author: By the Court—Moncrief, J.

text:
    Joseph S. Huntington, Plaintiff, v. Horace B. Claflin et al., Defendants.
    1. Under an agreement for the employment of a clerk, at a commission on all business done by him, a monthly allowance to be paid to him on account of it, and the balance not to be paid until the end of the year, he agreeing to forfeit such balance if he should not remain till then, the employer has a right to discontinue his services during the year, and thus prevent him from being entitled to the balance of commissions, provided a sufficient cause therefor arises, such as his intoxication, unfitting him for his duties.
    2. The employer is not bound under such circumstances to dismiss him instantaneously upon such misconduct; and his permitting a day to pass, before discharging him, is not a waiver of the forfeiture.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, J. J.)
    Heard, February 6, 1863;
    decided, February 28, 1863.
    This action coming on to be tried before one of the Justices of this Court and a Jury, and testimony having been given on behalf of the respective parties, and having been closed, upon motion of the defendants the complaint of the plaintiff was dismissed, with the direction that the exceptions be heard in the first instance at the General Term, and in the meantime that judgment be suspended.
    The action was to recover a balance of commissions amounting to $850 and interest, claimed by the plaintiff to be due to him from the defendants, Horace B. Claflin, William H. Mellen, Nathaniel F. Miller, Daniel H. Conklin, and Henry Stone, who compose the firm of Claflin, Mellen & Co., for sales of goods made by him for them, between January 1, 1860, and November 23, 1860.
    The complaint alleged that the plaintiff made sales for the defendants during that period to the amount of $275,000, at a commission of one per cent, entitling him to the sum of $2,750, of which sum $1,900 had been paid, leaving due $850, for which sum with interest from November 23, 1860, he demanded judgment.
    The answer denied all the allegations of the complaint.
    The cause was tried before Mr. Justice Monell and a Jury, on December 17, 1862.
    The plaintiff proved his employment by defendant as a salesman, upon an agreement which he stated as follows: “ I was to make a commission of one per cent on all the goods I sold, and I was to draw $100 to live upon, the balance to remain until the first of January, and if I did not remain until the first of January, I agreed to forfeit the balance coming to me; the commission was to be one per cent on all the goods I sold, provided I remained there.”
    He also testified that the agreement commenced in the . year 1857; that it was continued from year to year, including the year 1860.
    On the 24th of November, 1860, the plaintiff was discharged, for the cause, as stated by himself, of his frequent intoxication.
    The defendants proved that in the end of 1858, plaintiff began to be dissipated; and that the agreement was then made for $100 per month and one per cent on his sales at the end of the year, conditioned on his remaining there the year and on his good behavior. This was continued for 1859. That once or twice during 1859 his habits caused difficulty, but he remained to the end of the year, and was allowed his commissions.
    On his promises of amendment, he was employed for the year 1860; but, according to defendants’ testimony, the compensation then was fixed at $100 per month, and any further compensation at the end of the year was to depend on his sobriety, and to be a gratuity on the part of defendant. Some other details of the evidence are stated in the opinion of Oourt. The variance between the complaint and the plaintiff’s proof was cured by amendment on the trial.
    At the close of the evidence the Oourt dismissed the complaint, and directed the plaintiff’s exceptions to be heard in the first instance at the General Term, and judgment suspended.

      D. M. Porter, for plaintiff.
    I. If there was any conflict of evidence, or if there was any evidence to sustain the plaintiff’s cause of action, the dismissal' of the complaint was erroneous.
    II. There were several breaches in 1859, which the defendants knew, yet, notwithstanding, they paid him, which was a waiver for that year. There were several breaches in the early part of the year 1860, which both the plaintiff and Claflin swear the defendants knew; yet, notwithstanding these breaches, they continued him in their employ. This was a waiver of the forfeiture, which satisfied the condition. A condition when once broken, and the parties go on to complete the contract, there is a waiver of the condition. (Vanderbilt v. The Eagle Iron Works, 25 Wend., 665.)
    There cannot be a continuing condition; when once broken; waived, or satisfied, it is at an end, and the condition could not be insisted upon to defeat the contract.

      III. But even admitting that the conditional hiring continued, notwithstanding the breaches and waivers, prior to ¡November, 1860, inasmuch as there had been repeated waivers of the breaches during several years in which the plaintiff was in the defendants’ employ, a course bf dealing was established which would entitle the defendant to a waiver upon very slight circumstances. Plaintiff came back to the store and sold goods all day on the 23d of [November; the defendant, Olaflin, saw him, “and did not say a ivord.” This would, under any circumstances, have been a waiver of a forfeiture previously incurred, and no discharge could be based upon it; ‘but where repeated waivers had taken place, if the defendants knowingly allowed the plaintiff to sell goods for one instant on the 23d, without discharging him, it was a waiver, and they could not discharge him on the 24th.
    IV. All the cases which may be cited by the defendants, requiring full performance of the whole term, are only where the contractee himself abandoned the contract. Here the plaintiff was discharged, after he had worked one day after the forfeiture, no new reason arising for the discharge. The defendants are in default.

      Wm. Allen Butler, for defendants.
    I. Plaintiff, on his own showing, was not entitled to commissions, unless he remained in defendants’ employ during the entire year. This being a condition precedent he was bound to show performance, or continued readiness to perform, on his part, or that the employment was terminated by defendants without fault on his part. (McMillan v. Vanderlip, 12 Johns., 165; Ripley v. Chipman, 13 Vt., 268; Winn v. Southgate, 17 Id., 355; Jennings v. Camp, 13 Johns., 94; Faxon v. Mansfield, 2 Mass. R., 147; Wolfe v. Howes, 20 N. Y. R., 197; Baker v. Higgins, 21 Id., 397.)
    The proof clearly shows that the sole ground of plain- • tiff’s discharge was his own misconduct.
    III. The fact that defendants, at the close of the year 1859, notwithstanding repeated instances of intoxication, allowed him commissions on the sales of that year, gives no color to the claim for like commissions for the year 1860. (Gardner v. Clark, 21 N. Y. R., 399.)
   By the Court—Moncrief, J.

This action is brought to recover commissions upon sales of the goods of the defendants made by the plaintiff during the period commencing on the first day of January, 1860, and ending on the 23d day of November, 1860. If, upon the evidence given at the trial, the verdict of the Jury in favor of the plaintiff would be set aside, then there was no error in dismissing the complaint.

The plaintiff testified that he entered into an engagement with the defendants in May, 1857; that he agreed to sell goods for them; that he was to have a commission of one per cent on all the goods he sold, and was to draw $100 a month'to live upon, the balance to remain until the 1st of January, and if he did not remain until the 1st of January he agreed to forfeit the balance coming to him; the commission was to be one per cent on all the goods he sold, provided he remained there.

Though he at first states that the last arrangement he made was in January, 1859, afterward he testifies: “I asked Mr. Claflin if I should continue on, and Mr. Claflin said 11 will see.’ ” Again, with reference to the engagement of the year 1860, when asked, “it was not the result of any special, contract with Mr. Claflin?” he replied, “nothing hut the one I ahvays worked on from the beginning.” And again, “I say the arrangement of 1857 continued through the whole thing”

Mr. Hatch, in November or December, 1859, had some . conversation with the plaintiff, and “ asked him what luck he, plaintiff, had had in talking with Mr. Claflin; he said he didn’t know, it was not decided,” &c., and that “ if he was sober and behaved himself he would have rvhat he had before.”

His conversation with Mr. Luff disclosed the same terms of arrangement as existed in 1857.

The defendant Olaflin distinctly so testified upon his examination.

The plaintiff admitted the conversation with Mr. Hatch and Mr. Luff, but asserted that they had made a mistake in the year. It is obvious from the admissions "made by the plaintiff as to his habits, &c., that his memory of dates is not to be deemed accurate when confronted with the recollection of the two or more witnesses. They were fellow clerks, and all engaged in the store of the defendants, and seem to have been friends of the plaintiff, and manifested a most kind disposition towards^ him. To my mind it is quite clear that the evidence in the case would not have sustained a verdict in favor of the plaintiff. The plaintiff then acting under such an engagement, and having $rawn more than the amount of his salary for the whole year, on the 24th day of November, 1860, (being in a condition unfit to be around the store upon the day previous,) was discharged. On his behalf it is contended that the breach of his engagement, if any, occurred on the 23d, and being permitted to sell goods on that day was a waiver of the breach for the year; this is plainly untenable; there is neither principle or authority to be found requiring, under > such circumstances, an instantaneous recognition of the right, and action upon a claim of forfeiture. His agreement was to forfeit all claim for commissions if he did not remain until the 1st of January, 1861, “ and he left the store on the 24th” of November, 1862, and never after-wards returned to service there; the plaintiff himself admits, “there was cause enough” for his discharge. There was no waiver by the defendants allowing the plaintiff to continue at their store during the 23d of November; this would seem to have been the view entertained by the plaintiff; he made no complaint about his being discharged, no claim for commissions was made, as it would appear, until the commencement of this action (in May 1862,) and he did not offer to continue his services during the balance of the year. (Add. on Oont., 433, 436.) The error into which the learned counsel for the plaintiff has fallen, in my opinion, is treating a forfeiture as occurmg on some part of the day, on the 23d of November, when in fact, by the terms of the agreement, the forfeiture arose by reason of his not remaining at the store until the first of January then next. The defendants had a right to discontinue his services, and thus prevent the plaintiff from becoming entitled to commissions, provided that sufficient cause therefor existed; there can be no pretense that the dismissal was without just cause; this case presents an unusual, almost unexampled, Christian forbearance and fraternal kindness towards the plaintiff by the defendant Mr. Claflin, and apparently followed by all the employees in the store.

The exceptions taken at the trial aré untenable, the complaint was properly dismissed, and judgment should be entered thereon for the defendants with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Willett Rowe et al., Plaintiffs and Respondents, v. William M. Smith et al., Defendants and Appellants.
    1. Under a charter party, the lay days of a vessel, by the general rule, commence to run from the time the vessel enters the dock. Where the delivery, by the terms of the charter party, was to be made “ alongside of the plaintiffs' vessel, within reach of her tackles— Held, that if the master was directed to take the vessel to a certain dock, and did so, the lay days commenced to run from the day when she was taken there and was in readiness alongside that dock to discharge her cargo.
    2. There being in this case a conflict of testimony, as to whether the charterers delayed receiving the cargo for their own convenience, or whether the delay was caused by the regulations of the custom house; — Held, that a verdict sustaining the plaintiff’s claim for demurrage, should not be disturbed.
    3. Where the defendants, upon the trial, admit that the amount claimed is correct if anything be due, the Court will not grant a new trial upon the suggestion that the evidence does not warrant the recovery of so large an amount.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, J. if.)
    Heard, February. 9, 1863;
    decided, February 28, 1863.

      Appeal by the defendants, from a judgment in favor of the plaintiffs, and from an order denying the defendants’ motion for a new trial.
    l liis action was brought by Willett Rowe, Samuel Hemingway, John Pearsall, Tredwell Pearsall and Sarah E. Eneas, against William M. Smith, Jesse Jones and George F. Lough, on a charter of the schooner, Jesse A. Woodhouse, to the defendants. The plaintiffs sought to recover freight and demurrage. The answer admitted the freight, but denied the right to recover any demurrage.
    The cause was tried on the 14th day of May, 1862, before Mr. Justice Barbour' and a Jury. It appeared by the evidence, that the vessel arrived in Hew York, on December 2d, with 4,360 bushels of salt. By the charter the defendants were bound to take this cargo in five days, 1,000 bushels a day, or pay demurrage.
    Salt is an article liable to duty, under the revenue laws, and can only be discharged on a permit granted by the surveyor, and in tubs gauged by the government, so that* it is measured as discharged.
    The substance of other testimony is stated in the opinion of the Court.
    The plaintiffs’ counsel stated the amount of the claim to be $563.39, with interest, amounting to $16.50, making $579.89, which the defendants’ counsel admitted to be the correct amount due for freight and demurrage, if anything was due for demurrage.
    The Judge in his charge stated, among other things, that “The evidence shows that the schooner, Jesse A. Woodhouse, arrived on Monday, December 2d, and that the captain reported to the charterer immediately, or on that day. The time then commenced to run on that day.” To which the defendants’ counsel excepted. * * *
    “The captain, in his deposition, states that the foreman of the storehouse said, in the first place, they could not take the salt; they had not room to store it. * * * He then told me, the captain says, that he could not take my cargo out until after the schooner Sound was discharged; he had to unload her first.” * * *
    “ The evidence of the captain shows further, that the Sound was not discharged till the 9th or 10th, and at tha time they commenced discharging this vessel. * * *
    “ If you believe that statement, gentlemen, the plaintiff is entitled to recover the Avhole amount claimed. The time would commence on the 2d, and she lay there until the 12th, one Sunday intervening. If you believe this evidence of the captain, the plaintiff is entitled to recover; for it Avas clearly the fault of the defendants that a place was not provided for the ship to discharge, and provision made for being discharged.” (To which the defendants’ counsel excepted.)
    The Jury found for the whole amount of demurrage claimed.
    After a motion for a new trial had been made and denied, and judgment had been entered, the defendants ‘appealed.

      John N. Whiting, for defendants, appellants.
    I. The Court erred in charging that the time for discharge of the cargo commenced to run when the captain reported to the charterer, on the 2d December. By the contract, it is the duty of the vessel to be ready to deliver the cargo beyond her own side. It is not enough to be alongside of a dock; she must be ready to discharge the cargo, and hand it to the consignee. For that purpose, the vessel must have a crew, tackles, shovels and all other requisite means for such delivery, not on board, but off from, that is alongside of the vessel.
    Tubs were as necessary for this purpose as a crew or shovels and tackles. If, on account of the regulation of the custom house, the tubs could not be obtained, then the fault is not that of the defendant, and he is not liable for the delay.
    H. The Court erred in charging “ it was clearly the fault of the defendants that a place was not provided for the ship to discharge, and provision made for being discharged.”
    III. The Court erred in refusing to charge as requested.
    TV. The amount of demurrage is excessive. The vessel did not get to her berth till the 3d of December.
    She was to carry 6,000 bushels, and to have one day per thousand bushels for discharging. That would take till the 10th, as one Sunday intervened.
    Demurrage could only be recovered for two days, if defendants were in fault.

      Robert D. Benedict, for defendants, respondents.
   By the Court—Moncrief, J.

The complaint, in this action, among other things, alleged an agreement “ that the defendants should have one working day for each one thousand bushels of salt, in New York, for discharging, and in case of detention beyond that time, twenty-five dollars for each day’s detention;” and again, “that the said vessel was also detained, in discharging, at the City of New York, five days beyond the time required in and by said charter;” the agreement itself provides for the payment of demurrage to the plaintiffs, * * “ for every day so detained, provided, such detention shall happen by default of the said parties of the second part (the defendants) or their agent.”

The answer of the defendants denied “that any demur-rage or sum of money whatever, by reason of any delay or detention in discharging at the port of New York, is chargeable to or payable by the defendants, under said charter party, or that said such delay, if any, was occasioned by the defendants and averred that * * # “ the delay or detention, if any, was occasioned by and is chargeable to the said plaintiffs.”

The issues to be determined, and the only dispute between the parties, appear to be:

1st. Was there any delay or detention; and,

2d. If there was delay or detention, by which party was it occasioned, and to whom is it chargeable.

The vessel arrived at this port on the 2d day of December, and was immediately reported, by the captain, to the defendants; he was directed where to proceed, with the view to the delivery of the cargo, and took his vessel to the place assigned to him on the night of the 2d or the next day, the 3d of December. - Lay days, by the general rule, commence to run from the time the vessel enters the dock. (1 Parsons on Maritime Law, 262, and cases there cited.) The vessel was not discharged until the 12th of December, and, it is apparent, the vessel was detained, at the port of Hew York, at least nine working days, (one Sunday, the 8th December, intervening between her arrival and discharge.)

Upon the remaining issue, to whom this delay is to be attributed and chargeable, there was considerable testimony of a conflicting character; the evidence of the captain tended to show a clear default, of the defendants; their refusal to discharge his vessel until after another vessel, the schooner Hound, was discharged. This testimony was corroborated by the fact, which I do not see anywhere contradicted, that the plaintiffs’ vessel did not commence to discharge until after the Hound was discharged, on the 10th of December. On the other side, the defendants offered evidence tending to show that the delay was caused by the inability to procure tubs from the government officers, into which to discharge the salt, &c., and upon this subject much testimony was given of a contradictory character. There was also evidence tending to show a direction to the captain to discharge the cargo, which put the delay upon the plaintiffs, but this evidence was also contradicted. Under such circumstances, the verdict of the Jury should be conclusive; the Jury having found a verdict for the plaintiffs, it should not be disturbed.

The defendants, upon the trial, admitted that the amount of the verdict is correct, “if anything was due for demurrage.” Hence, the suggestion that the evidence will not warrant the finding in favor of the plaintiffs for five days detention cannot be entertained.

The delivery,' by the terms of the charter party, was to be made “ alongside of the plaintiffs’ vessel, within reach of her tackle.” If, therefore, the' plaintiffs were directed to take their vessel to a certain dock, and the vessel was so takén, and was in readiness, alongside that dock, to discharge her cargo, on the 2d of December, the working lay days commenced to run from that time, and there was no error in the learned Justice so charging. Some of the exceptions to the charge embrace so much of the language used by the learned Judge as to render it impossible to discover what portion the exception was intended to cover; such exceptions are never entertained; a party must point out, with clearness and precision, the portion to which he objects; the part quoted, in the second point, on behalf of the appellants, is but a portion of the proposition submitted to the Jury, which, as a whole, is correct.

Perceiving no error prejudicial to the rights of the defendants, nor any ruling against them, which could have affected the Jury in rendering their verdict, I am of the opinion that the judgment should be affirmed.


author: By the Court—Bosworth, Ch. J.

text:
    Joseph W. Hartley, Plaintiff and Respondent, v. Benjamin Tatham and Rebecca C., his wife, (who were impleaded with Samuel W. Dunscomb et al.,) Defendants and Appellants.
    1. The assignee of a mortgage takes it subject to the same equities to which it was subject in the hands of the assignor'; and the rule that only equities residing in the original debtor, and not latent equities of third persons against the assignor, attach, does not exclude one who' so far stands in the place of the debtor as to have acquired his rights.
    2. Thus a grantee of the mortgaged premises, who has succeeded to the rights 'of the mortgagor, and is entitled to the same protection that the law extends to him, is entitled to be credited, as against an assignee of the mortgage, with an actual partial payment made by his vendor, to the mortgagee, while the latter held the mortgage, where the circumstances are such that ordinary precaution would have brought the fact of such payment to the knowledge of the assignee.
    3. Accepting a deed which, by its terms, conveys “subject to a mortgage,” describing it, but without any provision as to its payment, either in the deed or the contract under which it is given, does not estop the grantee from showing,' as against an assignee of the mortgage, who could have ascertained the fact by inquiry, that the mortgage had been in part paid before the deed was given and accepted.
    Before Bosworth, Ch. 7., and Moncrief and Robertson, J. J.)
    Heard, February 10, 1863;
    decided, February 28, 1863.
    Appeal from a judgment in favor of the plaintiff, after a trial of the cause at a Special Term, before' Mr. Justice Moncrief, without a Jury; on the 11th of November, 1862.
    This action was brought to foreclose a mortgage. The defendants were Samuel W. Dunscomb, Hubert Gelston, M. Dinkenspiel, William H. Eobinson, Elisha G. May, Joseph Black, Benjamin Tatham, Eebecca 0., his wife, Michael Ounningham, Mary his wife, Mary Ann Doherty, and P. W. Higginson. The mortgage in question was made by the defendant Cunningham and his wife, and dated on the 30th of May, 1861, upon premises on Second avenue, in the City of Hew York, to secure the payment of a bond at the same time given by Cunningham to the defendant, Samuel W. Dunscomb, conditioned for the payment of the siim of fifteen hundred, dollars to said Duns-comb, or his assigns, on the 30th day of May, in the year 1863, with interest thereon from May 30th, 1861, at the rate of seven per cent, payable semi-annually on the 30th of Hovember and May in each year.
    This action was brought to foreclose the mortgage for the whole sum due, upon a default in the payment of the interest which accrued upon the 30th of Hovember, 1861. It appeared that the mortgage was recorded on the 8th of June, 1861; that said Dunscomb, on the 13th day of May, 1862, duly assigned and transferred the bond and mortgage to the plaintiff, for a valuable consideration, and that the assignment was recorded, and that the plaintiff was still the owner of the bond and mortgage.
    The defendant, Tatham, who was, at the time of the action, the owner of the equity of redemption in the mortgaged premises, answered jointly with his wife, setting up, and on the trial offered proof of facts which may be briefly stated as follows: Some time before the execution of the mortgage in question, the premises belonged to the defendant, Dunscomb, who entered into an agreement with the defendant, Higginson, to sell and convey the premises to him, Avith other property, and Higginson agreed to erect eight houses thereon; and subsequently Higginson assigned that agreement, so far as it related to the premises in question, to one Alfred A. Arment, and authorized him to receive from Dunscomb the deed therefor, Arment agreeing to do the plumbing work upon all the houses to be erected, in part payment for the conveyance of these premises to him. Dunscomb consented to the assignment by Higginson to Arment, of the house and lot which composed the premises in question, and agreed, in writing, “to make and execute the conveyance of the same to the above named Alfred A. Arment,, upon the performance of said agreement. Said conveyance to be made when all the plumbing work shall be finished in said eight houses.” Dunscomb subsequently conveyed this lot to the defendant, Ounningham, and took back the mortgage in suit. After the making of that conveyance and mortgage, Arment assigned the contract assigned to him by Higginson, to the Bull’s Head Bank, as collateral security for a loan of $1,000; and Dunscomb assented to the assignment, and acknowledged the same to be correct. While the bank held this contract, the defendant, Ounningham, conveyed the mortgaged premises to one Smith, who, in turn, and at the instance of Arment, conveyed them to the defendant, Tatham, and, at about the same time, Arment assigned to Tatham all right, &e., which he had by virtue of the agreement between Higginson and Dunscomb, and also a certain debt for work done for Dunscomb in 1861, to the amount of 490.03, which amount Dunscomb had agreed to deduct from the $1,500 mortgage in suit. When Dunscomb assigned the mortgage in suit to the plaintiff, no deduction was made for the amount due Arment for his work.
    On the 9th of July, 1862, Tatham offered the bill of Arment, receipted for $490:03, and tendered to the plaintiff $1,267.54, the amount due on the mortgage, after deducting $490.03, which the plaintiff refused to accept.
    , These facts the Justice held were immaterial, and did not constitute any defense to the action, and accordingly granted the motion of the plaintiff’s counsel to strike out the evidence given in support of them. The defendants, Tatham and his wife, excepted to the conclusions of law, and took the present appeal.

      A. Clarke for defendants, appellants.
    I. The assignee of a chose in action, or of anything but commercial paper, when he takes it bona fide, is liable to all the equities which exist against the demand, while in the hands of the assignor. (Roberts v. Carter, 24 How. Pr., 44; Murray v. Lylburn, 2 Johns. Ch., 441; The Niagara Bank v. Rosevelt, 9 Cow., 409, affirming Hopkins’ Ch. R., 579 ; Mangles v. Dickson, 3 Ho. of L. Cases, 702; 18 Eng. Law and Eq., 82; Voorhies’ Code, 6th ed., 82, note (c.); Code of Procedure, §§ 111, 112.)
    1. A chose in action could not be assigned by the rules of the common law. (2 Bl. Com., 442.)
    2. The form of assignment was formerly, and still is in the nature of a declaration of trust, and a permission by the assignor to use his name, in order to recover the possession. (Ib.)
    3. Until the enactment of the Code of Procedure, therefore, when a debt or bond was assigned over, it had to be sued in the name of the original 'creditor, the person to whom it was transferred being rather an attorney than an assignee. (Ib.)
    4. When an action, under the former statute of set-off, was brought in the name of the party, by one to whom he had assigned it, the defendant had only to show that he had a right to make a set-off against .the nominal plain-. tiff. (Beckwith v. Union Bank, 4 Sandf., 610; affirmed, 5 Seld., 211.)
    5. Section 112 of the Code of Procedure was intended to preserve in the same manner, the rights of defendants, in cases where the suit was prosecuted in the name of the assignee, as required by section 111. (Beckwith v. Union Bank, supra.)

    6. The right of assignees will be protected only against persons who have either express or implied notice of the assignment. (Johnson v. Bloodgood, 1 Johns. Cas., 51; Wardell v. Eden, 2 Johns. Cas., 121; Van Vechten v. Graves, 4 Johns., 403; see 12 Johns., 343; 19 Id., 95 ; 4 Barb., 47; Stuyvesant v. Hall, 2 Barb. Ch., 151; Truscott v. King, 6 Barb., 346 ; Schutt v. Large, 6 Barb., 373.)
    II. The assignee of a bond and mortgage takes it subject to all the existing equities between his immediate assignor, and the owner of the equity of redemption, whether such owner was the mortgagor or one who had succeeded to his rights by one or several conveyances. (Mickles v. Townsend, 18 N. Y. R., 579; Davies v. Austen, 1 Ves. Jr., 241; Coles v. Jones, 2 Vern., 692; Matthews v. Wallwyn, 4 Ves., 118.)
    1. He cannot be protected in equity as a bona fide purchaser without notice, unless he has acquired the legal as well as the equitable title. (Peabody v. Fenton, 3 Barb. Ch., 451.)
    2. The assignee of a chose in action, not negotiable, obtains only an equitable interest, and is not protected against a prior equity. (Gay v. Gay, 10 Paige, 369.)
    Yarious other sums proved by the defendants to have incumbered the property, besides the sum of $490.03, for plumbing work done by Arment, for Dnnscomb, before the date of the assignment of the bond and mortgage, and which debt or claim was duly assigned by the said Arment to the said defendant, before the assignment to the plaintiff of the said bond and mortgage, amounting' together to the sum of $1,136.38, are a legal and equitable offset to the sum alleged in the complaint to be due on the said bond and mortgage. (Niagara Bank v. Rosevelt, 9 Cow., 402; aff’g Hopkins, 579; Hadley v. Chapin, 11 Paige, 245; Ferreira v. Depew, 4 Abbott’s Pr., 131; Voorhies’ Code, 6th ed., 221, note [h.])
    IV. The agreement to deduct the amount of the work to be done by Arment, and the acceptance by Dunscomb of the work, is a payment pro tanto. (Bouv. Dic., verb “Payment,”) and discharges the debtor from his obligation, to the extent of the payment. (Davis v. Spencer, 24 N. Y. R., 391; 1 Hopk., 579; 9 Cow., 409; Brown v. Feeter, 7 Wend., 301; Eaves v. Henderson, 17 Wend., 190; Toll v. Hiller, 11 Paige, 228 ; Cameron v. Fowler, 5 Hill, 306; 5 Cow., 671; 26 Wend., 555; 2 Paige, 605.)
    4. Payment may be made by the real debtor and other persons from whom the creditor had a right to demand it; an agent may make payment for his principal, and any mode of payment by the agent, accepted and received as such by the creditor, as an absolute payment, will have the effect to discharge the principal, whether known or unknown, and whether it be iff the usual course of business or not. (3 Chitt. Com. Law, 204; 1 B. & Ald., 14; 6 B. & C., 160; 7 Barn. & Cress., 17; Bouv. Dic., “ Payment.”
    V. There was no interest due on the bond and mortgage, as alleged in the complaint, either on the 30th of November, 1861, or at the time of the assignment of the bond and mortgage by Dunscomb to the plaintiff.
    VI. Where the principal is not, but the interest is due, a payment must be applied first to the interest, and the residue to the principal first to become due. (People v. County of New York, 5 Cow., 331; Jencks v. Alexander, 11 Paige, 619; The State of Connecticut v. Jackson, 1 Johns. Ch., 13; Allen v. Culver, 3 Denio, 284.)
    VII. Defendant’s offer to the plaintiff of the receipted bill of Arment for work done for Dunscomb; and his tender to the plaintiff of the balance due for principal, interest, and costs, which plaintiff refused to accept, discharges the lien of the mortgage. (Jackson v. Crafts, 18 Johns., 110; Edwards v. Farmers' Fire Ins. and Loan Co.,
      21 Wend, 467, affirmed 26 Id., 555; Arnot v. Post, 6 Hill, 65; Kortright v. Cady, 21 N. Y. R., 343.)
    VII. The demand is available as a set-off. (Code, § 150, 2 R. S., 4th ed., p. 604, § 12; see Schutt v. Large, 6 Barb., 373; Stuyvesant v. Hall, 2 Barb. Ch., 151; Truscott v. King, 6 Barb., 346; Mickles v. Townsend, 18 N. Y. R., 578; see Downer v. Eggleston, 15 Wend., 51; Lignot v. Redding, 4 E. D. Smith, 285; Bouv. Dic., “ Liquidated.”)
    IX. The defendant may set forth, by answer, any new matter constituting a defense or counterclaim, and as many defenses and counterclaims as he may have. (Code, §§ 149, 150 ; see Ferreira v. Depew, 4 Abbotts’ Pr., 131; Voorhies’ Code, 6th ed., p. 221, note (h), and cases cited; Dillaye v. Niles, 4 Abbotts’ Pr., 253; Vassear v. Livingston, 3 Kernan, 256; Pattison v. Richards, 22 Barb., 146; Gleason v. Moen, 2 Duer, 642; Code, 6th ed., pp. 218, 219, notes (a) and (g).

      D. M. Porter, for plaintiff, respondent.
    I. The evidence was properly stricken out, and judgment directed for the respondent, inasmuch as this was the debt of Cunningham, and, as after the contract between Arment and Dunscomb had been entered into and performed, or nearly so,' the appellants took the premises by deed, subject to this mortgage, and are estopped from setting up any equities existing at that time, as, by accepting the deed, they agreed the land should pay the debt secured by it. (Ferris v. Crawford, 2 Denio, 595.) The contract of Arment was in existence, and they ought to have provided for it by a reservation in the deed, in order that it might appear of record. Ho assignment of the right to offset the account was made by Arment to Tatham. At most, this was only a latent equity residing in a third person, not against the debtor and mortgagor, but against the obligee, and cannot be set up as against the respondent. (Murray v. Lylburn, 2 Johns. Ch., 441; Livingston v. Dean, Id., 479 ; 2 Wash., 233; 1 Dow’s Cas., 50; 19 How. Pr., 184; McFarlane v. Griffith, 4 Wash. C. C. 585.)
    I. The bond and mortgage were not due at the time the respondent took the assignment, but became due by his subsequent election, upon a default of interest, consequently no right of set-off existed, as both claims must be due at the time. (Watt v. The Mayor, &c., 1 Sandf., 23.) Again, the appellants cannot base any defense upon the Higginson contract, because at the time Arment entered into the contract for the work in question, the contract for the house (Higginson’s contract) has been transferred to the Bull’s Head Bank, and the bank held it until after this action was commenced, when the appellants took a transfer of it from the bank, and it was assigned to the appellants without Dunscomb’s consent, contrary to its provisions, ffone of these contracts were recorded. There can be no pretense that the respondent had notice of any claim of the appellants, or Arment, before he took the transfer of the bond and mortgage.
    This was not an equity between debtor and creditor, but between the creditor and a third party; therefore, the respondent, if he had gone to Ounuingham to inquire as to the appellants’ equity, could not have learned anything of it, because the debtor was not a party to the transaction between Arment and Dunscomb; consequently the rule is different than it would have been if Ounuingham had had such an equity.
    The cases cited by the appellant, are not applicable to the case, inasmuch as, in those cases, the whole amount due was tendered. Here, only a part of what was due, was tendered, which was a nullity, and the evidence did not make out a defense; therefore, the judgment should be affirmed, with costs.
    III. In further support of these points, see Ferris v. Crawford, (2 Den., 598;) Opinion of Mason, J. in Hartley v. Harrison, (24 N. Y. R., 170;) Burr v. Beers, (24 Id., 178;) James v. Morey, (2 Cow., 246.)
   By the Court—Bosworth, Ch. J.

This action is brought to foreclose a mortgage, dated May 30th, 1861, executed by Michael Ounuingham and wife to Samuel W. Dunscomb, and by the latter assigned to the plaintiff, May-13, 1862.

The defense is founded, in part, on the allegation that while Dunscomb owned the mortgage, one Alfred A. Arment, who, by a written contract with one Higginson, to which Dunscomb was a party, had contracted for a deed of the premises in question, subject to this and a prior mortgage of $4,000, by agreement between him and Duns-comb, performed work and labor to the amount of $490.03, in part payment of this mortgage. That in execution of said written contract, the deed, at Arment’s request, was executed to Tatham, instead of Arment, January 26,1862. The habendum clause of this deed is: “To have and to hold * * subject, however, * * to a certain other indenture of mortgage for $1,500, dated May 30, 1861, and recorded,” &c., being the mortgage in question. The deed does not declare that Tatham.is to pay this mortgage, nor did the agreement between Higginson and Arment require him to do it. That stipulates for a deed of the premises to Arment, free and clear of all incumbrances,” except the said sum of $1,500.” Arment was to do plumbing work to the amount of $3,600 for Higginson, as a consideration for such conveyance, and did the work. The agreement between Arment and Dunscomb for doing the work, &c., "amounting to $490.03, was made prior to January, 1862, and was completed as early as April 8th, 1862; and on the 3d of May, 1862, Arment assigned to Tatham this claim for work, amounting to $490.03. The assignment recites that the work, &c., creating the debt, was done for Dunscomb, upon his agreement to credit the amount on this mortgage. The assignment of the mortgage to the plaintiff was made on the 13th of May, 1862. The important question is, whether Tatham is entitled to be credited with this sum on the mortgage.

A finding by the Court, or. the verdict of a Jury, to the effect that the work was done by Arment, under an agreement between him and Dunscomb, that the amount of it should be in payment of the mortgage pro tanto, could not be disturbed as contrary to evidence given, and subsequently stricken from the case against the objection and exception of Tatham.

If the mortgagor had paid $490 AA on the mortgage before it was assigned, the assignee would necessarily have taken it subject to such payment. That position is not controverted. ,

But it is insisted that this 'equity on behalf of Arment and Tatham is a latent one in a third person, and one existing between him and the mortgagee only, and that the assignee cannot be affected by it.

It was necessary for Arment to pay off the mortgages, or suffer the property to be sold to satisfy them. He was not personally liable to pay them, because he never agreed to do so. If he had agreed to pay them, off, he would be personally liable to pay them, (Burr v. Beers, 24 N. Y. R., 178,) and as between himself and the mortgagor, would have been, in equity, the principal debtor.

Arment, at the time that he agreed with Dunscomb to do work, in payment, to the extent of the value of such work, upon this mortgage, had a valid contract for a deed of the premises in question. To this contract, Dunscomb was so far a party that he assented to it, in such wise that the deed, when executed, was to be executed by him or by some one holding the title for him. And Arment was either to pay the mortgages, in discharge of the liability of the mortgagor, or lose all he paid for the premises, by a foreclosure and sale of the mortgaged premises.

It is said, in the opinion in James v. Morey, (2 Cowen, 298,) that “the assignee can always go to the debtor, and ascertain what claims he may have against the bond or other chose in action, which he is about purchasing from the obligee; but he may not be able, with the utmost diligence, to ascertain the latent equity of some third person against the obligee. He has not any object to which he can direct his inquiries, and for this reason the claim of the assignee, without notice of a chose in action, was prefered in the late case of Redfearn v. Ferrier, (1 Dow’s Cas., 50,) to that of a third party setting up a secret equity against the assignor.”

' A rigid application of these rules to the present case, cannot produce a result adverse to Tatham. An inquiry of the mortgagor would, presumptively, have informed him of the fact of this payment. If the plaintiff did not have notice of it when he took the assignment, he obtained it the same evening, and within a few hours thereafter.

The deed from Smith to Tatham was recorded over two months before the mortgage was assigned to the plaintiff, and as that deed was subject to this mortgage, It pointed out Tatham as a person interested to pay the mortgage, and one who had a right to pay it, even though he may have been under no legal obligation to do so. He was a proper person to a,sk whether he had made any payments upon it or not.

The case of James v. Morey, (supra,) is unlike this in its essential particulars. In that case, the mortgagee, before assigning the mortgage, had become the owner of the equity of redemption, and might, at his election, treat his estate as mortgagee, as merged in the legal estate, or preserve it as a separate estate.

After assigning the mortgage, he quit-claimed the mortgaged premises to the respondent. The latent equity was that of the respondent under such deed, who took it, ignorant of the previous assignment of the mortgage. (Id., 2 Cow., 283.) The mortgage was enforced in behalf of the assignee, as a valid and subsisting security.

Assuming the fact to be that Arment paid to Duns-comb upon this mortgage, while the latter owned it, the sum of $490.03, it is difficult to conceive of any sound considerations of justice, or equity which will make the payment less efficient than if the same sum had been paid at the same time by Ounningham. Payment by the latter, before the assignment, would be allowed, and so would a payment subsequent to the assignment, and before notice of the assignment. (James v. Morey, 2 Cow., 297; 3 R. S., 5th ed., p. 59, § 74, [sec. 41.])

The gist of Redfearn v. Ferrier, (supra,) may be stated thus: On the books of a stock company, one Stewart appeared to be the owner of a certain number of its shares. By the rales of the company, such shares could be owned by individuals only, not by firms, as such.. He assigned the shares to Eedfearn, as security for moneys advanced optima fide, and it was sought to be shown, to defeát the claim of such an assignee, that Stewart, in fact, held the stock for a firm, who were the true equitable owners. The question was whether this latent equity of the firm against the assignee could defeat such an assignee’s title; and, on the facts and circumstances of the case, it was held that it could not.

That case, too, is essentially unlike the present.

The true rule deducible from the cases, I understand to be this: The assignee of a mortgage, takes it subject to the same equity that it was subject to in the hands of the assignor. And the rule, that it is only an equity residing in the original debtor, and not the latent equities of third persons against the assignor that have this effect, does not exclude any one who so far stands in the place of the debtor as to have acquired his equity. It does not exclude a judgment .creditor of the debtor, claiming to-redeem. (Roosevelt v. Bank of Niagara, Hopk., 579; United States v. Sturges, 1 Paine, 525.)

By force of the contracts between Higginson and Duns-comb, (of the 23d of April, 1860, and of the 24th of April, I860,) and of the contracts between Higginson and Arment, (of the date of March 30,-1861,) and Dunscomb’s written assent and cotemporaneous agreement in relation thereto, and of Arment’s assignment to the Bull’s Head Bank, and through the Bank to Tatham, of the right to a deed of the premises in question, and of the execution of such deed to Tatham, and the payment by Arment of the $490.03 on the mortgage, and the formal assignment May 3, 1862, by Arment to Tatham of this claim, and of his right to have it applied as a payment, Tatham was substituted in place of the mortgagor and Arment, with all their rights, equitable as well as legal.

As between him and the mortgagor, the property was a security for the payment of the amount due on the mortgage, because it had been, and, by the aforesaid agreements, was to be conveyed, subject to this and the prior mortgage of $4,000. The mortgage debts, as between the mortgagor and Arment, (or as between the mortgagor and Tatham,) Arment and Tatham were in equity bound to pay, if the premises were an adequate security for their payment. Such being the position of Tatham, he did pay $490.03 on the mortgage while Duuscomb owned it. He, at that time, stood in the place of the mortgagor, and was clothed with all his rights, and his equity to be protected in such payment is as clear as that of the mortgagor would have been, if he had made the payment personally.

From the time of the recording of the deed to Tatham, the record disclosed him as the person having the right, and being under an equitable obligation to pay the mortgage, in exoneration of the personal liability of the mortgagor. He was, therefore, a person, of whom it "was as proper and as much the duty of one about taking an assignment of the mortgage, to inquire as to the fact of payments, as the mortgagor himself.

It is not therefore the case of a defendant attempting to set up against the assignee of a mortgage, the latent equity of a third person against the mortgagee, but the case of one who has succeeded to the rights of the mortgagor and is entitled to the same protection that the law extends to him, insisting upon the fact of an actual partial payment to the mortgagee while he owned the mortgage; a . fact which ordinary precaution would have brought to the knowledge of the assignee, whether he had inquired of the mortgagor or of Tatham.

It is insisted, however, that taking the deed, subject to the mortgage, estops Tatham from questioning the fact of its being a valid security for the face of it.

The deed does not state that no part of it has been paid, and no authority has been cited, which tends to the. support of the proposition, that taking a deed in the form of the deed to Tatham, precludes the grantee from showing that the mortgage has been, in part, paid before the deed was given and accepted.

If the deed had not only, "in terms, been subject to this mortgage, but also declared that the whole amount was unpaid, and that the grantee assumed the payment of it, he might, possibly, be precluded from showing, as between himself and a l)ona fide assignee of the mortgage, the fact of a partial payment. (Burr v. Beers, 24 N. Y. R., 178; and, Hartley v. Harrison, Id., 170.)

But no such question arises here; I think, therefore, that the decision, at Special Term, excluding evidence of the defense, consisting of the facts before stated, and striking from the case the evidence that had been given in support of it, was erroneous, and that the judgment should be reversed, and a new trial granted, with costs to abide the event.


author: By the Court—Robertson, J.

text:
    Franklin H. Delano, Plaintiff and Respondent, v. La Q. Rawson, (who was impleaded with David J. Cory et al.,) Defendant and Appellant.
    1. The failure of goods sold to correspond with a description or warranty of them, in the contract of sale, does not constitute a defense, either as a failure of consideration or breach of warranty, to the liability of a third party upon a promissory note given by him and accepted as payment of the the price of such goods. Any remedy for such misrepresentation or breach of warranty is confined solely to the purchaser by action against the seller, (Before Bosworth, Oh. J., and Moncrief and Robertson, J. J.)
    Heard, February 10, 1863;
    decided, February 28, 1863.
    This was an appeal from a judgment entered in favor of the plaintiff, upon a verdict recovered on a trial before Mr. Justice Mororibf and a Jury, on the 21st May, 1862..
    In this action, La Q. Eawson, David J. Cory and Squire Carlin, were originally named as defendants, but the sumrnons was served only upon the defendant, Eawson, and no proceedings were taken against the other defendants.
    The action was brought on three promissory notes, which were made by the defendant, Eawson, payable to the order of the defendant Gory, at a bank in New York. They were indorsed specially, “Pay to the Cumberland and Pennsylvania Eailroad Company,” which indorsement was subscribed by defendants, Carlin and Cory, the former first. Then followed another special indorsement thereon, “Pay Mt. Savage Iron Company or order,” which was subscribed “ C. Stark, Superintendent O. & P. E. E. Co.,” and a third indorsement, “Mt. Savage Iron Co.,” subscribed by “ Jno. A. Graham, President.”
    The defendant, Eawson, set up in his answer that he, Cory and Carlin, being officers and directors of the Fremont and Indiana Eailroad Company, by and on behalf of said company, executed and delivered the notes in question to the Columbia and Pennsylvania Eailroad Company, which notes were, as they matured, to be paid by the corporation on whose behalf the defendants made them; and that the notes were given upon the purchase, by their corporation, of two locomotive engines from the Cumberland and Pennsylvania Eailroad Company, to be of good materials and workmanship, in good repair and working order. That such notes were delivered before the engines were, “ as payment for the same,” and upon condition that the latter should be delivered as before described: that the latter company failed to deliver such engines for two months, and thereby caused gTeat expense to the former company for other engines, and when delivered they were not of good materials and workmanship, or in good repair or working order, and were worth much less than their cost, which the vendors well knew, by reason whereof the former company suffered damage exceeding the amount of such notes and interest. That the plaintiff took such notes with full knowledge of the consideration of the notes, the partial failure of such consideration, the agreement for the sale of the engines, the original delivery of the notes, and the small value of such engines.
    On the trial, the counsel for the defendant, Cory, offered to prove the sale of the two locomotive engines to the Fremont and Indiana Railroad Company, for a certain sum, payable by - the notes in suit, and a statement or representation, at the time of such sale, of the condition of such engines, affecting their value; the delivery of such engines to the purchasers; the transfer of such notes to the Mount Savage Iron Company, before maturity, and by them to the plaintiff, for value; also the knowledge by the plaintiff, at the time of taking the same, of the original sale, and of complaints made by the purchásers of the engines that the representations in regard to them were untrue, and their claim to set up, by way of recoupment or offset, the difference between their value and the price paid. He also offered to prove injury sustained by his company by the delay in delivering thé engines, and knowledge thereof by the plaintiff. He also offered to prove that the plaintiff was a director both in the Cumberland Railroad Company and in the Mount Savage Iron Company, and knowledge by him of a partial failure of consideration.
    To all such evidence the plaintiff objected, and it was excluded, to which ruling the defendants’ counsel excepted.
    On the trial, two motions were made by the defendants’ counsel to. amend the answer, and were denied. The first was to allege knowledge on the part of the Mount Savagó Iron Company of the facts stated in the answer, as to the sale of the engines, the origin of the notes and defense set up in the answer. The second was to allege fraudulent representations by the Cumberland Railroad Company, on which the sales of the engines were made.
    The Court charged the Jury that the defendants had offered to prove a failure of consideration which he had excluded, and that, as there was no disputed question of fact to be submitted, the plaintiff was entitled to a verdict.
    To this charge the counsel for the defendant excepted. The Jury rendered a verdict for the plaintiff for $6,671.30.

      Edward Fitch, for defendant, appellant;—
    I. If the plaintiff took the notes, with notice of the facts impeaching their validity, he was not entitled to recover upon them as a bona fide holder. (Edw. on Bills, 312; Cone v. Baldwin, 12 Pick., 545 ; Rumsey v. Leek, 5 Wend., 20 ; Hall v. Hale, 8 Conn. R., 336; Skelding v. Warner, 15 Johns., 270; Small v. Smith, 1 Denio, 583.)
    The Court erred, therefore, in rejecting the testimony offered to establish these facts, and the plaintiff’s knowledge of them.
    II. Graham, the indorser to the plaintiff, was the same person who made the representations and statements of which the defendant complains. It cannot, therefore, be claimed that the plaintiff received the notes from a bona fide holder; and the defendant was entitled, upon proving notice to the plaintiff, to establish any defense to the notes in his hands which he could maintain against the original holder.
    The Court, therefore, erred in directing a verdict for the plaintiff.

      James F. Lyman, for plaintiff, respondent.
    ' I. Leave to amend was properly refused, (Code, §§ 169, 171, 173; Fagen v. Davison, 2 Duer, 153; Hunt v. Hudson River Fire Ins. Co., 2 Id., 481; N. Y. Marbled Iron Works v. Smith, 4 Id., 362; Grosvenor v. Atlantic Fire Ins. Co., 1 Bosw., 469;) and the refusal, resting in discretion, cannot be now reviewed. (St. John v. West, 3 Code Rep., 85; Ford v. David, 1 Bosw., 570; Travis v. Barger, 24 Barb., 614; Phincle v. Vaughan, 12 Id., 215; N. Y. Marbled Iron Works v. Smith, 4 Duer, 362; Hendricks v. Decker, 35 Barb., 298.)
    II. Evidence of a breach of warranty was properly rejected.
    1. No Express warranty was alleged in the answer.
    2. The sale was of two specific engines already in existence, and, therefore, none was implied. (Milburn v. Belloni, 22 How. Pr., 19; Keates v. Cadogan, 2 Eng. L. & Eq., 320.)

      III. The sale having been made without any warranty, express or implied, if the engines turned out to be worth less than was expected, the loss must be borne by the pur chaser. (Per Woodworth, J., Swett v. Colgate, 20 Johns., 203.)
    IV. There having been no false representation, and no warranty, evidence that the engines turned out after the sale to be worth less than was expected, or that they were not delivered in time, did not show bad faith in the purchase of the notes in the parties through whom they came to the plaintiff, and in the plaintiff, and was properly rejected. (Mickles v. Colvin, 4 Barb., 304.)
    V. Evidence, as offered, that the notes were originally given under a particular agreement with the Cumberland and Pennsylvania, Railroad Company for the sale and delivery of certain engines, and of a breach of that agreement, constituting a partial failure in the consideration of the notes, and of knowledge by the plaintiff of such partial failure, was properly rejected.
    VI. The notes having been indorsed by Cory, in blank,, passed by delivery to the Mount Savage Iron Company, and the possession of them by that company before maturity, was evidence of its title to them, and, no knowledge by it of any defense to them having been alleged in the answer, that title, whatever may have been the title of the Cumberland and Pennsylvania Railroad Company, was not affected by any breach in the agreement under which the notes were originally given, nor by any failure in the. consideration of them, if there was any. (Per Denio, J., Davis v. McCready, 17 N. Y. R., [3 Smith,] 230; Watervliet Bank v. White, 1 Den., 608; Chitty on Bills, 79; Smith v. Knox, 3 Esp., 46; Charles v. Marsden, 1 Taunt., 224; Brown v. Mott, 7 Johns., 361; Mottram v. Mills, 1 Sandf., 37 ; Hargous v. Lahens, 3 Id., 213; Manhattan Co. v. Reynolds, 2 Hill, 140; Baker v. Arnold, 3 Cai., 279; Shell v. Telford, 4 N. Y. Leg. Obs., 307.)
    . VII. The transfer of the notes for value before maturity, by the Mount Savage Iron Company to the plaintiff, either by its indorsement, through its proper representative, or by the delivery of them, indorsed by Cory, in blank, was sufficient.
    VIII. The rights of the plaintiff are the same with those of the Mount Savage Iron Company, by whom the notes were transferred to him, and his action is subject to no defense, which did not exist against that company. (Chitty on Bills, 79; Goddard v. Lyman, 14 Pick., 268; 3 Kent [5th ed.] 92; Britton v. Hall, 1 Hilt., 528.)
   By the Court—Robertson, J.

Ho consideration seems to have passed between the maker of the notes in question and the first indorser and payee, Cory, notwithstanding the special indorsement by the latter, making it payable to the Cumberland and Pennsylvania railroad alone, and not to their order, it was still negotiable in their hands. (Leavitt v. Putnam, 3 Comst., 494.) If there had been any defense, therefore, as between the maker and such special payee, it would not have been available against any subsequent transferee of- the note, without notice thereof to each purchaser through whose hands it passed.

The defendant, Rawson, however, is alleged to have lent his responsibility, as maker of the note, to the Fremont and Indiana Railroad Company, to pay the purchase-money of two locomotive engines bought by that company of the Cumberland and Pennsylvania Railroad Company, the indorsees. Such notes Were received in payment, and the purchasers of the engines were discharged from all liability to pay for them. Ho damage ensued to the maker of these notes, by the failure of the engines to correspond with any description, representation or warranty of them. If the maker had paid them he could not recover back the sum paid by reason of. any deficiency in the engines: He is in no better position than the maker of any other note belonging to the Fremont Railroad Company, which they held for value. He is in no better or worse position than if he had originally lent the money to the company with which to pay for the engines. The time the notes had to run was a mere postponement of the day of payment on such loan. The remedy of the defendant is against the company, to be indemnified for the money he has to pay, at their request. The remedy of the company against the vendors of the engines, is by action for fraud, failure of consideration, or breach of warranty. There is no contract outstanding between those two companies, in which the purchaser can avail himself of any failure of consideration.

It is hardly necessary to add, that even if the defendant were only a surety, but by a separate contract, he could not avail himself of any matter which could form the subject of a separate action by his principal, since he could not bind that principal by his elect! jn to employ it as a defense. This is fully settled in the Court of Appeals, in the recent case of Gillespie v. Torrance, (25 N. Y. R., 306; S. C., below, in 4 Bosw., 36.) For these reasons I think the exclusion of the testimony offered was proper and the charge of the Judge correct.

The judgment entered should be affirmed, with costs.


author: By the Court — Bosworth, Ch. J. Robertson, J.

text:
    Frederick M. Behrle, Plaintiff, v. Austin Sherman et al., Defendants.
    1. In an action upon an administration bond, to recover upon the administrator’s disobedience of an order of the Surrogate, requiring payment of a debt, &c., of the intestate, the plaintiff must show that an application was made by the creditor, and that a citation was issued thereupon, and either the fact of the service of such citation, or the proof of its service which was presented before the Surrogate.
    2. If the Surrogate’s jurisdiction of the person be thus shown, his decree must . be treated, in such a collateral action, as valid, though no evidence be given that he, in fact, received proof of the claim of the creditor applying, and of the condition and applicability of the assets.

      3. Where the complaint in such an action did not state that any application was made, and simply averred that “the administratrix was.duly cited," &c., to show cause on the 8th of March, &c., setting forth the purport of the citation; and that “on or about that day," “upon reading and filing proof of the due service of said citation upon said administratrix personally,” &c., and on due proof of the claim, &c., it was adjudged, &c.; and the
    • answer denied that the administratrix was duly cited, and that the Surrogate duly or pursuant to the statute adjudged, &e., and there was no evidence, except the recitals in the decree, that proof of due service had been read and filed; — Held that jurisdiction was not admitted nor shown.
    4. To sustain such an action it must also appear that the execution issued on the docketed certificate of the decree conformed, in substance, with the requirements of the statute.
    (Before Bosworth, Ch. T., and Moncrief and Robertson, T. J.)
    Heard, February 12, 1863;
    decided, February 28, 1863.
    Oh the trial of this cause, which was had on the 16th of October, 1862, before Chief Justice Bosworth and a Jury, the Court directed a verdict for the plaintiff, and that the questions of law, arising in the case, be heard in the first instance at General Term, and that the entry of judgment be suspended in the meantime.
    The defendants in the action were Adeline C. Gunter, who was the administratrix of one Harmon H. Gunter, and Austin Sherman and John S. Savery, who were the sureties in the administration bond given by her on her appointment in Queens County. The action was brought upon the bond, after an assignment thereof by the Surrogate of Queens County, to recover the amount of certain payments which the Surrogate had ordered the administratrix to make to creditors of the intestate, but which she had failed to make. The complaint in the action, after alleging the making of the bond, &c., averred, “ that after-wards, to wit: after six months had elapsed from the time when such letters of administration were granted, according to the statute in such case made and provided, the said administratrix was duly cited by the said Surrogate to show cause'at the Surrogate’s office, or Court, in the village of Jamaica, in said county, on the 8th day of March, 1858, at eleven o’clock, a. m., why the said Surrogate should not decree payment agaiiist her, the said administratrix, of the debt or claim of Mary Feely, Margaret Mahoney, and Sarah McLaughlin, for services rendered bythem respectively, at the request of said Harmon H. Gunter, deceased, during his lifetime, against the said Harmon H. Gunter, deceased. That on or about the day and year last aforesaid, upon reading and filing proof of the due service of the said citation upon said administratrix, personally, no one appearing to oppose, and upon due proof of the rendition of the services to said Harmon H. Gunter, by the said Feely, Mahoney, and McLaughlin, respectively, of the value thereof, and of their respective claims against.the estate of said Gunter, deceased, and their respective claims against said administratrix; it was ordered, adjudged, and decreed, at the Surrogate’s Oourt, held at the place aforesaid, that the said administratrix pay to the said Mary Feely the sum of $111.20; to the said Margaret Mahoney the sum of $89.42; and to the said Sarah McLaughlin the sum of $82, pursuant to the statute in such case made and provided.”
    It further averred that this decree was duly docketed, and executions thereon issued and returned unsatisfied, and that the administratrix neglected to pay as required, and that the bond had been assigned to the plaintiff and the said Feely and McLaughlin, for the purpose of being prosecuted, and, further, that before the commencement of this action the demands and the interest in the bond of the creditors named had been assigned to the plaintiff.
    The defendant, Sherman, answered, denying various allegations in the complaint, and, among others, denying “that the administratrix was duly cited by the said Surrogate as or for the purpose in the complaint alleged.” He denied also “that the alleged claimants or either of them, had rendered alleged services, or had any claim against the decedent.”
    And he denied “that at said Surrogate’s Oourt, at the time in the complaint alleged, or at any time, it was duly or pursuant to the statute in such case made and provided, ordered, adjudged, or decreed, that the said administratrix pay to the persons in the complaint alleged or either of them the said three several sums in the complaint alleged, or either of them.”
    Upon the trial the plaintiff’s counsel offered in evidence a certified copy of a decree made by the Surrogate, and bearing date the 14th day of April, 1858, requiring the administratrix to pay specified sums to Feely, Mahoney and McLaughlin. The recitals of this order were as follows : “A citation having been duly issued in this matter, requiring Adeline 0. Gunter, administratrix, &c., as aforesaid, to show cause, at the Surrogate’s office, in the village of Jamaica, in the County of Queens, on the eighth day of March, 1858, at eleven o’clock in the forenoon of that day, why the Surrogate of said county should not decree payment against her, the* said administratrix as aforesaid, of the debts or claims of Mary Feely, Margaret Mahony and Sarah McLaughlin, for services rendered by them respectively at the instance and request of the said Harmon H. Gunter, deceased, during his lifetime, against the said Harmon H. Gunter, deceased.”
    “ How, on reading and filing proof of the due service of the said citation upon the said Adeline 0. Gunter, administratrix as aforesaid, personally, no one appearing to oppose: It is ordered,” &c.
    This order was admitted in evidence, against an objection by the defendant’s counsel, of want of jurisdiction in the Surrogate over the person of the administratrix, or the subject matter; and the defendants’ counsel excepted.
    The plaintiff’s counsel also offered in evidence an order dated the 14th of August, 1858, assigning the bond for prosecution, and also the bond and the assignments of the cause of action under which the plaintiff claimed.
    The defendant, among other things, objected that the answer denied the issuing of executions, which was necessary to give jurisdiction to the Surrogate to make the order of the 14th of August, 1858, assigning the bond for prosecution, and that there was no proof that such or any executions had been issued.

      . The Court sustained the objection, and thereupon Felix Hart, the attorney for the plaintiff, was called on the part of the plaintiff as a witness, and testified: “I was the attorney for Mary Feely, Margaret Mahoney, and Sarah McLaughlin; I attended for those applicants before the Surrogate of Queens County; I issued executions on the decree of the Surrogate; I delivered them to the under Sheriff of Sheriff Willett, in the Sheriff’s office, on the 23d day of April, 1858; I subsequently saw those executions on file; Í was present when they were returned by the Sheriff unsatisfied; the Sheriff’s indorsement was on them to the effect that no goods, or chattels or real estate were to be found; I recognized the handwritingof the under Sheriff. * * * I have looked over the files in the County Clerk’s office for these executions diligently with Mr. Kipp, [a clerk in "the County Clerk’suffice;] * * they were not found. * *
    Q. Did you issue them for the sums named in the order of the Surrogate ?
    A. I did, sir, for the exact amounts, and for the amounts mentioned in the complaint. * * * I told the title of the case to Mr. Kipp, ‘ In the matter of the claim of Feely, Mahoney and McLaughlin against Adeline Gunter;’ we searched under that title.
    Q. State the contents of those executions as clearly as you can.
    A. I used the ordinary printed blank executions directed to the Sheriff of this county, to collect in the matter of the claims I have just stated; I put the title I have mentioned in each of the collections, to collect the sums of money mentioned in the complaint, * * * . directing him to
    return these executions to the office of the Clerk of the Supreme Court of the City and County of Hew York; I signed them as attorney, and tested them in the name of T. W. Gierke, one of the Justices of the Supreme Court.
    Q. In what time were they ordered to be returned?
    A. Within sixty days after the receipt of them by him, they were in due form; I think they were returned within two weeks.

      The defendant’s counsel objected to the sufficiency of such proof to support the plaintiff’s allegation as to the executions. The objection was overruled by the Court, and the defendant’s counsel excepted.
    The plaintiff’s counsel also produced and put in evidence a certificate of the Surrogate, dated the 14th of April, 1858, and certifying that on the 8th day of March it was ordered in his Court that the administratrix pay the sums specified, and that the decree directing such payments had been duly entered. The defendant’s counsel objected that such executions being issued and tested as on a judgment of the Supreme Court, and returned in less than sixty days, were not duly issued or duly returned, pursuant to the statute, which requires that such executions shall be issued on such certificate, in the same manner as though the same was a judgment recovered in the Court of Common Pleas. This objection was overruled by the Court, and the defendant’s counsel excepted.
    The defendant’s counsel then offered, among other things, evidence that the intestate left no assets, and that there Avere judgments against him outstanding for considerable sums, and. that no inventory had been filed at the time of the citation, which evidence was excluded upon the defendant’s objection that it was not competent to impeach the propriety of the Surrogate’s decree.
    The defendant then took various objections to allowing the plaintiff to recover, of which all that are material fully appear in the points below.

      J. Cadwalader, for defendants, appellants.
    I. The statute alloAving the Surrogate to decree the payment of such debts, applies only to established debts. The Surrogate must be satisfied that the debt claimed is a debt, and is due, and that there are assets to pay the same. A failure of the administratrix to appear on a citation, is not enough. (Butler v. Hempstead, 18 Wend., 669; Fitzpatrick v. Brady, 6 Hill, 581; Magee v. Vedder, 6 Barb. S. C., 356, 357; Disosway v. Bank of Washington, 24 Barb. S. C., 61; Wilson v. Baptist, &c., Society, 10 Barb., 319.)
    II. The administratrix not having filed an inventory at the time of being cited, had no power over the estate, and the Surrogate no power to make the order. The remedy was to cite her to file an inventory, and on default or refusal to revoke her letters and prosecute her bond. (Jeroms v. Jeroms, 18 Barb. S. C., 24; 3 R. S., 172; §§ 19, 20, 21, 22, 23.)
    III. It must be shown affirmatively that a Court of statutory and limited jurisdiction, had jurisdiction of the subject matter and the person, and its proceedings must be warranted by and conform to the statute. (Dakin v. Hudson, 6 Cow., 221; Jackson v. Shepard, 7 Cow., 89; Bloom v. Burdick, 1 Hill, 130; Cornell v. Barnes, 7 Hill, 37, note; People v. Barnes, 12 Wend., 492 ; Rea v. McEachron, 13 Wend., 465, Turner v. Roby, 3 Comst., 193; Sibley v. Waffle, 16 N. Y. R., 180; Corwin v. Merritt, 3 Barb. S. C., 341.)
    IY. Ho jurisdiction of the subject matter appears; for no application is shown to have been made by a creditor, legatee, or person entitled to a distributive share. (3 R. S., 204, § 18; Ford v. Walsworth, 15 Wend., 449; Sibley v. Waffle, 16 N. Y. R., 180; Corwin v. Merritt, 3 Barb. S. C., 341; People v. Corlies, 1 Sandf., 228.)
    Y. Ho jurisdiction over the person is shown.
    1. The answer does deny the allegation in the complaint as to the service of the citation.
    2. The service of the citation was a jurisdictional fact to be proved affirmatively. (Bigelow v. Stearns, 19 Johns., 39.)
    YI. The statement by a recital in the decree that jurisdiction was obtained, will neither give it nor prove it. (Ford v. Walsworth, 15 Wend., 449; Williams v. Peyton, 4 Wheat., 77; Sibley v. Waffle, 16 N. Y. R., 180; Jackson v. Shepard, 7 Cow., 89.)
    YII. The Surrogate had no power to make the order of August 14, assigning the bond, as the proceedings subsequent to the decree and prior to the assignment were entirely irregular. (3 R. S., 366, §§ 17, 18, 19; People v. Barnes, 12 Wend., 492; People v. Corlies, 1 Sandf. S. C., 227; Rea v. McEachron, 13 Wend., 465; Jackson v. Shepard, 7 Cow., 89; Sibley v. Waffle, 16 N. Y. R., 180; Davison v. Gill, 1 East, 64; Atkins v. Kinnan, 20 Wend., 241; Jackson v. Esty, 7 Wend., 148; Baggott v. Boulger, 2 Duer, 160.)
    1. The certificate did not state the names of the parties against and in favor of whom the decree was made. It did not state the trade, profession, or occupation of the parties and their places of residence; nor the amount of debt and costs directed to be paid. (3 R. S., 366; Atkins v. Kinnan, 20 Wend., 241; Davison v. Gill, 1 East, 64; Bigelow v. Stearns, 19 Johns., 38; and cases last cited.)
    2. Execution should issue as on a judgment of the Court of Common Pleas—not of the Supreme Court. (§ 64 of ch. 460 of Laws of 1837 is amended by § 2, ch. 104, Laws 1844, to read Common Pleas instead of Supreme Court; the 3d ed. R. S., vol. 2, p. 320, is correct on this point; the 4th and 5th editions, are both incorrect; 2 R. S., 4th ed., 421; 3 R. S., 5th ed., 366; Dayton on Surrog., 2d ed., 1855, p. 29, § 64, and p. 598; Matter of Latson, 1 Duer 698.)
    3. The execution issued was improper in form. The statute goes to the manner of issuing, and not to the form of the process.
    It should have recited the decree, the certificate and docket, and is not to be issued as on a judgment. (Davies v. Skidmore, 5 Hill, 504; 3 R. S., 366.)
    4. There was no proof that the administratrix resided in the City and County of Hew York, when the executions were issued.
    VIII. There was no breach of the condition of the bond of the administratrix.
    IX. The decree of March 8th was erroneous and void, in that it directed the payment of debts of a lower class, the validity of which had not been established, when there were judgments entitled to a preference. (3 R. S., 174.)

      The Judge erred in refusing to admit the evidence of judgments.
    X. The bond should have been prosecuted by the persons in whose favor the decree was made. They could not assign the interest obtained under the Surrogate’s order.
    XI. The measure of the liability of the defendant, a-surety on the bond, is the damage to the estate by the acts of the administratrix. (3 R. S., 174, § 35; Id., 661, § 7.)
    The Judge erred in rejecting the evidence offered, ¿s to the filing and contents of the inventory.
    XII. The complaint did not state facts constituting a cause of action.
    1. Xo sufficient breach of the condition of the bond is assigned. (3 R. S., 661; Reed v. Drake, 7 Wend., 345; Nelson v. Bostwick, 5 Hill, 38; Barnard v. Darling, 11 Wend., 28.)
    2. The order was against the administratrix personally, and there could be no breach of the condition of the bond.
    The word “ administratrix,” was only a deseriptio persona. (White v. Low, 7 Barb., 204; Merritt v. Seaman, 2 Seld., 168; Sheldon v. Hoy, 11 How. Pr., 14.)

      Felix Sari, for plaintiff, respondent.
    I. The decree was duly docketed, and executions were issued upon it in legal form and manner. (3 R. S., 5th ed., 204, § 18; Id., 366, §§ 17, 18.)
    II. - If the execution was irregular in form or otherwise, it should have been set aside on motion. If such motion was made, the Court would allow an amendment. (Code, § 173, 176.)
    . III. The act of-1844, directing executions in cases like this. to issue as if on judgments in Courts of Common Pleas, has now no existence, for Courts of Common Pleas were superseded by the County Courts. (Const., art. 6, § 14; See '§'■§> 289 and 290, as to the form of Executions.)
    IV. The form of the executions is sufficient under $$ 289 and 290 of the Code, and the irregularity (if any) might be regarded as surplusage. (Butterfield v. Howe, 19 Wend., 86; Jackson v. Sternbergh, 1 Johns. Cas., 153.)
   By the Court — Bosworth, Ch. J.

The complaint does not allege, nor was it proved that Feely, Mahoney or McLaughlin made “ application ” as a creditor of Harmon H. Gunter, for payment of the debts alleged to be due to them. (3 R. S., 5th ed., 204, § 18, sub. 1.)

It is only on such an application being made that the Surrogate can act under that section.

The complaint alleges that the “ administratrix was duly cited # * to show cause at the Surrogate’s office,” &c. This is denied by the answer, and no evidence of the fact was offered.

The complaint also alleges that, “ upon reading and filing proof of the due service of the said citation upon said administratrix personally, no one appearing to oppose, and upon due proof of the rendition of the services,” and “ of the value .thereof,” it was ordered and adjudged, &c, “ pursuant to the statute in such case made and provided.”

The answer denies that either Feely, 'Mahoney or McLaughlin had rendered the alleged services or had any claim or debt, and also denies that the Surrogate, duly or pursuant to the statute, adjudged, &c. It does not otherwise deny the allegations of reading and filing of proof of due personal service of the citation, or due proof of the rendering of the services.

The complaint does not state what the “ proof” of service of the citation was, of what it consisted, how or by whom made, so as to enable the Court to know the nature of it, or what it legally tended to establish.

If it can be said that the Surrogate obtained jurisdiction of the administratrix, and of the subject matter, by reason of anything appearing in the case, it is because the answer does not deny the allegation, “ upon reading and filing proof,” &c.

The complaint does not state when and where the proof was read or filed. The complaint states that the citation required the administratrix to show cause “ on the 8 th of March, 1858, at 11 o’clock, A. M. and “ that, on or about the day and'year aforesaid, upon reading and filing proof of the due service of the citation,” &c.

The answer, therefore, cannot be said to admit that this “ proof,” whatever it was, was read and filed on the 8th of March, 1858, because that is not alleged. That it was read and filed on the 9th, is as consistent with the allegation in the complaint as that it was filed on the 9th.

I think, therefore, that the admission is not of the truth of an allegation sufficiently full and definite to enable the Court to see that the Surrogate acquired jurisdiction, assuming it to be true, in the natural and fair meaning of the words of which it consists.

The plaintiff should show, that on the application of these alleged creditors, a citation was issued, and Avhat it was, and either the fact of the service, or the proof of its sendee which was presented to the Surrogate.

If the proof presented to him was legal in its character, •and established a service which gave him jurisdiction of the administratrix, then I think that his decree must be treated, in this action, as valid, though no evidence be given that he, in fact, received proof of the rendering of the services and of the condition and extent of the assets.

The subject matter being within the jurisdiction of the Surrogate, if it be shown that he acquired jurisdiction of the parties, his decision is conclusive, except upon an appeal from his decision.

The cases cited in The People of the State of Michigan v. The Phœnix Bank of N. Y., (4 Bosw., 379-381,) sustain this proposition.

Even if no proof of the claims of the alleged creditors was taken by the Surrogate, his decree cannot be avoided collaterally for that cause. If it could be, then it would not be enough to prove that witnesses were sworn and examined before the Surrogate; without showing, in addition, that the testimony related to the matter before him, and presented something for the judicial mind to consider, and this would be virtually retrying the proceeding on its merits in a collateral action.

If enough be shown to make it affirmatively appear that the Surrogate acquired jurisdiction of the person of the administratrix, in the proceeding before him, I am of the opinion that the decree must be treated as obligatory, in this action.

But a new trial should be granted, because enough was not proved or admitted to establish the fact that he acquired such jurisdiction.

The proof, as to the contents of the executions, was meagre. The attorney testified that he used “the ordinary printed blank executions, directed to the Sheriff of this county.” He says, “I put the title I have mentioned in each of the collections.” The only title he had mentioned is stated in the further testimony, viz.: “I told the title of the case to Mr. Kipp, ‘In the matter of the claim of Feely, Mahoney and McLaughlin against Adeline Gunter;’ we searched under that title.” He says, “I directed him to return these executions to the office of the Olerk of the Supreme Court of the City and County of Hew York. I signed them as attorney, and tested them in the name of T. W. Clerke, one of the Justices of the Supreme Court.”

It is difficult to determine from this evidence what was the form of this execution.

The form of the execution is prescribed by the Laws of 1837, p. 535, § 64; and Laws of 1844, p. 91, § 2. Ho other volumes of the Session Laws have been cited relating to this point. In 3 R. S., (5th ed.,) p. 366, § 18, the 64th section of the act of 1837 is inserted, but at the foot of the page is a note, which states the fact that this 64th section was repealed in 1844, but that note does not state the alteration made by the act of 1844, as to the form of the execution.

The 2d vol. of the 4th ed., p. 421, §§ 17,18 and note at the foot of the page, are equally obscure in their statement of the law.

It should appear that the executions issued, complied, in the substance of the contents, with the requirements of the statute.

Unless there be some statute on the subject, which has not been called to our attention, it does not appear that the executions alleged to have been issued, conformed in form or substance to the statute; as the only statute regulating the matter, so far as we are at present advised, is that of 1844.

For the reasons stated, I think a new trial should be granted, with costs to abide the event.

Robertson, J.

The sole foundation of the plaintiff’s claim is an order of the Surrogate of Queens county, reciting the issuing of a citation by him, to show cause, on a previous day, before him, why he should not decree payment, by the defendant, Mrs. Gunther, of certain debts claimed by three persons severally, for services separately rendered by them, at the request of the intestate, whom she represented, and the due proof, before him, of the service of such citation upon her personally. Such order then adjudges that such defendant pay absolutely to such persons severally, separate sums of money. There was no other proof and no admission of the making of any application to such Surrogate; of his issuing any citation; of the service of such citation, or of any inquiry or proof before such Surrogate. Unless this court can, from such order, presume, prima facie, those facts, so as to sustain the jurisdiction of the Surrogate, over both the subject matter and person, the plaintiff’s case was not made out.

As the application to the Surrogate, if made, was so made before eighteen months from the time of the appointment of the administratrix, (2 R. S., 92, § 52,) it must be assumed to have been made under the provision of the statute allowing a decree- for the payment of debts at the end of six months from that time. (2 R. S., 116, § 18.)

It has been settled that the Surrogate’s Court is entirely a creature of the statute, and of inferior and limited jurisdiction, and therefore his power to make any decree, depends upon his having jurisdiction of the subject matter and acquiring jurisdiction of it and the person, and proceeding in conformity with the statute. (Dakin v. Hudson, 6 Cow., 221; Bloom v. Burdick, 1 Hill, 130; Corwin v. Merritt, 3 Barb., 341; People v. Barnes, 12 Wend., 492; People v. Corlies, 1 Sandf., 228.) The authority of the Surrogate to decree the payment of debts is limited. Ho general jurisdiction is conferred on him to adjudicate whether a debt is due as between the parties. (Fits Patrick v. Brady, 6 Hill, 581; Magee v. Vedder, 6 Barb., 352; Wilson v. Baptist Educ. Soc'y of N. Y., 10 Barb., 308; Disosway v. Bank of Washington, 24 Barb., 60.) It is true, some decisions in the Surrogate’s Court of Hew York county, intimate that the Court has power to pass on a debt, in decreeing final distribution. (Hall v. Bruen, 1 Bradf., 435; Babcock v. Lillis, 4 Bradf., 218.) Those decisions are undoubtedly correct, in reference to such proceeding in rein, by which the rights of all parties are disposed of, in the fund in the hands of the administratrix, (2 R. S., 95, § 71;) but that principle does not dispose of the question of a right to absorb, by a previous judgment, all the funds of the estate. So far as such decisions conflict with the well reasoned opinion in the case of Disosway v. The Bank of Washington, (ubi. sup.,) and the authorities cited in it, I think they must yield.

The power of passing upon a claim, by the Surrogate, and decreeing its payment absolutely, in advance of a final settlement of the estate, would give an applicant to him immense advantages over every other mode of establishing a claim against the estate. In the final distribution of the estate, unliquidated claims are placed last. (2 R. S., 87, § 27, 1st ed.) If a claim is presented to an administrator and rejected, unless an action at law is brought in six months, the claim is barred as to any funds distributed to claimants of inferior degree, or legatees. (2 R. S., 89, §§ 38, 39.) In an action against a representative of a decedent, he has a right to show debts of a prior class unsatisfied, and judgment can only be rendered for the residue of the assets applicable to such claim, after paying those prior ones. (2 R. S., 88, § 31.) Ho execution can issue upon any judgment in a court of law, against a representative, until au account is rendered, or the Surrogate orders it, and he is only to allow execution for such sum as may be a just proportion of the assets applicable to such judgment. (§ 32.) An order to show cause is to be applied for, on which the Surrogate is to make the order for applying the assets, (2 R. S., 116, §§ 19, 20,) and it was considered necessary to provide expressly that such order should be conclusive evidence of assets. (2 R. S., 116, § 21.) Was it intended that all these barriers for the protection of the estate, should be thrown down in case of an application to pay a debt six months after the grant of letters of administration ? Would the payment by the administratrix be a defense to an action by others against her or on her bond? If so, by mere collusion, not always easy to be proved, where craftily managed, all the security of other creditors might be swept away. It is claimed in this case, that the adjudication against the administratrix is conclusive that the debt was due, that either there were no others entitled to a preference, or there were assets sufficient to pay all, and that any inquiry as to the propriety of issuing an execution against the assets was unnecessary; the statute having enabled them to have á decree against an executor docketed, (Sess. Laws of 1844, ch. 104, § 2,) and an execution issued thereon, as though the same were a judgment of the Court of Common Pleas.

In regard to legatees, it is provided that the Surrogate shall ascertain that thete is at least one-third more assets than is sufficient to pay all debts, legacies and claims against the estate then known: He might, in his discretion, allow any portion of any legacy necessary for the support of the legatee, upon bonds of indemnity. (2 R. S., 98, § 83; Seymour v. Butler, 3 Bradf., 193.) Was it intended that there should be no such protection in case of debts ?

If an application was necessary to give the Surrogate jurisdiction generally, there should have been some extrinsic evidence that such application was made; and the mere making of a decree is no evidence that an application was ever made. If the application, however, was made, it was necessary to serve the citation to acquire jurisdiction of the person. If any evidence of such service was before the Surrogate, possibly his decision upon its sufficiency was conclusive, and in this case the Surrogate certified that he had proof of such service; this was at least prima facie sufficient. But there is no evidence that any allegations or proofs were produced to justify the order of the Surrogate; there is no certificate to that effect in such order. It does not follow, in my view, that because it is necessary to show that the Surrogate took proof as to certain facts, this Court can inquire collaterally into the validity or legality of his decision. His own decision that the evidence before him established certain facts, and perhaps even that he had evidence to establish • them, might be sufficient to preclude inquiry into the sufficiency of such evidence, or even the fact that it had been taken. In Hovey v. Smith, (1 Barb., 372,) it was recited in the decree that it appeared that a preference of .some debts over others was beneficial to the estate, and it was held conclusive of that fact. Without some evidence to the contrary, non constat, but that the Surrogate held he had power to decree payment of a claim as a debt upon failure of the party to appear, without any inquiry. The order produced certainly sustains that view, and yet- he as certainly had no such power. There must be some shadow of inquiry to justify the act, something to show that the Surrogate thought he had evidence before him to warrant Ms order. In Superior Courts, no. judgment is given against a party by default, unless on a written instrument, without some proof, (Code, § 246,) and in Justices’ Courts it is expressly required, (Code, § 64, subd. 8.) Unless, therefore, it appeared to the Surrogate’s satisfaction that the debt was proved without opposition, or admitted, and that there were assets enough to pay it and all other debts of equal degree, he ought not to have made the decree. Merely having jurisdiction of the subject matter, and obtaining it over the person by service of the citation, does not give the Surrogate a right to make any decree for the payment of any sum, however great, against an executor; he must exercise some judicial functions, besides' giving judgment; in other words, exercise jurisdiction as well as possess it. (Germond v. People, 1 Hill, 343.) This principle was recognized in Brittain v. Kinnaird, (1 Brod. & Bing., 432,) cited in The State of Michigan v. Phenix Bank, (4 Bosw., 380.) Justice Dallas in that case said: “ He (the magistrate) is hound to inquire as to the fact, and, having inquired in regard to it, his conviction is conclusive of it.” In Supervisors of Onondaga v. Briggs, (2 Den., 26, 33,) cited in the same case, Bronson, J., says: “ A power to hear and determine necessarily carries with it one to make the judgment obligatory.” A judgment without affording a party a hearing, is void. (People v. Soper, 7 N. Y. R., 428.) An inquiry into jurisdiction is always admissible. (Chemung Canal Bank v. Judson, 8 N. Y. R., 253; Dobson v. Pearce, 12 N. Y. R., 156.)

As, therefore, it does not appear on the face of the order, or by extrinsic evidence, if that is admissible, that the Surrogate made any inquiry on the return of the citation, his decision was not binding.

The testimony as to the form of the execution was also not clear. By statute, the Surrogate’s certificate is to be filed with a clerk of a Court of Common Pleas, and entered on the docket of that Court. (Laws of 1844, ch. 104, § 2.) This does not make it a judgment of that Court. (Davies v. Skidmore, 5 Hill, 501,) although execution is to be issued as if it were. But such execution must recite the decree and its docket, and then command the Sheriff to levy the money. Bo such form seems to have been adopted. The attorney testified he used “ the ordinary printed blank executions, directed to the Sheriff of Bew York County,” “ to collect in the matter of the claims” he had just stated. They were tested in the name of a Justice of the Supreme Oourt, and directed to be returned to a Clerk of that Court. The Code requires an execution to state the Court, the county where the transcript is filed, the names of the parties, the amount of the judgment, the amount due, and the time of docketing; there is no evidence that this was done. ÍTo reference seems to have been made in them to a County Oourt or Court of Common Pleas, and the Sherriff, on examining them, would not have been able to find any warrant in law for levying an execution issued, “ in the matter of certain claims,” out of the Supreme Court, particularly as there was no statement of the decree or its docketing. Whether the County Courts are successors of the Courts of Common Pleas, under the new Constitution, (Art. 6, § 14,) or not, and whether the Statute of 1844 is repealed for want of the proper Court in which to file the Surrogate’s certificate, are questions which may hereafter arise, in case the copies of the executions taken by the attorney shall be hereafter produced. The issuing and return of a proper execution is a necessary jurisdictional fact to the assignment of the bond, if the Surrogate acts ministerially in making it. If he acts judicially, the defendants should have had notice of the application.

For the defect of proof of the proceedings before the Surrogate, on making, the first order, and of the contents of the executions, or else the defect of the executions themselves, I think this case should go back for a new trial.

A new trial must be accordingly ordered on the exceptions, and the verdict set aside, with costs to abide the event.