text:
    CHARLES DUSENBURY, Respondent, v. HOMER FISHER, Appellant.

      Parties—relief as between—adjudication between co-defendants, when not granted—joint claim must be prosecuted against parties jointly defendants or jointly plaintiffs.

    An adjudication between co-defendants, to be binding upon them, must be founded upon and connected with the subject-matter in litigation between the plaintiff and one or more of the defendants, and where the court decides that plaintiff is not entitled to the relief asked by him, for the reason that he is not the real party in interest, an adjudication will not be made as to the rights of the defendants between themselves.
    The forms of procedure do not permit the prosecution of a joint claim,—e. g., by accounting, &c.,—against parties who do not appear' jointly as plaintiffs or defendants.
    Before Sedgwick, Ch. J., Speir and Freedman, JJ,

      Decided December 5, 1881.
    Appeal by defendant-, Fisher, from judgment in his favor, entered on report of referee.
    The action was, at its beginning, against the members of two firms, the present appellant and the other present defendants not being made parties. The-plaintiff claimed that he and the two firms were joint adventurers in a certain purchase, and that he was entitled to an accounting concerning it. The parties went to trial. It appeared to the court that other persons-were necessary defendants. It, therefore, ordered that the present appellant, Fisher, and two persons named Thomas Busenbury and Benjamin Busenbury, be made-defendants. The complaint was amended by restating the contents of the original complaint, by alleging that-the court had made the order referred tó, and that the persons named in it were made defendants in compliance with it, and that the defendants, Busenbury, or either, did not claim to have any interest in the joint purchase. The appellant, Fisher, answered, alleging that the plaintiff did not individually have the joint adventure referred to, but that a firm composed of the plaintiff and the defendants, Busenbury, called Thomas Busenbury & Son, did have such a joint adventure, and claimed that there should be an accounting in the action, in respect of the adventure. By leave of the court the appellant served his answer on the co-defendants. The defendants, Dusenbury, demurred to the complaint. The demurrer was overruled, and they did not answer over.
    On the trial it appeared that the plaintiff wás not individually a party to the adventure, but that the firm of Thomas Dusenbury & Sons, composed of the plaintiff and the defendants, Dusenbury, were parties ; that the other parties were the appellant, Fisher, and the two firms, the members of which were the original defendants, and who remained defendants; that the last-mentioned firm had assigned their interest in the adventure to defendant, Fisher. The appellant claimed before the referee that he was entitled to a judgment, that the parties to the action account in respect to the adventure, but the referee found that the complaint should be dismissed, and being of opinion that in such case, he had no power to proceed to order an accounting as claimed by the appellant, refused to order judgement as asked by appellant.
    From this determination defendant Fisher appeals.
    The referee, Hon. Homer A. Nelson, after stating the facts, wrote as follows :
    “As to the right of the answering defendants to judgment against Thomas Dusenbury & Sons, under what is now known as the ‘Old Code,’ section 274 provides: ‘Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants ; and it may determine the ultimate rights of the parties on eaph side, as between themselves, and it may. grant to the defendant any affirmative relief to which he may be entitled.’
    “Ithas been determined that this section should be read in connection with section 118 of the same Code, and that the provisions of both were taken from the practice in chancery, and had done no more than adopt that practice (Wells *. Smith, 1 Abb. Pr. 261; M. & T. Savings Institute v. Roberts, 1 Id. 381; Tracy v. 1ST. Y. S, Faucet Man. Co., 1 E. D. Smith, 349; Norbury v. Seeley, 4 How. Pr. 73).
    “Adopting this construction as the correct one, I am satisfied that under the practice in chancery, where the court on the trial decided that the complainant could not maintain his bill, and that it should be dismissed for the reason that he was not the party in interest, judgment was never awarded adjudicating the rights of defendants as between themselves, and particularly as against these defendants, who had not answered in the cause.
    “As to the right of the answering defendants to judgment against Thomas Dusenbury & Sons, under the present Code of Civil Procedure—
    “ Section 1204 provides : ‘ Judgment may be given for or against one or more plaintiffs, and for or against one or more defendants. It may determine the ultimate rights of the parties on the same side, as between themselves, and it may grant to a defendant any affirmative-relief to which he is entitled.’
    “ This section is substantially the same as section 274 of the old Code, in reference to which the commission of appeals, in King v. Whittaker (44 N. Y. 565, 576), say that, under the provisions of section 274 of the Code, a judgment in an action ‘may determine the ultimate rights of the parties on each side, as between themselves. Defendants can have relief against each other only in a case in which they have appeared and.answered in reference to the claim made against them by the plaintiff, and as a part of the adjustment of that claim, and that it must be based upon the facts involved in and brought as by the litigation and investigation of that claim.’
    “It certainly is no part of the adjustment of the claim of the plaintiff to allow the defendants to try the question as to their rights against Thomas Dusenbury & Sons if I have correctly decided that the plaintiff has no right to maintain the present action, as brought, and that it must be dismissed, and which decision is one that the defendants, answering, claim and insist under the evidence given on the trial before me, is the proper one to be made, and the only one that a fair-minded and disinterested court or referee could make as to that question.
    1 ‘ Section 521 of the new Code provides as follows: 4 Where judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant who requires such a determination must demand it in his answer, and must, at least ten days before the trial, serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination.’
    “This is a new section, and in my judgment was designed and intended to direct as to the course of procedure in a case where the right existed to have 4 the ultimate rights of. two or more defendants, as between themselves ’ determined, and should be read •and construed in connection with section 1204. Having come to the conclusion that I should dismiss the complaint, for the reason that plaintiff is not entitled to maintain the action to obtain an accounting as to the transaction mentioned, I think it follows that section .521 does not aid the claim made by the answering defendants, that Thomas Dusenbury & Sons, as a co-partnership, shall account to them in this suit.
    41 For the foregoing reasons I have declined to state the accounts between the firm of Thomas Dusenbury & Sons, Schuyler, Hartley & Graham, Starr & Frazier, and Homer Fisher, who were jointly interested in the purchase and sale of the shot, shell, ordnance stores and other property.
    “ On the question whether Charles Dusenbury was the party in interest in said joint ventures, or whether his only interest therein was, and is, solely and only as a member of the firm of Thomas Dusenbury & Sons, I think the evidence conclusively establishes the fact that the firm of Thomas Dusenbury & Sons was the party, and Charles Dusenbury was not.”

      Theodore P. Miller, for appellant.

      Ira I). Warren, for respondent.
   By the Court.—Sedgwick, Ch. J.

I am of opinion that the action was properly disposed of by the learned referee, for the reasons given by him.

If the claim was to adjust the accounts between- the defendants only, the exceptions to the power to direct such an account that are recognized in Elliott v. Pell (1 Paige, 268), and Jones v. Grant (10 Id. 350), would have to be applied. In the former case, it was said, “ But such decree between co-defendants to be binding upon them, must be founded upon and connected with the subject-matter in litigation between the complainant, and one or moreof the defendants.” The subject-matter litigated was, whether the plaintiff individually was entitled to an accounting. It was held that he was not. The conclusion was reached, either through proof that the firm of which he was a member was the party in interest, or by his failure to show that he was the party in interest. To my mind, it was no part of this litigation to take the accounts between the firm and the other parties.

Another difficulty is present. The appellant was not, on the face of his answer, entitled to an accounting between -the defendants Thomas Dusenbury and Benjamin Dusenbury, and the other parties, because the defendants Dusenbury were but two of the firm, of which the plaintiff was the third. The forms of procedure do not allow the prosecution of a joint claim against parties who do not appear jointly as defendants or as plaintiffs. The provisions that allow a plaintiff, under certain circumstances, to make defendants parties whom he alleges are jointly interested with him, do not apply to such a case as this. The appellant’s remedy was to bring an action in which the members of the firm of Thomas Dusenbury & Co. should be defendants.

Judgment affirmed, with costs.

Speir, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedg-aviok, Ch. J.

license: Public Domain

text:
    HOMER FISHER, Appellant, v. WILLIAM W. DUSENBURY, as Adm’r, &c., Impleaded, &c., Respondent.

      Dismissal of complaint—where not granted for failure to prosecute.

    Where one, by order of the court, and not upon his own motion, is made a party defendant to an action, and properly seeks to enforce certain rights therein, and subsequently, for the protection of the same rights, brings an action for their enforcement, the complaint in such second action should not be dismissed for failure to prosecute the same until the determination of the first action. In this case it appeared that the enforcement of such rights had been denied upon appeal in the first action, upon technical considerations alone, and further, that if the complaint in the second action were dismissed, the statute of limitations would bar plaintiff’s said cause of action.
    Before Sedgwick, Ch. J., and Freedman, JJ. .

      Decided December 5, 1881.
    Appeal by plaintiff from order dismissing the complaint as to the defendant, William W. Dusenbury, administrator, &c., for alleged neglect to prosecute the action.
    The action was in equity for an accounting. The transaction out of which the claim arose was an alleged joint adventure between the plaintiff, a firm of Thomas Dusenbury & Son, and other persons. The complaint alleged that Thomas Dusenbury, of the firm, had died intestate, and that William W. Dusenbury had been appointed and was administrator of, &c. ; that the other members of the firm, and who were defendants, were insolvent. Issue was joined as to the respondent in October, 1880, and as to the other defendants,. Dusenbury, not before March 5, 1881. The motion to-dismiss was made June, 1881.
    In opposition to the motion it appeared, among other things, that prior to the commencement of this action, an action had been begun by Charles Dusenbury, in which he had claimed an accounting in respect of the alleged joint adventure ; that in such action the-court had ordered that the present plaintiff and the present defendant, Dusenbury, should be made parties ; that such action had proceeded to judgment in which the complaint was dismissed, and it was held that the complaint having been dismissed, the there defendant, Fisher, was not entitled to an accounting. The defendant, Fisher, appealed from such judgment, and-the appeal was argued at this term, and the judgment has been affirmed.

      Theodore F. Miller, for appellant.

      Ira D. Warren, for respondent.
   By the Court.—Sedg-aviok, Ch. J.

I am of opinion that the pendency of the first action, considered in connection with the fact that the appellant had been, without any application on his part, made a defendant therein and practically an actor, justified the appellant in not prosecuting the present action until the first had been determined. The order making him a defendant, justified his believing that the rights of the parties ■could be ascertained iu the former action. It was a proper case in which to have the judgment of the general term on the questions of law involved. On the other hand, the bringing of the present action was a proper precaution against the plaintiff being left without any adjudication. In. short, it would not have been just to call upon the appellant to litigate the two notions contemporaneously. If the present order stand, the appellant, without fault on his part, will be deprived of an opportunity to present the merits of his alleged cause of action, for another action on it would barred by the statute of limitations.

Order reversed, and motion denied, with $10 costs.

Freedman, J., concurred.


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

text:
    HENRY C. DART, Appellant, v. WILLIAM E. LAIMBEER, Respondent.

      Examination before trial—affidavit, sufficiency of.

    After issue in an action for breach of a* copartnership agreement, plaintiff obtained an order for defendant’s examination before trial, upon an affidavit alleging that the necessity for the order was, that the circumstances connected with defendant’s counter-claim were peculiarly within defendant’s knowledge, as to whom, where and in what manner such losses, mismanagement and false representations by plaintiff were made, 1 ‘ and that this plaintiff has no knowledge of such losses or mismanagement, or any power of obtaining such information, otherwise than through the testimony of this defendant,” •—Held, insufficient to show the necessity and materiality of the testimony sought. Held, also, that the affidavit in this case was defective, in that it did not by inference, or directly assert the intention •of the moving party to use the testimony on the trial.

      Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 5, 1881.
    Appeal by plaintiff from order setting aside order for defendant’s examination before trial.
    The action was for damages to plaintiff from defendant’s alleged breach of a partnership agreement, and from the unlawful breaking up of the business of the copartnership.
    The answer, after putting in issue the allegations of the complaint, interposed a counter-claim, the allegations of which were denied by plaintiff’s reply.
    The plaintiff, upon his affidavit, procured an order for defendant’s examination' before trial. The nature of the affidavit appears in the opinion.
    Upon motion, the order for examination was set aside.

      Wingate & Quiten, attorneys, and Henry Q. Andrews, of counsel, for appellant.

      J. Burdett Hyatt, for respondent.
   By the Court.—Sedgwick, Ch. J.

This is not a case where the plaintiff, in order to comply with subdivision -4 of section 872 of the Code of Civil Procedure, and Buie 83, has placed himself upon the use of the very words of the Code, in his affidavit, as to the testimony of the defendant being material and necessary for the plaintiff for the prosecution of the action. He has used the words, but other parts of the affidavit affect an inference, which might have been drawn from them if they had been used by themselves.

The testimony alleged by the affidavit to be material and necessary,' is confined by the affidavit to the counter-claim. The affidavit averred that for a counterclaim," the defendant alleges and claims that, by reason of the misrepresentations of the plaintiff and of his mismanagement of said business, and. said plaintiff’s failure to perform promises, the defendant has suffered loss and damage ; that the necessity for the order was that the circumstances connected with the counterclaim are peculiarly within defendant’s knowledge, as to when, where, and in what manner such losses, mismanagement, and false representations were made, “and that this plaintiff has no knowledge of such losses or mismanagement, or any power of obtaining-such information otherwise through the testimony of this defendant.” It in this way appears that the affidavit does not show the testimony to be material and necessary, for the affiant swears that he has no knowledge or belief as to what matters the defendant can testify. The plaintiff might have shown that he had knowledge enough to allege in the affidavit that there were no losses, &c., and that he wished the defendant’s testimony for the purpose of showing it. The affidavit contains nothing to that effect.

The affidavit is insufficient in another respect. The rule is that it must appear from the papers, by inference or direct assertion, that it is the intention of the party applying to use the examination upon the trial. But there are specific statements which show the intention of the plaintiff, as to the use to be made of the proposed deposition. The affidavit declares, “ that this application is made in good faith", to preserve the expected testimony, and under a legitimate claim of discovery ; that the plaintiff cannot properly proceed to trial, without such testimony aforesaid.” The implication is that these are the only purposes for which the plaintiff desires the examination, and none of them is a purpose to use the testimony on the trial.

The order appealed from is affirmed with $10 costs.

Freedman, J., concurred.


text:
    JAMES C. BOLTON, et al., Appellants, v. HENRY CORSE, et al., Respondents.

      Stay of proceedings—when not granted upon ground that costs of former action have not been paid.

    A stay of proceedings in an action will not be granted upon the ground that the costs awarded the defendants in a former action involving the same issue,—e. g., the validity of a certain deed,— have not been paid, where the defendants in the action in which the stay is sought were not parties to the prior action, and, consequently, have no interest in the costs awarded therein.
    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided December 5, 1881.
    Appeal by plaintiffs from order staying proceedings in this action, until costs of a former action should be paid.

      James Clinton Bolton, for appellants.

      Johnston, Tilton & Brodslcy, attorneys, and Lewis Johnston, of counsel, for respondents.
   By the Court.—Sedgwick, Ch. J.

The present action is in ejectment. It would seem that the issue would be determined by an adjudication as to the validity of a deed made by one as executor. A former action had been brought by the present plain tiffs, to set aside that deed as a cloud upon title. The defendants in it were other persons than the present defendants. In that action the defendants had judgment and for costs. In this action the defendants claim under conveyances made since the judgment in the former action. They seem to derive their title from the deed which the first action was brought to cancel. On motion by defendants, proceedings in this action were stayed until the costs of the first action should be paid.

There is a precedent which, I think, required a denial of the motion below. In Simpson v. Brewster (9 Paige, 244), it appeared that the plaintiff had formerly brought a bill against the defendant for the same cause. That bill had been dismissed upon payment of costs. The costs, in fact, had not been paid. The defendant made a motion to stay proceedings, until plaintiff paid the costs. Chancellor W alworth held, that as the defendant had made an assignment of the costs, he had no interest in the application, which was denied.

The same fact appears here. The defendants have no interest in enforcing payment of costs to the defendants of the first action.

Order appealed from is reversed, and the motion is denied, and stay vacated with $10 costs to appellants, and disbursements to be taxed.

Speir and Freedman, JJ., concurred.


author: Per Curiam.

text:
    SERAPIO ARTEAGA, Respondent, v. WILLIAM C. CONNER, et al., Ex’rs, &c., et al., Appellants.
    Sheriffs—“ remand" for re-arrest of defendant for non-justification, of sureties—right to issue—liability of officers executing.—False imprisonment—Code of Procedure, §§ 188, 189.
    An indorsement made by the sheriff upon an undertaking given by a defendant upon his arrest, directing that defendant be “ remanded to jail for non-justification of the within undertaking,” &c., is not a judicial process, and affords no protection to the officer executing the direction, or to the jailer who confines defendant thereunder1, unless the sheriff, by virtue of his liability as bail, had authority to surrender such defendant.
    Where the justification of defendant’s sureties is postponed by consent of plaintiff’s counsel, the fact of knowledge by the sheriff of the existence of such stipulation, is immaterial, in an action against him for false imprisonment for arresting such defendant before actual default by his sureties, except as bearing upon the right to exemplary damages against the sheriff.
    Before Sedgwick, Ch. J., and Speie, J.

      Decided December 5, 1881.
    Appeal from a judgment entered upon a verdict of $1,000 for plaintiff, against William C. Conner,_ Brb and Watson.
    This case has been tried before, when verdict was directed for defendants. On appeal the verdict was set aside (46 Super. Ct. 91).
    The action was for alleged false imprisonment. The deceased Conner had been sheriff, and during his term, arrested plaintiff by virtue of an order of arrest. The plaintiff gave the usual underbaking with sureties. These were excepted to, and from time to time, the justification was adjourned, until finally it was stipulated that defendant have five days after the decision of a motion to vacate the order of arrest, within which to serve notice of justification. A deputy of the sheriff sent to the present plaintiff’s attorneys, a note that the undertaking should be approved of at once, either by the judge on justification, or by consent. The attorneys answered in a note which enclosed a copy of the stipulation. It was a question on the trial whether this note reached its address. After the sheriff’s term had expired, he wrote upon the undertaking the following: “ Serapio Arteaga is hereby remanded to jail for non-justification of the annexed undertaking, and James H. Brb is hereby deputized to execute the within remand,” and signed it as late sheriff. The defendant, Brb, thereupon, by virtue of the undertaking and its indorsement, arrested plaintiff and gave him into the custody of the defendant, Watson, who was warden of the jail, appointed by the sheriff in office. Watson committed him to jail. The time for justification of the sureties under the stipulation, had not expired.

      Vanderpoel, Oreen & Cuming, attorneys, and Almon Ooodwin, of counsel, for appellants.

      Nelson Smith & Leavitt, attorneys, and John Brooks Leavitt, of counsel, for respondent.
   Per Curiam.

There is a question made as to the liability of deféndant Watson. It is argued that his action in detaining plaintiff in jail was justified by the fact that the remand was regular in form or on its face, and he was therefore protected, as officers are, who execute process that is regular and valid in appearance. The remand was not a judicial process. The sheriff was no more than any other person would be who had become bail (Code of Pro. §§ 188, 189). His assertion of the existence of a fact, viz., that the bail had failed to justify, did not have any special force. It was the existence of the fact that would give authority to surrender. The jailer was bound to know that the person making the surrender had authority to make it.

It was also urged that it should have been left to the jury, as to whether notice of making the stipulation had reached the sheriff or any of his agents. In the first place, the letter containing the notice was admissible as affecting the measure of damages. There would have been ground for urging that, if the sheriff had received such notice, his action in arresting was so willful or malicious, that the plaintiff was entitled to exemplary damages. The objection to the letter was properly overruled. Afterwards, when the court held, that on the whole case, the plaintiff was entitled to only compensatory damages, it became immaterial for the jury to ascertain whether the notice had reached the sheriff.

The damages are not so large that the court can declare them to be excessive.

Judgment affirmed, with costs, and order denying motion for new trial, made upon the minutes, affirmed, with $10 costs.


author: Freedman, J.

text:
    JAMES O’CONNOR v. TIMOTHY O’CONNOR.

      Sheriff’s fees upon levy and sale under execution.

    The statutory provisions in relation to sheriff’s fees, in force prior to September, 1880, must be construed to mean:
    (1) That no fee or expense or disbursement incurred under executions against property, can be allowed, no matter what the exigency of the particular case, unless some warrant for the allowance can be found in the statute;
    (2) That the sheriff accepts office, upon the condition of performing its entire duties for such compensation as is specifically allowed by express provision of law, and without right to claim any other remuneration;
    (3) That this necessarily includes and limits the power of the sheriff to delegate to any other person any right to any extra compensation which he would not himself claim;
    (4) That even a promise to pay him extra compensation for services in the performance of his official duty, or such acts as are incidental thereto, is void;
    (5) That the policy of the law unmistakably is, that when its executive officers go among the people to lay hands upon their property, they should be allowed to proceed only under every needful restriction against the temptations to eat out the substance of the people by an increase, in magnitude or diversity, of the charges and expenses of official service.
    The items of a sheriff’s bill amounting to $1,169.06, considered by the court with reference to the above principles, and allowed at $143.96.
    The plaintiff does not forfeit his right to insist upon a taxation of the sheriff’s fees and expenses, by signing, after the sales under the execution against defendant, an account sales prepared by the sheriff, containing a statement of his fees, &c., no final settlement being had.

      It seems, that when, by the special request, and upon the promise to repay, of a party to the execution, and for his benefit or convenience, the sheriff performs a service or incurs expense, which by a proper discharge of his duty he is not bound to perform or incur, he may recover the amount from such party; but that he has no lien therefor upon the property levied on, and that it cannot properly be-allowed as a taxable item.
    What is sufficient, in the absence of a request to perform such services- or incur such expenses, to bind a party, considered by the court.

      Decided September 28, 1881.
    Motion, to tax sheriff’s fees and disbursements after sale on execution.

      Knox & McLean, for the sheriff, Peter Bowe, Esq. ,

      John D. Quincy, for the plaintiff, in opposition.
   Freedman, J.

The plaintiff in the above-entitled action obtained a judgment against the defendant, May 4,1880, for the sum of $2,851.96, and on the same day issued to the sheriff execution against the property of the defendant.

On May 10, 1880, the sheriff, through his deputy,. William F. Schneider, levied upon property of the-defendant, which consisted of the contents of three-grocery-stores, known as Nos. 631 and 776 Tenth avenue, and No. 1470 First avenue, in the city of New York, and at the request of the attorney for the-plaintiff to place keepers in charge, appointed one-man to watch the Tenth avenue stores, and another to-watch the First avenue store.

On May 17, 1880, the contents of the store No.. 776 Tenth avenue, in consequence of the termination of summary proceedings successfully prosecuted by the landlord of the premises for the dispossession of the defendant, were removed by the sheriff, by direction of the attorney for the plaintiff, to the store No. 631 Tenth avenue.

On May 18, 1880, the contents of the Tenth avenue stores were sold by the sheriff, at No. 631 Tenth avenue, and realized the stun of $2,360.63.

On May 19, 1880, the contents of the First avenue store were sold by the sheriff, and realized the sum of $340.25.

After the said sales, the sheriff failed to return the execution, until required to do so by an order of this court dated July 6, 1881. By order dated July 20, 1881, he was further required to present his bill of fees for taxation.

The sheriff now comes into court and insists that his bill for fees and disbursements has already been "adjusted and approved by the plaintiff personally, and that, as thus adjusted and approved, it should be allowed as follows, viz.:

On the sale of the Tenth avenue stores: Charges:

Auctioneer's commission, $236 00

Labor, . . 35 00

Catalogues, . . 10 00

Advertising, 4 60 $285 60

Sheriff's costs, &c.

Poundage, $32 63

Levy and return, 2 69

Noticing and posting sale, 10 00

Keepers' fees, 190 00

Labor, 150 00

Cartage, .125 00

Inventory, 25 00

Deputy's compensation, 150 00

685 32

$970 92

On the sale of the First avenue store : Charges:

Auctioneer’s commission, . $34 00

Labor, cataloguing, 5 25

Advertising, CO 80 43 05

Sheriff’s costs:

Poundage, 7 40

Levy and return, 2 69

Noticing and posting sale, 10 00

Inventory, 25 00

Keepers’ fees, 60 00

Deputy’s compensation, 50 00

. $155 09

$198 14

Total, $1,169 06

The claim is, that after the sales named there was a ■ meeting between the plaintiff and the deputy sheriff,, at the house of the latter, where the fees and charges were explained to the plaintiff, and that thereupon the plaintiff approved of them by signing the account sales. This is sworn to in general terms by the deputy sheriff, and several witnesses, who were closely connected with him in the execution of the process, and are interested in the result of this proceeding, but no definite particulars are given showing that an opportunity was given to the plaintiff, who was there without counsel, to clearly comprehend the matter. The plaintiff and several witnesses on his behalf, on the other hand, not only deny the alleged .explanation and approval, but detail a number of circumstances which, if true, show that plaintiff’s signature was obtained partly by trick and partly by threats. But, however the precise fact may have been, it is sufficient to say that, upon the sheriff’s own theory and showing, there was no estoppel. The policy of the law, which will presently be referred to, does not permit such a result. The sales had been made, the fees earned, and the disbursements incurred, and no final settlement was then had, nor did any since take place. No new responsibility, risk or expense was incurred by the sheriff on the faith of the alleged approval. In whichever aspect I may look at that branch of the case, I can come to no other conclusion than that the plaintiff did nothing amounting to a forfeiture of his right to insist upon a taxation of the sheriff’s fees and disbursements according to law.

The sheriff’s bill must therefore be considered upon its merits, and to that end the sheriff submits the following, viz. :

“ Sheriff’s Fees:

Poundage, 32., 63., 7.40, . . . 40.03

Levy and return, 2.69., 2.69., . . 5.38

Noticing and posting sales, $10., $10., . 20.00

Inventory, $25., $25., . . . 50.00

Expenses taking care of and preserving property :

To cash paid Charles Linderman, keeper, 60.00

“ “ “ William Ward, 50.00

“ “ “ James Dillon, “ 66.00

May 17, ’81.

To cash paid Frederick Boekhorn, cartage and labor, &c., in removing goods from 776 10th av., to 63110th av., . . 125.00

To cash paid Peter Feix, 111 E. 3d st., labor, handling' goods at 631 10th Av., 16 hours, . . . .6.40

To cash paid John Hefle, 111 E. 3d st., 16 hours, . . . . 4.80

To cash paid Denis Flynn, 10th av., 16 hours, . . . . $6.40

To cash paid Charles Zipf, 111 B. 3d st., 16 hours, . . . .4.80

To cash paid Charles Schneider, 413 Bleeckerst., 16 hours, . .4.40

To cash paid Hugh O’Donnel, 16 hours, 6.40

To cash paid William McCarthy, 16 hours, 5.60

May 18, ’80., at 631 10th At.

To cash paid Emil Dresler, all day labor, 5.00

To cash paid Chas. Zipf, all day labor, 5.00

To cash paid Peter Feix, all day labor, 5.00

To cash paid Charles Schneider, all day labor, . . . 3.00

To cash paid John Hefle, all day labor, 5.00

To cash paid Hugh O’Donnel, all day labor, . . . .5.00

Two men watching goods all night, $5.00 each, .... 10.00

May 19, ’81, at 1470 1st Av.

To cash paid Emil Dresler, labor, . 5.00

To cash paid Charles Zipf, labor, . 3.00

To cash paid John Hefle, labor, . . 3.00

To cash paid Charles Schneider, labor, 2.00 To cash paid Hugh O’Donnel, labor, . 3.00

To cash paid at request of O’Connors, for special messenger to court-house, for information as to injunction, . . 5.00

To cash paid various miscellaneous expenses, incurred and paid by deputy, 120.00

For additional compensation for trouble, &c., taking care of and preserving property, . . . .. 200.00

Paid auctioneer by agreement,

“City and County of Hew York, ss:

William F. Schneider, being duly sworn, says that he is the deputy who executed the above-mentioned process; that the foregoing disbursements have been actually paid or incurred by him in the course of his executing the said process.

“William F. Schneider.

“ Sworn to before me, this 18th )

. day of August, 1881. |

John H. Leary,

Notary Public,

1ST. Y. Co. (18).”

Before proceeding to the consideration of these items, it may be well to refer briefly to the provisions of law applicable to the case. As the services were rendered and the disbursements incurred in May, 1880, •and section 3307 of the Code of Civil Procedure did not go into effect until September, 1880, and as by express provision, the Code of Civil Procedure does not affect rights that became vested .before the time it took effect, the case is governed by the provisions of the Revised Statutes, as they existed in May, 1880. At common law, the sheriff was not entitled to charge anything for executing process. In this State the fees of sheriffs have been regulated by the statute, which also prescribed their duties. In addition, the Revised Statutes contained a general prohibition against the taking or receiving by any sheriff of any other or greater fee or reward, for any service, than that allowéd by law (2 Rev. Stat. 650, § 5); also, against demanding any fee or compensation allowed by law for any service, unless actually rendered (Id. § 6); and any violation of these provisions was made a misdemeanor and rendered the person guilty thereof, liable to the party aggrieved in treble damages (Id. § 7). It was also made the duty of every court at which a grand jury was summoned, to charge it specially to inquire into any violation of this law (Laws 1847, c. 455, § 17).

These statutory provisions have been construed to mean: 1. That no fee, or expense, or disbursement, incurred under executions against property, can be allowed, no matter what the exigency of the particular-case, unless some warrant for the allowance can be found in the statute ; 2. That the sheriff accepts office, upon the condition of performing its entire duties for such compensation as is specifically allowed by express provision of law, and without right to claim any other remuneration; 3. That this necessarily includes and limits the power of the sheriff to delegate to any other person any right to any extra compensation which he could not himself claim ; 4. That even a promise to-pay him extra compensation for services in the performance of his official duty, or such acts as are incident thereto, is void; 5. That the policy of the law unmistakably is, that when its executive officers go-among the people to lay hands upon their property, they should be allowed to proceed only under every needful restriction against the temptation to eat out the substance of the people by an increase, in .magnitude or diversity, of the charges and expenses of official service.

It is unnecessary to refer further to the authorities-upon these propositions than to say that a full collection and discussion of them may be found in the reports of the case of Crofut v. Brandt, which appear successively in 13 Abb. Pr. N. S. 128 ; 5 Daly, 124, and 58 N. Y. 106, in which case the sum of $19.29 only, was allowed, on a sheriff’s bill calling for $419.17.

It becomes important now to consider what‘the statutes in force in May, 1880, did allow to the sheriff for levying upon and selling goods under an execution. The sheriff was allowed :

For serving an execution- for the collection of money, six cents per mile for traveling to make service, in going from the court-house ; for collecting the sum of $250, two cents and five mills per dollar, ■and for every dollar collected more than $250, one cent and two and a half mills, which percentage is known as poundage ; for advertising goods and chattels for sale, two dollars; and if the execution be stayed or settled after advertising and before sale, one dollar; for returning a writ, twelve and a half cents ; and for receiving and entering the execution, fifty cents.

The fees thus fixed cover all that the law permitted •to be charged. With regard to the poundage, it has been repeatedly held that the statutory allowance of it covers every form of expense and disbursement and risk, which the sheriff may incur in the performance of his official duty in levying upon property under an ■execution, in taking charge of it, guarding it, and .arranging it for sale, as well as selling it. . It is only when, by the special request and upon the promise to repay of a party to the execution, and for his benefit nr convenience, the sheriff performs a service or incurs ■expense, which by a proper discharge of his duty he is not bound to perform or to incur, that he may recover the amount from such party. Even then, however, the authorities are that such additional service or expense constitutes no lien on the property levied on, and cannot be properly allowed as a taxable item, but that the sheriff has a right of action for the same.

True, there always was a class of cases, as for instance on attachment, in which, in addition to specific fees, the statute authorized such additional compensation for the sheriff’s trouble and expense in taking possession and preserving the property attached, us might be certified or allowed by the taxing officer. 'These cases are not in point here. In them the sheriff was not entitled to poundage, and hence the provision for a reasonable compensation to be allowed on taxation. But on an execution the sheriff was always entitled to poundage, whether he sold or not, and therefore had to look to that and his statutory fees for full compensation for his services, and all trouble, expense and risk necessarily incidental thereto.

Having now ascertained the state of the law at the time of the rendition of the services, I shall proceed to deal with the bill presented. As to most of the items contained therein it is quite vague and indefinite. Part of the disbursements claimed, are stated to have been paid or incurred in the year 1881, and part in 1880, which cannot be true. The bill is not even footed up. When that is done, it will be found to amount to $834.01, which is $335.05 less than the amount claimed in the account sales. The affidavit annexed to it is so peculiarly worded as to amount to very little, if any, proof, and resort must therefore be had to the other affidavits in the case. As a whole, I regret to be compelled to say, the bill is but another specimen of a class of bills that have always met with prompt and severe condemnation at the hands of the court whenever properly brought before it.

On proceeding to a minute examination, it will be seen that the difference between the amount of the bill as now presented, and the aggregate amount of the bills attached to the account sales, arises mostly from the fact that the bills last named' contain certain alleged commissions and charges of an auctioneer, while the one now presented, though claiming a payment to an auctioneer, mentions no sum. If such omission could be taken as a waiver of the claim, the point would be disposed of. But as on the argument it was strenuously insisted that the auctioneer’s commissions and charges should be allowed as they appear in the bills annexed to the account sales, I feel bound to say that no allowance can be made therefor, because, in the absence of a request from the plaintiff or his attorney to employ an auctioneer, the sheriff was bound to conduct the sale himself, and there is no evidence establisting such a request. A mere expression of satisfaction with the manner in which the sale was conducted, is not enough. Even a promise to pay, if made after the sale, is not sufficient unless founded upon a new and valid consideration. ¡Nor can the plaintiff be held bound for the auctioneer’s commissions and charges by reason of the fact that he was induced to.affix his signature to the account sales, and did sign them, in order to obtain a payment merely on account of the proceeds of the sale:

As to the amount charged for poundage, no question has been raised.

In place of the item of $5.38, charged for a double levy and return, all that can be allowed is :

Receiving and entering execution, . . .50

Return, . . . . .13

Travel, say five miles, . ' .,,.30

The item of $20, for noticing and posting sales, is also excessive. Assuming that' there were two separate and distinct sales made at the request of the plaintiff, all the sheriff can charge in the absence of proof of additional disbursements incurred, over and above those he was bound to incur, is :

Advertising sales $2.00 each, . . $4.00

Fee after advertising and before sales, $1.00 each, ..... 2.00

The item of $50 for making an inventory for each sale, is totally unauthorized. This service is covered by the poundage.

The remaining items charged for keepers’ fees, cartage and labor in removing goods from 776 to 631 Tenth avenue, hauling goods, labor, night watchmen, special messenger, various miscellaneous expenses, and additional compensation for trouble, are sought to be upheld on the theory that from May 4th to May 10th, at the request of the attorney for the plaintiff, made in consequence of the pendency of negotiations for a settlement between the plaintiff and other creditors and the defendant, the sheriff delayed to make an actual levy ; that on May 10, the attorney for the plaintiff gave direction to place keepers in charge of the stores, and on May 16th, directed the removal of the contents of store No. 776 to No. 631 Tenth avenue, with a promise to reimburse the sheriff for the expenses of such removal; and that subsequently the plaintiff, on several occasions, assured the sheriff that he' should be well paid for his trouble and expense. The evidence, indeed, does show, and it is conceded, that the attorney for the plaintiff did make the request and give the directions and promise as stated, and that subsequent to the sale the plaintiff made assurance as mentioned. Now, so far as the sheriff’s “trouble” is concerned, the evidence fails to show that, in consequence of the directions or promises stated, the sheriff or his deputy personally performed any extra service, and as to all acts which the sheriff was bound to perform as a part of his duty, the promises of liberal pay for “trouble” were, as above shown, void. It cannot be claimed that the delay from May 4th to May 10th, in making a levy, constituted an extra service, or caused the sheriff extra trouble, nor did it add to his responsibility or risk, because it was done pursuant to the request of the attorney who issued the execution, and hence, I do not see how the amendment introduced by subd. 7 of section 3307 of the Code of Civil Procedure, could help the sheriff, even if it did apply to the present taxation. And, finally, I must reiterate that in no case does the law permit the sheriff to delegate to his deputy or any other person, any right to any extra compensation which he cannot himself claim. Under these views, the item of $200, for “additional compensation for trouble,” &c., is wholly destitute of any legal foundation.

The item of $120, for “various miscellaneous expenses incurred and paid by the deputy,” could only be allowed as an actual disbursement upon proof of the details and the character of the alleged expenses, and that they were reasonably incurred at .the special request of the plaintiff or his attorney in a matter outside of the strict official' duty of the sheriff. The burden to show this is upon the sheriff. But he has wholly failed to do this. That item must consequently be disallowed. For the same reasons the charge of $5.00 for a special messenger must be disregarded.

The items remaining to be considered are claimed to represent the expenses incurred by the sheriff in placing keepers in charge, and in removing the goods of- one store to another, for the purpose of sale. In complying with the directions of the attorney for the plaintiff upon these points, the sheriff acted outside of his official duty, for the benefit or convenience of the plaintiff; for all he was bound to do was to remove the goods levied upon, at once, to his own storeroom, and advertise them for sale, and this entitles him to a recovery of the expenses reasonably incurred by him for that purpose. Here, again, the sheriff’s proof is fatally defective in not showing the necessity and reasonableness of all the expenses claimed as actual disbursements. Some of these he undoubtedly incurred, but to what extent he can justly lay claim to compensation, it is not easy to determine, as the affidavits widely differ as to the extent, reasonableness and necessity of the greater portion of them. Under these circumstances, I might, under the authorities, well rule that the sheriff’s right to such compensation is only a right of action, and constitutes no lien on the proceeds in his hands, and consequently cannot be allowed on taxation, which is limited to the -adjust-me.nt of mere statutory fees and allowances. But as the plaintiff waived the point and, in view of the long delay already had, and in order to end litigation, expressly consented that a reasonable compensation should be allowed therefor in this proceeding, and furthermore, as the sheriff may be assumed to have made the best presentation of the facts of his case-which the case is capable of, 1 deemed it my duty to-determine the question. To that end I carefully examined all the proofs submitted, and the conclusions reached are as follows: Upon the claim for keepers’ fees, an allowance should be made for the services of Wm. Ward, who had charge of the Tenth avenue stores, from May 10th to May 18th, a period of nine days, and for the services of Chas. Lindeman, who had charge of the First avenue store, from May 10th to May 19 th, a period of ten days. There being no proof that they watched day and night without interruption, or that they slept on the premises, or even that they were-there continuously during the day-time, an allowance of three dollars per day to each of them, to which the-plaintiff has consented, is a sufficient compensation.

The claim for two special night watchmen at Mo. 631 Tenth avenue, during the night from May 17 to-May 18, must be disallowed in view of the fact that during the whole of that night the auctioneer was therewith five assistants bo arrange for the sale on May 18.

As to the removal of the goods from Mo. 776 toMó. 631 Tenth avenue, the fair inference from the mass of conflicting statements upon the point, is that six men, two wagons and two drivers, were engaged in it. The wagons consisted of a one-horse cart and a two-horse truck. It does not appear how many loads, were actually removed, nor does the proof show the-real magnitude of the undertaking, except that, beyond the facts already stated, it further appears that the-removal was effected in the course of one day. From all that appears, $3 per day, for each of the men and drivers employed; $6, for the one-horse cart; •and $10, for the two horse truck; amounting together to the sum of $40, seems to be an ample allowance.

For the reasons stated, the sheriff’s bill is hereby taxed as follows:

Poundage, . $40.03

Receiving and entering execution, 50

Return, ... . 13

Travel, . , . . 30

Advertising sales, $2.00 each, 4.00

After advertising and before sales, 2.00

Compensation of Wm. Ward, as keeper, nine days, .... 27.00

Compensation of Chas.Lindeman as keeper, ten days, .... 30.00

Expenses for removal of goods from No. 776, to No. 631, Tenth avenue, , . 40.00

Total, . . ... $143.96

Let an order be entered accordingly.


author: Speir, J., Sedgwick, Ch. J.—“

text:
    WILLIAM S. VERPLANCK, Receiver, &c., Respondent, v. MARCUS KENDALL, Appellant.
    Before Sedgwick, Ch. J., and Speir, J.

      Decided December 20, 1880.

      Stay of proceedings for non-payment motion costs—costs of appeal not motion costs—waiver.—Code Civil Procedure, §§ 768, 779, 3,239.
    Appeal from an order entered at special term, denying a motion to stay plaintiff’s proceedings on the trial, or to adjudge plaintiff’s proceedings stayed, under section 779 of the Code of Civil Procedure, until the payment by plaintiff of costs on an appeal theretofore awarded defendant by the general term, on the reversal of an order of compulsory reference of the action.
   Speir, J.,

writing for affirmance, said : “I am of the opinion that the putting the cause on the calendar and the giving or accepting a notice of trial, waives the stay under section 779 of the Code.....

“It is only costs of motion which are referred to in section 779. A motion is defined in section 768, 4 An application for an order is a motion, and when granted is a direction of the court or judge.’ An appeal taken to the general term, asking for a judgment of reversal of the order made below, is not made by a motion for an order, but the appeal is made upon notice. . . .

“ Section 8,239 clearly makes a distinction between the disposition to be made of costs of a motion directed by an order to be paid, and the costs of an appeal from an order.”

Sedgwick, Ch. J.—“

I concur, on the ground that,, within the meaning of section 779, ‘ costs of a motion,’ are not costs of an appeal from an order.”

Alvin Burt, for appellant.

W. W. Badger, for respondent.

Order affirmed, with costs.


text:
    ADALINE T. SMITH, Respondent, v. JOSEPH STAGG, et al., Appellants.
    Before Sedgwick, Oh. J., and Russell, J.

      Decided December 20, 1880.

      Amendment upon the trial.—Judge's charge as to covenants in lease.

    Appeal by the defendants from a judgment entered on the verdict of a jury.
    The action was for breach of the covenants of a lease.
    The court at General Term, after a statement of the facts, held that an amendment of the complaint on the trial, which fixes upon a defendant sued as surety on a lease, a liability as principal, on the ground that the person for whom he was surety was in reality only his agent in the transaction, cannot be allowed.

      Also, that it is error for the judge to charge unqualifiedly that the defendant was bound to surrender the premises, &c., in as good condition as they were when he took them, where the covenant shed on provides that they shall be surrendered in as good condition, &c., “damage by the elements, reasonable wear and tear, &c., excepted.”

      Arnoux, Hitch & Woodford, attorneys, and William H. Arnoux, of counsel, for appellant.

      Randolph B. Martine and Charles A. Jackson, for respondent.
   Opinion by Horace Russell, J.; Sedgwick, Ch. J.. concurred.

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


text:
    MARGARET C. WOTTON, Appellant, v. CHARLES WISE, et al., Respondents.
    Before Sedgwick, Ch. J., and Russell, J. ■

      Decided December 30, 1880.

      Landlord and tenant—covenant to surrender in good condition, right of action on, when accrues—waste—waiver of by receipt of rent, &c.—improvements cannot be offset against.—Judge's charge, error in, how cured.

    Appeal by the plaintiff from a judgment entered apon the verdict of a jury.
    The action was against the defendants, as sureties, for breach of covenants of a lease made by plaintiff’s assignor to. the Progress Club.
    It was agreed in the lease that the club should keep the building and premises in good order, make all necessary repairs during the term, and it was “expressly agreed and understood that said party of the second part (the club), may make alterations and additions on the premises only upon the consent of the party of the first part, according to plans and specifications to be approved of and consented to by said party of the first part. . . . And at the expiration of the said term, the said party of the second part will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damage by the elements excepted.”
    The plaintiff claimed that alterations, to which neither she nor her assignor consented, in the internal arrangement of the house, by the removal of mantels, partitions, &c., of such a character as to be a breach of the covenants above quoted, were made.
    After reciting portions of the charge of the judge upon the trial, the court, at General Term, said : “It cannot be presumed that the lessor, by the mere fact of receiving the rent of premises from the lessee, knew that the lessee had been taking down partitions and removing mantel-pieces; and so the reception of the rent did not amount to an acquiescence on the part of the lessor in such alterations.
    “The manner in which alterations might be made was expressly agreed upon. If other alterations amounting to waste were made, the lessor might have had no reason to suppose the premises would not be restored before they were surrendered. This right of action on that covenant would not accrue until the termination of the lease. The mere reception of the rent during the term of the lease, could not amount to acquiescence in a waste, or in alterations in the nature of waste (Kling v. Dress, 5 Robt. 521; People’s Bank v. Mitchell, 73 N. Y. 406; Pike v. Butler, 4 Id. 360; French v. New, 28 Id. 147).
    “The error committed by the learned judge was not cured when, upon an exception being taken to this portion of his charge, he merely withdrew it, by consent of the defendant’s counsel (3 Graham and Waterman on New Trials). He ought to have correctly stated the true rule, so that the jury would not be misled.
    “ Alterations of partition's and removals of mantels,5 were waste or in the nature of waste (Keilway, 37 B. note 10 ; Dorr v. Jones, 4 B. and Ad. 126; 2 Rolle Abr. 815 ; Rolt v. Lord Summerfield, 2 Abb. Eq. 759 ; Taylor on Landlord and Tenant, § 348).
    “The defendants could not offset any benefits to the property against injuries by them in the nature of waste. That being so, the real question of damages was, how much the premises were injured by the unauthorized alterations which they had made, not whether the premises, by reason of their improvements, were of greater or less value than when let.”

      William H. Arnoux, for appellant.

      B. N. Huntingdon, for respondents.
   Opinion by Horace Russell, J.; Sedgwick, Oh. J., concurred.

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


text:
    IRWIN A. WILLIAMS v. HENRY B. SHUTE.
    Before Sedgwick, Ch. J., and Russell, <T.

      Decided December 30, 1880.
    Appeal by the sheriff of the city and county of New York from an order directing him to admit the defendant to the iail liberties.

      Knox & McLean, for the sheriff;

      Man & Parsons, for defendant.
   No opinion.

Order affirmed, without costs.


text:
    JOSEPH M. KOEHLER, Appellant, v. SOLOMON ADLER, as Administrator, &c., Respondent.
    Before Speir and Freedman, JJ.

      Decided February 7, 1881.

      Ghech—giving of, raises presumption of payment, not of loan.

    Appeal from judgment in favor of defendant, and from order denying plaintiff’s motion for a new trial upon the minutes.
    The action was brought to recover a sum of money alleged to have been loaned by the plaintiff to defendant’s intestate.

      The action has been twice tried. Upon the first trial, a verdict was directed by the court in favor of the plaintiff. The court of appeals (78 N. Y. 287), reversed the judgment entered on the verdict, and ordered a new trial, upon which the jury found a verdict for the defendant.
    On this trial, as on the other, the plaintiff produced a check dated January 30, 1871, on the Bull’s Head Bank for $2,500, drawn by him to the order of the defendant’s intestate, and by him indorsed, and also indorsed by Farmer & Baum. On the back of this check the plaintiff had written the following indorsement: “ Received, New York, September 23, 1874, from Mr. Jacob Adler, two hundred and fifty dollars on account of the amount of this check. $250. J. M. Koehler.”
    The court at General Term, said : “It is not claimed that this check is evidence of money loaned, but, on the contrary, the presumption is that it was paid upon some debt or obligation owing by the plaintiff.” And, after consideration of the evidence, the court held that the verdict was neither against the evidence or the weight of evidence, and that none of plaintiff’s exceptions were well taken.
    Arnoux, Ritch & Woodford, attorneys, and William Henry Arnoux, of counsel, for appellant-

      Boardman & Boardman, attorneys, and Samuel Boardman, of counsel, for respondent.
   Opinion by Speir, J.; Freedman, J., concurred.

Judgment and order appealed from affirmed, with costs.


text:
    R. RENTON MARTINO, Respondent, v. THE COMMERCE FIRE INSURANCE COMPANY, Appellant.
    Before Speir and Freedman, JJ.

      Decided February 7, 1881.

      By-lam of corporation—may be disregarded by board of directors.— Contract'of employment by corporation.

    Appeal from a judgment in favor, of the plaintiff, entered on the ■ verdict of a jury, and from an order denying defendant’s motion for a new trial, on the minutes.
    The action was brought to recover the balance of salary claimed by the plaintiff to be due to him from the defendant.
    On or' about January 1,1878, plaintiff was employed by defendant for the year at a salary of $1,500. On June 3, 1878, the defendant having determined to go into liquidation, a resolution was passed at a regular meeting of its board of directors, instructing the officers to notify the employees that their services would not be required after June 30, 1878.
    In pursuance of that resolution, the plaintiff was dismissed on September 12, 1878, and this action was brought to recover the proportion of his salary from that day, to January 1, 1878, with interest.
    The defendant claims that the plaintiff’s removal was justified under one of its by-laws, and the act authorizing the making thereof, of which by-law the following is a copy: 1 ‘ The President shall hold his office during the term for which he shall be elected, unless .removed by cause; and other officers, clerks and

      messengers during the pleasure of the board;” that under this by-law it was not in the power of the board of directors or of the president and secretary of the committee to make an employment of the plaintiff, which was not terminable at the pleasure of the board. Defendant moved to dismiss the complaint upon the 'plaintiff’s evidence, on this ground, which motion was denied, and defendant excepted.
    It, appeared that the board delegated power in. regard to the employment of officers or clerks, to an advisory committee, and it was under the advice of that committee that a reduction of salaries and re-engagement of employees for. the ensuing year, took place about January 1, 1878. The proposition contained in these minutes of such committee, was communicated to, and accepted by the plaintiff, after taking some time for deliberation.
    The court at General Term, said: “ The plaintiff was dealing directly with the defendant’s board, and the question of authority of the defendant’s secretary and president has no relevancy in the case, so far as the January interview was concerned, when the contract in suit was consummated. After all, the by-law in question was a mere rule of conduct, imposed on itself, by the defendant, for its own benefit and convenience, and could be set aside at any time, as it clearly was within the power of the board to disregard, its own rules.
    “There is nothing in the by-law which forbids the defendant from entering into a special contract with, the plaintiff, whereby the clerks should hold their positions ‘ during the pleasure of the board.’ ”

      Scott & Crowell, attorneys, and W. H. Scott, of counsel, for appellant.

      Johnson, Qantine & Doming, attorneys, and H. E. ,Deming, of counsel, for respondent. .
   Opinion by Speir, J.; Freedman, J., concurred.

Judgment and order affirmed, with costs.


text:
    ANDREW J. PARKER, Appellant, v. WILLIAM C. CONNER, as Sheriff, &c., Respondent.
    Before Speir and Freedman, JJ.

      Decided February 7, 1881.

      Transfer of property by debtor—effect of, as against creditors.—Execution out of court of common pleas on marine court judgment.

    Appeal by plaintiff from a judgment entered in favor of the defendant upon the verdict of a jury, and also from the order denying plaintiff’s motion for a new trial upon the minutes.
    The court at General Term, said : “The. court below was called upon to submit to the jury the question whether the sale or transfer by Halloran to the plaintiff was, or was not made in trust for the use of Halloran, or whether it was or was not made with the intent to hinder, delay or defraud the creditors of Halloran. In the first case itwas void against the then existing or subsequent creditors of Halloran, and in the second against the creditors so hindered, delayed or defrauded. . . .
    “The point that the executions offered in justification were absolute nullities, because they were issued out of the court of common pleas upon judgnients recovered in the marine court, though transcripts of the judgments had been duly filed, cannot be sustained. There is not only statutory sanction for the course pursued, but the court of common pleas has held, in several well-considéred cases, both under the marine court act of 1872, and the act of 1874, that in such cases the executions must issue out of the court of common pleas. Whether the court of common pleas was deprived of that jurisdiction by the act of 1875, need not be considered now, because that act was passed after the executions had been issued.
    “ The admissibility of the Percy execution in mitigation, was determined on a former appeal in this case (44 Super. Gt. 416).”

      George Wilcox, for appellant.

      Vanderpoel, Green & Quming, attorneys, and Almon Goodwin, of counsel, for respondent.
   Opinion by Freedman, J. ; Speir, J., concurred.

Judgment and order affirmed, with costs.


text:
    JOSIAH WALKER v. JOHN C. SPENCER, Impleaded, &c.
    Before Speir and Freedman, JJ.

      Decided February 7, 1881.
    Cross-appeals from interlocutory judgment directing accounting.

      Daniel T. Robertson, attorney, and James M. Smith, of counsel, for plaintiff.

      Hatch & Tan Allen, for defendant.
    Freedman, J., wrote for affirmance ; Speir J., concurred.
   Judgment affirmed upon the opinion rendered below, without costs.


text:
    JAMES H. CHAMBERS v. WILLIAM H. APPLETON, et al.
    Before Speir and Freedman, JJ.

      Decided February 7, 1881.

      Right of clerk to charge for making return to court of appeals.—Code Civil Procedure—§§ 3801, 3284.
    Appeal by plaintiff from order denying his motion that the clerk be compelled to deliver his return to the court of appeals, on an appeal taken by the plaintiff to that court from an order of the general term.
    The court at General Term, said: “In the matter of Townsend v. Nebenzahl, in the supreme court, Daniels, J., in a well-considered opinion delivered on that occasion, showed that no authority exists either in the parties, or their counsel, to compel the clerk to accept the return prepared for his certificate as it .may be presented to him, but that the clerk has a duty to perform in seeing to it that the return is a proper one, and that for that service he is entitled to charge the legal rate of fees, which is not less than five cents for each folio of the return. This rate is expressly allowed by section 3301 of the Code of Civil Procedure, and probably was intended as a check upon frivolous appeals. The fact that the clerk of this court has no personal interest in the matter, but under section 3284, must-pay the fees so received into the city treasury, cons ti-, tutes only an additional reason for the enforcement of the statute. The case reported in 5 How. Pr. 12, does not conflict with the foregoing views, for it simply holds that after a charge of five cents for every hundred words has been made, no additional charge for the certificate or for the signature to the certificate, can be made.”

      W. W. Badger, for appellant.
   Opinion by Fbeedman, J.; Speib, J., concurred.

Order affirmed.


text:
    MIGUEL D. ALDAMA, Appellant, v. FRANCIS F. LASALA, Respondent.
    Before Speib and Fbeedman, JJ.

      Decided February 7, 1881.
    Appeal from order of the special term, denying a motion for leave to file and serve exceptions to certain findings of fact of referee nunc pro tunc, after appeal to the court of appeals.

      Horace Secor, Jr., for appellant.

      Starr & Hooker, attorneys, and George H. Starr, of counsel, for respondent.
   No opinion.

Order affirmed, with costs.


text:
    BENJAMIN WRIGHT, as Receiver, &c., Respondent, v. ELBERT NOSTRAND, et al., Appellants.
    Before Speir and Freedman, JJ.

      Decided February 7, 1881.
    Appeal by defendants from an order adjudging that plaintiff’s proceedings in this action are not stayed by the operation of a previous order, which required plaintiff to file either security for the. costs of this action, or the “written consents, duly proved and acknowledged,” of the judgment creditors represented by plaintiff as receiver, that this action be brought at their respective risks.

      Thomas & Wilder, attorneys, and Edward P.Wilder, of counsel, for appellants.

      Henry D. Betts, for respondent.
   Per Curiam.

The order appealed from must be affirmed, with costs.


text:
    THEODORE F. SANXAY, Respondent, v. WILLIAM H. BROWNING, et al., Appellants.
    Before Speir and Freedman, JJ.'

      Decided February 7, 1881.

      John H. Bird, for appellants.

      D. J. Hewland, for respondent.
   Per Curiam.

This is an appeal from an order appointing a referee to hear and determine. The order must be affirmed, with costs.


text:
    JOHN THORNTON, et al., Appellants, v. ROBERT CROWLEY, Respondent.
    Before Speir and Freedman, JJ.

      Decided March 7, 1881.

      Trade-mark—infringement of—what constitutes.

    Appeal from judgment dismissing plaintiffs’ complaint upon the merits.
    This action was brought to restrain the defendant from the use of two labels used by him on papers of needles sold by him. The plaintiffs brought it as the representatives of the firm of James Smith & Son, of England, who are manufacturers of needles, and whose labels it is claimed the defendant fraudulently simulated.
    The complaint-alleges, among other things, “ that before the needles manufactured by said James Smith & Son are distributed to dealers in the United States, by the plaintiffs, they are usually packed into small packets or wrappers of twenty-five needles, each bearing the firm name of James Smith & Son, as a trademark, printed, pressed or stamped on labels. of two colors, red and blue, &c., &c., facsimiles of which labels are annexed; that such needles are known throughout the United States by two principal colors of packets and wrappers, viz. : red and blue, the red-label containing a crown stamped or pressed in said label, with, the words and letters ‘ Jas. Smith & Son’s Genuine Drill’d Ey’d Sharps (x) Warranted, John Thornton,’ running from No. 1 to 12, separate and assorted; and the blue label con taining the royal British coat of arms printed in black ink, with the words or letters ‘ Jas. Smith & Son’s Improv’d Drill’d Ey’d Sharps,’ running from No. 1 to 12, separate and assorted, warranted John Thornton, all of which appeals more plainly and fully in the foregoing labels forming a part of this complaint; and that the needles of the other manufacturers have never been enclosed in packets bearing labels of precisely the shade of colors nor the design of said labels and the printing and impression thereon, and adopted by said James Smith & Son as aforesaid, except in a simulated form by the defendant, Robert Crowley, as hereafter more particularly referred to, and others.”
    The court at General Term, said: “It is now so well settled that it is no longer necessary to cite authorities, that a trade-mark may consist of marks, forms, symbols or even words in common use, provided they are used in such a way as to designate the true origin or ownership of the article and have not already been appropriated by others in connection with the same article. In case of prior appropriation of part, or parts, by others, the combination-of the plaintiff, as a whole, must be new, and intended and calculated to designate origin or ownership. No right accrues to the use of mere generic words used to designate the article or its quality.
    “ In every case in which the interference of a court of equity is sought for the protection of a label or trade-mark, the plaintiff must, first of all things, bring himself within these rules. When he has done that, the court, upon proof of infringement, will liberally protect him, not because he has any property in the word or words or the combination, but upon the principle that defendant’s imitation constitutes a fraud upon one who has established a trade and a reputation. Plaintiff’s prior and exclusive right to the use having been established, the test is whether the imitation is calculated to deceive purchasers. Upon the question of tendency to deceive it, may not be necessary to show that a person giving ordinary attention, or any attention, is likely to be misled. Perhaps it is sufficient that the careless and unwary may be misled. Upon this point the authorities are not uniform. But before the court can be called upon to apply any test at all, plaintiff’s prior and exclusive right must be clearly established.
    ‘c In the case at bar, the plaintiffs failed to establish, such prior and exclusive right as was necessary to sustain the action.”
    After consideration of the testimony, the court farther said: “Upon this state of facts the learned chief justice who tried the case below, was correct in finding:
    “ ‘ First. The particulars, ■ except the firm name of James Smith & Son, and the name of agent, which make up the labels used by the plaintiffs and set forth in the complaint, have been used for many years in labels of the same character as such labels of the plaintiffs commonly and rightfully by persons engaged in the needle trade.
    “ ‘ Second. The appearance of such labels of the plaintiffs apart from the names aforesaid is such an appearance only as results from an ordinary and rightful use of these particulars in an appropriate manner without the intention of making by such use a definite effect of the whole taken together.
    “ ‘ Third. These particulars are not so employed in such labels of plaintiffs that an original design or combination has resulted which can be perceived and considered by itself apart from its components.

      ‘Fourth. The labels of the defendant which are set forth in the complaint could be mistaken for the aforesaid labels of the plaintiffs only on account of a resemblance in these particulars used in an ordinary and rightful manner as aforesaid.
    “ ‘ Fifth. The name of defendant’s firm appears prominently on his aforesaid labels, in the ordinary mode of observation, would be read first, and is conspicuously different from the firm name upon the plaintiff’s aforesaid labels.’
    “Upon these findings, the defendant was entitled to a dismissal of the complaint on the merits. The case of Walton v. Crowley (3 Blatchf. 440), is distinguishable in this, that in that case the defendant claimed the privilege of using a label similar to that of James Smith & Son, with the name of Smith at the top, on the ground that a firm of like name existed in this country, needles of which firm he had on sale. It was the use of this name which chiefly caused the court to order the temporary injunction. The present case is analogous to Popham v. Wilcox (38 Super. Ct. 274 ; affirmed 66 N. Y. 69), and should be determined by the same rule that was applied there.

      Coolz <& Schuclz, attorneys, and Douglas Campbell and George C. Lay, of counsel, for appellants. •

      'Albert G. McDonald, attorney, and Charles W. Sloane, of counsel, for respondent.
   Opinion by Freedman, J.; Speir, J., concurred.

Judgment affirmed, with costs.


author: Sedgwick, Ch. J.,

text:
    PETER HAULENBECK, Respondent, v. SPENCER HEACOCK, et al., Impleaded, &c., Appellants.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ,

      Decided April 4, 1881.
    Appeals by the appellants, severally, from an order enjoining each of them from collecting judgments obtained by them respectively.

      Armstrong <6 Briggs, for appellants.

      Whitehead & StacJcpoole, for respondents.
   Sedgwick, Ch. J.,

wrote for affirmance of order appealed from, as to both appellants, with $10 costs, and disbursements; Freedman and Truax, JJ., concurred.


text:
    DAVID M. HUGHES, Appellant, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Respondent.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ,

      Decided April 4, 1881.

      Trustee to receive income for benefit of bondholders, &e.—when incapacitated by removal to foreign country—right to delegate trust—right to receive income and consequent compensation, when waived.

    Appeal from judgment dismissing complaint on the merits.

      . This action was brought to recover damages for non-employment of the plaintiff by the defendant under a certain trust deed or mortgage executed November 30, 1864, to secure $1,500,000 of bonds issued by the defendant. A sufficient statement of-the pleadings appears in 45 Super. Ct. 114.
    By the mortgage in question, the plaintiff and John P. Yelverton were appointed trustees for the purposes therein mentioned, and to be compensated for the services which they might render, as therein prescribed. Mr. Yelverton died about January 1, 1867. In May, 1866, the plaintiff left the city of New York and went to France, where he resided ever since. Once in two years he returned to this country upon visits lasting from three to five weeks each. On July 1, 1875, the plaintiff gave to N. A. Cowdrey a power of attorney under seal, purporting to authorize Cowdrey to perform all the duties of trustee. Thereupon a majority of the bondholders, assuming to act under a provision of the mortgage, appointed the Farmers’ Loan and Trust Company as trustee under the mortgage in place of Yólverton, deceased, and Hughes, incapacitated. The appointment was accepted by the trust company.
    The court, at General Term said : “ On an application made by the trust company to the supreme court to enjoin the plaintiff from acting, the general term of that court (11 Hun, 130) held that the plaintiff had. incapacitated himself from acting as trustee by removing to a foreign land and becoming a resident thereof, and that under the mortgage he could not make a complete delegation of his powers and duties as trustee to an attorney in the manner attempted by him. Upon a careful examination of the case at bar we cannot help arriving at the same conclusion.....
    “ The appellant insists, however, that at all events he was in the city of New York from April 10, 1865, to May, 1866, and that the action should be sustained for at least that period, because a number of the bonds known as the Chamberlain bonds could and should have been redeemed with the income of this period. A number of these bonds were in fact so redeemed. But the payments were made directly by the company to Mr. Chamberlain, and without any dissent on the part of the plaintiff, though he knew of it......
    “ Whatever his rights, with reference to these Chamberlain bonds, or the income applicable to them during the years 1865 and 1866, may have been originally, they were clearly waived by him.”

      Charles D. Ingersoll, for appellant.

      C. W. Bangs, attorney, and F. N. Bangs and Francis L. Stetson, of counsel, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Truax, J., concurred.

Judgment affirmed, with costs.


text:
    PETER HAULENBECK, Respondent, v. WILLIAM S. B. HEACOCK, Impleaded, &c., Appellant.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided April 4, 1881.

      Receiver—security of, discretion of court as to.

    Appeal from order denying defendant’s motion to compel the receiver in the action to substitute a new bondsman in the place of one who had become insolvent.
    The court, at General Term, said: “The receiver appointed in this action, which is for a dissolution of partnership, before entering upon his duties,' duly gave a bond in the penalty of $12,000, with two sureties who were approved .as good and sufficient. When thereafter, one of these sureties became insolvent, it rested in the sound discretion of the court whether new security should or should not be required. The application for new security rested solely upon the fact of the insolvency of one of the sureties. The receiver, on the other hand, showed that the value of the property which came into his hands amounts to only $500, and that the remaining surety is worth $75,000. Under these circumstances the discretion of the court was well exercised in denying the application.”

      Armstrong & Briggs, for appellant.
   Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Order affirmed, with costs.


text:
    JOHN T. CAMP, Appellant, v. LORIN INGERSOLL, et al., Respondents.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided April 4, 1881.

      Action to recover value of shares of stock—when referable as involving long account.—Award of arbitrator.

    Appeal from an order directing the issues to be tried by a referee. The plaintiff’s contention is that the law does not authorize a reference in a case like the present.
    The action was brought to recover the value of three thousand three hundred and eighty-two shares of stock of the Heath & Smith Manufacturing Company, which was decreed to be paid by the defendants to the plaintiffs’ assignor by Charles O’ Conor as arbitrator. By the award, which is part of the answer, and a necessary part of plaintiffs’ case, it appears that the value of the stock is to be ascertained in a certain way, namely, by determining the value of the assets of the company in November, 1871, less, of course, its debts.
    The Heath & Smith Manufacturing Company was a corporation engaged in tin manufacture at Portland, Connecticut. Its assets consisted of forty acres of land, ten buildings, a large quantity of tools and machinery, a number of patents, and several hundreds of different kinds of tin ware, manufactured, unmanufactured, and in process of manufacture, besides open accounts and bills receivable, and on the trial it will be necessary for the plaintiff to prove the value of these assets to make out his case.
    The court, at General Term, said: “It is not a case of market value, but of actual and true value, for what the award really requires is, that the defendants account for the value of the share of plaintiffs’ assignor of those assets, the accounting to be had by ascertaining the actual and true value of the property of the corporation at a certain time, deducting therefrom its debts, and allowing to plaintiffs’ assignor the proportion of the remainder which three thousand three hundred and eighty-two shares bear to the whole of the stock of the company.
    “The trial of the action will, therefore, necessarily require the examination of a long account within the intent and meaning of the section of the code authorizing a reference in such a case, as that intent and meaning has been defined by this court in Hossack v. Heyerdahl (38 N. Y. Super. Ct. 391).”

      I. T. Williams, for appellant.

      A. T. Compton,. for respondents.
   Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Order affirmed, with costs.


author: Br the Court. — Freedman, J.

text:
    RICHARD THOMPSON, Respondent, v. EMANUEL HOFFMAN, Appellant.
    Before Freedman and Truax, JJ.

      Decided April 4, 1881.
    Appeal from judgment entered upon the verdict of a jury, and from order' denying defendant’s motion upon the minutes for a new trial.

      B. F. Einstein, for appellant.

      Alex. B. Johnson, and John A. Mapes, for respondent.
   Br the Court. — Freedman, J.

The case was fully and fairly tried, and submitted to the jury under a charge to which no valid exception lies, and the jury having found for the plaintiff, their verdict should not be disturbed. It was a case for the jury, and there is no merit in any of the exceptions.

The judgment and order should be affirmed, with costs.

Truax, J., concurred.


text:
    ROWLAND L. HAZARD, et al., Respondents, v JOHN R. CASWELL, et al., Appellants.
    Before. Sedgwick, Ch. J., Freedman and Tbit ax, JJ.

      Decided April 4, 1881.

      Trade-mark—successorship in business, and right to me trade-mack.— Huwer v. Dannenhofer (Ct. App.) distinguished.

    Motion for a reargument of an appeal decided by the general term of this court, March, 1880 (46 Super. Ct. 559).

    The court, at General Term, said: “ The reargument is asked for on the sole ground that the court of appeals in Huwer n. Dannenhofer, which has been decided since the decison of this case, substantially overrules the decision in this case. The judge who tried this action found, among other things, that the plaintiffs are the sole successors of the firm and to the business of the former copartnership of Caswell, Hazard & Co. (of which the defendant Caswell was a member), with the right to trade under that name, and that as such successors, and by virtue of the instruments executed and acts done by the defendant Caswell, the plaintiffs have acquired exclusive property rights in the trade-mark and label in suit and are the sole proprietors thereof. These findings have been sustained by the general term of this court, on the ground that they are warranted by the evidence.
    “It was found in Huwer v. Dannenhofer that nothing was said at the time of the sale to the plaintiff (in that case) about the good-will of the business, or about the trade-mark, and that there was no reference. to the trade mark in the bill of sale. In these respects the cases differ.
    “The court of appeals say, however, that the defendants could by agreement vest the exclusive right to use the trade-mark in the plaintiff. This court has found, in this case, that the defendant Caswell has vested the plaintiffs with this right.”
   Opinion by Text ax, J.; Sedgwick, Ch. J., and Feeedman, J., concurred.

Motion denied, with costs.


text:
    WILLIAM G. FLAMMER, Respondent, v. HARRY C. GREEN, Appellant.
    Before Sedgwick, Ch. J.; Feeedman and Textax, JJ.

      Decided April 4, 1881.

      Copartnership—what sufficient ground, for dissolution.

    Appeal from judgment entered upon the decision of . the special term.
    The action was brought to dissolve a copartnership. The court, at General Term, said: “ The learned judge found among other things that the defendant had collected before the commencement of this action, a large sum of money belonging to the copartnership, and had appropriated the same to his own use, without accounting therefor to the plaintiff, and had endeavored to conceal from the plaintiff the true amount so collected and appropriated. This finding was warranted by the evidence. This finding warrants the conclusion of law, that the partnership should be dissolved.”

      Thomas H. OooTc, attorney, and Daniel T. Walden of counsel, for appellant.

      John L. Lindsay, for respondent.
   Opinion by Tbuax, J.; Sedgwick, Oh. J., and Fbeedman, J., concurred.

Judgment affirmed with costs.


author: Peb Cubiam.

text:
    GEORGE T. STEARNS, Respondent, v. CYRUS W. FIELD, Appellant.
    Before Sedgwick, Ch. J., Fbeedman and Tbuax, JJ.

      Decided April 4, 1881.
    ■ Appeal from judgment entered on verdict against defendant.

      Dorsheimer, Bacon & Deyo, for appellant.

      Barlow & Olney, attorneys, and Francis O. Bar-» low, of counsel, for respondent;
   Peb Cubiam.

Judgment affirmed, with costs.


author: Opinion pee Curiam.

text:
    JOHN HASATT v. EDWARD M. TOWNSEND.
    Before Sedgwick, Ch. J., Fbeedman and Tbuax, JJ.

      Decided April 4, 1881.
    . Complaint dismissed, and exceptions ordered to be heard at general term in first instance.

      O. J. Wells, for plaintiff.

      North, Ward & Wagstaff, attorneys, and Lang-don Ward, of counsel, for defendant.
   Opinion pee Curiam.

Exceptions overruled, and judgment to be entered, with costs.


author: Pee Cueiam.

text:
    SAMUEL I. HUNT and PETER R. WARNER, Exrs., &c., et al., Respondents, v. PETER LAWLESS, Appellant.
    Before Sedgwick, Ch. J., Fbeedman and Teuax, JJ.

      Decided April 4, 1881.
    Appeal from judgment entered upon the report of a referee.

      Lewis A. Brigham, attorney, and George V. N. Baldwin, of counsel, for appellant.

      Smith & Woodward, attorneys, and William, Fullerton, of counsel, for respondent.
   Pee Cueiam.

— The judgment and order are .affirmed, with costs, on the opinion of the referee.


text:
    JAMES McKENNA, Appellant, v. THE MAYOR, &c., Respondent.
    Before Sedgwick, Ch. J., and Tbuax, J.

      Decided April 4, 1881.

      Obstructions to highway—what constitute—when amount to nuisance— liability of municipal corporations for.—New York city.

    Appeal from a judgment dismissing the plaintiff’s complaint.
    The action is brought to recover $10,000 damages for injuries sustained by the plaintiff from falling into an excavation in and adjoining the sidewalk in front of the building known as No. 452 Broadway, in the city of New York.
    At the close of the plaintiff’s case the judge at the trial dismissed the complaint, refusing the request of the counsel for plaintiff, to submit the question of defendant’s negligence to the jury, and delivered the following opinion:
    “Any encroachment upon or obstruction of a public street in the city of New York, during the course and in consequence of the erection of a building on the line of the street, can, even if done under permit from the corporation, be justified only by the necessities of the case. Whenever extended or prolonged beyond this, the encroachment or obstruction becomes a nuisance. Whoever creates or maintains such a nuisance becomes liable to any one who without fault on his part, sustains an injury therefrom; and if it exists for a length of time sufficient to make its existence notorious, and to afford a reasonable opportunity to the corporation, through its agents charged with that duty, to learn of its existence, the corporation becomes liable if it fails in its duty to abate it.
    “Under the statutes and laws relating to the city of New York, it is one of the general duties of the corporation to keep the streets safe and free and clear, and in the discharge of that duty the proper officers must exercise a reasonable supervision during the erection of buildings, in order to prevent the continuance of nuisances, which, as experience teaches, will occur in spite of legislative enactments. For a failure in that respect the city may be made to respond in damages.
    “But the difficulty in plaintiff’s case is that the accident cannot be said to have been caused by any encroachment upon, or obstruction of, the sidewalk, though the sidewalk has been for some time more or less obstructed and encroached upon in consequence of the destruction of -the building with others by fire. The temporary bridge upon which' he stepped, and which was built so as to come close up to the line of the front of the building, though in a certain sense an encroachment upon, and an obstruction of, the public highway, was not the cause of the accident. Plaintiff says he saw it when he stepped upon it. The planking of it did not give way under him, nor is there any evidence that either by insufficient strength or in some other way it contributed. On the contrary, the bridge seems to have been of sufficient strength, and hence, for the purposes of the case, the highway itself was secure enough. The mere fact that no lights were upon the bridge, creates no liability on the part of the corporation, though it may against those who had charge of the erection of the building. The corporation performed its duty in that respect by the passage of the ordinance requiring the owner or contractor to do so. .
    “The accident-was caused by the existence of a hole'alongside of the highway and within the line of the building. That hole consisted of an open space under a window-sill, in the front of the building then in process of erection. All other parts of the front had been boarded up, and if this open space had been boarded up like the rest, the accident would not have happened. It was only two feet six inches in height, and, indeed, it is somewhat strange that the plaintiff fell into it. But he did. How, it seems to me, it is of no use to claim that the city authorities were bound to see to it that the bridge, which had a railing on its westerly side, was provided with another on the easterly side, on which the accident happened, because on that side the house front, when properly boarded, was sufficient. The windowsill itself was just as good as, if not better than,- a railing. It was in about the same height from the floor of the bridge that the railing, if any, would have been put, and, if the manner in which the plaintiff must have fallen, for he himself remembers nothing at all about it, is considered, a railing would not have saved him any more than the window-sill did; for between him and that open space walked his sister, and she it must have been that fell first and dragged him down ; but it does not even appear how she came to fall.
    “The only cause of the accident, therefore, was the existence of that open space under the window-sill. It should have been boarded up like the rest of the front of the house.
    “How, assuming that in every aspect of the case it was a nuisance for which those who had charge of the erection of the building are .liable, the corporation can be held, if at all, only upon the additional proof that it existed sufficiently long to attract the attention of the proper officers. Upon this point the nature of the nuisance is an important element. The bridge at that time had existed from one to four days, but no longer. But there is no proof whatever as to the length of time this opening existed in the manner it was found to exist on the night in question. The whole remaining front of the building having been boarded up, the authorities had a right to assume that this open space under the window-sill would be secured in the same way, at least at the close of the work of each day.
    “ When, therefore, the peculiar nature of this nuisance is considered, the corporation can be held liable only, if at all, upon strict proof of its notorious existence, and of the continued neglect of those in charge of the building to do their duty in the premises.
    “ Plaintiff’s case, even in the aspect most favorable to him, fails to come up to these requirements, and consequently his complaint must be dismissed.”

      Richard O'* Gorman, attorney, and W. O. Trull, of counsel, for appellant.

      William O. Whitney, corporation counsel, and G. P. Andrews, assistant corporation counsel, for respondent.
   Per Curiam.

Judgment herein is affirmed, on the opinion of Judge Freedman, on dismissing the complaint.


text:
    MADISON AVENUE BAPTIST CHURCH, Appellant, v. THE BAPTIST CHURCH IN OLIVER STREET, Respondent.
    Before Sedgwick, Ch. J., and Speir, J.

      Decided May 2, 1881.
    Appeal from a judgment entered upon the report of Hon. Wm. Mitchell, the referee appointed “ to hear and determine the issues,” finding the sum of $70,607.94, due frop the plaintiff to the defendant, and ordering foreclosure and sale of plaintiff’s church property, unless within two months that sum, with interest and costs, is paid.
    The court, at General Term, after consideration of the opinion of the court of appeals herein (73 If. 7. 82), and the principles and manner of conducting the accounting below, and various questions of law and fact arising thereon, said: “The order to be made upon this appeal will require the modification of the judgment as to amount, in the respects which have been stated. I have no doubt that the amount of this modification can be ascertained on settlement of order, without remitting the case to the court below for that purpose. The judgment will stand affirmed as modified. The action should then be remitted to the court below, for the purpose of the proper proceedings being there taken, to bring in the trust mortgagees as parties, with liberty to either.party to begin such proceedings.”
    “The plaintiffs should have the costs of this appeal, to be charged against the amount found due by present judgment to defendants.”
    Stanley, Langdell & Brown, attorneys, and Addison Brown, of counsel, for appellant.

      William B. Martin, attorney, and Sam. Hand, of counsel, for respondent.
   Opinion by Sedgwick, Ch. J. ; Speib, J., concurred.

Judgment as above directed.


author: Freedman, J.,

text:
      ANN FITZPATRICK, Respondent, v. MICHAEL CURLEY, Impleaded, &c., Appellant.
    I. Fraudulent assignment or transfer.
    1.' Money judgment against assignee or transferee in action by judgment creditor of assignor or transferrer, to set aside assignment or transfer, is error.

    Before Sedgwick, Ch. J., Freedman and Truax, JJ,

      Decided May 2, 1881.
    The facts in this case are substantially the same as those in Murtha v. Curley (ante, p. 393); the only difference of moment being that in this case the plaintiff prayed that the chattel mortgage be declared fraudulent and void. She did not, however, pray for "an accounting, but she asked for arid obtained against the defendant, Michael Curley, an absolute money judgment for the amount of the claim. From which judgment the appeal was taken.

      Starr db Hoolcer, attorneys, and Geo. H. Starr, of counsel, for appellant.

      Adolphus D. Pape, attorney, and H. J. Bennett and H. B. Hathaway, of counsel, for respondent.

       Consult Cooke v. Smith, 3 Sandf. Ch. 333.

   Freedman, J.,

wrote for reversal; Sedgwick, Ch. J. , and Truax, J., concurred.

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


author: Truax, J.,

text:
    WILLIAM H. GARNER v. DARIUS R. MANGAM, et al.
    Before Sedgwick, Ch. J., Freedman and .Truax, JJ,

      Decided May 2, 1881.
    Exceptions ordered to be heard at general term in the first instance.

      James 8. Or eves, attorney, and Alexander Thain7 of counsel, for plaintiff.

      Huntley & Bower, Ernest T. Fellowes, and Richard H. Huntley, for defendants.
   Truax, J.,

wrote for judgment on the verdict for plaintiff; exceptions overruled ; Sedgwick, Ch. J.. and Freedman, J., concurred.