintiff, laid down certain propositions as a foundation for liis argument which, do not admit of dispute/ viz.: A sale of goods induced by fraud is voidable at the vendor’s option. On discovering the fraud he may rescind the contract and reclaim the goods from the fraudulent vendee. As an assignee for the benefit of creditors is not a bona fide purchaser, but takes only the defeasible title of his assignor, the vendor may also compel a return of the goods from him.

It may be observed that the legal principles thus accurately stated were successfully invoked in the possessory action by means of which the plaintiff compelled a return of all the merchandise which Burk-halter & Co. had not sold prior to the assignment. But the sales actually made by Burkhalter & Co. were to bona fide purchasers, and the attempted rescission of the contract did not, therefore, affect the title of such goods. This embarrassing fact was met with the assertion that the plaintiff nevertheless had the right to repudiate the contract; to treat the proceeds as a substitute for the merchandise sold, and to pursue them, whatever their form, into the hands of the fraudulent vendee, and fasten its equitable claim upon them.

Our attention has not been called to any case which in terms either affirms or denies this position, and we are to inquire whether it is well grounded in principle.

The respondent contends that, notwithstanding the passing of the title to a purchaser for value and without notice, the fraudulent, vendee is chargeable in equity with the proceeds as a constructive trustee for the benefit of the defrauded vendor. That the trust arises ex maleficio out of the active fraud of Burkhalter & Co., and attaches to the property or its proceeds while in the hands of the vendee or his transferee with notice.

"Whether the effect of the fraud was to create an enforeible trust we must inquire, for otherwise the fraud would not operate to secure the plaintiff any preference over the other creditors of Burk-halter & Co. The equitable doctrine that as between creditors equality is equity, admits, so far as we know, of no exception founded on the greater supposed sacredness of one debt, or that it arose out of a violation of duty, or that its loss involves greater-apparent hardship.” (Matter of Cavin v. Gleason, 105 N. Y. 256.) In that case the debtor took nearly all of a trust fund and paid his personal debts with it, and the court held, that as to the amount thus-paid out, the trust creditor could have no preference.

The doctrine of that case is applicable to this one, and should perhaps be allowed to dispose of it without other discussion.

Burldialter & Co., uppn the delivery of the sugar to them in pursuance of their contract with the plaintiff, became vested with the title and possession notwithstanding the fraud, subject, however, to the right of the vendor to rescind the contract if it should so-elect. (Powers v. Benedict, 88 N. Y. 605; Goodwin v. Wertheimer, 99 id. 152; Wise v. Grant, 140 id. 593.)

Before the plaintiff concluded to rescind the contract, and reclaim the property, that portion of it, which is now the subject of controversy, was, in the usual course of business, sold and delivered to various customers of the firm, who were purchasers for value and without notice. It was then too late for the plaintiff to reclaim the property. The title and possession had become vested in persons protected as a rule of necessity from the original vendor. “A contrary principle would endanger the security of commercial transactions and destroy that confidence upon which what is called the usual course of trade materially rests.” (Boot v. French,, 13 Wend. 572.)

Then came the hour of the general assignment, which found the plaintiff apparently content with the then existing relation of debtor and creditor. By the instrument then executed all of the debtor’s property passed to the assignee for administration and distribution. The proceeds of the sugar, necessarily, passed with the other assets-of Burldialter & Co. It was their sugar when sold. ‘True, it might-have been otherwise had the plaintiff elected to rescind the contract and reclaim the property, but as it did not do this the vendees in selling it sold their own property, and the proceeds of it belonged to them when the assignment was made. Then the plaintiff’s relation to Burldialter & Co., as to the sugar sold, was that of a contract creditor, the only difference between it and the other creditors being that fraud entered into the making of the contract between it- and the common debtors.

But this fraud did not entitle it to preference over the other-creditors in the distribution of assets. (Matter of Cavin v. Gleason, supra.) The case would, we think, be well disposed of if discussion should be stopped at this point. But the elaborate and ■careful argument intended to make it clear that a trust in iwoitum ■was brought into existence by the fraud of the Burkhalters, renders it entirely proper that the question be given some part at least of the consideration in the opinion which it received in the consultation ■of the court.

It is not out of place to say here that the courts have less generously charged debtors as trustees ex maleficio in cases of personal property than they have in real estate.

Alexander, C. B., in Nemham v. Macy (13 Price, 749), said: “The cases of compensation in equity I consider to have grown out ■of the jurisdiction of the courts of equity, as exercised in respect of contracts for t'he purchase of real property, where it is often ancillary as incidentally necessary to effectuate decrees of specific performance.”

While the equitable remedy of following the proceeds of property doubtless arose in the manner suggested, it has been so extended as to include, in certain cases, the proceeds of personal property.

To these cases a general reference will be made later, but for the present it may be said that they emphasize the fact to be that the ■courts have not extended the doctrine so generally over personalty as over real estate. One reason for it is suggested in one of the' opinions in New Zealand, etc., Co. v. Watson (7 Q. B. Div. 374):

“ I do not desire to find fault with the various intricacies and doctrines connected with trusts, but I should be very sorry to see them introduced into commercial transactions.”

The leading authors who have attempted anything like a full discussion of the subject of trusts, in their consideration of trusts raised by construction of equity, without reference to any intention of the parties, either expressed or presumed, and known as constructive trusts, have made use of language in a general discussion of the subject broad' enough perhaps to include the situation presented by this record. Mr. Perry in his work on Trusts (§ 166) says: “ There is another large class of trusts which arise from frauds committed by one party upon another. Thus, if one party procures the legal title to property from another by fraud, or misrepresentation, or concealment * * * equity will convert such party thus obtaining the property into a trustee.” And in Pomeroy’s Equity Jurisprudence {§ 10o3) it is said: “ In general, whenever the legal title to property, real or personal, has been, obtained through actual fraud, misrepresentations, concealments * * * which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial' interest, equity impresses a constructive trust on the property thus-acquired. * * * ”

The same position is asserted and in substantially the same language in Bispham Equity (§ 91); Bigelow on Fraud (431); Story" Equity Jurisprudence (§ 1263).

But when these authors undertake to support the general rule thus laid down, by presenting the different classes of eases in which courts of equity have made use of the principle of a division between the legal estate in one and the equitable estate in another to construct a trust where none was intended by either party, they are obliged to, and do, cite cases growing out of transactions in real estate almost exclusively. A practical reason for the distinction, in addition to that suggested by the quotation taken from the New Zealand Case (supra), may be found in the fact that when contracts relating to, or conveyances of, real estate have been procured through fraud, resort must be had to the courts to set aside the contracts or to cancel the deeds, and reinvest the defrauded vendors with the title, whereas a sale and delivery of personal property vesting title and possession in a fraudulent vendee, may be rescinded by the vendor, whereupon the title is restored to him and the right accrues to recover possession of the goods.

While the cases cited by the text writers, as we have said, in the main involve questions relating to real estate, there are two classes of cases where the equitable doctrine of constructive trusts has been applied to personalty and the proceeds followed, neither one of which, however, includes a case like the one under consideration.

First. Where a person, having possession of the property of another towards whom he sustains a fiduciary relation, wrongfully disposes of it.

Second. Where there is an absence of title in the wrongdoer ab initio.

The first class extends to trustees, executory and administrators, directors of corporations, guardians, committee of lunatics, agents using money of their principals, partners using partnership funds, husbands purchasing property with money belonging to their wives, parents buying property of tbeir children, guardians of their wards, trustees of tlieir cestui que trusts, attorneys of their clients, and- all persons who stand in fiduciary relations towards others. The following cases cited on this appeal are within this class : Holmes v. Gilman (138 N. Y. 369); Knatchbull v. Hallett (L. R. [13 Ch. Div.] 696). Respondent strongly urges that the case of The Importers & Trader's Nat. Bank v. Peters (123 N. Y. 212) supports this judgment.

Everett Brothers, Gibson & Co. deposited with the Exchange Bank at Norfolk, a sight - draft on M. & Co., of New York city, indorsed by the drawer in the form in which by agreement and ■custom of the parties drafts for collection only were to be indorsed. The bank forwarded the draft to the Importers and Traders’ Bank, who collected it and placed the proceeds to the credit of the Exchange Bank. Immediately thereafter the last-named bank suspended payment, the fact being that it had been hopelessly insolvent for six months to the knowledge of all the managing directors. Both the receiver of the insolvent bank and Everett Brothers, Gibson & Co. claimed the proceeds of the draft from the Importers and Traders’ Bank.

The latter upon the grounds,

First. That the Exchange Bank was their agent only for the purpose of collecting the draft.

Second. That the agent had been guilty of fraud in not disclosing its insolvent condition.

The trial court found in substance the facts to be as claimed. The judgment was affirmed at General Term, and the Court of Appeals in its opinion says that there was some evidence to support the first proposition of fact and abundant evidence to support the second.

Under the rule which obtains in that court, therefore, both propositions of fact were necessarily treated as established. An express fiduciary relation between the bank and the drawer of the ■draft, therefore, existed. The drawer and the bank were principal .and agent, not vendor and vendee.

The Exchange Bank never had title to the draft. Everett Brothers & Gibson & Co. continued to be the owners of it down to the moment of its payment, when the proceeds were substituted in its place and the title thereto became vested in the original owner of the draft.

This case, therefore, comes under the classes already referred to.

Newton v. Porter (69 N. Y. 133) is within the second class.

The plaintiff’s bonds were stolen and afterwards sold by the thief, and it was held that the plaintiff could follow the proceeds received by the thief into the hands of a transferee with notice.

The title to the bonds was, of course, never in the thief, and he never acquired from the owner any right to use them as his own.

The plaintiff waived, not the theft, but the wrongful disposition of the bonds, adopting the thief’s act in disposing of them as his own act, and was, therefore, permitted to follow the proceeds.

Had the plaintiff rescinded the contract before the merchandise in question was disposed of, thus restoring to itself the title to it, and thereafter Burkhalter & Co. had disposed of it before the plaintiff could regain possession, a different question would be presented.

Instead, it waited until the person having title and possession and the absolute right of disposition of the merchandise as its own property, a right conferred upon them by the plaintiff’s own act, had disposed of it. Then, to obtain an advantage over the other creditors of the insolvent firm, it asked the court to spell out a constructive trust as to the property sold before rescission. A request neither supported by authority nor, as we think, by the rules governing the raising of trusts by construction of equity.

If the plaintiff’s position could be sustained then it would be difficult to conceive of a case in which a vendor might not come into equity and follow the proceeds of merchandise because the original contract was tainted with fraud.

The Court of Appeals said in Bosley v. N. M. Co. (123 N. Y. 550-555): “ It is not in every ease of fraud that relief is to be administered in a court of equity, and it is a well-settled rule that wherever a matter respects only a sale of personal chattels, and lies merely in damages, the remedy is at law only. If this had been a sale of a horse to the plaintiff procured by fraud it would not have been proper for her to resort to an equitable action for relief, because an action at law -would furnish her an ample remedy and give her all the relief to which she could, under any circumstances, be entitled.”

The judgment should be reversed and a new trial granted before another referee, with costs to the appellant to abide the event.

Yan Brunt, P. J., concurred.

Follett, J.

(dissenting):

I am unable to concur in the proposition that in case A. is induced to sell goods to B. by the fraud of the latter, who is insolvent and purchases with a preconceived design not to pay for them, and he sells the goods to others on credit — negotiable paper not being given for the price — and the sale is rescinded before the subsequent purchasers pay for the goods, that the price agreed to be paid cannot be reached by the defrauded vendor.

It seems to me that the jrrevailing opinion rests on two erroneous assumptions: (1) That the vendees of C. Burkhalter & Co. were purchasers in good faith <md for value. (2) That the referee ordered a general judgment against the assets in the hands of the assignee for the benefit of creditors.

The purchasers from O. Burkhalter & Co. were not purchasers for value. The referee found: And I further find that the said sales by Burkhalter & Co. were made to their customers upon terms of credit, some of which had not expired at the time of the making of the said general assignment.” This fact was stipulated on the trial, and it was stipulated that the avails of many of these credits came to the hands of the assignee. One who purchases on credit and neither parts with anything nor gives negotiable paper for the price, does not become a purchaser for value until he pays the purchase price. (Bump. Fr. Conv. [2d ed.] 483 and cases cited; Pom. Eq. Juris. § Y50 et seq. and cases cited.)

The referee did not order a general judgment against the assets in the hands of the assignee for the benefit of creditors. He held that the assignee was liable to account to the plaintiff for “ the proceeds of any of said goods and merchandise in whatsoever form such proceeds may be, and to the extent that such proceeds can be traced and identified, as may have come or may hereafter come into their possession or control.” The interlocutory judgment followed the decision, and ordered an accounting of the avails of the sugars sold on credit which came into the assignee’s hands. The plaintiff did not recover, nor did it seek to recover, sums not directly traceable to the assignee’s hands, and arising from the sales on credit. After the entry of the interlocutory judgment the litigants stipulated:

“ II. It is further stipulated that the amount for which the said defendant, Charles H. Fancher, assignee, etc., is compellable to account to .this plaintiff: under the said interlocutory decree, equals in all the sum of $10,606.62, and that the amount of the final judgment to be entered against the said Charles H. Fancher thereunder, equals the said sum.”

This stipulation was entered into to avoid the expense of an accounting, and upon the assumption that if the interlocutory judgment was right the plaintiff was entitled to recover that sum.

The defendant, having made this stipulation, cannot now urge the form of the judgment as a ground' for reversing it. I think the interlocutory judgment was right, and that it and the final judgment should be affirmed, with costs.

Judgment reversed, new trial ordered before another referee to be appointed by the order to be entered hereon* with costs to appellant to abide event.


source: Caselaw Access Project

author: Parker, J.:

license: Public Domain

text:
    John L. Douglass, Appellant, v. John F. Halsted, as Receiver of The Firemen’s Insurance Company, Respondent.

      Beal estate broker — commissions, when ecwned — whether there was an employment is a question of fact.

    In order to entitle a real estate broker to recover commissions upon the sale of real estate, it is necessary for Mm to find and to produce to Ms principal a purchaser ready and willing to purchase the real estate upon the terms of the owner.
    In an action brought to recover commissions, alleged to be due to a broker upon the sale of real estate, it is for the jury to determine, when the evidence is conflicting, whether or not there was an employment of the broker for the purpose of the sale of the real estate in question.
    Appeal by the plaintiff, John L. Douglass, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of October, 1893, upon the report of a referee, and also from an order made at the New York Special Term and entered in said clerk’s office on the 13th day of October, 1893, confirming the referee’s report.

      Thomas F. Wentworth, for the appellant.

      Frank D. Starges, for the respondent.
   Parker, J.:

The referee’s report, in pursuance of which the judgment now before this court was rendered, asserts among its findings of fact that the plaintiff Douglass was not the producing cause of the sale of certain premises, known as 153 Broadway, by the defendant to the Singer Manufacturing Company. And, further, that the plaintiff Douglass was never employed by the defendant to sell the property.

It was for the usual commissions of a real estate broker for such sale that the claim was made upon the receiver of the Firemen’s Insurance Company, the denial of which eventuated in this proceeding.

If these propositions of fact are well grounded, it follows that the judgment dismissing the complaint was proper.

The appellant, however, insists that they are erroneous, because, first, “ against the weight of evidence; ” and, second, “ contrary to the la/w of the admitted facts.”

We should have some difficulty in understanding what is meant by the second proposition, but for the argument elsewhere in the appellant’s brief, intended to make it appear that this case is fairly within rule of Lloyd v. Matthews (51 N. Y. 124).

It is asserted that the material facts correspond with those in Lloyd’s case, or at least that the defendant’s testimony touching the matter of the employment of the broker was in" each case the same in substance. After quoting from the opinion of the court reciting the testimony of the defendant in Lloyd’s case, the appellant continues : This statement the court held was sufficient to warrant the conclusion that he authorized them to find a purchaser, and report to him for the purpose of consulting in reference to and agreeing on the terms of sale.”

As the position of the court is stated in the brief, it would seem that it had asserted that the facts referred to required the legal conclusion that the defendant had employed' the broker to find a purchaser. We do not so understand the opinion. The clause quoted was but the ending of a discussion by the court intended to make it clear that the evidence in the case was such that there was presented a question of fact for the jury, whether the plaintiffs were employed by the defendant to make a sale of the property for which they claimed commissions. Starting out with this proposition the court followed it with a consideration of the testimony presented by both plaintiffs and defendant, and, therefore, when it concluded with the statement that certain evidence was sufficient to warrant the conclusion that defendant authorized plaintiffs to find a purchaser, it referred to the conclusion of fact which the jury had drawn from the evidence. For the trial court had submitted that question to them, and this part of the discussion was only for the purpose of making it clear that the court did not err in so doing.

In this case the question of fact as to whether there was an employment has been passed upon. It was the duty of the jury in Lloyd's case, said the court, to pass upon it.

It was likewise the duty of the referee in this case. And after a careful reading of the testimony we have come to the conclusion that the findings are sufficiently well sustained by the evidence to entitle them under the rules which obtain in such cases to stand unreversed by this court.

Upon the question of employment there can be no doubt but that the plaintiff made out a prima facie case.

But Mr. Halsted, then the president of the defendant, now its receiver, gave an entirely different version of the two conversations had with plaintiff which it was claimed resulted in a contract of employment. His testimony was as follows :

“ At that interview Mr. Douglass came in the office, came up to me, and said, ‘Mr. Halsted, is this property for sale?’ I said, ‘No, sir.’ He said, ‘It can be bought, can’t it?’ ‘"Well^’ I said, ‘ possibly.’ He said, ‘ "Well, if it was sold, how much would you ask for it?’ I said, ‘Not less than $200,000.’ He said, ‘You would as leave I sell it for you as anybody ? ’ I said, ‘ Mr. Douglass, the property is not offered for sale, and will not be put in anybody’s hands for sale.’ He said, ‘ I will come in and see you again.’ I answered, ‘ Don’t come in unless you have a definite proposition to make.’ That closed the interview.
“ The next one was in the latter part of October or about the first of November. I could not fix the date exactly; it was the same year, 1889. It took place on a Wall street ferryboat. I was going to New York from Brooklyn. He was going to Brooklyn. We met about the chains of the boat. I was coming to New York and Mr. Douglass was going to Brooklyn. He said, ‘Mr. Halsted, I am coming to see you about that property.’ I said, ‘ Don’t come unless you have a definite proposition to make, because I am very busy.’ He replied, ‘ If you are more busy than I you are a busy man.’ I replied, ‘ I am.’ He went over to Brooklyn; it was in the room of the ferry. I did not have any other interviews with Mr. Douglass on the subject. He did not bring a definite proposition to me for the purchase of the property. He never told me that he had a purchaser for the property. He never told me the name of the purchaser he had in view. Q. I" understand you to say these two comprised all the interviews you had with him on the subject prior to the sale of the property ? A. They did in relation to this property.”

This testimony, if believed by the referee, as it appears to have been, was sufficient to support his finding on the subject of employment. The other finding that Douglass was not the procuring cause of the sale of defendant’s property to the Singer Manufacturing Company is also adequately supported by the evidence.

That the plaintiff conceived the idea of combining and selling to one party No. 153, owned by the defendant, and Nos. 151 and 149, owned by other parties, is not questioned. But the president of the Singer Manufacturing Company, with whom all negotiations were conducted, utterly refused to entertain the proposition to buy either one of the properties unless he could buy all three. The plaintiff made considerable effort to accomplish that result. He found that he could buy two of the properties at figures which were acceptable to the president of the Singer Manufacturing Company, provided the third property could be purchased on a [proportionate basis.

The third property he could not buy. There were so many undivided interests in it that it was not practicable to secure a contract of sale for it. It seemed to have been so situated that the only way to accomplish a sale was the one ultimately adopted by one of the interested parties, who commenced a partition suit, which finally resulted in a sale of the property.

Now, it is apparent that during all this time the plaintiff did not bring to the defendant a purchaser. He could not do so because h& had none. He had a party who might in a certain contingency become willing to purchase the property. Who this party was he did not inform the defendant, or its president. In the meantime the president of the Singer Manufacturing Company, in a conversation with a friend, informed him of his attempt to purchase all three properties, and the failure, owing to the inability of the real estate broker (this plaintiff) to find parties who could give a good title to one- of the properties, and the friend replied that he knew a person who had the estate in charge, and probably could bring it about for him. And thus was started another attempt to acquire the three properties for the Singer Manufacturing Company, which in the end was successful. So, while the idea originated with the plaintiff, and considerable work was done by him, he was compelled by force of circumstances to stop before reaching the point at which he aimed, while another who originated nothing, but simply stumbled upon the plan, was enabled by a little labor to carry it into execution, and receive all the commissions.

While it is unfortunate for the plaintiff that he should hav.e been “ so near, and yet so far ” from the accomplishment of his purpose, the fact remains that the evidence justified the determination of the referee, that the plaintiff did not at any time find a purchaser and produce him to his principal, ready and willing to purchase the real estate upon its terms.

And thus much it was necessary for him to do in order to recover. (Gerding v. Haskins, 141 N. Y. 514.)

The judgment should be affirmed, with costs.

Tan Brunt, P. J., and Barrett, J., concurred.

Judgment affirmed, with costs.


text:
    Henry Peyser, an Infant, by David Peyser, his Guardian ad Litem, Appellant, v. The Coney Island and Brooklyn Railroad Company, Respondent.

      Negligence — ■presumption, on a motion by the plaintiff for a new trial, that the defendant was not negligent — credibility of witnesses, not determined on a motion for a new trial on the ground of newly discovered evidence — falsus in uno, falsus in omnibus.
    Wbere upon the trial of an action, brought to recover damages for personal injuries 'alleged to have been sustained by reason of the negligence of the defendant, the questions as to the defendant’s negligence and the plaintiff’s freedom from contributory negligence were submitted to the jury, and the jury found a verdict in favor of the defendant, the court, in passing upon the merits of an application made at the Special Term for a new trial on the ground of newly discovered evidence tending to establish the negligence of the defendant, will consider that the jury found that the defendant was not negligent.
    It will not be determined upon an application for a new trial of an action on the ground of newly discovered evidence, whether the new witnesses are entitled to credit or not. That question belongs to the trial court, and the motion must be disposed of on the assumption that the affidavits presented by the party moving for a new trial, in so far as they are not either in terms or substance contradicted, are in all respects true.
    If a witness upon the trial of an action testifies falsely in one particular, his testimony may be entirely disregarded by the jury.
    Appeal by the plaintiff, Henry Peyser, an infant, by David Peyser, his guardian ad litem, from an order of the Supreme C.ourt, made at the New York Special Term and entered in the office of the clerk of the county,of New York on the 22d day of January, 1894, denying the plaintiff’s motion for a new trial on the ground of newdy discovered evidence.

      Otto Horwitz, for the appellant.

      Wm. W. DyTcemcm, for the respondent.
   Parker, J.:

Plaintiff on Decoration Day, 1891, fell from the front part of the latter of two of defendant’s cars, which, coupled together, were making a trip from Brooklyn to Coney Island. The fall resulted in the loss of both his legs, which were crushed by the wheels of the car.

He attempted to convince tlie jury on tlie trial of the action that the injury was due to the negligence of the defendant.

The court submitted to them two questions: First. Was the defendant negligent ? Second. Did plaintiffs conduct contribute in any degree to the injury ?

The jury rendered a verdict in favor of the defendant, but whether it was founded upon a finding that the defendant was not negligent or that the plaintiffs negligence contributed to the result the record does not inform us.

Therefore, in passing upon the merits of the application made at Special Term for a new trial, upon the ground of newly discovered evidence not strictly cumulative, tending to establish the negligence of defendant, we must dispose of the question as if the jury found that the defendant was not negligent.

Whether the testimony, which the plaintiff by the affidavits of proposed witnesses shows he will be able to produce upon a new trial if one be granted, be of such importance as to make it the duty of the court, in the proper exercise of the judicial discretion committed to it in such cases, to grant the application, will be moré readily apprehended if the issues presented by the pleadings and some of the incidents of the trial be first brought to mind.

The cars of the defendant company were run by electricity, the motor car being in front and fully inclosed, as are street cars generally. It was connected with a second car, which was open and ordinarily called a summer car, the connection being made by means of chains. In the second car there was no electrical apparatus whatever, and it should not have received from the motor car any portion of the electricity conducted to it.

Plaintiff alleges in substance in his complaint that tlie injury was caused under the following circumstances : That when leaving the station at West Brighton the second car upon which he had a seat was crowded, so much so, that a number .of persons were obliged to stand up. That immediately in front of him was standing a woman past middle life, and as a matter of politeness he gave her his seat, and thereafter continued to stand until by a sudden jerk of the car he lost his balance, and was forced to grasp a railing upon the car for support. That his grasp, although strong, did not avail to protect him from injury, because, owing to the defective condition of the electrical apparatus employed to propel the cars, he received an electrical shock of such force that he was hurled from the car and under the wheels, which in passing over his legs crushed and severed them.

Upon the trial plaintiff’s individual testimony fully supported the allegations of his complaint. His testimony as to the reason why he was in a standing position, and the location of the spot on the car where he was standing at the time of the alleged sudden jerk, and the violence of the jerk itself, was corroborated by his companions, Ike Silver, Morris and Harris Goldstein and Samuel Spies. The last of the four witnesses named further corroborated him as to the direction in which he fell, and as to his claim that in falling he grasped an iron post which supported the roof of the car, with his left hand, and being swung around, seized the dashboard of the car with his right hand, but as he did so he lost the grip which his left hand had on the stanchion which supported the roof, and so he grasped the dashboard also with the left hand. Whether he received an electric shock .at that moment, as he testifies, was not of course corroborated by any one. He did not produce any evidence tending to show that the electrical apparatus was not in good working order, no evidence showing that it was so far out of repair that the dashboard of the trailing car, ujaon which he was riding, had become charged with electricity which was awaiting but the completion of a circuit to pass on.

The plaintiff produced two so-called experts, to whom hypothetical questions were put, based in part upon the testimony of the plaintiff, to the effect that he had received an electrical shock which loosened his hold and threw him to the ground.

Substantially, the evidence touching the presence of electricity in the trail car at the moment of his falling, consisted of plaintiff’s assertion that he did receive a shock.

In view of the fact that the defendant produced a number of experts, each of whom testified that it was an utter impossibility that he should have received a shock when he grasped the dashboard of the car, it is at once apparent that his statement that he did receive into, his body a current of electricity may have impressed the jury most unfavorably as to the reliability of his testimony. Upon the question of defendant’s negligence, the testimony of plaintiff’s witnesses that the car started so suddenly and with so violent a jerk as not only to cause the plaintiff to fall from the car but to occasion the fall of others, although without serious consequences as to them, entitle him to have the jury say whether the accident was thus occasioned. But the defendant asserted that plaintiff’s fall was not due to a sudden jerk of the car which caused him to lose his balance, but rather to a foolhardy attempt on his part to pass from the trail car to the motor car while they were in motion. So, when the jury came to pass upon this issue between the parties, if they were of the opinion that plaintiff’s testimony about receiving an electrical shock was untrue, .quite naturally his testimony to the effect that the car was started with a sudden jerk may have been regarded as of little or no value. Eor, if a witness speak falsely in one thing, his testimony may be disregarded by the jury in all things, a proposition too frequently stated not to have found lodgment in some of the jurors’ minds. If it were not a doctrine of the law, conscientious and experienced jurors would be likely to reach a conclusion not different.

The learned trial judge, in his charge to the jury, especially reminded them that they might consider his testimony in regard to an alleged electrical shock upon the “ question as to whether or not you will give credit to the plaintiff and his story.”

A further quotation from the charge of the court at this point will be of aid in measuring the value of testimony of the character of that which the plaintiff asks permission to prove upon a retrial:

“Upon the subject that I have referred to, the jerking of the car, and the position of the plaintiff, if you find that the plaintiff’s testimony and that of his friends is not reliable in that respect, then the defendant would necessarily be entitled to a verdict. If that is so the plaintiff has still failed to carry out the obligation imposed upon him of showing you how the accident occurred. But, if you find that the plaintiff’s version of that was right, then you come to another state of facts, or series of facts, in his story which you must believe before you can find a verdict for him, and that is, did he receive the electrical shock, for it is on the question as to whether ■or not you will give credit to the plaintiff and his story that all this matter of electricity in this respect is valuable. What does he say ? He says that he was there in that position in which he might have made himself secure, but for receiving a shock of electricity coming from the motor car. Well, gentlemen, you have heard the testimony on that subject, and I am going to leave that to you without much comment. Here is this motor car with certain equipment, with certain appliances, with certain machinery described to you by the witnesses upon the stand. You have heard how every particle of that car which could conduct electricity was constructed. You have heard how those beams which were non-conductors of electricity were placed, and from which it is claimed, on the part of the defendant, it would be simply impossible that electricity could get from that motor car into the rear car. You will take all the testimony into consideration and say whether or not it was possible that the electricity could escape under any conditions, according to the testimony for the defendant, and for the plaintiff, too, from that motor car to the dashboard of the other car.”

Now, it is quite clear that the learned court regarded plaintiff’s assertion, that he had received an electrical shock while his hands grasped the dashboard, as so thoroughly overborne by the testimony of the scientific witnesses produced by the defendant, as to really present no question for the jury in that respect. The shock was-alleged by the plaintiff as one of the acts of negligence on the part of defendant which contributed to his injury. If liis evidence tended to show; it, it was his right to have had that question pro-' sented to the jury for consideration. But it was not done, doubtless for the reason already suggested. Nor was an exception taken by plaintiff’s counsel to the omission of the court to instruct the jury that they should pass upon that question, probably for the reason that plaintiff’s counsel appreciated that his client’s assertion would necessarily be regarded by the jury as completely overthrown by the positive testimony of the scientific witnesses, that it was an impossibility that plaintiff should have received the shock to which he testified.

Now, plaintiff presented on the motion the affidavits of William Harnett and Charles H. McNary — affidavits which, if true, show that it was not only possible for the plaintiff to have received the shock to which he testified, but, further, that it was substantially inevitable that he should have received it.

Their affidavits were to the effect that the electrical apparatus was defective, but in wliat manner let the affidavit of McNary speak. Harnett’s affidavit is to the effect that he was on that day the conductor in. charge of the cars in question. That on a prior trip between Prospect Park and King’s Highway, but on the day of the' injury, he, while attempting to pass from the trail car to the motor car, received an electrical shock, which caused him to let go his hold. When he reached King’s Highway he reported the fact to Charles-H. McNary, the electrician in charge of defendant’s car works, whom he informed that he would not go on with the car, and that it was not fit to run, and I (he) left the car on the track in front of the power house.”

He made a like report to the superintendent of the defendant. And all of this took place before the injury of the plaintiff. McNary, defendant’s electrician, corroborates fully so much of Harnett’s affidavit as refers to the report made by Harnett to him. He further states that the car was “ turned in ” after the accident, and then he made an examination of it for the purpose of ascertaining how the trail car had become electrically charged, and “ found that the controlling cable of the motor car had come in contact with one of the armature leads of said car. The controlling cable is an endless wire running from one end of the car to the other around a sprocket wheel, and returning to the end from which it started. Hpon an examination of the car in question I found that the controlling cable was not properly insulated; I found that it had rubbed against the armature lead, which is the wire which carries the electric current to the armature, and the cable, thus rubbing against the armature lead, had worn through the insulation, and the car had become charged going in one direction. This armature lead is kept fastened to the floor of the car by cleats so that it cannot come in contact with the controlling cable; but when I examined the car immediately after it was turned in,’ as aforesaid, I found that these cleats had fallen out or broken off, and that said armature lead came in direct contact with the controlling cable, whereby the insulation on said armature lead had become worn'right through by the constant rubbing occasioned by said contact. After I discovered what caused the defect in the insulation-, I immediately repaired the same by winding insulating tape around the wire and replacing the cleats that had fallen out or broken off.

“ I am informed that on the trial of this action the plaintiff, Henry Peyser, testified that when he found himself falling outward toward the street, he grasped with his left hand the upright which was on the first seat to the roof of the car, and swinging around he grasped the front platform of the rear car with his right hand, that is, the dashboard, and having then lost his grip with his left hand, which was on the rod, he also grasped the dashboard with his left hand, and that while he was so failing, and while his hands were on the dashboard, he thought his feet were on the step of the car. He could not tell then whether his feet slipped off, or what next happened, all that he remembered was that he had received an electric shock.

Assuming all of this testimony to be true, with the defective insulation of said car as I found it, it would be inevitable that said plaintiff, in the position in which he testifies he was, would receive an electric shock the moment his foot or any part of his body came in contact with the drawbar, or any part of the iron work passing across the end of the trail car under the platform, which the drawbar slid back and forth on. This would be a necessary result of the fact that the motor car was charged, and the circuit would be completed through his body by his foot coming in contact with said iron, and having hold of the dashrail his body would carry the current to the brake chain, and so on to the ground. The electric shock which he would thus receive would necessarily cause him to relax his hold on the dashrail, as testified to by him, and cause him to fall to the ground.

“ The wearing off of the insulation, as above stated, was not and could not have been a sudden wearing off, but a gradual one, and it is certain that if the car had been examined prior to each trip that the defect would have been readily discovered.”

In the light of the statement which we have made of the issues and incidents of the trial, including the charge of the court, we have but to read the affidavits of Barnett and HcNary respecting the matters which they say they will testify to on a new trial, to realize that such testimony, if believed, will likely produce a different result. Defendant in its answering affidavits on the motion sought to discredit- ITarnett and McNaiy. McNary it claims to have discharged, but this assertion he denies in a rebutting affidavit.

Harnett it is admitted, resigned, but tlie defendant says of him that he now keeps a drinking saloon, where people of low order congregate.

Harnett admits that he sells liquors, but denies that either his house or his customers are of the character asserted in defendant’s affidavits.

Sullivan, defendant’s superintendent, denies that Harnett reported to him the condition of the car, as alleged in his affidavit, but, as was held in Upington v. Keenan, (21 N. Y. Supp. 699), Presiding Justice Van Brunt speaking for the court, the question of credibility is one for the jury.

Subsequently the Upington case was cited and followed in Phelps v. Delmore (26 N. Y. Supp. 279), the court saying: “ Whether such new witnesses are entitled to credit or not, ought not to be determined upon this motion. That question belongs to the trial court, as was very properly said in Upington v. Keenan."

In the disposition of this question, then, it will not be assumed that the witnesses speak falsely, nor will the question of their credibility be passed upon.

Practically, then, the question must be disposed of on the assumption that plaintiff’s affidavits, in so far as they are not either in terms or substance contradicted, are in all respects true.

If these premises be correct, it follows that plaintiff’s motion for a new trial, on the ground of newly discovered evidence, should have been granted.

As these facts were within the knowledge of defendant’s employees, and the witnesses to prove them were present in court during the trial in obedience to the direction of defendant’s officers, although net called, the plaintiff was not negligent in ^failing to discover the facts in time to prove them on the trial, and the plaintiff should not be charged with the costs as a condition of granting the motion.

The order should be reversed, with ten dollars costs and the printing disbursements to abide the event of the action, and the motion for a new trial granted.

Van Brunt, P. J., and Pollett, J., concurred.

Order reversed, with ten dollars costs and disbursements to abide the event, and motion granted.


author: Per Curiam :

text:
    Henry Pike, Jr., as Receiver, etc., of Hass & Pohalski, Plaintiff, v. Mechanics and Traders’ Bank, Appellant, Impleaded with Benoit Wasserman and Others, Respondents.

      Supreme Oowrt — power to stay one action pending the decision of another.

    ■The Supreme Court has the power to restrain the trial of one of two actions brought in that court until the final disposition of the other, if justice demands it.
    Appeal by the defendant, the Mechanics and Traders’ Bank, from .an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of July, 1894, denying the appellant’s motion ■for an injunction staying and enjoining the respondents from proceeding with an action .brought by them against the plaintiff and others, and dissolving a temporary injunction staying the proceedings in such action.

      Charles Strauss, for the appellant.

      Cratz JVathcm, for the respondents.
   Per Curiam :

Both being actions in the Supreme Courf, there seems to be no doubt but that this court has the power to restrain the trial of one until the final disposition of the other, if justice demands it. We think, therefore, that the order appealed from should be reversed ■and order granted restraining the trial of the action subsequently brought until the final determination of the action first instituted; ten dollars costs and disbursements of the appeal to the appellant.

Present — Yan Brunt, P. J., O’Brien and Parker, JJ.

Order reversed and motion granted, with ten dollars costs and ■disbursements to appellant.


author: Per Curiam:

text:
    Alonzo L. Tuska, Respondent, v. George B. Wood and Another, Appellants.

      Motion to change the venue of an action— the affidavits must state what a pa/rty can, not what he expects to, prove by the witnesses.

    Affidavits, used on a motion to change the place of trial of an action, which state that the moving party can prove material facts by the persons named therein, are sufficient, but affidavits stating that the moving party expects to prove such facts are insufficient, unless the affidavits disclose grounds showing that the facts can probably be established by the persons designated, either by positive averments made by the party or by the affidavits of the proposed witnesses.
    Appeal by the defendants, George B. Wood and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1894, denying the defendants’ motion to change the place of trial of the action from the county of New York to the county of Onondaga.

      G. A. Andrews, for the appellants.

      Vineent Hosemon, for the respondent.
   Per Curiam:

In view of the conflict as to the number of witnesses respectively to be produced upon the trial, and the bearing that their testimony would have upon the issues, it cannot be said that in determining that the convenience of witnesses would not be served by a change of place of trial, the judge at Special Term was guilty of a misuse of his discretion. Apart, however, from this, we think that the affidavits upon which the motion itself was based are clearly insufficient, within the case of Thurfjell v. Witherbee (70 Hun, 401, 402), wherein it is said: “ Affidavits to change the place of trial which state that the moving party can prove material facts by the persons named, are held to be sufficient, but affidavits stating that the moving party expects to prove such facts are insufficient, unless the affidavits disclose grounds showing that the facts can probably be established by the persons designated. This may be done by positive averments made by the party, or by affidavits of the proposed witnesses.”

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    Charles S. Fairchild and Others, as Executors, etc., of Mary A. Edson, Deceased, Respondents, v. Margaret B. Edson, Individually and as Executrix, etc., of Marmont B. Edson, Deceased, Appellant, Impleaded with Others.

      Appeals from judgments — time within which they must be taken as between co-defendants.

    Where, in an action against several defendants, the respective answers of the respective defendants are served upon the plaintiff only, and a single judgment is entered, in which the plaintiff has substantially prevailed, the service by the plaintiff of such judgment upon the several defendants sets running the Statute of Limitations in respect to an appeal, and one defendant cannot, after the expiration of thirty days from the time of the service upon him of a copy of the judgment, maintain an appeal as against a co-defendant.
    Appeal by the defendant, Margaret B. Edson, individually and as executrix, etc., of Marmont B. Edson, deceased, from a judgment of the Supreme Court In favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of December, 1893, upon the decision of the court rendered after a trial at the New York Special- Term, construing and determining the validity of certain provisions of the last will and testament of Mary A. Edson, deceased.
    The judgment was served upon all the defendants; some appealed and others did not, among which latter was the present appellant. The appeal thus taken having been disposed of, the present appellant sought to appeal as to her co-defendants, who made a motion to dismiss the appeal.

      J. L. Oadwallader, for the motion.

      T. Olevelcmd, opposed.
   Per Curiam :

We are of the' opinion that the time for the appellant to appeal has expired. More than thirty days have elapsed since the service upon her of the judgment by the prevailing party, and such appellant has taken one appeal which has been disposed of by the General Term. She now proposes to appeal as against a co-defendant, claiming that her time to take such appeal has not expired, because such co-defendant has not served upon her a copy of the judgment. We do not think that this is necessary, except in cases where cross-answers have been served as between defendants and judgment is entered in favor of one defendant against another: Where the answers are served only upon the plaintiff, and a single judgment is entered in which the plaintiff has substantially prevailed, it would seem that the service of such judgment upon all the defendants sets running the Statute of Limitations in respect to appeals. This was done in the case at bar, and it would seem, therefore, that the present appellant cannot maintain her appeal as against a co-defendant, the time for appealing generally having expired.

The case of Kilmer v. Hathorn (78 N. Y. 228) has been cited in support of the contention of the appellant herein. It is true that certain language was used by the court which gives .countenance to such contention; but no question similar to the one now before the court was involved or was determined by the court in that case.

The motion should be granted, with ten dollars costs.

Present — Van Brunt, P. L, Follett and Parker, JJ.

Judgment modified, as directed in opinion delivered on the previous appeal.


text:
    Emiline Lee, Appellant, v. Mary A. Timken, Respondent.

      Order on a demurrer, not wpjpealable.

    An order sustaining or overruling a demurrer is not appealable; the appeal must he from the judgment.
    Appeal by the plaintiff, Emiline Lee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleric of the county of New York on the 15th day of May, 1894, sustaining the defendant’s demurrer to the complaint.

      V. W. Kingsley, for the appellant..

      Geo. K. Mott, for the respondent.
   Per Curiam:

As we have had occasion to point out in the case of Sheffield v. Robinson (decided herewith), an order sustaining or overruling a demurrer is not appealable; the appeal must be from the judgment.

Appeal accordingly dismissed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., O’Brien and Follett, J"J.

Appeal dismissed, with ten dollars costs and disbursements.

      See Sheffield v. Murray, Impleaded, etc. (80 Hun, 555).


text:
    In the Matter of the Application of The Manhattan Railway Company, Respondent, v. Sarah E. Youmans and Others, Appellants, Impleaded with Mary C. Plunket and Others.

      Taxation of costs awm'ded by the court — remedy where the awa/i'd is improper.

    Where the costs of an action have been awarded by the court there is no power, upon a taxation of costs, to review and reverse the judgment. If the parties are of the opinion that, because of a stipulation, they should not be charged with costs, their only remedy is either by a motion to correct the judgment and an appeal from the order denying such motion if it is denied, or by an appeal from the judgment; so long as the judgment stands, directing the taxation of costs, under which the taxing officer acts, there is no power to review such action of the taxing officer and set it aside because of a fact which could in no respect have affected his action.
    Appeal by the defendants, Sarah E. Youmans, Emma L. Jacquelin and Emma J. Balen, from an order of the Supreme Court, made in the above-entitled special proceeding and entered in the office of the clerk of the county of- New York on the 14th day of June, 1894, denying their motion for a retaxation of costs.

      H. H. Forster, for the appellants.

      Wm. Jff. Golden, for the respondent.
   Per Curiam :

The judgment entered in this action appointing the commissioners, having adjudged that the plaintiff was entitled to recover the costs of the trial to be taxed by the clerk, left no discretion in the clerk as to whether costs were properly allowable or not. Costs having been awarded by the court, there is no power to review and reverse this judgment upon a taxation of costs. If the parties are of the opinion that because of the stipulation they should not be charged with costs, their only remedy is either a motjton to correct the judgment and an appeal from the order denying such motion if it is denied, or by an appeal from the judgment. As long as the judgment stands, directing the taxation of costs under which the taxing officer acts, there seems to be no power to review such action and set it aside because of a reason which could in no respect have affected his action.

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

Present — Yan Brunt, P. J\, O’Brien and Fo'llett, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Dwight, P. J.:

text:
    Citizens’ National Bank of Corry, Penn., Respondent, v. Abijah Weston and Another, Appellants, Impleaded, etc.

      Action on. a promissory note against matters and indorsers — severance thereof— lerne to serve a supplemental answer, when properly denied.

    Where the indorsers of a note are in default, in an action brought upon the same against the makers and indorsers thereof, the liability of the indorsers being several as distinguished from that of the makers, the plaintiff in such action is entitled to a judgment against the indorsers and a severance of the action to entitle him to proceed against certain of the makers, the answering defendants.
    In an action against the makers and indorsers of a promissory note, the judgment against the indorsers was properly entered, by default, but by mistake the judgment was entered as against one of the makers. The plaintiff, ■ upon learning of the error, obtained an order vacating the judgment as to such defendant.
    The answering defendants, after the entry of such judgment, moved for and obtained an order changing the place of trial of the action for the convenience of witnesses, whose testimony would bear only on the issues joined by the original answer, and would be entirely immaterial to the defense which it was proposed to set up in a supplemental answer which they asked leave to serve.

      Held, that a motion made by the answering defendants for leave to serve an amended answer setting up the recovery of such judgment was properly denied, and that such denial would be affirmed on appeal.
    Appeal by tbe defendants, Abijah Weston and another, from an order of the Supreme Court, made at the Cattaraugus Special Term and entered in the office of the clerk of the county of Cattaraugus on the 15th day of March, 1894, denyingthe defendants’ motion for leave to serve a supplemental answer.

      J. H. Waring, for the appellants.

      George Clinton, for the respondent.
   Dwight, P. J.:

The action was to charge the appellants, Abijah and Orrin Weston, and the defendant William W. Weston, as the makers of a promissory note, and several other defendants as its indorsers. The complaint alleged a co-partnership between the three Westons and that the note was made by them in their firm name of Weston Bros. The appellants, Abijah and Orrin Weston, were the only defendants who appeared in the action. They answered denying the existence of the co-partnership at the time of the execution of the note, and alleging its fraudulent execution and delivery by the defendant William W. Weston in the late firm name, and that the plaintiff took it with full knowledge of the facts so alleged.

' The indorsers being in default and their 'liability being several from that of the makers, the plaintiff was entitled to judgment against the former and a severance of the action to proceed against the defendants answering. (Code Civ. Proc. § 456.) In entering such judgment the attorney for the plaintiff, by inadvertence or mistake, included the defendant William W. Weston among the defendants against whom judgment was entered on the 20th day of December, 1893. He learned of his mistake on the fifteenth day^of February following, and thereupon applied to the court at Special Term to vacate the judgment against the defendant William W. Weston, which was done.

The proposed supplemental answer simply sets up the recovery of the judgment against the 'defendant William W. The motion for leave to serve it was denied at Special Term on the ground, among others, that the judgment so entered was absolutely void and, therefore, of no effect upon the rights of the defendants answering, and .that the proposed supplementary answer was inconsistent with the original answer. We are not quite prepared to say that either of these grounds was tenable. It is at least a disputed question on the authorities whether the judgment entered against one of the alleged joint debtors was absolutely void. (Orleans Co. Nat. Bank v. Spencer, 19 Hun, 569, and tbe cases cited.) Nor can we say tliat the two answers are altogether inconsistent with each other. The original answer denies the allegations of .the complaint upon which the existence of a joint liability of the defendants is sought to be established. The proposed supplemental answer would set up new facts which would avoid the joint liability if it ever existed.

But we think the motion was properly denied because the inclusion of the defendant William Weston in the entry of the judgment was merely inadvertent, and the judgment against him was vacated as soon as the mistake was discovered and before any jirejudice to the other defendants, the appellants here, could have resulted therefrom. Moreover, the papers opposing the motion show that after the entry of the judgment against William, the defendants answering moved for and obtained an order changing the place of trial of the action, for the .convenience of witnesses whose testimony would bear only on the issues joined by the original answer, and would be entirely immaterial to the defense proposed by the supplemental answer.

The defense so proposed is entirely without merit, and the discre* tion of the court was well exercised at Special Term.

The order appealed from must be affirmed.

Lewis, IIaigi-it and Bradley, LL, concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    William H. Smith, Respondent, v. Orrin Weston, Appellant, Impleaded, etc. First National Bank of Friendship, Respondent, v. Orrin Weston, Appellant.

      Fraudulent indorsement by one partner of a promissory note, outside the firm business— when the holder will be charged with, knowledge — when an action may be severed — opening of a default — when a defendant is estopped from setting up a

    The indorsement of a note with the Arm name by a member of such firm for a purpose outside the business of the firm, and after the dissolution thereof, and the delivery of the note to a person who has knowledge of such facts, renders the person receiving the note chargeable with notice of the want of authority of the partner making such indorsement to so indorse the said note, and also charges him with complicity in the fraud involved.
    In such a case the law will not lend its aid to the enforcement of the claim on the note against the innocent members of such firm, even as a punishment for their neglect to answer the complaint in an action brought upon such note, if such neglect can be reasonably excused, consistently with good faith on their part.
    It is only when the liability of two or more defendants, in an action brought against all the defendants jointly on a contract, is shown to be several and to bind only one — or less than all — of the parties sought to be charged, that judgment may be taken against those defendants who arc in default, the action be severed and the proceedings be continued against those who have answered.

      Semble, that it is a sufficient reason to justify the opening of the default of one of several defendants — where such defendant has a good defense upon the merits — that the defaulting defendant relied upon the assurance of his brother (who fraudulently indorsed a promissory/note, the subject of the action, with the name of the firm of which ho had been a member), to the effect that the balance due on the note would be paid before judgment could bo taken upon the same.
    Before the defendant in an action can be held to be estopped from setting up a meritorious defense thereto against the unjust claim of the plaintiff, it should appear that the plaintiff has been prejudiced by the loss of some substantial advantage which would have been his had that defense been interposed within the time prescribed by law.
    Appeal by tlie defendant, Orrin Weston, from an order of the Supreme Court, made at the Erie Special Term on the 19th day of December, 1893, and entered in the office of the clerk of the county of Erie denying the defendant’s motion to open his default and to permit him to defend the action.

      J. H. Waring, for the appellant.

      G. ¡S. Oarey, for the respondent.
   Dwight, P. J.:

The action was to charge the defendants, William W. Weston, Orrin Weston and Abijah Weston, as indorsers of a promissory note of $2,000, made by the firm of George Yan Campen & Sons, payable to the order of J. K. Yan Campen, and bearing, besides the indorsement of the payee, an indorsement in the firm name of “Weston Brothers.”

The complaint alleged that the firm so named was a co-partnership consisting of the three defendants; that they indorsed the note in their firm name, and that it was afterwards, and before maturity, duly transferred to the plaintiff for value.

All the defendants were personally served in the action about the 1st of February, 1893. The defendant Abijah, alone, answered the complaint; he denied that the indorsement in question was made by or for the firm of Y^eston Brothers, but alleged that it was made by the defendant William Yr. after the dissolution of the firm, and without the knowledge or consent of the defendant answering; that it was not made in the business of the firm, but solely for the accommodation of the makers of the note, and that the plaintiff took the note with notice of all those facts. On the trial of the issues thus joined the facts above stated were proved without contradiction and a verdict was directed for the defendant Abijah, and judgment was entered dismissing the complaint as to him. Immediately after the entry of that judgment the plaintiff caused judgment, for the amount of the note, to be entered, as by default, against the defendant William W. Weston and this appellant, and it is from the denial of the motion of the latter to open the default, as to him, that this appeal was taken.

The papers on this appeal show the same defense existing in favor of this appellant as that which has been established in favor of the defendant Abijah. That defense is ample and highly meritorious. The indorsement by William was a fraud on the other defendants, and knowledge that it was made outside the business of the firm, and after its dissolution, charged the plaintiff with notice of the want of authority to make it, and with complicity in the fraud involved. (Gansevoort v. Williams, 14 Wend. 138.) In sueli a case the law will not lend its aid to the enforcement of the claim even as punishment for neglect to answer, if sucli neglect can be reasonably excused, consistently with good faith on the part of the defendant. The statute expressly provides for opening defaults which are suffered through excusable neglect. (Oode Oiv. Proc. § 124.)

The excuse of the defendant here for not answering was that he was assured by his brother William that part of the note was paid already, and that the rest would be paid before judgment could be taken against him, and that he relied implicitly upon such assurance. We have no doubt that this excuse would have been deemed by the court at Special Term sufficient to justify the granting of the motion, but for a contention which seems to have been made on the pai’t of the plaintiff to the effect that the defendant is precluded by something in the nature of an estoppel from now making a defense in the action. The contention is 'based on the alleged fact that, at the time the default was suffered by the two defendants, the defendant William, whose liability is unquestioned, was responsible, and that if a judgment had been taken against him at that time it could have been collected, but that, relying upon the judgment to result from the default of the defendant Orrin, the plaintiff omitted to apply for the judgment which might have been obtained against William, and that since that time the latter has become irresponsible, and that the judgment now obtained against him is of no avail.

The most obvious answer to this contention is that the plaintiff could not have judgment against either of the joint defendants in default until the issues joined by the answer of the other joint defendant or defendants should be disposed of. It is only when the liability of the defendants is several, and the contract, though in form joint, is shown to bind only one — or less than all — of the parties sought to be charged, that judgment may be taken against those of the defendants who are in default, and the action be severed and proceed against those who have answered. (Code Civ. Proc. § 456; Brumskill v. James, 11 N. Y. 294; Pruyn v. Black, 21 id. 300.) This rule is perfectly well understood, and is not questioned by counsel for the plaintiff. But he urges that the issues in this action could have been disposed of, if Orrin had answered with. Abijah, without the necessity of a trial, viz., by the plaintiffs going into court and admitting the truth of the answer interposed, and consenting to judgment dismissing his complaint as to the defendants answering, and that thereupon he would have been entitled to enter judgment in his own favor against the defendant William.

The proposition is a novel one, there being, so. far as we know, no precedent for such a confession of judgment by the plaintiff in an action for any purpose; but we are not disposed to argue that it might not be done, or that the court might not thereupon giveleave to enter judgment against the defendant in default. But the trouble with the plaintiff’s contention is, that there is no evidence or reason to suppose that this course would have been pursued by the plaintiff, and the probabilities are to the contrary. The plaintiff has never admitted the truth of the defense in question, but, on the contrary, has contested it with the defendant Abijah, and put him to the proof of it before a jury, and has entered a judgment against this appellant which ignores the existence of any such defense. The mere possibility of his admitting the truth of that defense, involving as it did his own complicity in the attempt of William to defraud his brothers by the unlawful use of the late firm name, with the effect of releasing two perfectly responsible defendants in order that he might obtain a judgment against a defendant of, at least, very doubtful responsibility, was too remote and contingent to form the basis of an estoppel against this defendant. Before the defendant can be held to be estopped from now setting up his meritorious defense against the. unjust demand of the plaintiff, it should appeal1 that the plaintiff has been prejudiced by the loss of some substantial advantage which would have been his had that defense been interposed within the time prescribed by law.

But there is the further answer to the plaintiff’s contention arising from the proofs bearing upon the question of William’s responsibility at the time when this default occurred. We think the balance of proof is distinctly opposed to the theory that property of the defendant William would have been found, out of which to satisfy an execution issued on any judgment which might have been obtained against him after the expiration of the time of the appellant to answer herein.

We think the default of the appellant was reasonably excused and that no injustice is liable to be done by opening that default and permitting the appellant to answer as proposed, unless it may be by a possible augmentation of costs against the plaintiff which may be provided against by the order here. If the defendant Orrin had joined in the answer of his brother Abijah, or had answered separately to the same effect, in time, there would have been but one trial of the issues joined by both. Now, if the plaintiff still contests the defense, a second trial is necessitated. The order opening the default should, therefore, provide that, in case of a recovery by the defendant his judgment shall be without costs of the action, after notice of trial; and, further, that if the plaintiff elect to discontinue the action he may do so without payment of costs.

Lewis, Haight and Bradley, JJ., concurred.

Order appealed from in each case reversed, and the motion in each case granted, without costs of this appeal to either party, on condition that in case of recovery by the defendant his judgment shall be without costs of the action after notice of trial; also, that if the plaintiff elect, within twenty days, to discontinue as to the appellant, he may do so without the payment of costs.


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    In the Matter of the Judicial Settlement of the Accounts of Norman M. Allen, as Executor, etc., of Norman Howard, Deceased.

      Appeal from the decree of a Surrogate’s Court — only the part affecting the appellant will be considered — when children of a legatee dying in the testator's lifetime do not take ■— intention of the testator.

    Where an appeal is taken from certain portions of a decree of a Surrogate’s Court settling the accounts of an executor, and directing the distribution of the residuary estate of the testator, only those portions of the decree appealed from, in which the appellant has an interest, will be considered by the General Term.
    A testator directed, by his last will and testament, that, upon the termination of a trust estate thereby created, his residuary estate should go to his sisters and their heirs and assigns, and to the children of any deceased brother and their heirs and assigns.

      Held, that the son of a sister of the testator was not entitled to share in the residuary estate of the testator if his mother (the sister) was dead at the time of the making of the will.
    The principal thing to be ascertained in the construction of a clause in a will is the intention of the testator, which should be ascertained, if possible, from the plain import of the terms employed in the will.
    Appeal by Charlotte Kavanaugh, one of the legatees named in the last will and testament of Norman Howard, deceased, from that portion of a decree of the Surrogate’s Court of the county of Cattaraugus, made on the 1st day of March, 1893, and entered in the Cattaraugus County Surrogate’s Court, settling and allowing the accounts of the executor of the said deceased, and directing the distribution of the residuary estate of the said deceased, by which it was adjudged and determined that it was the design of the testator that the respondent Henry Milk should share in the residuum of the said estate, and that the amount paid to Emeline Parsell, a legatee, be charged to her individually, and that she was not entitled to the .same as executrix of Harry Howard, deceased.

      J. JE. JBixby, for the appellant.

      W. If. Henderson, for the respondent Henry Milk.
   Dwight, P. J.:

Two provisions of the decree are specified in the notice of appeal, only one of which has any effect upon the distribution of the residuary estate, so far as the sole appellant is concerned, and it does not appear that she has any interest in the question which arises on the other of the two provisions specified; whereas the residuary legatee, whose interest is directly affected by the last-mentioned provision, does not appeal from it, but appears generally as a respondent on this appeal. We shall, therefore, confine our attention to that portion in which alone, so far as appears, the ■appellant has any interest on which to base an appeal. That is the provision by which a share of the residuary estate is awarded to the respondent Henry Milk.

The facts bearing on this branch of the case are as follows: Norman Howard, the testator, died in 1866, at the age of twenty-nine years, leaving a widow but no children, a father, mother and three sisters. There were also living at the time of his death, and at the time of the execution of his will, a son of a deceased sister (the respondent ITenry Milk) and three children of a deceased brother.

By the second section of his will he gave the use of his farm, or —■ in case the farm should be sold under a power conferred upon his executors — the use of the avails, to his widow during her life- or one-lialf of such use in case she should marry again. He then made several pecuniary bequests and followed them by a residuary clause as follows :

Seventh. At the decease of my said wife all the rest and residue and remainder of my said estate, after paying the bequests before made, shall descend to my father, Harry Howard, if he shall then be living, and if he shall not be living at the time of the decease of my said wife, then the same shall descend to my mother, Delilah Howard, if she shall then be living, and if she shall not then be living, then the same shall descend to my sisters and their heirs and assigns, and to the children of my deceased brother and their heirs- and assigns. The children of any of my sisters or of my brother are only to receive the same share that my brother or sisters would receive if they were living at the decease of my said wife.”

The father and mother of the testator both died before the widow; and she died in 1890, leaving, surviving her, the other-relatives of the testator as at the time of the execution of his will, viz., three sisters, the son of the deceased sister and the children of the deceased brother.

The learned surrogate held and decided that the residuary estate should be divided into five equal parts to be distributed, one part each to each of the three sisters, and one part to the son of the deceased sister, Henry Milk, and one part to be divided among-the three children of the deceased brother.

"We think the decree in this respect was erroneous for. the reason that the case of the sister already deceased at the date of the will was not. included within the terms of the will or the intention of the testator as expressed in the seventh or residuary section above quoted. The language is to my sisters and their heirs and assigns, and to the children of my deceased brother and their heirs and assigns.” It is evident that the word “ sisters ” as here used did not include the sister then deceased, because the gift was to them, the words “ and. ■their heirs and assigns ” being words of inheritance merely. He did not give a share of his property to his deceased brother and his lieirs and assigns, which he might as well have done as to include his deceased sister among those who were the objects of his bounty. The gift is to his sisters and to the children of his deceased brother, all persons in being at the time his will was made; and .by the ■subsequent clause of the same section, as already quoted, he made provision for the case which would arise if any of his sisters should ■die after the execution of the will and before the death of his widow, to the effect, viz., that their children in such case should take per stirpes and not per capita.

Of course the one thing to be ascertained, if possible, in the construction of the clauses of this, as of any other will, is the intention of the testator, and this first of all, if possible, from the plain import of the terms employed ; in this case it seems scarcely necessary to go beyond that first canon of construction. Here the testator ¡gives a share of his residuary estate to each of his sisters —■ of course his living sisters, he cannot give to any others — and to their heirs ■■and assigns. These are the only sisters mentioned, and there seems to be no language employed which can include the deceased sister or her son. The deceased brother is mentioned as such, and the gift is not to him and his heirs and assigns, but to his children and their heirs and assigns. Had the son of the deceased sister been included in the purpose of the testator, he might as easily have been described as such.

The son of the deceased sister not being within the plain .import of the terms of the will, he cannot be brought within its provisions by virtue of any presumption arising from his relationship to the testator. All the authorities referred to by the learned surrogate and by counsel in support of a presumed disinclination to disinherit the heir relate to the case of children or other direct descendants, and none of them to collateral relatives. Such are the cases of In re Brown (93 N. Y. 299); Low v. Harmony (72 id. 408); Scott v. Guernsey (48 id. 106), and Matter of Paton (111 id. 480).

Nor is there anything in the evidence aliunde the will itself which aids the contention of the respondent. There is but little of such evidence, but it appears that his deceased sister, the mother of Henry Milk, died more than twenty years before the will was made, and when the testator was a child of not more than eight years of age, and that her son, Henry Milk, was a man of nearly, if not quite, the age of the testator, and the father of a son whose age is not stated, in whose favor the testator made a pecuniary bequest. These circumstances may or may not account for the discrimination between Henry Milk and the children of the deceased brother. It is sufficient to say that they are not inconsistent with the discrimination which is actually made by the terms of the will.

The proposition in the argument of counsel, that the children of the deceased sister, as well as of the deceased brother, take as primary legatees, and not by substitution or representation, is entirely untenable. It would not have been true of the children of either of the three living sisters had either of them died before the death of the widow. Those living sisters were by the plain terms of the will the primary legatees of three shares of the estate, and their children, had any of them died, could have taken by no other means than by substitution or representation, and that per stirpes as indicated by the last clause of section 1 of the will; and in regard to the son of the deceased sister, we have stated our reasons for the conclusion that he is neither by original mention nor by substitution or representation embraced wdthin the provisions of the will.

These views lead to a reversal of that part of the decree which awards a share of the residuary estate to the respondent, Henry Milk, and its affirmance in all other respects. This will result in a modification of the. decree in such manner as to give to each of the living sisters one-fourth of the estate and each of the children of the deceased brother one-twelftli.

Lewis, Haight and Rradlet, JJ., concurred.

Decree appealed from modified as indicated in the opinion, and as so modified affirmed, without costs of this appeal to either party.


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    In the Matter of the Examination of Kirk B. Crane, Judgment Debtor, Appellant, in Proceedings Supplementary to Execution at the Instance of Francis J. Fox and Another, Judgment Creditors, Respondents.

      HeheaA'ing of a motion — proceedings supplementw'y to execution are proceedings in the action in which the judgment was recovered — when the appointment of a receiver therein is justified.

    A motion for the rehearing of an application for an order directing' a judgment debtor in supplementary proceedings to deliver assets to the receiver of his property theretofore appointed by a county judge is properly granted at a Special Term of the Supreme Gourt, held by the same judge who held the Special Term at which the prior motion therefor was denied, when the judge perceives that his former ruling was erroneous because of oversight, misapprehension or mistake.
    Proceedings supplementary to execution are proceedings in the action in which the judgment was recovered upon which such proceedings are based; the action is not terminated by the judgment rendered therein, but is pending until the judgment is satisfied, and the proceeding supplementary to execution is a new remedy arising in the action by virtue of the statute.
    The appointment of a receiver of the property of a judgment debtor in sux>plementary proceedings is justified when the judgment debtor testifies therein that he was then carrying on a livery stable in his own name, and had done so since the twentieth of Axiril then laát past, at which time he had bought the Xiroperty from his wife for the consideration- of §1,000; that it consisted of horses, carriages, sleighs, etc., and a contract for the purchase of the lot and barn occupied by the business, which contract his wife assigned to him; that the money ])aid to his wife was advanced by a firm of Howe & Shields, to which he gave a chattel mortgage on the personal property for the security of the firm; that the personal property was not worth anything beyond the amount due on the chattel mortgage, nor the lot and barn worth any more than the amount due on the contract for its purchase, but that he was willing to assign the contract if he had any interest in it; that he kexit an account book at the stable in which he kept an account of the business done by him, but that there was nothing then due on the accounts.
    Appeal by the judgment debtor, Kirk B. Crane, from an order of tlie Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Allegany on tlie 26th day of February, 1894, granting the judgment creditors’ motion for a reargument of the motion made September 4, 1893, vacating the order entered upon such motion on September 4, 1893, and directing the judgment debtor to deliver to the receiver a certain contract and certain books of account.

      Pufiis 8cott, for the appellant.

      A. L. Purdy, for tbe respondents.
   Dwight, P. J.:

On his examination under the county judge’s order November 17, 1892, the judgment debtor testified that he was then carrying on a livery stable in his own name, and had done so since the twentieth, of April then last; that at that time he bought the property from his wife for the consideration of $1,000; that it consisted of horses, carriages, sleighs, etc., and a contract for the purchase of the lot and barn occupied by the business, which contract his wife assigned to him; that the money paid to his wife was advanced by Howe & Shields, and that he gave them a chattel mortgage on the personal property for their security. He also testified that the personal property was not worth anything beyond the amount due on the chattel mortgage, nor the lot and barn worth any more than the amount due on the contract for its qmrchase, but that he was willing to assign that contract if he had any interest in it. He also testified that he kept an account book at the stable in which he kept an account of the business done by him, but that there was nothing then due on the accounts.

This testimony justified the appointment of a receiver, which was subsequently made by the county judge, and the receiver duly demanded of the judgment debtor the delivery of the book of accounts and an assignment of the contract for the purchase of the real estate, which were refused. Thereupon the judgment creditors moved at Special Term for an order requiring the judgment debtor to make such delivery and assignment. The affidavit used in support of such motion, made by the attorney for the receiver, set forth the facts above stated and, in addition, that at the date of the affidavit, August 24, 1893, the judgment debtor was still in charge of the stable, claiming to be in the employ of Howe & SlM^dSjJ-fi® successors in the business, but that Howe & Shields madé* no c$aim to any interest in the real estate.

No opposing affidavit was made by or in belialf of the judgment debtor, but his counsel made the preliminary objection that the supplementary proceedings were no longer pending; that they were terminated by the order of the county judge appointing the receiver, and that if not terminated the order asked for could be made only by the county judge ; and the court denied the motion, apparently on the objection thus taken.

At the next Special Term held by the same justice the receiver united with the judgment creditors in a motion for leave to renew their former motion and that the relief then asked for be granted. The motion was made on the same papers as the former motion and was opposed by an affidavit of the judgment debtor denying that he had any books of account except those belonging to Howe & Shields, in whose employ he was. There was also an affidavit of the attorney for the judgment debtor verifying the legal conclusion that the supplementary proceedings had been terminated by a final order of the county judge, appointing the receiver and taxing costs, and. stating that an action has subsequently been commenced by the receiver against Howe & Shields to recover the livery property and its earnings. On the hearing of this motion the preliminary objection was renewed on the same grounds as before, with the addition that the moving papers do not show “ any error or mistake, or overlooking of authority or controlling decision of law in the making of the order of September 4, 1893 ” • — ■ which denied the motion —■ “nor is there any allegation of new fact or different state of facts.” The objection was overruled and the motion was granted, both for leave to renew and for the relief asked for.

We have no doubt that the ruling and decision was within the discretion of the learned judge at Special Term, nor that the discretion was properly exercised. The motion for a rehearing is very properly granted by the same judge who first denied the motion, when lie perceives that his former ruling was due to oversight, misapprehension or mistake ; and such we may assume was the ground on which the rehearing was granted in this case. In Arnold v. Oliver (64 How. Pr. 452) Judge Daniels — speaking for the General Term in the first department — says: “ It was entirely proper under this rule, where a right created by law has been denied to the defendant, linger what appears to have been a misapprehension, that an application should be made to the court by whose order the right had been denied, for a further hearing of the application; the court had ample authority to entertain such a motion as it did ” (see, also, White v. Munroe, 33 Barb. 650; Belmont v. Erie R. Co., 52 id. 637; Bolles v. Duff, 56 id. 567; Averell v. Barber, 44 N. Y. St. Repr. 542), and manifestly the order, when asked for on the grounds above suggested, may be granted on the same papers as those used on the first application. (Arnold v. Oliver, supra.)

In this' case the motion for a rehearing being granted, no ground was shown on which the relief asked for should have been denied. There was no question of fact involved which could not properly be disposed of on the motion. There was no pretense that TIowe <fc Shields claimed title to the land contract, nor any substantial dispute concerning the title to the book or books of accounts kept by the judgment debtor while, as he testified on his examination, he was carrying on the business in his own name. So that even if the application had been made to the county judge there is nothing in the limitation of .section 2427 of the Code of Civil Procedure to prevent its being granted by him. But the authority of the court in the premises is subject to no such limitation. The whole proceeding supplementary to execution is a proceeding in the action in which the judgment was recovered upon which the proceeding is based; that action is not terminated by judgment, but is pending until the judgment is satisfied, and the proceeding supplementary is a new remedy arising in the action by virtue of' the statute (Wegman v. Childs, 41 N. Y. 159.) Or, as was said in this court in Smith v. Tozser (42 Hun, 22, 24): “ Although this- is a special proceeding, it is such in the action, and auxiliary to the purpose of enforcing the collection of the judgment, which is one of the purposes for which the action was brought; and the legitimate remedies attendant upon the proceeding, and to render it effectual, so far as the orders of the court may be required, ar*e taken as in the action.” In other words, the general jurisdiction of the Supreme Court extends to all proceedings in the action in which it originally obtained jurisdiction of the parties.

The commencement of the action by the receiver, mentioned in the affidavit of the attorney for the judgment debtor, can be no bar to this application. That'action is -in tlie nature of a creditor’s bill, and. necessarily relates to property alleged to have been transferred by the judgment debtor to Iiowe & Shields, or, as the affidavit states, to the livery property and its earnings. This description does not include either the land contract or the books of account kept by the judgment debtor when he was carrying on the business for himself.

There seems to be no objection to the order, either formal or on the merits, and it should be affirmed.

Lewis, Haight and Bradley, LL, concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.