author: Daniels, J.: Van Brunt, P. J.:

text:
    JEAN BARON and ZELIE BARON, Appellants, v. ISIDOR S. KORN, Respondent.

      Equity—right to enjoin the obstruction, by an adjoining owner, of an alley—remedy at law in such case — it must be pleaded in the answer.

    The lands of the parties to this action on the northerly side of Bleecker street, New York, were separated by an alley which extended to the rear of the building erected on the plaintiffs’ land. The westerly wall of the defendant’s building, built upwards of forty years prior to the trial, and having no opening into it, formed the easterly bounds of the alley. The alley was closed by a door on Bleecker street, of which plaintiffs, who used the alley, had the key. The defendant took down his westerly wall and excavated for a wall for a new building to a line nine and one-half inches westerly of the easterly line of the alley as it had been theretofore used.
    Upon an appeal by the plaintiffs from a judgment, in an action brought to restrain the erection of this wall, dismissing the complaint on the ground that the plaintiffs had failed to establish any equitable cause of action or irremediable injury or other ground of equitable relief.

      Held, that the forty years’ appropriation of this strip of ground to the use and maintenance of the alley had created an easement which the plaintiffs were entitled to enjoy as the owners of the land to which it had been annexed.
    That the only action at law which could be brought by the plaintiffs would be an action for damages for contracting and obstructing the alley, so far as to impair its usefulness in the business of the plaintiffs.
    That such an action would not supply the plaintiffs with an adequate remedy for the injuries sustained by this encroachment upon the space previously allotted to use as an alley, as all that could be recovered in such an action would be the damages sustained up to the time of the commencement of the action; and that, as for succeeding damages other actions would of necessity have to be resorted to, the facts presented a case for relief in a court of equity.
    That the right of the plaintiffs to maintain their action against the defendant, and ■ to prosecute it in a court of equity to compel the removal of the obstruction which the defendant had in this manner placed in this alley, thereby contracting its width was conclusively established.
    The authorities bearing upon this question collated by Daniels, J.
    That a defendant when sued in equity cannot avail himself of the defense that an adequate remedy exists at law, unless he pleads that defense in his answer.
    Appeal from a judgment dismissing the plaintiffs’ complaint, entered on a decision of the New York Special Term. January, 1888.

      Carlisle Norwood, Jr., for the appellants.

      Lewis Sanders, for the respondent.
   Daniels, J.:

The plaintiffs are husband and wife, and they were the owners of four lots of land on the northerly side of Bleecker street, in the city of New York, extending on that street 100 feet easterly from the easterly line of MacDougal street. The defendant was the owner of four lots in the same block extending, on the same street, 100 feet westerly from the westerly line of Sullivan street. These eight lots included the land in the block on the Bleecker street front, with the exception of a strip devoted to an alley between tlie land owned by the plaintiffs and that owned by the defendant. This alley was two feet eleven and one-half inches in width on the Bleeclcer street front, and it extended to the rear of the building erected upon the easterly lot owned by the plaintiffs. From the termination of the alley to the rear of the lot, a fence on a line with the easterly line of the alley was erected and maintained, and at the rear a shed had been constructed and built, extending the easterly end • to the same line. This alley had existed in this manner for a period of upwards of forty years prior to the day of the trial of this action, which was in January, 1888. The westerly lot of the defendant’s land had been built upon upwards of forty years prior to the trial, and the westerly wall of that building formed the easterly bounds of the alley. On the Bleecker street front it was inclosed by a door secured by a lock, the key of which was delivered to the plaintiffs when they acquired the title to their land, on or about the 19th of March, 1888. The alley had. a flagging floor, and it was used by the plaintiffs in taking barrels or casks of wine to the rear of the premises for bottling purposes. Before the commencement of the action the defendant took down the building upon his westerly lot and the wall forming the easterly bounds of the alley, and excavated for the construction of a new building. And in his excavations he extended his westerly line for the distance of nine and a half inches westerly of the easterly line of the alley as it had previously been maintained and used. And this reduced its width so far as to render its dimensions too contracted for taking barrels through it to the rear of the plaintiffs’ house.

The plaintiffs objected to this contraction of the width of the alley; but, notwithstanding the objection, the defendant proceeded with the laying and erecting of his westerly foundation wall. This action was thereupon commenced to restrain the erection of the wall and the contraction of the alley in this manner thereby, and an injunction was issued having that effect. A motion was made to continue it, which seems not to have been heard or decided; but it was consented in writing, by the attorneys for the plaintiffs, that the hearing should be adjourned from the third to the seventeenth of August, “the defendant to be at liberty to proceed with his building, as if no injunction had been issued.” This stipulation was made the foundation of a part of the answer of the defendant, upon which lie insisted that the plaintiffs had consented to the erection of this wall. But such was not the effect of the stipulation. They gave no consent to the erection of the wall, but simply agreed that the defendant should be at liberty to proceed with his building the same as if no injunction had been issued. What they agreed to was, that the restraint of the injunction in the meantime should be released; but that gave the defendant no right or privilege to proceed with the erection of the wall, if this extension of the westerly line was without legal authority. It placed the action, for the time being certainly, in the same attitude it would have been in if no injunction whatever had been issued; and, in that condition, the defendant would proceed at his peril in extending his westerly line over this nine and a half inches of ground into the alley. And when he afterwards proceeded to put up this wall of the building, he did so at the risk of its being determined that no legal right to do so existed in his behalf.

The case, however, at the trial, was not dismissed upon the effect of this consent, but the dismissal of the complaint was directed- for the reason that “ the plaintiffs have failed to establish any equitable cause of action or irremediable injury, or other ground of equitable relief; ” and, by the judgment, it was “ adjudged and decreed that the complaint be dismissed for want of equitable jurisdiction.” This was the sole and only ground upon which the action was considered to have failed when it was tried at the Special Term. It has been stated, in support of the judgment, that the plaintiffs’ remedy was by an action of ejectment. But the title to this land was evidently not conveyed to the plaintiffs by the deed delivered to them, or either of the preceding deeds through which the title had been derived; and the findings upon which the appeal has been brought have not stated the fact to be that the plaintiffs were entitled to the use and occupancy of this land by an adverse possession. All that they would have, consequently, in the way of an action at law, would be an action for damages for contracting and obstructing the alley so far as to impair its usefulness in the business of the plaintiffs. And such an action might be maintained, for the forty years appropriation of this strip of ground to the use and maintenance of the alley would create an easement which the plaintiffs would be entitled to enjoy as the owners of the land to which it appears to have been annexed; for, as there was no opening in the westerly wall of the building upon the defendant’s westerly land, and the alley was kept closed and the key. to the lock used for that object was in the possession of the plaintiffs, the conclusion appears to be inevitable that the alley was maintained for the use and convenience of the plaintiff’s property, and this long-continued use would create an easement in their favor.

But an action for damages would not supply the plaintiffs with an adequate remedy for the injury sustained by this encroachment upon the space previously allotted to and used as the alley. For all that could be recovered in such an action would be the damages sustained up to the time of the commencement of the suit. And for succeeding damages other actions would of necessity have to-be resorted to. And when that is the case courts of equity have always been in the habit of interfering when it appears that the cause of complaint is continuous and enduring in its nature, as it clearly was in this case. The obstruction and contraction of the alley by the erection of this wall, which was continued from the foundation and completed during the pendency of the action, was in the nature of a private nuisance. And it has been the province of courts of equity to interfere in such cases, and to award redress to the injured party by the removal of the nuisance. Upon this subject it has been held that a court of equity, pursuing the analogy of the law “ that a party may maintain a private action for special damages, even in case of a public nuisance, will now take jurisdiction in case of a public nuisance, at the instance of a private person, where he is in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy.” And, “in regard to private nuisances, the interference of courts of equity, by way of injunction, is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing, oppressive and interminable litigation, or of preventing multiplicity of suits. (State of Penn. v. Wheeling, etc., Bridge Co., 13 How. [U. S.], 518, 566-568; Southmayd v. McLaughlin, 9 C. E. Green [24 N. J. Eq.], 181; Hills v. Miller, 3 Paige, 254; Trustees of Watertown v. Cowen, 4 id., 510; Tribune Association v. The Sun, etc., Association, 7 Hun, 175 ; Johnson v. City of Rochester, 13 id., 285; Corning v. Lowerre, 6 Johns. Ch., 439; Wheelock v. Noonan, 21 J. & S., 286; Merrifield v. Lombard, 13 Allen, 16.) In the last ease a water-course had been obstructed, and the court held in its decision that “ the right of the latter (plaintiff) to equitable relief is clear and unquestionable. The acts of the defendant tend to create a nuisance of a continuous and constantly accruing nature, for which an action at law can furnish no adequate relief” (Id., 18). (Wheelock v. Noonan, 108 N. Y., 179.)

In the last case the defendant had placed stone upon the plaintiff’s land which he failed to remove when required to do so by its owner; and the action was brought and maintained to compel him to remove the stone from the ground. The objection was there taken that an action in equity could not be maintained for that object, but that the plaintiff was restricted to his action at law. But this objection was overruled, and the court held that the facts presented a case for relief in a court of equity. These authorities are entirely conclusive as to the right of the plaintiffs, if they can maintain their action against the defendant, to prosecute it in a court of equity for the removal of the obstruction which the defendant has in this manner placed in, and thereby contracted the width of, this alley.

Another answer to the objection that the plaintiffs were confined to their remedy at law arises out of the frame of the answer itself, by which no intimation was given that this objection would be made in the case. And the omission to present it by the answer appears to have disabled the defendant from taking the objection at the trial. Town of Mentz v. Cook (108 N. Y., 504), where it was said that, it apjiears to be settled by a very general concurrence of authority that a defendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exists, unless he pleads that defense in his answer.” (Id., 508.)

This was. the sole and only ground upon which the plaintiffs appear to have failed in the prosecution of their action. In no respect has the court found, or decided, that the plaintiffs’ evidence was, in any respect, defective. That evidence is not incorporated in the case which has been brought before this court, only upon the findings of fact and conclusions of law, and the exceptions taken to them. And it is to be assumed in its disposition that these findings were warranted by the evidence given during the trial. And this being the only defect which was considered in the way of maintaining the action, and that being devoid of all legal foundation, the judgment was necessarily erroneous, and it should be reversed and a new trial ordered, with costs to the plaintiffs to abide the event.

Van Brunt, P. J.:

I concur in the result. I am of the opinion that the evidence showed that a title had been acquired by adverse possession, .and that the findings, although they did not find the distinct facts, found others from which it necessarily arose. I am also of the opinion that the action was maintainable because no adequate relief could be obtained in an action at law. A judgment in an ejectment suit could not be executed because it would be impossible to take down nine and a half inches of wall erected without disturbing the balance. Hence arose the necessity for equitable interference.

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


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    In the Matter of the Application of MAX WOLF for an order Requiring CHARLES P. CROSBY to pay over Moneys Received by him and Belonging to MAX WOLF.

      Proceedings to compel an attorney to pay over money ■— when all the members of the firm need not be made parties — the retention of the money for the settlement of a controversy is not a legal answer — interest, when, chargeable.

    In an action for malicious prosecution, brought by the present applicant, Max Wolf, against Henry Flias in the City Court of Brooklyn, which was commenced on the 23d day of April, 1881, by the law firm of Daily & Crosby, who were the attorneys and counsel of the plaintiff in that action, a judgment was recovered by the plaintiff which was paid on July 11, 1881, by a check for $1,155.53 made and delivered to Charles P. Crosby, the other, partner, Daily, being then in Europe. The firm name was indorsed upon it by Crosby, who received the money and converted the same to his own use except the sum of $250 thereof which was paid to the petititioner.
    This proceeding was instituted in June, 1887, for an order requiring Crosby to pay over the balance of the money still remaining in his hands, which was claimed to be the sum of $895.63, after deducting a bill which had been rendered to the petitioner for services previously rendered by Daley, the other member of the firm, and by the firm itself. By the report of a referee appointed in this proceeding there was found to be due and owing to the petitioner the sum of $450.28, with interest, from January 1, 1882.

      Upon an appeal from an order confirming the report and directing the payment of the sum found to be due by it, Crosby claimed that he was not the attorney of the petitioner in the litigation, and that he had not acted as his attorney or counsel in it.

      Held, that this claim could not be sustained as he was a member of the firm of Daily & Crosby, and the firm appeared as the attorneys for the petitioner in that action; although the services were rendered personally by Daily, the other member.
    An objection was taken by the appellant that the proceeding was defective on account of the omission to join Daily, the other partner, as a party to it.

      Held, that the objection was not well taken, as it was not necessary to join all the members of the legal firm when the charge of misconduct was restricted to one of the individuals forming the firm.
    The appellant claimed that his refusal to pay was made in good faith upon the claim that the balance of the moneys should be retained for the adjustment of the services performed by the firm, and also by Daily previous to its formation, for the petitioner.

      Held, that while the court might, in its discretion at the first hearing, if this objection had been then taken, have dismissed the proceeding and left the petitioner to his action for the recovery of any balance that might be due to him, it would now be unjust to the petitioner to dismiss the proceeding on that ground for the reason that any action which should hereafter be instituted against the appellant, or against both members of this firm, would be barred by the statute of limitations..

      Matter of Mertian (29 Hun, 459); Case of Paschal (10 Wall., 483) distinguished.
    That the retention of money by an attorney in good faith, and for the settlement of a disputed controversy concerning his right to retain it, is not. a legal answer to a summary proceeding of this description.

      Bowling Green Savings Bank v. Todd (52 N. Y., 489) followed.
    A summary proceeding of this character will be sustained, in order to enforce the payment of money by the attorney, collected by him in his official capacity, and also for his delivery of documents belonging to his clients and which he appears to have no authority for retaining.

      Matter of H--(87 id., 521); Matter of Hasson (26 Hun, 180) followed.
    By the order which was made Crosby was charged with interest upon the balance remaining in his hands, after deducting the amounts found to be owing to Daily and himself, and to the firm of Daily & Crosby, from the 1st of January, 1883.

      Held, that, as, in this case, so much of the money as was necessary for that purpose should be applied to the payment of the petitioner’s indebtedness to Daily, as well as of his indebtedness to the firm; and as that amount was uncertain, until the amount was determined by the referee, that the petitioner was only entitled to interest upon-the balance from the 11th of June, 1887, when this proceeding was commenced.
    Appeal from an order, made at the New York Special Term overruling exceptions to the report of a referee, and confirming his report and directing the payment by Charles B. Crosby, the appellant, of the sum of $630.93, besides costs and disbursements, to Max Wolf, the applicant, which order was entered in the office of the clerk of the city and county of How York on August 24, 1888.

      Wheeler H. Peckham, for the appellant.

      Joseph Fettretch, for the respondent.
   Daniels, J.:

It appeared in support of the application for the order that an action had been prosecuted in the City Court of Brooklyn by Max Wolf, the applicant, against Henry Elias, for a malicious prosecution. In that action the petitioner recovered a judgment for $1,000 damages, and $145.63 costs. This action was commenced on the 23d of April, 1881, and the law firm of Daily & Crosby were the attorneys and counsel of' the plaintiff in the action. The appellant, Charles P. Crosby, was a member of this firm, which was formed on the 1st of February, 1880. And it was agreed between the partners in their articles of copartnership that all cases and matters of business which would come into the hands of the firm, or either of the same, after the 1st of February, 1880, should be carried on, concluded and closed for the joint and equal benefit of these two partners. The action for malicious prosecution was brought on account of the arrest of the petitioner in a criminal proceeding on the 31st of August, 1880. It was continued from time to time to the 4tli of April, 1881, when the petitioner was discharged, and the recovery of the verdict and judgment in the City Court of Brooklyn was obtained because of this prosecution being unfounded and malicious. A still earlier litigation existed between the defendant in the petitioner’s action and his partner Betts for the settlement of differences between them as copartners. An adjustment of those differences appears to have taken place, and, as a part of the agreement then made, payment of the judgment recovered against the defendant in the petitioner’s action was required to be made. On the 11th of July, 1881, John F. Betts, one of these partners, made and delivered his check to Charles P. Crosby, of this firm of Daily & Crosby, for the payment of the judgment, amounting at that time to the sum of $1,155.53. The other copartner, Daily, was in Europe at the time when this check was made and delivered. The firm name was indorsed upon it by Mr. Crosby, the appellant, and the moneys represented by the check were paid by the bank to him. And no part of the proceeds beyond the sum of $250 was ever paid to the petitioner, but, on the contrary, the appellant appropriated the residue of these moneys to his own use. The business remained in this situation until the 4th of April, 1887, when the petitioner, in writing, demanded of the appellant the payment to him of the sum of $895.63 as the balance still remaining owing to him. No part of the moneys were paid over to the petitioner, but payment was refused by the appellant, and this proceeding was instituted in the early part of the month of June, 1887, for an order requiring the appellant to pay over the balance of the moneys still remaining in his hands, after deducting a bill which had been rendered to the petitioner for services previously rendered by Daily, the other member of the firm, and by the firm itself. The appellant claiming, by his answer to the petition, that no amount of money in this manner paid to him was payable to the petitioner, a reference was directed to a referee to take proof and report it with his opinion to the court. This order of reference was made without objection on the part of the appellant, and the referee took the proof which was offered, and with his report returned it to the court. By his report he found to be due and owing to the petitioner the sum of $450.28, with interest from January 1, 1882, amounting in the whole to the sum of $625. This was the balance arrived at after deducting what was found to be owing to Daily and Daily & Crosby for their preceding legal services; and with interest and the disbursements it was ordered to be paid.

The order has been objected to on the ground that Mr. Crosby, the appellant, was not the attorney of the petitioner i'n the litigation. And the petitioner testified that he did not employ the appellant, and that the latter had not acted as his attorney or counsel in the litigation. But what the petitioner evidently intended by this evidence was, that he did not personally employ the appellant, and that the latter did not act in the litigation. But that he was one of his attorneys in this litigation is proved by the other evidence taken in the course of the proceedings, for he employed the other copartner, who had previously done business for him. And that employment of him for the commencement and prosecution of the suit in the City Court of Brooklyn was as a member of the firm of Daily & Crosby. And the firm appeared as the attorneys for the petitioner in the action, although the services themselves were rendered personally by Daily, the other member. And under the articles of copartnership made between these two persons, the appellant was entitled to the benefit of this employment and of the rendition of these services as part of the partnership business. Both the employment and the performance of the services were that of the firm, although arising out of the authority conferred upon Daily himself. And it rendered the appellant one of the attorneys for the petitioner in the proceedings although he was not specially employed or acted as such. When Daily left the city of Hew York for Europe the business was under the charge of the appellant as the other member. And it was with him, in that capacity, that the final settlement of the judgment recovered in the City Court of Brooklyn took place. The check was delivered to him. He indorsed it and obtained the money. And with .the exception of the payment made to the petitioner soon after-wards, lie appropriated and used the money for his own benefit. He had, at that time, been an attorney of this court for upwards of fifteen years. And that he received the money in this capacity is supported by the facts already stated.

The objection was taken that the proceeding was defective, on account of the omission to join Daily, the other partner, as a party to it. And authorities have been cited which have been urged in support of this objection. But they do not support it, for in these 'cases actions were brought to enforce obligations which were the joint liabilities of the firms. (McFarland v. Cary, 8 Cow., 253; Taylor v. Bates, 5 id., 376; Green v. Milbank, 3 Abb. N. C., 138.) Heither these cases, nor any others which have been consulted, support the objection that in a proceeding of this nature it will be necessary to join all the members of the legal firm', when the charge of misconduct may be restricted to one of the individuals forming the firm.

The proceeding against the appellant was founded upon his own individual appropriation of these moneys, no part of which was passed over to his partner, and his refusal to pay over any part of them to the petitioner. It was to redress the wrong charged wholly against the appellant; and, to secure that redress, the other partner was not a necessary or proper party. This refusal of the appellant to pay is stated to have been made in good faith, upon the claim that the balance of the moneys should be retained for the adjustment of the services performed by the firm, and also by Mr. Daily, previous to its formation, for the petitioner. But the fact that this claim was made in good faith is no answer to this proceeding. It might have induced the court, in its discretion, at the first hearing, if the objection had then been taken, to dismiss the proceeding and leave the petitioner to his action for the recovery of any balance that might be due to him out of these moneys. But that does not seem to have been asked for at the time; for the order of reference appears to have been made without any resistance or objection on behalf of the appellant; and it would now be unjust to the petitioner to dismiss the proceeding- on this ground, for the reason that any action which should be hereafter instituted against the appellant, or against both members of this firm, would be barred by the statute of limitations. (Code of Civil Pro., § 410.) To turn the applicant out of court at this time, therefore, would be to deprive him of all remedy for the recovery of any balance owing to him; and that certainly should not be done as long as this objection was not raised at the time when he was at liberty to proceed by action. The case, accordingly, is not within anything that was said in Matter of Mertian (29 Hun, 459). The Case of Paschal (10 Wall., 483) is an authority in support of the objection only under ordinary circumstances, but not upon the facts here presented, which would deprive the petitioner of all redress in case he should be held, for this reason, to fail in this proceeding. But that authority, even under ordinary circumstances, has not been followed in this State, where it is held to be the law that the retention of the money by the attorney in good faith, and for the settlement of a disputed controversy concerning his right to retain it, is not a legal answer to a summary proceeding of this description. (Bowling Green Savings Bank v. Todd, 52 N. Y., 489.) This case sanctions and supports the right of the creditor to resort to a summary proceeding to ascertain the amount to which he may be entitled of the moneys received, and to enforce the payment of that amount by an order of the court. The proceeding has been sustained upon the ground that the attorney acts as an officer of the court, and that it is its duty to enforce the claims and demands of justice between its officers and other persons employing and dealing with them in this manner in their official capacity. This authority has been followed in Matter of Knapp (85 N. Y., 284), and Matter of Chittenden (4 N. Y. St. Rep., 606; affirmed on appeal, 105 N. Y., 679), and the proceeding has been sustained, not only to enforce the payment of money by the attorney, collected by him in his official capacity, but also for the delivery of documents belonging to his client, and which he appears to have no authority for retaining. (Matter of H., 87 N. Y., 521; Matter of Husson, 26 Hun, 130.)

The case of Forster is so distinguishable in its important facts as to be entitled to no control over the decision of this controversy, for there, warrants which had been received, and which it was the object of the proceeding to require the attorney to deliver to the clients, had been obtained under the decisions of the Court of Commissioners of Alabama Claims. That court was created and continued by the laws of congress, and the attorneys appearing and practicing there were specially admitted for that object by the court itself. On receiving the warrants, therefore, the attorney in that case did not act as an attorney of this court, but of the Court of Alabama Claims, and he could very well be exonerated, as he was by the prevailing decision, from liability to a proceeding in this court, to compel him to deliver the warrants to the respective claimants. The conduct drawn in question was not that of an officer of this court, but it was that of an officer of the Court of Alabama Claims, and for that he was not accountable in the proceeding which was taken against him. But this case depends upon an entirely different state of facts, for in commencing and prosecuting the action in the City Court of Brooklyn the attorneys acted under the authority vested in them as attorneys of the Supreme Court. They required no admission to practice in the City Court in order to commence and prosecute the action there; but under the laws of this State were entitled to do so by virtue of and as a result of their admission to practice in this court. Besides that, when the money was paid over the proceeding in the City Court of Brooklyn had been entirely consummated. The judgment had been recovered, and the money was not obtained upon any process or order issuing out of the City Court of Brooklyn, but it was voluntarily paid and received by the appellant solely and only in his capacity of attorney and as a member of the firm of Daily & Crosby. And it was received by him, in fact, so far as a balance remained payable to the petitioner as his attorney, and for that he became accountable in this proceeding, the same as he would if demands had been delivered over to him for collection, and they were afterwards voluntarily paid to him by the debtors. In that class of cases, under the authorities which have already been mentioned, the jurisdiction of this court, bjt a summary proceeding to compel the payment of the money by the attorney, is fully sustained; and the principle upon which it has been so sustained is entirely applicable to this proceeding, for there can be no substantial distinction between the case of the collection of accounts and demands by the attorney, and the collection of this money which was voluntarily paid over to him by the partner of the defendant in the action, for the purpose of satisfying and extinguishing the judgment. To hold that the attorney might be summarily proceeded against in the former case while he could not in the latter would be materially to abridge the utility of a proceeding which the courts have sustained for the purpose of obliging their officers to deal justly with the persons employing them, and „ under whose authority they may act in collecting and receiving money. The courts have created no such distinction, neither is anything to be found, even by way of intimation,- in the authorities which would support or sustain it.

By the order which has been made the attorney was charged with interest upon the balance remaining in his hands, after deducting the amounts found to be owing to Daily himself and to the firm of Daily & Crosby, from the 1st of January, 1882. The charge of interest does not seem to be supported to this extent by the authorities, for in this case so much of ’ the moneys which were received by the appellant, as were necessary for that purpose, should be applied and appropriated to the payment of the petitioner’s indebtedness to Daily as well as his indebtedness to the firm. And what that amount should be was left in a state of dispute and uncertainty, Mr. Daily himself made out an account in which the entire indebtness was stated to be the' sum of $279.23. But the petitioner considered that to be too small to compensate them for the services which they had rendered. And so it was found to be by the referee upon evidence justifying the conclusion formed by him, for he reported the amount in the aggregate which should be allowed against the petitioner at the sum of $455.13. This valuation was adopted by him as the fair result of the evidence. And such it probably was, affording both to Hr. Daily and the firm a reasonable remuneration for their services and disbursements in the preceding litigation ag well as in the action, in the City Court of Brooklyn. But until this amount was in this manner settled and the dispute concerning it determined, no specific sum of money was payable to the petitioner. He might have obtained an earlier adjustment of it if he had been disposed so to do. But he neglected to take any proceedings for that object. And it was not the duty of the appellant to resort to them, for the reason that he claimed that his firm and Hr. Daily should have the entire balance of the moneys appropriated to the payment of their services and disbursements. In this state of the facts the petitioner was not entitled to interest upon the balance from the 1st of January, 1882, but was only entitled to it from the 11th of June, 1887, when this proceeding was commenced. (Kane v. Smith, 12 Johns., 156; McMahon v. N. Y. and Erie R. R. Co., 20 N. Y., 463, 470; McCollum v. Seward, 62 id., 316, 318; Smith v. Velie, 60 id., 106.)

The order, accordingly, should be modified by charging the appellant with the balance of $450.28 found by the referee, and interest upon it from the 11th of June, 1887, instead of from the 1st of January, 1882, and as modified in that manner the order should be affirmed, without costs to either party.

Bartlett, J., concurred; Van Brunt, P. J., concurred in the result.

Order as modified affirmed, without costs to either party.


author: Per Curiam:

text:
       In the Matter of the MAYOR, etc., of the City of New York to Acquire Title for Public Parks, etc.

      Laying out the route of a railroad does not prevent, before proceedings an'e taken to condemn the land, the sale thereof by the owner—right to lake such land for another public use.

    The fact that the route of a railroad company has been laid out over a piece of land does not preclude the owner thereof, prior to proceedings being taken for the condemnation of the land, from making a sale of it.

      Until the land has been actually appropriated an owner has the right to sell it, and the legislature has the power to compel a sale thereof by the owner for a public use.
    Where a road has actually been constructed, its land cannot be withdrawn from the public use made thereof by the railroad company without specific legislation to that effect; but where the rights of the railroad are inchoate a report of the commissioners, appointed to condemn such lands for another public use, will be confirmed, subject to the rights of the railroad, if any exist, to acquire title thereto.
    Motion made, January, 1889, to confirm the report of Lutlier R. Marsh and others, commissioners of estimate appointed in the above-entitled matter.
    The question presented in this matter was whether the proposed or projected route of the Suburban Rapid Transit Company, within the. lines of the territory to be taken for the new parks to be created for the city of Mew York, was exempt from condemnation for the purpose of such parks.
    The Suburban Rapid Transit Company was formed under the rapid transit act (Laws of 1875, chap. 606). Its articles of association were filed in October, 1880, and subsequently, in the same month, a map of the projected route of the Suburban Rapid Transit Company was filed. This proposed route extends into the territory of what is known as the Bronx Park, St. Mary’s Park and Cretona Park.
    The act authorizing the condemnation of lands for these new parks was passed on June 14, 1884, and on September nineteenth of that year commissioners were appointed by the Supreme Court to condemn the lands covered by the projected route of the Suburban Rapid Transit Company within the lines of St. Mary’s Park. These commissioners, having heard the evidence submitted on behalf of the raih’oad and of the owners, rendered their report in the spring of 1885, and this report was confirmed by order of -the Supreme Court under date of May 4, 1885.

      B. N. Harrison, for the Suburban Transit Company.

      Franklin Bartlett, for the Mayor, etc.

       Decided January 18, 1889.

   Per Curiam:

It would appear, from the discussion in regard to this question, that the position of the raih’oad companies is, that simply because a route has been laid over a person’s lands the owner has no power to sell. We think that, until the land has been actually appropriated, an owner has the right to sell, and, until that has occurred, the legislature has the power to compel a sale by the owner for a public use. In both, cases it is necessarily subject to vested rights which may have been acquired by preliminary proceedings, which are to culminate in the acquirement of the title. As to railroads which have been constructed, there is no question as to their lands being already taken. These lands cannot be withdrawn from the public railroad use without specific legislation on the subject; but where no lands have been acquired and the rights are inchoate, the owner may sell subject to the execution of the act as against his grantee. So a public use may be authorized and the lands taken and paid for, as an ordinary grantee might take and pay for them, subject to the execution of the original act; that is if the legislature intended such use to remain unimpaired. If it did not, the city takes absolutely for a public use; if it did, the city will have to yield the property reserved by implication. This would be a natural solution on the part of the legislature, where large blocks of land are involved, small parts of which are impressed with one use and the rest with another; there being necessarily great difficulty in specifying these small parcels in the act itself.

We think, therefore, that the proper disposition would be to confirm the report, subject to the rights of those railroads, if any exist, to acquire title to the lands, as against the city, embraced within their proposed route. If they have a right to so acquire, they have it preserved; and that disposes of this whole question equitably, as between the parties, without impairing any vested rights acquired, and protecting the rights of the owners as against rights which may be claimed fo exist, and which may finally appear never to have existed.

Present—Van Brunt, P. J.; Daniels and Barrett, JJ.

Report confirmed subject to the establishment of any rights acquired by railroad companies.


author: Daniels, J. :

text:
    HERMANN KOEHLER, Appellant, v. THE FARMERS AND DROVERS’ NATIONAL BANK OF SOMERS, NEW YORK, and Others, Respondents.

      Stay of proceedings — collateral security to a loan — action on the obligation to secure which the collaterals ha/ce been deposited—not delayed to await the determination of the rights of other creditors to surplus proceeds thereof.

    Where a bank, which has discounted and is the holder of a promissory note, with which certain collaterals, furnished to the bank by the payee of the note, have been deposited to secure its payment, sues the accommodation maker (who, as between himself and the payee thereof, is a mere surety) upon such note, a stay of proceedings in such action will not be granted, pending the prosecution of another action brought by such maker of the note to secure the application of the collaterals, to the payment of the note (in his exoneration from liability thereon) and to determine the rights of certain other contesting parties, creditors of such payee, who claim to be entitled to protection and indemnification out of the proceeds of such collaterals.
    An order made upon an application for such stay denying the application, upon condition that the bank stipulates to retain the collaterals or their proceeds in its possession for the payment of any claims thereon, to abide the event of the action brought by the maker of such note to determine such conflicting rights, will not be reversed on appeal.
    The creditor should not, in such case, be delayed in the prosecution of its action until a determination is had of the disputes which have arisen between other parties, interested in the collaterals which it holds as security for the payment of the obligation owing to it.

      Semble, that where the collaterals are readily available to the creditor, and can be applied by him without the. settlement of any dispute as to the payment of indebtednesses existing in favor of third parties, with the same facility and certainty as in the action brought against such maker by the holder of the note, that the court will direct that disposition to be made of the securities in a case where the principal debtor is himself insolvent.

      Appeal from an order, made at the Hew York Special Term, vacating a stay of proceedings, on the defendant bank stipulating and agreeing to hold certain collaterals, or their proceeds, for the payment of the claims made thereon by certain parties, to abide the event of an action brought to determine such claims, which order was entered in the office of the clerk of the city and county of Hew York on May 4, 1888.

      E J. Myers, for the appellant.

      William A. Abbott, for the respondent.
   Daniels, J. :

The plaintiff is the maker of a promissory note for the payment of the sum of $3,893 in five months after the 4th of June, 188J. This note was made to the order of Mr. Shaleck and delivered to George K. Chase, for his use and accommodation. He transferred the note to the Farmers and Drovers’ Hational Bank of Somers as further security for an indebtedness contracted by him, and existing against him in favor of the bank. Preceding transactions had taken place between the parties, but they do not essentially affect their rights or obligations and, therefore, require no notice or examination for the decision of the appeal. The plaintiff brought this action to secure the application of collaterals deposited by Chase with the bank, or their proceeds, to the payment of the note, and for his exoneration from liability thereby. It proceeded upon the theory that he had become in this manner a surety for Chase, who afterwards departed this life, and was at the time of his decease insolvent. It appeared from the complaint and the affidavits, that other persons had incurred similar obligations for Chase to the bank, who claimed to be protected and indemnified by means of these collaterals; and one of the objects of the action was to settle the rights of these contesting parties and to determine the amount or proportion of the collaterals which might be applied to the payment of this indebtedness.

Shortly after this suit was commenced the bank brought an. action upon the note against the plaintiff in this suit, and an application was then made upon affidavits as well as the complaint, for an injunction restraining the prosecution of that action until the hearing and decision of this case. The order containing the injunction clause was afterwards vacated, with liberty to the plaintiff to apply for a stay of proceedings in the action brought by the bank, and an order for that object was obtained requiring the bank to show cause why further proceedings in its action should not be stayed until the disposition of this case. Upon the hearing of the application under that order, the order from which the appeal was taken was made, denying the application, upon the bank stipulating to retain the collaterals, or their proceeds, in its possession for the payment of the claims thereon, to abide the event of this action, and a stipulation to that effect was afterwards made and filed on behalf, of the bank.

It was further shown, by the affidavit of the cashier of the bank, that the collaterals would probably prove deficient in amount to pay the obligations which Chase was under to the bank; and, additionally thereto, it was shown that there was a controversy between the personal representatives of the estate of Chase and the plaintiff, whether his note was air accommodation note, and whether the note of another person held by the bank was of that description. It further appeared from the complaint that the other defendants in this action also claimed that the proceeds of the collaterals should be applied to the discharge of the several obligations of Chase himself to the bank, and to the discharge of the obligations for which they were severally liable to the bank for the indebtedness of Chase in preference to the plaintiff.

These were controversies, so far as they related to the several sureties, in which the bank itself had no interest, but they were to be settled between the plaintiff and the other defendants in the action, and no rule of equity has proceeded so far as to restrain the creditor, under these circumstances, from proceeding to collect its debt upon the note, or other obligation of a surety until these disputes are settled by litigation betweeen the other p>arties.

It is true that the plaintiff, as the accommodation maker of the note, was entitled to the benefit of the collaterals in the hands of the bank, received from the principal debtor, so far as they, or their proceeds, could equitably be made applicable to the payment of this indebtedness. But that did not entitle the plaintiff either to an injunction restraining its suit on the note or to a stay of proceedings in that action. The bank had the right to prosecute the maker of the note and recover its debt of him, leaving him to avail himself of the protection which could be afforded by the application of the collaterals, or their proceeds, to his reimbursement, after the dispute between himself and the others should be settled. Neither the authorities referred to on behalf of the plaintiff, nor any others which have been found, sustain any greater right on the part of the plaintiff than this under the circumstances here presented. The cases of Irick v. Black (17 N. J. Eq., 189); Thomson v. Taylor (11 Hun, 274) and Philadelphia, etc., Railroad Company v. Little (5 Cent. Rep., 57), were sustained upon the ground of special equities vested in the surety and subordinated to no preceding controversy of the description of that disclosed in this proceeding. And it may be where the collaterals are readily available to the creditor, and can be applied by him, without the settlement of any dispute, to the payment of the indebtedness in exoneration of the surety, with the same facility and certainty as a proceeding against the surety himself, that the court would direct that disposition to be made of the securities in a case where the principal debtor is himself insolvent. The law was so considered in McConnell v. Scott (15 Ohio [Gris.], 401.)

It was there said, in the course of the opinion, that “ there is no adequate remedy at law, when the principal debtor is insolvent, by wliich his effects and credits, in the hands of others, can be made to be applied for the benefit of the surety. Certainly not, as we have already said, without the surety first pays the debt; and such payment may be attended with great inconvenience and severe sacrifices of property — burdens which ought not to be imposed if they can, with propriety and justice, be avoided.” (Id., 403.) And this rule was followed in Wilcox v. Todd (64 Mo. 388), and Wooten v. Buchanan (49 Miss., 386). It was held in the last case that the remedy the surety has when his property, as well as that of the principal, has been levied upon, is to force his creditor first to exhaust the remedy against the principal debtor before a sale of his own property under the judgment. If the • principal had other property, that also could be indicated as a primary fund to satisfy the debt. He has also the clear right to point out other property of the principal debtor, if he can, and compel his judgment-creditor to satisfy Ms debt out of that. (Id., 391.) But this cannot be done to the prejudice or injury of the creditor in the collection of his debt.

The courts of this State, however, have not yet so fully adopted this liberal and equitable principle in favor of the surety. Neither has it been rejected. But the plaintiff, clearly, is not entitled to invoke it under the principle of these authorities as long as a dispute stands between him and the right to appropriate the collaterals for his benefit, with other persons claiming priority over him. (Garry v. Cannon, 3 Ired. Eq., 64.)

The case of Wright v. Austin (56 Barb., 13) states the rule as to the right of the surety to compel the principal to apply collaterals in his hands to the satisfaction of the debt very broadly; but the point was not so broadly presented by the facts for the decision of the court, and even there it was not extended so far as to support the right to the stay claimed on behalf of the plaintiff. In First National Bank, etc., v. Wood (71 N. Y., 405), the subject was further considered, but this principle was not held to have extended so far as to entitle a surety to this species of relief. (Id., 410-412.) The case of Neimcewicz v. Gahn (3 Paige, 614) proceeded upon an entirely different state of facts. That was an action for the foreclosure of a mortgage, and it has been the constant practice of courts of equity in foreclosure smts to order the property of the principal debtor to be first sold for the payment of the mortgage indebtedness ; and, in support of the direction which was there given, it was said that “the application of this equitable rule of throwing the charge upon the property of the principal debtor and extinguishing that fund in the first place, in exoneration of the estate of the surety, is of every day’s occurrence.” (Id., 640.) And that, beyond doubt, is the rule followed and applied in foreclosure suits; and if other cases are to be controlled by it, the qualification must be attached to it that the creditor has the unqualified power to pay the debt out of collaterals, without delay or any legal impediment. It has no application to a case of this description, in which the courts have never undertaken to restrain a creditor in the enforcement of the contract of the surety until disputes may be settled with others concerning the application of collaterals held by the creditor for the security of the debts.

The order in this case afforded the plaintiff all the relief which, under the facts appearing, he was entitled to claim, and it should be affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Brady, J.:

text:
    WILLIAM PALEN, as Receiver of HENRY BANGE, Respondent, v. EZRA L. BUSHNELL and HENRY BANGE, as Revived and Continued Against the Executors of EZRA L. BUSHNELL, Deceased, Appellants.

      Revival of an action against the executors of a deceased defendant — irregularities in the appointment of the plaintiff as receiver, not a ground for denying a motion to revive — section 876 of the Code of Civil Procedure does not apply to an action by a receive)' appointed in supplementary pi'oceedings instituted before the period of limitation has expired — when an action can be continued under section 758 of the Code of Civil Procedure.

    In an action, commenced in December, 1868, by a receiver of Henry Bange, appointed in October, 1863, in proceedings supplementary to execution issued upon a judgment recovered in 1863, an accounting was sought between the plaintiff and the defendant as to certain real and personal property fraudulently transferred by Bange to one Bushnell, without consideration and with intent to hinder, delay and defraud the creditors of the grantor. The defendant Bushnell died June 18,1887, while a reference was pending, and thereafter an order was made reviving and continuing the action against the executors of the said Bushnell.
    Upon an appeal from this order a claim was made by the defendant that the plaintiff had no title to the cause of action because the order appointing the receiver was irregular.

      Held, that this question should not be disposed of upon affidavits, especially as the action was still pending before the referee, and the defendant would be entitled to take advantage of any benefit arising out of any incident of that kind upon the trial of the action.
    That section 376 of the Code of Civil Procedure, providing that after a lapse of twenty years the presumption of payment of a judgment shall be conclusive, did not raise a presumption in this action that the judgment in the action in which the plaintiff was appointed receiver was paid and satisfied, as that section did not apply to a remedy founded upon the judgment instituted long before the period of limitation mentioned had expired.
    That an objection that the motion should not have been granted, because the action was brought by the receiver without leave of the court, could not be taken after the issues had been joined therein.

      That an objection that a simple order of continuance was all that the plaintiff was 1 entitled to, and that the testimony already given upon the trial should not be used, was not well taken, as it was purely a matter of discretion, and there was nothing shown which indicated that the discretion was erroneously exercised in this case.
    That, as there were two defendants in this action, an objection taken by the defendant that the executors could only be brought before the court by a supplemental summons, and the action continued by supplemental pleadings could not be sustained as the continuance was provided for by section 758 of the Code of Civil Procedure.

      Coit v. Campbell (82 N. Y., 509) followed.
    Appeal from an order made at a New York Special Term, reviving and continuing this action against the executor of Ezra L. Bushnell, deceased, which was entered in the office of the clerk of the city and county of New York on February 27, 1888.
    The order provided that the action be continued against the executors of Ezra L. Bushnell, deceased, and further as follows :
    It is ordered that the above-entitled action be and the same hereby is revived and continued in favor of the plaintiff as such receiver as aforesaid as against Adelaide E. Bushnell, as executrix, Ezra I). Bushnell and Alfred Vanderwerken, as executors under the last will and testament of Ezra L. Bushnell, deceased, and that they be deemed to be and become and they are hereby made parties hereto in the place and stead of such decedent, as though they had been original parties in-his place and stead.
    And it is further ordered that the pleadings herein, as originally framed and interposed by and between the plaintiff and said Ezra L. Bushnell, deceased, shall in all respects stand as well as the evidence taken herein before the death of said Ezra L. Bushnell, under the order of reference in course of execution at the time of his decease, comprising the testimony of witnesses, living and dead, also exhibits admitted in evidence by the referee named in said order of reference, namely, Hon. Enoch L. Fancher, and that all the proceedings heretofore had herein, including the order of reference to said Enoch L. Fancher, shall likewise stand and enure to the benefit of the plaintiff as fully and completely as though said executrix and executors had been the original parties defendants hereto instead of said Bushnell, now deceased.
    And it is further ordered that the pleadings, testimony, exhibits and the order of reference shall likewise stand and enure to the benefit of said executrix and executors, so far as the same may be applicable to them as the legal representatives of said Bushnell.

      H. M. Whitehead, for the appellants.

      W. C. Holbrook, for the respondent.
   Brady, J.:

The plaintiff was appointed receiver of Henry Bange in October, 1862, in proceedings supplementary to execution by a judgment-creditor, and this action was commenced in December, 1863, for an accounting between the plaintiff, as such receiver, and the defendants as to certain real and personal property fraudulently transferred by Bange to Bushnell on the eve of insolvency, without consideration and with intent to hinder, delay and defraud judgment-creditors. The defendant Bushnell died June 13, 1887, leaving a last will and statement in which he appointed Adelaide E., his wife, executrix, and Ezra D. Bushnell and Albert Van Der Werken executors. The will was admitted to probate and letters testamentary issued to the person named. At the time of Bushnell’s death this action was pending before a referee; and the defendant, after a motion had been made to dismiss the complaint which was denied, was about to enter upon his defense. It is hardly necessary to say that the action is one which may be continued in the exercise of the discretion of the court. (Coit v. Campbell, 82 N. Y., 509; Holsman v. St. John, 90 N. Y., 461; Rumsey’s Pr., 663.) The reasons assigned for a reversal of the order made permitting the continuance are ingenious but not meritorious. The first suggestion is, that the order should be reversed, for the reason that the plaintiff has no title to the cause of action; and this is predicate of a supposed irregularity in the order appointing tht. receiver. It is sufficient to say that this is not a subject which will be disposed of upon affidavits, and especially as it is necessarily before the referee; and if any benefit shall arise out of any incident of that kind the defendant will be entitled to it.

The next proposition is that the judgment in the action in which the plaintiff is appointed receiver is paid and satisfied, and this is founded upon the presumption arising from the recovery of the judgment in August, 1862, which is more than twenty-five years ago-Section 376 of the Code provides that after a lapse of twenty years the presumption of payment of judgments shall be conclusive. But that section does not apply to a remedy founded upon the judgment instituted long before the period mentioned had expired and, indeed, within two years after the judgment was recovered.

The next point presented is that the motion should not be granted because the action was brought by the receiver without leave of the court, and that to authorize him to continue would be a judicial sanction of a proceeding commeuced without authority. It is sufficient, in answer to this point, to say that it is too late after issue joined to urge successfully such an objection. (Code, § 499.)

The next suggestion is that the plaintiff is not now a resident of this State, and that the plaintiffs in the action in which the receiver was appointed are both dead, and have no personal representatives, and there are no persons in existence who would be entitled to the moneys to be collected in this action. There is also an assertion that the bond given by the receiver is void, and that the obligee is dead. Hone of these suggestions are of the slightest consequence on an application of this kind. The case seems to be regularly in court, and having been sent to a reference it must be assumed that every obstacle to that procedure was encountered and overcome.

It is further contended that a simple order of continuance was all that the plaintiff was entitled to, which would enable the plaintiff to avail himself of all the pleadings and proceedings; and, again, that the testimony upon the trial should not be permitted to stand. It is only necessary to say, in answer to these propositions, that it was purely a matter of discretion to be exercised by the court below, and that there is nothing in the case which, in our judgment, indicates that the discretion was erroneously exercised.

Again, it is urged that the executors can only be brought before the court by a supplemental summons, and the action continued by supplemental pleadings, and reference is made to the Code (§§755-760). It will not be necessary, in disposing of this appeal, to consider these provisions in detail. It is sufficient to say that, as there were two defendants in this case, the continuance was provided for by section 757, the Court of Appeals having decided in Coit v. Campbell (supra), that if there were, originally, more than one defendant in the action, and of whom one has died, that one is a sole defendant within this section. The cases upon this subject are collated and well stated in Rumsey’s Practice (vol 1, 663 et passim).

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

Daniels, J., concurred.

Order affirmed, with costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HUGH McCORMACK, Relator, v. STEPHEN FRENCH and Others, as Police Commissioners of the City of New York, Constituting the Board of Police Department of the City of New York, Respondents.

      Rejection of a witness, beccmse the tribunal does not mdit his testimony, is improper.

    Upon the hearing of a certioran'i to review the action of the police commissioners of the city of New York, in dismissing the relator upon a charge of having assaulted one Danut, it appeared that on the trial the relator had no counsel, and that the examination of the witnesses was conducted by one of the commissioners, the relator asking a few questions by way of cross-examination. That the last witness called for the defendant was examined by one of the commissioners and asked questions as to his business, his connection with the post-office department and his removal therefrom; as a result of which examination the commissioner said: “I do nqt want your testimony.” The relator had asked this witness no question.

      Held,, that no tribunal, proceeding according to the course of the common law, or subjected to its rules in part, can arbitrarily reject a witness called by the accused before he has given his evidence, merely by reason of developments which may affect his credibility with the tribunal in which he appears; that the act of the commissioner was a judgment in anticipation, and, therefore, premature; that, for this reason, the judgment should be reversed.
    Hearing upon the return to a writ of cerUorari issued at a New York Special Term, on June 26,1888, to review the relator’s dismissal from the police by the police department of New York, issued to the respondents, the police commissioners of the city of New York, constituting the board of police of the police department.

      John M. Tierney, for the relator.

      William L. Turner, for the respondents.
   Brady, J.:

The relator was charged with assaulting one Danut in a restaurant, and on the trial had no counsel. The examination of the witnesses was conducted by one of the commissioners and the defendant on cross-examination asked few questions. The testimony presented against the relator was conflicting, a condition which was increased when he was examined, and a jury might well have found in his favor or disagreed. This view is not important in consideration of the powers of the commissioners who are not wholly controlled by the rules which must prevail in judicial investigation, but it becomes so in connection with an incident of the trial to which reference must be made. The last witness called was for the defendant, whom he succeeded. Tie was examined by one of the commissioners, and asked questions as to his business, his connection with the post-office department and his removal. This sufficiently appears from the record, indeed, conclusively so, and as a result of such examination the commissioner said: “I do not want your testimony.” The relator had asked no question although the witness was called on his behalf, but taken in hand by the commissioner at once and put aside. It does not appear that the defendant did not want his testimony. On the contrary, having been called on his behalf, it must be presumed that he did want it, and it may be, that if given it would have satisfied the commissioners that the charge made was not sufficiently sustained to warrant the relator’s dismissal. However that may be, no tribunal, proceeding according to the course of common law or subjected to its rules in part, can arbitrarily reject a witness called by the accused before he has given any evidence, merely from developments which might affect his credibility with the tribunal in which he appears. The act of the commissioner was a judgment in anticipation, and, therefore, premature. It did not follow that the witness because of his removal from the post-office, and seemingly for intoxication, was disqualified. His condition at the time of the occurrence, as to which he was probably called, might have been, and it is to be presumed, was such as to enable him to give an account of what he saw and heard, and it might be, as already suggested, so impressive as to change the opinions theretofore entertained of the truthfulness of the charge under investigation. For this reason the dismissal cannot be sustained and the judgment of the commissioners must be reversed.

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

Judgment of the commissioners reversed.


text:
    HOWARD A. MARTIN, Plaintiff, v. SPENCER S. PLATT and NATHAN C. PLATT, Impleaded with ANNIE R. PLATT, as Executrix of WILLIAM H. PLATT, Deceased, Defendants.

      When executors arre liable personally, upon a written acknowledgment of their indebtedness, to a person who has rendered services for the benefit of the estate — a creditor is not obliged to confime his claim to the estate — successive absences are to be deducted, in the aggregate, from, the period prescribed by the statute of limitations.

    In an action, brought by an accountant to recover the sum of $7,000, and interest thereon, for services rendered by him in an action between the executors of Nathan 0. Platt, deceased, and one George W. Platt, for an accounting, and to have certain deeds of real estate declared null and void, it appeared that, on January sixteenth, the plaintiff presented a bill, addressed “ The executors of Nathan C. Platt, deceased, to Howard A. Martin, Dr., ” reciting his services in the said action, under which was written the following: “ The above bill has been examined by us and the amount due to Howard A. Martin adjusted at seven thousand dollars, and we hereby consent and agree that the sum be paid out of the first proceeds of the judgment against George W. Platt, as a part of the expenses and necessary disbursements in the action, by means of which the judgment is recovered and the money obtained.” This was signed by Spencer S. Platt, William H. Platt, (the testator of the defendant Annie R. Platt), and by Nathan O. Platt, as executors, and acknowledged before a commissioner of deeds December 13, 1879.
    Upon a motion for a new trial, upon exceptions ordered to be heard in the first instance at the General Term, after a verdict for the amount claimed with interest had been rendered in favor of the plaintiff against the defendants, it wa§ urged by the latter that the evidence did not warrant individual judgments against them, as it appeared by the instruments signed by them that the services were rendered to the executors, as such, for the benefit of the estate, and that an adjustment had been made of the same as a charge against the estate, payable out of a particular fund.

      Reid, that as an examination of the paper showed that there was an acknowledgment of a debt due to the plaintiff, which preceded the consent and agreement as to the mode of payment, it was not a promise to pay out of a particular fund, but an agreement that the amount claimed to be due should be first paid out of the proceeds of an anticipated judgment, as a part of the expenses and necessary disbursements in the action in which the judgment was recovered and the money obtained.
    That where there is no agreement on the part of the creditor to look to or to confine his claim for compensation to the estate itself, or to the defendant in his official capacity, the executor will be held personally responsible for the payment of the claim.

      Foland v. Dayton (40 Hun, 563) followed.
    It was claimed by the defendant Nathan C. Platt that the action was not brought within the period of time allowed by law.

      Reid, that as it was shown that he had departed from the State and remained absent therefrom for a period which, if his successive absences from the State were accumulated, and the aggregate thereof was deducted from the period of limitation, prevented the application of the statute, this defense could not be sustained.
    That the claim made by the defendant Nathan 0. Platt, that so long as he did not intend to change his place of residence, and did not vote anywhere except in New York, nor describe himself as a resident of any other place than New York, and was never continually absent for one year at any one time, and as he was obliged to go out of the State of New York to find employment, and left with no intention of abandoning New York as his permanent home, the statute of limitations continued to run in his favor during the whole time of his absence, could not be sustained.

      Denny v. Smith (18 N. Y., 567) followed.
    Upon the trial, the testimony of William R Martin, the attorney of the defendants in the action of Platt v. Platt, to the effect that his clients directed him to employ the plaintiff to render the services, to recover for which this action was brought, was received against the objection and exception of the defendants.

      Reid, that it was properly received, as it was in no sense a confidential communication or within the prohibition of section 885 of the Code of Civil Procedure, for the reason that it was made for the express purpose of being communicated to the plaintiff, who under the authority thus given was to be employed on behalf of the defendants.
    That a direction by the executors to their attorney to employ a person in connection with the prosecution of an action, in which they are engaged, is not a confidential communication in the sense in which that word is used in that section, as in conducting the suit, as regards a third person, the attorney acts as the agent and not the attorney of his client.
    Cases upon this subject collated by Brady, J., and the cases of Bacon v. Frisbie (80 N. Y., 394); Root v. Wright (84 id. 74) distinguished.
    Motion made by Spencer 0. Platt and Nathan 0. Platt, two of the defendants, for a new trial upon exceptions taken at the New York Circuit, and there directed to be heard at the General Term in the first instance, after a verdict had been rendered in favor of the plaintiff November, 1887.
    The action was brought to recover the sum of $7,000 and interest. In 1867 Spencer C. Platt, Nathan 0. Platt and William H. Platt (the latter of whom died in 1884), as executors of their father, Nathan 0. Platt, deceased, brought an action in this court against George W. Platt for an accounting, and to have certain deeds of valuable real estate, in this city and elsewhere, executed by their father to the said George W. Platt, declared null and void. They succeeded in recovering an interlocutory judgment on March 17, 1873, directing an accounting of the partnership affairs of Platt & Brother and of all the property of said Nathan O. Platt which came into the hands of George W. Platt, and appointing E. H. Pomeroy, Esq., referee, to take and state the accounts and ascertain and report the amount due the plaintiffs from defendant, and that upon the coming in and confirmation of said report plaintiffs have judgment for such sum.
    The reference before Mr. Pomeroy proceeded during the years 1873, 1874, 1875, 1876, 1877 and 1878. During this period, and upon such reference, and in preparing for the arguments at the Special Term, this plaintiff, at the request of said executors, rendered services as an expert accountant. While those services were being rendered an action was commenced in the Superior Court by Catharine W. Cooke against the executors, as such and individually, in which action James M. Smith was appointed receiver of the estate of Nathan C. Platt in place of the three executors, who were removed by the judgment therein, and were enjoined from further dealing with the estate. Subsequently, and before the final judgment was recovered in Smith v. Platt, and while the amount due the plaintiff remained unpaid, the executors, as such, made, executed and delivered to the plaintiff the following paper :
    New Yobk, 16th January, 1879.
    The Executobs oe Nathan C. Platt, Deceased, to Howabd A: Martin, Dr.

    For the following services rendered to them in their action in the Supreme Court against George W. Platt, during the years 1874, 1875, 1876, 1877 and 1878, viz.:

      The examination and analysis of the accounts of the firm of Platt & Brother, and of the accounts filed in the action by the defendant; the preparation of the accounts and balance-sheets for use on the reference and the arguments at Special Term, and for clerical assistance in preparing arguments, cases, indexes, etc., during the said period, the sum of $7,000.
    The above bill has been examined by us and the amount due to Howard A. Martin adjusted at $7,000; and we hereby consent and agree that the same be paid out of the first proceeds of the judgment against George W. Platt, as a part of the expenses and necessary disbursements in the actions, by means of which the judgment is recovered and the money obtained.
    SPENCER C. PLATT, Executor.

    W. H. PLATT, Executor.

    NATHAN C. PLATT, Executor.

    It was acknowledged before a commissioner of deeds, December 12, 1879.
    The actions referred to as the means by which the judgment was to be recovered and the money obtained were the actions of Smith v. Platt and of Cooke v. Platt.

    The action of Platt v. Platt was continued in the name of James M. Smith, as receiver of the estate, and resulted in the entry of final judgment in his favor, on September 15, 1881, confirming the referee’s report, and’ for the recovery of $9,354.43 against the executors of George W. Platt, who had in the mean time died.
    The answer admits that this judgment was paid to the receiver, March 4, 1886, by being applied on a judgment recovered against him. The total receipts of the receiver from January 24, 1881, were $77,416.34.
    From April 5, 1883, to April 27, 1886, Susan F. Platt, the assignee of Spencer C. Platt, was paid by the receiver $5,025, and Nathan C. Platt $5,025. Subsequently other amounts were divided among the heirs of Nathan C. Platt.
    The real estate referred to in the interlocutory judgment has also been sold in partition and the proceeds ordered distributed among the devisees and heirs-at-law of Nathan C. Platt, deceased, three of whom are the defendants here.

      The present action was begun May 10, 1886. The complaint sets forth the Platt litigation in detail, the employment of plaintiff, the rendition of services and the adjustment of the amount due him at $7,000, payment of the final judgment; that the said executors are personally liable to plaintiff under the adjustment, demand and non-payment of the claim; the death of "William H. Platt, one of the executors, leaving a will, its probate and the issue of letters testamentary to the defendant Annie It. Platt.
    The answer of Spencer C. Platt and Nathan C. Platt concedes, substantially, the facts pertaining to the Platt litigation; denies the employment of the plaintiff and his alleged services and their value; admits the execution of Exhibit A, but avers that it was done for a special purpose; admits the payment to the receiver of the judgment recovered against George W. Platt or his representatives, and denies that there were ever any proceeds of the judgment (of September 15, 1881), in Platt v. Platt, except the amount of said judgment paid to the receiver, as above stated. The answer also alleges that the claim is barred by the six-years statute of limitations. (Code, § 400.)
    The case came on for trial before Mr. Justice Andrews ana a jury on November 10, 1887, which found all the facts in favor of the plaintiff, and rendered a verdict in his favor for $7,000 of principal and $3,703 interest. The court thereupon directed that the exceptions be heard, in the first instance, at the General Term, and that the entry of judgment be meanwhile suspended.

      E. S. Clinch, for the plaintiff.

      W. G. Wilson, for the defendants.
   Brady, J.:

The learned judge, upon the conclusion of the evidence, charged the jury, as appears from the record. The charge is not set forth, and it must be presumed that all the issues were presented, and the rules of law by which the jury were to be governed correctly stated. After the verdict the court said that, if the counsel desired, a direction would be made that the exceptions be heard in the first instance at the General Term, or they might make a motion for a new trial, and it was thereupon ordered that the exceptions be heard in the first instance at the General Term.

On the hearing of exceptions in the first instance, questions of fact are not open to discussion, nor, indeed any questions other than those of law raised by the exceptions taken. The verdict is conclusive as to all the facts in issue on the pleadings. (Hotchkins v. Hodge, 38 Barb., 47; Price v. Keyes, 1 Hun, 182.) Among the facts thus put in issue were the employment of the plaintiff by the executor, the value of his services, the purpose for which the adjustment of the value of the services was made, the personal liability of the executors, and the absence of Nathan C. Platt from the State, as a bar to the defense of the statute of limitations. It must be assumed, as already intimated, that all these facts were found in favor of the plaintiff by the jury.

It appears that the defendants, including Nathan 0. Platt, who was dead at the time of the trial, signed an instrument, which is as follows:

New York, 16th Dcmuary, 1879.
The Executors of Nathan 0. Platt, Deceased, to Howard A. Martin, Dr.
For the following services rendered to them in their action in the Supreme Court against George W. Platt during the years 1874, 1875, 1876, 1877 and 1878, viz.: The examination and analysis of the accounts of the firm of Platt & Brother and of the accounts filed in the action by the defendant; the preparation of the accounts and balance sheets for use on the reference and arguments at Special Term and for clerical assistance in preparing arguments, cases, indexes, etc., during the said period, the sum of $7,000.
The above bill has been examined by us and the amount due to Howard A. Martin adjusted at $7,000; and we hereby consent and agree that the same be paid out of the first proceeds of the judgment against George W. Platt, as a part of the expenses and necessary disbursements in the action, by means of which the judgment is recovered and the money obtained.
SPENCER C. PLATT, Executor.
W. H. PLATT, Executor.
NATHAN C. PLATT, Executor.

And that formed the chief initiatory evidence on behalf of the plaintiff.

The objection m limme, urged against the plaintiff’s right to recover, is that the evidence does not warrant individual judgments against the defendants, inasmuch as it appears from the instrument, signed by them, that the services were rendered to the executors as such for the benefit of the estate, and an adjustment of the same as a charge against the estate, payable out of a particular fund.

It will be observed, however, upon close scrutiny of that paper, that there is an acknowledgment of'the debt due to the plaintiff, which precedes the consent and agreement as to the mode of payment. It is not a promise, therefore, to pay out of a particular fruid, but an agreement that the amount admitted to be due should be paid first out of the proceeds of an anticipated judgment, as a part of the expenses and necessary disbursements in the action, by means of which the judgment was recovered and the money obtained. It was as if the defendant said to the plaintiff we owe you $7,000, and we will appropriate a sum sufficient to pay it out of the first proceeds of the judgment in this action,” i. e., the action in which the services were rendered. There is nothing, therefore, in that instrument from which it may be inferred that the services rendered to the defendants were to be paid for out of the estate, and that he was employed by them as executors eo nomme, and in no other respects. And it disposes of another proposition, namely, that the remedy of the plaintiff was in pursuit of the particular fund referred to in the instrument, to be accomplished by an equitable proceeding.

The liability of executors for services rendered to the estate was considered in Foland v. Dayton (40 Hun, 563), in which the cases bearing upon the subject were collated and compared. In that case the court said: “What these cases, considered together, require that the law shall be held to be is, that the administrator himself will be personally liable for the value of services rendered at his instance for the benefit of the estate, where there is no agreement on the part of the creditor to look to or confine his claim for compensation to the estate itself, or the defendant in his official capacity. Where services are rendered under such an employment or agreement, then the party rendering them will not be at liberty afterwards to resort to the personal representatives, individually, hut he will be confined to the rights or remedies existing for the enforcement of the agreement as it has. been made by him; and if, by the agreement, he has confined himself to the estate as his debtor, or the personal representatives administering it, he will not be permitted to maintain an action for the recovery of his demand against the personal representative himself, individually. To produce this result the agreement of the plaintiff may be established as other agreements are allowed to be proved in courts of justice. That may be done by the language used on the occasion when the agreement is alleged to have been made, or by circumstances disclosing its nature and effect. Whether the plaintiff can maintain the action must, therefore, depend upon what the contract shall ajipear to have been under which the services were rendered. A mere intention to look to the estate or the defendant, as administrator, is not sufficient to exclude his individual liability; but an agreement on the part of the plaintiff, either express or to he inferred from the circumstances, to look to the estate or the administrator, as such, for his compensation, will jirevent him from maintaining his action to recover against him individually.” It seems to be established, therefore, that where there is no agreement on the part of the creditor to look to or to confine his claim for compensation to the estate itself, or to the defendant in his official capacity, the executor will be held personally responsible.

The further proposition on behalf of the defendant Nathan C. 'Platt, that the action was not brought within the period allowed by law, has no merit, for the reason that he is shown to have departed from the State and remained absent therefrom for a period which prevented the application of the statute. The successive absences from the State can be accumulated and the aggregate deducted from the period of limitation. (Cole v. Jessup, 10 N. Y., 107.)

The defense, in that respect, proceeded upon the theory that, so long as Nathan 0. Platt did not intend to change his residence, and did not vote any where else except in New York, or describe himself as a resident of any other place than New York, or was never absent continuously for one year at a time, and because he was obliged to go out of the State to find employment and left with no intention of abandoning New York as a permanent home, the statute of limita-

tions was running in his favor during the whole time of. his absence. But this is an erroneous view. The Court of Appeals, in Denny v. Smith (18 N. Y., 567), declared it to be the manifest intention of the legislature to subject every debtor, during a period of six years after the accruing of a debt, to the reach of civil process at the suit of his creditor, and the court held that the absence of a debtor from the State suspended the running of the statute. The statute contemplates actual absence, and occasional returns will not alter the case. (Frost v. Brisbin, 19 Wend., 14; Haggart v. Morgan, 5 N. Y., 422 ; Bell v. Pierce, 51 id., 15 ; Mayor v. Genet, 4 Hun, 487, 489.)

The objection to the testimony of William B. Martin was properly overruled. His testimony was to the effect that his clients, the defendants, directed him to employ the plaintiff to render the services to recover for which this action was brought. What he said was in no sense a confidential communication, or within the prohibition of section 835 of the Code. It was made for the express purpose of being communicated to the plaintiff, who, under the authority thus given, was to be employed on behalf of the defendant. A direction by executors to their attorney to employ a person in connection with the prosecution in which they are engaged is not a confidential communication in the sense in which that word is used in the Code.

It must be said, also, that, in conducting the suit, so far as regards third persons, the attorney is the agent of his client, and the relation is simply that of principal and agent. (Bonynge v. Field, 81 N. Y., 159; Judson v. Gray, 11 id., 408 ; Covell v. Hart, 14 Hun, 252; Hebbard v. Haughian, 70 N. Y., 55 ; Whiting v. Barney, 30 id., 330; Rosenburg v. Rosenburg, 40 Hun, 91; Foster v. Wilkinson, 37 id., 244; Mulford v. Muller, 1 Keyes, 31; Hampton v. Boylan, 46 Hun, 51.)

There is nothing in the "decision in Bacon v. Frisbie (80 N. Y., 394) and Root v. Wright (84 id., 72) at all in conflict with the proposition just stated. These cases, it is true, illustrate the rule as one of great strictness when the subject is properly embraced within what is called a communication. This vigor is not, however, of late occurrence; it has been theoretically and practically enforced since the establishment of the profession itself.

The view taken of this case renders it unnecessary to consider whether there was evidence sufficient to show that a fund had been created by judgment out of which the plaintiff was to be paid. The executors being individually liable it was not necessary for the plaintiffs case to establish the existence of any such fund, assuming that the written acknowledgment which they signed contained any such condition. But, as we have seen in the interpretation given to that paper, the existence of the fund was not a condition of the indebtedness or payment, but a promise to appropriate a certain fun’d to its liquidation when received.

Exceptions overruled, and judgment for plaintiff ordered, with costs.

Daniels, J., concurred; Bartlett, J., concurred in the result.

Judgment for plaintiff, with costs.