text:
    CHARLES R. KNOWLES, Respondent, v. THE AMERICAN INSURANCE COMPANY OF BOSTON, Massachusetts, Appellant.

      ffire insurance — severable risks in a single policy — prior insurance, known to the insurer's agent when it issued its policy — cancellation of a policy.

    Two policies of insurance were issued by the American Insurance Company of Boston, Mass., to John J. Schermerhorn, the assignor of Charles R. Knowles, one upon a hop-house, hearing date in December, 1890, and the other dated in March, 1891, insuring the hops in the house, viz., $1,200 on the stock of hops grown in 1889, and $800 on the hops grown in 1890. The policy upon the hops providing that the entire policy should he void, if the subject of the insurance was personal property and was or became incumbered by a chattel mortgage.
    There was, in fact, a chattel mortgage upon the crop of 1889, hut none upon that of 1890, the two crops being kept separate.
    In an action brought upon the policies the plaintiff recovered for the loss on the hop-house and upon the crop of 1890.
    Upon an appeal by the defendant from this judgment: Held, that the recovery for the crop of 1890 was proper.
    That the risks as to that crop, and as to the crop of 1889, were severable.
    That the policy must he construed to mean that the entire policy should he void as to the personal property which was mortgaged, but not as to such property as was free from mortgage.

      As to tlie policy upon the hop-house it was shown that when that policy was issued the defendant’s agent was told of a prior insurance, and that he directed the insured to have it canceled, which was done within a few days after the policy in suit was issued.

      Held, that there being such knowledge on the part of the defendant’s agent, at the time the policy was issued, it could not successfully defend an action upon its policy, under a condition of the policy that it should be void if the insured then had, or should thereafter procure, other insurance.
    The prior policy of insurance covered the property insured by the policy on the hop-house issued by the defendant, and any loss thereunder was payable to-Charles B. Knowles, mortgagee, as his interest might appear.

      Held, that the company issuing the prior policy of insurance might cancel it without the consent of Knowles, at least to the extent of the hop-house, in which it was conceded that Knowles had no interest.
    Appeal by tbe defendant, the American Insurance Company of Boston, Mass., from a judgment of the Supreme Court, entered in the clerk’s office of Albany county on the 11th day of February, 1892, upon a verdict for the plaintiff for $1,158.25, after a trial at the Albany Circuit-before the court and a jury; and also an appeal from an order of said court, entered in said clerk’s office on the 9th day of February, 1892, denying a motion for a new trial. *
    The action was brought to recover the loss by fire under two-policies of insurance issued by the defendant insuring John J. Schermerhorn.
    One policy upon a hop-house contained the following clause:
    This entire policy, unless otherwise provided by agreement, indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.
    The defendant alleged in its answer that a prior policy of insurance had been issued by the New Scotland Mutual Insurance Company, covering all the property insured by the two policies in suit, and that the loss under such prior policy was, by its terms, made payable to Charles R. Knowles, mortgagee,v as his interest might appear, and that such policy was in full force and effect when the two policies in suit were applied for and issued.

      Jacob L. Ten Eyck, for the appellant.

      S. S. Hatt, for the respondent.
   Putnam, J.:

This action is brought upon,two policies of insurance issued by defendant to plaintiff’s assignor. The first dated December 2,1890, for $700, upon a hop-house; the second dated March 5, 1891, insuring the hops in said house, viz., $1,200 on the stock of hops grown in 1889, and $800 on the stock of hops grown in 1890. The whole property was destroyed by fire on March 16, 1891.

On the trial, it appeared that there was a chattel mortgage upon the crop of 1889, and the court below'held that, bythe terms of the policy under which ¡fiaintiff claimed, it became void as to those hops, in consequence of such mortgage; and he withdrew that portion of plaintiff’s claim from the jury. But, he held, there being a separate insurance of $800 upon the crop of 1890, and the mortgage being only upon the crop of 1889, that the claims under the policy were severable, and that plaintiff could recover for the latter crop.

There was evidence from which the jury could find that the value of the building insured in the first policy was $700, and that the crop of 1890 was worth $400 and upwards. The jury found for the plaintiff $1,158.25.

Yarious questions of fact were raised upon the trial; for instance, as to the claim of defendant that the insured set fire to the building in question; that he swore falsely on his examination and in his proofs of loss; that he concealed the facts of the first insurance and the chattel mortgage. I do not think it necessary to consider these matters. The said questions were properly submitted to the jury, and the testimony tending to establish the claim of defendant was not so preponderating upon the trial that we could properly set aside the verdict as contrary to the evidence. The court, in his charge to the jury, stated that defendant had waived the defense as to the real estate mortgage, and withdrew that defense from the jury, to which ruling, bythe court,no exception was taken. The court also held that there was no evidence on which defendant could go to the jury on a claim of false swearing in the proof of loss, to which holding, also, defendant took no exception.

Therefore, there are only two questions I deem necessary to discuss, viz.: "Was the policy issued upon the hop-house avoided because of the previous policy thereupon issued by the New Scotland Mutual Insurance Company ? And, second, the policy on the personal property being void as to the hops of 1889, could a recovery be had for a loss on the crop of 1S90 ?

As to the latter question, I reach the conclusion, with some hesitation, that the view taken by the trial judge.was correct. The hops were kept separate, and in the policy were separately insured. I see no reason why a mortgage on crops of 1889, in violation of the terms of the policy, should avoid it as to the separate insurance on the crop of 1890. It is true the terms of defendant’s policy ■differs somewhat from cases below cited in the use of the word “ entire.” The policy in question is as follows: “ This entire policy * * * shall be void * * * if the subject of the insurance be personal property, and be or become incumbered by a chattel mortgage.” It is not clear that the word “entire” changes the meaning of the clause above quoted from what it would be without that word. But I think that the above-quoted provision should be ■construed to mean, in such a case as this, that the entire policy shall be void as to the property incumbered by the mortgage.

Here, in one policy, is an insurance of $1,200 on the hops of 1889, which were subject to the chattel mortgage, and in the same policy a separate insurance of $800 on the hops of 1890 not incumbered, the two classes of hops being kept separate.

The instrument says the entire policy shall be void if the subject of insurance be personal property, and incumbered. It. will be observed it does not say if the property, or any part of it, be incumbered. The clause avoiding the policy, if the property insured is incumbered, should not be held to apply to a separate class of property separately insured in the policy and unincumbered, any more than if such separately insured and unincumbered property was so insured by a separate policy.

The authorities in this State support the conclusion of the trial justice that, although the policy in question became void as'to the hops of 1889, because of the mortgage, the plaintiff could recover for the crop of 1890. (Merrill v. The Agricultural Ins. Co., 73 N. Y., 452; Schuster v. The Duchess Country Ins. Co., 102 id., 260; Pratt v. The Dwelling-House Mutt. Fire Ins. Co., 130 id., 208, 221.)

In Smith v. The Agricultural Insurance Compamy (118 N. Y., 526), cited by appellant, the policy was a peculiar one. It provided tliat if either the real or personal property insured, or any part of it be incumbered, the entire policy, and every part of it, shall be void. If the policy in this case had provided that the entire policy should be void, if the property insured or any part of it become incumbered, the case would be different.

The appellant insists that the court below should have dismissed the complaint on account of the prior insurance on the property. This insurance did not cover the crop of 1890, and as no recovery was had for'the crop raised in 1889, it is only necessary to consider this question as to the policy upon the hop-house.

There was evidence in the case which the judge below, in a fair charge, submitted to the jury to the effect that, when the policy in question was issued, the agent of defendant was told of the prior insurance and knew of its existence, and that he directed Schermerhorn to have the same canceled, and the latter, within a few days, directed the agent of the New Scotland Company to cancel said policy as to the hop-house and hops, and that said agent did thereupon cancel said policy by noting the fact of the cancelment on the application and on the bond, and making the necessary changes in the books of the company. Assuming this evidence to be true (and we may assume the jury so found), it effected a cancelment of the policy as to the hop-house and hops, as held by the trial court. (See Crown, Point Iron Co. v. Ætna Ins. Co., 127 N. Y., 608.)

I think the company could cancel the policy without the consent of the mortgagee, Knowles, at least as to the hops of 1890, and the hop-house, in which property it is conceded that Knowles, as mortgagee, had no interest.

We are referred by the respondent to the case of Continental Insurance Company v. Horton (28 Mich., 174) as determining that a provision in a policy against a double insurance is not violated by a prior policy known to both parties, and which it was understood was to be canceled, and which was canceled about the time of the issuing of the policy in suit. In my judgment the doctrine laid down in that case should be followed.

The jury in this case, on the question of fact submitted to them, could have very well found with the defendant. But assuming that the plaintiff’s statement was true — that he told defendant’s agent of the prior policy; that it was agreed that such policy should be canceled, and that within a few days it was so canceled according to agreement — it is not reasonable that the fact of the existence of the New Scotland policy for a few days only after the issuing of the policy in suit should defeat plaintiffs recovery.

The general rule, as claimed by appellant, that where the powers of the agent of an insurance company are restricted by the terms of the policy, the insured is bound to take notice of such restriction, and the agent cannot, in violation thereof, waive condition of the policy is well settled. (Quinlan v. The Providence Washington Ins. Co., 133 N. Y., 356.)

But this principle is often held not to apply as to facts existing, contrary to the conditions of the policy when it was issued, to the knowledge of the insurance company’s agent. In such a case it is presumed that the consent of the company to the existence of such a state of facts was omitted by mistake to be stated in the policy, and the company is estopped from setting up such a defense. (Short v. Home Ins. Co., 90 N. Y., 16; Van Schoick v. Niagara F. Ins. Co., 68 id., 434; Woodruff v. Imperial F. Ins. Co., 83 id., 134; McNierney v. Agricultural Ins. Co., 48 Hun, 243; Walsh v. Hartford F. Ins. Co., 73 N. Y., 11; Kenyon v. K. T. and M. M. A. Assn., 122 id., 257.)

I think, under the circumstances, plaintiff’s policy was not avoided by the failure to indorse upon it the consent of defendant to the prior insurance; and the insured having carried out the agreement to procure a cancellation of the prior policy, the fact of the existence of such last-named policy does not constitute a defense to the action.

Other exceptions than those considered were taken at the trial by the defendant. I have examined them, but do not think they require discussion, or should lead to a reversal of the judgment.

The judgment should be affirmed, with costs.

Mayham, P, J., and Herrick, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    FRANCIS SHIELDS, Respondent, v. ALVIN RUSSELL, Appellant.

      Deed given for $1,000 and a lease by the grantee giving a right to a reconveyance on its repayment constitute a mortgage — forfeiture is not favored — ■ inconsistent covenants.

    Eliza H. Elliott, who owned the fee of certain land, being desirous of borrowing $1,000 for two years from Alvin Russell, she and her husband, John S. Elliott, entered into an agreement with Russell, pursuant to which, in consideration of the loan, the Elliotts deeded the real estate to Russell, and the latter leased it to John S. Elliott for the term of two years, who agreed not to assign the lease and to pay sixty dollars yearly as rent therefor. Russell further agreed that on repayment of said $1,000 and the rent reserved, within two years he would reconvey the land to John S. Elliott, his heirs and assigns. Mrs. Elliott, who agreed to all these stipulations, went into, and remained in, possession of the land with her husband. About a month after Russell made the lease to John S. Elliott, the latter assigned it to Francis Shields, who, in the same year, tendered to Russell $1,000 and accrued interest and demanded a deed, which was refused, whereupon Shields then brought an action against Russell for specific performance, and recovered a judgment therefor.
    Upon an appeal by Russell from this judgment:

      Held, that the whole transaction amounted to a mortgage to secure the repayment to Russell by the Elliotts of $1,000 and interest.
    That Shields had all the rights of John S. Elliott, to whom Mrs. Elliott had yielded all her rights in the premises.
    That, although the covenant in the lease not to assign had been broken by John S. Elliott, yet his position was not that of a tenant, but that of a mortgagor, and that, as such, a covenant forfeiting his estate would not be favored.
    That the covenant not to assign, and the covenant of Russell to reconvey to John S. Elliott, his heirs and assigns, were inconsistent, and that the latter covenant would be enforced as being most favorable to the right of redemption.
    Appeal by tbe defendant Alvin Russell from a judgment of tbe Supreme Court, entered in tbe Franklin county clerk’s office on tbe lltb day of April, 1892, in favor of tbe plaintiff, directing tbe defendant to deliver to tbe plaintiff a good warranty deed in fee simpleof tbe lands and premises described in tbe complaint, and awarding to tbe plaintiff tbe sum of $196.20 costs, and from tbe decision therein, signed by Leslie W. Russell, J. S. C., filed in tbe Franklin county clerk’s office on tbe 7 th day of April, 1892, and from each and every part thereof, and particularly from that portion thereof granting to tbe plaintiff an extra allowance of $100 costs; and also from tbe decision of tbe clerk of Franklin county, embodied in said judgment, taxing and allowing to tlie plaintiff on the taxation of costs the said sum of $100 extra allowance, and from each and every part thereof, with notice of an intention to bring up for review on such appeal each and every order and decision made therein, including those made upon the trial of the action.
    It appeared upon the trial that John S. Elliott assigned a lease of the premises in question to Shields on March 11, 1891, it having been executed February 4, 1891; that, in the year 1891, Shields, claiming to be entitled under the terms of the lease to a conveyance of the premises, tendered the sum of $1,000 and interest to Russell, who, according to his testimony given on the trial, said he did not want to have anything more to do with it; that he did not want to take the money, and would not sign a deed which was presented for his execution.

      John P. Pellas, for the appellant.

      John P. Badger, for the respondent.
   Herrick, J.:

Eliza H. Elliott and John S. Elliott desired to borrow the sum of $1,000 from the defendant. He agreed to loan them that amount for two years; to secure it they were to give him a deed of certain lands, and he to give back a lease of them. Eliza H. Elliott owned the fee of the real estate in question; she gave a deed of it, her husband, John S., joining with her, to the defendant; at the same time, the defendant gave to John S. Elliott a lease of the same premises for two years, by the terms of which John S. Elliott was to keep the property insured and in repair, to pay to the defendant sixty dollars a year rent, and not to assign the lease; the defendant agreed that, upon the payment of said rent, the performing of the other conditions of the lease and the payment to him, within two years, of the sum of $1,000, he would execute and deliver to said John S. Elliott, his heirs and assigns, a warranty deed in fee simple of the premises described in the lease. Eliza H. Elliott agreed, with her husband, that the lease should go to him, and she was present when it was made. The deed and the lease were made simultaneously for the same purpose; it was intended by all parties that they should take the place of, and operate as a mortgage to secure to the defendant the repayment to him of the $1,000 loaned to the Elliotts. The whole transaction constituted. a mortgage. (Macauley v. Smith et al., 132 N. Y., 524; Thorn v. Sutherland, 123 id., 236; Barry v. H. B. Fire Ins. Co., 110 id., 1.) And upon payment of the loan to the defendant, his lien therefor would absolutely cease, and there would be no necessity for a reconveyance from him, except to clear up the record title. (Barry v. H. B. Fire Ins. Co., 110 N. Y., 6; Shattuck v. Bascom, 105 id., 39, 43.)

The cases cited holding that the defendant took no title; that he-simply had a lien upon the property as a mortgagee; would be an insuperable objection to the plaintiff’s recovery in this case, except for the facts already stated that Eliza H. Elliott, who, under such authorities, must be considered the mortgagor, was a party to the whole agreement, consented to the lease given to her husband, in and by which lease it was agreed that the reconveyance should be-made to her husband, his heirs and assigns, which agreement is just as binding as if it was contained in the deed itself; both are to be construed together as one instrument, and the further fact, as stated by the learned justice before whom the case was tried without a jury, that Mrs. Elliott, while upon the witness stand, disclaimed any right in the premises.

The plaintiff is the assignee of all the rights of John S. Elliott under the so-called lease; he has offered to pay the defendant the amount of his mortgage, and asks a conveyance to him of the property in question.

The defendant says that John S. Elliott covenanted and agreed in and by the lease not to assign such lease, and that by assigning to-the plaintiff all rights under the lease, his right to a conveyance has been forfeited, and that the plaintiff is not entitled to a conveyance for that reason.

Practically the defendant’s position amounts to this — that, by. defaulting in one of the conditions of the lease, or mortgage, that which was a mortgage has been turned into an absolute deed; in fact the defendant stated that as his claim upon the trial in answer to a question of the court. “ My opinion is that I am entitled to the ownership of the property for the reason that the transfer from Elliott to Shields was without my consent; and I propose to claim a forfeiture; no other reason in particular for me refusing to deed to Shields except that I should object to him as a tenant; if he would pay up in full he would be no longer a tenant as I understand it; so that there is no other reason except the ground of forfeiture by assignment without my consent.”

That position is one that finds no favor in equity; once a mortgage, always a mortgage. (Macauley v. Smith, 132 N. Y., 524-531.)

And a mortgagor, although he has not strictly complied with the terms of the mortgage, has a right of redemption. (Matthews v. Sheehan, 69 N. Y., 585-590.)

As a covenant between landlord and tenant, the covenant not to assign would probably be good, and the plaintiff could not occupy the premises as a tenant of the defendant; but, as we have seen, the real position of the defendant is not that of a landlord, but of a mortgagee, the mortgagors remaining in possession of the property.

I shall not discuss the question as to whether the clause forbidding an assignment was void as being in restraint of the power of alienation, nor as to what extent forfeitures are favored or frowned upon in law or in equity.

While there is that covenant on the part of Elliott that he will not assign the lease, there is also a covenant upon the part of the defendant that, upon the payment of $ 1,000 by Elliott or his assignee, he will convey to Elliott, his heirs and assigns the property in question ; of course, Elliott’s assigns could not pay, nor could the defendant convey to Elliott’s assigns unless Elliott had assigned to someone ; these provisions of the lease, or mortgage, being inconsistent, and, as we have seen, that equity does not favor an agreement that turns a mortgage into an absolute deed upon a default. (Macauley v. Smith, suprai) I think that the provisions of the lease, or mortgage, providing for a conveyance of the property to Elliott or his assigns upon his or their paying the amount <?f the mortgage should be held paramount, and that the plaintiff, as Elliott’s assignee, is entitled to a conveyance of the property in question.

Let the judgment be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


text:
    DANIEL C. HEWITT, Appellant, v. MOSES NEWBURGER, Respondent.

      False imprisonment — sufficiency of an information in a criminal ease not alleging the act tote “ willful" — when attached collaterally — malice.
    In an action brought by Daniel O. Hewitt to recover damages from Moses New-burger for an alleged false imprisonment, it appeared that Hewitt was arrested in the city of Amsterdam upon an information made by Newburger, charging him with the crime of injuring property, in that he threatened to tear down a wall which was being built by a corporation for use as a dam. The information did not charge that the act was “willful,” and principally upon this ground the plaintiff claimed, upon the trial of this action, that no crime was charged. The court held that the information was sufficient, but dismissed the complaint. Upon an appeal by the plaintiff from the judgment dismissing the complaint:
    Held, that as an information is a proceeding before an inferior court it should be liberally construed, and that the information in this case which, in simple and direct terms, stated the acts complained of without stating the evidence was sufficient.
    That where process is attacked collaterally, it is not to be subjected to as careful criticism as if the attack were direct.
    That evidence offered to prove malice was properly rejected in an action to recover the damages resulting from an alleged false imprisonment.
    Appeal by the plaintiff Daniel C. Hewitt from, a judgment of the Supreme Court, entered in the office of the clerk of the county of Montgomery on the 28th day of May, 1892, dismissing the complaint after a trial at the Montgomery Circurt before the court and a jury.
    The action was brought by Daniel C. Hewitt to recover damages from Moses Newberger for an alleged false imprisonment. On the trial it appeared that Hewitt was arrested in the city of Amsterdam upon an information made by Newberger charging him with the crime of injuring property in that he threatened to tear down a wall which was being built by a corporation for use as a dam.
    The information in question was as follows:
    STATE OF NEW YORK, j County of Montgomery, City of Amsterdam, j ss’'
    Moses Newburger, of said county, being duly sworn, says that on the 27th day of June, 1891, at the city of Amsterdam, in the said count}', one Daniel Hewitt did threaten to commit the crime of injuring tlie property belonging to tlie City Mills, a corporation in said city of Amsterdam, in that lie threatend to tear down a wall now being erected by said corporation and being the property thereof, and the same is being built for the purpose of a dam, and there is just reason to fear that the said Daniel O. Hewitt will tear down and demolish said wall, as he the said Daniel O. Hewitt hath, as above, threatened to do.
    Wherefore, this deponent prays that a warrant issne for the arrest of said accused, and that he be dealt with pursuant to the provisions of the Code of Criminal Procedure.
    MOSES NEWBURGER,

      Oomflammt.

    Sworn to before me this 21th ) day of June, 1891. Í
    George B. White,

      Recorder of the City of Amsterdam, AT. Y,

    When the proofs were closed defendant’s counsel moved to dismiss the complaint on the ground that the recorder had jurisdiction of the alleged offense, and, as such, had determined that the complaint was sufficient; that Hewitt had threatened to commit a crime, and, as the recorder had jurisdiction to so determine, the defendant was not in this action liable for a false arrest, and upon the facts and the law was not liable for false imprisonment.
    The omission of the word “ willful ” in the information appeared to furnish the principal ground for the action to the plaintiff, whose óounsel cited, in support of his position, sections 639, subdivision 2, and section 654, of the Penal Code, and as also applicable to the offense section 639 and sections 84-89 of the Code of Criminal Procedure.

      Edwa/rd, P. White, for the appellant.

      WestbrooTc, Borst c& Perldns, for the respondent.
   Herrick, J.:

The Code of Criminal Procedure, like the original Code of Civil Procedure, was intended to simplify pleadings, and informations like complaints are sufficient, if, in plain terms, they specify the charge made, so stated that the person proceeded against knows exactly what is charged against him. Proceedings before inferior courts are, so far as the mere forms of procedure therein are concerned, to be liberally construed.

Informations lodged before committing magistrates, and warrants issued upon them, are not expected to be drawn with the same technical accuracy that an indictment should be.

The information is the allegation made to a magistrate that a person has been guilty of some designated crime.” (Code of Crim. Pro., § 145.)

So far as I know, no construction of this section has been given by the courts; it certainly cannot be expected that persons, before they can safely go to a magistrate for relief, must employ someone learned in all the niceties of pleading, and acquainted with the definitions of crimes, nor that they shall possess such knowledge themselves. Courts of minor criminal jurisdiction are courts where people are expected and invited to initiate prosecutions without counsel, and it is the policy of the law to encourage them in so doing; and the proceedings there should be so regulated that the unlettered and unlearned may enter freely, without fear that their ignorance of the forms of law and its terms may. lead them into greater dangers or difficulties than those from which they seek protection or redress.

A plain statement of the acts of which they complain, without stating the evidence, it seems to me is sufficient. The magistrate then becomes the responsible party, he is to determine from that statement, or information, whether a warrant should issue, and he, not the person lodging the information, is responsible for its form. The person lodging the information being liable in an action for malicious prosecution if he willfully, corruptly or maliciously misleads the magistrate by any false statement in his information.

In this particular case the magistrate personally drew up the information, after an oral examination, or statement, made to him by the defendant. It states, in simple and direct terms, what the defendant complained of, so that both the magistrate and the defendant could understand the charge made, and tested by the principles I have suggested, it seems to me sufficient. (Von Latham v. Libby, 38 Barb., 339; Pratt v. Bogardus, 49 id., 89.)

The warrant follows the information and fully apprises the defendant of the charge against him, and while, perhaps, it might be open to objection where a direct attack was made, as upon an application to discharge the person arrested upon it, yet, when it is attacked collaterally, and bearing in mind that the same technical accuracy is not to be insisted upon in process issuing from minor courts as in indictments, I think it should be held sufficient.

The evidence offered to prove malice was properly rejected; malice is not an element of false imprisonment. (American and English Encyclopaedia of Law, vol. 7, p. 66L)

The judgment should be affirmed.

Mayham, P. «L, and Putnam, J., concurred.

Judgment affirmed.


author: Mayiiam, P. J.:

text:
    THOMAS G. BIRDSALL, Respondent, v. CHARLES E. KEYES, Appellant.

      Hosts — appeal from a Justice’s Court — offer of judgment— Code of Ciml Procedure, secs. 8070 and 8071.
    The only effect, so far as costs are concerned, of section 8070 of the Code of Civil Procedure, relating to offers of judgment on appeals'from Justice’s Courts, is to entitle the party making the offer to costs, if the recovery in the appellate court is less favorable to his adversary than the offer.
    When such offer of judgment is not as favorable to the adverse party as the recovery in the appellate court, the offer has no effect on the question of costs, and the successful party is entitled to his costs.
    When the case on an appeal from a Justice’s Court has become, under section 3071 of the Code of Civil Procedure, an action in the appellate court, the rights of the parties as to costs are governed by the provisions of law applicable to actions originally commenced in such appellate court.
    Hence, where a plaintiff recovered judgment in a Justice’s Court for seventy-seven dollars and costs, and the defendant appealed to the County Court and demanded a new trial, and before the justice filed his return the appellant served an offer to allow judgment for thirty dollars, which was not accepted, and no offer was made by the respondent, and on the trial in the County Court the respondent recovered a verdict for fifty-five dollars, being for a sum sufficient to carry costs if the action had been originally commenced in the County Court, it was

      Held, that the respondent was entitled, under section 3071 of the Code of Civil Procedure, to the’full bill of costs in such an action.

      Appeal by the defendant Charles E. Keyes from an order of the County Court of Albany county, entered in the office of the clerk of Albany county on the 25th day of July, 1892, denying the defendant’s motion to strike from the judgment entered against him in the action, on a retrial had on an appeal from a judgment rendered in the Justice’s Court, the sum of fifty-seven dollars and thirty-one cents, the amount of the plaintiff’s costs in the action as readjusted by the clerk of Albany county.

      George H. Stevens, for the appellant.

      James C. Johnson, for the respondent.
   Mayiiam, P. J.:

The plaintiff recovered judgment in Justice’s Court for seventy-seven dollars and costs, from which the defendant appealed to the County Court and demanded a new trial. Before the justice filed his return the appellant served on the respondent and his attorney an offer to allow judgment to be rendered in the appellate court for thirty dollars. This offer was not accepted, and no offer was made by the respondent. On the trial, in the County Court the respondent recovered a verdict for fifty-five dollars, on which judgment was entered with fifty-seven dollars and thirty-one cents costs, amounting in all to the sum of $112.31. On amotion for readjustment of costs the appellant objected to the allowance of costs to the respondent, but the same were readjusted by the clerk at fifty-two dollars and thirty-one cents. The appellant then moved in County Court to strike out the costs allowed by the clerk and inserted in the judgment, which motion was denied, and from the order denying that motion the appellant appeals.

The determination of the question on this appeal must depend upon the construction to be given to the various provisions of the Code of Civil Procedure relating to the subject, as we have not been referred by the learned counsel in their briefs to any case precisely like the one at bar.

The sections of the Code which relate directly to the questions of costs on appeals in the County Court, where a retrial is asked for in that court, are 3070, 3071 and 3072.

Section 3070 provides that within fifteen days after service of notice of appeal, either party may make an offer in writing to allow judgment to be taken in tbe appellate court for a specified sum, and if tbe same be not accepted, tbe party on whom the offer is served will be liable for costs to his adversary, unless the recovery is more favorable to him than the offer.

The only real effect of that offer is to entitle the party making it to costs, if the recovery is less favorable to his adversary than the offer. When the offer is not accepted, and is not as favorable to the adverse party as the result of the trial, the offer has no effect upon the question of costs.

If this were not so, then an offer, however insufficient or inadequate, if not accepted, would deprive the successful party of costs. No such result can fairly be deduced from this section. An insufficient offer, not accepted when the recovery exceeds the offer, leaves the case as if no offer had been made, and the successful party in that case is entitled to his costs.

But if there be doubt as to the true interpretation of section 3070, standing alone, when read and construed in connection with section 3071, the legislative intent on this subject seems quite apparent. The latter section provides that after the expiration of ten days from the time of filing the justice’s return the action is deemed an action at issue in the appellate court, and all proceedings therein, including the entry of judgment, are the same as if the action had been commenced in the appellate court, except as otherwise specially provided.

When an appeal has reached the stage that it has become an issue in the appellate court to be tried and disposed of as an action originally commenced in that court, the rights of the parties upon •the question of costs are governed by the provisions of law applicable to such original actions.

In this case the recovery in the County Court was for a sum sufficient to entitle the plaintiff to costs, if his action had been originally commenced in the County Court, and he is, therefore, entitled, under the provisions of section 3071, to the full bill of costs in such an action. We think the order of the County Court appealed from was correct and should be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurred; Herrick, J., concurred in result.

Order affirmed, with ten dollars costs and printing disbursements.


author: Mayiiam, P. J.: Herkiok, J.:

text:
    MAHALA L. GETMAN, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Actions against the city of New York — constitutionality of section 1103, chapter 410, La/ws of 1882 — place of trial — change of venue.

    Section 1103 of chapter 410 of the Laws of 1882 (the New York city consolidation act), which provides that the Supreme Court in the first judicial district, and the Now York Court of Common Pleas and Superior Court, shall have exclusive jurisdiction of all actions or special proceedings against the mayor, aldermen and commonalty of the city of Now York, while unconstitutional in so far as it limits the general jurisdiction of the Supreme Court of the State over parties and subject-matter, is valid as a statute making actions against the municipality local and fixing their place of trial. (Herrick, J., dissenting.)
    Hence, the place of trial of an action against the corporation of the city of New York, commenced in the Supreme Court in a county other than New York, should, on motion of the defendant, be changed to the city and county of New York by force of said statute. (Herrick, J., dissenting.)

      It seems, that if no motion for a change of venue is made, such an action, while made local by the above statute, may, by force of section 985 of the Code of Civil Procedure, bo tried in the county designated in the complaint as the place of trial.
    Appeal by the defendant, tlie Mayor, Aldermen and Commonalty of the City of New York, from an order made at a Special Term of the Supreme Court, entered in the office of tlie clerk of tbe county of Saratoga on the 15th. day of June, 1892, denying a motion made by tbe defendant to change the place of trial of this action from the county of Saratoga (which was the county named in the summons and complaint as the place of trial) to the city and county of New York.
    The action was for an alleged injury to the jilaintiff by falling on tlie sidewalk on One Hundred and Sixth street in the city of New York. Before making the motion to change the place of trial, the defendant demanded, in writing, that the place of trial be changed to the city and county of New York, on the ground that that county was the proper place of trial.

      Terence Farley, for tlie appellant.

      William P. Butler and Edgar T. Brackett, for the respondent.
   Mayiiam, P. J.:

This motion, to change the place of trial, was, as appears by the order, denied by the learned justice at Special Term, not in the exercise of the discretion vested in the Special Term on motions of this character, but upon the sole ground that section 1103 of chapter 410 of the Laws of 1882, by which actions against the mayor, aldermen and commonalty of the city of New York were made local and triable in the city and county of New York, is unconstitutional. The only question raised for consideration on this appeal is as to the correctness of that conclusion.

The language employed in the section referred to upon this subject is as follows: “ The Supreme Court in the first judicial district, the Court of Common Pleas and the Superior Court shall have exclusive jurisdiction of all actions or special proceedings wherein the mayor, aldermen and commonalty thereof are made a party defendant.”

The language of this act relates to the jurisdiction of the court, and not to the methods of procedure in the court after it has acquired jurisdiction. The legislative attempt to confer on the courts named in the act exclusive jurisdiction, by necessary implication excludes the Supreme Court in any other part of the State from entertaining jurisdiction of an action against the mayor, aldermen and commonalty of New York, and thus deprives the court having general jurisdiction of its exercise of that jurisdiction over a municipality or artificial person within its territorial jurisdiction.

This we have held is a violation of article 6, section 6 of the State Constitution, which confers upon the Supreme Court jurisdiction as wide as the boundaries of the State, and embraces every person, material or artificial, within its boundaries. (Mussen v. Ausable Granite Works, Impleaded with the Mayor, Aldermen and Commonalty of New Work, 63 Hun, 368.)

It- is true that this constitutional provision does not prohibit the legislature in a proper case from fixing the place of trial of an action, or from declaring what are local and what are transitory actions, and we are left on this motion to determine whether this provision of the statute, while unconstitutional, in so far as it restrains the jurisdiction of the court, is not valid as a statute for the purpose of fixing the place of trial of an action against this municipality.

This motion does not proceed upon the theory that the bringing of this action is a nullity because not brought in New York county, but rather, treating the action as well brought, seeks to change the place of trial from the county of Saratoga to the county of New York, because, by section 1103 of chapter 410 of the Laws of 1882, New York county is the county in which it must be tried.

The question involved is not precisely like the one that was before this court and disposed of in 63 ITun, 368 {supra). In that case the demurrer struck at the very root of the action. It assumed that, by the provisions of section 1103 of the statute, the jurisdiction of the court was restricted, and that the Supreme Court of the State was shorn of the power of exercising its jurisdiction over a party within the State limits.

On this motion the jurisdiction of the court over the persons and subject-matter is recognized and conceded, but the place of trial is sought to be regulated by the statute. This, I think, may be done provided this action, by reason of its being prosecuted against the municipality in this form, is made a local action by this provision of statute.

While,,the language of this act is broad enough, if the legislature had the power, to limit the territorial jurisdiction of the Supreme Court, and to deprive the court outside, of the county of New York from the exercise of any of its judicial functions in an action against the mayor, aldermen and commonalty of that city, and, as we have seen, is, to that extent, unconstitutional and void; yet I am inclined to the opinion that the legislative intent was only to make actions prosecuted against the city in that form local actions, and to make them triable in that county, and that the action, notwithstanding that provision of statute, might be legally tried in Saratoga county, subject to the power of the court, on motion, to change it to the proper county under the provisions of section 985 of the Code of Civil Procedure. That section provides that: “ If the county designated in the complaint as the place of trial is not the proper county, the action may, notwithstanding, be tried therein, unless the place of trial is changed to the proper county upon the demand of the defendant, followed by the consent of the plaintiff, or the order of the court.”

It follows, therefore, that the action was properly brought in Saratoga, so far as giving tlie court jurisdiction of the parties, and subject-matter, subject to the right of the defendant to have the place of trial changed to the proper county, and that section 1103 of chapter 410 of the Laws of 1882 could not, and does not, divest the court of jurisdiction, but only affects the location of the action as to the place of trial, and this construction was given by this court at General Term in the second department to the provisions of section 8 of chapter 853 of Laws of 1868, the provisions of which are, substantially, like section 1103 now under consideration.

In City of Brooklyn v. Mayor, etc. (25 Hun, 612), the court changed the place of trial from Kings to New York, and, in discussing this statute, say: “The intention of the legislature evidently ivas to require that actions brought against the defendant should be brought in the city and county of New York. That the legislature has power to prescribe the county in which particular actions shall be-brought and tried admits of no dispute.”

After this judicial construction of the effect of the provisions of section 8 of chapter 853 of Laws of 1868, the same provision was incorporated in section 1103 of chapter 410 of Laws of 1882, and we think its provisions, under similar circumstances, should receive a similar construction.

The order of Special Term should be reversed, with ten dollars costs and printing disbursements.

Herkiok, J.:

I am not prepared to assent to the proposition that the legislature can compel all classes of actions to be brought and tried in a particular county, and thus deprive the Supreme Court of its power, in furtherance of justice, to change the place of trial from one ■county to another; that is a power that was possessed by the Supreme Court at the time of the adoption of the Constitution of 1846, a power which was possessed by the Kings Bench of England.

Actions relating to real estate have, from the beginning, been regarded as local actions, and statutes or decisions rendering or holding them triable in the county where the real estate is situated ■do not affect this question, the Supreme Court never having had-the power to change the place of trial of such an action when it was Brought in the county where the real estate was situated; a statute confining the trial of such actions to the county where the property is situated deprives the court of no power it ever possessed.

It seems to me that a construction that holds that section 1103 of chapter 410 of the Laws of 1882 is to be regarded, not as limiting the jurisdiction of the court, .but simply as making certain actions local, is rather too delicate to be substantial; the result is the same, the court cannot change the place of trial to any other county.

I see no reason to change the views expressed in Mussen v. Ausable Granite Company (63 Hun, 367). But it does not, it seems to me, follow that because the law in question is held unconstitutional, that, therefore, the motion for a change of venue in this action should be denied. The constitutionality of the law is not necessarily involved in the decision of this case. The motion is made upon the grounds that New York is the proper county, and for the convenience of witnesses.' The cause of action arose in New York county, the accident happened there, and, while the court has jurisdiction to try it in some other county, yet, when a motion is made to change the place of trial to the county where the transaction giving rise to the action took place, and no reasons are given for denying the motion except such as are advanced in this case, I think the motion should be granted, and that the order of the Special Term should be reversed.

Putnam, J., not acting.

Order reversed, with ten dollars costs and printing disbursements.


author: Mavham, P. J.:

text:
    RUDOLPHUS W. ANDERSON, Appellant, v. BENJAMIN YOUNG, Respondent.

      A,fence on ahighway,'narrowing it — anuisanee—injury resulting therefrom — nonsuit.
    A contracting or narrowing of a public highway is a nuisance, as matter of law, and a party who sustains special damage therefrom, being free from any want of proper care on bis part, has a right of action against the person maintaining such nuisance.
    On the trial of an action brought to recover for an injury to the plaintiff’s horse, alleged to have been caused by a nuisance maintained by the defendant in a highway, in the shape of a barbed-wire fence constructed by the defendant along his premises, evidence was given by the plaintiff tending to show that the wire fence was two feet further in the highway than an old fence which had inclosed the highway more than twenty years before the erection of the wire fence, and that his horse was injured by coming in contact with the wire fence while being-led along the highway in the night-time. The plaintiff also put in evidence, over the defendant's objection, the record of an order made by two of the three commissioners of highways of the town, purporting to lay out the highway as of a certain width, but which contained no recital or other evidence of notice to. the third commissioner, and also a warrant of the commissioners of highways, for work on the highway.
    At the close of plaintiff’s evidence a nonsuit was granted, on motion of the defendant, the court intimating that the action should have been based upon negligence;, that the plaintiff was guilty of contributory negligence, and that for that reason the case ought not go to the jury,

      Held, that, even if the order of the commissioners laying out the road was void, for the reason that it did not appear that the third commissioner was notified of the meeting of the commissioners to make the same, still there would be in the. case proof of a public highway, by user and adoption by the commissioners,, worked by them as such, to the extent of the user indicated by the location of the old fence, as regarded which location the wire fence was an encroachment, and that the question whether that encroachment was a nuisance by which the plaintiff’s horse was injured should have been sent to the jury.
    In determining whether a nonsuit has been properly granted the General Term is to give full weight to all the evidence offered and received on the part of the plaintiff, and assume that if the jury had found in accordance with it the verdict, as matter of law, could not be upheld, and that the facts which the plaintiff’s evidence established, or tended to establish, were found in his favor.
    Appeal by the plaintiff Rudolplius W. Anderson from a judgment, entered in the office of the clerk of Franklin county on the 21st day of March, 1892, for $121.11 costs, in favor of the defendant Benjamin Young, upon the direction of the court at circuit dismissing the complaint, with costs; and from an order, entered on the 19th day of March, 1892, denying the plaintiff’s motion upon the minutes of the judge presiding at the trial to set aside the direction dismissing the complaint, and for a new trial upon the exceptions taken by the plaintiff.

      Gordon II Main, for the appellant.

      John P. Badger, for the respondent.
   Mavham, P. J.:

The defendant constructed a barbed-wire fence on or along the public highway, and while the plaintiff’s servant was leading two young liorses, attached together by one ■ strap or halter, behind a buggy, in which he was riding, they became frightened and ran against this fence and one was seriously injured, for which this .action was brought.

The complaint alleged that the defendant was the owner of certain premises and real estate therein described, along which, for more than twenty years, a public highway had been kept and used, which had been duly laid out as such, and vras four rods wide, and charged that the defendant 'had erected and maintained a nuisance in such highway, in the construction of a barbed-wire fence, by which the plaintiff’s horse was injured.

The answer denied that the fence -was in the highway, and alleged that the same was erected with the knowledge and consent of the plaintiff, and charged that the injury to plaintiff’s horse was the result of the negligence of the plaintiff’s servant.

On the trial the plaintiff put in evidence the records of an order made by two of the commissioners of highways of the town, dated September 9, 1826, purporting to lay out this highway as of the width of four rods.

This order was objected to by the defendant on the ground that it purported to have been made by two instead of three commissioners of highways of that town, and contained no recital or other evidence that notice of the meeting of the commissioners for the purpose of laying out this road was given, to the third commissioner.

This objection was overruled and the order was read in evidence. The plaintiff also put in evidence a warrant issued by the commissioners of highways of the town in which this highway was situate for the performance of work on the same.

The proof showed, or tended to show, that the plaintiff’s horse was injured by coming in contact with this fence while being led along this highway in a dark night.

The evidence as to whether this fence was within the bounds of this highway, as the former was fenced for many years, was conflicting, there being some evidence tending to jirove that it was, and some that it was on the line of the original fence. There was no conflict in the testimony as to the injury of the horse.

At the conclusion of the plaintiff’s evidence the defendantmoved for a nonsuit, an d that the plaintiff’s complaint be dismissed on the grounds:

First. That it appears from the evidence that the accident was caused by the negligent and careless manner in which plaintiff’s horse was held, and not caused by the fence at all.

Second. That the plaintiff has failed to prove the fact that this fence was in the highway, or, if it was in the highway, caused the injury, or that it would not have occurred if it had been several feet further back.

Third. That the plaintiff has failed to prove facts sufficient to constitute a cause of action.

Plaintiff asked to have the case submitted to the jury for determination.

The court granted the motion, intimating that the action ought to have been one for negligence, and that • the plaintiff was guilty of contributory negligence, and for that reason the case ought not to go to the jury, and dismissed the plaintiff’s complaint to which the plaintiff duly excepted.

In determining whether this nonsuit was properly granted, we are to give full weight to all thé evidence offered and received on the part of the plaintiff, and assume that, if the jury had found in accordance with it, the verdict, as matter of law, could not be upheld. (Weaver v. White, 46 N. Y. St. Pep., 461.) And that the facts which the plaintiff’s evidence established or tended to establish were found in his favor.

The road in question, therefore, being conceded to be a public highway, there was some evidence on the part of the plaintiff that the wire fence was two feet farther in the highway than the old fence which had inclosed the highway for more than twenty years before the erection of the wire fence, and this evidence on the question of nonsuit must be construed in the most favorable light for the plaintiff.

If, therefore, we should adopt the contention of the defendant that the order of the commissioners laying out this road was void, for the reason that it does not apirear that the third commissioner was notified of the meeting of the commissioners to make the same, still we would have a public highway by user and adoption by the commissioners, and worked by them as such, to the extent of the user indicated by the location of the old fence, as the same was proved by the plaintiff to have existed for twenty years, and as to which the wire fence was an encroachment, and the question whether that encroachment was a nuisance from which the plaintiff’s horse was injured was, we think, one for the jury, and the refusal of the learned judge to send the case to the jury was error.

One of the important questions for consideration in 'this action, was whether this highway had been narrowed or contracted by the erection of this fence, and that was for the jury, upon the evidence, to determine as a question of fact.

If, as a matter of fact, the road had been contracted or narrowed, the law would adjudge the same to be a nuisance. In President, etc., of Whitehall Turnpike v. People (9 Barb., 175), the court say: “ To constitute a nuisance it is' not essential that the road should be unsafe or impassable; any contracting or narrowing of a highway is a nuisance. (1 Russ, on Crimes, 350.) Any obstruction left in the road, or omission to repair it, whereby it is less convenient for public use, falls within the same category.”

It is true that while an encroachment upon a highway is a> nuisance, it is not, in all cases, such a public nuisance as will justify its removal by any individual, as the statute has provided a method by which such encroachments may be determined summarily and removed by the highway commissioners, but if the encroachment be, in fact, a nuisance by which a party is injured, he may maintain an action for such injury. (Harrower v. Ritson, 37 Barb., 301.) In Osborn v. Union Ferry Company (53 Barb., 629), it was held that the public, being entitled to the use of the highway, whoever, without special authority, obsrtucts it or renders its use hazardous by doing anything upon, above or below the surface, is guilty of a. nuisance, and one sustaining special damage from it, without any want of due care to avoid injury, has a remedy against the person continuing the nuisance. (See, also, Callanan v. Gilman, 107 N. Y., 360; Driggs v. Phillips, 103 id., 77, 83.)

Having reached a conclusion that this case should have been submitted to the jury, it is unnecessary to examine the numerous other questions raised on this appeal.

There must be a new trial of the action, costs to abide the event.

Putnam and Hekriok, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Putnam, J.: Mayhmm, P. J.

text:
    WILLIAM THOMPSON, Respondent, v. CORNELIUS P. VROMAN, Appellant.

      Conversion — deposit in bank in one’s own name of another’s funds — wrongful withdrawal and appropriation thereof — fiduciary capacity —finding of referee — bank account in evidence under stipulation.

    Where a complaint states facts showing that a deposit in a bank by the defendant in his own name, of funds delivered to him by the plaintiff, was a wrongful appropriation thereof, and alleges a conversion by the wrongful withdrawing and use of the money, the action is one for wrongful conversion, although the complaint does not characterize the deposit as a conversion. (Mayham, P. J., dissenting.)
    The General Term will not reverse a judgment, entered upon the decision of a question of fact by a referee, unless the evidence in favor of the appellant greatly preponderates. ' *
    The refusal of a referee to find that a complaint, which plainly alleges a conversion, contains a cause of action in tort, is not a ground for reversal, especially where the referee does find that the defendant was guilty of a conversion of the money in suit. (Mayham, P. J., dissenting.)
    A statement in a camplaint of facts showing that the defendant received the money in suit to deposit it in a bank for the plaintiff, in effect alleges that the fiduciary relation of principal and agent existed, although the word ‘ ‘ fiduciary ” is not used.
    A finding that the defendant received the money in suit as the agent of the plaintiff to deposit it in a bank is, in effect, a finding that the defendant was acting in a fiduciary capacity.
    Where an agent receives money from a principal to deposit in a bank in the principal’s name, it is proper for a referee to refuse to find that such agent was in no way acting in a fiduciary capacity.
    In an action to recover the amount of certain money of the plaintiff, alleged to have been deposited in a bank by the defendant in his own name, and to have been wrongfully withdrawn and converted by the defendant to his own use, a statement of the defendant’s bank account, taken from the books of the bank, was admitted in evidence for the plaintiff under a stipulation that the statement was correct and a true copy of the books kept by the bank, and showed the deposits to the credit of the defendant and the amounts drawn out, and that “ said statement may be read in evidence on the trial in this action as original evidence, and as equal evidence with the books.”

      Held, that the statement was properly admitted under the stipulation. (Mayham, P. X, dissenting.)
    Where the evidence is sufficient to sustain findings of a referee that there was a wrongful deposit of the money in suit in a bank by the defendant in his own name, and also a wrongful withdrawing and conversion thereof, no demand by the plaintiff, prior to the commencement of the action, is necessary, and, therefore, an exception by the defendant to a ruling of the referee, admitting in evidence a letter offered in order to show such a demand, is not well taken.

      In an action to recover money alleged to liave been deposited in a bank by tbe defendant for the plaintiff, and to have been wrongfully withdrawn by the defendant, it is competent for the plaintiff to show that the withdrawal was not with his consent; and by way of proving such negative fact the plaintiff should be allowed to state, on his examination, that he did not consent. (MAYnAM, P. J., dissenting.)
    Appeal oy the defendant Cornelius P. Yroman from a judgment of the Supreme Court, entered in the office of the clerk of the county of Schoharie on the 28th day of November, 1891, on the report of a referee, for $1,188.50, with interest and costs.
    On the trial before the referee the plaintiff was permitted, under defendant’s objection and exception, to give in evidence a statement of the defendant’s bank account, together with a stipulation signed by the attorneys for the respective parties in the words -following : “ It is hereby admitted that the above statement of account of Cornelius P. Yroman (the defendant in the action of "William Thompson against Cornelius P. Yroman) with the firm'of Henry R. Pierson & Son, formerly doing business at Albany, N. Y., is correct, and a true copy of the books kept by said bank. That the right hand column of figures and amounts shows the deposits with said bank or banks to the credit of said defendant, and the left hand figures the amounts of money drawn out of said bank or firm of bankers, and that the balance, $182.26, was the amount due from said bank or bankers to defendant, at the time of their failure, on or about the-day of January, 1890, and that this admission is not to be any evidence as to the disputed fact as to which of the two, the plaintiff or defendant, personally made the deposit with said bank or bankers of the item of $1,000, conceded by the complaint and answer to have been deposited.

      “ It is also conceded and admitted that said $1,000 was part of the plaintiff’s pension money stated in said pleadings, and that said statement may be read in evidence on the trial in this action as original evidence, and as equal-evidence with the books.”
    The plaintiff was also permitted, under objection and exception, to give in evidence the following letter from plaintiff’s attorneys to the defendant, which is referred to in the opinion of the court as Exhibit “ D: ”

      “ Schoharie, April 3d, 1890.
    “Mr. Cornelius Vboman:
    “Dr. Sir.— "VVe have been retained by William Thompson (colored) to commence action against you for the recovery of the pension moneys you have used belonging to him. We have a full statement, showing that you took up his money from H. R. Pierson & Son before their failure, and that your statement to Thompson (if he informs us correctly) ‘that his money was lost,’ is a mistake. We would like to avoid a law-suit, if it can be done. The claim is now in our hands for adjustment and collection. Please give this your - immediate attention and oblige.
    “ Y ours truly,
    “HINMAN & DUGAN.”
    The pleadings and other facts are set forth in the opinions.

      D. 8. Mayham and O. JB. Mayham, for the appellant.

      Hinman & Dugan, for the respondent.
   Putnam, J.:

This action is brought for the wrongful conversion of $1,000., The complaint alleges that on the 26th day of May, 1887, plaintiff delivered to the defendant the sum of $1,000, with directions to place the same on deposit with H. R. Pierson & Son, bankers in Albany, N. Y., to remain there on interest for the benefit of plaintiff. Defendant receiving and agreeing to so deposit said money, in fact, deposited the same to his own credit. He was not. the owner of and had no interest in said money. That the same belonged to plaintiff. That thereafter and prior to October 5, 1888,, defendant, without the knowledge or consent of plaintiff, unlawfully withdrew said money and unlawfully appropriated and converted the same to his own use.

While the complaint does not characterize the d&posit of this money by defendant in his own name as a conversion, yet it states all the facts, showing that such deposit by defendant was a wrongful appropriation of the fund. And the complaint also alleges a conversion by the Wrongful withdrawing and use of the said money.

Defendant, in his answer, alleges that the deposit of the said money in Ms own -name was done with the knowledge and consent of the plaintiff, and denies any wrongful appropriation of the same.

The case presents a question of fact, which the referee has determined in favor of the plaintiff. I have examined the testimony given upon the trial and the briefs submitted by counsel with care. The evidence was conflicting, and the referee might have reached a different conclusion from that arrived at. There was testimony in the case from which he could have determined that the money in suit was deposited in the defen dant’s name with the consent of plaintiff. But I think there was sufficient evidence given to sustain the referee’s finding on the question presented for his decision. The rule is familiar that on questions of fact the appellate court will not reverse unless the evidence in favor of the appellant greatly preponderates. Authorities sustaining this rule are cited by respondent and need not be 'discussed here. I think that this case does not present such a preponderance of evidence of the defendant as will justify a reversal of the judgment. On the contrary, if it were my duty to pass upon the testimony as an original question, I should hesitate before coming to a different conclusion from that reached by the learned referee.

Counsel for appellant suggests that the referee erred in declining, at defendant’s request, to find that, “ The complaint alleges a cause of action in tort, not contract,” and also in refusing to find that, In order to maintain this action in its present form, it must affirmatively appear that the defendant has been guilty of conversion.” These errors, if they should be deemed such, are harmless. The complaint clearly alleges a cause of action in tort, and I see no reason why the referee should characterize it. The defendant has suffered no injury by his declining to find that a complaint plainly alleging a conversion contains a cause of action in tort. Again, in his findings, the referee distinctly determines that the defendant was guilty of a conversion of the money in suit, and a refusal to repeat the finding can produce no injury.

The referee did not err in declining to find that defendant was in no way acting in a fiduciary caj>acity.” He did find, properly, on the evidence in the case, that the defendant received $1,000, as the agent of plaintiff, to deposit, hence defendant was acting in a fiduciary capacity. But it is suggested that there was no allegation in the complaint that a fiduciary relation existed. It is true that the complaint does not use the word “ fiduciary.” But facts are stated showing that defendant received the money to deposit, and hence that the relation of principal and agent existed. Wlieie an agent takes money from a principal to deposit in a bank in the principal’s name, it cannot be said that the agent was “ not, in any way, acting in a fiduciary capacity.” (See Flagg v. Fly, 1 Edm., 206.) Hence the above request of the defendant to find was properly refused by the referee.

I think the error of the court below, if any, in overruling the objection to this question, asked of plaintiff, viz., “Did you piake nn ajiplication for a pension on account of yóur son being killed in the war ? ” harmless. The error could not possibly produce any injury to the defendant.

The statement from the books of the bank was properly received in evidence under the stipulation. That stipulation provided that the statement might be read as original evidence; that it was correct as to the amount of deposits to the credit of defendant, and the amount drawn out by him.

As we have seen, the evidence in the case is sufficient to sustain the findings of the referee, that there was a wrongful deposit of the money in suit by defendant in his own name, and also a wrongful withdrawing and conversion of said fund. Hence, no demand, prior' to the commencement of the action, was necessary to be made by the plaintiff, and, therefore, the exception to the ruling of the referee admitting Exhibit “ D ” was not well taken.

It is insisted that the referee erred in overruling objections to the following question asked of plaintiff, viz.: “ Did you consent that Mr. Yroman, defendant, should draw this $1,000 from the H. B. Pierson & Son bank? Objected to. * * * No, sir; and I did not consent that he might use it; I did not know that he had done so ; I knew nothing about it until the bank had failed.” I think the question was properly allowed to be answered as calling for a fact. .That the case was one where the plaintiff could properly show a negative. It was competent for the plaintiff to establish the fact that the withdrawal of the funds by the defendant was not one with his consent. This fact could only be shown in the way allowed by the referee. (See Crane v. Baudouine, 55 N. Y., 263 Huggans v. Fryer, 1 Lans., 277; People v. Tubbs, 37 N. Y., 589; Crouse v. Garlock, 45 How., 85.)

There are other exceptions taken not necessary to be considered.

The judgment should be affirmed, with costs.

Herrick, J., concurred.

Mayhmm, P. J.

(dissenting):

The complaint in this action alleges that the plaintiff delivered to the defendant $1,000, with direction to him to deposit the same with the firm of TI. R. Pierson & Son, to remain there on interest for the benefit of the plaintiff, and that the defendant did deposit the same with said firm.

That defendant had no interest in the money, but the same belonged to the plaintiff. The complaint charges that the defendant afterwards wrongfully withdrew this money from said firm, and wrongfully converted the' same to his own use, and demands judgment for $1,000 and interest.

The answer denies, in substance, that the defendant agreed tO’ deposit this money for plaintiff, and alleges that the plaintiff directed that defendant should deposit the same to his own credit as his own, and that the plaintiff was to look to him for the same.

The answer also alleges that, from time to time, the plaintiff called upon the defendant for payments on account of said money and received from the defendant various payments on account of the same. The answer also sets up offsets and counter-claims. The main question litigated in this action was, whether the money was received by the defendant in the nature of a loan to be deposited with the defendant to be accounted for by him to the plaintiff, or was received by him solely for the purpose of being by him deposited with Pierson & Son in the name of and to the credit of the plaintiff and subject only to his check.

If the latter, then his withdrawing it from the bank in his own name was a conversion; if the former, then the title to the money vested in the defendant, and he became the debtor of the plaintiff' in that amount, and was liable only for money had and received, and an action for a conversion of this money would not lie.

To constitute a conversion by one person of the property of another, the title to or right of possession of the money converted must be in the plaintiff, and the possession of the same must be wrongfully taken or detained by the defendant.

Ordinarily, where a party seeks to recover for the conversion of a chattel, he must show his right to the identical chattel which he claims has been converted.

If the money was loaned, so that the claim of the plaintiff against-the defendant was for the value of the money and not the identical money itself, then the title to the same vested in the defendant and trover would not lie. In McNaughton v. Cameron (44 Barb., 409) the court say: u It all depends upon the question whether the title to the money passed to the defendant.” If, therefore, this money or this check was delivered by the plaintiff to the defendant to be deposited' in his name to his credit, the title to the same passed to him and he became the debtor of the plaintiff, and, on its deposit in the bank by the defendant to his credit, the title vested in the firm of bankers, and they became the debtors of the defendant.

As this money was not held by the Piersons as a special deposit, they did not take it as bailees, but as owners; and the relation of debtor and creditor was established between them and the defendant, and the same was true as between the plaintiff and defendant (Com. Bank of Albany v. Hughes, 17 Wend., 94), unless the defendant fraudulently converted the pension check by procuring the same to be deposited to his credit without the knowledge or consent of the plaintiff.

If this money was properly in the Pierson bank to the credit of the defendant, then, as we have seen, it became the general property of the Piersons, who became the general debtors of the defendant, who alone could draw it from them on his own checks, and he, in like manner, became the debtor of the plaintiff and liable to him only in an action for money had and received, and could not be charged in trover for an unlawful conversion of the same.

But it is not charged in the complaint that the defendant wrongfully converted this money by wrongfully depositing it to his credit with Pierson & Son, but that he wrongfully withdrew $1,000 of this money and converted it to his own use.

The first question presented by the case is, was there any unlawful taking of the check deposited in the bank of Pierson & Son ? Second. "Was there a conversion of said property by withdrawing this money from the bank by defendant ?

The whole tenure of the evidence seems to be that the plaintiff delivered the pension check to the defendant to be deposited by him in his name in the Pierson bank, as he "had already accounts with that bank, and, as the plaintiff could not draw checks for the same in his own name, the money was to be deposited in the name of the defendant, and the qfiaintiff was to look to him for money when he wanted the same. This appears directly from the testimony of the defendant, and his theory is strongly corroborated by the testimony of William J. Yroman, Mead J. Yroman, John P. Shafer and Albert C. Judson, as well as the reasonable inference to be drawn from the fact that whenever plaintiff wanted money he called on the defendant for the same instead of the bank, and never applied to the bank for any money.

The case shows that he asked for and received from time to time different amounts of money from one hundred dollars to fifty cents, consisting of nearly fifty items at different times from the time of the deposit of this money in the bank down to near the time of the commencement of this action.

Prom these facts it seems to me to be conclusively established that the title to this money, deposited to the credit of the defendant, jjassed to him and from him to the bank, and that the defendant’s subsequent withdrawal of the same, or any part of it, was not a conversion, but was a lawful exercise of dominion over a debt due him from the bank, and that the payment made by him to the plaintiff was in no sense a return of money which he had wrongfully converted, but was payment upon a debt which he owed the plaintiff. Conversion is a tortious act by which the defendant deprives the plaintiff of his goods. (Spencer v. Blackman, 9 Wend. R., 163.) And the plaintiff in this action assumed the burden of proving the wrongful taking or detention of this $1,000, and the court cannot relieve him of that burden by presuming, in the absence of proof or against the weight of the evidence, that the defendant has been guilty of a wrong. Presumption is always in favor of honesty and fair dealing, and remains available to the party in whose favor it arises, until overcome by countervailing evidence. (1 Rice on Ev., 96; Louisville, N. A. and C. Ry. Co. v. Thompson, 5 West., Rep., 833; 107 Ind., 442.)

As we have seen, the complaint does not allege the conversion of the pension check, but charges the wrongful withdrawal and conversion of $1,000 from Pierson & Son, bankers, and for that amount plaintiff is allowed to recover. The evidence shows that at the time of the commencement of this action the defendant had standing to his credit in this bank $1,436.31, out of which at that time he had drawn the sum of $1,253.05, leaving a balance in the bank of $182.26. If the conversion of this money consists in its withdrawal from the bank, as charged in the complaint, then the sum remaining in the bank was the money of the plaintiff, and the defendant could only be charged with the conversion of the $1,000, less the sum of $182.26, so that the recovery upon the plaintiff’s theory should have been only for the sum of $817.74, and interest from the time of drawing the same by the defendant.

The plaintiff cannot properly charge that the defendant drew out plaintiff’s money and left his own in the bank, especially in the absence of proof upon that subject. Nor can he, for the purpose of assuming that position, recover for the conversion of this check, when he claims in his complaint to recover only for money improperly drawn out of the bank, and not for the conversion of the check or of the money by depositing it in the bank in his own name.'

If this action had been prosecuted for the conversion of this money by the defendant by depositing it in the bank in his own name, and no charge had been made for the withdrawal of it by the defendant, the plaintiff would most signally have failed upon the proof, and hence the plaintiff makes no charge of the conversion of the money by the defendant by depositing the same in his own name, and as the wrong charged consists in the withdrawal of the money, the defendant could, in any event, only be charged with so much as the proof clearly established was withdrawn by him, and as he was permitted to recover for $182.26 in excess of the amount actually withdrawn by him, the judgment is erroneous, even if it can be held that the withdrawal of any of this money from the bank was a conversion of the amount so withdrawn.

The referee in this case holds that the defendant, in effect, received this money in a fiduciary capacity, and that his depositing the same in his own name was a conversion of the same. No such allegation is contained in the complaint, and, as we have seen, that the conversion charged was for withdrawing the same from the bank, the recovery is based upon a state of facts and legal conclusions not set out in the complaint, and no motion has been made to conform the complaint to the facts proved or found by the referee.

This cannot be done under the Code anymore than it could under the system of pleadings existing before the Code. In Southwick v. First National Bank of Memphis (84 N. Y., 429), Earl, J., in discussing the question, uses this language: “ Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.”

In Romeyn v. Sickles (108 N. Y., 650), the court say: “ It is a fundamental rule that judgment shall be secundmn allegata et prolata, and, as was said in Day v. Town of New Lots (107 N. Y., 148), any departure from that rule is certain to produce surprise, confusion and injustice.”

This fundamental and elementary rule was clearly departed from by the referee in this case. The defendant was not charged in the complaint, either in direct terms or by implication, with receiving this money in a fiduciary capacity, and yet the referee expressly refuses to find, on the request of the defendant, and thus, in effect, held that the defendant received and held this money in that capacity.

In Hillis v. Bleckert (53 Hun, 500), which was an action for the conversion of money, Bradley, J., says : “ There is no allegation in the complaint that the money mentioned Avas received by the defendant in a fiduciary capacity, and it is, therefore, deficient in an essential element. A statement of facts and circumstances which might justify the legal conclusion of money received in a fiduciary capacity does not comply with the statute, inasmuch as it requires such an allegation to be made in the complaint, and declares that the plaintiff cannot recover unless he proves the same on the trial.”

It is true that this Avas said when an order of arrest was applied for, but it, at the same time, illustrates the rule of pleading in actions of tort for the conversion of money which comes to the possession of the defendant with the consent of the plaintiff.

I am also of the opinion that the referee in this case erred in the admissions of copies of the bank-books in evidence. The stipulation, at most, only made the copy evidence, if the books themselves were competent under the proof. This made it incumbent on the plaintiff first to prove, in the regular way, the authenticity and correctness of 'the books before the transcript could be received in evidence. That was not done in this case. It can hardly be claimed that the bare production and proof of identity of the books of the bank would authorize them to be read in evidence against the defendant. In 2 Rice on Evidence (p. 894), the learned author says: “ The books of a bank, like those of a merchant or shopkeeper, must be proved by suppletory proof oath of some officer or agent of the bank. * * * Before the records and books of a corporation can be received in evidence, it must be admitted or proved that the entries were made by an authorized agent of the corporation.”

No such proof was given or offered in this case, and the proper foundation for the introduction of the books not having been laid, the transcript was not, by stipulation, made evidence.

I am also of the opinion that the question put by the plaintiff’s counsel to the plaintiff, “ Did you consent that Mr. Yroman should draw this one thousand dollars from II. R. Pierson & Son’s bank ? ” was not proper, and that the admission of the answer, under defendant’s objection, was error.

Whether or not he consented, and what amounted to a consent was the principal question to be litigated in this case. That question was to be determined by the referee from the facts, circumstances and conversations relating to the entire transaction, and while it was competent for the plaintiff, as a witness, to tell what was said, it was not, I think, competent for him to give a sweeping conclusion determining the whole theory of the defendant’s defense. He should have been confined to giving the conversations, and the referee should make his deductions from the same. In Teerpenning v. The Corn Exchange Insurance Company (48 N. Y., 281), Allen, J., says : “As a rule, witnesses must state facts, and not draw conclusions or give opinions. It is the duty of the jury or court to draw conclusions from the evidence and form opinions from the facts proved.”

I am, therefore, of the opinion that the judgment should be reversed and the referee discharged and a new trial granted, costs to abide event.

Judgment affirmed, with costs.


text:
    MARY E. POST, Impleaded, etc., Appellant, v. DAVID CHARLESWORTH and Others, Respondents.

      Unauthorized appearance by an attorney — relief by motion — the attorney compelled to pay the judgment.

    Where the court can protect all parties who have any rights involved, it may, on summary application by motion, grant relief to a party, as against an attorney, for an unauthorized appearance, by compelling the attorney to pay a judgment recovered against the party on such unauthorized appearance.
    On such an application the court will not disregard affidavits on behalf of the party, and take the unverified statement of the attorney in preference thereto, simply because he is an officer of the court.
    Where a married woman was named as a plaintiff with her husband in an action for the partition of land, in which she had only an inchoate right of dower, and a. judgment for costs was entered against the plaintiffs on a dismissal of the complaint, and the wife thereafter made a motion in the action to have the judgment vacated as against her, on the ground that the appearance for her by the attorney of record for the plaintiffs was unauthorized by her, or else that the attorney be-directed to pay such judgment, and the attorney was notified of the motion, but took no steps to oppose it, except by writing the court an unverified letter stating-that he had appeared for the wife at her husband’s request, and supposed it was. all right, and that he did not object to the judgment being vacated, but did object 'to being compelled to pay it, which statement was opposed by an affidavit of the husband that he never authorized or directed the attorney to appear for the wife:

      Held, that a proper case was presented for relief on motion, and that if the judgment could not be collected by the defendant from the husband, for whom the-appearance of the attorney was authorized, the court should direct it, together with the costs and disbursements of the application, to be paid by the attorney who had appeared for the wife without authority.
    Appeal by the plaintiff Mary E. Post from an order made at the Montgomery Special Term, and entered in the office of the clerk of •the county of Fulton on the 26th day of February, 1892, denying a motion of the said plaintiff to have a judgment for costs recovered against the plaintiffs in favor of the defendant David Oharlesworth vacated as to her, and for general relief.

      George F. Phillips -and Westbrook & Porst, for the appellant..

      Frank B. Towman, for the respondents.
   Herrick, J.:

An action for the partition of real estate was commenced in the' name of John H. Post and Mary E. Post, his wife, as plain tiffs,, Mary E. Post having only an inchoate right of dower in the premises sought to be partitioned. The action was commenced and prosecuted by attorneys of this court in the name of both plaintiffs. On the trial the plaintiffs failed to maintain their action, and the defendant David Oharlesworth had judgment dismissing plaintiffs” complaint, with costs and disbursements, and judgment for such costs and disbursements was entered up against both plaintiffs.

Thereafter MaryE. Post applied in the same action to a’Special Term of this court, alleging that she never had any knowledge that she was a party to said action until an execution was issued upon the judgment; that she never authorized anybody to make her a party to said action; that she never employed or requested the attorneys of record to appear for her in said action, or do anything for her in respect thereto; that she was made a party “ -without her consent, authority, knowledge or request,” and she asked that the appearance of the said attorneys of record for her in the action be vacated and set aside; that the name of Mary E. Post, as a party plaintiff in the action, be struck out; that the decision and judgment against her be vacated and set aside, and be canceled of record; and that she may have such further order or relief as the-court may grant.

Upon the motion coming on to be heard the attorney for the-defendant Oharlesworth objected to the hearing of the motion upon the ground, among others, that the attorneys who had appeared for Mary E. Post in the action were not parties to the motion and did not appear thereon; the Special Term thereupon made an orderthat, upon the moving affidavits and notice of motion, together with the affidavit, that such objection had been made, the said attorneys sliow cause, at a Special Term designated in the order, why they should not be made parties to the motion and application stated in the notice of motion, and be heard and be bound by the disposition thereof by the court, and why, if the judgment and exection should not be set aside as to Mary E. Post, the said attorneys should not be •ordered, directed and required to pay the same. The affidavits, notice of motion and order to show cause were served upon the ■attorneys, who appeared for her in the action; these attorneys do not appear to have been represented before the Special Term, neither did they appear before this court upon the appeal, although the record shows that notice of the appeal was directed to them. A letter, however, was sent by one of the firm to the justice holding the Special Term, in which it was stated that' they appeared for Mary E. Post “ at her husband’s request, and supposed it was all right;” the writer further stated: “Now, I do not object to the judgments being vacated, but I do strenuously object to being compelled to pay it.”

One of the moving affidavits served upon such attorneys was an affidavit of the husband of Mary E. Post, in which he expressly swears that he never authorized or directed said attorneys to use the name of Iris wife as a party plaintiff, and did not know or understand that she was a party plaintiff until after the trial of the action. The Special Term denied the motion, for what reason does not appear:

The appellant adopted the proper practice to obtain the relief sought.

“ It has become the settled practice in this State that relief against a judgment rendered against a party upon the unauthorized appearance of an attorney in his name is to be sought in a direct application to the court by motion in the action in which the unauthorized appearance was entered.” (Vilas et al. v. P. and M. R. R. Co. et al., 123 N. Y., 450.)

The judgment is regular. Eor reasons of public policy the court holds the appearance good. (Sperry v. Reynolds, 65 N. Y., 183; Ferguson v. Crawford. 70 id., 256; Vilas v. P. and M. R. R. Co., 123 id., 441.)

The court, in the exercise of its powers over its own judgments, where judgment has been obtained against a defendant who has been represented upon tbe record by an unauthorized appearance of an attorney of the court, has opened the case and allowed such defendant to come in and defend, allowing the judgment to stand as security to the plaintiff. (Denton v. Poyes, 6 Johns., 297.)

There is no reason, however, why the court should exercise its power in that respect in this case, because to do so would be of no benefit to the appellant; she has no action to defend, nothing to litigate, except the question whether she was represented by an attorney, and made a party plaintiff by her consent. Where the attorney appearing for the plaintiff without authority was insolvent, the execution has been set aside and all proceedings against the plaintiff perpetually stayed. (Campbell v. Bristol, 19 Wend., 101.)

But here it appears that the attorneys are pecuniarily responsible. Hence both parties can be protected.

The appellant has her remedy for damages against the attorneys who appeared for her without authority. (Hamilton v. Wright, 37 N. Y., 502-504; Ferguson v. Crawford, 70 id., 253-256; Vilas v. P. and M. R. R. Co., 123 id., 441-450.)

But is that her only remedy ? She asks the court that in the event it concludes not to vacate and set aside such judgment, that it direct the defendant to make good his judgment out of the property of the plaintiff John E. Post, and, if that is insufficient, that the attorneys who appeared for her be directed to pay the same.

The question for us is, then, whether the appellant shall be compelled to pay this judgment and then resort to an action against the attorneys to recover her damages, or whether relief can and shall be granted to her on this motion.

In the case of Vilas v. P. and M. R. R. Co. (supra), the court said :

Hnder our system of procedure, relief on motion is administered upon equitable as well as legal principles. In ordinary cases, where relief is sought against a judgment on the ground that tlie appearance of an attorney was unauthorized, the rights of the parties can be as fully presented and as carefully adjudged on a motion as in an action.”

While that was said in discussing the question as to whether the proper procedure to vacate a judgment was by action or motion, it seems to me that it is equally applicable to the question whether the party in seeking his remedy against an attorney for an unauthorized appearance should be compelled to commence an action, or •whether, in a proper case, it can and should be granted upon a motion such as this. If the court can protect all parties who have any rights in the premises, without driving them to the annoyance, trouble and expense of an action, it should do so.

This court is, to a certain extent, responsible for the actions of the attorneys upon its rolls. As was said in Sperry v. Reynolds (65 N. Y., 179-183): “ They are, in a certain sense, officers of the court, and, to a certain extent, are under the control of the courts, which can exercise a coercive power over them; and the courts can, in the action in which an unauthorized appearance has been put in, give a party such relief against it as he ought to have.” And, again, in the case of the American Insurance Company v. Oakley (9 Paige, 497) it was said that“ Where the adverse party has acquired rights, or been subjected to costs, by proceedings in the name of a party who afterwards denies the authority of the attorney or solicitor who. has thus proceeded, the courts are in the habit of permitting the proceedings to stand, where the attorney or solicitor is a responsible man, and leaving the party injured by such unauthorized proceedings to seek his redress against such solicitor or attorney by a summary application to the court or otherwise.”

It seems to me that the court has power, in a proper case, to make the attorney, who has appeared without anthority, save the party for whom he appeared, harmless. Should it be done in this case ? Prom the record before the court it seems to me that the attorneys, had no authority to appear for the appellant. She swears she gave no authority or consent, and had no knowledge of it, or that she was a party. Her husband, the other plaintiff of record, swears that he did not authorize the attorneys to appear for her or to make her a party plaintiff. Opposed to these affidavits is the unverified letter of one of the attorneys saying the appellant’s husband authorized them to appear for her, and that they supposed it was all right.

The court cannot disregard the sworn affidavits of parties, and take the unverified statement of an attorney in preference thereto, simply because he is an officer of the court. The attorneys were notified of this application. Notice of motion and the moving affidavits were served upon them, together with the order directing them to show cause why they should not be compelled to pay the judgment if the court refused to vacate it. The letter sent to the court shows that they thoroughly comprehended the nature of the application, and that they were in danger of being compelled to pay the judgment. The writer says: “I do not object to the judgment being vacated, but I do strenuously object to being compelled to pay it.” Very natural on his part, but it affords no relief to any one concerned except the attorneys who have caused the trouble. No other objection or defense to the motion is made by them, they appeared neither at Special Term or before this court.

The plaintiff who aid authorize the attorneys to appear for him should, of course, pay the judgment. If the defendant cannot collect . it of him then, I think, it a proper case for the court to direct that the attorneys, who have appeared without authority, should pay the same, together with the costs of this application.

Let an order be entered accordingly, with ten dollars costs and printing and other disbursements to both parties to this appeal.

Mayham, P. J., and Putnam, J., concurred.

Order of Special Term reversed; motion to vacate judgment d.enied; defendant directed to make good his execution out of property of John W. Post, plaintiff; if such property is insufficient then plaintiffs’ attorneys are ordered to pay the same; ten dollars costs of motion and printing and other disbursements for both parties to be paid by plaintiffs’ attorneys.