author: Sedgwick, J. Per Curiam.

text:
    HESTER SHERMAN and others, Appellants, v. THOMAS KANE and wife, and the MAYOR, &c., OF THE CITY OF NEW YORK, Respondents.
    I. Meal estate.

      1. ADVERSE POSSESSION.

      (a) Grantor, in favor of.
    1. Adverse possession can commence and run in favor of a grantor, as to either the whole or a part of the granted premises.
    1. Tim, though he has never given the grantee possession.

    1. Evidence to establish. It should show a clear, unequivocal and notorious disclaimer of the grantee's title.
    1. In this case held such disclaim.
    (5) Corporation, title by adverse possession.
    1. Has power to acquire such title in protection of an undoubted power to hold the lands in question.
    (s) Warranty deed, effect of as estoppel.
    1. does not estop grantor from beginning an adverse possession, and acquiring thereby a title which will not accrue to the benefit of the grantee.
    1. Possession, effect of not giving.

    The above is the rule equally when possession is not given, as when it has been given and there has been a re-entry.

      (d) Implication from adverse possession, and policy of
    DOCTRINE OF.

      1. It necessarily implies that a title has been competently aaguirred through one or another of the methods of transferring title recognized by law, and which, if relied on by a warrantor, who had not gained title by adverse possession, mould enure to the benefit of the covenantee.

    But
    Where title by adverse possession is relied on, the Policy of law forbids an examination of any particular claim from its conclusive presumptions that there has been some unquestionable claim.

      8. STREET OPENINGS IN THE CITY OP NEW YORK.

      (a) Land not bequibed fob a stbeet, effect of making and
    BECEIVING AWABD THEBEFOB.
    1. An award by commissioners for land not required for the street, but which is a part of a lot, a portion of which was required,, and which the commissioners deem it expedient to include in their estimate and. assessment, and the ac- . ceptance of such award operate as a conveyance of the land to, and vest the title in, the corporation of the city of New York.
    H. PRESUMPTIONS AND ADMISSIONS.

      (a) Evidence.
    1. Oannot he relied on (when they do not operate as an estoppel) to the exclusion of decisive evidence as to the matters to which they relate.
    Before Curtis, Ch. J., and Freedman, J.

      Decided June 18, 1880.
    This is an action of ejectment to recover the possession of certain premises on the southwest corner of Seventy-ninth street and Third avenue.
    The diagram on the next page will serve to apply the opinion of the court to the questions involved in the view taken of the facts by the court.
    The line D D, intersecting the south side of Seventy-ninth street, is the southern line referred to in the opinion at page 321. This line is referred to in the testimony and points of counsel as line D D. The line J K represents the center line of the Old Post road as laid down on the old Groerck map. It intersects line ED at a point three hundred and forty-seven feet west of Third avenue.
    The space confined within lines E F, F, G, G H, and H E, is the locus in quo.

    Plaintiffs claimed title through Alpheus Sherman, who claimed title through James Walker, who claimed under a warranty deed made to him in 1803, by the mayor, &c'., of the city of New York, the description in. which deed was as follows :

      “ All that certain piece or lot of land, parcel of the common lands of the said party of the first part, situated in the seventh ward of the said city, and described in the survey and map or chart of the said common lands, filed in the office of clerk of the said city, by the number one hundred and ninety-four; bounded on the west end by a certain road laid out on the said map, called the east road ; on the east end, by another road laid out on the said map, called the Post Road ; on the north side, by a street of sixty feet in breadth, between the said lot hereby granted and released, and lot number one hundred and ninety-five ; and on the south side by another street of the like breadth of sixty feet, between the said lot hereby granted and released, and.lot number one hundred and ninety-three. Reference being had to. the said map, will more fully and at large appear.”
    The lots are laid out on the map as containing in breadth at each end three chains and three links (200 feet), and in length on each side, thirteen chains and ninety-four links (920 feet), according to the English standard.
    It, perhaps, is proper to mention, that according to the testimony of Mr. Ludlam, if measurements are taken from the intersection of the division line between the New York and Harlem commons, with the easterly side of the east road the center line of the old sixty-feet street, between lots 194 and 198, will intersect the east side of Fourth avenue, at a point one hundred and forty feet one inch south of the southerly line of Seventy-ninth street; while, if the measurements are taken from Forty-second street, it will intersect at a point one hundred feet two inches south of the southerly side of Seventy-ninth stréet.
    He also says line DD was intended to show the northerly line of the old street between lots 193 and 194.

      The evidence shows that the actual possession by Walker, the original grantee from the city, and by all claiming under him, was confined to the land north line DD, while the city remained and continued in the actual possession of the land south of and up to line DD.

    The cause was tried by the court without a jury. The learned judge before whom it was tried found in favor of the defendants, delivering the following opinion:

       The points of counsel are neither abbreviated nor given in full, for the reasons assigned in Stevens v. Mayor, &c. (ante, p. 374).

   Sedgwick, J.

The learned counsel for defendants maintained, as one of the defenses, that the southern boundary of the lands conveyed by the corporation to Walker was, by the parties, practically located on the soil so as to exclude from lot No. 194, and include in the lands of the city, the whole of the premises in question.

“lam forced to think, that the mere fixing of the boundary alluded to would not have the result claimed.

“The deed did not describe the lot by measurements from monuments. It did not give any quantity. An inspection of the map referred to gives neither. The deed conveyed the lot No. 194 on the map, describing it as bounded on the north and on the south by two streets, respectively, of sixty feet in breadth, between the lot and other lots, numbered on the map. The fee conveyed went to the center of the streets, because they were boundaries, and the words of the deed did not specifically exclude the soil of the street. If we suppose, then, that the parties proceeded to lay the boundary on the south, that boundary must have been on the northern line of what, by the deed and the map, was deemed a street, and, by force of that fact, the street became the boundary, and, therefore, the owner of the lot owned one-half,of the boundary or street. Merely bounding actually on a street would follow the description of the deed. If the deed had described this line otherwise than by reference to the street, .and if, in fact, that line were along a street, the fee would go to the center line of the street (Sizer v. Devereux, 16 Barb. 160; Hammond v. McLachlan, 1 Sandf. 323 ; Herring v. Fisher, Id. 344). It is well to say here, that the deficiency of land on the Goerck map as compared with the Randall map does not affect this case. The deed conveyed lot 194, and the evidence shows that.that lot had a definite situs, which would not be changed by the error alluded to.

“ I am, however, of opinion that, excepting the piece called the gore, the defendants have title by adverse possession, and that they have title to the gore by the equivalent of a voluntary conveyance from Alpheus Sherman.

“The claim of the plaintiffs rests upon the description of the deed referred to. Every other fact of the case (and the most important of these are acts in which the parties had mutual relations), testifies that the disputed land was owned by the city. There is no proof that, from 1803, Walker or his assigns made a claim to that land in any way.

“ It is denied that adverse possession could be commenced, because the city, as grantor, never gave the grantee possession. The counsel for defendants urged, that the proof showed that the city had, in fact, given to the grantee, Walker, possession of the land in dispute. To support this, he points out that the city’s deed to Walker describes the land as in Ms actual possession now being,’ and argues that this corresponds with the legal presumptions that the obligation of the grantor to give possession was performed, and that the usual and ordinary consequence of a grant followed. But presumptions and admissions, for it is not claimed that there is an estoppel, cannot be relied on to the exclusion of decisive evidence as to the matters to which they relate. The fact was, as I think the evidence abundantly shows, that neither party thought, of giving or taking possession of the land in dispute, because neither believed that the grantee was entitled to it. This did not flow from the idea that actual possession could not be had, inasmuch as the public were-to have, forthwith, the actual use for the purpose of a highway. If this had been the fact, and the public were, or were forthwith to be, in use of the street, it would be a proper conclusion that the giving possession up to the street operated as to the street itself. But, under the deed, Walker remained in actual possession of land comprised between the northern lines, of the two streets named as boundaries. If there were purpose to give possession between the center lines of these streets, there was nothing to prevent. If the-right were recognized, Walker would not have been placed in possession of the whole of the north street.. This giving possession, temporarily, as it turned out, to. the whole of this street, was a part of a systemizecl plan, necessarily involved the exclusion of Walker from any occupation of the street to the south. I conclude, on this point, that the city never put Walker in actual possession of the locus in quo. For reasons of a like kind it should be held that neither Walker nor any of his assigns conveyed the piece back to the city. If Walker had been put in possession of the land in dispute, and had thereafter been ousted from it, or had conveyed it back and left it, the evidence is so full as to the actual occurrences, it is impossible to doubt that these facts would appear.

“ It is urged that, as the grantor remained in possession after the conveyance, it became tenant at will of the grantee, and that, so long as it remained such, and before it delivered possession and re-entered under its own claim, it was disenabled from beginning adverse possession.

“It is evident, that, while the grantor may be such u tenant, he does not hold the ordinary relation of a tenant-who takes a term from or agrees to pay rent to his grantee. Up to that point his rights are limited only by the obligation of his deed. He has done no .act, like receiving possession from his landlord, which binds him to allegiance or fidelity. The grantor, remaining in possession, is not entitled to notice to quit before the grantee has the right to bring ejectment. -Of such a tenant, Chief Justice Thompson, delivering the opinion in Jackson v. Aldrich (13 Johns. 106), said, ‘ There was certainly no relation of landlord and tenant created by any express agreement, and to presume such relation from the naked fact that the defendant continued in possession, would be carrying the -doctrine of presumption beyond what, in my judgment, the rules of the law will go.’

“In another like case (Jackson v. Burton, 1 Wend. 341), the court approved Jackson v. Aldrich, and said it held, ‘ that, even as between Garrison (the grantor) and the "defendant, the relation of landlord and tenant did not exist, so as to entitle him to notice to quit, and that he was at most but a tenant at will;’ and the same case held, ‘ that nothing but a clear and unequivocal and notorious disclaimer of the title of the landlord could render such a tenant’s possession, .however long continued, adverse.’

“It could not be the force of the deed alone that would prevent the grantor in possession making an -effective claim of adverse possession, if it be admitted that he could) make such a claim after' rendering possession, for that would not vary or diminish the force of the deed.

“If he were in the position of a person who had received the possession from another, other rules would apply (Smith v. Babcock, 36 N. Y. 167, and the cases-there cited; Burhans v. Van Zandt, 7 Barb. 91-100; Jackson v. Spear, 7 Wend. 401; Kane v. Bloodgood, 7 Johns. Ch. 90 ; Judge Nelson’s opinion in Zeller v. Eckert, 4 How. U. S. 289); but, not having done that or-an equivalent act, there is no reason of policy or in the-nature of things, why a person, who has apparently executed a deed covering the premises, should not gain a title by adverse possession, which must last so long-that the presumption from the passage of time will, in its conclusions agpinst all the world, include the case of there being some sufficient réason why it would be impolitic or unjust to determine- the validity of the reasons an apparent grantor might have for denying the-deed. If the grantee brought ejectment at the time, the grantor might plead non est factvm, or have the deed reformed in equity. And after the lapse of the-statutory period the validity-of the actual claim on which adverse possession begins, is never a question. In fact, it is often assumed to begin in a tort, and that before it there was an owner who was wronged, and the law refuses to ascertain the quality of the act.

“ I find, as the facts of the case, that Walker was put in actual possession of so much of lot No. 194 as was north of the old street to the south. This fact implies that, when the deed of lot 194 was given, and. no further thing was done, the city claimed all south of that north line as its own. Especially is this to be inferred from the fact that they put him in possession, of all the street to the north. About twenty days after the deed was delivered to Walker, the city made its lease to Anthony Smith for the term of twenty years of lot 193, giving to him actual possession up to the line of the actual possession given to Walker.

“It may, perhaps, be said that these facts do not show that this claim that affected the northern part of lot 193 was of a fee, but that they show only that the claim was to hold that part subject to its being taken thereafter as a street, and was a claim to hold only temporarily until that street was opened.

“This is answered by the rule cited by counsel for defendants, that a subsequent act will explain a preceding entry ’ (Smith v. Burtis, 9 Johns. 174-182).

“ The prior act may be characterized by the inference to be drawn from subsequent acts.

“ The subsequent acts referred to in this case are those of the plaintiff’s ancestor, Mr. .Sherman. He remained in actual possession from the time when lot ¡No. 194 was conveyed to him by Jane Ackerman, about 1820, until 1835, when he conveyed to ¡Davis. During this time he was confronted by the possession of the city, through its tenants, of the 'land in dispute, and which the deed, as now construed, gave to him in fee.

. “ Proceedings for the opening of Seventy-ninth street, from Fifth*avenue to the East river, were begun some time before June 14, 1827, because a report of the commissioners was filed on that day. To these proceedings Mr. Sherman was a party, and they, and the map connected with them, were notice to him so far as they affected his property. By the map it appeared that the city claimed that his land extended down so as to include, on the south, only the soil of which he had been in possession, and that it was the owner of the soil to the south of that possession.

“This was specific notice that it did not claim to hold the land in dispute temporarily, and until the sixty - feet street could be opened ; for, necessarily, when Seventy-ninth street was opened, any idea of using soil of the sixty-feet street was abandoned.

“Mr. Sherman was an involuntary party to these proceedings, as far as they concerned the land taken for the street, and a voluntary party as to the gore that has been mentioned.

“Of the section of the statute under which that gore was taken, it was said in Embury v. Conner (3 N. Y. 511), that taking the award for a piece similarly situated—and in the present case it was shown that Mr. Sherman took the award for the gore—was a consent to the proceedings. ‘ These proceedings being taken with the consent of the owners, and duly confirmed, by the court, aqd the damages paid pursuant to the statute, operate as a conveyance of the land and vest the title in the corporation.’ And the court had before said: ‘But it is insisted, that as the enactment is only held to be void on the ground that it takes private property for private uses against the owners’ consent, if the consent be given, all objection on the ground of unconstitutionality is removed.

“ The decisions to which I have referred proceed upon that principle, and Mr. Justice Bronson, in Taylor v. Porter, in terms conceded that the objection has no application when the owner consents. If we read the statute with a proviso that the owner consents, and I think we should, that consent removes all obstacles, and lets the statute in to operate the same as if it had in terms contained the condition.

“The transaction, as it affects the gore, was of a voluntary character. The offer on the part of the commissioners had for its terms the terms of the section 179: ‘ It shall be lawful for the commissioners * * in all cases when part of any lot or lots shall be required for any of the aforesaid purposes, leaving a residue of such lot or lots * * belonging to the same owner or owners, or parties in interest to whom the said part thereof so required for such purpose shall belong, and they, the said commissioners, shall think it expedient and proper so to do, to include and comprise in their said estimate and assessments the whole or any part of such residue of such lot or lots * * along with the part of the same so required for the said purpose of the said intended operation and improvement, in like manner as if the said residue or the part thereof so included * * was required, &c.’

“The report of the commissioners stated that a certain piece of land, owned by Sherman in fee, and which it is conceded, in this case, was part of the land possessed by Sherman as No. 194, was required for the opening, and proceeds to state that such piece ‘ is part only of a certain piece or parcel of land of, in and to the whole of which the said Alpheus Sherman is seized in fee, subject to the rent hereinafter mentioned, and that we, the said commissioners, do deem it expedient to include and comprise in this, our estimate and assessment, so much of the residue of the said piece or parcel of land so belonging in fee to the said Alpheus Sherman, as is next hereinafter immediately described, Ac.’ The piece was described as a triangular parcel of land, and the southernmost boundary was ‘ southeasterly along land now or lately belonging to the mayor, aldermen and commonalty of the city of New York.’ The map of the proceedings made it clear beyond doubt, that the commissioners proposed to take all of the lot to the south on the Third avenue, and it was apparent that the city claimed to own absolutely the land up to the southern boundary , of the gore. This southern line was but five hundred and ninety-one feet and six inches, but, if it were protracted in a straight line to the Fourth avenue, the whole would be the southern line of Sherman’s actual possession.

‘ ‘ This southern line had given the course to a fence existing in 1810, and which continued to exist to 1821, when Mr. Ludlam surveyed the ground, according to the possession, and found this fence. Upon this survey the Doughty and Ludlam map was made. This map was admissible, as showing, in connection with Mr. Ludlam’s oral evidence, what the possession was—but, beyond this, two leases, letting lot 195 on May 1, 1823, and lot No. 152 on March 15, 1824, brought the map specifically to his (Mr. Sherman’s) attention. The commissioners’ proceedings did not estop Mr. Sherman or his grantees from showing the true title to the land south of the gore. They, however, form admissions as to the possession and title, and are direct evidence of the fact of the cit.y’s claim and possession as owner in fee. The city had made the .same claim by the Doughty and Ludlam map, and by the facts it perpetuated. One peculiarity of this map is that it applied the lines of possession with reference to the Goerck map and the monuments laid down soon after 1807 for the opening of Seventy-ninth and other like streets. Its assertions are made of facts as existing from the time of the Goerck map, which are brought to Mr. Sherman’s knowledge, and in accordance with which he acts, as the facts already stated show, and as again clearly appears by the conveyance of the city to him in 1835, recorded on November 20 of that year.

“By that conveyance he takes from the city a piece of land, paying $1,848, which the description bounds on the south by a piece of land belonging to the said party of the second part (being a portion of a certain lot of the common lands formerly belonging to the said parties of the first part, and known as number 194).’ On the east it was bounded by Third avenue one hundred and seventeen feet and seven inches, and on the west by the Fourth avenue one hundred feet and one inch. These eastern and western measurements included the old street to the north. The deed is evidence that the city claimed to own in fee the soil of the whole of the old street, and that Sherman recognized the claim, buying the land without protestation or reciting that it was in settlement of any disputed claims. The relation of this old street on the north to the lot was the same as that of the old street on the south. They would both pass by the same construction of the deed. The interests of the parties were of the same nature. What one would claim or yield on the north side would be claimed or yielded on the south side. At the least, at rhe time of opening Seventy-ninth street, in 1827, the city claimed to own the fee, and Sherman assented to it on the south, and the deed to him of 1835 proves that this was well considered, however mistaken. But in going back to the origin of the city’s claim, the manner of depicting the streets on the Groerck map, shows, in connection with the possessions taken ¿under it, that the city claim was from the first that they were in possession of the old street on the south as owners in fee. This is the root from which grew the subsequent admissions and acts of the owners of lot 194

■ “ This possession of the city was hostile, inasmuch as it was repugnant with the operation of the deed as conveying a fep of the streets, and none the less hostile that the grantees recognized the validity of the city’s possession. The adverse claim was notorious, and was continuous for more than twenty years.

“ It is argued on behalf of the plaintiffs the commutation of the quit-rent and the release of the city worked an estoppel, but there seems no reason to believe that the terms of their lease, or the fact of commutation, referred at all to lot 194, as affected by a claim to the land now in dispute.

“ It is further argued that the city, inputting its tenant, Anthony Smith, into possession by a lease of lot Ho. 193, as it appeared on the map of common lands, did not make any other claim than would appear on the face of the lease and the map. I think this would be correct, if the city only made the lease, and the tenant went into possession of more land than the lease called for ; but, on the facts, I am of opinion that, outside of the lease, the city, as a fact, designated the land in dispute as a part of lot No. 193, and placed Anthony Smith in possession of it. This inference is drawn from the whole history of the case. The act and claim of the tenant were the city’s act and claim, and continued, through its successive tenants, . to 1852, when the tenant Willett ceased to occupy. It is to be noted that the lease under which the city’s tenant, John Eobinson, entered, referred specifically to No. 193 as it appeared on the map of the common lands made by Goerck in 1796, and resurveyed by Doughty & Ludlam in 1822. Although this lease may not have been recorded, the act of tenant in taking possession, up to the time of the possession under the grant of lot No. 194, was open to the world, indeed, in the very presence of Mr. Sherman, and was of unmistakable import; and there is no room for believing that the tenant made a claim for himself or otherwise than under and for his landlord.

“ It is also denied that the city, as a corporation, with special powers conferred and limited by statute, had or has the power to acquire title to any lands not needed for corporate purposes, or has the faculty of appointing an agent to take adverse possession. I think it has the power to take adverse possession, but do not enlarge upon the abstract question of law involved in the proposition, for the reason that the view I have already expressed necessarily implies that the city’s adverse possession was, or may have been, in protection of its undoubted power to hold the common lands.

“ It is further urged that the covenant of warranty in the grant to Walker prevents or estops the grantor from beginning an adverse possession or from acquiring any title by adverse possession which will not accrue to the benefit of the grantee. The learned counsel supports the proposition by the citation of House v. McCormick (57 N. Y. 310-320) and Wilklow v. Lane (37 Barb. 244-249). There is no need of examining at length the rule by which a grantor with warranty is estopped from questioning the title he conveys, or by which an estate, subsequently acquired by him, inures to the benefit of his grantee. In House v. McCormick (supra), the ordinary rule was applied to a case where the defendant did not claim a title by adverse possession. It was the simple case of conveying with warranty a fee, with no breach of that covenant, until a claim of title by the covenantor under a deed subsequent, and possession under that deed for a period of short twenty years. The important part of the decision was that the deed with warranty purported to convey the whole of the fee absolutely, and not a fee subject to be opened to let in other remaindermen, from one of whom the defendant gained his title subsequently.

" Wilklow v. Lane (37 Barb. 244) did refer to a case like the present to a certain extent. The court said, in its opinion, 1 John W. Carpenter, being the plaintiff’s grantor, by full covenant warranty deed, could not originate a possession adverse to the title under his deed. His deed covered not only the title and interest which he had at the date of the.deed, but also any title or interest which he might subsequently acquire.’

"The cases cited from the reports of the State to support this proposition were as follows: Jackson v. Reynolds (1 Caines Cas. 444). The court based its opinion upon the fact that the relation between the parties was that of landlord and tenant. It said, Reynolds has, by his admissions, recognized Low as his landlord ; he cannot, therefor, be admitted to dispute his title. The court did not deny the power of a tenant, under all circumstances, to begin adverse possession, for in Brandter v. Marshal], decided at the same term (1 Caines, 394-402) it said, in relation to a tenant holding over after the lease, ‘ There can then be no adverse possession, for until 1774 Joseph Marshall did not set up any title adverse to that of Pitch, and since that time twenty years, deducting the period of the British war, have not elapsed.’

“Jackson n. Seaman (3 Johns. 498) has the same bearing as Jackson v. Reynolds. Jackson v. Burton (1 Wend. 341) has been already stated, and does not support the proposition of Wilklow v. Lane. None of the numerous propositions of Bank of Utica v. Mersereau (3 Barb. 528) decide the point. So far as the question of adverse possession was considered, it was in reference to a party who had gone into possession of land as tenant of another, acknowledging his title. In a case (Kent v. Harcourt, 33 Barb. 491) not cited in Wilklow v. Lane, the court said (p. 497), in reference, apparently, to a grant with warranty: ‘ But if the grantee enters under the conveyance, and the title he acquires from the grantor is good, so that he cannot be divested of it except by his own act,-misfortune or neglect, the doctrine of estoppel, upon which the rule is founded, will no more apply to prevent the grantor acquiring title by adverse possession, commenced subsequent to his conveyance and surrender of possession, than it would to prevent his taking a conveyance from his grantee,’ citing Despard v. Walbridge (15 N. Y. 374). Kent v. Harcourt has approved Jackson Burton, in which it was held that a grantor might, without surrendering possession, commence adverse possession by a notorious and equivocal disclaimer of title.

“ Wilklow v. Lane is not very explicit. If a grantor with warranty cannot originate an adverse possession, necessarily, under an attempt to originate one, no title at all can be acquired which would inure to the grantee’s benefit; or, in other words, if a title has been made by adverse "possession, then adverse possession must have begun. There is no doubt, that it is very difficult to fully state the principles that apply to a warranty, as a personal covenant, as an estoppel, or as conveying a subsequently acquired title.

“If, on the evidence in this case, I could find that possession of the disputed land had ever been delivered, there would be no difficulty in concluding that an adverse title had been subsequently consummated by the adverse possession (Kent v. Harcourt, supra; Cramer v. Benton, 4 Lans. 291; Stearns v. Hendersass, 9 Cush. 497). But I have found to the contrary, and there seems to be no essential difference between the two cases.

“ The city owned the land in fee. Conveyance was made with warranty. The city gave possession in part, excluding, the grantee from the remainder, which is the land in dispute. Assume, as we have decided, that, as against the grant without a warranty, the city can begin an adverse possession. That is a contradiction or disregard of the party’s own deed, which the statute recognizes as the foundation of a title. In this special case, it is repugnant to the deed only as to its relation to a part of the premises. It is evident that a case might be that would prevent the grantee from succeeding in an ejectment against the grantor. A very slight change of the words of the deed, reformed in equity according to the intention of the parties, would prevent an ejectment. An adverse possession comprehends a notice to the person claiming to be owner to bring ejectment. If a grant or bargain, and sale or feoffment can, in this way, be opposed successfully, why should a covenant, that but protects and attends the title, have greater force. The deed conveys the title. If, by presumption or the policy of the statuté, the deed falls, its covenants must go with it. If a bill in equity had been filed, to reform the deed by bounding the property, not by the street, but by the side of the street, it would be no defense that the deed contained a covenant of warranty, that estopped the grantor from denying the grantee’s title to one-half of the soil of the street. Another view illustrates the immateriality of the covenant under circumstances like those here. Suppose, upon the city refusing to give full possession to the grantee, what would have been his remedy for the purpose of getting possession ? It would have been an action of ejectment, in which the plaintiff’s title would have been proved by the granting part of the deed, apart from the covenant. That covenant would not have re-enforced any defect in the deed, as a conveyance of the land. Of course, if adverse possession, continued for twenty years, does not prevail over the deed as such, there would. be something as to which the covenant might -operate, but I am of opinion that it does.

“I do not see that the giving of possession and reentering is significant as to the operation of adverse possession against a warranty. There is no doubt, that, as evidence, it is very significant of the adverse claim made. If the covenant is to operate as a transfer of the title by adverse possession, why should it not so operate if possession has once been given? In! every other mode of subsequently acquiring title the transfer is made, though possession has been once given. Title by adverse possession necessarily implies that a title has been competently acquired through one or another of the methods of transferring title recognized by law, and which, if relied on by a warrantor, who had not gained title by adverse possession, would inure to the benefit of the covenantee. But the policy of the law forbids an examination of any particular claim, from its conclusive presumption that there has been some unquestionable claim, which, but for the lapse of time, could have been upheld.

“Ho allusion, as yet, has been made to the, defense that the lot 194, by the terms of the deed, did not extend on the east beyond the post road indicated on the Goerck map. I am of the opinion that on the mere terms of the deed, with the reference to the map, the land conveyed went no further than the road on the map, and that the deed did not convey to the road, that was afterwards opened, farther to the east, and that became Third avenue. They were two different roads, in fact, and the deed and map did not, and did not intend, to refer to the latter. It results from this, that the paper title of the plaintiff, as made by the conveyance to Walker, of lot Ho. 194, ceases at a point in the southern line of Walker’s possession, as we have already described it—three hundred and forty-seven feet west of Third avenue, that point being on the center line of the old post road. But the facts were substantially, as existed in the case of the land to the south, that have been reviewed. Walker and his assigns went into actual and adverse possession of the land, up to the new post road, claiming to own in fee, and title by adverse possession has been perfected. This possession and claim, however, it should be repeated, did not extend to any part of the land in dispute, but as to that the city remained in possession adversely to the whole world beside.

“Before closing, it is proper to thank the learned counsel on both sides for the aid that has been given by their clear and comprehensive briefs and oral arguments.

“I have received proposed findings from plaintiff’s counsel, but without passing upon them at present will return them to counsel, that they may make any other requests that are called for by the views expressed in this opinion, and that the defendants’ counsel may present their requests, which have not been handed to me. I would prefer to pass upon both at one time.

T. Mitchell Tyng, attorney, and Thomas H. Hubbard, of counsel, for appellants.

Townsend & Mahan, attorney for respondent Kane.

Wm. C. Whitney, corporation counsel, attorney for respondent Mayor, &c.; Francis Lynde Stetson, of counsel.

“Judgment for defendants, with costs.”

From the judgment entered upon the finding of the court, plaintiffs appeal.

Per Curiam.

The judgment should be affirmed, with costs, on the opinion delivered by the learned judge below.


source: Caselaw Access Project

author: “Freedman, J. Per Curiam.

license: Public Domain

text:
    HENRY HENNEQUIN and others, Appellants, v. HENRY CLEWS and another, Impleaded with FRED BUTTERFIELD and others, Respondents.
    1. Stipulation.
    1. Sot to amend answer.

      (a) Effect not to limit power of trial judge to grant
    AMENDMENTS ON THE TRIAL.
    1. Where leave had been obtained to serve a supplemental answer and it had been served and accepted, but no formal order was entered, which was not discovered until years after, when the cause was about to be tried, whereupon a stipulation was entered into, whereby it was stipulated “that an order be entered, and that no other or further or amended answer be allowed to be served, and no other de- • lay shall ensue by reason thereof.”
    Held,
    that the above indicated portion of the stipulation was intended as a provision against a further delay of the trial, and not as a limitation of the power of the trial judge to grant an amendment, as he is expressly authorized by the Code to allow on the trial, in furtherance of justice.
    1. Order. This, though an order embodying the terms of the stipulation has been entered.
    II. Answer.
    1. PLEA OP DISCHARGE IN BANKRUPTCY.

      (a) Jurisdiction, averment of, what sufficient.
    1. AN ANSWER alleged that defendants, on petition of certain of their creditors, were duly adjudged bankrupts under the laws of the United States, and such proceedings were thereafter had that a trustee was duly elected and appointed, having certain persons for his committee; the SUPPLEMENTAL ANSWER ALLEGED that in pursuance of the banlcruptcy proceedings, mentioned in the original answer, the district court of the United States, for the Southern District, sitting as a court of bankruptcy had (since the service of the original answer) granted to the defendants certificates of discharge under the seal of said court.
    Held,
    a sufficient averment of jurisdiction.

      (b) Negation of excepted cases.
    1. An answer is insufficient which omits to aver that the claim or indebtedness sued on was one provable in bankruptcy, and which would be extinguished by a discharge in bankruptcy, and was not one which was exempt from the operation of the bankruptcy statutes.
    1. Amendment on trial. Although an answer is defective in these particulars, yet, if it has been tacitly treated as sufficient for a long time—say four years—and proceedings and adjudications, with the answer before the court, have been had and made, affecting the merits of the defense of a discharge, the objection becomes a purely technical one, and should be relieved against under section 720, Code of Civil Procedure.

      III. Trial.

    1. Amendment on. See supra.
    Before Curtis, Oh. J., and Sedgwick, J.

      Decided June 18, 1880.
    The questions determined in the following opinion arose on a trial by the court and jury of the issues in this action, which, as to the defendants Henry Clews- and Theodore S. Fowler, had been directed to be tried by jury (see 43 Super. Gt. 411, 416; affirmed, 76 N. Y. §598.)
    The pleadings upon which the questions relating to the discharge in bankruptcy of defendants Clews and Fowler, aver as follows :
    The original answer contained this averment:
    “ I. The answer of the defendants Henry Clews and Theodore S. Fowler, to the complaint in this action, by J. M. Gruiteau, their attorney, shows to the court on information and belief that these defendants, on the twenty-eighth day of November, 1874, on petition of certain of their creditors, were duly adjudicated bankrupts under the laws of the United States, and such proceedings were thereafter had, that Nelson J. Tap-pan, Esq., was duly elected and appointed the trustee of said defendants, having as his committee Cornelius F. Timpson, William F. Drake and Allan H. Munroe, and that the said trustee succeeds these defendants to all their interest and property in the securities mentioned in said complaint.”
    The supplemental answer was as follows:
    “ The supplemental answer of the defendants, Henry Clews and Theodore S. Fowler, to the complaint in this action, served by leave of the court, first had and obtained, shows to the court that subsequent to the service of the original answer herein, in pursuance of the bankruptcy proceedings mentioned in said answer, and the order of the court of bankruptcy, the district court of the United States for the Southern District of New York, sitting as a court of bankruptcy, did make an order and grant to said defendants certificates of discharge under the /seal of said court, on the 24th day of December, 1875, discharging the above-named defendants and each of them, forever, from all debts and claims which, by the Revised Statutes of the United States, title Bankruptcy, are made provable against the estate of said defendants, which existed on the 18th day of November, 1874, excepting such debts, if any, as are by said law excepted from the operation ■of a discharge in bankruptcy.
    “ Wherefore these defendants, Henry Glews and Theodore S. Fowler, ask that whatever claim may, by the judgment of this court, be against them, maybe adjudged discharged by the aforesaid order and decree of the United States court, and that these defendants have a judgment for costs in this action, and such other relief as to the court may seem just.”
    The amendment to the supplemental answer allowed fry the court on the trial was the insertion, after the word “bankruptcy” and before the prayer, of the following: “The copies certificates of the bankruptcy discharge of each of the defendants are hereby hereunto annexed, marked respectively, Exhibit A and B, and to be taken as part of this answer.
    “And the defendants further allege that the claim and indebtedness set forth in the plaintiff’s complaint herein is one that was discharged by the operation of said bankruptcy discharge, and was provable in said bankruptcy proceedings, and was not one which was ■exempt from the operation of the bankruptcy statutes.” The copies were annexed.
    The issues were tried before his Honor John J. Freedman and a jury. In the course of the trial his Honor rendered the following opinion:
   “Freedman, J.

the answer, as originally interposed, the defendants, Clews and Fowler, pleaded that on petition of certain of their creditors they had been duly adjudged bankrupts under the laws of the United States.

“When they subsequently obtained their discharges, they applied for and in 1876 obtained the leave of this court to set it up by way of supplemental answer. In granting such leave this court decided that they were entitled to whatever benefit might accrue to them from the discharge.

“A supplemental answer, setting forth this fact, was thereupon served and accepted, but no order granting leave entered. Years thereafter, when the case was about to be tried and the omission was discovered, an order was, by consent, entered as follows: 1 That said answer stand to all intents and purposes the same as if this order had been made and served on the day of the service of said supplemental answer, and that no other or further or amended answer be allowed to be served herein, and no other delay shall ensue by reason thereof, and that' said cause shall be restored to the calendar, and set down for trial for the first Monday of January, 1880, &c., &c.’

“It is obvious that this provision against further amendment was intended as a provision against a further delay of the trial, and not as a limitation of the power of the trial judge to grant such amendments as he is expressly authorized by the Code to allow upon the trial, in furtherance of justice.

“ With these preliminary remarks I shall at once proceed to deal with the questions directly presented.

“The court of appeals has decided on the appeal from the order of arrest, that the liability incurred by the defendants in this case, though it is for a conversion, involved no violation of a trust in that particular and technical sense contemplated by the bankruptcy act, but only a violation of contract obligations, and that it was discharged by the discharge in bankruptcy.

“ The meritoriousness of the defense having thus been conclusively established, so far as the courts of this State are concerned, and this court having granted leave to set it up to its full extent, it is now claimed that after all the defendants have set it up in such an incomplete way that all evidence relating to it should be excluded. The particular defects alleged are : (1) That the facts which conferred jurisdiction upon the United States district court are not set forth ; and, (2) That the plea of discharge does not specifically aver that the indebtedness is one that was provable in bankruptcy, and was not one that was created in consequence of some act excepted by the bankruptcy act.

“ As the defendants did not avail' themselves of the mode of pleading expressly sanctioned by the bankruptcy act, the questions must be disposed of under the rules of pleading prevailing in the courts of this State.

" There was a time when both these objections would have been held good by the courts of this State if raised at the proper time and in a proper manner. As to the first, however, it was finally settled in Campbell v. Perkins (8 N. Y. 430), that the discharge might be given in evidence under a plea with notice; and section 161 of the Code provided a short mode of averring the determination of a court or officer of special jurisdiction, which has been retained ever since (see Code Civ. Pro. § 532). Under that, I think the answer and supplemental answer, when taken together, are sufficient, so far as the first objection is concerned.

“As to the second I am inclined to think that the" supplemental answer is defective in the alleged particular. But the plaintiffs, having failed to raise the question either by motion to make more definite and certain, or by demurrer, and tacitly treated the plea as sufficient for nearly four years, the objection, in view of the proceedings since had and adjudications since made, affecting the merits of the question, has become a purely technical one, and the defendants should be relieved against it under section 723 of the Code of Civil Procedure.

C. Bainbridge Smith, attorney, and of counsel, for appellant, after arguing in support of the proposition that plaintiff’s claim could not, under the provisions of the bankruptcy act be affected by defendants’ discharge, urged :

The supplemental answer of the defendants was so defective that it was conceded the discharges of the defendants in bankruptcy could not have been proved under it. The answer did not show that the plaintiffs’ debt was not created by the fraud of the defendants, or while acting in a fiduciary capacity. It did not aver the court had jurisdiction of the defendants, and it did not set out a copy of the discharge (U. S. Rev. Stat. 993, § 5119).

1. In pleading a bankrupt discharge a general averment that the court by which it was granted had jurisdiction will not answer. The facts necessary to confer jurisdiction must be set forth (Sackett v. Andross, 5 Hill, 327; Stephen v. Ely, 6 Id. 607. See McLaughlin v. Nichols, 13 Abb. Pr. 244; Story Equity Pl. § 726). 1. It is necessary to aver, to constitute a good plea of bankruptcy, that the claim sued on was one provable under the bankrupt law, and that the defendant has been discharged under the bankrupt law, and that the defendant had been discharged by the judgment of the proper court, and had received a certificate of such discharge (McNulty v. Frame, 1 Sandf. 128; Hayes v. Fowler, 25 Mass. 169; Maples v. Burnside, 1 Denio, 332; Abbott's Forms, 475, No. 300). 2. A copy of the discharge should be set forth (U. S. Rev. Stat. § 5119) In the case of Stall v. Wilson, 11 Bank. Reg. 57, the court held that a plea of discharge which does not set forth a copy of the discharge is bad. The head-note of same case, in 38 N. J. 198, is: “That a plea setting up a discharge under the United States bankrupt act must set out a copy of the discharge and conclude with a verification.”

“The defendants should have leave to amend, and the certificate of discharge should be received in evidence.”

The above amendment was thereupon made. The discharge was received in evidence, and a verdict directed for the defendants.

From the judgment entered on the verdict plaintiffs appealed.

II. The question is not one of variance, but whether the discharges in bankruptcy have been pleaded.

III. The plea of a discharge is not a privileged one, and it seems even a default will not be opened to admit it (Park v. Casey, 25 Texas, 536 ; Holyoke v. Adams, 59 N. Y. 239 ; Medburg v. Swan, 36 Id. 200).

IV. If the defendants were entitled to amend their answer, it was under section 723 of the Code of Civil Procedure (Code Civ. Pro. § 723 ; Pratt v. Hudson R. R. Co., 21 N. Y. 313, 314). 1. This section, as does also section 173 (Code of Pro.), contain the words “in furtherance of justice.” To allow a defendant to plead his bankrupt discharge as a defense to a debt such as the one at bar, would not be in furtherance of justice (Holyoke v. Adams, 59 N. Y. 239).

V. The following are cases in which answers were held defective : Gihon v. Levy, 2 Duer, 176 ; Ayrault v. Chamberlain, 33 Barb. 229, 237; Wachter v. Quenzer, 29 N. Y. 547, 551; Gould v. Homer, 12 Barb. 61; see also Greggs v. Howe, 3 Keyes, 166 ; Mallory v. Lamphear, 8 How. Pr. 491.

VI. According to the whole current of authorities the defendants could not prove their discharges except by amending their answer. Should that have been done? The defendants have sworn in their answer positively that the bonds “ were hypothecated for the purpose, among other things, of carrying out the letter of credit and the arrangements between the plaintiffs and these defendants.” 1. If this positive averment is true the defendants have a defense. 2. If false, they are not entitled to any favor from the court. 3. The defendants also pleaded accord and satisfaction, to which the same remarks as. above are applicable.

VII. It is submitted that the amendment was not in furtherance of justice, and should have been disallowed. Stipulations between the attorneys are binding. The defendants had been guilty of laches in not obtaining an order for leave to serve a supplemental-answer. It was agreed between them that if the plaintiffs would accept the supplemental answer served no other or further supplemental answer be made or served. An order of the court was also entered to the same effect (Cox v. New York Central R. Co., 63 N. Y. 414; McGuire v. New York Central R. Co., 6 Daly, 70; Oliver v. Bennet, 65 N. Y. 559; Foster v. Fitzsimmons, 3 Hun, 674).

J. M. Guiteau, attorney, and Wm. A. Abbott, of counsel, for respondent, urged :

I. The claim in suit is discharged by„ the bankruptcy discharges of the respondents, and is not such a claim as is excepted from the operation of such discharges by section 5117 of the United States Revised Statutes, title Bankruptcy (Hennequin v. Clews, 77 N. Y. 427).

II. The amendment of the supplemental answer on the trial was discretionary with the court, and is not reviewable on appeal (Richtmeyer v. Remsen, 38 N. Y. 206 ; Code Civ. Pro. § 723 ; Code Pro. § 173).

III. Even if reviewable on appeal, the amendment should have been allowed, (a) For the reasons stated in the opinion of the court, hereto annexed, and adopted as part of this brief, as to this point. (5) Because the defendants’ attorney had no authority or right to make any consent cutting off these respondents from the right to have the court allow said supplemental answer to be amended, (c) Because said donsent and order was superfluous and unnecessary, and the advantage sought to be got from same by plaintiff’s counsel is unreasonable and unjustifiable.

IV. The amendment to the supplemental answer was allowed out of abundant caution only. Said answer pleaded the discharge substantially as provided in section 349 of the United States Revised Statutes.

Per Curiam.

The judgment should be affirmed, with costs, for the reasons given by Judge Freedmaw, upon his direction to the jury to find for the defendants.

       Hennequin v. Clews, 45 Super. Ct. 108; reversed on this point in 77 N. Y. 427.


author: By the Court.—Sedgwick, Ch. J.

text:
    JOHN KECK, et al. v. JOHN WERDER.

      Judgment—when set aside to albw assignee in bankruptcy to come in and defend.

    This action was brought for dissolution of the copartnership between plaintiffs and defendant, and for an accounting; also for damages for inducing plaintiffs by false representations to enter into said co-partnership; upon the issue of fraud a verdict was rendered for plaintiffs, and the referee before whom the accounting was had, reported that the amount thereof should be paid out of the individual interest of the defendant in the partnership assets which had been collected and paid into court. Prior to the confirmation of the referee’s report, the defendant was adjudged a bankrupt, and two years after entry of final judgment upon the report and payment to plaintiffs thereunder, defendant's assignee petitioned that the judgment be set aside and that he be substituted in place of defendant, and be allowed to come in and defend.
    It appeared that plaintiffs were ignorant of the proceedings in bankruptcy till after entry of final judgment and payment of the funds thereunder.

      Held, that the prayer of the petition was properly denied; that the relief asked for must be sought in an independent action.
    Before Sedgwick and Freedman, JJ.

      Decided November 22, 1880.
    Appeal by assignee in bankruptcy from order denying the prayer of a petition made by him, that the judgment entered be set aside, and that the assignee be substituted in place of- defendant, and allowed to serve answer and defend.
    On the hearing of the petition the following appeared to be the facts: The plaintiffs, being partners in business with defendant, brought, this action for a dissolution of the copartnership, and an accounting. Their complaint also claimed damages against the defendant, for inducing, by fraud, the plaintiff to enter into the copartnership. The defendant, among other things, in his answer, denied the fraud and the damage. The issue as to the fraud was tried by jury, and there was a verdict for plaintiffs in the sum of $6,355.41. A receiver was appointed in the action. Interlocutory judgment was entered for an accounting, and a reference for that purpose. The referee reported that the parties were entitled individually to amounts to bG paid out of the assets that had been collected by the receiver, and by him paid into court. The referee also reported that the amount of the verdict should be paid to the plaintiffs out of the individual interest of the defendant in the funds in court. Before the report was confirmed, and before final judgment in accordance therewith was entered, the defendant was, upon petition of his creditors, declared a bankrupt, in the United States district court in bankruptcy for the District of New Jersey. Assignees were appointed, of whom the petitioner, was survivor. The plaintiff and his attorney, and the defendant’s attorney, were ignorant of the proceedings in bankruptcy, and remained ignorant of them until long after entry of final judgment. Final judgment was entered, and under its provisions the plaintiffs demanded and received from the clerk of the court an amount which included the amount of the verdict. More than two years after this, the appellant filed his petition, asking that he should be admitted to -defend, that the action should be continued by the plaintiff, that the judgment entered and all proceedings taken after the commencement of the bankruptcy proceedings be vacated for irregularity, upon the ground that such proceedings were in violation of the bankrupt act, and that the moneys which had been taken out of court under the judgment should be returned. The petition claimed relief on the ground of collusion, but there was no evidence of collusion, and on the argument of the appeal, that ground was abandoned. The court denied the motion to grant the relief asked.

      Nelson Smith, for appellant, urged :
    I. The proceedings in this case, after the adjudication of the defendant bankrupt and the appointment of his assignees, and the assignment to them by Judge Nixox, were irregular, (a) The title of the assignees in bankruptcy of the defendant relates back to December 29, 1876, when the petition for his adjudication was filed against him (U. S. Rev. Stat. § 5,044; Sutherland v. Davis, 10 Bank. Reg. 424; Hampton v. Rouse, 11 Id. 472 ; Layton v. Harwood, 12 Id. 360 ; Blumenstiel Bankr. 178-188). (b) The bankrupt was, upon his adjudication on February 2, 1877, so far as related to his property, to be regarded as civilly dead ; and no proceedings after the appointment of his assignees, and the assignment to them, affecting his property could be taken until they were brought in (Herndon v. Howard, 9 Wall. 664; S. C., 4 Bank. Reg. 212; Lowery v. Morrison, 11 Paige, 327, 329 ; Requa v. Holmes, 16 N. Y. 196 ; Russell v. Sharp, 1 Ves. & Beame, 500; Story’s Eg. Pl. 158, A ; Storm v. Davenport, 1 Sandf. Ch. 135, 138; Penniman v. Horton, 1 Barb. Ch. 246 ; Deas v. Thorn, 3 Johns. 543). (c) Intermediate to the commencement of proceedings in bankruptcy and the assignment to * the assignees, neither the debtor nor any person can do any act in any way affecting the title of such assignee. The bankrupt is to all intents and purposes as regards his property oiviliter mortuus, and every agreement made by him in relation to his estate while in that condition, is void (In re Anderson, 9 Bank. Reg. 360 ; Sparhawk v. Drexel, 12 Id. 450 ; Blumenstiel, 179-182; Miller v. O’Brien, 9 Bank. Reg. 26). (d) Third parties are deemed to have constructive notice of the filing of the petition and of the proceedings thereunder, and they cannot, by any act on their part, after such proceedings have been commenced, alter or change the condition of the estate as against the assignee. A debtor to the bankrupt, who in good faith, without actual knowledge of the proceedings, pays Ms debt to the bankrupt, is nevertheless liable to the assignee (Howard v. Crompton, 14 Blatchf. 328; Mays v. Manufacturers’ Nat. Bk., 4 Bank. Reg. 446; Stevens v. Mechanics’ Savings Bk., 101 Mass. 109 ; Blumenstiel, 181, 182). (e) The bankrupt being regarded by Ms adjudication, as respects his property, civilly dead, such death works the same legal results as if he had actually died, and consequently operates as a revocation of the authority of the attorney in the suit (Gleeson v. Dodd, 4 Met. 333 ; Weeks on Attys-at-Law, § 192). No order after the death of a party can be made in-the cause until his executor, administrator or assignee in bankruptcy is brought in (Holmes v. Requa, 16 N. Y. 196). (f) The only instances in which a suit pending in favor of or against a person who is afterwards adjudicated a bankrupt is allowed to proceed, after his assignees are appointed, without bringing them in, are : 1. Where the bankrupt has no interest in the property to be affected by the final decree ; or when the suit is on a contract made in the name of the bankimpt, as agent for another (Rhodes v. Blackstone, 106 Mass. 334) ; or where the bankrupt had assigned the claim in suit before the bankruptcy (Sucally v. Taylor, 33 Tex. 668). 2. In the cases provided for by section 5,106 U. S. Rev. Stat., which allows actions to proceed for certain purposes, namely, if the amount due to a creditor is in dispute, a suit, by leave of the court in bankruptcy, may proceed to judgment for the purpose of ascertaining the amount due, which may be then proved in bankruptcy. 3. So, too, in a suit to foreclose a mortgage, a judgment for the sale may be taken if done before assignees are appointed, the suit having been commenced previously to the filing of the petition (Lenihan v. Hamman, 55 N. Y. 652). The reason of this is, that until the assignees are appointed, the title of the property remains in the bankrupt (Hampton v. Rouse, decided by U. S. Supreme Court, 11 Bank. Reg. 472).
    II. The judgment or decree entered herein, May 31, 1877, was by default, no exceptions having been filed to the referee’s report; the plaintiffs proceeded upon the theory that it stood confirmed under rule 30 of the courts, for want of exceptions. Upon the theory that the authority of the defendant’s attorney was revoked by his adjudication as a bankrupt, and the appointment of his assignees, he had no right to file exceptions ; but whether he had or not, it is certain that the failure to "file exceptions was suffering a default, and the decree entered upon the report as confirmed for want of exceptions is a decree, in fact, by default.
    III. The appellant was entitled as matter of right to be admitted to defend this action upon his requiring it, under the provisions of section 5047, United States Revised Statutes, (a) That section first provides, that if, at the time of the commencement of the proceedings in bankruptcy, an action is pending in the name of the debtor for the recovery of a debt or other thing, which might or ought to pass to the assignee, the assignee shall, if he requires it, be admitted to prosecute the action in his own name, and if any suit at law, or in equity, in which the bankrupt is a party in his own name, is pending at the time of the adjudication of the bankrupt, the assignee may defend the same in the same manner, and with like effect as it might have been defended by the bankrupt. (5) This being a suit for the distribution of certain property owned by the bankrupt and the plaintiffs jointly together, the defendant has the same status as the complainant, it being immaterial in such cases which party commences the suit; it is, as respects the division of the property, for the benefit of both.
    IV. The verdict of the jury, no judgment having been entered upon it before the appointment of the appellant as defendant’s assignee in bankruptcy, is not even evidence of debt. Issues in equity cases are framed and sent to the jury simply to inform the conscience of the court, and their verdict can be used only upon the final hearing as evidence (Black v. Shreeve, 3 Beasley Ch. [N. J.] 469). The court will exercise its discretion upon- the final hearing as to how far it is to be controlled by the findings of the jury, and is not precluded even then from, rejecting the verdict, or from finding the questions of fact itself contrary to the verdict (Hegeman v. Cantrell, 8 J. & S. 386 ; Wallace v. Am. Linen Thread Co., 16 Hun, 404). The practice upon feigned issues was fully' considered in Snell v. Loucks (12 Barb. 385) by Willard, J., approved in 16 Hun, 406.
    V. The appellant, as assignee in bankruptcy of the defendant, was entitled to have the action continued against the plaintiff, John Keck, Jr., as survivor, and Katrina Keck, as the executrix of John Keck, Sr., deceased, under Civil Code, § 758. That section authorizes the action to be continued against the surviving partner, and the court to make an order bringing in the proper representative of the deceased, when it is necessary so to do, for the proper disposition of the matter. Here it is necessary that the representative of the deceased Keck should be brought in, so as to dispose of the whole matter, and especially for the return of the money which has been taken out of court.
    VI. The appellant being entitled to have the judgment set aside, and to come in and defend, it follows, as matter of course, that he is entitled to have the money taken, out of court returned.
    VII. All of the persons who participated in taking the money out of court had constructive notice of the assignee’s rights. Constructive notice is in legal effect conclusive evidence of notice. Constructive notice arises from legal inference so strong, that the presumption of notice, when it arises at all, is conclusive "even against the truth of the fact (Wild v. Gibson, 1 H. L. 605; Plumb v. Flewitt, 2 Anstr. 432; Kennedy v. Green, 3 M. & K. 719 ; Wade on Notice, § 37; Bird-sail v. Russell, 29 N. Y. 220). Judge Story defines constructive notice as knowledge imputed by the court, on presumption too strong to be rebutted ; that the knowledge must have been communicated (Story Eq. Juris. § 399).

      Chauncey Sliafer, attorney, in person, and for John Keck.

      Hamilton dole, for respondents, urged :
    I. Section 5047 of the United States Revised Statutes, under which this relief is sought, is as follows: “The assignee shall have the like remedy to recover all the estate, debts and effects in his own name as the debtor might have had if the decree in bankruptcy had not been rendered and no assignment had been made. If, at the time of the commencement of the proceedings in bankruptcy, an action is pending in the name of the debtor for the recovery of a debt, or other "thing, which might or ought to pass to the assignee by the assignment, the assignee shall, if he requires it, be admitted to prosecute the action in his own name, in like manner and with like effect as if it had been originally commenced by him. And if any suit at law or in equity in which the bankrupt is a party in his own name is pending at the time of the adjudication in bankruptcy, the assignee may defend the same in the same manner and with like effect as it might have been defended by the bankrupt.” The statute only gives the assignee a right to interpose in pending suits, and hence an effort is made in this case to set aside the judgment and final orders so as to make a pending action in which the assignees may intervene.
    II. The assignees have no right to make this motion. In making this motion, the most they can claim is that they stand in the shoes of John Werder. If he could not make this motion, the assignees cannot. Now, so far as the parties to the suit in this court are concerned, there is nothing in the papers showing, or tending to show, any collusion, or that, the action of the court was in any way irregular or improper. If, in fact, a third person not before the court was the owner of the subject-matter, this does not authorize him to come before the court in an action to which he is not a party, and seek to set aside its process. His remedy is by an independent action.
    III. Unless there have been proceedings taken in this suit which would authorize the defendant to come in and have these orders set aside, the matter seems to stand precisely as though these moneys had been paid without the orders of the court. Unless there was collusion on the part of the parties before the court, the fact that the payments were actually made under the orders of the court does not change the situation in favor of Werder’s assignees. How,.if the plaintiffs, with full knowledge of the bankruptcy, received property from the bankrupts belonging to the assignees, they did so at the risk of being compelled to restore it if the assignees took proceedings within the proper time, and this was the only penalty to which they subjected themselves.
    IV. The plaintiffs owed no duty to the assignees of Werder. They were entitled to obtain the money owed to them, if they could get it. The gravamen of the complaint on the part of the assignees is that the plaintiffs, and their attorney, and the referee, have obtained property belonging to them. If so, and the assignees are not prevented by the statute of limitations, the courts are open to them to establish their rights. But if at one time the assignees were entitled to this property, this furnishes no reason why this court should revive an action upon which the remedy may now be cut off by granting the order asked for here. '
    V. There was no fraud or collusion of any kind practiced upon the court in this case. It was not incumbent upon any of the parties to notify the court of the bankruptcy proceedings. This court was in no way thereby deprived of jurisdiction either over the parties or the subject-matter. If the assignees saw fit to come in they might have done so. They could, if they saw fit, refuse to father the action begun. If the court had had knowledge of all the facts, it would have been entirely proper for it to have proceeded in the suit without any regard to the assignees, if they did not choose to assert their rights. And if the assignees-did not discover their rights in time to assert them, this is their misfortune.
    VI. Besides, the fund in question being in court in the action constituted a special fund for the purposes of the action. ¡No outsider could touch it until the determination of the action. The fund was before the court for distribution among the parties to the action, and, being there, the court- would proceed to administer the fund in spite of bankruptcy proceedings (Clark v. Binninger, 38 How. Pr. 341; Same v. Same, 39 How. Pr. 363). And the fact that the action was by one partner against another, does not change the true principle underlying the case. If the Kecks, for any cause of action, had had a receiver appointed, the funds in his hands would be subject to the orders of the court appointing the receiver, and only that portion which might ultimately be found due to Werder would pass to his assignee in bankruptcy. The receiver was appointed in 1872, and the plaintiffs’ lien upon the moneys in his hands was not affected by the bankruptcy proceedings. The assignees might have been entitled to a part of the fund if it had turned out that Werder was entitled to any portion of it, otherwise not. They could not touch the fund as against the plaintiffs. There is nothing in the papers here which shows that the judgment and orders which it is sought to set aside are in any way incorrect, and without such proof this motion should not, in any event, be granted.
    VII. The court, in the exercise of its discretionary power, should not set aside this judgment and these orders, and revive the action, in the entire absence of fraud and collusion.
    VIII. I know of no case under the bankrupt law of 1867 which holds that the bankruptcy of a party is an abatement of the suit.
   By the Court.—Sedgwick, Ch. J.

I am of opinion that the prayer of the petition was properly denied. The judgment, which it was asked should be set aside, had been carried into effect. The fund, which the Bankruptcy assignee now claims, had been paid over to the plaintiff. It is not necessary now to ask what would have been the remedy of the bankruptcy assignee, if the fund had been in existence at the time of the petition, either in court or in the plaintiffs’ hands. The fund had become part of the general property of the plaintiffs, and there was not any attempt to trace it.

It was not claimed that the plaintiffs had practiced any deception upon the court or abused its process, or •even acted fraudulently as to the petitioner. There was, therefore, no ground that the court, acting upon the motion of the assignees, should assert its power by order and proceedings for contempt, to compel a wrong-deer to place matters in statu quo.

The plaintiffs could not have been compelled to replace the fund on the principles that apply to orders of restitution ; because, although the judgment might have been set aside, it would not have been set aside for the reason that it then appeared that the plaintiff had no right to the fund, or owed the petitioner the .amount of it; but simply to allow a new litigation as to who was entitled to it. To justify an order of restitution, it must at the time appear that the prevailing party was not entitled to the judgment which has been set aside.

Under these circumstances, an order that the plaintiffs should pay the amount into court would express an adjudication as to his obligation to the petitioner to do so, and could not be enforced by proceedings to put them in contempt, or by execution.

It is clear, that unless the fund was restored, the rest of the relief prayed for would be useless. The thing claimed by the answer of the petitioners, if they were allowed to make one, or by any proceeding they might take, would be, that they were entitled to that part of the fund that represented the individual property of the bankrupt in the partnership assets. Such a claim could have no object if there were no fund. Any claim they might make that the plaintiffs wrongfully took and were not entitled to take that part of the fund, inasmuch as the assignee was its true owner, would, if the position was valid on the law and the facts, entitle the assignee to a judgment for damages. This, however, is a substantive cause of action, which must be asserted in an action. In advance of a judgment determining such a cause of action in petitioner’s favor, there can be no adjudication in his favor that would allow setting aside the judgment which the plaintiffs have obtained in this action. In effect, the assignee asks a decision in his favor upon the merits, in a proceeding where the plaintiffs are not, by law, called upon to frame an issue as to the merits.

The order should be affirmed, with costs, and the disbursements to be taxed.

Freedman, J., concurred.


text:
    CECILIA A. MERCERON v. ANDERSON FOWLER, Impleaded, Etc.

      Recovery of costs against party beneficially intei-ested in claim.

    Where the owner of a claim assigns the same to a third party, upon consideration that the said assignee shall begin and prosecute an action thereon, at his own expense, and when the said claim is collected pay to the assignor one-half of the amount received over and above all costs, said assignor is beneficially interested in the recovery, under 2 R. 8. 619, § 44, and is liable for the costs of the action so brought. This, though he did not retain or appoint the attorney, or furnish funds for the prosecution of said action, or in any way interfere therewith, or direct the progress thereof.

    Before Sedg-wiok and Freedman, JJ.

      Decided November 22, 1880.
    Appeal by third party from order directing the payment, by him, of costs recovered by defendant.
    The facts are stated in the opinion.

      Blade & Ladd, attorneys, and Wm. W. Ladd, of counsel, for appellant, urged :
    I. The provision of the Revised Statutes, regulating the granting of orders such as. the one appealed from, is as follows: “ Where any action shall be brought in the name of another, by an assignee of any right of action, or by any person beneficially interested in the recovery in such action, such assignee or person shall be -liable for costs in the same cases and to the same extent in which a plaintiff would be liable ” (3 R. S. pt. 3, c. 10, tit. 1, § 11, p. 899, 6 ed.). The plain reading of these lines requires two things to concur in each case before a person can be thus summarily charged with costs : 1 st. He must have brought an action in the name of another. 2d. He must be the assignee of the cause of action, or be beneficially interested in the recovery. No other construction gives full and equal effect to all the clauses of the provision cited. The object of the statute was not to render assignees of causes of actions or persons beneficially interested in an assigned cause of action liable for costs in every event where suit was brought in the name of a third party. The sole object was to reach cases where, after going through the form of an assignment, a party still retained to himself the direction of the suit.
    II. The language of the decisions is uniform ihat the party to be charged must not only be beneficially interested in the recovery, but must be shown to have brought the suit. He must appear to have in some way controlled or directed the progress of the litigation, or to have actively intermeddled with it (Whitney v. Cooper, 1 Hill, 629-633; Bliss v. Otis, 1 Den. 656; Giles v. Halbert, 12 N. Y. 32-34; Wheeler v. Wright, 23 How. Pr. 228 ; Cutter v. Reilly, 31 How. Pr. 472; Gallatin v. Smith, 48 How. Pr. 477; Ward v. Roy, 69 N. Y. 96).
    III. “ In an application of this nature the moving party holds the affirmative, and is bound to make out a satisfactory case” (Denio, Ch. J., in Wolcott v. Holcomb, 31 N. Y. 125; Whitney v. Cooper, 3 Hill, 629-635). The moving affidavit is on information and belief. The opposing papers are clear, positive and unequivocal. There is no conflict of testimony. The evidence is clear to the point that the appellant did not procure this suit to be brought nor intermeddle with it. No facts or circumstances are shown to overcome appellant’s positive denials.

      Martin & Smith, attorneys, and Aaron P. Whitehead, of counsel, for respondent.

       In Marvin v. Marvin (78 N. Y. 541) it was held that such an application is a special proceeding, and that, under the statute, costs are allowable therein; but see section 3247, Code Civil Procedure. When such an application will be held premature, see Slauson v. Watkins, ante, p. 172.

   By the Court.—Sedgwick, Ch. J.

To justify the order appealed from it was necessary to show that the appellant had brought the action in the name of another, and that he was beneficially interested in the recovery (2 R. S. 619, § 44). There was no doubt that lie was beneficially interested in the recovery, within the meaning of the statute. On the other hand, there was no doubt that he had not interfered with the progress of the action after it was begun. -He had not specifically _ directed any proceeding, nor had been consulted at any stage; nor had he furnished money for the action. The plaintiff had promised to begin and prosecute at her own expense. He did not retain or appoint the attorney.

The statute, however, does not place the responsibility of a third party upon these incidents. They are important as evidence as to his relation to the bringing of the action, but the statute makes the liability complete, if within its meaning he has brought the action in the name of the plaintiff (Wheeler v. Wright, 14 Abb. Pr. 353).

It is manifest that, so far as the form of the action is concerned, the plaintiff is the only person that can be said to bring it. The acts of his attorney as his agent are his acts. The statute, however, considers that'some one may bring the action, while he is not plaintiff. An instance is: an attorney who, beneficially interested as a matter of fact, brings the action, is liable for costs (Voorhees v. McCartney, 51 N. Y. 387; Bliss v. Otis, 1 Den. 656). Also, a third party who appoints an attorney who, as matter of fact brings the action, is liable (Giles v. Halbert, 12 N. Y. 32; Whitney v. Cooper, 1 Hill. 629).

It is clear that when a third party directly causes another to bring an action, leaving such other to appoint his own attorney, he is liable for costs, if he also be beneficially interested in the recovery.

Of course such action must be brought by the third party in the name of another; that is, the plaintiff must not act for himself upon a substantive right of his own that-exists independent of the claim of interest of the third party, but if he acts for the benefit of the -third as well as for himself, the case is within the statute. Giles v. Halbert (supra), is such a case. In that case it may be, that so far as the bringing of the action w.as concerned, it was held that the third party was liable because he had retained the attorney, yet it was also held that it was brought in the name of another, although the plaintiff was the person in whose favor the cause of action originally accrued, and who still had a right in it.

In this case the third party, the appellant, assigned to the plaintiff the whole cause of action." If that had been all there would be no ground for saying that the appellant had brought the action, nor that he had brought it in the plaintiff’s name. But the consideration of that assignment was a contract by the plaintiff that she would begin arid prosecute the action at her own expense, and that when the claim was collected she would pay to the assignor one-half of the amount received by her, over and above all costs.

This contract was more than a request to bring the action ; it was a demand that it should be brought, and when the plaintiff begun the action she did not bring it in the exercise of her independent right as owner of the claim, but under the demand of the contract.

I am therefore of the opinion that the order appealed from should be affirmed, with $10 costs.

Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    JOHN M. JORDAN, Respondent, v. HENRY C. BOWEN, Appellant.

      Evidence—exhibition of wounded limb in action for personal injuries.— Judge's charge—exception to.

    In an action for injuries to the person, caused by the negligence of defendant, it is not error to allow the plaintiff to exhibit to the jury the injured limb; e. g., an arm which has been crushed by machinery.
    Where such an action has been brought by a minor who becomes of age before the trial, a general exception to the proposition in the judge’s charge, that the plaintiff, if entitled to recover, is entitled to compensation for the time during which he had been unable to labor, presents no ground for reversal.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided, November 22, 1880.
    Appeal by the defendant from a judgment in favor of plaintiff, entered upon a verdict for $3,000, and from an order denying a motion for a new trial on the judge’s minutes.
    The action was brought to recover for personal injuries suffered by the plaintiff while in defendant’s employment, from the machinery of a printing press while in motion.
    Among many exceptions taken upon the trial by the defendant was one to the ruling of the judge permitting the plaintiff to exhibit to the jury his right arm, which was greatly mutilated and injured ; there was also an exception to the judge’s charge in regard to damages, which is fully stated in the opinion.

      Nash & Holt, attorneys, and George C. Holt, of counsel, for appellant, among other things, urged:
    The court erred in the charge as to damages.

      The court charged that if the plaintiff should recover, he would be entitled to compensation, among other things, “for the time he has been deprived of the ability to labor.” To this defendant’s counsel duly excepted. It appeared in the case that the plaintiff, at the time of the accident, was sixteen years of age; that the plaintiff’ s father is still living, and has brought an action, which is still pending, against defendant, for the loss of his son’s wages because of this accident: The father of a minor son is prima facie entitled to his earnings during minority. The father may relinquish this right, but such relinquishment must be proved (Shute v. Dorr, 5 Wend. 204; 1 Pars. Cont. 309). In this case, not only was there no proof of such waiver, but it actually appears that the father is suing to recover for the loss of these wages. To permit their recovery in this action, therefore, was error. The recovery in this action will be no bar to the pending suit by the father.
    II. The court erred in permitting the plaintiff to show his arm to the jury. As this exhibit is not before the court on this appeal, the appellant has a right to ask the court, in passing on this point, to assume that the appearance of the plaintiff’s mutilated arm was extraordinarily revolting, and calculated to cause extreme commiseration for plaintiff to be felt by the jury.
    The exhibition of this mutilated arm was not only .calculated to unduly excite the pity of the jury, and was a kind of evidence from which the jury might draw entirely erroneous conclusions, but it was a kind of testimony differing from ordinary exhibits, in that it was optional with plaintiff whether to have it introduced or not. The defendant could not have obliged the plaintiff, on the stand, against his will, to make such an exhibition of his person as was made before the jury. The court can, undoubtedly, in a proper case, involving a question of personal injury, compel a party to submit out of court to a surgical examination as a basis for surgical testimony on the trial; but surely no witness could be compelled in open court unwillingly to exhibit any part of his or her person not customarily exposed. If so, where will the right stop ? No testimony should be admissible which is not admissible on the demand of either party. To permit a party to introduce evidence, if it helps him, which, at the same time, he can keep out if it-hurts him, is clear injustice.'

      David E. Gwynne, attorney, and Richard O' Gorman, of counsel, for respondent, among other things, urged:
    I. The plaintiff had a right to claim for loss of time before and after the trial, he was of age before the trial; the defendant’s counsel did not discriminate in his objection to this.
    II. The court exercised its discretion properly in refusing and allowing introduction of evidence. The jury were not misled. The defendant’s counsel improperly objected to the plaintiff showing to the jury the condition of his arm. In an action to recover damages for an injury to the limb, the injured limb may be exhibited on trial, to be inspected by the court and jury (Wharton Ev. § 346; Mulhado v. Railroad Co., 39 N. Y. 370; State v. Garnett, 71 N. C. 85 ; Wiener v. State, 66 Mo. 13; Walsh v. Sayre, 52 How. Pr. 334).
   By the Court.—Freedman, J.

Upon the question of defendant’s negligence, as well as upon the question of plaintiff’s alleged contributory negligence, the evidence was sufficient to carry the case to the jury, and hence defendant’s motions for a dismissal of the complaint and for the direction of a verdict were properly denied. Nor can I discover any valid objection to the charge under which the whole case was submitted to the jury, or any merit in any of the exceptions taken by the defendant to the refusals to charge otherwise.

Upon the question of damages, the defendant might have asked to have the jury instructed that the father of the plain JS was entitled to the earnings of the plaintiff during his minority, and that, consequently, they had no right to include in their estimation any damage sustained by the = plaintiff in this respect during his minority. If such a request had been duly made and refused, an exception taken to such refusal might be pressed as a ground for a new trial. But, as no such request was made, nor the attention of the trial judge called to the point, and as the plaintiff had become of gge before the trial, a mere general exception to the proposition charged, that the plaintiff, if entitled to recover, was entitled to compensation, among other things, for the time he had been deprived of the ability to labor, presents no ground for reversal.

The exceptions to the admission of testimony and the denial of the motion for a new trial appear to be equally untenable.

The judgment and order should be affirmed, with costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—Horace Russell, J.

text:
    SAMUEL LEWIS, Respondent, v. JAMES P. FARRELL, Appellant.

      Security for costs—when, ordered—laches in demanding.—Superior court —jurisdiction of.

    Under the provisions of the Code of Civil Procedure, a defendant in an action brought in this court cannot demand security for costs upon the ground that the plaintiff is a non-resident, when the plaintiff resides within this State.

      Where the defendant neglects for nearly a year to make his motion for security, knowing that the plaintiff resides without the city and county of New York, the action in the meantime having come to issue and been for many months upon the calendar, his delay constitutes such laches as will justify the court, so far as the motion is addressed to its discretion, in denying it upon that ground alone. The statutes relating to the jurisdiction of this court, reviewed and considered.
    Before Sedgwick,, Ch. J., and Russell, J.

      Decided November 22, 1880.
    Appeal from an order denying the defendant’s motion that the plaintiff be required to give security for costs.
    This action was brought to recover the sum of §6,000, which the plaintiff claims to have deposited with the defendant in 1874. The answer admits the receipt of the money, but alleges that it was to be applied to certain purchases for the plaintiff’s benefit; that it was so applied, and that not only was the amount deposited by the plaintiff exhausted in such purchases, but that the defendant advanced moneys on the plaintiff’s account, for which he counter-claims. The complaint was served August 8, the answer September 8, and the reply December 34, 1879. The case was noticed for trial in February, 1880, and was on the calendar, at the time of this appeal, but had not been reached. The order to show cause in this matter was granted July 14, returnable August 5, 1880 ; the order denying the defendant’s motion, now appealed from, was entered September 7, 1880. It was alleged in the plaintiff’s affidavits, used upon this motion, that the plaintiff and defendant were formerly on terms of intimacy, and that the defendant well knew at the time this suit was brought that the plaintiff lived in Brooklyn.

      D. & T. McMahon, attorneys, and Denis McMahon, of counsel, for appellant.

      B. Lewinson, attorney, and Lewis Sanders, of counsel, for respondent.
   By the Court.—Horace Russell, J.

On the argument of this appeal, the defendant’s counsel insisted that, under the Code, as recently amended, his client was entitled, as a matter of absolute right, to have his motion in this matter granted. The plaintiff’s counsel, on the other hand, insisted:

First. That this was not a case contemplated by the Code, in its provisions relating to security for costs.

Second. That if it was, the matter was still within the discretion of the'court; and,

Third. That the defendant was guilty of such laches in making his motion that it was properly denied on that ground.

1. The provision of the Revised Statutes (2 R. S. 620, § 1), which formerly controlled this subject, was : “ When a suit shall be commenced in any court for a plaintiff not residing within the jurisdiction of such court, or for several plaintiffs who are all non-residents, the defendants may require the plaintiffs to give security for costs.” The act organizing the superior court (Laws of 1828, p. 141, c. 137) made it a local court, and prohibited the sending of its process into any other county, except process of subpoena and attachment for disobedience thereof. The acts of 1840, 1844 and 1847 extended the power of the court to the extent of authorizing transcripts of its judgments to be filed in other counties,'and the issuing of executions into such counties upon such judgments; but it was uniformly held that these provisions could not be regarded as extending the jurisdiction of the court by implication (Hicks v. Payson, 7 Abb. Pr. 326, opinion by Bosworth, J.; Gardner v. Kelly, 2 Sandf. 632; Blossom v. Adams, 7 N. Y. Leg. Obs. 314; Frees v. Ford, 6 N. Y. 176)..

And so it was uniformly held that a plaintiff not residing within the city of New York, who brought an action in this court, must file security for costs (Bolton v. Taylor, 3 Robt. 647). While I do not agree with these decisions, I feel bound to follow them.

Unless the new Code has changed the law, these decisions may be regarded as applicable to this appeal. The provision of the Code (§ 3,268) relating to this, subject, went into effect on the first day of September last. Inasmuch as it was the law on this subject at the time the decision of this motion was made, though not at the time it was argued, it was assumed by both sides-on the argument of the appeal, that the Code must be regarded as controlling, even if in conflict with the previous statutes and decisions. The provision of the Code-is: “Sec. 3,268. The defendant in an action brought in a court of record may require security for costs to-be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either—1. A person residing without the State; or, if the action is. brought in a -county court, or in the marine court of the city of New York, the city court of Yonkers, or the justices’ court of the city of Albany, residing without the city or . county, as the case may be, wherein the-court is located.”

The Code, as amended in 1876 (§ 263), enlarged somewhat the jurisdiction of the superior court, as-will be readily seen by comparing that section with section 33 of the old Code. Sections 263 and 3,268 would seem to indicate that the legislature meant so to enlarge its jurisdiction and powers as that the judgment, of the superior court should be as effectual in any county of the State as the judgment of the supreme-court, and to take this court, at least in certain respects, out of the category of local courts ; inasmuch as they expressly provide that security for costs may be demanded from a plaintiff not residing in the county, who-brings his action in certain local courts enumerated in subdivision 1 of section 3,268—courts with which, in this respect, the superior court was formerly classified —thereby indicating the intention of the legislature, by not including the superior court in the provision, that hereafter any citizen of this State, no matter in what county he resides,, might bring his action in'the superior court of this city (provided this court has jurisdiction of the action ; section 263), without filing security for costs. This seems the necessary construction of section 3268, unless such construction ought to be altered on account of the other sections of the Code which will now be considered.

The counsel for the appellant claimed that section 3,343 (subd. 1) and section 3,347 (subd. 4, 13), taken in connection with section 3,268, clearly indicated the legislative intent that a defendant in a case like that at bar should have security for costs.

“ Sec. 3,343. Miscellaneous general distinctions and rules of construction.—In construing this act, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof:

“1. The superior city courts are, collectively, the court of common pleas for the city and county of Mew York, the superior court of the city of Mew York, the superior court of Buffalo and the city court of Brooklyn.”

“ Section 3,347 (under title 2, provisions regulating the effect and application of this act). The application of certain portions thereof regulated and qualified.

“ The application and effect of certain portions of this act are declared and regulated as follows : Except that where a particular provision included within a chapter, or a portion of a chapter, specified in a subdivision of this section, expressly designates the courts, persons or proceedings affected thereby, that provision is deemed excluded from the application and effect prescribed in the subdivision.....

“4. The remainder of chapter 5 and the whole of chapter 6 apply only to an action commenced on or after the first day of September, 1877, in the supreme court, a superior city court, the marine court of the city of New York, or a county conrt.....

“13. In chapter 21, titles 1, 2 and 3 apply only to an action in one of the courts specified in subd. 4 of this section.”

“The remainder of chapter 5 and the whole of chapter 6,” referred to in subdivision 4 of section 3,347, relate to infant parties, and to pleadings in courts of record. So that subd. 4 only means to say that the provisions of a portion of chapter 5 and the whole of chapter 6, relating to infant parties and to pleadings, shall apply to actions commenced in a superior court after the first day of September, 1877.

Subdivision 13 of section 3,347 is, that “in chapter 21, titles 1, 2 and 3 apply only to an action in one of the courts specified in subd. 4 of this section.” Chapter 21, titles 1, 2 and 3 relate to costs, security for costs and fees. That is to say, subdivision 13 means that the provisions of titles 1, 2 and 3, relating to fees, costs, and security therefor, apply only to actions in the supreme court, a superior city court, the marine court of the city of New York, or a county court.

I have quoted these statutes because the bare inspection of them indicates that the claim of counsel, in regard to their effect, to say the least, does not seem to be sustained. And when they are taken in connection with the first part of section 3,347 and section 3,343, quoted above, and in connection with section 3,268, which does expressly provide in what local courts security for costs may be demanded by a defendant from a plaintiff residing without the county, it seems to be reasonably clear that there is nothing in the Code to conflict with the ordinary and obvious construction of section 3,268, and that does not require a plaintiff' to give security for costs under circumstances like the present. It may safely be granted that the provisions-of titles 1, 2 and 3 of chapter 21, relating to costs, fees, and security for costs, apply to the supreme court Or a. superior city court (subd. 4, §3,347), without its following, when it comes to the application, that section 3,268, under title 3 of chapter 21, should not be construed and applied according to its obvious meaning. To give the-construction claimed would be to require security in the supreme court as well as in a superior city court. If there be a conflict between the obvious construction of section 3,268 and an inference which might be drawn from the subsequent sections of the Code above quoted, I should still be of opinion that the former ought to-control on well settled rules in the construction of' statutes. A clearly expressed intent must always govern, rather than an inference or implication.

2. The defendant having neglected for nearly a year to make this motion, though he knew that the plaintiff resided in Brooklyn—the action having in the meantime come to issue and been for many months upon the-calendar for trial—I think his delay constituted such laches as to justify the court below, so far as the motion addressed itself to its discretion, in denying it (2 Wait Pr. 570, 572 ; Florence v. Bulkley, 1 Duer, 705; Swan v. Matthews, 3 Duer, 613 ; Robinson v. Sinclair, 1 Denio, 628 ; Fearn v. Goelpke, 13 Abb. Pr. 473).

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

Sedgwick, Ch. J., concurred.