text:
    David McClure, as Temporary Receiver of The Life Union, Respondent, v. Louis P. Levy, Appellant.

      Order of arrest — cause of arrest identical with cause of action.

    When an order of arrest has been granted in an action in which the cause of arrest is identical with the cause of action, it should not be vacated if there is evidence before the court tending to sustain the allegations of the complaint which constitute a ground of arrest, and it is not made to appear with reasonable certainty that the plaintiff cannot recover in the action.
    Appeal by tlie defendant, Louis P. Levy, from an order of the Supreme Court, made at the New York Special Term and entered in the'office of the clerk of the city and county of New York on the 9th day of March, 1893, denying the defendant’s motion to vacate an order of arrest, granted under section 549 of the Code of Civil Procedure.
    The order of arrest was made upon a verified complaint and upon affidavits alleging in substance that the defendant, while president of the Life Union, an assessment insurance company, wrongfully withdrew from the funds of the company the sum of $10,141.06, and embezzled and converted the same to his own use.
    In the papers presented by the defendant upon his motion h> vacate the order of arrest, he denied that he was liable to return said money, but, on the contrary, claimed that it was properly paid to him to reimburse him for moneys advanced in taking up certain notes issued by the Life Union, and which were at that time in his possession, and that such payment was duly authorized by the corporation.
    In reply, the receiver contended that the notes were non negotiable in form, and were without consideration and void; that the defendant knew the facts connected with the issuing of the notes, and that the notes were improperly paid out of the reserve fund of the company.

      Isaac I. Egbert, for the appellant.

      Herbert B. Turner, for the respondent.
   Per Curiam :

In this action, the cause of arrest is identical with the cause of action, and the order of arrest should not be vacated, unless it appears with, reasonable certainty that the plaintiff cannot recover in the action. From the facts before the Special Term, it would appear that this defendant appropriated the funds of the company for the payment of notes of doubtful validity, which were not negotiable in their character, and the money was paid out of a fund which was pledged to the certificate holders, and not to be applied to the general uses of the corporation. To entitle the plaintiff to recover in the action at all, it is necessary to prove the allegations of the complaint, that the defendant wrongfully withdrew from the funds of the corporation the sum of $10,141.06, and embezzled and converted the same to his own use, and we think there was before the court evidence tending to sustain that allegation.

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

Present — Yan Brunt, P. J., and Ingraham, J.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    Frederick P. Foster, Respondent, v. Charles E. Moore and Elizabeth Moore, Appellants, Impleaded with Others.

      .Service of a summons by publication — proof required to obtain an order — intent.

    Tlie fact, merely, that two different persons on the same day failed to obtain admittance to the apartments occupied by the defendants on whom process was sought to be served, is not sufficient proof that such defendants were keeping themselves concealed, with intent to avoid service of the summons, to warrant an order for service by publication on that ground. (Code Civ. Pro. § 438, subd. 2.)
    Appeal hy the defendants, Charles E. Moore and Elizabeth Moore, from an order of the Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 9th day of March 1893, denying a motion of the said defendants to vacate an order directing service of summons by publication, and an order appointing a temporary receiver.

      Robert J. Robeson, for the appellants.

      Henry A. Foster, for the respondent.
   Per Curiam :

If the order directing the service of the summons by publication was improperly granted, then the second order appealed from appointing a temporary receiver must necessarily fall, because based upon the validity of the prior order. The single question presented is as to whether the affidavits contain such evidence establishing the facts upon which to form an order of publication. The affidavits were directed towards showing that the defendants were keeping themselves concealed with intent to avoid service upon them of a summons. These affidavits state that on the 25th of February, 1893, two persons attempted to obtain service, one in the morning at nine o’clock and the other at eleven o’clock of that day, and upon failure to obtain an entrance into the apartment occupied by the defendants, in which it would apipear they then were, a statement was made that they were concealing themselves with intent to evade the service of a summons.

It may well be that such affidavits would be sufficient for substituted service under section 135 of the Code, which provides that where a defendant avoids service of a summons and cannot be served with due diligence, such an order may be granted. But for the purpose of obtaining an order of publication, which requires proof of intent, we think the mere failure to obtain admittance by two different persons on the same clay to the apartments occujned by persons upon whom process is sought to be served, hardly comes Up to the requirements of the Code of showing an intent on the part of such persons to conceal themselves. In other words, a mere inability to serve process at a particular time is not sufficient to justify an order of publication against defendants, and it is only where evidence is furnished showing such intent that the order should be granted. TVe think that all that is here shown was mere inability to serve process; and except the conclusions of the two persons who made the affidavits, there is no evidence which would have justified the court in concluding that the defendants were deliberately concealing themselves with intent to avoid the service of a summons.

Although the merits of the action aiid the conduct of the defendants may be as claimed by the respondent, and sufficient facts were presented to confer jurisdiction upon the judge to act, still we think that, as the only point here is as to the weight to be given to the evidence presented by the affidavits, and having thereupon reached a conclusion contrary to that of the judge below, it follows that both orders must be reversed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., and O’Brien, J.

Order reversed, with ten dollars costs and disbursements.


author: Per Curiam:

text:
    Charles O. Waite, Respondent, v. The F. J. Kaldenberg Company, Appellant.

      Judgment foi' the part of plaintiff’s claim, admitted — costs.
    A plaintiff is not entitled to costs upon an entry of judgment, under section 511 of the Code of Civil Procedure, for the part of his claim admitted by the answer to he due, when he elects to continue the action for the remainder
    Appeal by the defendant, the F. J. Kaldenberg Company, from an order of the Supreme Court, made at the. New York Special Term at Chambers, and entered in tne office of the clerk of the city and county of New York on the 10th day of February, 1893, denying the defendant’s motion that the judgment herein be reduced by the amount of the plaintiff’s costs.
    The complaint demanded judgment for $1,955.88 with interest; the answer admitted that $869.82 thereof was due the plaintiff, and offered to allow judgment therefor. On January 10, 1893, an order was entered that the plaintiff have judgment for the sum so admitted to be due and that the action be severed and the plaintiff have leave to continue the action as to the remainder of his claim, which the plaintiff elected to do. The clerk taxed the plaintiff’s bill of costs at forty-eight dollars and ninety-two cents, and judgment was entered for the amount of the claim admitted to be due and costs, being in all $918.74. The defendant then moved to have the judgment reduced by the amount of the costs, which motion was denied, and from the order denying it this appeal is taken.
    Section 511 of the Code of Civil Procedure is as follows : “ Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiffs claim to be just, the court upon the plaintiffs motion may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and if the plaintiff so elects that the action be continued with like effect as to the subsequent proceedings, as, if it liad been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plaintiff’s electiou. If the plaintiff elects to continue the action, his- right to costs upon the judgment is the same as if it was taken in an action brought for only that part of the claim. If the plaintiff does not elect to continue the action, costs must be awarded as upon iinal judgment in any other case.”

      James J. Alien, for the appellant.

      John B. A. Mullally, for the respondent.
   Per Curiam:

Section 511 of the Code, under the authority of which this judgment was entered, gives to the moving party the right to a judgment for the part admitted to be due. No provision is made for an award of costs to him upon the entry of that judgment, unless he elects not to continue the action for the remainder of the claim; in which case he is awarded costs as upon a final judgment in any other case. If, therefore, lie elects to continue the action, it seems to have been the intention of the legislature to award him costs only in case lie succeeds and recovers an amount which would entitle him to costs had he originally brought his action for the amount not conceded to be due.

The right to this judgment depends upon this section of the Code and the only judgment that the plaintiff on such an application can recover is that allowed by this section, which does not include costs except upon the condition that he elects not to continue the action for the amount not conceded to be due.

The case of Bradbury v. Winterbottom (13 Hun, 536), which upon its face may seem to be in conflict with these views, however, is not, because the judgment in that case was entered under an offer made under section 758 of the Code of Civil Procedure, and the question there was whether or not the plaintiff was entitled to costs upon such offer.

The order must, therefore, be reversed and motion granted, but Without costs.

Present — Van Brunt, P. J., and Ingraham, J.

Order reversed and motion granted, without costs.


text:
    In the Matter of the Judicial Settlement of the Account of Emily A. Smith, as Trustee under the Will of Edmund A. Smith, Deceased, Appellant. Edmund E. Murphy, as Executor, etc., of Elsie S. Murphy, Deceased, and Eugene H. Pomeroy, Guardian ad litem of Elsie J. Murphy, an Infant, Respondents.

      Accounting by a testa/mentary trustee —parties —persons interested.

    While a voluntary accounting by a testamentary trustee was pending, a beneficiary of the trust estate died leaving an infant child, and a will, executed before the child’s birth, which made no provision for it.

      Meld, that, on its parent’s death, this child was vested with some interest in the trust estate, and was, therefore, a proper, although perhaps not a necessary, party to the accounting;
    That an order making such child, as well as the executor of its deceased parent, parties to the accounting was proper; and that the judgment on the accounting would be binding on the child, and on its parent’s estate.
    Appeal by Emily A. Smitli, as trusteee under the last will and testament of Edmund A. Smith, deceased, from an order of the Surrogate’s Court of the county of New York, entered in the surro,gate’s office on the 15th day of February, 1893, directing that Edmund E. Murphy, as executor of the last will and testament of Elsie S. Murphy, deceased, be made a party to the proceeding for an accounting by the said trustee, and that Eugene H. Pomeroy be appointed guardian ad litem of the infant Elsie J. Murphy upon said accounting, and that said guardian be made a party to the accounting.

      The trust which, formed the subject of the accounting was created by the following clause in the will of Edmund A. Smith, deceased: “ I direct my executors, after providing for the above bequests, to divide all the rest, residue and remainder of my estate equally between my said wife and children, share and share alike, the principal of each child, however, not to be paid until they respectively arrive at the age of thirty years, the interest arising therefrom to accumulate during their minority, and on their attaining the age of twenty-one years the interest arising therefrom, that is, said principal and accumulations, to be paid to said children until they respectively arrive at the age of thirty years.”
    One of the testator’s children, and a beneficiary under the above clause, was Elsie Smith. In May, 1891, the trustee, Emily A. Smith, filed a petition in the Surrogate’s Court for an accounting, upon which citations were issued, among others to said Elsie Smith, who appeared and filed objections to the account; whereupon an order of reference was made to hear and determine the questions arising upon the settlement of the account, which reference was pending at the time of the filing of the petition under which the order appealed from was made.
    On October 28, 1891, Elsie Smith married Edmund E. Murphy, and her name thereupon became Elsie S. Murphy. After the marriage, and on the day thereof, she executed her will, giving her entire estate primarily to her husband and appointing him executor, and making no provision for children; she thereafter, and on September 27, 1892, gave birth to a child, Elsie J. Murphy, and died. On December 2, 1892, Elsie S. Murphy’s will was admitted to probate, and letters testamentary issued to Edmund E. Murphy, who qualified as executor.
    On December 9, 1892, an application was made by Edmund E. Murphy, as executor, to intervene in the proceedings for the accounting by the trustee, and for the appointment of a special guardian for the infant, Elsie J. Murphy, and on such application the surrogate made the order now appealed from.

      Charles Donohue, for the appellant.

      Frank D. Sturges, for the respondent.

      Eugene H. Pomeroy, guardian ad litem, respondent.
   Per Curiam :

Upon the death of Elsie S. Murphy, the daughter of Edmund A. Smith, and the mother of the infant respondent, an interest in the estate of the deceased Elsie S. Murphy became vested in Elsie J. Murphy, the infant respondent. It is unnecessary for us to determine on this appeal just what interest this infant had in the property held by the appellant in trust. Whether representing her mother, or being entitled to inherit from her mother, she had an interest in the mother’s share of the property held in trust by the appellant, and as such was a proper party, although perhaps not -a necessary party, to the proceeding for an accounting by the trustee. The judgment on that accounting will bind the infant; and as the executor, as personal representative of Elsie S. Murphy, is also a party to the proceeding, that judgment will also bind the estate of Elsie S. Murphy.

We think that the interests of all the parties to this proceeding can be settled in this proceeding, and that the order below was right and should be affirmed, with ten dollars costs and disbursements to the respondent to be paid by the trustee personally.

Present — VaN Brunt, P. J., O’BrieN and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements to the respondent to be paid by the trustee personally.


author: INGRAHAM, <L :

text:
    Henry A. Gildersleeve, as Trustee of The Nepara Park Land Company, Respondent, v. G. Harry Lester, Individually, and as Trustee, etc., and Others, Appellants.

      Action to compel restitution of corporate property by one trustee against another — appointment of a receiver — transfer of corporate property to a trustee, by his own rote.

    By force of sections 1781 and 1783 of tlie Code of Civil Procedure, any one of the trustees of a corporation can bring and maintain an action to compel another trustee to account to the corporation, or to its creditors or stockholders, for money or property of the corporation illegally diverted by the defendant trustee from the corporate purposes.
    In such an action, the court has power, under section 1810 of the Code of Civil Procedure, to appoint a receiver of the corporation, and, by its judgment, to compel the defaulting trustee to account to such receiver for the property of the corporation which the trustee has .misappropriated or lost by his breach of duty.
    A trustee of a corporation can make no agreement for the appropriation of the property of the corporation of which he is a trustee, authorized by his own vote, that is valid as against the corporation.
    Where a trustee has appropriated property of his corporation, it is no defense to an action brought to compel him to account for such property, that he was a creditor of the corporation, and voted as one of its trustees, for a transfer of its property to himself, as a creditor, to pay the debt that the corporation owed him, and that at a subsequent meeting of the trustees, he, by his own vote, carried a resolution to ratify such disposition of the property.
    Appeal by tlie defendants, G. Harry Lester, individually, and as a trustee of tlie Nepara Park Land Company, and others, from a judgment of tlie Supreme Court, dated tlie 8tli day of April, 1892, and entered in the office of the clerk of the city and county of New York on the 11th day of July, 1892, upon a decision rendered 'at the New York Special Term.

      Louis G. Waehner, for the appellants.

      Palme?' c& JBootliby, for the respondent.
   INGRAHAM, <L :

This action is brought by plaintiff, as a trustee of the Nepara Park Land Company, to compel the defendants to account for their official conduct in the management and disposition of the funds and property of the said corporation committed to their charge, and to compel the defendant Lester to pay to the corporation of which he was trustee, any money and the value of any property which he has acquired himself, or transferred to others, or lost or wasted by a violation of liis duty, under sections 1781 and 1782 of the Code.

The appellant strenuously insisted upon this apjieal, as he did in the court below, that the plaintiff, as trustee, was not authorized to bring this action.

The action is brought under section 1781 of the Code, which provides that an action may be maintained against any one or more trustees, directors, managers or other officers of the corporation to procure a judgment compelling them to pay to the corporation which they represent or to its creditors any money and the value of any property which they have acquired to themselves or transferred to others, or lost or wasted by the violation of their duties. And by section 1182 it is provided that such an action may be brought by a trustee, director, manager or other officer of the corporation.

In the case of The People v. Ballard (134 N. Y. 269), the Court of Appeals held that such an action could be maintained by the Attorney-General on behalf of the People to compel a trustee to account to the corporation, and the same section that authorizes an action to be brought 'by the Attorney-General on behalf of the People, authorizes it to be brought by one trustee or director of the corporation.

We think, applying the principle determined in that case, that any one of the directors could bring this action. The plaintiff does not ask to recover any judgment, but does ask that a trustee be compelled to account to the corporation or to its creditors or stockholders for money or property of the corporation that such trustee has illegally diverted from the corporate purposes.

The trustee is simply named as an officer of the company to ask the interposition of the court to compel a defaulting trustee to restore to the corporation of which he was trustee property of the corporation which, by his breach of trust or wrongful act, has been lost to the corporation.

The court thus having jurisdiction of the subject-matter of the action and of the parties, has power to make such judgment as was necessary to protect the corporation or its stockholders, and for that purpose has, under section 1810 of the Code, power to appoint a receiver of the corporation in an action brought under the provisions of the sections before cited, and by its judgment compel such defaulting trustee to account to such receiver for the property of the corporation which he has misappropriated or lost by his breach of duty.

An examination of the testimony taken on the trial of this action has satisfied us that the findings of the court below were all sustained by the evidence, and that on the facts found by the court the defendants were clearly liable to the corporation.

The defendant Lester was a trustee, and the proposition that a trustee can make no agreement for the appropriation of the property of the corporation of which he is trustee, authorized by his own vote, that is valid as against the corporation, is well settled and does not require a citation of cases to support it.

Here the trustee appropriated the property of the corporation and seeks to defeat the action to compel him to account for such prop> erty on the ground that he was a creditor of the corporation and voted as one of its trustees to transfer the property of the corporation to himself as a creditor to pay the debt that the corporation owed him, and then, at a subsequent meeting of the directors, by his own vote, carried a resolution to ratify such disposition of the property.

It is too clear for argument that such resolutions were voidable at the instance of the corporation or its creditors.

The decision, of this case requires only the application of familiar principles well settled, and the judgment that was made was the necessary consequence of the facts found by the court below, and we think the judgment was in all respects 'right and should be affirmed, with costs.

VaN Brunt, P. J., and O’Bbien, J., concurred.

Judgment affirmed, with costs.


text:
    Henry A. Gildersleeve, as a Trustee of the Nepara Park Land Company, Respondent, v. G. Harry Lester, Individually, and as a Trustee, etc., Appellant, Impleaded with Others.

      Enforcement of a judgment by proceedings for contempt.

    A j udgment, rendered in an action brought under sections 1781 and 1782 of the Code of Civil Procedure, compelling a trustee of a corporation to account for property of the corporation wrongfully appropriated by him, and to pay over the value thereof in money to a receiver of the corporation appointed by the court for that purpose, may be enforced by a proceeding as for a contempt, under subdivision 4 of section 1241 of the Code of Civil Procedure, even if an execution could have issued thereon.
    Appeal by the defendant, G. Harry Lester, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 16th day of January, 1893, adjudging the said defendant guilty of a contempt of court, in willfully neglecting and refusing to pay John Yon Glahu, as receiver of the Nepara Park Laud Company, for the benefit of the said company, the sum of $67,500, with interest thereon from the 11th day of July, 1892, as directed by the judgment in this action, entered on the said 11th day of July, 1892.

      L. G. Waehner, for the appellant.

      John TF. JSootJiby, for the respondent.
   Per Curiam:

The nature of the action, the form of the judgment, the power of the court to appoint a receiver, are all fully discussed in the opinion herewith handed down upon the appeal from the judgment. The single question remaining is as to the right to enforce the judgment by punishment as for a contempt.

In disposing of this question little need be added to the able opinion of the judge from whose order this appeal is taken. Most of the cases cited by appellant as inclining to a contrary view have been cases under the old Code, or where the direction was in effect a direction to pay to a party for his own benefit, in which cases an execution to enforce the judgment may be issued. -We think that under the true construction of subdivision 4 of section 1241 of the Code, the right is given to enforce the terms of the judgment by proceeding as for a contempt. This section disposes, it seems to us, of the main argument made by appellant, that these proceedings cannot be resorted to upon judgments where the act directed to be performed requires the payment of money, or where an execution upon such judgment can bo issued, because, by the express terms of such section, a judgment such as this, requiring the payment of money to an officer of the court, may he enforced by contempt proceedings, although an execution may issue, and even simultaneously with the issuing of such execution.

The only question presented, which, as we have already stated, has been disposed of on an appeal from the judgment, is as to whether the receiver appointed by the judgment in this action is an officer of the court within the meaning of such subdivision of section 1241 of the Code. This, we think, needs no further discussion, but a statement of our conclusion that such a receiver is clearly an officer of the court, within the meaning of that section.

It is true tbat this section excepts cases where money is due upon contract. This action, however, was for a breach of trust in wrongfully misappropriating property of a corporation of which the defendant was a trustee. The act was grand larceny. (§ 528, Renal Oode.) A breach of trust which arises out of contractual relations is, nevertheless, a tort. Many breaches of trust arise out of the violation of express or implied contracts — for example, breaches of trust committed by agents, attorneys and the like. The judgment in this action was for a tort, and the defendant is, therefore, liable to imprisonment.

"We think, therefore, that the judgment in this case having required the payment of money to an officer of the court, that whether an execution could or could not have been issued upon such judgment, it could be enforced by contempt proceedings under section 1241 of the Code, and that, for these reasons, hi addition to those stated by the judge at Special Term, we think the order appealed from should be affirmed, with ten dollars costs and disbursements.

Present — VaN Brunt, P. J., O’Brien and Pollett, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: INGRAHAM, J. :

text:
    Eliza J. Lord, Respondent, v. Charles W. Lord, Appellant.

      Husband and wife — agreement of separation — covenant as to the wife’s support — pan-ties to an action to enforce it.

    When an agreement of separation, made by a husband and wife and a trustee, contains a covenant on the part of the husband to pay a certain annual sum to the trustee for the wife’s support, but contains no express covenant to pay any sum to the wife, and the trustee agrees to indemnify the husband for the wife's debts, the wife cannot (at all events without a refusal by the trustee to enforce the covenant and his joinder as a defendant) maintain an action at law against her husband to enforce his covenant to pay money to the trustee; but the trustee, as the trustee of an express trust within section 449 of the Code of Civil Procedure, is entitled to maintain such action.
    Appeal by the defendant, Charles ~W. Lord, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 7th day of March, 1893, overruling the defendant’s demurrer to the complaint with costs, and directing the adjustment of costs and the entry of an interlocutory judgment, and from the interlocutory judgment entered accordingly on the 9th day of March, 1893.

      Louis V. JBooraem, for the appellant.

      Wm. Ives Washburn, for the respondent.
   INGRAHAM, J. :

This action is brought to enforce a covenant contained in an instrument made between the parties to this action and one Aziriah Everett as trustee for Eliza J. Lord, by which the parties to this action, who were husband and wife, agreed to live separate and apart from each other, and whereby the defendant agreed to pay to' the said Everett “ for and towards the better support and maintenance of his said wife (the plaintiff) the sum of $800 per annum for the term of her natural life.

The said agreement also contains the usual covenant on the part of the said trustee to indemnify and hold the defendant harmless of and from all debts of his said wife now contracted or thereafter contracted by her, and the said trustee agrees to repay to the defendant on demand any sum that he may be compelled to pay for such debt or debts.

There is no allegation that the plaintiff has requested the trustee -to sue to enforce the said covenant, and the said trustee is not a party to the action.

The contract sought to be enforced in this action contains no covenant on the part of the defendant to make any payment to the plaintiff. The only covenant as to the payment of any money- is that the party of the first "part (the defendant) will make the payment before stated to Everett.

We think it clear that in the absence of an express covenant to pay any sum of money to the wife, that the wife cannot maintain an action at law to enforce the covenant to pay to a third party as trustee. a sum of money which the husband covenants to pay to such trustee. The trustee has an interest in the enforcement of this covenant, for by the agreement he is to indemnify the husband for any debts of the wife and to repay to the husband any amount that he may be compelled to pay for such debts.

Under such an agreement the. person named as trustee becomes a, trustee of an express trust within the provisions of section 449 of the Code, and is thus entitled to maintain an action to enforce the-covenant.

The case of Potter v. Potter (8 N. Y. Civ. Pro. Rep. 150) does not apply, for there the covenant was made directly to the wife, and when the action was commenced she'had ceased to be the wife of the defendant, a decree of divorce having been granted dissolving the marriage.

Ve are not called upon, therefore, to express an opinion as to-whether that case should be followed. Nor do we wish to be understood as holding that in case the trustee should refuse to bring the-action after proper request by plaintiff, that an action could not be maintained by the plaintiff making the trustee a party to, enforce the covenant.

This is not a case to enforce a contract made with one person furnishing the consideration whereby the obligor was to pay a sum of money to another, as in Todd v. Webber (95 N. Y. 188), and cases-there cited, for in this case there was not an agreement between defendant and Everett to pay to plaintiff, but an agreement between plaintiff, defendant and Everett that the defendant would pay to Everett as trustee.

We think it clear, therefore, that no cause of action at law exists in favor of the plaintiff against the defendant to enforce this covenant.' The judgment should, therefore, be reversed and the demurrer sustained, with costs.

YaN Brunt, P. J., and O’Brien, J., concurred.

Judgment reversed and demurrer sustained, with costs.


author: pNGBAHAM, J. :

text:
    John Cahill, as Executor, etc., of Elizabeth Broderick, Deceased, Respondent, v. Joseph H. Brennan, an Infant, etc., Appellant, Impleaded with Mary A. Russell and Others, Respondents.

      Leasehold —personal property — testa/menta/ry power to sell real estate.

    A leasehold is personal property for testamentaj-y purposes.
    A leasehold, held by a testator at the time of his death, being personal property, vests in the executor and is to be applied in the usual course of administration of the testator’s estate.
    A power of sale of real estate, under a will, is not to be inferred from the single fact that the. will gives legacies which in the aggregate exceed the value of the testator's personal estate.
    Nor is such power of sale conferred by, or to be inferred from the words, “ Until the sale and conveyance of said premises by my executor as hereinafter provided,” in a devise of the use of certain real estate, when no further orovision for the sale or conveyance of the premises is contained in the will.
    Appeal by the defendant, Joseph H. Brennan, an infant, by Terrence P. Brennan, his guardian ad litem, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 2d day of February, 1893, upon a decision of the court rendered at the New York Special Term.
    The action was brought by the executor of the last will and testament of Elizabeth Broderick, deceased, for the purpose of obtaining a judicial construction of the will, especially with reference to the question of whether or not it was the intention of the testatrix that the executor should sell the real estate of which she died seized, or, at least, that portion thereof known as No. 22Y East Fifty-second street in the city of New York, and for the purpose of determining the amount due to the defendant, Joseph II. Brennan, a grandson of the testatrix, by reason of the lien or charge created on the leasehold property described in the complaint, by the will of his grandfather, the husband of the testatrix, said charge, amounting to $399 per year, commencing in his favor at the death of his mother, Elizabeth T. Brennan, which death occurred June 1, 1881, and no part of it having been paid by the testatrix to the said defendant for the period between the death of his mother, June 1, 1881, and the death of the testatrix, December 11, 1890.

      Tbe leasehold property consisted of the premises at the corner of ' First avenue and Fifteenth street in the city of New York, leased from the Astor estate, under a lease in the usual form used by that estate, executed on April 6, 1850, and which provided for two renewals of twenty years each, the last lease expiring May 1, 1910. Buildings had been erected on the premises by the then tenant, Cornelius Broderick, the husband of the testatrix, and the lease provided that such buildings were to become the property of the landlord at the expiration of the term.
    The subject of the leasehold was passed upon in the opinion of the trial judge (PattebsoN, J.), as follows:
    “ The leasehold is personal property. It was so at common law, and the legislation of this State has not altered its legal quality. Under the Revised Statutes, leases for years, lands held by a decedent from year to year and estates gper aui/re vie, go as assets to an executor or administrator. By the Code of Civil Procedure, the term “ real property ” includes leasehold estates where there is an unexpired term of five years, and also embraces buildings erected on the land; but the provisions of the Code do not change the nature of a leasehold. It is only for the purpose of enforcing a remedy by sale under execution, and to provide for redemption, that a leasehold is classified as real estate. It certainly cannot be held that, by the act of 1837, chapter 462 (which is the original statute from which section 1430 was taken), it was intended to change the inherent character of a leasehold, and while such leasehold savors of realty, it always, as a chattel real, went to the executor. (People ex rel. Higgins v. McAdam, 84 N. Y. 294; JDespard v. Churchill, 53 id. 199.)

      G. W. Cotterill, for the appellant.

      C. Elliott Mvnor, for plaintiff-respondent.

      C. N. Morgan, guardian ad litem and of counsel for infant, defendant Manning, respondent.
   pNGBAHAM, J. :

The action was brought to obtain a judicial construction of the-will and codicils of Elizabeth Broderick, deceased. The judgment, of the court below held that the true intent and meaning of the wilL .gave to tbe plaintiff, as executor, tbe right and power to sell tbe real property owned by tbe deceased, known as No.. 227 East Fifty-second street in tbe city of New York, for the purpose of applying tbe proceeds of such sale to tbe payment of the debts of tbe deceased, and to tbe payment of tbe legacies given by tbe will and •codicils; that it was the intention of tbe deceased to convert said areal estate into personal property, and that tbe direction to sell bad tbe effect of making tbe same personal property for tbe purposes aforesaid. It ivas further held that tbe unexpired term of certain leasehold premises held by tbe testatrix was personal property, and that this appellant bad a lien on said leasehold premises for tbe sum of $399 per annum; and tbe judgment directed tbe plaintiff, in selling said leasehold premises, to pay to said infant appellant a sum sufficient to extinguish such lien.

The infant appellant appeals from all of tbe judgment, except that part which adjudges that tbe defendant Brennan has a lien on tbe leasehold premises. There is no appeal from tbe provisions of tbe judgment bolding that Joseph H. Brennan has such a lien on the leasehold premises, and that question is not before us for review.

The court below held that there was no general power of sale of all tbe real estate given to tbe executor; that tbe legacies were not a charge upon tbe real estate, and that tbe leasehold was personal property. We agree with tbe court below that tbe leasehold is personal property, and as such vested in tbe executor, to be applied in tbe usual course of administration of the estate. We also agree with tbe court below in tbe determination that tbe legacies are not ■a charge upon tbe real estate of tbe testatrix, and that there is no general power of sale contained in tbe will.

The remaining question to be determined is, whether there is a ■special power of sale as to tbe premises No. 227 East Fifty-second street, and an equitable conversion of said premises into personal property. The provision from which the court below inferred this power of sale is the second clause of tbe will. It is there provided:

“ Until tbe sale and conveyance of said premises by my executor as hereinafter provided, I give and devise unto my sister, Catherine Denny, the use of tbe top floor of bouse and premises Number 227 East Fifty-second street, New York City, free of rent.”

There is no provision in tbe will by which tbe executor was authorized to sell and convey this piece of property, and this power of sale must be implied, if at all, from this single provision, coupled with the fact that the will and codicils gave legacies which in the aggregate largely exceed the value of the personal estate of the testatrix.

It seems to us very clear that the court cannot infer a power of sale from this latter fact alone. For if that can be so in every case in which legacies are given in excess of the personal property where the testator leaves real estate, the legacies would 'be a substantial charge upon the real estate. This would be contrary to the settled rule in this State that legacies are not such a charge, unless it expressly appears in the will that it was the intention of the testator to make them a charge upon real estate. We think that the second clause of the will standing alone cannot be said, either expressly or by inference, to give to the executor a power of sale In the first place, the very language used contemplates a further provision in the will as to such sale. The words are “ until the sale and conveyance of said premises by my executor, as hereinafter provided, I give and devise,” etc. Just what sale or conveyance was in the mind of the draftsman who prepared this clause is not apparent. The conditions upon which the sale was to be made do not appear, but it is perfectly clear that it was a sale to be thereafter provided that was intended, and not that the testatrix intended by the language used in this clause of the will to authorize' a sale. It might be that she intended, if it became necessary, to subsequently authorize her executor by a codicil to sell; but that before such codicil was executed she changed her mind, and that this condition was annexed to the devise to her sister, so that such devise would not prevent the proper execution of any power to sell that she should subsequently wish to give. ’ We cannot tell what authority to sell the testatrix intended to give to her executor, or what conditions she intended to impose upon the exercise of that power. We know that she never did give her executor an express power of sale; and to say that the testatrix intended to give a power of sale by language which limited a devise ■to the time that the property should be sold as afterwards provided, would be to imply such intention from words that mean the exact contrary, would be to say that she intended to grant a power of sale by the clause in question, when by the words used she said she intended thereafter in the instrument to give a power of sale.

We think, therefore, that there was no power of sale contained in the will in question, and that the judgment must be modified by so declaring, and as modified affirmed, with costs to the plaintiff and the infant appellant, to be paid out of the estate.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to the plaintiff and the infant appellant, to be paid out of the estate.


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    James H. Sullivan, Respondent, v. The Mayor, etc., of the City of New York, Defendant; Ella S. Webster, Appellant.

      Attorney and client — transfer of a client's papers to a third party.

    An attorney’s lien upon papers of a client in his hands, for the compensation due him for services rendered in an action, is one strictly personal to the attorney, and cannot be transferred by him to a third party.
    Semble, that the act of an attorney in permitting papers of a client to go out of his hands into those of a third party, is a breach of trust which will justify the client in terminating the attorney’s employment, and prevent the attorney from recovering compensation for services rendered.
    When an attorney transfers papers of a client to a third party, on making an assignment to such party of his claim against the client for services, the third party cannot retain possession of the papers from the client as security for ' the assigned claim, but must deliver them up, and be remitted to an action for any claim he may have against the client.
    Appeal by Ella S. Webster from an order of the Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 23d day of December, 1892, directing the said Ella S. Webster, as assignee of John II. Strahan, deceased, an attorney of the Supreme Court, upon the payment to her by the plaintiff of $100, the amount found to have been due from the plaintiff to Strahan, to forthwith deliver to Kellogg, Rose & Smith, substituted attorneys for the plaintiff, certain papers upon which she claimed a lien, as assignee of said John H. Strahan, for moneys due to said Strahan from the plaintiff, for professional services.

      J. II. Bowers, for the appellant.

      L. L. Kellogg, for the respondent.
   Per Curiam :

Although, the order to show cause and answering affidavits upon which this motion was made, are not printed in the records, it would appear from the recitals in the order appealed from, that this is a proceeding commenced by an order to show cause, requiring one Ella S. Webster, an assignee of John H. Strahan, the former attorney for the plaintiff' in this action, to show cause why she should not deliver up to the attorneys who wrere substituted as the attorneys in place of said Strahan, the pleadings, and all papers in this action which were in the possession of said Ella S. Webster; that on the return of that order to show cause, there was an order of reference made to a referee to determine the amount due to said Strahan or his assignee, the said Webster, from the plaintiff, and that the said Webster claimed to have a lien upon the papers and exhibits belonging to the plaintiff which were to be used in the prosecution of the action for the amount due said Strahan, as attorney therein, by virtue of an assignment by Strahan to her of his claim for services against the plaintiff, and the delivery by Strahan to her of the papers held as plaintiff’s attorney; and the order appealed from directs the said Webster to deliver to the substituted attorneys .for plaintiff, these papers and exhibits, upon the payment to her of the amount found due by the referee from plaintiff to Strahan, for the services that he had rendered to the plaintiff as his attorney in this action.

The appellant appeals from the order on the ground that the amount allowed by the referee is less than the amount actually due to said Strahan by the plaintiff, and the remarkable spectacle is presented of a person not an attorney claiming to hold the papers and exhibits in a lawsuit that had been intrusted by a client, a party to the action, to his attorney, for the purpose of prosecuting the action, and where such third person claims to hold such papers and exhibits by transfer or assignment from the attorney.

Although the point that a lien upon papers in the hands of the attorney for the compensation due him for services rendered in an action is one strictly personal to the attorney, and cannot be transferred by him to a third party, was not raised upon this appeal, it seems to us that we should not allow it to go unnoticed.

The theory upon which this lien is claimed by the appellant would seein to be that a lien upon papers of a client submitted to his attorney is substantially like a lien upon a bale of goods that has been pledged to secure the payment of a sum of money, and that an attorney holding such papers of his client occupies merely the position of a bailee. '

We think it clear that such relation did not exist between Mr. Strahan and his client.

The relation between a client and liis attorney is one of trust and confidence, and it is a violation of that trust for an attorney in any way to divulge any of the information given to him by his client, or allow any of the papers or documents held by him as attorney to go out of his possession, and when Mr. Strahan attempted to deliver to the appellant these papers in this suit he committed a breach of trust, such as would justify the plaintiff terminating the relation that existed between them, and we incline to the opinion that it would prevent him from recovering any compensation for the services that he had rendered, and that- the moment that the client discovered that his attorney had been guilty of this breach of trust, he had the right to demand the return of the papers from the person to whom they had been delivered, and such person had no right to them as security for anything she had advanced to the attorney.

If, however, the appellant, as assignee of Strahan, has any claim against this plaintiff, she can enforce such demand .by action, but those papers are the papers of the plaintiff, and he is entitled to their possession, and this attorney had no power, by any act of his, to transfer them to the appellant, and thus prevent the plaintiff from obtaining possession of them.

The plaintiff, however, does not appeal from this order. It is the assignee of the attorney only who appeals, and we are of the clear opinion that the appellant has no ground to complain of the order appealed from. The order should, therefore, be affirmed, with ten dollars costs and disbursements, but without prejudice to the right of appellant to bring an action to recover the sum, if any, which may be due to her as assignee of Strahan.

Present — Van Brunt, P. J., O’Brien and Ingraham, JJ.

So ordered.


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    The People of the State of New York ex rel. Frank Daniels, Appellant, v. George Crawford, Respondent.

      Foreign coloration — inspection of transfer book — mandamus.

    "When on an application for a mandamus to compel the alleged transfer agent in the State of New York of a foreign corporation to exhibit to a stockholder the transfer book and list of stockholders, a question of fact is raised as to whether the defendant is the transfer agent of the corporation, an alternative writ of mandamus should be granted for the purpose of determining such question of fact.
    Appeal by the relator, Frank Daniels, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York, on the 4th day of February, 1893, denying the relator’s motion for a writ of mandamus.
    The motion was made under section 53 of chapter 688 of the Laws of 1892 (the Stock Corporation Law), which provides that “The transfer agent in this State of any foreign corporation, whether such agent shall be a corporation or a natural person, shall .at all times during the usual hours of transacting business, exhibit to any stockholder of such corporation, when required by him, the transfer book and a list of the stockholders thereof, if in his power to do so.”

      C. F. Beaeh, Jr., for the appellant.

      II. I. Cole, for the respondent.
   Per Curiam :

The relator moved the court below for an order that a writ of mandamus under the seal of the court issue, directed to and commanding the respondent to exhibit to the relator the transfer book of the Enterprise Mining Company, and a list of the stockholders thereof. Such application was based upon a petition that alleged that the relator asked the respondent, at the office of the corporation in the city of New York, if a stockholder of said corporation desired to have his stock transferred, and came to the office of said •company, at 33 Wall street in the city of New York, and requested of said Crawford that lie transfer such stock, whether said Crawford did not have charge of the transfer book, and conformably to the request so made of him would not have such stock transferred on said transfer book kept in said office; that in answer to this question, said Crawford replied that he did have charge of the transfer books in said office, and would have such stock transferred therein, and that thereupon the said Crawford was requested to allow the relator to inspect the book in which such transfers of stock were made, in order that he might obtain a list of the stockholders of said Enterprise Mining Company, which request said Crawford refused.

In answer to this allegation Crawford presented an affidavit in which he stated that the corporation was a foreign corporation organized and existing under the laws of the State of New Jersey; that it had no office in the city of New York; that he was not its transfer agent in this city; and that the corporation had not and never had a transfer office or transfer agent in the city of New York; but he did not deny the conversation with the relator as alleged in the petition.

We agree with the court below that upon these affidavits the relator was not entitled to a peremptory writ of mandamus as a question of fact necessary to sustain his application was put in issue.

We think, however, that the relator was entitled to an alternative writ of mandamus, so that the question of fact that is at issue can be determined by the court in the way provided by the Code.

The order should, therefore, be reversed, and an alternative writ granted, with ten dollars costs and disbursements of this appeal to abide the final determination of the proceeding.

Present — Yan Brunt, P. J., O’Brien and Ingraham, JJ.

Order reversed, and an alternative writ granted, with ten dollars costs and disbursements of this appeal, to abide the final determination of the proceeding.


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    William E. Wamsley, Respondent, v. H. L. Horton and Company (Limited), Appellant.

      Reference to determine questions of fact arising upon motions.

    A reference, under section 1015 of the Code of Civil Procedure, upon a question of fact arising upon a motion (as, e. g., upon a motion to set aside service of a summons), should only he ordered in extraordinary cases where such a reference is absolutely necessary to determine questions of fact.of vital importance.
    Appeal by the defendant, H. L. Horton & Company (Limited), from an order of the Supreme Court, made at the New York Special Term, dated the 8th day of March, 1893, and entered in the office of the clerk of the city and county of New York, directing a reference to determine disputed questions of fact arising upon a motion to set aside the service of the summons herein.
    The facts presented to the court below upon the motion, and upon which the reference was ordered, appear from the following opinion rendered by the court below (Baeeett, J.), upon making the order now appealed from:
    “ The defendant, a foreign corporation, moves to set aside the service of the summons herein upon the ground that Mr. Horton is not an officer of the company, but merely a director thereof.
    “ In his original affidavit, upon -which the application was based, Mr. Horton states that on the 9th day of January, 1893, when the summons was served upon him, he was neither president, treasurer, secretary, cashier nor managing agent of the defendant.
    “ The plaintiff opposed the application upon an affidavit showing that the defendant has no president, but that the chairman of its board of directors performs functions corresponding to that of president. The affidavit then states that in September last he examined the record of the formation of this corporation, which showed that Mr. Horton owned nearly all its stock, and was chairman of its board of directors.
    “ To this affidavit Mr. Horton now replies that he was not such chairman when the summons was served upon him. He does not deny that he was chairman in September last, nor that he is the principal owner of the stock of the defendant. He thus in substance admits the facts stated in the opposing affidavit, but seeks t.o avoid them by the statement that, though he was chairman in September, 1892, he was not chairman on the 9th day of January, 1893.
    “ In my judgment, lie was called upon to state the facts which effected the change. It may well be that, in law, lie is still chairman, notwithstanding his belief to the contrary. When we know the precise facts with regard to the alleged change in the situation we will be better able to judge whether the broad assertion that he was not chairman on the 9th day of January, 1893, is an accurate statement of fact or an accurate conclusion from the actual facts. The plaintiff should not be thrown out of court upon a bald assertion which frank disclosure of the circumstances may prove to be inaccurate. The very fact that counsel protested against any further inquiry, looking to the examination of Mr. Horton, adds to the doubt created by the suspicious reserve of the replying affidavit.
    “Upon the whole, I think such further inquiry essential to a correct disposition of the motion, and accordingly direct a reference as to the question of fact involved.”

      Jno. 11. Dos Bassos, for the appellant.

      tA. S. Bacon, for the respondent.
   Per Curiam:

We concur with the counsel for the appellant that references under section 1015 of the Code in respect to disputed questions of fact arising upon motions should only be ordered in extraordinary cases. In fact, it should only be resorted to when such a reference is absolutely necessary to determine questions of fact which are of vital importance arising upori motions before the court. A reference upon a motion is frequently a great abuse of the discretion .vested in the court by this section, as it requires large expenditures of money in the shape .of referees’ and stenographers’ fees and to procure the attendance of counsel which are utterly disproportionate to the importance of the questions involved, either in the action or upon the motion.

We think, therefore, that in the case at bar, upon the facts presented, the court should not have ordered the reference from which an appeal is taken. But we are of opinion, in view of the conclusions arrived at by the court, as evidenced by its opinion, and which were justified by the papers before it, that it should have disposed of the motion by denying the same.

We think, therefore, that the order of reference should be reversed, and the motion sent back to the Special Term in order that it may be disposed of upon the papers which were then before the court, with ten dollars costs and disbursements of appeal, to abide the final disposition of the motion.

Present — -Van Brunt, P. J., O’Brien and Ingraham, JJ.

So ordered.


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    Daniel McCarty, Respondent, v. The Altonwood Stock Farm and Others, Appellants.

      Default — where a cause is set down for tried on a day certain, by consent — terms imposed on opening it.

    When, through the fault of a defendant in not consenting to an adjournment on the call of the general calendar in the county of New York, he is left without witnesses when the cause is reached for trial on the day calendar on a day fixed by his consent, and he has compelled the plaintiff to attend at great expense, it is proper to impose, as a condition of opening the default then taken, that if the defendant is not ready when the cause is again reached, he shall reimburse the plaintiff for the expense incurred in coming to New York for the trial, remaining there and returning home.
    The order opening such default should not, however, prevent the judge thereafter calling the calendar from granting a postponement of the time to enable the defendant to procure his testimony, if a proper case is made out, provided the defendant consent to pay the disbursements provided for in the order.
    Appeal by the defendants, the Altonwood Stock Farm and others, from so much of an order of the Supreme Court, made at the New York Special Term, dated the 25th day of February, 1893, and entered in the office of the' clerk of the city and county of New York, as is contained in the last three paragraphs thereof.
    The order in question is as follows, omitting the introductory recitals:
    “ Ordered, that the stay, granted in and by the said order to show cause why the default should not be opened, be and the same hereby is vacated, and the plaintiff is hereby permitted to enter judgment upon the verdict of the jury rendered upon the said inquest, and to docket the same, and that the said judgment shall stand as security for the payment of the claim in this action, until the further order of this court in the premises, and it is further
    “ Oedeeed, that the defendants pay to the plaintiff’s attorneys, within two days after service of this order 'upon the defendants’ attorneys, the sum of $100, and it is further
    “ Ordered, that this cause be restored to the General Circuit calendar of this court to be called upon Saturday, March 4th, 1893, in Part III of this court, and the clerk of this court is hereby ordered and directed to place this cause upon the said calendar for the purpose of fixing a day for the trial, and it is further
    “ Ordered, that the defendants must try this action when it is again reached for trial, unless trial thereof is postponed by the trial court for cause, appealing to the court’s discretion, or unless the plaintiff’s attorneys consent to the postponement of the trial, and it is further
    “ Ordered, that if the trial of this cause is postponed by the court against the objection of the plaintiff’s counsel, and .the plaintiff then returns to California before a second trial of this action has been had, the defendants must pay the necessary and reasonable expenses of the plaintiff iu coming from the State of California to the State of New York for the purpose of attending the said inquest heretofore taken herein, and also the reasonable expenses of the plaintiff in remaining in this city since his arrival, and also the reasonable expenses of the plaintiff in returning to California upon his present trip, the amount of such expenses to lie hereafter determined by the court, or a judge thereof, on notice to the defendants’ attorney, and to be paid within two days after service of a copy of the order determining the same; and it is further
    “ Ordered, that upon the failure of the defendants to comply with any of the conditions specified in the foregoing order, the said motion to open the said default be, and the same hereby is, in all respects denied, with ten dollars costs, and the plaintiff is at liberty to issue execution upon the judgment without further notice, but upon full compliance with the terms of this order, the default is hereby opened and the inquest set aside.”

      Jrnnes JB. Lockwood, for the appellants.

      Benjamin N. Cardoso, for the respondent.
   Per Curiam:

The terms are no doubt stringent, but upon the facts appearing we cannot say that the discretion;vested in the court, and which was exercised in imposing such terms, has been abused. The defendants were alone responsible for their situation, which left them without their witnesses upon the trial and compelled the plaintiff, at great expense and inconvenience, to come from California for the purpose of trying the cause, which could have been obviated" by defendants consenting to an adjournment. This would have given them in addition time to secure the attendance of their witnesses or to have their testimony taken.

Where, therefore, the fault was entirely on one side, and where, as here, the judge was of opinion that “ this action is not defended in good faith,” a situation ivas presented which might have warranted the denial of the motion to open the default. In granting it, however, the judge was no doubt impressed with the view that the plaintiff should be reimbursed to the extent that he was injured by the favor thus granted to defendants. To- this end the cause was directed to be placed again upon the calendar for trial, and in the event that the defendants should not be ready and a postponement of the case should result, necessitating the return of the plaintiff to California, provision was made for the expenses which he should incur through defendants’ fault in being obliged to come here, remain and return to his home. This expense the defendants can save by being ready for trial on the date as provided in the order; but if they ivish further time to procure the testimony of absent witnesses — which we think should have been given them — then the plaintiff ought, to the extent provided in the order, to be reimbursed.

When we consider the object sought to be accomplished by the calling of the general calendar and the placing of causes on the day calendar certain for trial, it would be subversive of the whole plan if, as in this case, counsel for the. defendants, to the disadvantage of the plaintiff, could consent to the trial of the cause for a fixed day, and then, regardless of the trouble and expense to which such party and counsel might be put, move for an adjournment upon the ground that they never had been ready and had no assurance when they consented to have the cause set down for a day certain that they would be ready.

We think, therefore, that we should not interfere with the order, only it should not be construed as depriving the judge calling the calendar from granting a postponement of the time to enable the defendants to get their testimony if a proper case is made out, provided such defendants consent to pay the disbursements referred to in the order appealed from.

As thus modified, the order should be affirmed, without costs to either party upon this appeal.

Present- — Yan Brunt, P. J., O’Brien and Ingraham, JJ.

Order modified as directed in opinion, and, as modified, affirmed, without costs to either party upon this appeal.


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    William Palen, as Receiver of Henry Range, Appellant, v. Adelaide E. Bushnell and Others, as Executors, etc., of Ezra L. Bushnell, Deceased, Respondents, Impleaded with Henry Bange.

      Bupplementa/ry proceedings — appeals from orders — Oode of Civil Procedure, § 2433, subd. 1.
    An appeal does not lie directly from an original order made by a judge out of court in proceedings supplementary to execution (as, e. g., an order appointing a receiver); but if a review of such an order is desired, a motion on notice should, by force of section 2433, subdivision 1, of the Code of Civil Procedure, be made, either to the judge who made the order or to the court, to vacate the order, and from the order granted on such motion an appeal will lie.
    Appeal by the plaintiff, William Palen, as receiver of Henry Bange, from an order of a justice of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 28th day of February, 1893, appointing Adolph Bierck, Jr., receiver of the property, etc., of said William Palen as receiver of Henry Bange, the judgment debtor.

      IT. O. Holbrook, for the appellant.

      H. M. Whitehead, for the respondents.
   Per Curiam :

The order appealed from was an order made by a judge out of court, and not by the court, under the title of the Code relating to proceedings supplementary to execution. By section 2433 it is provided that an order made in the course of a proceeding can be reviewed only as follows: First. An order made by a judge out of court may be vacated or modified by the jndge who made it, as if it was made in an action, or it or the order of the judge vacating or modifying it may be vacated or modified upon motion by the court out of which the execution ivas issued.

If the appellant wished to review the order of Justice Beach lie should have made a motion on notice, either to Justice Beach or to' the court, to vacate that order, and from the order granted on that motion an appeal would lie. But we think no appeal could be taken until such motion was made.

The appeal must, therefore, be dismissed, with ten dollars costs and disbursements.

Present —Yan Brunt, P. J., O’Brien and Ingraham, JJ.

Appeal dismissed, with ten dollars costs and disbursements.


author: Per Odriajvi :

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    Daniel J. Sprague, Appellant, v. The Bartholdi Hotel Company, Respondent.

      Staying a second action until costs of a prior action a/re paid.

    Where a suit to reform a contract and to recover damages for its breach as reformed, is a mere attempt by a change in form to accomplish a result which was theretofore attainable in a prior action, although in another court, brought by the same plaintiff to recover damages for a breach of an aliened oral contract, which resulted in a judgment against the plaintiff for costs, the rule, that where a second action is vexatiously brought the court will stay it until the costs of the prior action are paid, is applicable.
    Appeal by the plaintiff, Daniel J. Sprague, from an order of the Supreme Court made in the city of New York, and entered in the office of the clerk of the city and county of New York on the 20th day of. October, 1892, staying the plaintiff from all proceedings in this action until ten days after payment by him to the defendant of judgments for costs recovered by the defendant against the plaintiff in an action in the Superior Court of the city of New York.

      J. N. Hayes, for the appellant.

      O. P. Gowles, for the respondent.
   Per Odriajvi :

For the reasons given in the opinion of the court below upon the decision of the motion resulting in the order appealed from, we think the order was right, and should be affirmed, with ten dollars costs and disbursements.

The said opinion of the court below (Patterson, J.) is as follows :

“ This motion is one which should be granted. The simple statement of the case is that this plaintiff (Sprague) sued in the Superior Court to recover damages for the breach of a contract which he alleged to exist, and upon the establishment of which he would have been entitled to a recovery. That was an alleged oral contract, and the plaintiff was defeated, and judgment was rendered against him, which was affirmed, and a large bill of taxed costs accrued against him. He has now brought another action in this court in which he seeks to reform a certain alleged written contract by inserting therein matters which would create a liability (and they are substantially the same matters as those litigated in the other action), and after reforming the contracts, to recover damages for the breach thereof as reformed. All this matter of what the parties had agi'eed upon Avas evidently (in substance) gone over in the action in' the Superior Court, and the present suit seems to he a mere attempt by a change of the scheme of the action, and the form in Aidiich it-is instituted, to accomplish a result Avhich has heretofore been attainable. Under such circumstances the rule of Lav is plain as effecting this motion, and that is, AAdiere a second action is A'exatiously brought, the court will stay it until the costs of that prior action are paid. It is true that under the old practice a court of equity never required the payment of costs in an action of laiv Avhich involved the same subject-matter as a condition of prosecution of a suit in equity unless the suit was brought to vex the defendants. The books are full of cases on that point, but here, it seems to me, the case presented is of that character and clearly demands that the motion should be granted, with ten dollars costs. Order to be settled on two days’ notice.”

Present — Yan Brunt, P. J., O’Brien and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.


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    Louise Meise, Respondent, v. John H. Doscher and Henry Newman, Appellants.

      Judgment for the amount admitted to he due in an answer — action against the maker and indorser of a promissory note.

    When the answer of the defendants, in an action brought upon a promissory note against the maker and indorser, admits that the maker is indebted to the plaintiff for a part of the amount of the note, and admits the indorsement, and the indorser's ordinary liability appears on the face of the pleadings, the court may, under section 511 of the Code of Civil Procedure, direct judgment against both the defendants for the sum so admitted to be due.
    When, however, in such a case, the indorser’s liability does not appear on the face of the pleadings (as, e. g., when the plaintiff is the payee named in the note, and the complaint contains no allegation showing that the indorsement was intended to give credit therewith to the payee), a judgment can only be rendered, under said section 511, against the maker, and not against the indorser, for the amount admitted to be owing by the maker.
    Appeal by the defendants, John H. Doscher and Henry Newman, from a judgment of the Supreme Court against the defendants, entered in the office of the clerk of the city and county of New York on the 8th day of February, 1893, upon an order made on that day at the New York Special Term, severing the action and directing judgment for an amount admitted to be due in the defendants’ answer.

      J. H. Hull, for the appellants.

      J. Q. Flammer, for the respondent.
   Per Curiam :

This action was brought to recover against the defendant Doscher, as maker, and the defendant Newman, as indorser, of two promissory notes. The defendants’ answer- admitted ■ the making of the notes by Doscher, and their indorsement by Newman. It then alleged that Doscher, being indebted to the plaintiff in the sum of $2,386.05, was induced to sign and deliver the notes in question for $3,000, and then, as a further defense, that Doscher had paid to the plaintiff upon the note $1,922.86, and that he is now indebted to her thereon in the sum of $435.Y0 only.

Under this condition of the pleadings, the court was justified in directing the judgment appealed from as against Doscher.

Section 511 of the Code provides that “ where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion may, in its discretion, order that the action be severed ;• that a judgment be entered for the plaintiff for the^part so admitted ; and, if the plaintiff so elects, that the action bo continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim.”

Under the pleadings, therefore, the maker being indebted upon the notes in the amount stated in the answer, the indorser woidd ordinarily be liable to the plaintiff therefor, and, under section 511 above referred to, judgment might be directed against both the maker and the indorser.

But in the case at bar, it appears that the plaintiff was the payee of the note, and the presumption of law would be, without some allegation or evidence explaining the circumstances of the indorsement, that the indorser placed his name upon the paper, intending -to be liable thereon subsequent to the payee. Therefore, there being no allegation in the complaint that the indorsement of the notes by the indorser was intended to give credit therewith to the payee, no liability against the indorser appeared iqion the face of the pleadings.

The judgment and order should be reversed as to the defendant Newman, and affirmed as to the defendant Doscher, without costs to either party.

Present — Yan Brunt, P. J., O’Brien and Ingraham, JJ.

Judgment and order reversed as to the defendant Newman, and affirmed as to the defendant Doscher, without costs to either party.


author:
Ingraham, J. :
      Yan Brunt, P. J.:

text:
    Andrew V. Jova, Appellant, v. The Southern Improvement Company, Respondent.

      Contract of employment — construction — interpretation by the acts of the parties.

    A contract of employment construed, and tlie words, “ and to continue for one year from May 1, 1890,” following a provision as to the rate of salary to be paid, held, on consideration of the entire contract and of the interpretation put upon it by the"acts of the parties, to refer to the term of employment and to entitle the employee to maintain an action to recover damages for a breach, of the contract, caused by his dismissal -before the expiration of one year from May 1, 1890. "•
    Appeal by the plaintiff, Andrew V. Jova, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the city and county of New York on the 16th day of February, 1893, upon the dismissal of the complaint at the New York Circuit, upon the ground that it appeared upon the face thereof that it did not state facts sufficient to constitute a cause of action.
    The contract for a breach of which the action was brought was as follows:
    “ It is agreed this 21st day of October, 1889, between Andrew V. Jova, M. D., of New York, of the first part, and the Southern Improvement Company, a corporation created and existing under the laws of the State of New Jersey, of the second part, that the party of the first part shall furnish medical attendance and perform the duties of physician in charge of the Mountain Park Hotel, Hot Springs, North Carolina, commencing October 1, 1889 — and the party of the second part agrees to pay said party of the first part from the date named (October 1, 1889), a salary of $50 per month, with board, lodging and washing at said hotel until May 1, 1890 —• or, in case of the resignation of Dr. W. F. Ross, or his relincpiishment of his contract before May 1, 1890, then the amount to be paid by the party of the second part shall be one hundred and twenty-five dollars ($125) per month, in addition to board, etc., as above stated — and to continue for one year from May 1,1890, or from the date Dr. Ross severs his connection professionally with the party of the second part.”

      II. II. Doherty, for the appellant.
    Peabody, Baker c& Peabody, for the respondent.
   Ingraham, J. :

The action is brought to recover damages for the breach of a contract whereby plaintiff claims to have been employed by the defendant until May 1, 1891.

The complaint sets forth tlie contract in full; alleges that a Doctor Ross mentioned in the contract, continued in the employ of the defendant until his contract with the defendant terminated by limitation at the end of April, 1890 ; that the plaintiff entered upon his employment under said agreement and duly discharged all the duties thereof until the end of May, 1890, and was paid for his services up to that time, and that about the end of May, 1890, plaintiff was without cause or right, discharged by the defendant.

Upon the construction of this contract as claimed by plaintiff, he was employed from October 1, 1889, to "May 1, 1891, and while the construction to be given to it is not free from doubt, I am of the opinion that that of the plaintiff is right.

By the agreement, which was dated the 21st of October, 1889, the plaintiff, the party of the first part, agreed to furnish medical attendance and perform the duties of physician in charge of the Mountain Park Hotel, Hot Springs, North Carolina, commencing October 1, 1889.

There is in this covenant on the part of the plaintiff, no time fixed for the termination of the employment. Then follows the covenant of the defendant It is that defendant agrees to pay to plaintiff from October 1, 1889, a salary of fifty dollars per month with board, etc., at said hotel until May 1, 1890, “ or in the case of the resignation of Doctor W. F. Ross, or his relinquishment of his contract before May 1, 1890, then the amount to be paid by the party of the second part shall be one hundred and twenty-five dollars ($125) per month in addition to board, etc., as before stated.”

If the contract had stopped here, it might be held to be an employment to May 1, 1890, at fifty dollars per month, or in case of the resignation of, or the relinquishment of his contract by, Doctor Ross, the compensation was to be $125 per month.

The contract then contains the following: “ And to continue for one year from May 1, 1890, or from the day that Doctor Ross severs his connection professionally with the party of the second part” (the defendant).

What is to continue for one year ? Evidently the employment of the plaintiff, and it is in this latter clause of the contract that contains the first provision as to the period during which the contract is to continue in force, the provision in the former part of the contract as to the first of May evidently applying to the period for which fifty dollars a month was to be paid.

If it had been the intention of the parties that the continuance of the employment after May 1, 1890, should be conditioned upon the resignation or retirement of Doctor Ross prior to May first, the provision that the contract was to continue for one year from May 1, 1890, would have been meaningless.

Taking the whole contract together, with the situation of the parties as alleged in the complaint, and the fact as there alleged that Doctor Ross’ contract with the company terminated in the latter part of April, the proper construction to be given to the contract is, that the plaintiff was to be employed from October 1, 1889, to May 1, 1891; that he wras to be paid fifty dollars per month until Doctor Ross’ professional connection with the defendant ceased, if before May 1, 1890, by resignation or relinquishment of the then existing contract, or on May 1, 1890, by the termination of his contract, and that the amount to be paid thereafter was to be $125 per month.

And this construction is necessary to give effect to all the provisions of the contract, and is confirmed by the construction placfed upon the 'contract by the defendant, which appears by the fact alleged in the complaint, and which must on this appeal be taken as true, that the plaintiff continued in the employment until the end of May, 1890, and was paid for the month of May at the rate of $125 per month.

It follows that the court below erred in dismissing the complaint, and the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.

O’Brien, J., concurred.

Yan Brunt, P. J.:

I would be inclined to differ from Mr. Justice Ingraham in his interpretation of the contract in question, were it not for the alleged interpretation put upon it by the action of the parties, which allegations, for the purposes of this appeal, we must accept as true.

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


text:
    In the Matter of the Application of The Board of Street Opening and Improvement of the City of New York, Relative to the Opening of One Hundred and Twenty-seventh Street from the Boulevard to Manhattan Street. On the Petition of James Baird, Appellant; John Lang and Others, Respondents.

      Street opening — title to award for land taken — construction of an exception of the street in a deed.

    A deed conveyed two lots, by their numbers as shown on a certain map, “ excepting therefrom, however, so much of said lots as has been taken for the opening of One Hundred and Twenty-seventh street, and the widening of Manhattan street; ” at the time of this conveyance a portion of the lots, as shown upon the map, had been taken for the widening of Manhattan street, and One Hundred and Twenty-seventh street had been laid out on a map filed by the municipal authorities, but no proceedings had been taken to condemn the land included in One Hundred and Twenty-seventh street or to actually appropriate it for street purposes.

      Held,, that the exception jn the deed was intended to cover only that portion of the lots which had then been actually taken for street purposes, and, therefore, that the owner of the lots under such deed at the time when portions thereof were subsequently taken on the actual opening of One Hundred and Twenty-seventh street, was entitled to the award then made for the land so taken.
    Appeal by the petitioner, James Baird, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 8th day of February, 1893, confirming the report of a referee appointed to ascertain the right to certain awards made for land taken for street purposes.
    The respondents are the children of Thomas Lang, deceased.

      Foley & Powell, for the appellant.

      Pcmnes A. Peering, for the respondents.
   Per Curiam :

The question presented here is as to the ownership of an award made in this proceeding to open One Hundred and Twenty-seventh street in the city of New York from the Boulevard to Manhattan street.

Thomas Lang was the owner in fee of certain real estate in the city of New York, including two lots of land designated on a map of Manhattanville, made by Adolphus Loss, as lots Nos. 104 and 106. All his estate, both real and personal, he devised to his children by will, which was duly admitted to probate. The children of said Thomas Lang having agreed to make partition of all the real estate of which he died seized, and to convey to each their respective shares, and having agreed that the two lots in question should be conveyed to one of the children' named John Lang, the other children executed a deed, dated the 30th of June, 1875, conveying to him the two lots in question by the following description :

“ All those two certain lots or parcels of ground situate, lying and being at Manhattanville and known and distinguished on a map of Manhattanville aforesaid, made by Adolphus Loss, City Surveyor, September 15, 1806, by the numbers 104 (one hundred and four) and 106 (one. hundred and six), on the southwesterly side of Manhattan street, bounded northeast in front by Manhattan street, southeast by lot number 108 (one hundred and eight), southwest in the rear by Blackberry alley, and northwest by lot number 102 (one hundred and two).

“ Being the same premises conveyed to Thomas Lang by Joseph Hussen by deed dated February 1, 1850, and recorded on the same day in the office of the Register of the City and County of New York, in Liber 533 of Conveyances, page 457, excepting therefrom, however, so much of said lots as has been taken for the opening of One Hundred and Twenty-seventh street and the widening of Manhattan street.”

John Lang and Annie, his wife, by deed dated the 25th day of January, 1877, conveyed the said two lots by the same description to James Baird, the appellant herein.

At the time of these 'Conveyances, a portion of the lots, as shown upon the Loss map, had been taken for the widening of Manhattan street; and prior to the time of those deeds, One Hundred and Twenty-seventh street, between Manhattan street and the Boulevard, was laid out by the. commissioners of streets and roads on a map filed by them on the 1st of April, 1811, under' and pursuant to chapter 115 of the Laws of 1807, but no proceedings had been taken to condemn the land included in One Hundred and Twenty-seventh street, or to actually appropriate it for street purposes. Subsequently this proceeding was commenced to condemn the land included in One Hundred and Twenty-seventh street, which embraced a portion of these two lots in question, and an award was made to the owners of such portion of these two lots as was included in One Hundred and Twenty-seventh street, and the order appealed from gave to the heirs at law of Thomas Lang, the testator, the award thus made.

The question to 'be determined is, whether, by the deed from the heirs at law of Thomas Lang to John Lang, the portion of the two lots in question included within the bounds of One Hundred and Twenty-seventh street was excluded from that conveyance. The court below held that it was excluded. from the conveyance, and remained vested in the heirs at law of Thomas Lang.

We think, however, it was not the intention of the parties to that deed that any portion of the two lots Nos. 104 and 106 on the Loss map, to which they still had title, should be excepted from the conveyance; that all that was intended to be excepted was those portions of the lots to which they had lost title by reason of the proceedings of the city in actually taking them for 'street purposes. The language used clearly implies that the exception was to relate only 'to so much of the lots as had been, before the execution of the conveyance, actually taken for the opening of these streets, and not to any portion of the property which might in the future be taken for the opening of the streets in question. There was nothing to show that the grantors had any intention to reserve these small pieces of land that in the future would be necessarily taken for One Hundred and Twenty-seventh street. So far as appears, they owned no property in the vicinity to which these pieces of land could be useful, and in the face of the clear language used, we fail to see how any other intention could be implied.

The order appealed from should, therefore, be reversed, and the amount of the award directed to be paid to the appellant, with costs and disbursements in the court below, and ten dollars costs on this appeal and disbursements.

Present — Wan Brunt, P. J., and Ingraham, J.

Order reversed and the amount of the award directed to be paid to the appellant, with costs and disbursements in the court below.


text:
    Newton E. Whiteside and Others, on their Own Behalf, etc., Appellants, v. Noyac Cottage Association, Respondent.

      Members of corporations — remedy within the corporation to be exhausted befor'e application to the courts.

    Members and lotowners of a corporation, organized to purchase and improve land and maintain a club house, cannot, on being notified of an assessment made by the corporation upon its members, purporting to be under its by-laws, maintain an action to remove such assessment as a cloud upon the title to their lots, and to enjoin the corporation from enforcing its payment, without having availed themselves of the right of hearing and defense afforded to them within the corporation, where it does not appear that the corporation has deprived them of their membership or property rights, or that it intends to do so illegally.
    Appeal by the plaintiffs, Newton E. Whiteside and others, ou their own behalf, and on behalf of all other lot-owning members of the Noyac Cottage Association, who are willing to become parties plaintiff and contribute to the expense of the suit, from a final judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 5th day of November, 1892, upon a decision of the New York Special Term, dismissing the complaint and vacating a preliminary injunction.

      Eugene D. llawicins, for the appellants.

      William C. Eeddy, for the respondent.
   Per Curiam:

This action was brought to remove a cloud upon the title of the plaintiffs to certain lots owned by them as members of the defendant, claimed to have been caused by the lien of an assessment levied upon them under the by-laws of the defendant, and to enjoin defendant from forfeiting their rights as members by reason of their nonpayment of such assessment.

Upon the trial it was shown that the respondent, as a club, was incorporated under chapter 267 of the Laws of 1875 and its amendments, for social and recreative purposes, and that after incorporation ft purchased a tract of about forty acres of land on Little Peconic bay, Long Island, and proceeded to improve it, according to the terms of its prospectus, by laying it out in lots, groves, lawn-tennis grounds, lakes and ponds and erecting and maintaining there a club and clubhouse. The plaintiffs purchased some of these lots of land, received deeds therefor, and thereby became mem here of the defendant. By the express terms of the deeds, the plaintiffs were to have and to hold the premises, “ subject to assessments by the managers of the said Noyac Cottage Association to enable the said Association, party of the first part, to meet deficiencies which may arise in defraying its current expenses for maintaining its public grounds, club house, piers, beaches, streets or avenues, and other property, and in the payment of town, county and State taxes.” By the by-laws of the defendant, provision is made for the manner in which assessments shall be levied and the mode of enforcement, such by-law in effect providing that the board of managers may levy assessments on each member of the association who owns a lot, of such sum as represents his share of the tax imposed by public authority for that year, and in addition, “ may also from time to time make assessments for other purposes upon the members of the Association who are owners of lots as they shall deem necessary; but the amount of such assessments shall not exceed ten per cent of the value of his holding.”

Under date of June 19, 1891, the board of managers notified the plaintiffs and the other members of the association that, pursuant to a resolution adopted, an assessment of ten per cent on the purchase price of lots was levied on the members, and accompanying such notice was an explanatory circular, in which the attention of members was called to the fact “ that during our three years’ existence no assessments or dues have been exacted, but all taxes have been paid and many improvements made on the grounds — all being paid by the Treasurer out of personal funds.”

The claim of plaintiffs and of others who' took their position is that such assessment was illegal, exceeding the powers vested in the board of management, in that it was levied to pay, not alone for current expenses, but for permanent improvements, and that with respect to the latter the board of managers had no power to assess for such purposes. Having refused to pay such assessments, and ninety days having elapsed, the managers forwarded to plaintiffs a notice, containing a preamble and resolution adopted by them, which recited the foregoing facts and in the resolution stated:

Resolved, That pursuant to Section 5, Chapter YL, of the By-Laws of this Association, all the rights and membership of said Newton E. Whiteside, and all his right, title and interest in the property of this Association, are hereby declared to cease and determine and revert to this Association, unless said Newton E. Whiteside shall show sufficient cause to the contrary before this Board, at the office of the Secretary, No. 147 Nassau street, on the 28th day of December, 1891, at 3 p. m. o’clock on said day, at which time an opportunity shall be given him to be heard in the matter.”

Feeling aggrieved by such action of the board of managers, and without waiting for the time fixed in the notice for the hearing, the plaintiffs brought this action for the relief as stated.

Applying the principles laid down in the case of Thomas v. M. M. P. Union (121 N. Y. 50), and cases cited, we think that the disposition made by the learned trial judge was right. The appellants have not availed themselves of their right of hearing and defense within the corporation, i. e., before the managers pursuant to notice, and the respondent has not deprived them of their' rights of membership or property rights, nor is it to be assumed that it would illegally do so.

Upon such facts appearing, no such- case was presented as would justify the intervention of a court of equity, and the dismissal of the complaint and the vacating of the preliminary injunction were, therefore, proper. For these reasons we think the judgment should be affirmed, with costs.

Present — Yan Brunt, P. J., and O’Brien, J.

Judgment affirmed, with costs.


text:
    Newton E. Whiteside and Others, on their Own Behalf, etc., Appellants, v. Noyac Cottage Association, Respondent.

      Failure to submit proposed findings — dismissal of a complaint "on the merits

    Tlie failure of a defeated party, through mistake or inadvertence, to submit proposed findings in time, on a trial by tlie court without a jury, does not entitle him as a matter of right (even though the trial judge has the power), tc set aside the judgment.
    When all the questions sought to be raised upon a motion to vacate a judgment, entered under the above circumstances, can be presented upon exceptions to the decision on appeal from the judgment, no injury is done the defeated party by a denial of such motion.
    The mere insertion of the words “on the merits” in the introductory recital tc a judgment dismissing a complaint, and not in the body of the judgment, does not raise, on a motion to strike out such words, the same question as would he presented had there been a judgment dismissing the complaint on the merits.
    Appeal by the plaintiffs, Newton E. Whiteside and others, on their own behalf and on behalf of all other lot-owning members of tlie Noyac Cottage Association who are willing to become parties plaintiff , and contribute to tlie expense of tlie suit, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 5th day of December, 1892, denying the plaintiffs’ motion to vacate and set aside the judgment entered in the above-entitled action.
    The action was brought to remove a cloud upon the title of the plaintiffs to certain lots owned by them as members of the defendant (a corporation organized under tlie Club Act, chapter 267 of the Laws of 1875, and acts amendatory thereof), alleged to be caused by the lien of an assessment levied upon them and made a lien on the lots under the by-laws of the defendant, and to enjoin the defendant from forfeiting their rights as members by reason of their nonpayment of the assessment.
    The action was tried before the court at Special Term. The. court made findings of fact, the' introduction to which was as follows ; “ In this action tried before the Court at Special Term, Part I., at the Court House in the city of New York on the 13th day of October, 1892, at the close of the plaintiff’s case, the defendant having moved to dismiss the complaint on the merits, and the motion having been granted, I do make and file the following Findings of Fact and Conclusions of Law, viz.: ”
    The conclusions of law included among others the following: “ 2d.— That the complaint herein should be dismissed and the temporary injunction heretofore granted herein be vacated.”
    Thereupon judgment was entered as follows:
    “ This action having brought to trial by the court, and a decision therein having been rendered for the defendant on the merits and filed,
    “Now on motion of William C. Neddy, defendant’s attorney,
    “ It is adjudged that the complaint of the plaintiffs herein be and the same is hereby dismissed ; and, that the defendant, The Noyac Cottage Association, recover judgment against the plaintiffs, Newton E. Whiteside, Henry G. Atwater, Lucien J. Whitney, Charles II. Twist and Annie A. Perdomo, and each of them for the sum of one hundred and thirty-three 77-100 dollars, the costs of this action as taxed, and that the injunction in this action heretofore granted be vacated and annulled.”

      Eugene D. lla/wkins, for the appellants.

      WiTlimn O. lieddy, for the respondent.
   Per Curiam :

The failure of appellants through mistake or inadvertence to submit proposed findings in time would not entitle them as a matter of right (even though the trial judge had the power), to set aside the judgment; and as the judge correctly held that all the questions sought to be raised could be presented upon exceptions to the decision on appeal from the judgment, no injury was done to appellants by a denial of their motion.

With respect to the second part of the motion, to have the words ■“ on the merits ” stricken out, it is sufficient to add that these words do not occur in the judgment, and their appearance as one of the recitals does not raise the same question as would have been presented had there been a judgment dismissing the complaint on the merits.

"We think, therefore, that the order appealed from should be in all respects affirmed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., and O’Brien, J.

Order affirmed, with ten dollars costs and disbursements.