author: Beadley, J.:

text:
    Joseph Van Camp, Respondent and Appellant, v. Edward P. Searle, as Late Sheriff of the County of Orleans, and Others, Respondents, George C. Buell and Others, Appellants and Respondents.

      Lien of attachments — priority of executions — sufficiency of affidavits used, to obtain an order for — when attachments will be granted against an executor — attorney’s lien.

    Where the affidavits used by certain of the creditors of an absconding debtor to obtain warrants of attachment (although they state thht the debtor departed from the State of New York with intent to defraud his creditors and to avoid the service of the summons upon him) fail to state any facts tending to sustain such charge, they are insufficient to sustain the attachments against a motion to vacate them. But where no such motion is made, and the money is paid ta such creditors upon their judgments and the executions issued thereunder in the actions wherein the attachments were granted, in discharge of their liens, the question of the insufficiency of the affidavits is not, as against such attaching creditors, available to other creditors of the common debtor in an action brought to ascertain and determine the rights of the attaching creditors.
    Where the summons in such an action is served by publication, the affidavit upon which the order for publication was obtained must comply with the statute in order to give the court jurisdiction. If the affiant does not comply willi the
    . statutory requirements the order of publication and the judgment will he void, and the plaintiffs will acquire no rights under or through mesne or final process issued thereunder.
    So far as process which comes to the hands of the sheriff is regular on its face, he is justified in executing it.
    General executions provided for by section 1369 of the Code of Civil Procedure-were issued to a sheriff upon judgments recovered against an absconding debtor and were paid by the sheriff, and thereafter the amounts were refunded to such sheriff by the parties receiving the same, and special executions, in accordance with the provisions of section 1370 of the Code of Civil Procedure, were issued to him, upon which he paid respectively the amounts of such executions — the former executions being irregular and the latter regular upon their face for the purpose of payment from the proceeds of attached property.

      Held, that the error was cured hy the refunding of the money, the issuing of executions in proper form and the satisfaction of them, although, the term of his office having expired, the sheriff had ceased to be such at the time the second executions were issued to him;
    That the proceeds, applicable to the discharge by payment of the liens of the attachments, might be deemed to have been held hy the sheriff for that purpose until paid in satisfaction of the second executions issued to him.
    It was recited in an attachment that it appeared by affidavit “that the said defendant has absconded from the county of Orleans, the place of his residence, with intent to defraud his creditors.” The affidavit upon which the attachment was issued stated the ground for the application to be that said debtor had departed from the State where he resided with intent to defraud his creditors, and certain facts were therein mentioned in support of such allegation.

      Held, that although the recital of the attachment was not a sufficient ground for the issuance of such process, yet that, the attachment being supported by the allegation in the affidavit, the incomplete recital in the process was not fatal to its validity.
    The provisions of section 1870 of the Code of Civil Procedure apply to an execution issued upon a judgment recovered in an action in which an attachment is issued and levied and the summons is not personally served. An execution in such an action issued in the form prescribed hy section 1869 of the Code of Civil Procedure is void.
    It is not required by statute that the execution upon which a sale of real property is made must be specified in the notice or certificate of sale.
    The purpose of the levy of an attachment upon real property is to create a lien as of that time and such is its effect.
    A judgment recovered in an action wherein an attachment has been issued, for the purpose of the execution of such judgment, relates to the time when the attachment was levied, and when the property is sold by the sheriff upon an execution issued on a judgment which was a prior lien to that of the attachment, the lien of the attachment is available in its relative order, upon the proceeds of the sale for the purpose of satisfying the judgment of the attaching creditor, or so much of it as the fund applicable to its payment will satisfy.
    As to personal property, the execution first delivered to the sheriff is the first lien, although a levy is first made thereon by virtue of an execution subsequently delivered to him, but, to constitute the levy of an attachment upon real estate, it is necessary that the sheriff file with the clerk of the county in which the real property is situated a notice of the attachment, stating the names of the pai'ties to the action, the amount of the plaintiff’s claim, as stated in the process, and a description of the property levied upon, which notice must be also subscribed by the plaintiff’s attorney.
    The levy of an -attachment is essential to make it available as a lien, or to create by it security for the payment of the judgment which may follow.

      It is the duty of the sheriff to whom an. attachment is delivered to levy it upon the property, real and personal, of the defendant, and, if there be more than one attachment, to levy them in the order in which they are received by him. If he neglects to levy such process he may be liable to the plaintiff for the consequence of his failure to do so.
    The execution of the lien of an attachment is contingent upon the recovery of a judgment in the action in which the attachment was issued, and, as an actual levy is necessary to create the lien of an attachment upon property, when several attachments are levied upon the same real property, the order of preference or priority would be the same, and founded upon the like reason as that applicable to the levy of attachments on personal property.
    Where a firm of attorneys has rendered services and paid out money in an action (which resulted in a judgment in favor of their client), and in other actions relating to the subject-matter of the first action (such services and disbursements equalling in value the amount of the judgment), such attorneys may be regarded as the equitable assignees of the judgment, and they have the right to satisfy their lien by process of execution.
    The plaintiff, in an action brought to compel an accounting by an executor, is not entitled to an attachment, the statute not permitting the issuance of such process in such an action; but a warrant of attachment may be issued if the purpose of the action be to recover the amount of property and moneys which a former executor had converted to his own use, so far as the same remain unadministered by him, and if, for the purpose of such remedy, the existence of special circumstances be required to justify the Supreme Court in entertaining the action, such circumstances are shown by proof of the fact that the executor has left the State and is not subject to the jurisdiction of the Surrogate’s Court.
    Where services are rendered by attorneys to an executor in his capacity as such the liability of such executor therefor to his attorneys is personal.
    Appeals by the plaintiff, Joseph Yan Camp, and by the defendants, George C. Buell and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orleans on the 30th day of December, 1892, upon the decision of the court rendered after a trial at the Orleans Special Term.
    The action was brought to have ascertained and determined the rights of the parties other than the sheriff to, and for the distribution of, the proceeds which came to the sheriff’s hands of the property of Benjamin F. Yan Camp, their debtor.
    The proceeds of his real estate were....... $6,175 00
    Less the sheriff’s fees for charges and
    expenses............................ 103 75
    Leaving...........$6,071 25

      Tbe proceeds of tlie grass and fruit on the
    premises............................ $387 48
    Less bis charges, etc.....;............... 35 53
    Leaving..................................... $351 95
    The proceeds of personal property sold .... $3,225 47
    Less his charges........................ 225 56
    Leaving..................................... 2,999 91
    The proceeds of the accounts collected..... $510 12
    Less his charges........................ 3 05
    Leaving................. 507 07
    Making together............................. $9,930 18
    The parties commenced actions against such debtor and proceeded to judgment against him, and in many of them warrants of attachment were issued against his property to the defendant Searle as sheriff of Orleans county.

      George Bullard, for the appellants Orleans Co. N. Bank and Sawyer.

      Horace McGuire, for the appellants Buell & Bloss.

      Hamid N. Salisbury, for the plaintiff and defendants Keeler & Salisbury.

      S. E. EilJdns, for the respondent Searle, sheriff.

      Signor <& Wage, for the respondents Blood and Jefferey.

      John Ounneen, for the respondent Halloek.

      Thompson <& Spencer, for the respondents Rice and Briggs.
   Beadley, J.:

The purpose of the action is the determination of the rights of the parties, other than the defendant Searle as sheriff, to the proceeds of the property of Benjamin F. Yan Camp. He was treated as an absconding debtor. And in more than twenty actions instituted against him warrants of attachment against his property were issued and delivered to Searle, the sheriff of Orleans county. Some of them were levied upon his personal property, and the others and the most of them were levied upon both real and personal property. And although, after the levy of the attachments, a large number of judgments were entered upon his confession, the controversy in this action has relation mainly to those parties in whose behalf attachments were issued and levied on thif property of the debtor. The defendant Searle, as sheriff, paid out of the proceeds of the personal property the amounts of the judgments recovered by defendants Mary J. Blood, Dellie W. Blood, Bidelman, Chester, Coann and Rice, and returned the executions issued upon their judgments satisfied. He also paid to defendant Bruner ninety-six dollars and sixty-five cents of the amount of his execution. "Warrants of attachment were issued in the actions in which those judgments were recovered, and the levy of them by the sheriff upon the personal property was prior to that in behalf of any other of the parties, and those payments, with the sheriff’s fees and poundage, exhausted all the proceeds of the personal property except $110.82.

The payment of the executions in favor of the defendants Blood is challenged for the alleged reason that their warrants of attachment had not the support of affidavits sufficient to justify their issue, and a like objection is made to the order for service of the summons by publication. The affidavits to obtain those attachments wer§ alike in their provisions, and while they stated that Van Camp had departed from this State with the intent to defraud his creditors and to avoid the service of a summons upon him, they failed to state any facts tending to support such charge, and were, therefore, insufficient to protect the attachments against a motion to vacate them.

But no such motion was made, and, as the money had been paid upon their judgments and executions in discharge of the lien, the question of the insufficiency of the affidavits is not, as against those parties, available to the appellants. (Code Civ. Proc. § 682; Woodmansee v. Rogers, 82 N. Y. 88.)

As the summons in each of those actions was served by publication, the sufficiency of the affidavits was essential to bring the actions within the jurisdiction of the court, and if they did not come up to the statutory requirement in support of the order of publication the judgments were void, and the plaintiffs in them acquired no rights under or through mesne or final process in their actions. (Fischer v. Langbein, 103 N. Y. 84.)

The view taken is that the affidavits, upon which the orders of publication were founded, were such as to render the service of the: summons made in each of those cases effectual.

The objection urged against the application of the payment to the satisfaction of Bidelman’s execution relates only to the sufficiency of the affidavit upon which the attachment was issued. So far as the-defendants JBidelman, Chester and Rice are concerned, what has-been said about .the payment of the executions of the Bloods is. applicable to them, and in a like manner to the amount paid upon defendant Bruner’s execution.

As Coann is not a party to this action no inquiry is required about the payment of his execution. And so far as the processes which came to the hands of the sheriff were regular on their face, he was. justified in the execution of them. (Savacool v. Broughton, 5 Wend. 170; Sheldon v. Van Buskirk, 2 N. Y. 473; Woolsey v. Morris, 96 id. 315.)

The first executions which came to him upon the judgments of defendants Blood -were general executions provided for by section 1369 of the Code of Civil Procedure, and he paid them. After-wards, and before those defendants became parties to this action,, they refunded to defendant Searle the amount so paid them, and. thereupon special executions, according to the provisions of section 1370, were issued to him, and he paid to them thereon respectively the amounts of the executions. The former were irregular and the: latter were regular upon their face for the purpose of collection or payment from the proceeds of the attached property. The error1 was cured by the refunding of the money and the issue of the executions in proper form, and the satisfaction of them, although by expiration of the term of his office the defendant Searle had ceased to be-sheriff at the time the second executions were issued to him. (Code, § 706.)

The proceeds applicable to the discharge by payment of the liens-of their attachments may be deemed to have been held by him for that purpose until paid in satisfaction of the executions issued to-him, which were regular in form. (Lynch v. Crary, 52 N. Y. 184.)

Anri there seems to be no difficulty about the regularity on their face of the attachments and executions of the parties to whom the payments were so made, other than the attachment of the defendant Bidelman and the execution of the defendant Bruner.

In that attachment it was recited that it appears by the affidavit “ that the said defendant has absconded from the county of Orleans, the place of his residence, with intent to defraud his creditors.” The statute provides that the warrant must briefly recite the ground of the attachment.” (Code Civ. Proc. § 641.)

The recital in the Bidelman attachment is not a statutory ground for the issue of such process. (Id. § 636.) In the affidavit upon which it was issued the ground stated for the application is that Van Camp had departed from this State, where he resided, with the intent to defraud his creditors, and some facts and circumstances .are there mentioned intended to support that allegation. And •although somewhat slender they are ■ such as to justify that conclusion and give support to the attachment. For that reason the .incomplete recital in the process is not fatal to its validity.

The execution issued upon the judgment recovered by-the defendant Bruner is not set out in the record, but the court found that it was issued in the form prescribed by section 1369 of the Code.

This was irregular, and as the provisions of section 1370 are Imperatively applicable to an execution issued upon a judgment recovered in an action in which an attachment is issued and levied .and the summons not personally served, the execution was void. (Place v. Riley, 98 N. Y. 1.) The sheriff, therefore, was not justified in making payment upon that execution. The question as to the validity or regularity of the payments made upon the executions of defendants Bidelman and Bruner is not raised by exceptions of any of the appellants other than Keeler and Salisbury.

The real estate of Van Camp upon which attachments were levied was sold by virtue of executions on the 15th day of February, 1889.

And on the part of the appellants other than Keeler & Salisbury and the plaintiff it is insisted that the proceeds of the sale were .applicable only to the executions which were in the sheriff’s hands at the time of the first publication of his notice of sale and at the time the sale was made, and that in consequence the proceeds of .the sale were not applicable to the execution of the Cornelia Brown judgment, tlie executions upon tbe judgments of Adason Kelsey, as administrator, etc., and of Keeler & Salisbury, or any of them.

By the notice first published October 29, 1888, the sheriff advertised the real estate for sale on the fifteenth of December following. In that notice he stated that by virtue of several executions issued out of the Supreme Court to him directed and delivered against the property of Benjamin F. Yan Camp, lie had seized all the right, titlb and interest which Yan Camp had in the real property described, on June 11, 1888, or at any time thereafter, and that he would expose such property for sale December 15, 1888, at the hour and place mentioned. By notice dated the latter day he stated that the sale was postponed until February 15, 1889. And by further or supplementary notice, dated December 18,1888, by him subscribed, the sheriff stated that by virtue of several attachments and executions issued out of the Supreme Court, wherein Orleans County National Bank and John G. Sawyer respectively were plaintiffs and Yan Camp defendant, he had levied upon the right, title and interest which Yan Camp had in the property described in the foregoing notice (before mentioned) on the 14th day of June, 1888, or at any time thereafter, and would sell the property on February 15, 1889, and then stated the amounts of such judgments of the bank and Sawyer. The property was sold on that day, and from the time of such postponement up to the time of the sale all of those notices were published together weekly.

By the certificate of sale the sheriff certified that he sold the property by virtue of executions issued on judgments recovered against Yan Camp by TIallock, Briggs, Buell, Bloss & Buell, Orleans County National Bank and Sawyer respectively for the amounts stated in the certificate. The attachments in behalf of those judgment creditors were issued to the sheriff in the order they are above named except those of the bank and Sawyer. They were issued to him at one and the same time.

If the proceeds of the sale should be applied only to the payment of the executions in the sheriff’s hands at the time of the sale they would thereby be fully satisfied. But such is not the judgment entered upon the direction of the trial court.

The distribution of the proceeds directed by the judgment was that they be applied to the payment of the Brown judgment and to •those of the attaching creditors in the order in which the attachments had been delivered to the sheriff.

The execution before mentioned uj>on the Brown judgment was issued pursuant to an order granting leave to issue it, and on or about the 1st day of December, 1888, was delivered to the sheriff; ■and although the original notice of sale had then been published for some weeks, the notice of postponement with that following it, ¡as we have seen, was duly published and given by the sheriff for at least six weeks after the receipt by him of such execution. And there is no available objection founded upon the notice why the sale may not properly have been made by virtue of that execution. There was none in the fact that the sheriff stated in the notice that he had seized the right, title and interest which Van Camp had in the land on June 11, 1888. That was the day on which the first .attachment "was delivered to him: The lien of the Brown judgment was then prior to that of any of the attachments, and, so far as .■appears, there was no lien upon the premises between the time ■of the entry of such judgment and June 11, 1888.

The statute does not require that the execution U|:>on which a sale •of real property is made be specified in the notice or certificate of ■sale. (Code Civ. Proc. §§ 1434, 1438.) If, as it thus far appears, the sale may have been made by virtue of the Brown execution pursuant to the notice given by the sheriff of the sale, he was not at liberty to treat the sale as made only upon the other executions in his hands at the time óf the sale. It must, therefore, for aught that yet appears, be deemed to have been made by virtue of that execution as well as of those mentioned in the certificate of sale.

The executions of the attaching creditors Keeler & Salisbury and' .Kelsey, as administrator, etc., were on the day of and prior to the sale withdrawn from the sheriff, and immediately after the sale •executions upon their judgments were placed in his hands. It is urged on the part of the appellants other than the plaintiff and Keeler & Salisbury that those creditors, by withdrawing the executions, denied to themselves the right to have their judgments paid from the proceeds of the sale. This'is so unless the levy of them ¡attachments saves their right to share in such proceeds. The executions evidently were withdrawn to enable those creditors to redeem the property from the sale if they should be so advised. This they could not do if their executions had remained in the sheriff’s hands at the time of the sale, as then the sale would have been made on them as well as the others held by him. (Code Civ. Proc. § 1457; Ex parte Paddock, 4 Hill, 544.)

But those whose executions were withdrawn were attaching creditors, and their attachment liens were prior to those of the other appellants, and, assuming that the premises were sold upon the execution issued upon the Brown judgment, which was a lien senior to that of any of the attachments, the sale was such as to vest title, when perfected, in the purchaser, free from the lien of them, and it would seem that the proceeds, for the purposes of the lien of the attachments, became the substitute for the property upon which they were levied, else there would be no remedy of those attaching creditors whose executions were not in the sheriff’s hands at the time of the sale, other than that of redemption. . This would practically deny to them any benefit of the lien of their attachments.

The pui’pose of the levy of an attachment upon real property is to create a lien as of that time, and such is the effect of it, so that when a judgment is recovered in the action, it, for the purpose of the execution of such lien, has relation to the time the attachment was levied, and when the property is sold by the sheriff upon an execution issued on a judgment which is a prior lien to that of the attachment, the lien of the latter is available in its relative order upon the proceeds of the sale, for the purpose of satisfying the judgment of the attaching creditor, or so much of it as the fund applicable to its payment will satisfy. This was the right of all those creditors in the present case whose attachments were effectually levied upon the real property which was sold, whether or not their executions were in the hands of the sheriff at the time of the sale. (Code Civ. Broc. § 641.) And, therefore, the creditors whose executions were withdrawn from him, as before mentioned, were not, by the withdrawal of them, prejudiced in their right to take payment from the fund in the order of the lien of their attachments. For the purpose of obtaining such payment executions, in behalf of all the creditors to whom 'payment was by the judgment herein directed to be made, were issued and delivered to the sheriff.

It is insisted that the judgment recovered by Cornelia Brown against Van Camp was not effectual to support the execution issued upon it, or to require the payment of it by the sheriff, because it had been set off against an equal amount of judgments of Van Camp against her; this had been done by an order of the court on his motion, but the order provided that such offset should not prejudice any lien which the defendants Keeler & Salisbury had upon the Brown judgment. They, as appears by the evidence and facts found by the court, were attorneys and counselors at law, constituting the firm of Keeler & Salisbury, and as such had rendered services and paid out money for- her in the action in which the judgment was recovered, and in other actions relating to the subject-matter of that action, and such services rendered and disbursements made by them for her, and at her request, were at least equal in value and amount to that of such judgment.

They may be regarded as the equitable assignees of the judgment. (Haight v. Holcomb, 16 How. 160.) And they had the right to make it available by process of execution to satisfy their lien charged upon it. (Code Civ. Proc. § 66; Martin v. Hawks, 15 Johns. 405; McGregor v. Comstock, 28 N. Y. 240; Goodrich v. McDonald, 112 id. 157.) Those attorneys did not consent that any set-off be made of the judgment to the prejudice of their lien, and it was preserved by the terms of the order. And no reason appears why the existence and extent of their lien was not properly established by evidence in this action in support of the execution in their behalf as found by the trial court.

It is urged by the learned counsel for the appellants bank and Savryer that the cause of the Kelsey action was not such as to permit the issue in it of the attachment in his behalf.

Prior to the time of the commencement of that action Benjamin E. Van Camp had been the executor of the last will and testament of Amos Kelsey, deceased, and, having failed to render his account as such, left the State under the circumstances which he did; his letters testamentary were by the surrogate revoked, and Adason Kelsey was appointed administrator with the will annexed, and thereupon the latter, as such administrator, commenced his action against Van Camp and caused an attachment therein to be issued against his property. The complaint was of considerable length, and by it, amongst other things, the plaintiff alleged that Van Camp, having property and money of the Kelsey estate in his hands, had been required, and failed to render to the surrogate bis account; that he had been removed from his position of trust as executor and the letters testamentary issued to him revoked, and that he had wrongfully and unlawfully disposed of and converted the said property and moneys to his own use to the damage of said estate of the said Amos Kelsey of the sum of ten thousand dollars.” Judgment against him was demanded accordingly.

The ground of the attachment, as recited in it, was that the action was brought to recover a sum of money only as damages for a wrongful conversion of personal property as will more fully appear by the complaint, and that a cause of action exists against said defendant in favor of said plaintiff for the sum stated in said affidavit, * * * and that the defendant Benjamin E. Yan Camp has departed from the State of New York, where he has been a resident, and with the intent to cheat and defraud his creditors and to avoid the service of a summons upon himself.”

The complaint may import the purpose to recover against the defendant therein as for a conversion of personal property, and as such the action came within those cases in which the statute permits the issue of an attachment.'

But, in view of all the allegations of the complaint, such was not necessarily the nature of the action, nor was it of the recovery, as appears by the facts proven before the referee and by his report upon which the judgment was entered.

If, as insisted on the part of those appellants, the action was for an accounting as such, the plaintiff in it was not entitled to an attachment and none could issue, because it would not then have come within the provisions of the statute permitting the issue of such process. (Code Civ. Proc. § 635; Thorington v. Merrick, 101 N. Y. 5; Ackroyd v. Ackroyd, 20 How. 93.)

And it has been held in Morse v. Smith (42 N. Y. St. Repr. 168) that unless special circumstances exist to permit an action therefor it will not be entertained to require an executor or administrator to render an account, as for such purpose the jurisdiction of the Surrogate’s Court is deemed exclusive (Code Civ. Proc. § 2472, subd. 3) and whether, in the absence of such circumstances, this court has jurisdiction for such purpose was questioned in Hard v. Ashley (117 N. Y. 606).

The defendant in the Kelsey action bad ceased to be executor at the time it was commenced. It was, therefore, not brought to require Van Camp to account with a-view to have him administer the estate which had come to him of the decedent. Its purpose was to recover the amount of the property and moneys which he had as executor taken into his possession, so far as the same remained unadministered by him. And if for the purpose of such remedy special circumstances were required they existed in the fact that he had left the State and was not subject to the 'direction of the Surrogate’s Court. So far as related to the money into which he had converted the assets which came to him he had only partially administered them, and the plaintiff was entitled to the money.

And no reason appears why he could not maintain an action to recover it. In Walton v. Walton (1 Keyes, 15; 4 Abb. Ct. App. Dec. 512; 2 Abb. N. S. 428) it was held that such an action was maintainable by an administrator de lonis non against the personal representative of an executor who had died without having fully administered the assets which came to him. And Judge HogebooM there remarked that an action may be brought by the plaintiff “ to recover the property against any person in possession of it; trover or replevin if it exist in specie, * * * or assumpsit or other appropriate action if it has been converted into money.”

The action was not necessarily one for an accounting, but, in view of what followed, may be treated as an action to recover the amount of money which in the execution of his trust Van Camp had derived from the assets which came to him as such executor, and which he was liable to pay over to the plaintiff, his successor. And it seems that, before the plaintiff in that action proceeded to judgment, Van Camp returned to this State and stipulated that on June 4, 1888, there was in his hands $1,840.31 in money belonging to the Amos Kelsey estate; that such money was subject to the payment of $622.62 to Keeler & Salisbury for legal services, etc. And he stipulated that judgment might be taken in the Kelsey action against him for $1,840.31, and interest from June 11, 1888, with costs. The judgment was accordingly entered December V, 1888. We are inclined to think that the action was well brought by Kelsey as administrator, etc., against Van Camp, and that the alleged cause of action was such as to permit an attachment to issue.

The defendants Keeler & Salisbury, baying commenced against Van Camp tbeir action to recover for professional services performed for him in liis matters as executor, etc., of Kelsey, deceased, procured a warrant of attachment to be issued therein to the sheriff June 13, 1888. It was levied upon the real and personal property of Van Camp. Afterwards, and before judgment, the attachment was levied upon certain accounts of Van Camp against persons for sums due from them to him, and thereafter the sum of $130.04 was collected by the sheriff on such accounts. Prior to the stipulation and judgment in the Kelsey action, and on December 3, 1888, Keeler <& Salisbury recovered judgment in their action for $622.62 damages, and $119.98 costs. Afterwards an accounting was had by Van Camp in the Surrogate’s Court, and on October 8, 1889, a decree was there made stating the amount of money, etc., of the Kelsey estate in his hands, and after referring to the recovery of the Kelsey judgment of December 7, 1888, against him, and the Keeler & Salisbury claim, for which he had not been credited, the decree directed that out of the funds of the estate of the decedent the administrator with the will annexed pay to Keeler & Salisbury $622.62, and interest, amounting together to $667.76. Thereafter, and on the same day, Adason Kelsey, as such administrator, assigned his judgment to the plaintiff in this action and received as the consideration of the assignment the full amount of it. And thereupon he, by written instrument to that effect, as such administrator, certified and acknowledged that ■ he had, by such assignment, realized upon the surrogate’s decree $2,186.66, being the amount of the judgment so assigned. On the same day Keeler & Salisbury assigned to the administrator the damages in their judgment against Van Camp, and received from him the amount of such damages; they reserved for themselves the costs on the judgment with the right to enforce it in their behalf to that extent. So that all that remained unsatisfied of the judgment recovered in their action was $119.98, the costs, and interest upon that sum.

The liability of Van Camp to Keeler & Salisbury was personal notwithstanding the fact that the services were performed for him in his business as executor of Kelsey’s will. (Mygatt v. Wilcox, 1 Lans. 55; 45 N. Y. 306; Bowman v. Tallman, 2 Robt. 385.)

No reason now appears why the judgment to the extent of and for the costs included in it is not available to Keeler & Salisbury.

In respect to tbe proceeds of tbe accounts collected by tbe sheriff and of tbe sale of tbe real property tbe question arises as to tbe order in wliicb tbe attaching creditors are entitled to payment, whether in tbe order of tbe receipt of tbe attachments by tbe sheriff or of tbe levy of them upon such property. Tbe statute provides-that where two or more warrants of attachment against tbe same-defendant are delivered to tbe sheriff to be executed, their respective preferences are tbe same as where two or more executions against tbe property of tbe same defendant are delivered to tbe sheriff. (Code Civ. Proc. § 697.) And as to executions it is provided that tbe one first delivered to tbe sheriff to be executed has preference > notwithstanding the levy is first made by virtue of an execution subsequently delivered to him. (Id. § 1406.)

Such is the rule applicable to personal property subject to levy of executions. (Camp v. Chamberlain, 5 Den. 198; Peck v. Tiffany, 2 N. Y. 451; Pach v. Gilbert, 124 id. 612.) But as die-sheriff cannot take real property into bis custody, it is necessary, to constitute tbe levy of an attachment upon it, that be file with the-clerk of tbe county in which it is situated a notice of the attachment, stating tbe names of tbe ¿>arties to tbe action, tbe amount of the-plaintiff’s claim as stated in tbe process and a description of tbe property levied upon; tbe notice to be also subscribed by tbe plaintiff’s attorney. (Code Civ. Proc. § 649.) Tbe levy of an attachment is essential to make it available as a lien or to create by it security for payment of tbe judgment which may follow. (Anthony v. Wood, 96 N. Y. 180; Warner v. Fourth N. Bank, 115 id. 251.)

And it is tbe duty of tbe sheriff to whom an attachment is delivered to immediately levy it upon the property, personal and real, of tbe defendant, sufficient to satisfy tbe demand if it can be found. (Code Civ. Proc. § 644.) lie is thus required to levy them, if there, be more than one, in the order in which they are received by him. And for his neglect to levy such process he may be liable to the plaintiff for the consequences. (Lewis v. Douglass, 53 Hun, 587.)

In view of the duty imposed upon the officer in levying attachments, it was evidently contemplated by the statute that they would be levied in the order of their receipt by him, and for that reason there is no distinction in that respect made in its application to personal and real property, nor is our attention called to any case in. which, any such distinction is observed since the repeal of the provisions of the Revised Statutes relating to attachments against absconding, etc., debtors. The provisions of section 697 of the Code of Civil Procedure since then may properly be applicable to ■attachments levied upon both kinds of property, and, therefore, it would seem that in cases where attachments are issued to the same ■officer the rule of preference relating to executions levied upon personal property is applicable to attachments levied upon property real as well as personal.

Under the present statute we think such must be the rule of distribution of the proceeds of the sale of real property among the attaching creditors who proceed to judgment, and it seems alike reasonable and just. In that view the sale upon executions issued upon some or one of the judgments of the attaching creditors gives them no advantage over the other creditors, which the lien of their attachments does not give them. (Russell v. Gibbs, 5 Cow. 390; Rowe v. Richardson, 5 Barb. 385.)

Since a .judgment is a lien upon the real property of a judgment debtor no levy of execution issued upon it is made on such property. But if a levy were necessary and the land charged only by it, as has been and probably yet is the case in some of the States, the rule applicable to levy and sale upon executions of real and personal property would be substantially the same. (Catlin v. Jackson, 8 Johns. 520.)

The execution of the lien of an attachment is contingent upon the recovery of a judgment in the action in which it is issued.

Then it may be executed in the manner provided by the statute. (Code Civ. Proc. § 1370.). And as an actual levy is necessary to create the lien of an attachment upon property, it would seem that when •several of them are levied upon the same real property of the defendant, the order of preference or priority would be the same and founded upon the like reason as that applicable to levy of attachments on his personal property in the absence of any different rule upon the subject. There seems to be none. And, therefore, the lien of the attachments levied upon the real property of Van Camp ■are entitled to priority in the order which they were delivered to the sheriff. (Learned v. Vandenburgh, 7 How. 379; 8 id. 77; Yale v. Demick, 20 id. 430; Yale v. Matthews, 12 Abb. 379.)

Tliese views are in accord with the direction in the judgment for the distribution of the fund among the attaching creditors other than the defendant Bruner, to whom the payment before mentioned was made upon an execution irregular on its face and void for the purposes of collecting anything from the fund in question. And for want of an affidavit to justify the issuance of the Bruner attachment, the levy of it was ineffectual to support a lien of it upon the property. It was determined by the trial court to be void and so declared by the judgment.

A question is raised about the disposition of the proceeds received by the sheriff of the Yan Camp accounts. As no attachment other than that of Keeler & Salisbury was levied upon them, it is not seen that any creditor other than they obtained any lien upon the accounts by them attached. Those upon which their attachment was levied produced only $130.04, which amount was sufficient to pay their judgment of $119.98, and they were entitled to its payment from the proceeds of the accounts upon which their attachment was levied. The assignment by Yan Camp to Keeler & Salisbury of the proceeds of other of his accounts collected by the sheriff was not effectual to transfer to them title to such proceeds to the prejudice of the attaching creditors. When payment of the accounts was made by the debtors to the sheriff, the amount so received by him became charged with the lien of the attachments in his hands in the order of the delivery of them to him.

In view of the circumstances, the conclusion of the trial court that the sheriff is not chargeable with any greater rate or amount of interest on the fund than that realized by him from it was fairly justified, and such conclusion is sustained. The defendant Orleans County National Bank, having recovered a judgment against Yan Camp September 14, 1888, by default upon the service of the summons by publication, afterwards, on November sixteenth, commenced against him an action upon the same claim by the personal service upon him in this State of the summons and complaint, and on December 1, 1888, recovered a judgment therein by default. It does not appear that any of the parties other than the judgment debtor could be prejudiced by the last-mentioned judgment. And whether or not it was by reason of the former judgment for the same cause rendered invalid is a question which none of the parties other than he could legitimately raise for consideration. He does not seek to attack it in this action.

If the first judgment was effectual to charge the defendant m personam, the other is useless. But if, from any cause, it is not so, the second judgment may properly stand.

Therefore, without considering the question upon the merits, the conclusion of the trial court that the judgment was void, as well as the judgment to that effect, is not sustained.

These views lead to the conclusion that the payment by the defendant Searle, as sheriff, to the defendant Bruner of ninety-six dollars and sixty-five cents was made without due authority, and he was not, justified in making it; that the defendants Keeler. & Salisbury were entitled to priority in payment upon their judgment of or from the proceeds amounting to $130.04: of the accounts upon which their attachment was levied, and that the second judgment above mentioned of the Orleans County National Bank against Yan Camp is treated as valid.

And so far as the judgment appealed from determines otherwise the judgment should be reversed, and in. other respects affirmed.

The judgment should be thus modified, without costs to any party.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from modified as indicated in the opinion, and, as so modified, affirmed, without costs of this appeal to either party; judgment to he settled by Bradley, J.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    Martin D. Chace, Respondent, v. Warsaw Water Works Company, Appellant.

      Riparian rights — mill on a water site — participation in the diversion of the wafers of a creek — reason for injunctive relief.

    It is the right of riparian owners to have the waters of natural surface streams flow in their channels subject only to such reasonable use by those owning lands higher up on the streams as does not cause a diversion of the waters to the prejudice of the usufruct of those below, and, as a rule, the riparian owners are entitled to relief by injunction when necessary for their protection against such diversion.

      Although a mill on a water site may not be very valuable for practical purposes, the right of the owner thereof to the full benefit of his water privilege cannot for that reason be lawfully invaded or impaired, and the water which would otherwise reach his premises be diverted therefrom, nor can he for that reason be deprived of his right to relief by injunction if he be otherwise entitled thereto.
    •On the trial of an action brought to restrain a corporation from diverting the waters of a creek from their natural channel, it was shown that the defendant supplied the village wherein the plaintiff resided with water from the creek in question and from other sources, and that the plaintiff’s dwelling house in such village was supplied with such water for domestic purposes, but it appeared that when such corporation first commenced to supply water to the plaintiff none of its water supply was taken from such creek.

      Held, that such use of the village water by the plaintiff was not such a participation in the diversion complained of as to deny to the plaintiff the right to assert that, as against him, the diversion of such water by such corporation was unlawful and prejudicial.
    A well-recognized reason for granting an injunction rests in the fact that it will prevent the necessity of a multiplicity of suits which might, and very likely would, be the consequence of the denial of equitable relief.
    Appeal by the defendant, the Warsaw Water Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming on the 26th day of August, 1893, upon the report of a referee.

      JE. If. Bartlett, for the appellant.

      Charles D. Newton, for the respondent.
   Bradley, J.:

The action was commenced in March, 1890, to restrain the defendant from diversion of the waters of Gibson creek from its natural 1 channel. The plaintiff had for upwards of twenty years been the owner of a' grist mill and premises adjacent to Oatka creek in the town of Warsaw, county of Wyoming, of which latter creek the Gibson creek is a tributary, intersecting it about one mile above the plaintiff’s mill. In 1889 the defendant constructed a dam ten feet high and about sixty feet in length across the Gibson creek about two miles above its intersection -with Oatka creek, for the purpose of there holding the water and making a reservoir to supply water to the village of Warsaw, and for such purposes as the defendant should desire to appropriate it. The plaintiff, deeming this an invasion, to tlie prejudice of Ins right to have the water of Gibson creek flow into and along Oatka creek, as contribution to the power for the operation of his mill, seeks by this action to enjoin the defendant from thus diverting the waters of the creek.

The plaintiff’s mill has three run of stone used for grinding flour and feed, and is operated by the power of water taken by means of a race from Oatka creek. Both of those creeks have well-defined natural channels, wherein the water has flowed from time immemorial. And on well-settled principles the right of riparian owners is to have the waters of natural surface streams flow in their channels, subject only to such reasonable use by those above as does not •operate as a diversion of the waters to the prejudice of the usufruct of those below, and as a rule the latter may be entitled to injunctive relief when requisite to protection against such diversion. (Corning v. Troy I. & N. Factory, 39 Barb. 311; 40 N. Y. 191; Garwood v. N. Y. C. & H. R. R. R. Co., 17 Hun, 356; 83 N. Y. 400; Smith v. City of Rochester, 38 Hun, 612; 104 N. Y. 674.)

The plaintiff was during the period before mentioned and is a riparian owner, where he makes use of the water to operate his mill,, and the defendant is a riparian proprietor on Gibson creek where its dam and reservoir are located. But the latter by means of a pipe leading from it diverts water from that creek. And the plaintiff alleges that such diversion is essentially injurious to him. This is a controverted question of fact.

While the evidence on the part of the plaintiff is to the effect that the water power for his mill is essentially impaired by the defendant’s dam and the taking of water from the reservoir produced by it, and that as the consequence the value of his mill property is depreciated, the evidence on the part of the defendant tends to prove that there is no appreciable diminution of water in Oatka creek occasioned by the dam and diversion, and that the plaintiff’s mill property is not thereby rendered of any less value than it otherwise would, have been. The referee found the fact against the defendant, and his finding in that respect is fairly supported by evidence’’ Since the land adjacent to the headwaters of those creeks has heen cleared up, and for about twelve years before the commencement of the action, there has not been a constant supply of water in them to operate the plaintiff’s mill during the dry season from June to September inclusive. The scarcity of water has been such that the mill could be run only a small portion of the time during that period. At times of heavy rains during such time the water flows in great abundance, and soon thereafter the streams become nearly dry. Although the mill may not be very valuable for practical purposes, the plaintiff’s right to the full benefit of his water privilege cannot for that reason be lawfully invaded or impaired by diversion of the water which would otherwise reach his premises and contribute to the motive power of his mill. The diversion is made through a twelve-inch pipe at the dam extend ing 1,800 feet, then ten-inch pipe 1,000 feet, then eight-inch pipe 600 feet and then three-and-a-half-inch pipe to the lower reservoir. From the twelve-inch pipe there is a take-off by a six-inch pipe to certain salt companies’ works. The discharging capacity of these pipes as they are located is estimated at upwards of 600j000 gallons, or upwards of 89,000 cubic feet, in twenty-four hours. This is the quantity of water which, by the means applied, may be diverted by the defendant from the creek in the season of the year when the use of all the water available to the purpose may be desirable for the plaintiff to propel his wheel. And in view of the facts found by the referee and supported by the evidence it cannot here be otherwise assumed.

It is urged that the plaintiff is estopped from maintaining this action by participation in the diversion of the water of the creek in the manner it is done. The defendant was incorporated in 1869, and then constructed its water works taking water from sources other than Gibson creek. In that year, by means of two pipes, of size half inch, connected with defendant’s main, water was, and since has been, taken to the plaintiff’s dwelling houses in the village of Warsaw for domestic purposes. This, it is contended, has been and is such a participation in the diversion complained of as to deny to> the plaintiff the right to assert that, as against him, it is unlawful or prejudicial. The cause so sought for the charge of such acquiescence on his part as to estop him from seeking relief seems quite too remote for such purpose. It appears by the referee’s findings “ that a portion of the water taken by the defendant from Gibson’s creek has been conveyed therefrom through iron pipes to a reservoir, there mingled with waters taken by the defendant from other sources., carried to the village of "Warsaw through iron pipes and distributed to the patrons of the defendant for fire, domestic, power and manufacturing purposes.” When the plaintiff became the patron of the defendant in 1869 by taking water at his house by the means so provided none of the supply was taken from Gibson creek, and the fact that he did not refuse to take any water from his connecting pipes after water taken by the defendant from that creek was-mingled with water from other sources has no necessary significance-by way of acquiescence in the diversion of the water in question. (Galway v. M. E. R. Co., 128 N. Y. 132.) He did nothing in aid of the act of diversion or in applying the means to1 consummate it. Nor is there any evidence of consent on his part.

The cases cited by the learned counsel for the defendant do not support his proposition of participation or acquiescence in the diversion by the plaintiff.

It is contended that the case is not one for injunctive relief, because the damages sustained by the plaintiff are trivial, and that he should be left to his remedy at law.

A well-recognized reason for granting an injunction is in the fact that it will save the necessity of multiplicity of suits which might,, and very likely would, be the consequence of the denial of equitable-relief. And to so qualify the injunction as to permit the diversion of the water from the creek to be continued by the defendant in such manner and to such extent as not to injure the plaintiff in the' operation of his mill would still leave open for controversy the question whether to any, and if so, to what extent he may from time to-time in the future suffer damages by the diversion of water from the-creek. This would very likely and perhaps necessarily be the consequence of such modified relief, since there apparently cannot, from the nature of the case, be declared any definite extent or measure of’ water which, or any designated time or times when, it can be-diverted by the defendant’s works from the creek without prejudice-to the plaintiff’s right to the use of the water flowing in the stream. It is, therefore, impracticable 'to adjudge any qualified permission of' the defendant to do so.

Nor can it well be held, in view of the facts found by the referee- and which the evidence permitted him to find, that the diversion of the water from Gibson creek, by tbe means provided for that purpose by the defendant, has not been and may not substantially be prejudicial to such right of the plaintiff as a riparian owner.

The judgment should, therefore, be affirmed.

But to enable the defendant without prejudice, if so advised, to take proceedings to acquire the right to thus take the water from the creek, the operation of the injunctive provision of the judgment ■appealed from is suspended six months from the time of the entry ■and notice of the judgment upon the decision of affirmance herein.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed, with costs, but the operation -of the injunction is hereby suspended for the period of six months.


text:
    Sarah Brady, Plaintiff and Appellant, v. Industrial Benefit Association, Defendant and Respondent.

      I/ife insurance policy — newly discovered evidence.

    Unless it can be seen that alleged newly discovered evidence may produce a result different from that of the trial previously had, a new trial on that ground should not be granted. As a general rule, newly discovered evidence, available only for the purpose of discrediting a witness, is not a ground for granting a new trial.
    .In an action brought to recover the amount of a policy of life insurance, which was defended on the ground that the'policy was void because of a breach of warranty on the part of the assured, in stating that he had not had, and was not, subject to a certain disease, the evidence on the part of the defendant showed that prior to the issuing of such policy the assured was ill with such disease.

      .Held, that the fact that there was evidence given by witnesses called on behalf of the plaintiff that they had seen such person frequently or occasionally prior to the time of the issuance of such policy, and that he appeared to be in good health, and that they had not known him to be afflicted with such dis■ease, is not so inconsistent with the evidence given on the part of the defendant as to raise a question of fact for the jury or to prevent the court from •directing a verdict for the defendant. '
    Motion by the plaintiff, Sarali Brady, for a new trial on a case •containing exceptions, ordered to be beard at the General Term in the first instance, after a verdict by the jury directed by the court un .the 4th day of October, 1893, after a trial at the Cayuga Circuit.

      Also an appeal by the plaintiff, Sarah Brady, from an order of the Supreme Court, entered in the office of the clerk of .the county of Cayuga on the 21st day of March, 1894, denying her motion for a new trial upon a case and exceptions made and settled in the action and upon certain affidavits setting forth alleged newly discovered evidence.

      Amasa J. Parker, for the plaintiff and appellant.

      Walter 8. MacGregor, for the defendant and respondent.
   Bradley, J.:

The action was brought by the plaintiff as beneficiary of a certificate of membership or policy issued by the defendant to Millard Fiero October 13, 1890. He died April 12, 1892.

The statements and representations of the assured, contained in his application of date October 10, 1890, were, by the terms of the certificate and the by-laws of the defendant, made the basis and part of the contract of the insurance and were warranties on his part.

Amongst the interrogatories and his answers thereto, contained in the application, were the following: “ Q. Are you now in good health? A. Yes. Q. Are you usually in good health? A. Yes. Q. Are you free from predisposition to disease? A. Yes. Q. How long since you required the services of a physician ? For what disease or trouble ? A. Never seriously sick. Q. Have you had during the past five years, or are you subject to any of the following diseases, or any not named herein, spitting of blood [following with several other specified afflictions] ? If. yes, state fully ? A. No. Q. Are you aware that if any fraudulent or untrue answers have been made, or if any facts which should have been stated have been suppressed, that your certificate is null and void ? A. Yes.” By evidence on the part of the defendant it appeared that in 1888, and from time to time thereafter, Fiero was sick; that in the spring of 1889 he was so afflicted with hemorrhages of the lungs that blood came from the mouth quite freely and his condition was feeble. And witnesses testified that in 1888 they talked with him about his sickness, and that he stated to them that he was subject to hemorrhages of the lungs.

The facts thus proved constituted a breach of the warranty which was made the basis of the contract of insurance, and the truth of • which was the condition upon which the validity of the defendant’s certificate or policy was dependent. (Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Clemans v. S. A. R. S. of G. F., 131 id. 485; Boland v. Industrial B. Assn., 74 Hun, 385.)

There was some evidence given by witnesses called on behalf of the plaintiff to the effect that they had seen Fiero frequently, or occasionally, in the years before mentioned, and in 1890, prior to the time the certificate was issued; that he appeared to be physically in good health, and- that they had not known of his having been afflicted with hemorrhage of the lungs. It is not seen that this evidence was so inconsistent with that on the part of the defendant as to raise a question of fact for the jury upon the issue as to the truth of the representations of the assured in his application. The exception to the direction of a verdict for the defendant was not well taken. Nor do we find any error prejudicial to the plaintiff in any ^ other ruling at the trial.

The further evidence, ti’eated as newly discovered, upon which the plaintiff founds her application for a new trial, so far as it relates to the merits, is similar to that given on her part on the trial, and is in that sense cumulative. It would not necessarily be contradictory of that of the specific facts testified to by the defendant’s witnesses, and, assuming that the latter are entitled to credit, it would add substantially nothing more in support of the action.

And unless it can be seen that the newly discovered evidence has such importance as to permit the supposition that it may produce a result different from that of the trial previously had, a new trial on that ground ought not to be granted. (Schultz v. Third Ave. R. R. Co., 15 J. & S. 285; Jackson v. Town of Ft. Covington, 40 N. Y. St. Repr. 67.)

The plaintiff bases her motion partly upon the statement of a purpose to produce evidence by way of impeachment of the credibility of one of the defendant’s witnesses on the trial, and presents affidavits of persons to the effect that such witness is not entitled to credit. As a general rule newly discovered evidence sought for the purpose of discrediting a witness is not a ground for granting a new trial. (Carpenter v. Coe, 67 Barb. 411; Starin v. Kelly, 15 J. & S. 288.)

It appears tliat the action has been twice tried. The first trial was in May, 1893, and the second trial was in October following. The person whose credibility the plaintiff seeks to impeach was a witness on both trials, and no evidence was offered on either to impeach the veracity of such witness.

If the testimony of any one of three of the witnesses who testified on the part of the defendant upon the trial is taken as true, it is not seen how the plaintiff could recover on a new -trial. There is no well-founded ground for granting it.

The motion for a new trial should be denied and the order appealed from affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Plaintiff’s motion for a new trial denied, with costs, and order appealed from affirmed, and judgment ordered for the defendant upon the nonsuit.


author: Lewis, J.:

text:
    Emma M. Haskins, as Administratrix, etc., of Martin Haskins, Deceased, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.

      Action for personal injuries — duty of a railroad company to its employees — absence . of blocking on the gugn'd rail of its tracks — when insufficient to show negligence on the part of the company.

    It is the duty of a railroad corporation to furnish a reasonably safe place and appliances for its employees to perforin the duties incumbent upon them.
    Assuming that a railroad company is oblig-ed to block its guard rail for the protection of its employees, it is incumbent upon an employee, in order to recover damages in an action brought against such company for personal injuries alleged to have been sustained by reason of the failure of such corporation to keep its guard rail properly blocked, to show that such corporation had either actual notice that the blocking was out of place for such a length of time as would have enabled it to restore the blocking, or that the blocking had been -out of place for such a length of time as to constitute constructive notice thereof to the railroad company, where there is no evidence that the blocking was not properly constructed in the first place, or that it was displaced through negligence.
    Motion by tbe plaintiff, Emma M. Haskins, as administratrix, etc., of Martin Haskins, deceased, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon a judgment of nonsuit directed by the court after a trial before the court and a jury at the Ontario Circuit.

      John Gillette, for the motion.

      J. W. JDunwell, opposed.
   Lewis, J.:

This action was brought against the defendant to recover damages for the alleged negligent killing of the plaintiff’s husband. He was at the time in the employ of the defendant as a brakeman upon a local freight train running between Rochester and Syracuse, by the way of Canandaigua. Part of his duties as a brakeman was to assist in making up and switching trains. In doing that work he was required to couple and uncouple cars and manipulate the switches. On the 6th day of November, 1892, while thus engaged in the defendant’s yard at Canandaigua, his foot was caught between a guard rail and an adjoining rail on the main track of the defendant’s road, and, not being able to extricate it, a passing car ran over him, causing his death. The alleged negligence of the defendant, upon which the plaintiff based her right to recover, was the absence of an appliance called blocking in the opening where the deceased’s foot was caught. There was evidence tending to show that a device had been theretofore adopted by some railroads, to a limited extent, known as blocking. It was done by inserting in the space between the guard rail and the main rail a piece of plank of such thickness as to permit the wheels of the locomotives and cars to pass over it. It was there fastened by driving spikes into it. There were a large number of guard rails in the Canandaigua yard, and about one year before the accident they had all been -blocked. The device had not been adopted generally by railroads. One of the reasons why it had not been adopted was because of the great difficulty of keeping the blocking in place. Snow, ice, gravel and other substances were liable to accumulate upon the blocks, and the flanges of the wheels in passing over them were quite apt to force them out of place. The evidence tended to show that in some cases they were almost immediately forced out; in other cases they would remain in place for a considerable time, the length of time being entirely uncertain. They were, to some extent, a protection to the employees, although not a perfect protection, for it was not practicable to have them of such thickness that the soles of the shoes of the operatives might not catch, notwithstanding the blocking.

The blocking in this yard was constantly getting out of place. Some of the blocks were replaced and others were not. At the time of the accident there were only about one-fourth of the blocks in position.

It was found, after the accident, that the blocking was out of the guard rail where the deceased’s foot was caught. There was an entire absence, however, of any evidence as to the length of time it had been out. While it was the duty of the defendant to furnish a reasonably safe place and appliances for the deceased to perform the duties incumbent upon him, it is not by any rpeans certain that the defendant was obliged to block the guard rails; but if it be conceded that it owed the duty to the deceased to adopt the device, it was incumbent upon the plaintiff, in order to be entitled to recover, to show that the defendant had either actual notice for a sufficient length of time before the accident that the blocking was out, so that it could have been repaired, or that the blocking had been out for such a length of time as to constitute constructive notice to the defendant. There was no evidence that it was not properly constructed in the first place, or that it was negligently displaced; and there was an absence of any evidence as to how long it had been out before the accident. It may, so far as it appears from the evidence, have been knocked out of place one hour before the accident occurred. It was incumbent upon the plaintiff, before she was entitled to have her case submitted to the jury, to show that the defendant’s negligence cansed her husband’s death. This she failed to do, and was, therefore, properly nonsuited. The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

Dwight, P. J., Haight and Bradley, J"J., concurred.

Plaintiff’s motion for a new trial denied, and judgment ordered for the defendant on the nonsuit.


text:
    Edward F. Wilson and Another, Plaintiffs, v. The Niagara City Land Company, Appellant, and Henry A. Rose and Others, Respondents, Impleaded with Loren M. Hewit.

      Action to foreclose a mechanic’s lien — service of answers on co-defendants — when it may be continued by defendant lienors — judgment set aside for irregularity.

    The holders of mechanic’s liens filed under chapter 842 of the Laws of 1885 who are made parties defendant in an action brought to foreclose another mechanic’s lien on the same property, are not required to serve a copy of their answer in such action upon their co-defendant, the owner of the property sought to be sold in such action, and they are entitled to continue the action and try the same, notwithstanding the fact that the claim of the plaintiff is settled before the trial thereof, and a stipulation has been obtained from him consenting to the discontinuance of the action.
    When an irregularity only is relied upon by a party asking to have a judgment set aside, it should appear that such party is prejudiced in some way by the irregularity complained of.
    Appeal by the defendant,- The Niagara City Land Company, from portions of a judgment of foreclosure and sale of the Supreme Court in favor of the defendants Henry A. Rose and others, entered in the office of the clerk of the county of Niagara on the 6th day of December, 1893, upon the decision of the court rendered after a trial at the Niagara Special Term, with notice of an intention to bring up for review on such appeal an order of the Supreme Court made at the Erie Special Term on the 26th day of December, 1893, denying such defendant’s motion to set aside the judgment.

      O. 8. Orton, for the appellant.

      Lewis T. Payne, for the respondents.
   Lewis, J.:

This action was brought to foreclose a mechanic’s lien upon premises owned by the appellant, situate in the village of North Tonawanda, Niagara county. The appellant had, by written contract, sold the land in question to the defendant Hewit on condition that Hewit should build a factory upon the land. The plaintiffs and the respondents furnished labor and materials to Hewit, which were used in constructing the factory, all of which was known and consented to by the appellant. The plaintiffs and respondents respectively duly filed mechanics’ liens upon the premises. Notice thereof was duly given to the appellant and the defendant Hewit. An action was commenced by the plaintiffs in the Supreme Court to foreclose their lien. It was stated in the complaint, after the proper allegations in reference to the plaintiffs’ lien, that the respondents had duly filed notices of liens against the premises; judgment was demanded that the plaintiffs be adjudged to have a lien upon said building and appurtenances fpr the amount of their claim, and that the interest of the appellant and the defendant Hewit in the premises should be sold, and out of the proceeds of the sale the plaintiffs’ claim be first paid, and that then the claims of the respondents, so •far as they shall establish valid liens upon the premises under their notices filed, be paid out of the proceeds if there were moneys sufficient applicable thereto, and that the court settle and determine the equities of all the parties. The appellant interposed an answer putting in issue the allegations of the complaint and denying any knowledge or information sufficient to form a belief as to the alleged filing of the respondents’ lien. Each and all of the respondents interposed answers alleging their several liens and the particulars in relation thereto, and asking for judgment for a sale of the premises and the payment of their respective claims out of the proceeds arising therefrom.

The action was duly noticed for trial by the respective parties serving notices thereof upon each other; it was placed upon the calendar by the parties, hut before it was reached for trial the appellant adjusted and paid the plaintiffs’ claim and received from the plaintiffs’ attorney a stipulation to the effect that the claim was settled, that the action would not he further prosecuted by the plaintiffs, and that, so far as the plaintiffs were concerned, the action might be discontinued without notice to them. After the said settlement was made the court, at the request of plaintiffs’ attorneys and the attorneys for the respondents, in the absence of the appellant’s attorneys, fixed a day for the trial of the cause. The appellant’s attorneys were notified that a day had been fixed for the trial of the ease, and one of them, at the request of the respondents’ attorneys, appeared in court, and was there informed by the presiding judge that a time had been fixed for the trial of the ease. No objection was made by Mm at the time, but on the day designated for the trial he appeared in court, and, when the cause was moved for trial by the respondents, he, for the first time, objected to the trial proceeding, for the reasons that the claim of the plaintiffs had been settled, and that the respondents had not served upon the appellant’s counsel a copy of their answer, as provided for by section 521 of the Code of Civil Procedure. His objection was overruled by the court, and the trial of the action was proceeded with, and the court rendered its decision adjudging the amount of the various liens of the respondents, and directing judgment for the sale of the premises and the payment of the respective claims of the respondents out of the proceeds’of the sale, etc. The respondents were put to the expense of subpoenaing witnesses and attending court on the adjourned day. The appellant made a motion to vacate and set aside the judgment, upon the ground that it was void and irregular for the reason that no pleadings or notice of proceedings of the said defendants to obtain judgment for the sale of this defendant’s property, or affecting this defendant’s title to its property, have ever been served upon the defendant or any person or officer of defendant in its behalf.” The motion was denied, and from the order denying such motion this appeal was taken.

While the notice of appeal is from the judgment and order, there is nothing in the record showing that the judgment in every respect, except the one mentioned, was not just aud regular. It is the contention of the appellant that the respondents were not at liberty to try the action without having first served upon the appellant a copy of their answer.

It is provided by the Mechanics’ Lien Law, chapter 342 of the Laws of 1885, that a person who furnishes labor or materials for constructing a building may file his lien in the clerk’s office of the county ; it must be verified ; a copy thereof must be served on the owner of the premises. The claimant may institute an action to foreclose his lien; he is required to make all the parties who have filed notices of liens against the property, as well as those who are subsequent lienors or claimants by judgment, mortgage or conveyance, parties defendant. It is provided by section 6 of the act that when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant, who is a claimant within the provisions of the act. The claimants, who are thus made defendants, may answer, setting forth their claims, and the court in which the action is brought may settle and determine the equities of all the parties thereto, and decide as to the extent, justice and priority of the claims of all parties to the action and upon every counterclaim or set-off alleged therein, to the extent of the jurisdiction of the court.

The manner and form of instituting tod prosecuting such action to judgment and an appeal from such judgment shall be the same as in actions for the foreclosure of mortgages upon real property.

As we have seen, the plaintiffs served their complaint upon the appellant and respondents respectively, but neither the appellant nor the respondents served their answer upon each other. The only question raised by this appeal is as to the jurisdiction of the court, under the circumstances, to proceed with the trial of the action after a settlement of the plaintiffs’ claim, the respondents not having ■served their answers upon the appellant.

It was stated in the plaintiffs’ complaint, which was served upon the appellant, that the respondents had filed their respective liens in the clerk’s office of the county, and the appellant, by its answer, put in issue that allegation of the complaint.

The particulars of the respondents’ claims were fully set out in the liens, which were duly filed in the county clerk’s office by the respondents respectively ; the statute requires that the liens be verified and filed and a copy served upon the owner of the premises; he is thus fully advised of the claim; as fully as he would be by the service of a copy of the answer.

The lien law contemplates that the action shall be prosecuted to enforce the liens of the defendants with the same force and effect as that of the plaintiff, and it cannot, with propriety, be claimed that the action should be discontinued because the' plaintiffs’ claim had been adjusted.

Such a construction of the statute might work great injustice to a defendant claimant, for the act provides that a lien shall not continue for a longer period than one year after the notice of the lien lias been filed, unless within that time an action is commenced to enforce the same; if the owner of the property, by settling the claim of the plaintiff, could obtain a discontinuance of tbe action, tbe year limitation might run against the defendant’s claim while he was waiting for the trial of the action.

It was held in Abham v. Boyd (5 Daly, 321) that if a claimant instituting proceedings becomes in any way disentitled to continue the proceedings, any other lienor who has appeared in the proceedings may continue them for the enforcement of his own lien.

We are of the opinion that the respondents were not required to. serve their answers upon the appellant in order to be entitled to try the action, but even if it should be held otherwise we think this order appealed from should be affirmed; for, as we have seen, the appellant is not in a position to review the judgment.

We can only consider the appeal from the order. The court had jurisdiction of the subject-matter and of the parties. Issues for trial had been framed by the plaintiffs’ complaint and by the several answers of the defendants. As stated, the appellant, after the settlement of the claim of the plaintiffs, appeared in court by its attorney and consented to the fixing of a day for the trial of the action. No suggestion is made that the claims of the respondents, as found by the trial court, were not in all respects just and proper, so that no injustice in fact has been done to the appellant.

An irregularity simply is relied upon, and to entitle a party to. ask to have a judgment set aside for that reason simply it should appear that he is prejudiced by it in some way to his injury. (Green v. Warren, 14 Hun, 434.)

This the appellant has failed to show. No merits were sworn te by the appellant.

The order appealed from should be affirmed, with ten dollars costa and disbursements.

Dwight, P. J., concurred; Haight and Bradley, JJ., concurred in the result.

Order appealed from affirmed, with ten dollars, costs and disbursements.


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    Robert Bryson, Respondent, v. Roger St. Helen, Appellant, Impleaded with Another.

      Action to foreclose a mechanic’s lien — when a judgment to constitute a defense must be pleaded in bar — error in a notice of lien — when immaterial — construction of the Mechanics’ Lien Law.

    In an action brought to foreclose a mechanic’s lien the fact that a money judgment was rendered in another action in favor of the plaintiff against the defendant for the debt, to secure which the lien was filed, is not a bar to the foreclosure action when such defense is not set up in the defendant’s answer and pleaded as a bar therein; and when the point that the complaint failed to state that an execution had been issued and returned unsatisfied upon the first judgment was not raised upon the trial of the foreclosure action, it is too late to raise the question upon an appeal from a judgment rendered therein.
    A notice of lien stated that the claim therein set forth was for certain specified work, and amounted to the sum of seventy-eight dollars, “ said amount being the true price and value of the said tin work furnished.” The value of the tin work furnished was $277, and the seventy-eight 'dollars was the balance due and unpaid upon such amount, and the complaint in the action brought to foreclose the lien so stated the facts. No claim was made on the trial of the action that the defendant had been misled by the error in the notice of lien, and it appeared by the answer that the defendant was fully aware of the particulars of the plaintiff’s cause of action, and knew the value of the work done and how much had been paid thereon.

      Meld, that the Mechanics’ Lien Law should be liberally construed in order to secure to the parties its beneficial purposes;
    That the act does not require that the notice shall state the entire amount of the value of the work done, nor the amount of the payments made;
    That the notice of lien was sufficient, and the error in the amount would not justify the reversal of a judgment in favor of the plaintiff.
    Appeal by the defendant, Roger St. Helen, from a judgment of foreclosure and sale of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 7th day of December, 1893, upon the decision of the court.

      H. J. JSulLivcm, for the appellant.

      Willicum IF". Armstrong, for the respondent.
   Lewis, J.:

About November 1, 1891, the appellant agreed to erect a building for the defendant Phelan, and in December following contracted with one McConnell to do the tin work on the building for $274.

McOonnell did the work, and in addition thereto performed extra work of the value of three dollars, and he became entitled to $277.

St. Helen paid him $198.88 upon the contract, leaving seventy-eight dollars and twelve cents still unpaid, for which McOonnell, in February, 1892, filed a mechanic’s lien. In his notice of lien McOonnell stated that his claim was for tin work done upon the premises of the defendant Phelan, under a contract with St. Helen now due, amounting to the sum of seventy-eight dollars, “said amount being the true price and value of said tin work furnished.”

At the time of the filing of the lien there remained in Phelan’s hands a balance due to St. Helen on account of said work of eighty-three dollars and fifty-two cents. Prior to the commencement of this action McConnell duly assigned to the plaintiff said indebtedness due him from St. Helen, and the mechanic’s lien perfected as statgd, and his cause of action thereon. And thereafter the plaintiff commenced an action in the Municipal Court of Rochester against St. Helen to.recover the amount of his said claim and another claim of two dollars and sixty cents for work upon another building, amounting in all to eighty dollars and seventy-two cents. St. Helen alleged a counterclaim in his answer which was allowed to the extent of forty dollars.

The plaintiff recovered a judgment in said Municipal Court against St. Helen for forty dollars and forty-two cents, with ten dollars and eighty-five cents costs. No proceedings were ever taken to collect said judgment, and it remains wholly unpaid.

The plaintiff thereafter commenced this action to foreclose said lien, and recovered judgment, adjudging that there was due the plaintiff from St. Helen the sum of thirty-eight dollars and twelve cents, the balance due on the Phelan contract, with interest thereon from November 29, 1892, that being the day of the rendition of the Municipal Court judgment, and further adjudging that he was entitled to a' judgment against the defendant Phelan barring and foreclosing him from all interest and equity of redemption in the premises, and for a sale of. all his right, title and interest therein, and for the payment to the plaintiff from the proceeds of such sale of the said sum of eighty-three dollars and fifty-two cents, or so much thereof as shall be necessary to satisfy said indebtedness of thirty-eight dollars and twelve cents, with interest and the plaintiff’s costs and disbursements of the action to be taxed, which were granted to him, and it further provided that in case any surplus remain after such payment, it should be paid to St. Helen, and that in case any deficiency should arise the plaintiff should be entitled to judgment against St. Helen for the amount thereof.

From the judgment entered thereon this appeal was taken.

It is the contention of the appellant that the Municipal Court judgment was a bar to this action. No such defense is set up in the defendant’s answer. The recovery of the judgment is alleged in the answer, but it is not pleaded as a bar to this action.

The point that the complaint fails to state that an execution has been issued upon the Municipal Court judgment, and returned unsatisfied, was .not raised upon the trial of the action.

It is too late to raise that question upon this appeal, even if there were anything in the point.

The plaintiff further contends that the notice of lien only made a claim for seventy-eight dollars as the price and value of the work furnished. It is true that that was the amount claimed in the lien as filed, but it was alleged in the complaint that the value of the work performed was $277, and that no part thereof had been paid except $238.88, leaving, as it will be seen, the sum of thirty-eight dollars and twelve cents, the amount adjudged to be due the plaintiff. The notice of lien should properly have stated that the seventy-eight dollars was a balance due for the work performed under the contract, but the error could not possibly have misled the defendant.

Hfe made no such claim at the trial of the action. It appears from the twelfth subdivision of the defendant’s answer that he was fully aware of the particulars of the plaintiff’s cause of action. He knew the value of the work done and how much had been paid' thereon.

Section 25 of the Mechanics’ Lien Law declares the law to be remedial.

It should be liberally construed in order to secure to the parties its beneficial purposes.

The act does not require that the notice shall state the entire amount of the value of the work done, nor the amount of the payments made; manifestly, tbe defendant was not misled by tb& informality, if there was such, in the lien as filed.

As we have seen, the plaintiff recovered a judgment in the Municipal Court of Rochester for the same cause of action stated in his-complaint here, and he was awarded a judgment in this action for the same claim, amounting, with interest, to forty dollars and forty cents, and the sum of eighty-nine dollars and forty-nine cents costs, and the judgment provides that, in case the sum realized upon the sale-of the premises does not amount to the judgment awarded the plaintiff, he shall be entitled to judgment against the appellant for such deficiency. This, as is claimed by the appellant, secures to the plaintiff two judgments for the amount of his claim against the appellant.

The judgment appealed from should have provided against this error and it should be reversed and a new trial granted unless the plaintiff, within thirty days, cause to be deducted from the said Municipal Court judgment the sum of thirty-eight dollars and twelve-cents as of the day of the entry thereof.

In case that is done this judgment should be affirmed, but without costs of this appeal to either party.

Dwight, P. J., Haight and Bradley, JJ., concurred.

So ordered.


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    In the Matter of the Lands of Margaret J. Anderson, Sold for Taxes by the Treasurer of Monroe County. Seymour Boughton, Appellant, v. James S. Garlock, Respondent, and Others.

      Proceedings under chap. 107 of 1884 to obtain possession of land sold for taxes — what■ title must be shown by one claiming under the purchaser at the tax sale.

    Before an order will be made confirming tbe title of tbe assignee of a purchaser of real property at a tax sale in the county of Monroe, in proceedings, brought pursuant to tbe provisions of chapter 107 of the Laws of 1884, it is incumbent upon such assignee, the petitioner in such proceedings, to show that-the purchaser at the sale has parted with his title, and that the petitioner is the grantee, and is entitled to an absolute title in fee of the premises.
    It is not sufficient for the petitioner to show that he has an equitable interest in the-premises; and where the sole title which the petitioner has to such premises. is under a contract made between tbe petitioner and tbe purchaser at tbe tax sale, whereby tbe latter agreed to convey to tbe former all his' right, title and interest in tbe premises in question, tbe petitioner has no title which is sufficient under the provisions of such act to entitle him to the order provided for by section 16 thereof.
    Appeal by tlie petitioner, Seymour Boughton, from an order of tbe County Court of Monroe county, entered in tbe office of tbe clerk of tbe county of Monroe on the 14th day of July, 1893, dismissing the appellant’s petition and proceedings brought pursuant to the provisions of chapter 107 of the Laws of 1884.

      H. H. Woodward, for the appellant.

      James 8. Garlook, in person, respondent.
   Lewis, J.:

The proceeding in which this appeal was taken was commenced under chapter 107 of the Laws of 1884, which provides a system for the collection of unpaid taxes upon lands in Monroe county for State or county purposes.

The treasurer of the county is authorized to sell lands for unpaid, taxes, and, if the owner fails to redeem the same within two years-from the last day of the sale, the treasurer is required to execute to the purchaser, his heirs or assigns, in the name of the people of the-State, a conveyance of the real estate so sold, which, when perfected in the manner provided by the act, vests in the grantee an absolute-estate in fee in the premises, subject to all the claims which the-people of the State may have thereon for taxes, or other liens or incumbrances.

If, at the expiration of the two years after the sale, the land be in the actual occupancy of .any person, the grantee to whom the same-shall have been conveyed, or the person claiming under him, may cause a notice to be served upon the person so occupying the land, notifying him that if he does not redeem within a time specified in the act the conveyance will become absolute, and the occupant and all others interested in the land will be forever barred from all right and title thereto.

It is provided by section 16 of the act that within one year after the expiration of the time for the redemption, the grantee, his heirs. or assigns, shall make application to the County Court of Monroe county for an order requiring the parties interested to show cause why he should not have possession of and title to such property, and that unless the consideration money, together with thirty-five per centum on the tax and the other expenses, be paid into the treasury •of the county within three months from the service of the order, the court will declare the title vested in the grantee.

It is provided by section II that if the premises are not redeemed according to the conditions of the order the county judge may, by a final order, declare the absolute title in fee to the said premises vested in the grantee, and that all persons having any lien upon or interest in said premises shall be from the date thereof forever barred and cut ofi from any and all right, title or interest in said property.

The appellant’s petition alleged the sale of the lands by the treasurer for unpaid taxes described in the petition to one Lyman Johnson, and that a certificate of sale was made by said treasurer in due form and delivered to said Johnson, and that said treasurer duly delivered to said Johnson a deed of said premises in due fornl, which •recited that said sale had been made and that said lands had not been redeemed within the time prescribed by said act for the redemption thereof, and then follow allegations as to the due service of the required notices.

The only allegations in the petition showing what interest the petitioner had in the premises are the following: And your petitioner further states that the said Lyman Johnson has contracted with your petitioner to convey all his right, title and interest in said premises under and by virtue of said deed from said treasurer to your petitioner, who is now the owner of the rights conveyed to said Johnson as aforesaid.”

The petition concluded with the prayer that an order be made by this Court pursuant to section 16 of said Act requiring the said owner and other persons interested in said premises to show cause why your petitioner should not have possession of and title to said premises, and such other and further relief to which he may be entitled under the provisions of said Act.”

The respondent Garlock, having a lien upon the premises in question, appeared on the return day of the order and opposed the granting thereof. The County Conrt denied the application for the order upon the ground that the petitioner had failed to show by his petition that he had such an interest in the premises as entitled him to^ the order.

It was incumbent upon the petitioner, before he was entitled to to the order, to show that the purchaser at the sale had parted with his title and that the petitioner was the grantee, and that he was, entitled to an absolute title in fee to the premises as grantee thereof.. It was not enough for him to show that he had an equitable interest, in the premises.

True, it is alleged in the petition that the petitioner is now the owner of the rights conveyed to said Johnson as aforesaid, but that statement is qualified by what precedes it.

The interest that he possessed he got by virtue of a contract from Johnson, agreeing that he would couvey to the petitioner all his right, title and interest in the premises which he obtained under and by virtue of said deed from the treasurer.

The petition failed to allege that any conveyance of the title had, in fact, been made to him. The substance of the statement in the petition is that the interest which the petitioner had in the premises was what he derived from the contract mentioned, it being a- mere equitable title.

Holding such a title, he was not entitled, under the provisions of the act, to the order asked for.

As the petitioner was seeking to avail himself of a statutory proceeding to divest others of their interest in real estate, he was required to bring himself clearly within the provisions of the statute.

This, we think, he failed to do; his petition was, therefore, properly dismissed.

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

Dwight, P. J., Haight and Bradley, JJ., concurred.

Order of the County Court of Monroe county appealed from affirmed, with ten dollars costs and disbursements.