text:
    ABRAHAM B. CLARK, Plaintiff, v. ABRAHAM BININGER, Defendant.

    INJUNCTION. —RECEIVERS.
    In this case an order had been entered directing the receiver of the assets of a partnership to pay a certain sum as allowance to one of the counsel in an action. Such order having been disregarded, a further order was granted, adjudging the receiver in contempt, and directing the payment of said amount as a fine, and in default thereof, imprisonment. Over a year having elapsed since the first order, and said sum not having been paid, the court granted the order appealed from (both of the previous orders being still in force), enjoining said receiver from collecting or receiving the moneys deposited in bank by him as such receiver, and restraining and enjoining the receiver of the said bank from paying said sum to the receiver herein, and directing payment to said attorney.

      Decided February 4, 1878.

      Held, a proper exercise of the power of the court (People v. Rogers,

      2 Paige, 103; Oode of Oiv. Pro. § 1241).
    Before Curtis, Ch. J., and Freedman, J.
    Appeal of Thomas J. Barr, receiver, from an order respecting proceeds of property that came into his possession as receiver and were deposited in the Bowling Green Savings Bank, of which Sheppard F. Knapp, Esq.., is receiver.

      James Henderson, attorney, and Henry C. Dennison, of counsel, for appellant, urged :
    —I. The court had no power to grant the order of injunction appealed from on the application as made by the respondent. (a.) An order of injunction can only be granted by the court when it appears “from the complaint” that the plaintiff is entitled to a judgment against the defendant, restraining the commission or continuance of which, “during the pending of the action,” etc. (Code of Civ. Pro. § 603). (b.) The respondent presented no complaint, and therefore the granting of the injunction was without authority. Nor was there any action pending, as judgment of discontinuance of this action had been entered long prior to the granting of the same. The order could only be granted “before final judgment” (Code, § 608). (c.) Even a defendant to obtain an injunction order must serve a complaint in the nature of a cross suit (Thursby v. Mills, 1 Code R. 83).
    )II. The order appealed from tends to enjoin thpa'appellant from exercising the duties of his office as receiver. Such an injunction cannot be granted (People v. Sampson, 25 Barb. 254).
    III. The order appealed from incapacitates the appellant from complying with the order of April 16, directing payment of the money in question, or purging himself of contempt under the order of August 7,1877. (a.) The order'enjoins the appellant from collecting or receiving moneys deposited by him as receiver in the Bowling Green Savings Bank. How can he then pa> the fine imposed under the order of August 7, 1877 ? The order in effect enjoins the appellant from doing that which he is directed to do under the order of Mr. Justice Sanford.
    IY. The respondent is not entitled to both the property and body of the appellant.

      George N. Titus, respondent, urged :
    —I. This receiver is not “a party aggrieved,” by the order of December 3, 1877, and has no right of appeal therefrom. For that cause, his appeal should be dismissed. He is not a party to this action, nor the representative of .a party. He is the mere instrument of the court (Cory v. Long, 43 How. Pr. 492; Martin v. Kanouse, 2 Abb. Pr. 392; Matter of Bristol, 16 Id. 398). and has no right to be heard upon any point embraced in that order (Tallman v. Hinman, 10 How. 89). “ It is too clear for doubt, that a receiver has no right to inter-meddle in questions affecting . . . the disposition of the property in his hands, or to any extent to be regarded as the representative of any one or more of the parties to the cause” (Matter of Colvin, 3 Md. Ch. Dec. 300, 302, 303).
    II. The respondent’s lien upon this reserved property and its proceeds—his right to payment therefrom by this receiver, and his contempt of the court in refusing to make such payment, have been adjudged. A sequestration of the reserved property and its proceeds, for which the receiver is accountable, follows of course (People v. Rogers, 2 Paige, 103). The order of August 7, directing his commitment,—which has not been enforced,—constitutes no objection to the order of December 3 (Mumford v. Stoker, 1 Cow. 178; Ontario Bank v. Hallett, 8 Id. 192). Until the respondent shall have obtained satisfaction of his claim, he may pursue every remedy which the law has provided in his behalf.

       See supra, page 126.

   By the Court.—Curtis, Ch. J.

—Thomas J. Barr, as receiver, was directed by an order of the court, made June 14, 1870, to reserve certain proceeds of the partnership property and effects of the late firm of A. Bininger & Co. to satisfy the lien thereon of the respondent George N. Titus. On April 16, 1877, the receiver was ordered to pay from such proceeds to the respondent $4,254.06 to satisfy the still existing lien thereon to that extent. The receiver disobeyed this order, and has been adjudged guilty of a contempt for refusing to make such payment.

The long delay, and the unauthorized use made by the receiver of these proceeds, and his refusal to account for and pay over the same, as directed by the order of the court, renders it the duty of the court to protect this fund from waste and loss by reason of the unlawful acts of the appellant, who only held it in his ■official capacity as a receiver appointed by the court.

The order appealed from is a proper exercise of the power of the court to protect this property. Its purpose is to arrest the further waste of the property in this receiver’s possession, or in possession of the corporation with which he has deposited it, or its representative. It is in accordance with the usual course, .and necessary for the protection of property, which the court holds through receivers pending the determination of the rights of parties and claimants (People v. Rogers, 2 Paige, 103; § 1241, New Code).

There is nothing in the papers that shows that the order appealed from incapacitates or hinders the receiver from complying with the order of April 16, 1877, directing the payment to the respondent of the proceeds in question, or purging himself of the contempt of which he was adjudged guilt, August 7, 1877. The order appealed from was not made until December 3, 1877, and long after such disobedience and adjudication, and was made simply for the preservation and due application of such remaining portion of the fund as had not been drawn out and received by the appellant from the representative of the Bowling Green Savings Bank.

The order appealed from should be affirmed with costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Curtis, Ch. J.

license: Public Domain

text:
    JAMES PURSELL, Plaintiff and Appellant, v. THE MAYOR, &c. OF NEW YORK, Defendants and Respondents.
    void assessments, recovery of.
    In the jrresent case the plaintiff, the tenant of certain premises upon which an assessment had been laid, not having received notice to pay, and not being himself the person assessed or liable to have his goods levied upon, and being under no legal obligation towards his landlord to pay this assessment, void upon its face, apparently without the knowledge or request of his landlord, for the purpose of obtaining a loan by mortgage upon his lease, voluntarily and without protest or inquiry, paid the same. At the time of said payment, proceedings to vacate the assessment were pending on the part of the landlord without the tenant’s knowledge, and the same was vacated subsequent to the payment thereof by the tenant.

      Decided February 4, 1878.

      Held, that the tenant could not recover the moneys so paid by him; that the present case differs from Peyser ®. Mayor, recently decided in the court of appeals, reversing the decision of the general term, 8 Hun, 418.
    Before Curtis, Ch. J., and Freed mar, J.
    Appeal by the plaintiff from a judgment rendered in favor of the defendants, upon a trial by the court, dismissing the complaint.
    The action was to recover moneys paid by the plaintiff to the defendants, to discharge an assessment upon premises, of which the plaintiff was tenant, and which the plaintiff claimed by the terms of his lease he was required to pay.
    The defendants set up by answer, that the assessment was paid voluntarily on May 10, 1873. It appears that on August 22, 1872, the landlord instituted proceedings to vacate the assessment, and it was set aside as illegal and void on May 19, 1873. The plaintiff did not know of the pendency of these proceedings when he paid the assessment.

      William Henry Arnoux, for appellant.

      D. J. Dean, for respondents.
   By the Court.—Curtis, Ch. J.

—This case differs in some respects from that of Peyser v. Mayor, &c. of N. Y., recently decided in the court of appeals, and reversing the decision of the general term reported in 8 Hun, 413. In the present case the plaintiff testifies, that he would not have paid these assessments, if it had not been required in order to obtain a loan upon a mortgage of his lease ; that no notice was given him by the city to pay them, or warrant for their collection served upon him that he was aware of. As far as can be gathered from the evidence, it appears that the city had failed to advertise the proceedings to impose the assessments, and that they were laid without jurisdiction or authority. These defects must have been apparent on the face of the record, and probably constituted the ground on which they were vacated. Again, as these assessments were laid against the plaintiff’s landlord only, the owner in fee by name, no warrant could issue to collect the assessment by levy, except against the goods of the landlord, the person assessed.

The law does not favor the theory, that a person may without inquiry and without resistance pay a demand madqupon him in good faith, and then, at a future time, when his opponent may be perhaps without evidence, sue to recover back the money paid on the ground that the original demand was illegal.

However equitable and just it may seem at the first glance, that restitution should • be compelled under such circumstances, the protection of the general welfare of the public requires that the person upon whom the demand is made should make a reasonable inquiry as to the nature and basis of it, and then resist it, unless he is satisfied of its legality or is compelled by coercion in fact or law to pay it involuntarily. The enforcement of this principle tends to lessen litigation, and, as far as it relates to payments of taxes and assessments, is of vital consequence to municipal corporations. A departure from it tends to relax that jealous inquiry and watchfulness with which those who contribute the payment of public imposts should guard their own rights. When hundreds of persons prefer to pay their share of a void assessment without inquiry or examination, leaving to some one else to examine it and have it vacated, intending as soon as it may be vacated to sue and recover back from the municipal corporation what they have paid, a great injury to the individual and to the public is fostered. Oppressive and unnecessary assessments, under such circumstances, are silently and without restraint or watching, imposed upon the public, and when vacated by the courts in the interest of justice at the action of some one resisting party, a multitude of suits are brought to recover back moneys that have been paid without inquiry and without resistance and to the public loss.

It is in strict accordance with equity and justice, and that too, in behalf of the individual as well as the public, that the exercise of some degree of watchfulness, of inquiry and of resistance in respect to the imposing and collecting of assessments should be required of the person illegally assessed, and that something more should be required than to simply pay it, and then to recover it back with the additional burden of costs, to be paid by the public.

In the present case the plaintiff, without notice to pay, and not himself the person assessed or liable to have his goods levied upon, and under no legal obligation towards his landlord to pay this assessment, void upon its face, and without the slightest inquiry or resistance, and apparently without the knowledge and request of his landlord, but purely and simply to obtain an advantage personal to himself in procuring a loan by a mortgage on his lease, sends voluntarily and pays it willingly and without any objection or dissent.

In these last enumerated circumstances the case appears to vary from that of Peyser v. Mayor, &c. It would be inconsistent with the views expressed, and the principles carefully considered by the learned judge rendering the opinion of the court of appeals in that case, to sustain the claim of the plaintiff to recover in this action.

The judgment appealed from should be affirmed, with costs.

Freedman, J., concurred.


text:
    JOHN PRENTICE, Plaintiff, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Defendant.

      Decided February 4, 1878.
    LIFE INSURANCE.
    In this case the provisions of a life insurance policy, which declared the claim thereunder forfeited, unless the owner of the policy should, upon the death of the insured, forthwith notify the company in writing, &c., of the fact, indicating the nature of the proof of death, to be furnished, and unless full proofs should be presented within twelve months from the time the loss occurred, —were

      Meld inopei'ative on the following grounds: The general agent of the company, an officer authorized to make such representations, stated to the owner of the policy, upon his departure for Europe, and upon his offer to pay certain premiums which would become due in his absence, that the company had agents who would know of the death of the insured before the owner could, “ and that there was no trouble a.t all in regard to the whole thing.”
    The insured died some time after the return of the owner of the policy, but the fact of his death did not come to the knowledge of the owner till more than twelve months thereafter, and the above provisions of the policy were not complied with. The premiums were regularly demanded by the company and paid in good faith by the owner, after the death of the insured, and until the owner’s knowledge thereof.

      Meld also, that the owner could recover ■ the premiums paid as above.
    Before Curtis, Ch. J., and Freedman, J.

      Motion for judgment on a verdict directed for plaintiff subject to the opinion of the court at general term.
    The action is upon a policy of insurance issued by the defendant, bearing date August 10, 1867, whereby it insured the life of Edwin W. Mitchell, in the sum of $5,000, for his own benefit, upon certain terms and conditions which were therein specified. The policy was assigned to the plaintiff December 9, 1867.
    Upon the back certain conditions were printed, which by the terms of the policy are made “ part and parcel thereof.” One of these conditions prescribes that the company shall be notified forthwith in writing at the office in New York, by the policy owner, of the death of the person whose life is insured, and indicates the kind of proof of the death of the assured which shall be furnished to the company, and another declares that “full proofs shall be presented within twelve months from the time the loss occurs, or the claim will be forfeited.”
    Mitchell died at Montclair, N. J., on July 27, 1873. On August 10, 1873, and again on August 10,1874, the plaintiff, in ignorance of such death, paid to the defendant the premium which would have been payable on those dates, respectively, had Mitchell then been living, and continued the policy in force. The company received these payments in ignorance of his death. No notice of Mitchell’s death was given to the company until the latter part of June, 1875, when plaintiff first heard of his death, and no proofs of death in conformity with the conditions of the policy, or otherwise, were furnished to it until July 9, 1875, and no objection was made until October, 1875.
    The answer of the defendant admits the issuing of the policy, the death of Mitchell while it was in force, and the payment of two annual premiums after his decease ; but it avers that the company received the two payments, and issued the usual renewal receipts therefor in ignorance of his death, fully believing that he was then alive, and that no notice or proof of his death was submitted to, or received by it, until more than twelve months after his death. It also admits demand of payment of the sum insured by the policy, and of the two jjremiums paid as above stated, and that the same have not been repaid, but it avers an -offer to return said two premiums, and a willingness to return the same. In 1873 the plaintiff was informed Iby the general agent of the company, C. L. North, •with whom had been all his dealings, that there would "¡be no trouble about the question of repayment of premiums in regard to Mr. Mitchell dying prior to the time the premiums became due. He said to the plaintiff that the company had agents who would know of the death before he could, and that in case he advanced any money it would be returned ; and that there was no trouble at all in regard to that whole thing.
    On the trial, the court directed a verdict for the plaintiff for the sum insured with interest, and the two premiums with interest, subject to the opinion of the general term.
    Johnson, Cantine & Deming, attorneys, and Henry W. Johnson, of counsel, for defendant, urged :
    —I. The matter printed on the back of the policy constitutes a part of the contract of insurance, and the same effect must be given to it that it would have if incorporated in the body of the instrument (Worsley v. Wood, 6 T. R. 710; Mut. Benefit Life Insurance Co. v. Miller, 2 Ins. L. J. 109; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Patch v. Phoenix Mut. L. Ins. Co., 44 Vt. 481; Brawnstein v. Accidental Death Ins. Co., 2 Bigelow, 610; Bliss on Life Ins. § 58 and note).

      II. From the language of the policy it is manifest that three things must concur to make the liability of the company absolute, viz : 1st. The death of the person whose life is insured. 2nd. The giving of due 'notice and the presentation of proofs of such death, in accordance with tlpe requirements of the policy. 3rd. The lapse of three months from the time such proofs are presented.
    III. The conditions printed on the back of the policy embrace two requirements in regard to proofs of death: 1st. That they shall contain as particular an account of the cause, time and place of death and the circumstances attending the same as the nature of the case will admit, &c., &c. 2nd. That these proofs shall be presented to the company within twelve months, after the death occurs.
    IV. The limitation of time within which the proofs, of death rnqst be presented is a valid and binding stipulation, and a compliance with it is a condition precedent to a right of action on the policy. There is no difference in principle between this condition and' a condition in a policy of fire insurance limiting the time within which an action must be brought, or in a life insurance policy limiting the time within which it must be surrendered to entitle the holder to a “paid up ” policy, or in a policy of insurance against accidents limiting the time within which proof of the accident must be furnished, or in a life policy requiring proofs of death to be presented, but without limiting the time of their presentation. In such cases it has been expressly held that the condition must be complied with, or the plaintiff cannot recover (Bliss on Life Ins. 2d Ed. 600; May on Insurance, 583; Riddlesbarger v. Hartford Ins Co., 7 Wall. 386; Roach v. N. Y. and Erie Ins. Co., 30 N. Y. 546; Ripley v. Ætna Fire Ins. Co., Id. 136; Ames v. N. Y. Union Ins. Co., 4 Kern. 255; Smith v. Conn. Mut. Life Ins. Co., 4 Bigelow, 421; Schumacher v. Manhattan L. I. Co., 3 Ins. L. J. 455; Gamble v. Accident Assurance Co., 4 Irish R. 204; O’Reilley v. Guardian Mut. Life Ins. Co., 60 N. Y. 169).
    Y. It is clearly no excuse for a failure to present proofs of loss within twelve months, that the plaintiff was ignorant of the death of the party whose life was insured. The requirement in the conditions is absolute as to time, and the time begins to run from the occurrence of the death, and not from the time the beneficiary has knowledge of the fact. It would have been entirely competent for the parties to have agreed that this period should not commence to run until knowledge of death was brought home to the beneficiary. But such is not the contract; and for the court to so interpret it would be doing violence to its plain terms, and might wholly deprive the defendant of the benefit of the stipulation.
    VI. The plaintiff’s counsel on the trial treated the case as one involving a question of forfeiture merely. A party cannot forfeit a right of action which he has never acquired. From what has already been stated it is clear that the right of action upon the policy does not accrue until three months after proofs are furnished according to the terms of the contract.
    VII. The plaintiff, on the trial, in support of the allegations in the complaint that the defendant, on August 10, 1873, and also on August 10, 1874, by its agreement duly made, for value received continued the said policy in force for a period of one year from those dates respectively, introduced the renewal receipts given on those dates. It is alleged in the answer, and was proven on the trial, that these renewal receipts were given in ignorance of the death of Mitchell. But whether this were so or not, they could not have the effect to continue the policy in force after his death. The company could not insure a life which did not exist. (Simpson v. Accidental Death Ins. Co., 2 C. B. (N. S.) 257; Lafavour v. Ins. Co., 1 Phila. 558; 2 Bigelow, 158).
    W. P. Prentice, of counsel, for plaintiff, urged :
    —I. Ho defense is attempted on the merits, and it appears from the admissions of the defendant that it has had no injury from any delay on plaintiff’s part. Therefore it cannot now he permitted to avail itself of a purely technical defense to avoid its contract by claiming as a breach of condition entitling it to a forfeiture the omission to file full proofs of death within twelve months after the death of the insured, when it appears that such omission was induced by its own acts and representations.
    II. As to doctrine of forfeiture, waiver, &c., applicable to this case, see Stokes v. Recknagle, 38 Superior Ct. 383; Moses v. Bierling, 31 N. Y. 464; Leslie v. Knickerbocker Ins. Co., 63 N. Y. 27; Stolle v. Ætna F. & M. Ins. Co., 6 Ins. L. 784; Hermann on Estoppel, 433; Carpenter v. Sillwell, 12 N. Y. 73; Isham v. Buckingham, 49 Id. 216; Home Life Ins. Co. v. Pierce, 5 Bigelow, 100; Mayor v. Hamilton Fire Ins. Co., 39 Id. 46. The condition claimed by the defendant is a condition subsequent, not precedent (Hincken v. Mut. Ben. Life Ins. Co., 6 Lans. 21; 50 N. Y. 657). It is qualified by the preceding condition, the 6 th, that: " As soon as possible a particular account of the cause, time and place of death, and the circumstances attending the same, as the nature of the case will admit,” should be delivered to the company. This condition was in an obscure place, on the back of the policy, and notice was not, as matter of fact, brought home to the plaintiff (McNeilly v. Continental L. I. Co., 66 N. Y. 24). Time is not to be deemed of the essence of the contract, because contrary to the intention of the parties and only to be assumed from doubtful terms (Dillon v. Masterson, 39 Superior Ct. 133). Every intendment and fair and legitimate presumption is for the plaintiff (Fairfax v. N. Y. C. R R., 40 SuperioCt. 128). Conditions subsequent are not favored in law, and “ a vigorous exaction of them is a species of summum jus in many cases hardly reconcilable with conscience.” Therefore it is that all the circumstances are to be taken into account; and as it appears the defendant has had no injury, the failure of notice can not work a forfeiture (Hoag v. McGinnis, 22 Wend. 163; Bumstead v. Dividend Mut. Ins. Co., 12 N. Y. 81; Bradley v. M. Ben. L. Ins. Co., 45 N. Y. 422; 2 Pars. Cont. 662; 4 Kent Com. 129; Georgia Home Ins. Co. v. Kinnier, Sup. Ct. of Virginia, Ins. L. Journal, 497). In Southern Life Ins. Co. v. Wilkinson, 5 Big. Ins. 75, it was held not error for the court to refuse to charge that a delay for several months to give notice of the death was a failure, to give notice in a reasonable time. In Pennell v. Chandler, 5 Ins. L. J. 108, held that notwithstanding there was no formal proof filed, plaintiff was entitled to have his claim (See Carter v. Scargill, 10 Q. B. 564).
    III. The defendant agreed to continue the contract until August 10, 1875, and received its payments therefor ; it was therefor immaterial when it received proofs of death, if only prior to August 10, 1875, as was the case (Mayor, &c. v. Hamilton Ins. Co., 39 N. Y. 45; Mix v. Andes Ins. Co., 9 Hun, 399; Ames v. N. Y. Union Ins. Co., 14 N. Y. 253).
    IV. If it be held that the final condition on the back of the policy,—i. e.: “Full proofs shall be presented within twelve months from the time the loss occurs, or the claim will be forfeited,”—is still binding and the acts of the defendant in the representation of the general agent in the notices to pay premiums in 1874 and 1875, and in continuing the contract of insuránce upon the terms of the renewal, do not constitute a waiver on defendant’s part; still the question remains, viz : was not this condition a penalty to be construed as that in Hoag v. McGinnis, 22 Wend. 163, or in Dakin v. Williams, 17 Wend. 447, or in Devins v. Cummins, 3 Johns. 299, and the defendant left to set off any damages it may have sustained ? In Bumstead v. Dividend Mut. Ins. Co., 12 N. Y. 81, it was held that such conditions in a policy need not always be complied with. So, in the case of a guarantee, it has been said that although notice to the guarantor be delayed for a long period—for months, and possibly for years—and it was nevertheless clear that the guarantor could have derived no benefit from an earlier notice, the delay would not impair his obligation (2 Pars. Cont. 662, and cases cited).
   By the Court.—Curtis, Ch. J.

—The agreement between the parties to the policy required that in case of the death of the person insured, notice in writing should forthwith be given to the insurer, and further that full proofs be presented in twelve months from the time the loss occurs, .or the claim would be forfeited. Payment by the company was conditioned upon compliance with these requirements of the policy.

If persons choose to enter into contracts of this nature, and subject to these conditions, it is no reason, because hardships and loss result, that courts should disregard well-established legal principles in interpreting and enforcing them. Where parties have distinctly agreed, their contracts must be sustained and performed (Foot v. Ætna Life Ins. Co., 61 N. Y. 571; Ritzler v. World Ins. Co., 42 N. Y. Super. Ct. 409).

The position of the defendants,—that the non-compliance of the plaintiff with these conditions of the policy, exonerates them from liability to pay the loss,— is tenable, unless by some act on their part, they have made these conditions inoperative.

The testimony shows that the plaintiff had two other policies on the life of the deceased, one of $5,000 and one of $2,500, that he dealt entirely with the general agent of the defendants, and who as such indorsed the checks drawn by plaintiff for premiums to the defendant’s order. The plaintiff, in answer to a question, asking him if, at any time prior to 1874, he had any conversation with the officers of the defendants, or their representatives, in relation to notices or proofs of death, testified as follows :

“ I had, with the general agent, C. L. North, in 1872, two or three days before I went to Europe ; as there were three policies which came due within the next six weeks subsequent to the time of my going away I spoke to him on the subject; he said in regard to paying them in advance, that there was no trouble about that. I raised the question in regard to Mr. Mitchell dying prior to the time the premiums became due ; he said that the company had agents who would know of the death before I could, and that in any case, if I advanced the money, it would be returned, and that there was no trouble at all in regard to that whole thing; I went to Europe on July 3, 1872; I returned in the latter part of October, 1872.”

After the decease of the insured, in 1873, the defendants continued to call upon the plaintiff for two years, by notices, to pay the annual premiums upon the policy, which he did.

Here was a statement made to the plaintiff, when about to leave for Europe, by the general agent of the company, that by its terms and language would naturally throw the plaintiff off his guard in watching the life of the deceased. The statement that the company had agents who would know of the death of the insured before the plaintiff would, “ and that there was no trouble at all in regard to the whole thing,” was equivalent to saying, “we shall know about his death before you, and in ample time, and there is no occasion to give yourself any trouble about it.”

It was reasonable, and perfectly consistent with these representations, that the plaintiff should feel that he need not deal with the company thereafter, at arm’s length on this point, and that he should respond to their calls for the annual premiums. It is not disputed by the defendants, that this representation was made to the plaintiff, and that thereafter he should continue his payments on all these policies without further inquiry in response to their call, is indicative of his reliance upon it. The evidence does not show that the company had such agents as the general agent represented to the plaintiff they had.

The question arises as to which party under these circumstances shall bear the loss. It would be manifestly unjust that the defendants should mislead a policy owner by their representations, into the omission of an act by which the policy became forfeited, and that they could profit by their own breach of faith. It was said upon the argument, that this case was “ sui generis, and that never before was there such an experience on the plaintiff’s or defendant’s part.” The concurrence of facts presented may be new, but the principle of law to be invoked and applied is familiar and elementary.

There also appears to be an experience on the defendant’s part in Leslie v. Knickerbocker Life Ins. Co. (63 N. Y. 27), quite analogous to the present. In that case the plaintiff’s agent, not knowing when the premium fell due, applied before default at defendants office, to a person standing at the cashier’s desk, to ascertain it; this person did not give the information, but promised to send notice. This promise was not performed, and the company claimed, when he again called, which was after the premium fell due, that the policy had in the interval elapsed. The defense of the company was not sustained, the court saying, per Forger, J., that even if there was no primary hostile purpose in the action of one, who may in a certain event, become entitled to a forfeiture or other right arising from the non-performance of a condition, if by his act he has induced another to omit strict performance, he may not take the benefit or exact the forfeiture.

This principle is conclusive in governing the present case, unless there was a lack of authority on the part of the general agent to make the representations that he did to the plaintiff, in respect to notice of the death of the insured. Although the second condition of the policy declares void certain acts unless signed by the president and secretary, it does not extend to representations made by its general agent. No claim was made on the argument that the general agent had acted beyond the scope of his authority. There is nothing in the case to show that the policy owner had reason to suppose that the general agent of the company, with whom he had all his transactions, and who indorsed the checks drawn by him to the order of the company, had powers other or different from those he assumed to have and exercised.

Judgment should be ordered for the plaintiff upon the verdict, with costs.

Freedman, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    RICHARD ROBBINS, et al., Plaintiffs and Appellants, v. JOHN H. FALCONER, Defendant and Respondent.

      Decided February 4, 1878.
    ORDER OF ARREST.—CODE OF PROCEDURE, § 179.—PRIN-CIPAL AND AGENT.
    If according to the averments of a complaint, the plaintiff may have judgment, without proof of any facts which justify an order of arrest under section 179 of Code of Procedure, the court is not precluded from vacating an order of arrest on the ground that the cause of action and the grounds of arrest -are identical.
    Section 179 of the Code of Procedure does not apply to a case where, by agreement between principal and agent, the agent may use the principal’s money as his own, so far as the legal title to it is concerned, while he promises to pay the amount on demand,—i. e., when the agreement contemplates the relation of debtor and creditor,—but only to a case where the obligation of the agent is to return the identical money or its traceable proceeds to the principal (McBurney *. Martin, 6 Robt. 502).
    The mere fact that one is an agent to sell and to receive the proceeds does not make him liable for a tort in case he does not pay over the proceeds on demand, after those proceeds have passed from the specific form in which they were received and have been commingled with the agent’s own money. While they remain in the specific form, the principal may become entitled to their possession upon demand. Unless such is the case, to make the agent liable to hold the specific proceeds for the principal, there must be allegations to show that such was his special obligation.
    In this case, in view of the above principles, the court held, that the order vacating order of arrest, should be affirmed.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal from order, setting aside order of arrest.

      The complaint was, “that heretofore, to wit, on February 23 and 27, and March 19, 1877, at the city of New York, these plaintiffs, who were and now are-co-partners doing business under the name and style of Bobbins, Bodington & Company, did authorize and empower the defendant as their confidential agent to sell for them in the city of New York, foreign bills of exchange, and that on the dates aforesaid the defendant did sell in the city of New York, for and on account of the plaintiffs and belonging to them, three bills of exchange, of the aggregate value of §15,107.36, which sum defendant then and there received as the proceeds of such sale.
    “That afterwards the defendant paid over to these plaintiffs on account the sum of $13,000, but the further sum of $2,107.36, the balance of the aforesaid proceeds of sale, he has neglected and refused to pay over to these plaintiffs, though often requested by them so to do.
    “Wherefore the plaintiffs pray.”
    The order of arrest was made upon the complaint and the affidavit of an agent of plaintiffs, stating that the plaintiff entrusted to the defendants three bills of exchange, of the aggregate sum of $15,107, that when the bills “ were given to defendant by the plaintiffs, the defendant undertook and agreed for a compensation to be paid to him, to sell the same for cash in the city of New York, and when sold to remit the proceeds thereof to the plaintiffs at Beaufort, South Carolina, either by immediate remittance, or by honoring and paying at sight, drafts to be made on him by the plaintiffs against such proceeds that the defendant did sell the bills, and obtain, on their sale, the sum of $15,107, of which he remitted $13,000 and no more, but that the balance the defendant “refuses to pay to the plaintiffs on their request which has been frequently made, that defendant admits that above money was collected by him, but that he says “ that he has appropriated the same to his own use, by commingling it with money” of his own, and that he no longer has it to pay to the plaintiffs,” that said bills “were entrusted to the defendant in the trust and confidence reposed in him, that he would faithfully preserve and remit to these plaintiffs, their proceeds, when sold.”
    The defendant after his arrest moved to set aside the order, upon the complaint and affidavit above set out, and the affidavit of the defendant, stating that the defendant denies that plaintiff entrusted to him the bills with any understanding that deponent was to remit immediately the proceeds thereof, or that the bills were entrusted to the defendant in the trust and confidence reposed in him, under his promise that he could faithfully preserve and remit their proceeds, or under any other conditions than those stated in the affidavit; that plaintiffs had sent other bills to defendant for sale, before February 6, 1877, and that up to that date the defendant had been in the habit of depositing the proceeds of such other bills in the Bank of British North America in New York, to the credit of the plaintiffs, but that after that date, that bank refused to carry the account any longer, and thereafter defendant, “ at the request of plaintiffs, acted as banker for the said plaintiffs and retained the proceeds of their draft on deposit • in his own account, and gave them credit therefor on his books ; that it was agreed by both parties that the defendant should have the right to deposit said money in bank in his own name, as any other banker or broker would do ; that in the course of their dealing, plaintiffs drew for more than was to their credit with defendant, that at other times they allowed their money to remain deposited with defendant for considerable period of time; that, on February 24, 1877, the plaintiffs sent to defendant their letter annexed to the affidavit, which letter enclosed two bills, and directed defendant ‘ Please sell at best rate and place proceeds to our credit with, you that the proceeds of these bills was the sum of $5,380.67, mentioned in complaint; that on March 8, 1877, the plaintiffs wrote another letter annexed to affidavit, advising a draft upon defendant of $2,000, and saying, “From this date we propose advising you, whenever we find it necessary to draw upon you ;’ ’ that on March 19, 1877, there was to the credit of plaintiffs with defendant $574.55, all other proceeds having been paid to plaintiffs ; that on March 19, 1877, the plaintiffs sent the bills the proceeds of which, as sold by defendant, amounted to the sum (stated in the affidavit of plaintiff’s agent), of $7,533.31 ; that defendant deposited that amount in bank to his own credit, and immediately notified the plaintiffs of the sale and the proceeds ; that on March 22,1877, plaintiffs drew on defendant for $6,000, which was paid by defendant’s check on his bank ; that afterwards, until March 26, the plaintiffs made no further draft, and on that day the defendant was obliged to suspend payment and made a general assignment for benefit- of his creditors.
    The court vacated the order of arrest, and plaintiffs appeal.

      Edward D. McCarthy, attorney, and of counsel, for appellants, urged :
    —I. This case is distinguishable from the two cases cited on argument (40 N. Y. 124; 51 Id. 594) ; both of which were actions for money had and received. The nature of the action can be determined by the complaint only. On the trial of this action, unless a conversion is proved (a trover of property), the complaint will fail and the action will be dismissed. Proof that would make out a good cause of action for money had and received, will not maintain this cause of action. That this cause of action is identical with the ground of arrest, will not be doubted. The cause of action is in tort for conversion of property.
    II. It is the settled law of our courts, that in such a case as this, an order of arrest will not be vacated upon affidavits (Stuyvesant v. Bowran, 34 How. 51; Barret v. Gracie, 34 Barb. 20; Solomon v. Waas, 2 Hill. 179; Geller v. Seixas, 4 Abb. Pr. 103; Frost v. Mc-Carger, 14 How. 131; Ely v. Mumford, 47 Barb. 629; Merritt v. Hecksher, 50 Id. 437; Jaroslauski v. Saunderson, 1 Daly, 232; Merwin v. Playford, 3 Rob. 702; Swift v. Wylie, 5 Id. 680; Nelson v. Blanchfield, 54 Barb. 630).
    III. The case stands thus : By the complaint and plaintiffs’ affidavit a cause of action, ex delicto, is alleged. By the defendant’s affidavit a cause of action, ex contractu only, is admitted. The general term of this court have held that this question, which decides “the capacity” in which defendant received money, and thereby became liable, cannot be tried on a mere motion (See Swift v. Wylie, 5 Rob. 684, and the cases there cited; see also 3 Id. 703, see also cases cited under the second point).
    IV. Nothing whatever appears in the affidavit of defendant to disprove our cause of action against him. No doubt if defendant were a general banker, with whom plaintiffs had had an account, he could not be held in trover for his failure or inability to make good a general deposit (46 N. Y. 84), but defendant’s own affidavit admits that he was not a banker, because he says that he deposited the proceeds of our bills in a bank in the city of New York.

      Carter & Eaton, attorneys, and William, B. Hornblower, of counsel, for respondent, among other things, urged :
    —I. This is not a case where the cause of action and the ground of arrest are identical. Hence the court can and must decide this motion on the preponderance of evidence, and is not bound by the technical rules which apply on a motion to vacate an order of arrest where the cause of action and the ground of arrest are identical.
    II. The cause of action is founded upon an indebtedness from defendant to plaintiff's. The ground of arrest is that this indebtedness was created by defendant while acting in a fiduciary capacity. The allegations in the complaint as to this fiduciary capacity are not traversable, and even if the defendant did traverse them, there would be enough in the complaint untraversed to justify a recovery by the plaintiffs. That such allegations in a complaint are not traversable, and that they do not constitute part of the cause of action, is well settled (Wood v. Henry, 40 N. Y. 124; Prouty v. Swift, 51 Id. 594; Republic of Mexico v. Arrangois [Super. Ct. Sp. T., Hoffman, J.], 11 How. Pr. 1; Liddell v. Paton, 7 Hun, 195; affi’d by Ct. of App. [not yet reported]).
    III. This. is not an action for conversion. The court of appeals has repeatedly held that an action for conversion cannot be maintained in such a case as this (Walter v. Bennett, 16 N. Y. 250; Conaughty v. Nichols, 42 Id. 83: Green tree v. Rosenstock, 61 Id. 583; Vilmar v. Schall, 61 Id. 564; Austin v. Rawdon, 44 Id. 63).
    IV. The bu/rden of proof is on plaintiff in an application to vacate an order of arrest where the ground of arrest and the cause of action are different. If plaintiffs’ evidence does not preponderate order must be vacated (Allen v. McCrasson, 32 Barb. 662; Mecklin v. Berry, 23 How. Pr. 380; Hoy v. Duncan, 33 N. Y. Super. Ct. 579; Chapin v. Seeley, 13 How. Pr. 490; Union Bank v. Mott, 6 Abb. Pr. 315; Hernandez v. Carnobeli, 10 How. 433; Republic of Mexico v. Arrangois [Superior Ct., Sp. T., Hoffman, J.], 11 How. 1;
      Mulrey v. Collett, 3 Rob. 716; Allen v. McCrasson, 33 Barb. 663).
    V. Bnt even if the cause of action and the ground of arrest were identical, the defendant could introduce affidavits in opposition to the papers on which the order of arrest was granted, and if the facts as they appear from the affidavits are such that the court would be justified in taking the case from the jury on the trial and directing a verdict for defendant, then the court must vacate the order -of arrest. This was held in Lorillard Fire Ins. Co. v. Meshural, 7 Robt. 308; Hoy v. Duncan, 33 N. Y. Super. Ct. 555; Farris v. Peck, 2 Sweeny, 689; Barritt v. Gracie, 34 Barb. 30; Merritt v. Hecksher, 50 Id. 451; Frost v. McCarger, 14 How. Pr. 131; Levins v. Noble, 15 Abb. Pr. 131; Stuyvesant v. Bowran, 3 Abb. Pr. N. S. 270; Royal Ins. Co. v. Noble, 5 Id. 54; Tallman v. Whitney, 5 Daly, 505; Griswold v. Sweet, 49 How. Pr. 171. In Elwood v. Gardner, 45 N. Y. 349, the court of appeals appears to take the ground that in all cases the arrest may be vacated upon the merits, whether a nonsuit would be proper or not. See, to same effect, Liddell v. Paton, 7 Hun, 195.
    VI. The rule is well settled that an agent is not liable for conversion, unless he was bound to pay over to the principal the identical moneys received by him for the account of the principal (Walter v. Bennett, 16 N. Y 250; Conaughty v. Nichols, 43 Id. 83; Greentree v. Rosenstock, 61 Id. 583; Vilmar v. Schall, Id. 564; Morange v. Waldron, 6 Hun, 539; Stoll v. King, 8 How. Pr. 300; Buchanan Farm Oil Co. v. Woodman, 1 Hun, 641; Bussing v. Thompson, 15 How. Pr. 97; Sutton v. De Camp, 4 Abb. Pr. N. S. 484; McBurney v. Martin, 6 Robt. 502; Goodrich v. Dunbar, 17 Barb. 644; Angus v. Dunscomb, 8 How. Pr. 14). The phrase “ fiduciary character” occurs in the bankrupt law with regard to debts which are not barred by discharge (U.

      S. Rev. St. § 5117). In Hervey v. Devereux (72 N. C. 462), it is held that a general deposit of money subject to call did not constitute fiduciary relations. In Grover & Baker Sewing Machine Co. v. Clinton (5 Biss. 324), it appeared that defendants had - been agents for the plaintiff in the sale of sewing machines, receiving a commission and accounting and paying over monthly. The court held that an authority to mingle the money collected with the agent s own funds might be fairly implied from the agreement to pay over monthly, and that the debt was therefore not of a fiduciary nature (U. S. Circ. Ct. West. D. of Wisc. ; See Woolsey v. Cade, Sup. Ct. Ala. 15 N. B. R. 238; Owsley v. Cobin, U. S. Cir. Ct. S. Car., opinion by Chief Justice Waite, 15 N. B. R. 489).
   By the Court.—Sedgwick, J.

—The first position of the learned counsel for appellants is, that the cause of action, stated in the complaint, comprises facts which justify arrest, under section 179 of Code of Procedure, and that if the affidavits disclose any facts to sustain it, the court below should have held the order of arrest, and not have determined the issues of > this action, which a jury must decide.

The court of appeals definitely decided, having, at the time, section' 288 in view, that a complaint which contained averments of enough facts to justify a verdict for plaintiff, irrespective of, and disregarding all averments of the complaint that could show a cause of arrest under section 179, did not state a cause of action, which of itself' authorized arrest under that section. The substantial reason was, that the plaintiff would prove enough to justify a verdict, and the jury would not be called upon to say if -the other and immaterial issues proffered by complaint, should be decided in plaintiff’s favor.

Looking, then, at the complaint, we must see, if according to its averments, the plaintiffs might have judgment without proof of any facts which sustain an arrest under section 179. The complaint avers that the plaintiffs authorized and empowered the defendant, as their confidential agent, to sell for them the bills of exchange; that the defendant did sell them, and receive the proceeds ; that he paid over a part of the proceeds, but refused to pay the rest of them, upon a demand by plaintiffs. It is manifest that nothing to sustain the power to arrest is stated, except it be that defendant was authorized and empowered to sell for plaintiffs as their agent. The word “confidential”' agent does not affect the question.

But the mere fact that the defendant is an agent to sell and to receive the proceeds does not make him liable for a tort in “case he does not pay over the proceeds on demand, after those proceeds have passed, from the specific form in which they were received, and have been commingled with the agent’s own money. While they remain in the specific form, the principal may become entitled to their possession upon demand. Unless such is the case, to make the agent liable to hold the specific proceeds for the principal, there must be allegations to show that that was his special obligation. In Walter v. Bennett (16 N. Y. 250), the plaintiff employed the defendant as his agent to sell pork, and the defendant did, as such agent, sell the pork, and receive the proceeds in a draft. He had this discounted, and the proceeds placed to his own credit. The plaintiff demanded the draft or the proceeds. The defendant refused to pay either. Judge Brown said : “ The relation between the parties rested in contract, for agency, under all the authorities, is a contract, expressed or implied. Whatever responsibility attaches to the defendant from his relation of agent, is upon the contract, and the plaintiff cannot change the nature of the defendant’s obligation, and convert that into a tort, which the law deems to be a simple breach of an agreement.” Judge Johnson said: “The duty of an agent for sale is to account for the proceeds of his principal’s property ; but he is not guilty of a conversion, if he does not deliver the specific proceeds to his principal” (Wood v. Henry, 40 N. Y. 124; Conaughty v. Nichols, 42 Id. 83; Prouty v. Swift, 51 Id. 594 ; Greentree v. Rosenstock; 61 Id. 583).

In this case, therefore, the judge, in deciding the motion, did not pass upon issues offered by the complaint and relating to a cause of arrest which a jury would thereafter be called to pass .upon, and he was at liberty, and it was his duty, to examine the affidavits to determine the preponderance of the testimony disclosed by them.

The remaining question is, did the weight of the affidavits show a cause of arrest under the section % It would seem clear on the first impression, that this action was exactly under section 179, for money received by the defendant as a broker, but the-section has been construed to mean, where the obligation on the part of the agent is to return the identical money or its traceable proceeds to the principal, and it does not apply to a case where, by agreement, the agent may use the money, when received, as his own, so far as the legal title to it goes, while he promises to pay the amount on demand,—i. e., where the agreement contemplates the relation of debtor and creditor (McBurney v. Martin, 6 Robt. 502).

Giving a fair construction to the affidavit for plaintiffs, and sifting conclusion and opinion from fact, there is no inconsistency between it and other facts stated in defendant’s affidavit which show that the relation of simple debtor and creditor existed when demand was • made. But if there be a conflict, the circumstantial narration of defendant’s affidavit, and the inference from the letters set out, produce a conviction that sustains the order made below.

The order is affirmed, with $10 costs and disbursements to be taxed.

Curtis, Ch. J., and Freedman, J., concurred.


text:
    DAVID C. CARLETON, Plaintiff and Appellant, v. THOMAS DARCY and THE MAYOR, &c. OF NEW YORK, Defendants and Respondents.
    DISCONTINUANCE OE ACTION. —EJECTMENT.
    The plaintiff’s right to discontinue on payment of costs terminates when the action passes into judgment, for the defendant can then claim a right to the adjudication even if the same was wholly or partially unfavorable to him, and his right does not depend upon the judgment having been actually entered of record. It was enough that a point had been reached which made the action ready for judgment.
    Leave to discontinue was never granted after a peremptory rule for judgment or demurrer.
    After a special verdict, the plaintiff might discontinue by leave, as a matter of great favor, because the special verdict was not complete and final.
    Leave to discontinue after a general verdict was never granted (2 Williams Saunders, 73).
    In the case at bar, an action of ejectment, the judgment was entered, and execution issued, and plaintiff put in possession of the premises by the sheriff. Subsequently it was vacated, and another defendant added, but the plaintiff was allowed to keep possession of the premises under the execution until a judgment should be rendered in defendants’ favor, and after answer of defendants denying plaintiff’s right to possession of the premises, and claiming ownership in fee in the same, the plaintiff claims the right to discontinue on payment of costs without a restoration of the possession of the property.

      Decided February 4, 1878.
    Manifestly the plaintiff has no right in this condition of things to discontinue the action to enable him to bring a new action, or to compel the defendants to bring an action to recover the possession of the property now in the plaintiff under the judgment.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal from an order, denying to plaintiff leave to discontinue upon payment of costs.
    The action was in ejectment, and begun against Darcy alone. He failed to answer. The plaintiff entered judgment by default and issued execution to the sheriff, who delivered to him possession of the premises. On motion, the judgment was vacated. The mayor, &c., were joined as defendants, and both defendants were allowed to defend. The plaintiff was allowed to remain in possession. Answers were served denying plaintiff’s title, &c. Thereafter, plaintiff moved to discontinue upon payment of costs. This motion was denied, and the order then entered appealed from.

      H. O. Southworth and T. B. Clarkson, of counsel, for appellant, urged :
    —I. This is an application to discontinue a suit which plaintiff has a right to make and obtain ex parte, but defendant ■ is heard by consent. The plaintiff has an undeniable right to discontinue his suit at any time before judgment (1 Abb. 46; 18 Barb. 595; 13 How. 258; 7 Abb. N. S. 37; 25 How. 356; 10 N. Y. 500; 11 Hun, 286; 10 Id. 120). As to right of appeal: 58 H. Y. 215. Ho case can be found where plaintiff has been denied the right to discontinue. Ho fact can be plainer than that a plaintiff cannot be compelled to prosecute a suit. This.is the Code, and every decision under it. Heither the legislature nor court can compel a pláintiff to proceed in a cause. The court has never exercised any power over that right except to require a stipulation allowing defendant any right he has obtained to testimony, or on a counterclaim. This we have already offered to do, and tendered the stipulation and the costs, whatever they were, and are now willing to pay them. We don’t want to be at the expense of several hundred dollars to carry on a lawsuit for their benefit, that they may see how much of a title they can make out. They say we are left in possession. Very well, we were in possession when they broke in, only thirty days before the action was commenced. They were notified of our rights, warned repeatedly not to trespass upon the property. Darcy entered, defying our rights, when we were in possession. Our judgment being opened and suit discontinued, there is nothing to prejudice an action of ejectment on their part. The shanty on the lot did not cost over $30 ; we have expended $300 on it, after obtaining judgment and supposed the case ended. Why should the city oppose the discontinuance ? If they have a title, let them proceed in their own right. The law allowing defaults to be opened does not affect the plaintiff’s right to discontinue. He consents that the judgment remain vacated.

      Wm. C. Whitney, attorney, and T. B. Clarkson, of counsel, for respondents, urged :
    —I. A plaintiff is not entitled, as matter of right, to discontinue his suit on payment of costs to the defendant. The court may in a proper case impose other or further terms, or both. The defendants claim that the true rule is that stated by Mr. Justice E. Darwin Smith, in his opinion in Young v. Bush, 36 How. Pr. 240-242. And this case was followed in a case at special term, which was affirmed on appeal to the general term of the fourth department (Wilder v. Boynton, 63 Barb., 547. See also De Barante v. Deyermand, 41 N. Y. 355; Cockle v. Underwood, 3 Duer, 676, 678, 680; and Leslie v. Leslie, 10 Abb. Pr. N. S. 64-74). In a case in this court (above referred to) when defendant had set up a counter-claim which was not replied to, this court refused to permit plaintiff to discontinue on payment of the costs, on the ground that plaintiff showed no special reason for it (Cockle v. Underwood, 3 Duer, 676. See also, Livermore v. Bainbridge, 43 How. Pr. 272-274). The court of common pleas has imposed the payment of an allowance, in addition to the taxable costs, as a condition of permitting plaintiff to discontinue (Tubbs v. Hall, 12 Abb. Pr. N. S. 237). Where defendant had set up a counter-claim, and the case was partly tried, and plaintiff applied for leave to discontinue, and it appeared that an action on the counterclaim was barred by the statute of limitations, leave to discontinue was refused (Van Allen v. Schermerhorn, 14 How. Pr. 287. See Geenia v. Keah, 66 Barb. 245). In an action of claim and delivery the question came up whether “the plaintiff can discontinue on payment of costs merely, where the property has been delivered to the plaintiff, and the defendant has put in an answer entitling him to a return.” And if was decided that he could not (Wilson v. Wheeler, 6 How. Pr. 49).
    II. If the defendant is not entitled, as matter of right, to discontinue on payment of costs, then this order refusing leave so to do is not appealable (Code of Civil Procedure).

    III. It would have been unjust and inequitable to have allowed the plaintiff to discontinue without returning the property (Wilson v. Wheeler, 6 How. Pr. 49-51). The court will bear in mind that, at the time this suit was commenced, the defendants were in possession of the lot, the object of this litigation, and that the plaintiff has now obtained the possession of it. He has obtained all that he could obtain had the litigation been continued until the court had passed upon the rights of all the parties before it. And now, when we have come in and denied his right to the lot, and claim to be its owners and entitled to possession, and ask to have his right and our right passed upon by the court before which he has brought ns, and in a suit which he has instituted, and thereby asserted his willingness to have his right tried, he asks to be allowed to go, our right to the property yet untried, his right to the property, though denied by us, yet untried, but he to retain the property, and we to be driven to a new suit to obtain it.
    IY. To have granted the motion would have been to deprive the statute under which we were let in to defend of its effect,—to make it useless and ineffectual ; in effect to repeal it so far as this action is concerned. The statute provides as follows : “§34 [38]. Every judgment in ejectment rendered by default, shall, from and after three years from the time of docketing the same, be conclusive upon the defendant, and upon all persons claiming from or through him by title accruing after the commencement of the action. But within five years after the docketing of such judgment, on the application of the defendant, his heirs or assigns, and upon payment of all costs and damages recovered thereby, the court may vacate such judgment and grant a new trial, if such court shall be satisfied that justice will be promoted, and the rights of the parties more satisfactorily ascertained and established ’ ’ (1 R. S. [6th ed.], p. 576, § 34 [38]; 2 Id. [Edm. ed.] p. 318, § 38). “§ 87 [41]. If the plaintiff shall have taken possession of the premises by virtue of any recovery in ejectment, such possession shall not in any way be affected by the vacating of any judgment, as herein provided ; and if the defendant recover in any new trial hereby authorized, he shall be entitled to a writ of possession in the same manner as if he was plaintiff” (3 R. S. [6th ed.] p. 577, § 37 [41]; 2 Id. [Edm. ed.] p.. 319, § 41). The defendant, Darcy, having suffered a default, applied to the court, and the court, having been satisfied that justice would be promoted, has granted him a trial pursuant to the above quoted statute (§ 34), and allowed his landlords to come in with him as defendants, and, pursuant to the statute (§ 37), the property must remain in the plaintiff’s possession until that trial. If, now, the plaintiff may discontinue before the trial so granted, then we, for whose benefit the statute wa,s made, are deprived of its benefit; we cannot have that trial which the court, under the authority of the statute, and for the purpose of promoting justice, has granted to us. So far as we are concerned, it will be ineffective and void. And this will be the effect in every case where a plaintiff has obtained judgment in ejectment, whether on a trial or on a default.
   By the Court.—Sedgwick, J.

—The plaintiff’s right to discontinue on payment of costs was gone if the action had passed into judgment. The defendant might then claim a right to the adjudication, even if it were wholly or partly unfavorable to him, although it cannot be supposed that a plaintiff would wish to discontinue an action, in which there is a judgment wholly favorable to his demands. The defendants’ right did not depend upon the judgment having been actually entered of record. It was enough that a point had been reached which made the action ready for the entering of.a judgment.

Leave to discontinue was never granted after a peremptory rule for judgment on demurrer, while, after demurrer argued and allowed, a discontinuance on payment of costs was allowed, if there were a mistake by the plaintiff in pleading. Afterwards the mistake was relieved by allowing the plaintiff to amend on payment of costs. After a special verdict the plaintiff might discontinue by leave, because it was not complete and final, as a matter of great favor, however. Leave to discontinue was never granted after a general veidict (2 Wms. Saunders, 73). A case there cited (Stephens v. Etterick, 1 Show. 63), was in covenant, and a writ of inquiry had been awarded, executed, returned, but not filed. Counsel for plaintiff moved for discontinuance, and argued that the judgment was but interlocutory for the award of inquiry, and nothing was reduced to certainty. The court held it was not different from the case of a verdict where a plaintiff ■could not discontinue, and that there could be no discontinuance without consent.

In the case at bar, though the judgment was vacated, the plaintiff was allowed to keep possession, taken under the execution, until a judgment should be had in defendant’s favor. Manifestly the plaintiff has no right to discontinué to enable him to bring a new action, in this condition of things, or to compel the defendant to bring the action. There was an adjudication in effect in favor of defendant, that he was entitled to have this action to proceed to judgment. By reason of the action, the plaintiff has obtained possession, not as of absolute right, but of qualified right, the qualification being in defendant’s favor. It is impossible that he should destroy this qualification by discontinuing the action, without relinquishing possession. I think the learned judge committed no error, by not allowing a discontinuance on condition of relinquishing possession and payment of costs, inasmuch as the plaintiff was not willing to perform siich a condition.

The learned counsel for respondents claim that the vacating of the judgment was under the statute that relates to new trials in ejectment after judgment for plaintiff by default (2 R. S. 309, § 38, and p. 310, § 41; 2 Edm. 318, 319). Section 38 is, that such a judgment may be within five years vacated upon terms, if justice require. Section 41 is, if the plaintiff have taken possession, by virtue of the recovery, such possession shall not be affected by the vacating of the judgment; but if the defendant recover in any new trial authorized by the statute, he shall be entitled to a writ of possession in the same manner as if he were plaintiff. In this case, if the plaintiff wishes to retain his possession, he cannot, by discontinuance, keep the defendants out of their right, to continue the action, to the end, if possible, of obtaining a writ of possession.

The order appealed from should be affirmed with costs of $10, and disbursements.

Curtis, Ch. J., and Freedman, J., concurred.


text:
    JAMES D. FOWLER, et al., Plaintiffs and Respondents, v. JOHN KELLY, Sheriff, Defendant and Appellant.
    NEWLY DISCOVERED EVIDENCE.
    New trial, not granted on ground of, when.*
    1. Admissions l>y parties since trial.

    Not sufficient ground when fully met.
    3. Facts discovered since trial.

    Not sufficient, when it appears that such facts do not necessarily bear upon the issues insolved.
    * Note.—The principle upon which ''he decision rests, is that in addition to other requisites it must appear that there is a fimprobability that the evidence claimed to have been newly-discovered, will change the result on a new trial. 3 Graham on New Trials, 1094, 109.x

      Decided February 4, 1878.
    Before Curtis, Ck. J., and Sedgwiok, J.
    Appeal from order denying motion for new trial on ground of newly-discovered evidence.
    This action is brought against the sheriff to recover the value of twenty hogsheads of molasses, seized by him about June 6, 1867, under an attachment issued on June 6, 1867, against the property of Thomas R. Gordon, in favor of Charles S. Archer, Washington Archer, and Pitt T. Tucker.
    Plaintiffs had a verdict. A motion for a new trial was denied. Judgment was thereupon entered on the verdict. On appeal from the judgment, and order denying the motion for a new trial, both were affirmed.
    Thereafter a motion was made for a new trial on the ground of newly-discovered evidence. This motion was denied, and the present appeal is taken from the order of denial.
    On the trial one of the plaintiffs testified “ that the molasses ” in question “was not gauged because there had been no sale.”
    And the following delivery order was also put in evidence:
    “To Merchants’ Line steamers. No. 2016. Deliver to J. R Gordon, E. A., 40 hhds. of molasses ex Key West. N. Y., June 1, 1867.”
    After the affirmance of the judgment, the indemnitors of the defendants employed a detective, who, after considerable search, found a firm of gaugers who, on June 7, 1867, at pier 4, North River, gauged for the plaintiff 40 hogsheads of molasses, ex Key West, P. & Co. '
    This fact was sworn to by the detective, in an affidavit made by him, and was also proved by the two gaugers, who, being unwilling witnesses, were examined before a referee, under an order obtained for that purpose.
    From the affidavit of the detective, and the testimony of the gaugers, it appeared that the firm of gaugers kept a book called a gauger’s book, which contained entries of the gauging made by them ; that there was an evident desire to withhold this book ; that the book, when finally obtained, showed the following entry:
    7.
    “Fowler & Jova, Pier 4 IST. E. C. 40 Hhds. molasses. Ex Key West. . F. & Co.”
    Then followed four columns of figures ; and :
    “5766-502-5264, hf C.”
    That, although the whole entry was in the handwriting of the witness, one of the gaugers, yet he swore that he had not the slightest remembrance of gauging any molasses for Fowler & Jova, in June, 1867, or of gauging any molasses for them, or any one at Pier 4 1ST. E. The detective in his affidavit also swore that the gauger, Webb, told him that the molasses referred to in the above entry in the gaugers’ book, was gauged for Cordon that the direction so to gauge was on the original order which had been destroyed, as was usual; he al&o swore that he had several interviews with Jova, one of the plaintiffs; that Jova in fact seemed willing to impart information, that on the second interview he (the detective) “showed Jova the bill of lading of forty hogsheads of molasses by the steamer Key West, and Mr. Jova said that this was the molasses he had spoken of” (in a previous interview, as the detective swears, he had spoken of a sale of 40 hogsheads of molasses, in June, 1867, to a distiller named Cordon) as sold to said Cordon, “ and that nothing had been received on account of that sale; that he (the detective) subsequently asked Jova to make an affidavit, and Jova said he would not, until he had examined the books, and he had no time then to do so, and would consult with plaintiff Fowler; that he (the detective) again called on Jova, who said he had never had time to fully talk with Fowler ; that on the same interview, upon being again requested to make the affidavit, he said, “No, I am advised by Mr. Fowler not to sign any papers.” .
    One of the sheriff’s indemnitors, and Mr. John D. McCormick, made affidavits to the effect that they are well acquainted with the trade of dealing in molasses, and familiar with the trade in regard to gauging of molasses, that the custom of the trade, generally, is to gauge the various packages, only after or upon their sale. Mr. McCormick’s affidavit set forth that this custom is so general and uniform, and has become so well established, that the gauge marks have come to be, and are indications that a sale has been had of the parcels on which they appear, since the arrival of the same at this port, and in the absence of other information showing the facts to be otherwise, said marks would be deemed by all dealers to be evidence that such packages had changed possession upon sale.
    The motion for a new trial, on the grounds of newly-discovered evidence was based on these affidavits, and the examination of the gaugers before the referee, as showing the evidence claimed to have been newly discovered. 6

    The motion was opposed on the affidavit of Mr. Jova, who fully met all the statements made in the detective’s affidavit, concerning interviews between them; also on the affidavits of Fowler, one of the plaintiffs, and of said Gordon, to the effect that the molasses referred to in the above entry in the gauger’s book was not sold to said Gordon, Mr. Fowler swearing that it was sold to a man named Dougherty.

      On the motion, it was argued that the 40 hogsheads mentioned in the entry in the gaugers’ book, were those referred to in the above order, No. 2016, and that the twenty seized were a part of them.
    Vanderpoel, Green & Cuming, attorneys, and Robert D. Green, of counsel, for appellant.

      Henry Daily, Jr., attorney, and of counsel, for respondents.
   By the Court.—Sedgwick, J.

—The only fact on which a new trial could be ordered is the face of the gaugers’ book. The affidavit of the detective, opposed, as it is, by answering affidavits, is not ground enough. The manner in which the gaugers avoid testifying with candor, is, of course, discreditable to them, but on such a motion that does not avail defendant. He must show the new facts by the witnesses themselves, and here the gaugers are his witnesses.

The gaugers’ book contains the gauge of forty hogsheads of molasses for the plaintiff, on June 7, 1867, ex Key West, marked ,F. & Co., made at pier No. 4, on the North River. The defendant shows that by the practice of the trade, having rare exceptions, a gauging was not directed, unless it was needed to consummate a sale which had been made, so far as the bargain wént. If this be so—if this case did not present an exception, if even the memorandum proves that a sale had been made to G-ordon, the evidence on the trial shows the recovery was had upon a lot which had bean removed from pier 4, had been placed in the warehouse, and had been seized by the sheriff (that seizure being the ground of the action) on June 6.

If one of the plaintiffs did not swear on the motion that'the lot gauged on June 7, was sold to Dougherty, one could easily entertain the idea that the gauging disclosed in the book did comprise the twenty-two hogsheads in question, in spite of the date and the mark. Even then, if it was possible that it should have been ordered to accompany the very peculiar arrangement that the plaintiff’s case on the trial showed existed between them and Gordon, a new trial could not be granted. The affidavit, having nothing to oppose it, must be taken to show that the lot referred lo in the book went to Dougherty.

The order appealed from is affirmed, with costs.

Curtis, Ch. J., concurred.


author: By the Court.—Freedman, J.

text:
    JOHN H. POILLON, Plaintiff and Appellant, v. CHARLES L. LAWRENCE and ZIPPORAH N. LAWRENCE, Defendants and Respondents.
    Bankrupt Discharge.
    1. IMPEACHING IN STATE COURT.

      (a.) Fraud.'—Cannot be impeached in State court on the ground that it was fraudently obtained.
    (5.) Jurisdiction, want of.—Cannot be impeached in State court for want of jurisdiction on the ground that the petitioner had not resided nor carried on business, for the six months next preceding the filing of his petition, nor for the longest period during such six months, in the judicial district where the same was presented.*
    2. DEBT NOT MENTIONED IN PETITION OR SCHEDULES.

      (a.) Effect of discharge on.—It is a discharge therefrom.
    (1.) Ignorance of creditor.—Although the creditor was in fact wholly ignorant of the bankruptcy proceedings, and his debt was not mentioned nor set forth in the petition or schedules, yet the discharge in bankruptcy discharges the debt.

      * Note.—This follows from the decision sustaining the demurrer.

      Decided February 4, 1878.
    Before Curtis, Cli. J., Sedgwick and Freedman, JJ.
    This is an action brought by the plaintiff, as •■assignee of Joseph Kittell and Alexander Klingenberg, judgment creditors of one Charles L. Lazarus ■(whom the complaint alleges to be defendant Charles L. Lawrence), to subject certain real estate, standing-in the name of defendant Zipporah N. Lawrence, his wife, to the payment of the judgment, on the ground that the same was conveyed to the wife after the recovery of the judgment, the consideration for the conveyances being all paid by the husband, and that consequently the conveyances were taken to, and in the name of the wife, in fraud of the creditors of the husband, and of the plaintiff in particular, and to prevent the same from being- made liable for his debts.
    The defendants answer separately. Each defendant alleges that defendant Charles L. Lazarus, was, on March 24, 1865, duly authorized by an order of the •court of 8 common pleas, made pursuant to the provisions of chapter 464 of the laws of 1847, as amended by chapter 80 of the laws of 1860, to change his name from Charles Louis Lazarus, to Charles Iiouis Lawrence ; which change of name was duly returned to the office of the secretary of the State, and was published in the session law-s of this State, of 1866 ; and, among other things, pleaded in bar, a discharge in bankruptcy, granted by the district court of the United States for the southern district of New York, in bankruptcy, after the recovery of judgment by Kittell & Klingenberg, to the defendant, Charles L. Lawrence.

      Under an order of the court, plaintiff replied to the - new matters contained in the answers as to the discharge in, bankruptcy of defendant, Charles L. Lawrence.
    The facts set out in the replies are in substance as follows :

      1st. That although the plaintiff and the persons in whose name the judgment was recovered, have been, ever since the rendition of it, doing business prominently and conspicuously in the city of New York, they had never known or heard of the change of name of their judgment debtor, Lazarus, until after January,, 1876, and just before the commencement of this action, and that they never knew or heard of his bankruptcy proceedings until his discharge was set up in the answer in this action.

      2nd. That the petition and proceedings in bankruptcy of Charles L. Lawrence, do not set out, or mention or allude to the change of name, nor set out the plaintiff’s debt, or judgment, or any debts of C. L. Lazarus, or of Lazarus & Wolff.

      3rd. That the debt and judgment of the plaintiff, and all other debts contracted under the name of Lazarus, or of Lazarus & Wolff, were intentionally and fraudulently omitted from his schedules.

      4til. That the change of name was used as part of a fraudulent scheme, contrived for the purpose of enabling the defendant, Lawrence, to get through bankruptcy proceedings, and obtain a discharge, without notice to the plaintiff, and other creditors of C. L. Lazarus, or of Lazarus & Wolff.

      5th. That the scheme was successful, and enabled the defendant to go through and get his discharge in bankruptcy, without any notice of any such proceedings having reached the plaintiff, except accidentally, four or five years after he obtained his discharge.

      The replies also raised an issue, as to whether defendant, Charles-L. Lawrence, had resided or carried on business for the six months next preceding the filing of his petition in bankruptcy, or for the longest period during such six months, in the judicial district where the same was presented.
    . The defendants severally demurred to the replies for insufficiency, and upon hearing at special term before Judge Sandeord, he ordered judgment for the defendants upon the demurrers, with costs.
    Judgment was entered accordingly.
    Plaintiff appeals from the order and judgment.
    The following opinion was delivered at special term.
    Sandeord, J.—The case of Ocean National Bank v. Olcott (46 N. Y. 12), establishes the proposition that a discharge in bankruptcy cannot be impeached in any other court than that by which it was granted, on the ground that it was fraudulently obtained. In the present case, which is closely analogous, being, like that, an action in the nature of a creditor’s bill, the plaintiff, as assignee of judgments against the defendant, 0. L. Lawrence, seeks to enforce them against property standing in the name of the judgment debtor’s wife, but held by her colorably and in secret trust for her husband. Both husband and wife answer separately, and each sets up, tiy way of defense, a discharge in bankruptcy, granted to him by the district court of the United States for the southern district of New York.
    The plaintiff replies, and insists that the discharge is inoperative and of no effect as against his claims, not because they were fraudulently contracted, or incurred or created by the embezzlement or defalcation of the debtor, or while he was acting in any fiduciary character, but because the discharge itself was fraudulently obtained.
    The grounds, upon which he assails it, affect its validity, and are such as, if duly presented in the bankrupt court, would have sufficed to prevent or annul it. The plaintiff’s claims were provable against the estate of the bankrupt, and he might have had relief, had he duly applied for it, under and pursuant to the provisions of the bankrupt act, which accord to the bankrupt court exclusive jurisdiction to render it. Having omitted so to do, he is precluded from asserting, elsewhere and collaterally, the objections which, at the proper time and place, he omitted to urge. That such omission resulted from his ignorance of the facts and of the proceedings, is immaterial. The point has been expressly adjudicated in at least two well considered cases, each of which seems to me to have been correctly decided. They are Black v. Blazo, 117 Mass. 17; Thurmond v. Andrews, 10 Bush, 400.
    The defendants are entitled to judgment on their demurrers, with costs.

      Benjamin G. Hitchings, attorney, and of counsel, for appellant, urged :
    —I. It is not within the scope, or meaning, or intent of the bankrupt law, that a debtor under a changed name, should obtain a discharge from his debts contracted under a different name, without setting out or alluding to the change of name in his petition, or in any of the proceedings, or setting out in his schedules any debts contracted under his original name. Such a proceeding absolutely nullifies and avoids all the provisions of the law in favor of such creditors. It deprives them of all notice of the proceedings, and of all the provisions for notice contained in the act, and thereby of all participation in the assets of the debtor, and of all opportunity to be heard upon the question of his discharge. Such a proceeding, as to such creditors, under such circumstances, can be of no validity or effect whatever. It is not within the purview of the act. Especially is that the case when the change of name is taken advantage of and used as part of a _ fraudulent scheme, to get a discharge without creditors having a chance or opportunity for any notice. To deprive a creditor of his debt by a discharge so obtained, would be in violation of a fundamental principle of jurisprudence and of constitutional law. It would be to deprive him of his property and Ms rights without any notice to him, and where he was intentionally and fraudulently deprived of the benefit of all the provisions for notice prescribed by the act.
    II. So far as the rights of creditors are concerned, the fact that the defendant had procured a change of name by legal proceedings is immaterial. Creditors are not affected with notice of the change of name by virtue of such proceedings. The statute does not provide that the pre-existing rights of any parties shall be affected by the change of name, or that creditors or others shall be charged with notice of such proceeding. It simply provides that “ thereafter he shall be known by the new name” (L. of 1847, c. 464; L. of 1860, ch. 80). The proceeding for the change of name is one simply and solely for the gratification or benefit of the applicant. It is simply a permission, as a favor to the applicant, to use thereafter a new name, without intending to affect thereby in any way the rights of creditors or others (See Matter of Snook, 2 Hilt. 566). The publication of the change of name in the session laws was not intended as a notice to creditors, but to furnish permanent evidence of the change in case it might be important with reference to the title or succession to property, or otherwise.
    III. If the defendant wished to obtain a discharge from Ms debts contracted under the name of Lazarus, as well as those under the name of Lawrence, he should have set out, in his petition, his change of name, and the debts so contracted under the name of Lazarus' in his schedules, so that the provisions of the act for notice to creditors and for the protection of their rights might have become applicable to the plaintiff and the other creditors of Lazarus. ¡Not having done so, his discharge does not affect such debts. Such creditors were, in no sense, constructively parties to the proceeding, nor affected by it in any way. The discharge may be valid as to creditors of Lawrence, having debts contracted in that name. That is not the question. But how can it be valid against the creditors of Lazarus, who have, in no way, been made parties to the proceeding or had any opportunity of notice? The constitution provides that no man shall be deprived of his property without due process of law. And due process of law implies some judicial proceeding to which the person to be affected is a party, and of which he has such notice as the law provides for (Taylor v. Porter, 4 Hill, 140). Upon proof of a want of notice, and especially of a fraudulent deprivation of it, any judgment will be set aside (Ogden v. Saunders, 12 Wheat. 366). The notice required to render a judgment or decree valid need not be, in all cases, personal, but it must be, at all events, such as the legislature has seen fit to prescribe in reference to the proceeding under which the judgment or decree is make (Empire City Bank, 18 N. Y. 189; 8 Abb. Pr. 192). In bankruptcy proceedings the legislative power has seen fit to dispense with personal notice, and has substituted instead of it: 1st. A publication of various notices to creditors in the newspapers. 2nd. A notice to each of the creditors named in the schedules, sent usually by mail. But a publication in the newspapers that one Lawrence has filed a petition in bankruptcy, is no notice to a crédito^ of Lazarus, or of Lazarus and Wolff. Again, the provision for sending notices by mail or otherwise, to creditors named in the schedules, could be of no avail to creditors of Lazarus, because no such debts or creditors were set out or named. The plaintiff and other creditors of Lazarus were therefore absolutely and necessarily deprived of the benefit of all the provisions for notice prescribed by the act.
    IY. Even in the ordinary case, where there has been no change of name, the weight of authority is to the effect, that an intentional or fraudulent omission of a debt, invalidates the discharge as to that debt so omitted, and that the creditor can avail himself of it in reply to the discharge when pleaded (Bump on Bankr. 731; Batchelder v. Low, 43 Vt. 662; Beardsley v. Hall, 36 Conn. 270; Alcott v. Avery, 1 Bart. Ch. 347; Hubbel v. Camp, 11 Paige, 310; 1 Denio, 75, 332, 619).
    y. We come therefore to the inquiry, whether, when a discharge is pleaded as a bar to a debt, the creditor has- a right to set up, in reply to it, its invalidity as against his debt—especially when in a case where he has not, and never has had an opportunity to contest in the bankruptcy court. The plaintiff is.not'precluded by section 5130 of the bankrupt act, or by any provision of that act, or by any principle of law, from contesting the discharge as a bar to his action in this court, where it is set up and pleaded as a bar to the action. First. He is not precluded by section 5130. This section does not, and from the nature of the case cannot, apply to creditors, not in any way made parties to the proceeding, and who have had no notice (Bump on Bankr. [8th Ed.] 756; Barnes v. Moore, 2 B. R. 573; Bump on Bankr. 729, 273). It is clear that the plaintiff cannot be precluded by the provisions of that section. 1. Because the grounds upon which the plaintiff relies to resist the discharge as a bar to his action,—i. e., the proceeding under a new name, and the fraudulent deprivation of all notice of the proceedings,—are not among the grounds specified in the act, upon which to apply to annul the discharge in the United States court (See § 5110 of the act). 2. The time within which the application to annul the discharge could be made (two years from the date of it), had expired years before plaintiff had any notice of the change of name or of any bankruptcy proceedings. 3. What plaintiff complains of, is not a ground for annulling the discharge. He does not dispute the validity of the discharge as against debts contracted under the name of Lawrence. But he claims that the discharge is of no validity or effect against his debt. That as against him and other creditors of Lazarus, there has been no legal proceeding in bankruptcy, whatever. There is no provision in the bankrupt act for raising that question in the bankruptcy court. It can only be raised and decided where the discharge is pleaded (Bump on Bank. [8th Ed.] 729, 273; In re Kimball, 2 B. R. 204; Same case, 2 Ben. 554; affirmed on appeal, 6 Blatchf. 292; In re Rosenberg, 2 B. R. 236; S. C., 3 Ben. 14; In re Wright, 2 B. R. 142; S. C., 36 How. Pr. 167; S. C., 2 Ben. 509; Batchelder v. Low, 43 Vt. 662; Beardsley v. Hall, 36 Conn. 270. See also Knobe v. Hayes, 71 N. C. 109; Perkins v. Gray, 3 B. R. 772; Bames v. Moore, 2 Id. 573; Hays v. Blore, 14 Mees. & Weis. 387). But this is a very different case from any reported. If the plaintiff cannot be heard in opposition to the discharge, here, where it is pleaded, he has been deprived of his debt without any opportunity for a hearing, either before the discharge, or afterwards. Second. He is not precluded by the provision of the bankrupt act, that the discharge may be pleaded as a complete bar against all debts, that were proved or provable (Act, § 5119). But that does not mean that when pleaded as a bar, it must necessarily be adjudged to be a bar. The question whether it is valid as a bar against the creditor’s debt, is to be determined upon the plea. The section referred to means no more than this. The discharge may be pleaded as a complete bar of the debt sued upon ; but if it can be shown not to cover or apply to the plaintiff’s debt, the court must so determine upon the plea (Bump, 729; 2 B. R. 204; 2 Ben. 554; Dusenbury v. Hoyt, 53 N. Y. 521, and cases cited above).
    VI. The question whether the State court is precluded from adjudicating upon the main question raised in this case, is much more than covered by a recent decision of the supreme court of the United States, in which it is held, that the common law jurisdiction of the State courts, in matters growing out of bankruptcy proceedings, is not abrogated or divested, except where the jurisdiction of the United States court is expressly made exclusive by the act (Claflin v. Houseman, 93 U. S. 130. See also Cook v. Whipple, 55 N. Y. 150).
    VII. The case of the Ocean Bank v. Olcott (46 N. Y. 12) does not conflict with any position taken by the plaintiff in this case. In that case the plaintiff insisted that the discharge of the bankrupt was void, by reason of a fraudulent transfer of property to his wife before the bankruptcy proceedings. Ho thing else was set up against the validity of the discharge. He was a party to the proceedings in bankruptcy, and had made an application in the United States court, which was then pending and undetermined, to annul the discharge upon the very same ground. Under such circumstances the pourt held, of course, that the question could not be raised in the State court, as it would or might result in a conflict of jurisdiction. In that case, the ground of disputing the validity of the discharge was a ground upon which to contest the granting of the discharge, or to move to annul it, and the plaintiff had actually resorted to that course. There is a decisión in Massachusetts and another in Kentucky, that the fraudulent omission of a debt from the schedules does not invalidate the discharge as to that creditor’s debt (117 Mass. 17; 10 Bush, 400); but those decisions are against the whole current of authority, against principle and good morals. But if admitted to be law, they are no authority for this case. In those cases there was no change of name, nor a failure to discover the bankruptcy proceedings until after all opportunity for redress in the United States courts was gone.
    VIII. The bankruptcy proceeding in this case was not a proceeding involving the partnership of Lazarus and Wolff, and a discharge upon his individual petition does not discharge a partnership debt (Bump on Bankruptcy, 732, 762; Hudgins v. Lane, 11 N. B. R. 462; In re Noonan, 10 Id. 330; 2 Id. 78). It has frequently been so decided by Judge Blatci-ieoed.
    IX. The discharge is void for want of jurisdiction. To give jurisdiction, the bankrupt must have resided within the jurisdiction of the court, for a length of time before his application. In the reply to the answer of Mrs. Lawrence, plaintiff denies, and takes issue upon that question. In the reply to the answer of the defendant, Charles L. Lawrence, plaintiff makes the same issue of fact. The fact of residence within the district is jurisdictional (Bump, 731, 749; In re Penn, 3 N. B. R. 582; 4 Ben. 99; In re Goodfellow, 3 N. B. R. 452; Johnson v. Ball, 15 N. H. 407; Morrison v. Woolson, 23 N. H. 11; McCormick v. Pickering, 4 N. Y. 276; 24 Barb. 649; 68 Id. 416).

      X. The discharge is a personal privilege. No one but the debtor can set it up. Mrs. Lawrence could not plead it (Dewey v. Mayer, 16 N. B. R. 1; Bennett v. Caswell, 7 Gray, 153).

      Henry Stanton, attorney and counsel, for respondent, urged :
    —I. The discharge in bankruptcy extinguished the debt which is the foundation of this action, and when this action was commenced the plaintiff was not a creditor within the meaning of the statute of uses and trusts (Ocean National Bank v. Olcott, 46 N. Y. 12).
    II. The discharge in bankruptcy cannot be impeached in this court on the ground that it-was improperly granted. The validity of the discharge can only be attacked in the Federal court, and that in the manner prescribed by section 5120 of the bankrupt act. The jurisdiction of the Federal court for that purpose is exclusive (Ocean National Bank v. Olcott, 46 N. Y. 12; Stern v. Nussbaum, 5 Daly, 382; Stevens v. Brown, 11 N. B. R. 568; Black v. Blazo, 117 Mass. 17; 13 N. B. R. 195; Corey v. Ripley, 4 Id. 503; May v. House, 4 Id. 677).
    III. The facts that the plaintiff’s judgment was not mentioned in the bankruptcy schedules, and that neither the plaintiff nor his assignors had any notice of the proceedings, are immaterial. The discharge, nevertheless, is a defense (Stern v. Nussbaum, 5 Daly, 382; In re Archenbrown, 11 N. B. R. 149; Black v. Blazo, 117 Mass. 17; 13 N. B. R. 195; Thurmond v. Andrews, 10 Bush, 400; 13 N. B. R. 157; Lamby v. Brown, 12 Id. 522).
    IV. The fact that the debt was a partnership debt, and the bankruptcy petition an individual petition, is immaterial. Under some of the authorities that fact might be material, if it was also alleged, which it is not, that the copartnership was in actual existence, and that there were assets belonging to the firm (In re Winkins, 2 N. B. R. 349; In re Little, 1 Id. 341; In re Abbe, 2 Id. 75; Wilkins v. Davis, Id. Feb. 15, 1877, p. 60).
    V. The plaintiff’s judgment was provable in the bankruptcy proceedings, even though it was a partnership debt-, and the petition was an individual petition (In re Frear, 1 N. B. R. 660).
    VI. The allegation in the replies, ühab the name was changed with the fraudulent intent to procure a discharge in bankruptcy, is shown to be erroneous by the fact that the name was changed in 1865, while the bankrupt act was not passed for two years afterwards.
   By the Court.—Freedman, J.

—The reasons assigned by the learned judge below in sustaining the demurrers, are conclusive upon this court.

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

Curtis, Ch. J., and Sedgwick, J., concurred.