text:
    MICHAEL L. DOYLE, et al., Plaintiff and Appellant, v. GEORGE H. SHARP, Defendant and Respondent.
    U. S. BANKRUPT LAW.
    MArshal.

      Powers and duties m seizure of property of bankrupt.

    The question in the case at bar related almost entirely to the title of the plaintiff to the property in question, as a bona fide purchaser and holder in the usual course of business. The plaintiffs bought and paid for the goods in good faith, and for a valuable consideration, without knowledge of the bankrupt, or the circumstances of his bankruptcy, or the manner in which the goods had been disposed of by him.
    While a United States marshal acts within the command of his writ, he will be protected; but when in the execution of the same, he takes property belonging not to the bankrupt, but to others, he is as much a wrong-doer as if acting in a private capacity, and the act is not different from any other • trespass (Mollison «. Eaton, 16 Min. R. 426). It is now well settled that the 40th section of Bankrupt Law, confers no authority upon the court, upon the filing of a petition in a case of involuntary bankruptcy, to order the seizure of property from the possession of a person to whom the bankrupt had transferred it, or disposed of it, prior to the filing of the creditor’s petition.
    The proceedings in bankruptcy are for the purpose of adjudging debtors as bankrupts, and distributing their property among their creditors.
    Conflicting claims of the title to property of the bankrupt may arise, and actions at law and in equity may be instituted, in which those claims can be determined, and persons claiming the property as against the creditors be made parties, and their claims to the same be adjudicated upon. Such actions are very different from the ordinary proceedings in bankruptcy, and may be instituted in the federal or state courts (In the matter of Alexander Hursthill, 4 Benedict’s Report, 451).

      Before Sedgwick and Speir, JJ.

      Decided, June 5, 1876.
    This was an appeal from a judgment entered upon an order made at the trial directing a verdict in favor of the defendant.
    The action was brought for the wrongful conversion by the defendant, of eight cases of merchandise, the property of the plaintiffs, of the value of seven thousand dollars. The plaintiffs claim to have purchased the goods of John Sanders, on the 10th of June, 1872.
    The answer justified the seizure of the goods under a provisional warrant in bankruptcy, against Lagrave and Otis, to whom it was alleged the property belonged.
    When the plaintiffs purchased the goods, they gave their note for five thousand dollars, at four months, which was paid at maturity. The seller gave them the invoice of the goods, and a receipt for the note, and a few days thereafter they received a warehouse receipt of the goods. The plaintiffs did not know Lagrave and Otis, the bankrupts, until the 19th of June, 1872. Hor did they know that the bankrupts had any connection with the goods.
    It appears that proceedings in bankruptcy were commenced against the plaintiffs, on the 30th day of May, 1872, and a short time before the injunction was issued, Lagrave and Otis directed his shipping clerk to ship the goods to Philadelphia, for sale, and to have them marked in his clerks’ name, and pay a balance due himself out of the proceeds. This was done, and fearing the goods might be attached by Lagrave’s creditors, he re-shipped them to Hew York. The goods arrived in Hew York on the 29th of May, when it was ascertained that Lagrave had fled. The next day the father of the clerk, who was a clerk for La-grave, and to whom Lagrave owed one thousand two hundred dollars, sold the goods to John Landers, a clerk of H. B. Clafflin & Co., on condition that Landers would pay him one thousand two hundred dollars. Landers wanted the goods of Lagrave, to hand over to Clafflin & Co., to protect himself from a guarantee liability he was under to Clafflin & Co., for having made a sale of other goods of theirs to Lagrave & Co. The provisional warrant was issued in the Lagrave bankruptcy proceedings, on the 1st of June, and on the 8th of June, the adjudication in bankruptcy was had.

      Arnoux, Ritch and Woodford, for appellants.

      Wards, Jones and Whitehead, for respondents.
   By the Court.—Speir, J.

The contention on the trial related almost entirely to the question of the plaintiff’s title to the property as bona fide holders in the usual course of business. As the case, in my view, must depend upon the want of power in the marshal to take these goods under his warrant, it will not be necessary to consider any other question. The only justification pleaded, is the provisional warrant in bankruptcy. The warrant of seizure authorized the marshal to take possession of the property of the bankrupts, Lagrave and Otis, but not of any other person. While the marshal was acting within the command of the writ, he is protected ; but when in the execution of the writ he takes property belonging not to the bankrupt, but to another person, he is as much of a wrongdoer as if acting in a private capacity, and the act is not different from any other trespass (Mollison v. Eaton, 16 Min. R. 426).

It now seems to be well settled that the 40th section of the bankrupt law confers no authority upon the court, on the filing a petition in the case of involuntary bankruptcy, to order the seizure of any property or effects, except such as belong to, and are in the possession of the debtor. No authority is conferred for ordering the seizure of property from the possession of a person to whom the debtor transferred it, prior to the filing of the creditor’s petition. The proceeding in bankruptcy is for the purpose of adjudging debtors as bankrupts, and distributing their assets among creditors. Circumstances may arise which render it necessary that other proceedings be instituted in which other persons shall become parties. Conflicting claims of title to property claimed to belong to the debtors arise, and actions at law, as in equity, must be instituted, in which persons claiming interests adverse to the debtor must become parties in order to determine their rights by due course of law. These actions, when instituted, are very different from the proceedings in bankruptcy, and may be instituted in the federal or state courts. In matter of' Alexander Hursthill (4 Benedict's R. 451), Mr. Justice Blatchfobd says : “Such proceedings must be taken by a pleading, making proper averments, and calling for an answer on which an issue raised can be tried, leading to a determination which the aggrieved party can have reviewed.”

The judgment must be reversed, with costs to the plaintiff to abide the event.

Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court. —Curtis, J.

license: Public Domain

text:
    ROBERT COCHRAN, Plaintiff and Appellant, v. CHRISTIAN GOTTWALD and DANIEL R. MURPHY, Defendants and Respondents.
    I. CLAIM AND DELIVERY.

    1. Alternative judgment. Verdict for defendant.

      (a) If the property has been delivered to the plaintiff, and the defendant by bis answer claims a re-delivery, a judgment on a verdict in his favor must be in the alternative for a return of the property, or the value thereof in case it cannot he returned.
    1. Possession parted with by plaintiff, does not justify an absolute judgment for the value of the property.

      (a) This, although there was testimony on the trial tending to show that he had sold it.
    II. COSTS OF FORMER TRIAL.

    1. Including in judgment entered on the verdict in a subsequent trial.

      (d) Gannot be so included as of course or matter of right flowing from the verdict on the subsequent trial.

    1. Such costs must be governed by" the direction of the court theretofore made in regard to them.

      (a) Judgment roll, what to contain.

    1. Such direction should appear in the- judgment roll.
    IH. APPEAL; WHAT NOT REMEDIED ON.

    1. Objections above stated, not.
    («) How remedied.

    Although the judgment is open to them, the remedy is not by appeal from it, but by motion to set it aside.

      Before Curtis and Van Vorst, JJ.

      Decided, August 1, 1876.
    (6) Dow obviated. By amendment of the judgment.
    IV. EVIDENCE, INCOMPETENT ADMISSION OF, WEEN NOT CAUSE FOR REVERSAL.

      1. When it is offered to prove several matters, and is admitted as evidence upon one of them only, which was uncontradictedly fully proved by other evidence, its admission is not cause for reversal.

    Appeal by plaintiff from a judgment in favor of the defendants.
    The defendant G-ottwald recovered judgment against Schiefferdecker, an execution issued, and the defendant Murphy, a city marshal, levied upon the property in question while in the possession of the mortgagor.
    The property seized by the marshal consisted of a phaeton, two horses, two sets of single harness, a double harness, and a number of other articles.
    The present action was one of claim and delivery to recover the possession of the articles so levied on. The property had all been delivered under the claim and delivery proceedings to the plaintiff The answer justified the taking by the defendant Murphy, and claimed a return and re-delivery of the property and damages for its detention, or if a re-delivery could not be had then the value thereof and damages for detention.
    On the trial the plaintiff claimed a judgment for all the property levied on, excluding only the double harness; the defendant claimed judgment for the phaeton, harness, and two horses.
    Under the charge of the Judge the jury found a verdict in favor of the defendant for five hundred dollars with interest, and specially found the value of the phaeton to be two hundred and fifty dollars, the horses two hundred dollars, and the harness fifty dollars.
    Upon this verdict a judgment was entered, reciting the verdict and adjudging that defendants recover possession of the phaeton and double harness, together with one hundred and one dollars and nineteen cents costs, and disbursements as adjusted, “and the further sum of two hundred dollars, the value of said horses which were sold, and forty-three dollars damages for the detention thereof, amounting in all to the sum of three hundred and forty-four dollars and nineteen cents. And if delivery of said phaeton and harness cannot be had, then that defendant recover in addition their value, which is assessed at three hundred dollars, making in all six hundred and forty-four dollars and nineteen cents, which, with the sum of one hundred and seventy-seven dollars and seventy-seven cents, the costs and disbursements as taxed on the former trial, makes in all the sum of eight hundred and twenty-one dollars and twenty-six cents, and that defendants have execution therefor.”
    The appeal book showed nothing respecting the costs and disbursements of a former trial other than the above statement in the judgment.
    Other matters will appear in the opinion.

      A. J. Perry, attorney, and Charles Meyer, of counsel, for appellants, on the points decided by the court, urged :
    I. The judgment is error in that, as to the horses, it is not in the alternative : to wit: for the re-delivery of the horses or for the value thereof as found, two hundred dollars, in case a return cannot be had. The fact that it appears in evidence that the horses were sold, does not determine the plaintiff’s right to re-deliver them. He may re-purchase them and then re-deliver them, and the court cannot assume that he will not exercise his option to do so, especially when the jury found the value to be nearly double the price for which they were sold. It was not in issue whether or not the horses could be re-delivered, and the jury did not find upon that point. The only way to determine this question is by the sheriff’s return upon an execution issued under § 289 of the Code, for a re-delivery of the horses, and if he cannot find them, then for the value thereof. The fact that the horses have been sold by the plaintiff, who had no title to them, does not prevent the sheriff from reaching them upon his execution. The verdict is wrong, being for five hundred dollars, instead of for the property, with a finding as to its value. The judgment is error in that it does not conform to the verdict, and in that it is not in the alternative, and should be reversed (§ 277, Code, Dwight v. Enos, 9 N. Y. 474, 476 ; Seaman v. Luce, 23 Barb. 248).
    IT. The judgment is error in that it adjudges that the defendant recover “ the sum of one hundred and seventy-seven dollars and seventy-seven cents, the costs and disbursements as taxed on the former trial.” The record nowhere discloses a former trial, nor that said sum of one hundred and seventy-seven dollars and seventy-seven cents was taxed as costs and disbursements, nor if taxed that said defendant was entitled thereto ; while, prima facie, he is not so entitled. A separate bill of costs is not allowed for each trial, but at most only certain disbursements and a trial fee (§ 307, subdivision 4, Code). The former judgment herein, having been reversed, is a nullity as to the costs therein taxed.
    III. It was error to allow in evidence the copies of bills of-John C. Ham. They were not original, nor shown ever to have been in the hands of Dr. Scheifferdecker, or the plaintiff, or Ham. Ho foundation was laid for their introduction.

      Spencer L. Hillier, attorney, and of counsel, for respondent.

       Note by Reporter.—The previous trial was before a referee, and had resulted in a report in favor of the defendant, in accordance with which judgment was entered, including therein for costs and disbursements, one hundred and seventy-seven dollars and seventy-seven cents. On appeal this judgment was reversed and a new trial ordered. A new trial was had, on which defendant had a verdict, from the judgment entered on which this appeal is taken. The bill of costs taxed after the verdict on the new trial did not include among its items the amount of the costs of the former trial.

   By the Court. —Curtis, J.

This case presents different questions from those appearing upon the former appeal (40 N. Y. Superior Ct. 442). The pleadings have been since substantially amended.

The property had been delivered to the plaintiff, and the defendant in his answer claimed a return of it. It is the right of the plaintiff, when in such a case the verdict is for the defendant, to return the property, instead of paying the value of it. Such payment can only be required of him where a return cannot be had (Code, § 261, subd. 1).

The Code, § 277, directs that “if the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had.”

These two sections of the Code indicate the form of the verdict and of the judgment to be entered upon it, in a case like the present, when the property in question has been delivered to the plaintiff, and the defendants by their answer claim a return of it.

It is difficult to reconcile with these specific provisions, the verdict of the jury and the judgment entered in the present case.

The judgment as to the horses is not in the alternative, as it should have been.

It is not sufficient to say, that the plaintiff could not return them as there had been testimony tending to show he had sold them. What disposition he had made with the horses in the mean time, does not affect his legal right to return them, instead of paying for them. This right the law unrestrictedly secures to him, provided he is able to do so, when judgment is entered against him. The plaintiff objects to the provision in the judgment that the defendant recover one hundred and seventy-seven dollars and seventy-seven cents, costs and disbursements taxed on the former trial. The present record justifies no such provision in the judgment entered upon this verdict. The costs of the former trial must be governed by the direction of the court heretofore made in regard to them, and which should appear in the judgment roll for the guidance of the clerk in adjusting the costs and entering the judgment.

The remedy of the plaintiff for these objections to the form of the judgment is not by appeal. They are irregularities which cannot be reached and brought up by exceptions. When the judgment is thus wrongly entered up, the plaintiff should move to set it aside for irregularity. The objections of the plaintiff, thus far considered, may be obviated by amendments of the judgment (Johnson v. Carnley, 10 N. Y. 570; Ingersoll v. Bostwick, 22 N. Y. 425 ; Fitzhugh v. Wyman, 9 N. Y. 559).

Copies of certain bills of one John C. Ham were read in evidence. The defendant claims that the object of this testimony was to show, first, that a part of this property, viz., the double harness, was never included in the mortgage, having been bought long after the mortgage was made and recorded ; second, to show that the phaeton which is claimed by the plaintiff in this action under and by virtue of title from this chattel mortgage, was obtained from John C. Ham, long after the chattel mortgage was made and filed, and lastly, to show that plaintiff allowed a part of the property covered by this chattel mortgage to be exchanged, and the difference paid by other parties who took title in their own name.

The plaintiff excepted to its admission, but it was admitted to show the exchange of a part of the property. The exchange of a part of the property, the carriage and harness was already shown by the testimony of the plaintiff and of the witness Evans, and so far as it tends, to show what was nncontradictedly and fully proved at the trial by these witnesses, this evidence objected to and which was improperly admitted, is of no importance as affecting the result. Hone of the exceptions in the case are of such a nature as to require a reversal of the judgment.

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

Van Vorst, J., concurred.


author: By the Court.—Curtis, J.

text:
    THE HEALTH DEPARTMENT OF THE CITY OF NEW YORK, Plaintiff and Respondent, v. THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, WILLIAM F. SMITH, and others, Defendants and Appellants.

    I. SEAL ESTATE.

    1. Forcibly taking possession under claim oe right.
    (a) One who permits another to enter upon Ms premises and. occupy them free of rent, such permission being only for a temporary purpose, cannot regain possession by force.

    1. Police Department.
    (<e) So greater right in this respect than an individual.
    3. Injunction.

      (a) Such forcible taking possession will be restrained.

      Before Curtis and Van Vorst, JJ.

      Decided, August 1, 1876.
    H. INJUNCTION

    1. Notice of application, for.

    Irregularity in not giving when required, how waived. (a) By proceeding with hearing at Special Term without presenting the objection.
    IH. SPECIAL TERM VIEWS APPROVED.

      HEAD NOTE TO SPECIAL TERM DECISION

    I. Number 300 Mulberry Street, and 301 Mott Street ; building thereon known as central office of the Police department.
    1. Ownership op : the City of New York has the title.
    H. POLICE DEPARTMENT AND HEALTH DEPARTMENT.

    1. Occupation by, of rooms in said building.

      a HEALTH DEPARTMENT.
    1. Upon its organization in 1873 it acquired rights in the rooms then, and since continued to be, occupied by it, of which it could not be dispossessed by any one not having a superior title, (a) Police department has not such superior title. '

      b DISPOSSESSION BY FOROB.
    1. Neither department can dispossess the other from the apartments occupied by it by force, and without warrant of law.
    III. INJUNCTION

    1. Principles on which granted.

    Wherever the court has grounds for believing that its interference is necessary to prevent abuse, injustice, oppression, OR THE VIOLATION OP A TRUST.
    Speir, J.
    On April 21st, 1876, the health department was in occupation of certain rooms in the building covering premises No. 300 Mulberry street and 301 Mott street; and the police department was in occupation of the rest of the building.
    On that day a squad of police, under the order of the board of police commissioners, entered by force certain of the rooms so occupied by the health department, and the police commissioners threatened to enter by force into the other rooms occupied by the health department, and by force to expel that department, its officers, and employees from the rooms so already entered and those so to be entered. Thereupon the health department commenced an action against the police department and the police commissioners, and obtained an order requiring them to show cause “why they, each of them, their officers, agents, employees and servants, should not be enjoined and restrained from entering into, taking possession of, holding, using, occupying, or in any manner controlling the use and disposition of the rooms and offices now and heretofore used, held and occupied by the plantiff herein, by the corps of vaccinators, the bureaux, officers, agents and employees of the said plaintiff, the health department of the City of New York, at premises and in the building known as No. 301 Mott street, in said city of New York, and from in anywise obstructing or interfering with the full and free use and occupancy thereof by said plaintiff, the corps of vaccinators, the bureaux and officers aforesaid.” And further ordering “that until the hearing and decision of the said motion, the defendants, each and all of them, their officers, agents and employees, are hereby enjoined and restrained from entering into, taking possession of, holding, using, occupying or interfering in any manner with the use and occupancy of the said rooms and offices by the said plaintiff, its bureaux, officers, agents and employees, and from neglecting and refusing to permit the occupancy of said offices and rooms, or any part thereof, by the plaintiff, and from neglecting and refusing to give up to the use of the plaintiff and its corps of vaccinators the rooms and offices now and heretofore held by them, of which the said defendants, their officers or agents, may have taken forcible possession without an order of the court, and without due process of law, and from ejecting or removing any records, books, papers, furniture, instruments or apparatus belonging to the plaintiff from such rooms and offices ; and until the hearing and decision as aforesaid, the said defendants, each and all of them, are ordered to permit the use and occupancy of such rooms and offices as heretofore enjoyed by the plaintiff, its officers, agents and employees.”
    At the time of granting’ the order, the police and the vaccinating corps of the health department were in joint occupation of the rooms so entered as aforesaid, which occupation by the police seriously interfered with and interrupted the sanitary work of the health department.
    On the hearing of the motion, the officers of the police department claimed the right to the exclusive possession of the building in question ; and also read in opposition the following affidavit: City and County of New York, ss. :
    John R. Voorhis, being duly sworn, says : That he was a police commissioner of the city of New York, from about the seventh (7) day of July, 1874, to the fourth day of May, 1876. That in the month of December, 1874, this deponent was chairman of the committee on repairs and supplies of the Board of Police, and had interviews with Dr. Charles F. Chandler, president of the Board of Health, Dr. Walter Dv F. Day, sanitary superintendent of the Board of Health, and Emmons Clark, Esq., the secretary of the Board of Health, in relation to accommodations for the corps of vaccinators of the health department. That this deponent sent for, and introduced to said Emmons Clark, the owner of premises known as No. 299 Mott street, in the city of New York, which premises this deponent thought adapted to the wants of said corps, and suggested to said Clark that the Board of Health hire accommodations of said owner, which said Clark declined, stating as the sole ground that the Board of Health had no funds for such purpose. That the Board of Health or its officers made application to be accommodated in the building, and premises known as Nos. 300 Mulberry street and 301 Mott street in the city of New York. That such application was not made as any right or claim to be accommodated therein, nor has the said Board of Health or its officers ever asserted or notified deponent of any right or claim of the department of health to be accommodated therein, or of, in, or to said premises. That the rooms upon the first floor of No. 300 Mulberry street, now occupied by the Bureau of Street Cleaning, were then practically unoccupied and not used for any necessary purpose, and the said officers of said Department of Health were willing and ready to accept the same for said corps of vaccinators, but made no claim of any right or title on behalf of the Health Department to occupy the same, but on the contrary, upon the objection of this deponent, ceased to urge the matter. That the Board of Police, for the purpose of accommodation merely, and without any claim or pretense of any right on the part of the health department to such rooms, caused the Bureau of Street Cleaning to be removed from the apartments then occupied by them, and tendered them to the Board of Health for their temporary use until they could provide themselves with funds for procuring accommodations elsewhere, and for no other time or purpose whatever. That this deponent at the time the said corps of vaccinators took possession of said rooms, notified and informed said Chandler, Day, and he thinks also said Clark, that the Board of Health ought to, or had better include in the estimate of expenses and supplies for the year 1875, the necessary funds and provisions for obtaining accommodations elsewhere than in said premises; and this deponent repeatedly, both before and after the time above specified, urged them, to make provision for such hiring and renting, and it was distinctly understood that the occupation of such rooms was merely temporary until such provision could be made, and the said Board of Health did not, nor did any of its officers or agents ever make any claim to any right to such rooms, nor make any objection upon being notified by deponent as aforesaid, and this deponent fully expected and believed that said Board of Health would in good faith obtain the means of obtaining accommondation elsewhere, and that their possession of said rooms would be temporary merely.
    John B. Voobhis.
    Sworn to before me, this ) 6th day of May, 1876, (
    B. T. Burnham,
    Notary Public, No. 230.
    And also read other affidavits to the same effect.
    The allegations in the affidavit of Mr. Voorhis were in substance controverted by affidavits read on behalf of the health department.
    Other facts appear in the Special Term opinion.
    The learned judge before whom the motion was heard at Special Term, rendered the following opinion.
    Speir, J.—The plaintiff, on April 25th last, obtained a temporary injunction to prevent the defendants from forcibly dispossessing the plaintiff from its offices and rooms in the city building, 301 Mott street, where it had been theretofore established. The counsel of the respective parties appeared before the court on an order to modify the injunction on April 28th, and by consent, after partial argument, adjourned the hearing until the 9th of May, when the case was fully argued on the merits.
    The facts alleged in the plaintiff’s papers are to the effect that up to the 19th of April last the two boards had had correspondence and interviews with each other in relation to the occupancy by the plaintiff of certain rooms on the first floor of 301 Mott street, which rooms were then and had been before, used and occupied by the corps of vaccinators and other employees of the health department; that on April 31st, Mr. Dilks, an inspector of the police department, with a detachment of four or more officers of that department, in pursuance of an order passed by it on April 19th and served upon the president of the health department, entered into and violently took possession of the three offices on the first floor, then occupied by the board, of vaccinators, without proper warrant or authority. That the defendants threaten and intend, by the use of physical force, to enter into and assume control and possession of other offices in said building occupied by the plaintiff. At the time of granting the injunction, the fact appeared from the papers that the rooms on the first floor were in the joint possession and occupancy of the plaintiff’s corps of vaccinators, and a small body of police, under the orders of the defendants; that such entry and occupation seriously interferes and interrupts the sanitary work of the plaintiff, and directly tends to obstruct and destroy the efforts of the board of health to promote the public health and to suppress contagious disease; that the president of plaintiff’s board has conferred with the Mayor, Comptroller and other officers of the city, for the purpose of obtaining other and suitable accommodations for its use, but has failed to obtain them ; that additional rooms have been built, under authority of Chap. 806, Laws of 1867, from the surplus funds contributed by the county of New York to the metropolitan police fund, which have been constantly in use by the present Board of Health for its offices and library, and containing large safes in the walls for the preservation of the books and papers —the records of births, marriages, and deaths in the city for the last seventy years ; that the third floor of said building is for the use of sanitary superintendent, the secretary, inspectors, the register of records, and Bureau of Vital Statistics.
    The defendants do not deny any of the.foregoing allegations, but respond by what, for brevity and comprehension, may be called a plea of justification. They claim by a superior title to and control of this building in Mott street. They say it was erected in 1862, under the Laws of 1860, chapter 259, section 21, from police funds for police purposes, and that the health department did not enter the building till 1866, and that the additions made under the Laws of 1867, chapter 806, sec. 5, were from police funds for police purposes.
    These funds were moneys of the city and county of New York, made applicable for the purposes of the department, and passed merely by the designation of police funds. The Legislature, in chapter 137 of the Laws of 1870, in the act to organize the local government of the city of New York, expressly enacted “ that such department (police) should only succeed to and take the property” then in the use or possession of the former police department, and that, “subject to the control and superior title therein of the city and county of New York.” The plaintiff's rooms were not then in the use and possession of the police department.
    It is, I think, too plain for controversy, that whatever rights of property the boards of health and police departments have acquired, were created by chapter 335 of the Laws of 1873, sec. 117, whereby the officers of the preceding departments were required “ to deliver over to such successors all property of every kind, and all books and papers in their use and possession, respectively, belonging to the city or any department thereof.” These rooms, known as the health department, 301 Mott street, have not been in the use and possession of the defendant, as appears before me, except in the year 1873; the rooms of the vaccinating corps were used by the defendants but again taken into possession by the plaintiff in 1874, as they had been by prior boards of health without any agreement to give them up. The title of the building is in the city, and some of the rooms were built especially for the plaintiff. The two departments went into the use and possession of their respective rooms and their offices, upon the organization in 1873, as of course. It is to be presumed, that as the plaintiff, upon its organization, was installed by the government of the city, which was bound to furnish it a place, was then lawfully there, and has lawfully remained there ; and it will also be assumed that the proper and necessary arrangements were then made, and the Board of Health then acquired rights of which it could not be dispossessed by any one not having a superior title.
    The defendants, as we have seen, claim title through the Metropolitan Board of Police, and apparently upon the ground that the whole building, from Mott to Mulberry streets, is called the Central Office of the Police Department. Ho law or authority is shown to sustain this claim but that of the designation of the whole building—not even title by possession, for the whole building has not been occupied by either Board since the law of 1873, which prescribes the powers and duties of both Boards. The provisions made by this law for one department are not in any way subject to the control of another co-ordinate department, nor can one be dispossessed by another by force and without warrant of law.
    The city has the title to the premises in question, erected the buildings, established the two Boards in possession, and has furnished the necessary means for carrying on their several alioted work—not for their own benefit or advantage, but for the great good of the people of the city whose public servants they are. The defendants have assumed the responsibility of forcibly entering into one -of the apartments of the plaintiff while in the discharge of grave and important duties confided to it by law, subject to city authority, largely affecting public interests, and threaten to eject its officers and employees from their peaceable possession of the remaining apartments. The court is appealed to for protection, and is asked for equitable relief. It is too plain that the general and public interest will suffer irreparable injury should the bureau of health be turned out of doors and be obliged to suspend the active work committed to its hands for a single day. The established rule of a court of equity is that the court is bound to interfere whenever it has grounds for believing that its interference is necessary to prevent abuse, injustice, oppression, or the violation of a trust.
    The injunction must be continued against the defendants.
    Upon this decision an order was entered continuing in force the injunction theretofore granted, and ordering : “ that the above named defendants, and each of them, their officers, agents, employees and servants, be, and are hereby, severally enjoined and restrained from entering into, taking possession of, holding, using, occupying, or in any manner controlling the use, occupancy, and disposition of rooms and offices now and heretofore used held and occupied by the plaintiff herein, ‘The Health Department of the city of Hew York,’ its corps of vaccinators, its bureaux, officers, agents and employees, at premises and in building known as number 301 Mott street, in said city of Hew York, and in anywise from obstructing, hindering or interfering with the full, free and exclusive use and occupancy thereof by said plaintiff, the corps of vaccinators and bureaux aforesaid, or from neglecting and refusing to permit the use and occupancy of said rooms and offices or any part thereof by the plaintiff, its corps of vaccinators and bureaux aforesaid.”
    From this order defendants appealed.

      Charles F. MacLean, counsel to the Board of Police, attorney and of counsel for appellants.
    No points in behalf of the appellant came to the hands of the reporters.

      W. P. Prentice, attorney for respondents, and W. C. Whitney, counsel to the corporation, and W. P. Prentice, of counsel, urged:
    I. The granting and continuing of injunctions rest in the discretion of the court, to be governed by the nature and circumstances of the case. When granted upon a thorough examination of the whole case pendente lite, where immediate relief is necessary to prevent irreparable injury, and its continuance involves nothing of importance except delay, until the case can be tried and its issues upon important questions decided, the action of the court below will not be reviewed (Vandewater v. Kelsey, 1 N. Y. 533; Seldon v. Vermilye, 1 Ib. 534; Paul v. Munger, 47 Ib. 469). And this is so, even though the answer deny the equities of,' the complaint, while in our case there is no answer and no such denial (Roberts v. Anderson, 2 John. Ch. 202 ; Carpenter v. Danforth, 19 Abb. 225; Attorney-Gen. v. Cohoes Co., 6 Paige Ch. 133 ; Malcolm v. Miller, 6 How. Pr. 456; Du Bois v. Budlong, 15 Abb. 445 ; Litchfield v. Pelton, 6 Barb. 187). The power to grant the injunction in the first place cannot be denied. The necessity of this temporary injunction to prevent irreparable injury fully appears in the affidavits and in the papers annexed. The learned opinion of the court below on granting the motion exhibits in the clearest light the important questions involved. Most of the facts upon which these issues depend are admitted, and any other determination of the rights of the parties is impossible at this stage of the case, or until it can be tried. Meanwhile the defendants have no injury. The order continuing the injunction appealed from should, therefore, be affirmed.
    II. It is plain that the general and public interests will greatly suffer if the work of the plaintiff be interrupted, and if the defendants be not restrained from their violent and unlawful acts, justified by them under their assumed legal title. lío law or authority is shown by them to sustain this claim. “The city has the title to the premises in question, established the two boards in possession, and has furnished the necessary means for carrying on their allotted work, not for their own benefit or advantage, but for the great good of the people of the city, whose public servants they are. The defendants have assumed the responsibility of forcibly entering into one of the apartments of the plaintiff, while in the discharge of grave and important duties confided to it by law, and threaten to eject its officers and employees from their peaceable possession of the remaining apartments.”
    In accordance with its long established rules, a court of equity was bound, in such a case, to interfere upon this application for relief (2 Story Eq. Jur. §§ 861, 903, 914; Davis v. The Mayor, 1 Duer, 451; People v. Sturtevant, 9 N. Y. 263). A misuse of property may be enjoined (Brown v. Mayor, 3 Barb. 254). So also an excess of power (Lawrence v. The Mayor, 2 Barb. 577 ; Christopher v. The Mayor, 13 Barb. 567 ; Shepherd v. Wood, 13 How. Pr. and cases cited. See also 14 N. Y. 534; 26 Wend. 132 ; 29 Barb. 396 ; 35 N. Y. 375).
    III. There is no force in the objections urged on defendants’ part. 1. That the defendants were at the time in the possession of apart of the premises, viz., the rooms of the vaccinating corps. 2. That the order of injunction is in form mandatory, (a). There is no dispute that at the time the order of April 25 was granted, the plaintiff still held possession of those particular rooms. (6). The plaintiff never permitted Dilks and his men to enter its rooms to take possession of them. The police officers were only there under protest. Their possession was a qualified one. The sanitary superintendent, Mr. Post, the clerk, Dr. Janeway, Dr. Chandler, only say, “ such possession tends to obstruct and prevent the sanitary work of the corps of vaccinators.” Dilks’ affidavit refers only to the evening of April 25 ; and also admits that the corps of vaccinators immediately returned to their work. There is nowhere an allegation that at the time the order of April 25 was granted, the plaintiff was not in possession of its rooms, though obstructed and annoyed by the defendants’ agents therein. These facts appeared upon the argument, (c). The court would not permit its order to be set. aside and Dilks to remain, contrary to its terms and spirit, in the possession of rooms so unlawfully acquired. It is of elementary law that: “ A writ of injunction may be described to be a judicial process whereby a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ. The most common form of injunctions is that which operates as a restraint upon the party in the exercise of his real or supposed rights. It is generally preventive and protective, rather than restorative, although it is by no means confined to the former (2 Story Eq. Jur. 861, 862, 11th ed. See also 40 N. Y. 191 (Corning v. Troy Iron & Nail Works).
    IV. This court will assume that the plaintiff is rightfully in possession of its offices and rooms until the contrary be shown. The plaintiff’s predecessors, to whose duties and powers it succeeds, having lawfully entered into this building, and having been permitted by the lawfully constituted authorities to remain there, in the use and possession of these offices and rooms, the presumption is necessary, by the ordinary rule of law, that this same state of things continues to exist, and the same authority, especially since the plaintiff, immediately upon its organization, was installed in this place by the government of the city, which was bound to furnish it a place. It will be assumed that the proper and necessary arrangements were made when the plaintiff’s predecessors first entered into possession of these rooms. The intention of the Legislature to join the offices as it did the work of the two boards, is evident from a consideration of the law, §§ 11, 12, 14, 17, 30, of chap. 74; Laws 1866, § 2, chap. 686 ; chap. 137, Laws 1870; § 74, § 117, chap. 335, Laws 1873. The police department have only succeeded to the property “ then in the use or possession of the former police department,” and that “ subject to the control and superior title therein of the city and county of New York." The plaintiff had all the powers, rights, and authority of previous boards of health conferred and vested in it by §§ 80, 82, 117, of chap. 335, and § 12, chap. 757, Laws of 1873, and chap. 686, Laws 1874. The board of police had all former duties of preceding police departments enjoined upon it by § 6, chap. 755, Laws 1873. The reasons still exist for this location of the plaintiff, and the defendants have never had, and its predecessors did not after 1866, have the rooms and offices used, and held by the plaintiffs and its predecessors, under legal control.
    Y. The court will also take cognizance of the fact that, by the charter laws, the provision for expenses and for rooms and offices for the departments of the city are made as of January 1, and for the year, and that it is now too late, in 1876, to make the provision and the changes necessary, if the request of the defendants should be complied with, that the plaintiff seek other quarters and offices. The plaintiff is at the moment powerless to make a change ; and by deferring motion beyond the proper time, and by this delay, the defendants have, themselves, fixed the plaintiff in its present location for the year 1876. The defendants should now be held estopped, and should be restrained in equity from enforcing their claim. Were this claim even legal, public interest cannot be exposed to injury through the defendants’ neglect to take the proper measures, and in due time. The intent of the Legislature in the various enactments affecting the control of the city property; the relations of the city departments among themselves, and to the central power, is to be ascertained from all the acts, and in the charter of 1873, from a consideration of the whole law. It will be seen that the system has now been established, by which all the general powers, and the control over the general departments, in matters not immediately and specially committed to them, by law in express terms, is in the city government proper. Such a claim as the plaintiff now makes is repugnant to the spirit of these laws, and has no foundation in the terms of the act of 1873.
    YI. The police commissioners and the health commissioners, under the law of 1873, though occupying the places of similar officers preceding them, are not the same officers; are not entitled to their privileges, nor bound by any of their concessions, but must find the rale of their rights and powers in the law creating them. Thus it was determined by Judge Pratt in the Washington Market cases, that the injunction previously issued against the metropolitan board of health, did not bind this plaintiff. An analogous question was discussed in the police justices’ cases (Wenzler v. People, pp. 516, 522 ; People v. Morgan, 5 Daly, 161), where it was held that those officers were not justices of the peace, though filling the places of such officers on the criminal side of these historical courts. In People v. Draper (15 N. Y. p. 532, especially page 540), the Officers of the metropolitan police district were held not city officers subject to the provisions for the election of city authorities in the constitution (see also People v. Shepard, 36 N. Y. 285). In like manner, in Heister v. Board of Health (37 N. Y. 661), it was held that the metropolitan health commissioners were not city authorities. Under the law in force 1866 to 1870, the health and police boards were composed of State officers for the metropolitan district. The whole theory of administration was thereafter changed. We have come out of the metropolitan into the municipal system, and both plaintiff and the defendants are now parts of the city government. They are different officers from those of 1866 to 1870, by the very law of their being. Therefore, it is not material how these former officers equalized or arranged their expenses in those years. Since that time, by chap. 137, Laws of 1870, § 74, the title of the city to their building lias been determined by the legislature. It is true that prior to 1873, that is, béfore these officers were appointed who are now parties, certain expenses had been borne in common. The board of health existing at that time, purchased, in one or two years, fuel and gas of that board of police. At present, however, the comptroller settles all these bills for the city, and since 1873, it has not been found either advisable or necessary to separate the expenses of the different parts of the building as formerly. In the same manner supplies have been purchased from the department of charities and correction. • As well might this latter department now say that this purchase of supplies for the small pox hospital transfers its title and charge to them, as the defendants say that these former purchases of fuel and gas had the effect they claim.

      V1X. One department of the city government certainly cannot be dispossessed, by another co- u dimite department by force, without warrant, legal process, or authority by law. Nor can the defendant be permitted to use, as they threaten, the police force of the city for such unlawful purposes. The entry of the plaintiff into its rooms under lawful authority is admitted. Of them the defendants have not since keen in possession. The building itself was built under authority of chapter 259 of the Laws of 1860, § 21, and chapter 806, Laws 1867, § 5, from “surplus moneys contributed by the county of New York.” These moneys could not be used except by authority of the legislature. The designations of “police fund ” or “ central department'of the metropolitan police,” no more gives a property therein to the defendant, exclusive of the city, and the other departments for whose use they were intended, than the designation of “police courts” and “police court houses” under subsequent laws, and of “ police justices,” gives them the courts, court-rooms, and judges, over to the aggressive jurisdiction of these defendants, whose title, powers, and duties are very definitely prescribed and limited by law. Obedience to the law, regard for public interests, and the public service, due moderation in the exercise of their proper authority over the police force of the city, and in the use of the public property, must be required of the defendants. They have wilfully taken upon themselves a grave responsibility. and set an example of lawlessness and violence in which they should be restrained by a court of equity. The order appealed from should be affirmed, with costs.

       The Respondent’s points are reported in full, not only by reason of their merit, but also because they contain much information as to the two departments.

   By the Court.—Curtis, J.

The views expressed by the learned judge, at the special term, in his opinion upon making the order continuing the injunction against the defendants, fully sustain his direction.

It is at all times desirable that departments created and organized for the efficient and discreet performance of grave duties in the public service, should co-operate for the general welfare, and in doing so, not only present an example of respect for the law, but scrupulously avoid acts of violence towards each other; neither would it be amiss for them to endeavor to observe the courtesies and conventionalities that prevail among the respective branches of the civil service in most civilized communities. Nor does it detract from this theory of what their mutual relations should be, that as in the present instance as well as in all others where litigation arises from their controversies between themselves, its expenses on both sides are drawn from the public treasury. Not only do such variances militate with the highest discharge of duty, but they unjustly increase the public burden.

The premises in question were purchased, and the buildings constructed at the public expense, and are the property of the public. The Health Department, and the Police Department have occupied portions of them for some years. The latter desired to occupy the rooms of the former, and forcibly took possession of some of them, when the former brought this suit and procured the injunction order restraining them, and forbidding the continuance of such forcible occupancy, which is now appealed from.

Where a person is in the possession of real estate, even though he may be amere tenant by sufferance, or has not paid his rent, or holds over after the expiration of his term, the owner can only regain possession by process of law. Public policy forbids a resort to violence.

If, as is claimed by the Police Department, the Health Department came in under them, to hold the rooms at their pleasure, still they have no more right to resort to force to re-possess themselves of the rooms occupied by the health department, than any other landlord in the community would have to resort to force agaiust his tenant. It is not shown that the legislature has attempted to grant any such privilege to the Police Department. But the legislature has made it the duty of the officers and men of the police department to enforce all the ordinances and regulations of the former, and to report all violations of the same, and otherwise co-operate with the Board of Health for the public good (Laws of 1867, chap. 956, §§ 3, 31). The proofs presented strongly indicate that it is best for the public health and welfare that these two departments should occupy ad jacent offices in the same building, and the action of the legislature and of the municipal authorities, tends to show that such was the intention from the time of the plaintiff ’s creation.

. If there was any irregularity or defect in not giving due notice of the application for the injunction at the special term, the proceeding to the hearing of that motion, without presenting the objection either by the papers or otherwise, must, at this stage, be deemed to have been a waiver of it.

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

Van Vorst, J., concurred.


author: By the Court.—Van Vorst, J.

text:
    WILLIAM S. BURNETT, Plaintiff and Respondent, v. C. BROWN SNYDER, Defendant and Appellant.
    I. RECITALS IN ORDERS, EFFECT OF.

    1. Questions of fact, other than upon the pleadings, arising on a motion, reference as to (Code, § 271).

      (а) Order oe reference reciting “ that the Court was DESIROUS OF BEING ADVISED ON THE FACTS.”
    1. Recital equivalent to saying that a question of fact had arisen on the motion, as to which the court desired further proof.
    2. Power of the court. In such case the court has power to order a reference of its own motion.
    (б) Effect of such recital, when not impaired by
    OTHER RECITALS.
    1. It is not impaired by further recitals that the party against whom the motion was made, had given notice to the moving party to produce, as to certain particulars, further affidavits from persons on whose affidavits he based his motion ; that the further affidavits were declined to be produced ; that the party who gave the notice applied for the reference, which was opposed by his adversary; and that the order of reference was made “on reading and filing a notice of demand of said affidavits, served on the attorneys of the defendant, and proof of service of the same upon them.,

      Before Curtis, and Van Vorst, JJ.

      Decided August 1, 1876.
    II. PAETT TO ACTION, EXAMINATION OF.

    1. § 271 of Code; no examination of, can be had upon a reference
    under subdivision 3 of this section.
    Appeal from an order.
    The plaintiff obtained an order of attachment against the defendant as a non-resident of this State. Thereupon defendant, upon affidavits tending to show his residence in this State (among which affidavits were those of his wife, his daughter, and himself), obtained an order requiring plaintiff to show cause why the attachment should not be set aside. Thereupon plaintiff’s attorney served on defendant’s attorney a notice to produce on the hearing of the motion to vacate, affidavits of the defendant, his wife and daughter, as to certain particulars in the notice specified, all bearing on the question of residence. The notice, if complied with, would have operated in some measure as a cross-examination. When the motion came on to be heard, defendant declined to produce the affidavits called for by the notice. Thereupon an order was made, which after reciting the giving of the notice, and the declination of defendant’s attorneys to comply therewith, and that the court was “ desirous

      of being advised on the facts f and that the plaintiff’s attorney applied for an order appointing a referee to take the testimony of defendant, his wife, and daughter, to be used upon motion, and that counsel for defendant had been heard in opposition thereto, did, upon the reading and filing of said notice, and proof of service thereto on the defendant’s attorney, order a reference to take, for the purpose of being used on said motion, the affidavits of defendant, his wife, and daughter, as to the particulars specified in the said notice, and ordered defendant, his wife, and daughter, to appear before the referee for the purpose of such examination, on ten days’ notice to the defendant’s attorney.
    From this order the defendant appeals.

      Wilson & Wallace, attorneys, and William G. Wilson, of counsel for appellant, urged :
    I. The court had no power to make the order in question. 1. No foundation had been laid for the granting of such order. The Code (§ 401, subdivision 7) furnishes the only authority for such an order, and prescribes the mode in which it can be obtained ; it requires (1) that a party shall intend to oppose a motion ; (2) that it shall be necessary for him to have the affidavit of some person for that purpose ; and (3) that that person has refused to make the same. And the court should be satisfied by “competent and sufficient proof,” that these requirements are met in the case before it, before such order can be made (Moses v. Banker, 34 How. Pr. 212 ; Cockey v. Hurd, 14 Abb. N. S. 183; Erie Railway Co. v. Gould, Id. 279). But-in the present case none of these requirements are met. There is no evidence (1) that, the plaintiffs had any intention of opposing the defendant’s motion, or of doing anything more than embarrassing and delaying his application to the court; or (2) that the affidavits asked for, or any affidavits, are necessary to the plaintiff; or (3) that any of the persons named have refused to make the affidavits asked for, or that any affidavits have been drawn or presented to them. The plaintiffs’ application was based solely on the service upon the defendant Snyder’s attorneys of the notice, requiring them, to produce affidavits of the defendant Snyder, and of his wife and daughter, and on the failure of such attorneys to produce such affidavits. This paper is ineffectual for any purpose. 2. It is attempted to save the order by the introduction of the recital; “ the court being desirous of being advised on the facts,” but this attempt will be futile. The preceding recitals of the order show that the application was based on section 401 of ¡he Code, as in fact it was. But that section gives no authority to court or judge to order a reference, unless the above mentioned requirements have been complied with fully. Nor is there any authority by which the court, of its own motion, can order such a reference. By section 271, subdivision 3, the court may, on the application of either party, or of its own motion, direct a reference “where a question of fact, other than upon the pleadings, shall arise upon a motion or otherwise, in any stage of the action.” But this section cannot be held to authorize the order in question, for here there was no question of fact; the motion had never been argued; the facts on which the defendant’s motion was based had not been presented to the court; all that had come before the court was the plaintiffs’ application to procure affidavits with which to oppose such motion when it should come to be argued—necessarily such application is preliminary to any such question of fact arising on the motion. Furthermore, the order itself does not recite that any such question of fact had arisen, but recites the application for affidavits, and, in fact, no such question had arisen.

      Martin & Smith, attorneys, and Aaron Pennington Whitehead, of counsel for respondent urges :
    I. This reference is made under section 271 of the Code of Procedure: “ § 271. When reference may he compulsorily ordered. Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases : ”...... 3. Where a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action.
    II. This case clearly comes not only within the language, but also within the spirit and intent of that section. There was a question of fact to be decided, namely: Where did the defendant, Snyder, live? The court had the right to refer the matter to a referee to take the testimony of the defendant, Snyder, and his wife and daughter, for its own information. The order recites as follows : “ And the court being desirous of being advised on the facts.” This subdivision of section 271 of the Code, was framed for the purpose of enabling the court to ascertain the exact facts on a motion, where there was doubt or danger of being imposed upon. The course taken by the plaintiff’s attorneys, in serving notice of demand for further affidavits, was for the purpose of bringing the matter in the best manner before the court.
    III. The order is in furtherance of justice, as the defendant evidently is unwilling to disclose the real fact as to his residence.

       Notes by Reporters.—The point as to whether the court, either on its own motion or on application of a party, can order a reference under subdivision 3 of § 271, upon the mere suggestion that a question of fact is involved, or whether it must be satisfied, after a hearing or examination of the papers on the motion, that there is such a conflict of testimony, as, in its discretion, renders a reference either necessary or proper, before it can exercise the power, was not distinctly passed on by the court. The appeal papers did not present it. The recital in the order “that the court was desirous of being advised on the facts,” carried with it, as held by the court, a declaration not only that a question of fact was involved, but that the court had so sufficiently heard or examined the papers, as to determine that a reference was necessary to satisfactorily decide it.
      The appeal book showed nothing to contravene this effect of the recital in question ; the other recitals not being necessarily in conflict.

       A point which may possibly arise under sub. 3 of § 271, viz.: As to whether the proper form of the order of reference is not to take such evidence as either party may adduce, was not considered or passed on.

   By the Court.—Van Vorst, J.

The order appealed from, among other things, recites, “that the court being desirous of being advised on the facts,” ordered that a referee be appointed to take the affidavits of the persons named to be used on the motion. This is only another way of stating that a question of fact had arisen on the motion. In such case the court, upon the application of either of the parties, or upon its own motion, could order a reference (Code, § 271).

Sach direction is in the interest of truth; the motion being pending, and brought on for hearing, and a conflict as to questions of fact appearing, it was proper for the judge, if he desired further to be advised of the facts, so as properly to dispose of the matter, to direct a reference to ascertain the facts.

Although all the papers are not before us, sufficient appears to indicate what the disputed facts were. They bore upon the question of the residence of the defendant, C. Brown Snyder, against whose property attachments had- been obtained, on the alleged ground of his non-residence.

The defendants had moved, upon ex parte affidavits, to set aside the attachments, and the court directed a reference, so as to be advised of the facts.

The points as to which inquiry was to be made, are fully stated in the order. They all relate to the question of the residence of the defendant.

The order is, however, defective, in directing that the affidavit of the defendant should be taken. King v. Leighton (58 N. Y. 883), is an authority to the effect, that a party to an action cannot be compelled to submit to an examination, at the instance of the adverse party, save as a general witness in the cause. The order appealed from should be modified, by striking out the direction to the referee to examine the defendant, and it is otherwise affirmed, but without costs.

Curtis, J., concurred..


text:
    JOHN HAVEN, Plaintiff and Respondent, v. MARIA L. DALY, et al., Defendants and Appellants.
    Before Curtis and Van Vorst, JJ

      Decided August 1, 1876.
    I. REAL ESTATE, TITLE TO.

    1. Agreement not affecting.
    One made and executed by Hand B, reciting that D, H and B had conjointly purchased the land in question, declaring that the deed of the property is held by D for herself, and in trust for them ; and providing that if they should fail to pay their proportional part of interest, accruing on a purchase money bond and mortgage, when the same should become payable, then their right and interest should cease; and concluding, “witness the hands and seals of said H and B the day and year first above written,” does not create in H and B an interest in, or a lien upon, the land, nor constitute the grantee a trustee for them.
    Parol agreement. This, although there was a parol agreement between D, H and B, to the effect that each was the owner of one-third of the property,—H and B having neither gone into possession, nor discharged any obligation imposed on them by the terms of the declaration signed by them.
    n. FORECLOSURE, PARTIES DEFENDANT.

    1. Who not necessary.
    1. H and B are not necessary parties to an action to foreclose the purchase money prayers.
    HI. SPECIFIC PERFORMANOE.

    1. Sale under judgment in a foreclosure action of the purchase money mortgage to which Eand B were not parties.

      (a) Purchase compelled to complete.
    This is an appeal from an order, compelling Lewis Allen to complete the purchase of certain premises, bid in by him, on a sale made under a judgment of foreclosure in this action.
    The purchaser objected to the title, on the alleged grounds that William J. Barnes and George F. Hopper had each an estate and interest in, and a lien upon the mortgaged premises, and had not been made parties to the foreclosure proceedings.

      Smith E. Lane, attorney, and William R. Martin, of counsel, for appellants, upon the point decided by the court, urged:
    I. Upon the conceded facts of this case, it is beyond question that Hopper and Barnes had an estate and interest in, and lien upon, the lands. They were joint purchasers with the defendants, who held the title, and under the agreement, they could have compelled a conveyance of their respective interests. Any purchaser, with knowledge of these facts, who took a deed of the land from the defendant, would hold it subject to the claims of Hopper end Barnes, and without a good title. The plaintiff must make a good title under the foreclosure, or the purchaser is not bound to take. This judgment must be good at the time it is entered. It cannot be aided by extrinsic, or subsequent affidavits. This judgment, as it appears, on the record, is defective. The papers on file show that Barnes and Hopper should have been made par- . ties, and the facts must here and always b? regarded' as they appeal- on the records. They must be assumed ' to be correct, and they cannot be contradicted or qualified after judgment.
    II. They were thus necessary parties to a complete determination of the action, and as such, their must be brought in (Voorhees’ Code, 1870, sec. 122, sub, 1, and notes A and C). The owner of the equity of redemption, even by an unrecorded deed, of which the mortgagee had no knowledge, must be brought in as defendant (Hall v. Nelson, 23 Barb. 88 ; Voorhees' Code, 1870, p. 105, note g ; 1 Wait's Practice, 135).

      Scudder & Carter, attorneys, and George A. Black, of counsel, for respondent, upon the point decided by the court, urged:
    The purchaser, on the motion below, based his defense on the allegation of an agreement between Mrs. Daly and Hopper & Barnes. To support this, he produces an agreement. This contains recitals that it is made by Mrs. Daly, but purports to be executed only by Hopper & Barnes, and in its character is not such an instrument as conveys any legal title. The interest they have is a conditional one, and there is no proof that they have performed the condition. But it is manifest that whatever rights they have under this agreement, the right of possession is not one of them. The test is, could Mrs. Daly convey a good title to a person who knew of this agreement. Undoubtedly she could, as the instrument contemplates such a transfer.
   By the Court.—Van Vorst, J.

The owners of the equity of redemption, should, without doubt, be made parties to the action, otherwise they are not affected by the judgment (Read v. Marsh, 10 Paige, 410). Not only is the owner of the equity of redemption a necessary party, but all subsequent incumbrancers existing at the commencement of the suit are such (Moak's Van Santvoord’s Pleadings, 131).

The right of redemption exists in favor of every person who has an interest in, or a legal or equitable lien upon the land (Kent's Com. vol. 4, 162).

The interest, if any, of Barnes and Hopper, in the mortgaged premises, is created by the instrument in writing, dated on the 15th day of May, 1873, after the execution of the mortgage, a copy of which is among the papers handed to the court, on this appeal.

The instrument, which has never been recorded, is a declaration, signed by Hopper and Barnes only. It does not purport to be, and is not in fact executed by Maria L. Daly, in whom the legal title to the property vests, and who with her husband executed the mortgage for a part of the purchase money. The instrument recites that Maria L. Daly, George F. Hopper and William J. Barnes, have conjointly purchased the land in question, declares that the deed of the property is held by the grantee for herself, and in trust for Hopper and Barnes, and provides that if Hopper and Barnes shall fail to pay their proportional part of interest accruing upon the bond and mortgage, when the same shall become payable, then their right and interest shall cease. The concluding part is, ‘‘ witness the hands and seals of said Hopper and Barnes, the day and year first above written.”

Barnes and Hopper could not by the execution of the instrument in question create in themselves an interest in or lien upon the lands or constitute the grantee, a trustee for them. It would require the consent of the grantee to be evidenced by an instrument in writing executed by her. She should have either joined in this instrument by executing it, or a similar paper. Courts of equity hold that a part performance of a parol agreement is sufficient to take a case out of the statute of frauds, upon the ground that a party who has permitted another to perform acts, on the faith of an agreement, shall not be allowed to insist that the agreement is invalid because it was not in writing.

In Lowry v. Tew (3 Barb. Ch'y. 408), it was held that “ talcing possession under a parol agreement, and in compliance with the provisions of such agreement, accompanied by other acts, which cannot be recalled, has always been held to take such agreement out of the statute of frauds.” A party going into possession, under a parol agreement with the owner of the land to sell and convey to him, which has been so far consummated as to entitle him to a specific performance, is considered the owner of the title for which he has contracted.

But there is nothing in the papers which tends to show either that Barnes and Hopper have gone into possession, or that they have discharged any obligation imposed upon them by ihe terms of the declaration signed by them.

At the time of the commencement of the action for the foreclosure of the mortgage, Mrs. Maria L. Daly, was the owner of the equity of redemption, and neither Barnes nor Hopper, from anything which appears, had any estate or interest in, or lien upon the mortgaged premises, and were not necessary parties to the action.

The order appealed from is affirmed with costs.

Curtis, J., concurred.


text:
    HENRY SCHILE, Plaintiff and Respondent, v. WILLIAM BROKHAHNE, Defendant and Appellant.
    Before Curtis and Van Vorst, JJ.

      Decided, August 1, 1876.
    I. PARTICULARS, BILL OF.

    1. Tort, action of, e.g. : Trespass, Trover, etc.

      (а) Right, not a matter of right.
    (б) Discretion. May be ordered in the sound legal discretion of the judge to whom the application for a bill of particulars may be made after hearing both parties.
    1. Further bill. In case the one first furnished, whether voluntarily or by order, is defective, a further one may be ordered by the court in the exercise of a like discretion.
    (c) Contents of.

    Same precision, as in an action on contract, not required.

      (a) Damages, different classes of.
    1. A bill of particulars only gave the gross amount of each one of five different classes of damages. A motion for a further bill teas denied, and the decision teas sustained on appeal.

    This is an appeal from an order made at Special Term, denying the defendant’s motion for an order requiring the plaintiff to furnish a further and more specific bill of particulars.
    The action is in tort, being to recover damages for an alleged trespass upon the plaintiff’s premises, by which his stock and fixtures were damaged, and his business greatly injured.
    Upon the defendant’s request, the plaintiff furnished the following statement of his claim for the stock injured, for the fixtures damaged, and for the injuries to his business and income, viz :

      “ Bill of particulars of the amount of damages sustained by the plaintiff and claimed herein against the defendant, relative to 2STo. 36 Division St., IS". Y. :
    “Damages to business, fixtures and stock, placed on and near western wall and injured by removal thereof, one thousand five hundred and eighty dollars.
    “Damages to household furniture, carpets and other articles belonging to plaintiff’s family, two hundred and twenty dollars.
    “Damages sustained on account of the decrease of business, by loss of customers and profits, two thousand dollars.”
    “Damages by reason of the plaintiff being kept at home on account of defendant’s acts, instead of attending to his wholesale business, carried on elsewhere than at said premises, five hundred dollars.
    “ Damages suffered by reason of the inconvenience and annoyance consequent upon defendant’s said wrongful acts, seven hundred dollars.”
    The complaint charges that the defendant’s acts through which the plaintiff’s loss and damage were sustained were committed in February, 1876.
    In opposition to the motion for a further bill, there was read an affidavit made by one of the plaintiff’s attorneys.

      Field & Deyo, attorneys, and of counsel for appellant, urged :
    I. The defects shown in the notice of motion az'e vital. The defendant is as much in the dark as before the bill of particulars was served. A bill of particulars should set forth with all practicable particularity, the date, amount, and general character of each item (Kellogg v. Paine, 8 How. 329. See note to Brewster v. Sackett, 1 Cow. 572, where all the cases are collected). Time is material (Quin v. Astor, 2 Wend. 577; Humphrey v. Cottleyou, 4 Cow. 54). The rule is the same whether the action is in contract or tort (See Humphrey v. Cottleyou, last above cited, which was an action in trover. See also Tilton v. Beecher, 59 N. Y. 176). The opposing affidavit does not show that it is impossible to give dates. The last three items of damage set forth in the bill should certainly be limited as to the time within which the damages accrued, for they must necessarily have a direct relation to the number of days the plaintiff’s occupation of the premises was interfered with.
    II. The office of the bill of particulars is to limit the proof (Kreiss v. Seligman, 8 Barb. 439. See p. 440 S. C., 5 How. 425). Under the bill furnished the plaintiff may, in case of evil intent, add indefinitely to the articles alleged to have been damaged, and vary as he may think necessary the articles themselves. The court will at once perceive that there is a wide scope given to the plaintiff to vary his demand to suit the exigencies of his case, while the defendant is kept in as much ignorance as he was before the bill was served. As the matter now stands, it will be impossible for the defendant to show or propose to show that any estimated damage of the plaintiff is incorrect.

      Nehrbas & Pitshke, attorneys, and of counsel, for respondent, upon the points decided by the court, urged :
    I. If, in the exercise of judicial discretion, the court sees that the knowledge of the occurrences on which the plaintiff’s claim rests, is more with the defendant than with the plaintiff, it may refuse to require the latter to furnish dates or minute particulars, especially where the defendant has not attempted to dispute or explain the acts with which he is charged (Young v. DeMott, 1 Barb. 30 ; Ives v. Shaw, 31 How.). Though the court has the power, it may refuse on the merits (Tilton v. Beecher, 48 How. 175) ; this is a matter in the discretion of the judge, upon hearing both parties, and considering all the circumstances of the

      case (Humphrey v. Cottelyou, 4 Cow. 54). Since a bill of particulars limits the right of recovery to the items stated (Bowman v. Earle, 3 Duer, 691), the court may well accept the plaintiff’s description as sufficient, “as it would often amount to a denial of justice, if a party who had been injured by another should be deprived of all remedy, unless he could describe, with accuracy, every article” (Blackie v. Neilson, 6 Bosw. 681).
    The court might deem it unreasonable to require the plaintiff to go through his entir ebusiness-stock and have the specific injuries estimated as to each, by appraisement—all having been more or less damaged, by the elements, while plaintiff’s premises were open as aforesaid. It is hardly proper to force him to do that by anticipation (Murphy v. Kipp, 1 Duer, 659).
   By the Court.—Van Vorst, J.

The power of. the court to order a bill of particulars of the plaintiff’s claim in an action of this character is not questioned. It is sanctioned by the Code, § 158, and by authority (Tilton v. Beecher, 59 N. Y. 176).

In Blackie v. Neilson (6 Bos. 681), it is stated that in an action for the conversion of personal property the defendant is not entitled, as a matter of right, to require the plaintiff to furnish him with a particular statement or description of the chattels for the value of which the action is brought.

But in the discretion of the court such description, -in the nature of a bill of particulars, may be ordered (Fullerton v. Gaylord, 7 Robt. 551). Whether a statement of the particulars of the plaintiff’s claim, when furnished voluntarily or by order of the court, is sufficiently explicit, or whether a further one should be ordered, is to be determined by the judge to whom the same is submitted for consideration, and its disposal rests in his sound discretion, on hearing both parties, under all the circumstances of the case (Humphrey v. Cottelyou, 4 Cow. 54).

In an action of trespass, by which the personal property and business of a party is damaged and injured, it might be exceedingly difficult to fix an unyielding estimate of specific damage, unless an appraisal was had by persons competent to judge.

The case differs essentially from that in which items of an account in an action upon contract, is asked for. There precision as to values and amounts can be readily acquired.

The amount of the plaintiff’s damage to each article is in fact unadjusted, as also to his business, and can be ascertained only by a competent appraisal, or by the evidence on the trial.

The complaint states with sufficient explicitness the date of the trespass.

The plaintiff, in his affidavit, read on the motion, states that it would be difficult to give precise dates and amounts, since the aggressions of the defendant were a series of acts ; and that to specify all his injury, an inventory of his business must needs be taken, which would require time and labor.

We are not disposed to interfere with the discretion exercised by Sedgwick, J., before whom the motion was heard, and who upon consideration denied the application.

The order appealed from is affirmed with costs.

Curtis, J., concurred.