author: Mayham, P. J. : Landon, J.:

text:
    Jane Robertson, Appellant, v. George A. Lawton and Roswell I. Lawton, Defendants; Marcena M. Terry, Respondent.

      Execution • — when it becomes dormant — an execution delivered but not levied prior tor a levy under a subsequent attachment — when the latter takes precedence.

    In ¡m action brought to determine the priority of liens upon a fund in the hands of a sheriff, it appeared that the defendants made a general assignment for the benefit of creditors, with preferences, on the 24th day of July, 1894; that shortly afterwards several judgment creditors commenced actions to have the assignment set aside as fraudulent; that on the 21st day of September, 1894, the plaintiff obtained judgment against the defendants, and upon the same day issued an execution; that the plaintiff’s attorney gave the sheriff no special directions at the time, but told, him that the defendants had made a general assignment, and that he was about to bring an action to have it set aside. It further appeared that on the 24th day of September, 1894,’ Marcena M. Terry seized all the property of the defendants under an attachment; that on the 3d day of October, 1894, under orders made in the actions brought to set aside the assignment, the sheriff sold all the property thus seized. In the following May the assignment was set aside, a certain judgment was ordered paid, after satisfying which a fund remained in the hands of the sheriff. It was held at Special Term that the plaintiff’s execution was not delivered to the sheriff for the purpose of being actually levied.

      Held, that, as "between the plaintiff and the attaching creditor Terry, the execution of the plaintiff had become dormant for a failure to levy before the seizure by Terry of the judgment debtors’ property under the attachment, and that Terry had acquired a precedence by levying under the attachment promptly, taking the hazard of a doubtful situation.
    Appeal by the plaintiff from an order of the Supreme Court,, made at the Schenectady Special Term and entered in the office of the clerk of the county of Warren on the 2d day of August, 1895,, adjudging that the execution issued on the judgment entered in the action on the 21st day of September, 1894, was not a lien upon a certain fund in the hands of the late sheriff of Warren county superior to the lien of an attachment and execution issued in an‘ action brought by one Marcena M. Terry against said defendants, and directing the distribution of such fund by said sheriff.

      Lyman Jenhins, for the appellant.

      Charles R. Patterson and Louis M. Brown, for the respondent, Marcena M. Terry.
   Mayham, P. J. :

This was a motion to set aside a judgment in favor of the plaintiff against the above-named defendants, entered on the 21st day of' September, 1894, and the execution issued thereon on the same day,, which was placed in the hands of the deputy sheriff of Warren county at eight o’clock in the forenoon of that day, mainly on the ground that the same was not executed by a levy on the property of' the judgment debtors before the twenty-fourth day of the same-month, on which last-mentioned day one Marcena M. Terry seized all the property of the judgment debtors liable to be taken on execution, under and by virtue of an attachment issued in his favor in an action brought by him against the defendants herein. Said Terry claimed on this motion that the execution issued on the judgment, in favor of the plaintiff, as to his attachment, had become dormant, before the property of the defendants was seized on such attachment..

The affidavits used on this motion disclose that on the 24th day of' July, 1894, the defendants herein made a general assignment, with, preferences to one Ezra Hartman, for the benefit of' creditors, and that shortly thereafter several judgment creditors commenced actions to set aside the assignment as fraudulent as against the creditors of the assignors, and that during the pendency of such actions orders were obtained by creditors of said defendants, by the terms of which the sheriff of "Warren county was directed to sell at public auction the property assigned to ITartman, but which had been seized by the sheriff under the attachment above referred to, and that tlie sheriff did, on the 3d day of October, 1894, sell the goods so seized for $3,410.

On the 3d day of May, 1895, Messrs. Bussey & McLeod, judgment creditors of the defendants, recovered a judgment declaring said assignment made by defendants to Hartman void as against the creditors of the defendants; that after satisfying the judgment of Bussey & McLeod there remained in the hands of the sheriff the sum of SSI'S.36, the proceeds of the sale of the property of the defendants made by the sheriff under the orders above referred to. And the question here is, whether that money shall be applied on the execution issued on the plaintiff’s judgment, or on the execution issued on the attachment in favor of Terry.

No directions except those contained in the execution appear to have been given by the plaintiff or his attorney to the deputy sheriff at the time of the delivery of the execution'to him, or at any time thereafter. But the deputy sheriff was informed by the plaintiff’s attorney that the defendants had made a general assignment, and that their property was in the hands of the assignee, and that he was about to commence an action to have the assignment declared fraudulent and void.

No indemnity appears to have been demanded by the deputy sheriff as a protection to him for the seizure of the assigned property, nor was any bond of indemnity offered to him by the plaintiff.

LTpon these facts the learned judge at Special Term held that the plaintiff's execution, as between him and the execution issued on the judgment rendered in the action in which the attachment proceedings were had, was dormant, and that the execution issued on the judgment rendered in the attachment case had precedence by virtue of a levy under the attachment over that of the execution issued on the plaintiff’s judgment, and bases that decision apparently upon the idea which he gathers from the affidavits that the execucution on the plaintiff’s judgment was not delivered to the proper officer (to be executed).

It is true that the Code of Civil Procedure (§ 1405) declares that the goods and chattels of a judgment debtor, not exempt from execution, are bound by the execution from the time of the delivery thereof to the proper officer to be executed ; but the Special Term having found that it was not delivered to the deputy sheriff to be executed; that, as against the process delivered subsequently to the same officer to be executed, the latter acquired precedence, by reason of the hazard taken in executing the doubtful process in a doubtful case, as against the less courageous and vigilant creditor, who failed to make an actual levy.

We are inclined, assuming the facts to be as the learned judge at Special Term found them, to hold his conclusion of law sound.

We are, therefore, of the opinion that the order should be affirmed on the opinion of the Special Term judge.

Herrick, J., concurred ; Putnam, J., concurred in result.

Order affirmed, with costs and disbursements.

The Special Term opinion was as follows :

Landon, J.:

Upon the evidence, it is clear that the money in the hands of the sheriff now awaiting distribution has been secured to Mr. Patterson’s client in consequence of his diligence and the risks which he incurred.

Mr. Jenkins’ client incurred no risks. In Cudahy v. Rhinehart (133 N. Y. 253) Andrews, J., lays down the rule that, as between attaching creditors, those who fight the battle and incur the risks take precedence over the laggards who first display their vigor upon the distribution of the fruits of the victory, although the attachments of such laggards may be prior in point of time. So sound a principle of equity must govern here, unless the law forbids.

Mr. Jenkins placed his client’s execution in the hands of the deputy sheriff September 21, 1894. The deputy made no levy. September twenty-fourth Mr. Patterson placed the attachment of his client in the hands of the sheriff, not the deputy, and procured him to levy upon the assigned property and take it into his custody. The assignee had advertised the property for sale .for the same day. But for this seizure by the sheriff, at the instance of Mr. Patterson’s client, the property would doubtless have passed into the hands of innocent pmrcliasers. The risk of this action was incurred by Mr. Patterson's client and not by Mr. Jenkins’. The property was seized while the execution of Mr. Jenkins’ client was in the hands of the deputy sheriff, and the sheriff who made the seizure had no notice of the existence of such execution.

By the mere delivery of the execution to the deputy sheriff without actual levy, Mr. Jenkins’ client secured no lien upon the assigned property, as against the subsequent actual levy under Mr. Patterson’s client’s attachment.

The Code of Civil Procedure (§ 1105) declares that the goods and chattels of a judgment debtor not exempt, etc., are bound by the execution from the time of the delivery thereof tt> the proper officer, to 1)6 executed. But, as between the judgment debtors and their assignee, these goods were not the judgment debtors’, but their assignee’s goods. (Brooks v. Wilson, 53 Hun, 173.)

The deputy sheriff was not obliged to levy upon them without indemnity (Chamberlain v. Beller, 18 N. Y. 115; Mumper v. Rushmore, 11 Hun, 591; affd., 79 N. Y. 19), much less without request, and Mr. Jenkins made none.

Mr. Jenkins, in his affidavit, states that the deputy asked him, if the defendants liad any property subject to levy; that deponent said there was property, but that defendants had assigned to Hartman and he had possession, but deponent believed the assignment void, and that deponent had the papers in a judgment creditor’s action to set aside said assignment and in aid of said executions nearly prepared and should bring said action at once.”

It was subsequently shown that the assignment to Hartman was void; but fraud is not presumed ; it must be proved, and, until proof is made, the presumption is in favor of the assignee’s title.

Moreover, the assignment was only voidable, and Mr. Jenkins5 client did not elect to incur any risk in procuring it to be declared void. After the sheriff had seized the property, Mr. Jenkins proceeded without risk with a suit to have the assessment declared void. He used, without any contest, the minutes of the evidence which Mr. Patterson had adduced upon the trial of a contested suit at a previous term of the court in the actions brought by his client for the like purpose.

Since the deputy sheriff was not bound to execute Mr. Jenkins’ client’s execution, and was not requested to do so as to the assigned property, and there was no other, and did not execute it, it is fair to conclude that it was not delivered to him to be executed, except contingently, and was in effect dormant when Mr. Patterson’s client’s attachment was executed. That being so, Mr. Jenkins’ client fell behind in the race of diligence and remains so.

It is true that Mr. Jenkins commenced an action in behalf of one of his clients in aid of his execution September 24, 1894, but after the levy of Mr. Patterson’s attachment.

Now, it has been held in certain cases that an execution creditor majr commence an. action in aid of his execution without first making an actual levy. (Stewart v. Beale, 7 Hun, 405.) In real estate cases, no levy is necessary, since the judgment binds the real estate without levy. Where no levy can be made on the personal property (as in Stewart v. Beale), equity will dispense with it or remove the obstacle so as to permit it to be made.

Here Mr. Jenkins’ client proceeded to judgment, valid, of course, as between the parties to it, but not affecting the prior rights secured by Mr. Patterson’s clients. Apart from the judgment thus secured, Mr. Jenkins’ clients would have no right to have the assigned property sold without first making the levy, and having elected not to make the levy until they obtained their judgment, they thus elected to treat the assigned property as belonging to the assignee until they should prove it did not, and thus stood out of the way of Mr. Patterson’s clients, who at the outset seized the property as the judgment debtors’.

In respect to chattels alleged to have been fraudulently assigned, as between different attachment or execution creditors, it is obvious that each one should by his acts define his position. In respect to real estate fraudulently assigned, an execution, and a suit in aid of it and notice of lis pendens would give notice to all the world, and since the real estate is immovable, no seizure or injunction is necessary to preserve the subject-matter of the litigation. But chattels are movable, and, unless timely seized, may be taken from the jurisdiction or be lost. An execution against their former owner is no notice of any claim to the chattels against the alleged title of his assignee, and, without more, in no way binds them. A suit in aid of the execution, where there is no levy or attempt to make one, or other seizure of the chattels, is a mere 'declaration that the judgment creditor will take the chattels, if the court will permit him, and the assignee will be good enough to keep them on hand. This may be enough between the parties to the suit, but it is clear that it is not enough to obtain priority over the vigilant creditor who levies upon and takes and holds the chattels and by his action in equity first establishes the debtor’s title to them.

In such case, the priority of actual levy determines the priority of right in distribution. (Beck v. Burdett, 1 Paige, 308.)

Mr. Patterson’s client may take an order giving him priority, wdth costs.

I do not think the judgment of Mr. Jenkins’ client should be set aside. He took the risk of finding an appearance by mail after he made his affidavit of default, but his affidavit was true when he made it, and was not rendered untrue at any subsequent event. The practice is not commendable, but as the event confirms the .affidavit and is regular in form, the judgment must stand.

The other defects in the judgment roll are amendable.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    James W. Bender, Respondent, v. John L. Blessing, Appellant, Impleaded with Martin J. Blessing.

      Promissory note — payments of interest indorsed thereon — no presumption that the interest was paid by any particular maker.

    Where an action is brought against several makers of a promissory note, which would be barred by the Statute of Limitations unless saved by payments made thereon, and upon the trial of the action the holder gives no evidence to prove by which one of the makers alleged payments were made, there is no presumption that the payments were made by all of the makers or by any particular one of them.
    Appeal by the defendant, John L. Blessing, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the loth day of June, 1895, upon the verdict of a jury rendered after a trial at the Albany County Court, and also from an order entered in said clerk’s office on the 19th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The complaint in this action alleged the making of a promissory note by the defendants and one Ilelme, to the order of the defendant John L. Blessing, its indorsement by John L. Blessing and its transfer for value to the plaintiff, and demanded judgment for the amount of the note with interest.
    The defendant John L. Blessing, answering the complaint, denied the execution of the note, and for a separate defense set up the Statute of Limitatioiis.
    Upon the trial the plaintiff proved the execution of the note, and that certain payments of interest had been made, but there was no-proof that the defendant John L. Blessing ever paid or authorized the payment of any interest on the note.
    A judgment in favor of the plaintiff was reversed by the General Term and a new trial was granted.

      George II. Stevens, for the appellant.

      Galen R. Ilitt, for the respondent.
   Mayham, P. J.:

The only substantial difference that we have discovered in the-evidence on this trial, from that which was taken on the former trial, is, that on this trial it does not apjrear by whom the interest which was indorsed upon the note was paid, if paid at all; whereas, on the former trial the evidence tended to show that the interest, payments of which were indorsed on the note, had been paid by Martin J. Blessing, one of the joint and several makers of the note.

When the case was before this court on a former appeal (82 Hun, 320), this court held that, as the Statute of Limitations was pleaded by the defendant, John L. Blessing, and there was no evidence proving, or tending to prove, that any interest had been paid by him, or by any other person under his direction or authority, that the-note as to him was barred by the Statute of Limitations, and that judgment against him was accordingly reversed.

On this trial the note and the indorsements on the same were-offered in evidence by the plaintiff, and was received by the court under the objection by the defendant that the indorsements were-immaterial and improper and not evidence against the defendant, John L. Blessing; that there was no evidence to show by whom the payments had been made, and they were not, of themselves, evidence against the defendant, John L. Blessing.

The learned trial court held and decided on this trial, from the evidence offered, that the legal presumption was that either one or all of the makers of the note paid the interest, as it was their duty to do, at the end of each year, and held and charged that, as the evidence stood, the proof showed that each one of the makers might have paid some part of such interest.

If this court was right in its determination on the former appeal, there is nothing in the case as it now stands to cause it to change its determination made at that time.

"We see nothing either in the law or the evidence which calls upon us to change the conclusion reached by us on the former appeal, and the judgment must be reversed for the reasons stated in the opinion on that appeal without reiterating such reasons here.

If the plaintiff, by his own proof, failed to make out a legal cause of action against the defendant, it was certainly not incumbent on the defendant to give any proof of his affirmative defense. He could safely stand upon the plaintiff’s failure of proof, and no presumption can be indulged in as against him for not introducing affirmative evidence of his defense when the plaintiff had failed to establish a legal cause of action against him.

It is insisted by the learned counsel for the appellant that this court should, on this hearing, render judgment absolute in favor of the defendant, with costs, a power which doubtless rests with this court in a proper case. (Price v. Price, 33 Hun, 432.)

But if on another trial the plaintiff can establish payment of interest by this defendant, either upon the defendant’s testimony or that of any other witness, we think he should have the privilege of doing so.

The judgment must be reversed and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred:

Judgment reversed and a new trial granted, costs to abide the event.


author: Mayijam, P. J. :

text:
    Remy Lafort, Respondent, v. James H. Carpenter, Defendant; William R. Bridges, as Assignee for the Benefit of Creditors of James H. Carpenter, Appellant.

      Hquitable lien — a bond deposited for collection — the proceeds may be followed into the hands of a general assignee.

    Where a customer deposits a bond with the agent of a banker for purposes of collection only, the relation created between the parties is not that of debtor and creditor, but that of principal and agent.
    'The fund realized from the collection of the bond is impressed with a trust in favor of the customer, and he may follow the property in its changed form into the hands of a person who is the general assignee for the benefit of the creditors of the banker.
    Upon the trial of an action brought to recover the proceeds of' a bond deposited with one Carpenter, against Carpenter and William B. Bridges, his assignee for the benefit of creditors, it appeared that the plaintiff, about two weeks before Carpenter made a general assignment, delivered to Bridges, who was then the agent of Carpenter, a certain bond, with instructions to collect the money due upon it; that the money was actually collected and received by Carpenter, through his agent Briggs, two days before the former made the assignment; that during a period of ten years the plaintiff had transacted business with the defendant Carpenter, or with a firm of which the defendant was a member, and to the business of which he had succeeded, and that the nature of the business was the deposit of checks, cash, securities and bonds, and the keeping of a regular bank account. It further appeared that when the bond in question was deposited by the plaintiff for collection, he told Bridges that he wanted the money for the bond, and declined to invest the proceeds in other bonds which Bridges suggested.

      Held, that Bridges, as assignee of Carpenter, took the money, impressed with the trust under which Carpenter held it, and could rot be treated as a bona fide holder of the money as against the claim of the plaintiff, the cestui que trust and owner of the same;
    That, it appearing that Bridges as assignee received more money than the amount realized upon the collection of the bond, the plaintiff was entitled to a judgment impressing the fund in the hands of Bridges with a lien for the amount collected by Carpenter upon the bond.
    Appeal by the defendant, "William R. Bridges, as assignee for the benefit of creditors of James H. Carpenter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 12th day of February, 1895, upon the report of a referee.

      Edward W. Douglas, for the appellant.

      James B. Egan, for the respondent.
   Mayijam, P. J. :

On the 29th of April, 1893, the plaintiff in this action and respondent on this appeal delivered to the defendant, James H. Carpenter, a debenture bond stated to be of the value of $1,030, -with instructions to Carpenter to collect the money on such bond. Carpenter, through his agent, Bridges, received said bond and agreed to collect the same.

On the twelfth of May the bond was collected and converted into-cash and the proceeds sent to the First National Bank of New York city for collection on May thirteenth, where they remained on deposit to the credit of the defendant Carpenter until after the fifteenth of May, on which day Carpenter made a general assignment for the benefit of his creditors to the defendant Bridges. In addition to the amount realized on the bond, Bridges, as assignee, drew from the bank $800.90, and there was also transferred to him by the assignment the sum of $5,787.85, cash on hand.

The case discloses that during a period of about ten years prior to the time of the delivery of the bond in question, the plaintiff and the firm of Neher & Carpenter, and Carpenter, as the successor in business of such firm, had had business dealings with the plaintiff; and that that firm had collected other securities for the plaintiff, and that the proceeds of some of such collections had been deposited with Carpenter’s firm which was carrying on the business of individual bankers. The defendant Bridges swears that during that time the character of the business which plaintiff did with Carpenter’s firm 'was depositing checks, cash, securities, bonds, etc., and keeping a regular bank account.

In speaking of the transaction in controversy in this action the witness used this language: Shortly after the first of May, Mr. Lafort came in with a debenture bond of the Minneapolis Debenture Loan Co., due on May 1st, 1893, $1,000 and interest $30.00, $1,030. I asked him do you want to reinvest in a debenture ? ITe said no, I am going to use the money for something else. I said very well, I will send this over to Boston with other bonds.”

The plaintiff, in his testimony, characterizes that transaction as follows: “ I brought this bond to Mr. Bridges, who is the cashier in this house, and asked him to collect that bond for me. Pie told me it would take some days to collect the money. He had to send thé bond to Boston for collection; then Mr. Bridges asked me at least this question : If I wanted to buy another bond of the Minneapolis firm for that money, which, as I understood he would have sold me then and there. I told him I did not want to buy a bond. Then Mr. Bridges asked me some question to the effect what I would do with the money. I told him that I did not know ; that I wanted the money, and would tell him when I got the money ; that is, in a few days if I could. That is all that took place that day.”

This is the substance of the evidence bearing upon the question as to what the real .character of the transaction between Carpenter and the plaintiff was at the time of the receipt of this bond.

On 'the part of the plaintiff it is insisted that this transaction created only an agency on the part of Carpenter for the plaintiff for the collection of this bond.

On the part of the defendant Bridges it is insisted that this transaction, taken in connection with other previous transactions between the plaintiff and Carpenter’s firm, showed a deposit of this bond or its proceeds with Carpenter, in his capacity as a banker, and that the fund arising from the collection of this bond could be properly credited to the plaintiff on account, and that the proceeds thereof became a part of the assets of Carpenter, and passed as such to his assignee on his general assignment for the benefit of creditors.

It is manifest that the transaction alone which occurred at the time of the delivery of this bond to Bridges, as cashier of Carpenter, was simply a deposit of the bond for collection only, and that that transaction, disassociated from any other transaction between the plaintiff and Carpenter, could not be treated as a deposit of this bond to the credit of the plaintiff. Nor does the evidence show that there was such a uniform custom on the part of the defendant Carpenter, in receiving of the plaintiff bonds for collecting and depositing their proceeds to the credit of the plaintiff in the bank account, as would change the character of this transaction and make it a general deposit of this bond or its proceeds, and relieve the defendant Carpenter from the manifest agency that he assumed when he took this bond for collection.

The title to the fund, therefore, which was realized on this bond, never passed to the defendant Carpenter, and the fund was, therefore, only in his hands as the agent of the plaintiff, and not as owner, and was a trust fund, to which the assignee acquired no title, and in which the creditors of Carpenter had no legal or equitable interest.

The referee found that on or about the 29th day of April, 1893, the plaintiff delivered said bond to the defendant William R. Bridges, and instructed him to collect the sum of money mentioned therein of the makers thereof, and also at the same time informed him, the said Bridges, that he desired the money when the same was collected.

The referee also found “ That at the time of the delivery of said bond to the defendant Bridges as aforesaid, he, the said Bridges, was the agent of the defendant James II. Carpenter, and, as such agent, said Bridges received and accepted said bond from the plaintiff at the time of its delivery to him, and, on behalf of said Carpenter, promised and agreed to collect the amount thereof and to pay to this plaintiff, on his making demand therefor, the proceeds of such collection.”

We think the findings .of tüe referee are fully sustained by the evidence.

We are referred by the learned counsel for the appellant to The People v. Merchants & Mechanics’ Bank of Troy (78 N. Y. 269) as an authority for the proposition that this bond and its proceeds became, on the receipt of the bond by Carpenter, a part of the assets of Carpenter’s estate, and that the plaintiff from that time sustained the relation of a creditor of the Carpenter firm for that amount.

The case to which we are referred is not an authority for that contention. In that case, the Chemical National Bank having received from a customer of the Merchants and Mechanics’ Bank a check upon that bank, sent it to the drawee for payment. The Merchants and Mechanics’ Bank charged the check to the drawer, whose account was then good for the amount, and returned the check to the drawer as paid. It sent to the Chemical National Bank a draft on a New York bank for the amount of the check. Two days after, the Merchants and Mechanics’ Bank closed its doors and a receiver of its assets was appointed, and the draft was not paid. On application by the Chemical National Bank for an order requiring the receiver to pay the amount of the check on the ground that the assets came to the hands of the receiver, impressed with a trust, in favor of the Chemical National Bank, it was held that the order was properly denied.

It will be seen that the facts of the last cited case are quite unlike those of the case at, bar.

The delivery of the bond by the plaintiff to the defendant Carpenter under the circumstances of this case would not have authorized the plaintiff to draw on Carpenter against the proceeds of the bond; and his draft, if drawn under such circumstances, would not furnish a cause of action in favor of his payee against Carpenter. The bond and the fund realized on the same, in the hands of Carpenter or of his agent or assignee, was clearly impressed with a trust which arises from the relation between the agent charged with tire duty of collecting funds and his principal in relation to funds so collected. The agent received and held the bonds or the proceeds thereof in a fiduciary capacity and not as owner.

In Importers & Traders' National Bank, v. Peters (123 N. Y. 278) it was held that where money held by a person in a fiduciary capacity has been deposited by him in his general account at a bank, the party for whom the money is held can follow it, and has a charge on the balance in the banker’s hands, and O’Brien, J., in discussing that question, uses this language : When money held by a person in a fiduciary capacity has been paid or deposited by him in his general account at a bank, the party for whom the money is held can follow it, and has a charge on the balance in the banker’s hands, and if a person holding money in a fiduciary capacity pays it to his account at his bankers, and mixes it with his own money, and afterwards draws out some by checks generally and in the ordinary manner, the drawer of the checks must be taken to have drawn out his own in preference to the trust money.” (See, also, Baker et al. v. N. Y. National Exchange Bank, 100 N. Y. 34.)

Applying the rule in the cases cited to the case at bar¿ it will be found that at the time of the assignment of Carpenter to Bridges there was standing to the credit of Carpenter in the First National Bank of New York, $1,830.90, which must, under the rules referred to, have represented the $1,030 which were the proceeds of the sale of the plaintiff’s debenture bond. The defendant Bridges, the assignee of Carpenter, took this money impressed with the trust under which it was held, and cannot be treated as a bona

fide holder of this money for value, as against the claim of the cestui que trust, and owner of the same. The character of the trust fund was not lost by mixing it»with other moneys. (The People v. The City Bank of Rochester, 96 N. Y. 32.)

In Dows v. Kidder (84 N. Y. 121) it was held: “ If any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust; or give the agent or trustee converting it, or those who represent him in right * * . * any more valid claim in respect to it than they respectively had before such change. * * * The plaintiff may follow the property, however it may change form, or in whosoever hands it may be found, until his rights be divested by his own act or authority.” •

In Baker v. The New York Nat. Exchange Bank (100 N. Y. 31) the court says : The relation between a commission agent for the sale of goods and his principal is fiduciary. The title to the goods until sold remains in the principal, and when sold the proceeds, whether in the form of money or notes, or other securities, belong to him. * * * The relation * * is not that of debtor and creditor simply. * * * In case of the’ bankruptcy of the agent neither the goods, nor their proceeds would pass to his assignee * * * but would be subject to the paramount claim of the principal.”

And in People v. Bank of Danville (39 Hun, 187) it was held that “ If the identical moneys collected by the bank did not pass into the hands of the receiver, it makes no difference, for in some shape or form they went to swell the assets which fell into his hands.”

"We think under the well-settled rules established in the above cases, and in other cases to which reference might be had, it is clear that the defendant Carpenter, before the assignment, and his assignee subsequently thereto, became chargeable with the proceeds of this bond in their fiduciary capacity as agents of the plaintiff, and that the referee was right in holding that the plaintiff might recover, and that the judgment recovered in this action was properly declared to be a first lien upon the funds in the hands of the defendant Carpenter, and that the judgment must be affirmed.

Putnam, J., concurred; Herrick, J., concurred in result.

Judgment affirmed, with costs.


text:
    Agnes E. Coloney and Others, by their Guardian ad Litem, Jay C. Coloney, Appellants, v. Edwin Farrow, Respondent.

      Dam. ■ — rights of riparian owner — flooding lands by a dam — prescriptive right to use flush boards, a question for the jury — proof of payment for such use.

    The maxim of the common law, that the owner of the soil has absolute dominion over the same indefinitely, both above and below the surface, and that whatever damage to others he may occasion by his rightful command over the soil is damnum absque injuria, has no application to a case where the owner of a dam so constructs, or employs it, as to set the waters back upon the lands of another proprietor.
    A riparian owner so situated is entitled to recover the damages resulting from the flooding of his land.
    Where a riparian owner brings an action to recover damages resulting from the flooding of his land, caused, as alleged, by the raising of a dam owned by the defendant, and a question arises upon the trial as to whether the defendant has a prescriptive right to use flush boards upon a dam previously constructed, the question is one of-fact, and should be submitted to the jury.
    Where the defendant proves that flush boards wex-e used by former owners of the dam, the plaintiff has a right to prove in rebuttal that when such former owners made this use of flush boards they ptxid for the right.
    Appeal by tlie plaintiffs, Agnes E. Coloney and others, by their guardian ad litem, Jay C. Coloney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 23d day of October, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Saratoga Circuit, with notice of an intention to bring up for review on such appeal the order of the court granting a nonsuit and directing á verdict against them.

      T. F. Hamilton, for the appellants.

      J. W. Houghton, for the respondent.
   Mayham, P. J.:

This action was prosecuted by the plaintiffs to recover damages for an alleged flooding of plaintiffs’ land, and to have the raising of a dam on defendant’s premises, by which the alleged flooding was produced, adjudged and declared a nuisance.

The complaint alleged that the plaintiffs were the owners of certain lands situate in Saratoga county, through and along which flowed a stream of water, known as Anthony’s Kill; that below the premises of the plaintiffs the defendant owned and occupied land on each side of said stream, and that he had erected and maintained a dam across said stream, by and in consequence of which the water of the stream was obstructed in its natural flow, and set back upon the lands of the plaintiffs, thereby flooding and drowning out ten acres of plaintiffs’ land to such an extent that it became and was wholly valueless, by reason of which the plaintiffs sustained large damages.

The answer admits plaintiffs’ title to their premises and the existence of the stream of water; that the defendant owns lands located below those of the plaintiffs on said stream; the existence and maintenance of a dam across said stream; but denies that in the year 1884, or at any other time, he raised the dam so as to flood or drown out the said ten acres of plaintiffs’ land, or any portion of the same, or that he unlawfully or otherwise flooded the plaintiffs’ •land.

For a separate answer the defendant alleges that he purchased and became the owner in fee simple of the lands and premises occupied by him on both sides of Anthony’s Kill, December 30, 1881; and that thirty years prior thereto the dam in question had been built across said stream, and had been maintained during all that time at the height at which it was at the time of the alleged injury to the plaintiffs, and alleges and avers that the said cause of action did not accrue within twenty years next before the commencement of the action.

The issue came on to be tried at the Saratoga Circuit in October, 1894, and at the opening of the case the defendant objected that the action was not one in which the plaintiffs had a right to trial by jury ; that the same was solely and purely an equitable action.

The court overruled the objection, and the case was tried before the court and a jury.

The main contention on the trial was, as to whether the defendant in 1884, or at any time since that time, had raised the dam so as to flood the plaintiffs’ land, or any portion of it.

On this branch of the case the plaintiffs introduced the testimony of several witnesses, proving, or tending to prove, the raising of the dam by the defendant, and the consequent setting back or damming of the water, so as to cause the same to overflow the surface of the plaintiffs’ land, and to so percolate the soil of the same as to destroy its productive qualities, and render it untillable, and of little or no value.

In support of that theory the plaintiff, Agnes E. Coloney, testified that nine acres of plaintiffs’ land had once -been productive and "under cultivation, but after the raising of the dam the land became useless; that water was upon the land ankle deep, and that crops were flooded. She also testified to conversations with the defendant, in which she informed him that raising the dam had flooded the plaintiffs’ land, and in which defendant admitted the raising of the dam, and told her he was going to raise it still higher; that he wanted more power to run his knitting mill and the electric plant of Mechanicville; that he wanted to buy the right to raise the dam; that the defendant also insisted that he had a right to raise the dam and should go on and raise it; also, that the dam was raised by the defendant fifteen inches; and, that in addition to this, defendant used two twelve-inch flush boards.

It was also proved that defendant said to one Coloney that he wanted to raise his dam eight inches, and wanted to get the right of plaintiffs to do so ; that he needed the power; that he could buy an engine, but that the water power was cheaper.

There was also proved by Coloney that he heard defendant tell one Stiles that he had raised the dam and that he had acquired the right of the Delaware & Hudson people to raise it.

Thomas IT. Laisdell testified that he had known the land for a number of years; had cultivated it, and purchased the nine acres at one time; that there was no water there when he last saw the land j that since the alleged raising of the dam it was covered by water.

Benjamin Freeman testified to his familiarity with the property before the alleged raising of the dam, and after; that the land before the flooding was worth $200 rental value per annum, and after the flooding was worthless.

George M. Moore testified that he had known the dam upon the premises for over twelve years; that the dam had been raised during that time; thinks over two feet; knows the dam was raised fifteen inches on the 16th of June, 1893, by flush boards, and that he took them off against the defendant’s will, at the instance of the plaintiffs.

Several other witnesses on the part of the plaintiffs testified in substance that the dam had been raised during the defendant’s maintenance of it, and to the damage occasioned to plaintiffs’ land by its being flooded.

At the conclusion of the plaintiffs’ testimony defendant moved, on various grounds, to dismiss the complaint, and the motion was denied by the court.

On the part of the defendant, Charles E. Hicks, a civil engineer, was sworn, who testified to taking the elevation of defendant’s dam and the level, from it to the land of the plaintiffs, and said that the lowest point of the plaintiffs’ ground would be seventy-seven one-hundredths of a foot higher than the top of the flush board of nine and one-fourtli inches in height; that the level of the top of the flush board would run out at a point about 400 feet north of Farrow’s line in the creek. He also testified that when he made the survey in April the water did not run over the plaintiffs’ land.

Daniel A. Baker, another witness sworn in behalf of the defendant, testified that he remembers the dam from forty-five to fifty years; that he repaired it in 1873 and built it at the height of the timbers in the old dam, and did not build it any higher ; that years ago it was a log dam; that when he assisted in building it he put sleepers in and laid on plank, and that some of the old dam was there yet, and that the new dam was about the same in height as the old one; that he had observed the dam from year to year from 1872; that there had always been flush boards used in dry times; that he put them on two feet high; that the average height was about fifteen or sixteen inches; that he knew the piece of plaintiffs’ land claimed to have been injured; that there was not any improvement or cultivation on this land twelve or fifteen years ago.

On the cross-examination he said that one Perry Abel had lived in a house on the thirteen acres; that he cultivated some of the thirteen acres, and that what he did not cultivate he pastured ; that he had seen the creek come over the thirteen acres in times of high water; that between 1870 and 1876 he had seen flush boards on the dam, nailed on with brackets.

George W. Ostrander, another witness for the defendant, remembers the dam at least forty years; was away from there from 1862 to 1863 or 1864, when he was in the army; has known the dam ever since; thinks there is two-thirds of the old dam there yet; the creek years ago upon the Coloney land was about as now ; saw the. land a few days ago, and noticed more water upon it than he was in the habit of seeing years ago ; the flush boards were on defendant’s dam.

John Baker, another witness sworn for defendant, remembers the dam since 1838; he testified that part of the dam that is there now' was there when he was a boy; says that he had examined it recently, and did not observe anything of the present dam being higher or lower than the old dam.

Several other witnesses, familiar with this dam for many years, were sworn in behalf of the defendant, and gave evidence similar to that to which we have referred.

It will be observed on reading this evidence that there was on the trial a well-defined and sharp conflict between the testimony on the part of the plaintiffs and that on the part of the defendant.

There seems to have been abundant evidence on the part of the plaintiffs, standing alone, from which the jury would have been clearly authorized to find in favor of the plaintiffs, upon the two important questions:

First. As to the raising of the dam.

Second. As to the injurious effect to plaintiffs’ lands of the water set back by the dam.

And that seems to have been the view entertained by the learned judge at the conclusion of the plaintiffs’ testimony, when he refused the defendant’s motion to dismiss the complaint.

It may also be added that, taking the evidence on the part of the defendant alone, the jury would have been clearly authorized to have found that there had been no interference with or raising of the dam by the defendant within the last twenty years, so as to cause the water to set back in the creek and overflow the plaintiffs’ land.

Whether the plaintiffs’ theory, established by their evidence, or the defendant’s theory, established by his countervailing evidence, was correct, was clearly a disputed question of fact, which ordinarily, under our system of jurisprudence, should be determined by a jury.

It is true that, where there is such an overwhelming preponderance of evidence on the part of the defendant as to leave no reasonable doubt of the correctness of his theory, if there had been but a-scintilla of evidence on the part of the plaintiffs in support of their theory, it would have been the duty of the court to take the case from the jury. (Linkhauf v. Lombard, 137 N. Y. 417; Hemmens v. Nelson, 138 id. 517.)

But it can hardly be said in this case that the plaintiffs furnished but a scintilla of evidence in support of their theory. The case, therefore, comes more nearly within the rule laid down by the court in Pratt v. The Dwelling House Mutual Fire Insurance Co. (130 N. Y. 206), where the court says : ■“ If in any view of the evidence a verdict might have been rendered for the plaintiff, or if there were questions of fact which might have been determined for the plaintiff, and which, if determined in his favor, would have entitled him to recover, the case should not have been taken from the jury.” (Citing Sheridan v. Brooklyn City, etc., R. R. Co., 36 N. Y. 39; Colt v. Sixth Ave. R. R. Co., 49 id. 671; Train v. Holland Purchase Ins. Co., 62 id. 598.)

Applying that rule to this case, and it follows that if the jury found in accordance with plaintiffs’ theory that 'defendant had raised the dam, and that, by so raising it, the water was forced back upon or percolated the soil of the plaintiffs so as to produce injury to their lands, then the plaintiffs would have been entitled to a judgment for the damages arising from such injury and for the other relief demanded in the complaint.

It is insisted by the learned counsel for the respondent, in his brief, that the rule of the common law has some application to this case, as laid down in Rice on Evidence (p. 1120), from which he quotes as follows: “ It is a maxim of the common law that the owner of the soil has absolute dominion over the same indefinitely, above and below the surface; and that, whatever damages to others he. may occasion by his rightful command over his own soil, is damnum Absque injuria.”

But it is difficult to see how that maxim can be applied to this case so long as the word “ rightful ” constitutes a part of the maxim. For it cannot be contended, with any support of law or reason, that a man owning land through which a stream runs may obstruct the natural flow of that stream, or divert it to the injury of riparian owners on the line of the stream either above or below such owner; and the rule has been too long and too well settled to admit oi a doubt, that the riparian owner upon whose land water is set back by a dam constructed by a riparian owner further down upon the stream, is not without remedy.

In Hammond et al. v. Fuller et al. (1 Paige, 197) it was held that where a party by erecting a dam raises a stream of water above its natural level so as materially to injure mills above on the same stream, a Court of Chancery will decree that the dam be lowered, and the party erecting the same pay all damage occasioned by the raising of the water above its natural level.

And in this case there appears to have been a great conflict in the evidence, and the court declined to pass upon that conflict without the intervention of a jury, and the case was submitted to a jury.

In Stiles v. Hooker (7 Cow. 268) it was held that “A grant is presumed from twenty years’ uninterrupted use of water at a certain height, and if for twenty years the defendants have raised their water but five feet, and afterwards they raise it six feet by the same dam, and the additional foot injures the plaintiffs, they are entitled to damages.”

In Bussell v. Scott (9 Cow. 279) it was held that “ The erection of a mill dam on one’s own land, and flowing a neighbor’s land for more than twenty years uninterruptedly, bars all right of action in the neighbor; but only for the dam as it stood. If it be raised and the flow increased within twenty years the action lies.”

We are inclined to think that it was also a question of fact for the jury, under the evidence in this case, to determine whether or not there was a prescriptive right to the use of flush boards on this dam. The evidence upon that subject does not show such a continuous and uninterrupted use of flush boards as would raise by implication a prescriptive right in law, unless it be found that that right was acquired by constant and uninterrupted use of flush boards. Whether it was or was not, seems to us to have been a question of fact for the jury.

It is insisted by the learned counsel for the appellants that the court erred in rejecting tbe testimony offered by witness Abel, who owned land on this stream next above the land of the defendant.

The defendant had proved the use of flush boards under former owners of the dam, to wit, Haskins and Stevenson.

The plaintiffs called Abel to prove that when Haskins and Stevenson used flush boards they paid for the right. That evidence, we think, was competent to be submitted to the jury, as bearing upon the uninterrupted prescriptive right of the defendant to use flush boards on his dam, and it was error for the learned judge to exclude it.

At the conclusion of the trial the plaintiffs asked to go to the jury upon the disputed question of fact as to the prescriptive right to use flush boards on the dam, and as to the question whether the defendant had raised the dam to the plaintiffs’ injury. This the court refused, and directed a verdict for the defendant.

We think this was error, for which the judgment should be reversed.

Putnam and Herrick, JJ., concurred.

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


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    In the Matter of the Claim of Charles Winne, Appellant, v. Russell A. Hills, as Administrator, etc., of Charles A. Hills, Deceased, Respondent

      Executors and administrators — statutory reference — evidence required in support of the claim — decimations in one’s own famor are improper — if received they cannot he considered on appeal — costs to successful executor.

    Public policy requires that claims against tbe estates of deceased persons should be established by very satisfactory evidence; and where the presentation of a claim for the board of a decedent and his wife has been long delayed and there is no evidence of an express agreement to pay, and it further appears that during the period in question the decedent made payments for the benefit of the claimant or the estate of the claimant’s wife, in excess of the amount alleged to be due upon account of board, the claim should be dismissed.
    An account, made by a claimant’s wife at his request, setting forth, among other things, payments made by a decedent either to the claimant or his wife, during a period for 'which it is sought to recover for the board of the deceased person and his wife, where tile document does not purport to constitute the original entries made by the wife, and was not made in the presence of decedent, is not, as against his estate, admissible in evidence.
    Where such an exhibit or account has been offered by the claimant and admitted in evidence in a proceeding upon a disputed claim which has been referred under the statute, it cannot be considered upon ,appeal'-and is not competent to prove the existence of an account between the plaintiff and the deceased, or for any other purpose, in favor of the defeated claimant and in support of his demand for a new trial.
    Where a disputed claim against the estate of a decedent is referred under the statute, the proceeding is to be treated, after such reference, as an action in the Supreme Court, and an executor, if successful in resisting the claim made against his estate, is entitled to costs as a matter of right.
    Appeal by the claimant, Charles Winne, from a judgment of the Supreme Court in. favor of the defendant, entered in the office of the clerk of the county of Albany on the 1st day of August, 1895, upon the report of a referee.

      H. A. PeoJcham, for the appellant.

      John A. Peleha/niy, for the respondent.
   Mayham, P. J.:

Charles A. Winne, the claimant, was a brother-in-law of the deceased, Charles A. Hills, and presented a claim against the estate of Charles A. Hills for $2,300 to his administrator, claiming it to be the balance due from the deceased for boarding deceased and his wife from July 1,1881, to May 1,1S90, for which claim he charged at the rate of twenty dollars per week. That claim was disputed by the administrator by a notice in writing in which the administrator offered to refer the disputed claim under the statute, and thereupon a stipulation in writing was entered into, signed by the attorneys of the respective parties, agreeing to refer the same to Josejfii A. Lawson, as referee, to hear and determine, which reference was approved by the surrogate, and an order duly entered in this court referring the same pursuant to such stipulation.

The case was heard upon the proofs before the referee, who made and filed his report, in and by which he held and decided that defendant, Russell A. Hills, as administrator, was entitled to judgment against the claimant, dismissing the claim with costs.

Upon this report judgment was entered in the Supreme Court in favor of the administrator and against Charles Winne for $1Y8.69, costs and disbursements, from which judgment this appeal is taken.

The case, in brief, discloses that the complainant, Charles Winne, and his wife occupied premises owned by his wife, situate in the city of Albany, and that Charles A. Hills and his wife lived in the house, occupying rooms therein ; that the twó families were apparently living together as one family from July, 1884, to May, 1890; that the wife of the claimant and that of the decedent were sisters. No claim for board, so far as appears from the evidence, was ever made by the claimant against the decedent during his lifetime, and the claim appears to have been first presented on the 20th of October, 1894.

The wife of the deceased died prior to the death of the wife of the claimant, who appears to have died April 25, 1893; so that at the time of the presentation of this claim none of the parties to the original transaction were living - except the claimant. No agreement between the claimant and the decedent or his wife was proved either for the occupancy of the premises occupied by them or for their board. There was evidence on the part of the claimant tending to prove the time that the deceased and his wife lived in the family with the claimant, and that the title to the house was in claimant’s wife, and that claimant contributed and paid for provisions used in the family, and also tending to prove the value of board and accommodation such as deceased and his wife had during the time, or a portion of the time, they resided with the claimant.

During the progress of the trial claimant presented and offered in' evidence an exhibit of accounts proved to have been made by claimant’s wife at the request of claimant, which consisted of dates and amounts set opposite, and which was claimed to represent payments made by deceased either to claimant or his wife from September, 1884, to February, 1890.

This was objected to by the defendant on the ground that it was not evidence against the defendant, as it did not purport to be the original entries made by the wife, and was not made in the presence of deceased.

This objection was overruled and the document received, to which an exception was taken.

This was clearly incompetent evidence. But it is insisted by the claimant that as the report was adverse to him, the objection and exception were not available to the defendant, and that the evidence having been received by the referee it was, for the purposes of this appeal, competent to prove the existence of an account between the plaintiff: and deceased.

If it was used for any purpose in this action it was incompetent, and the proof which it furnished cannot now be relied upon for the purpose of reversing this judgment.

We think the question presented here differs from the question raised in Flora v. Carbean (38 N. Y. 111), and while the defendant, succeeding in the action, can, of course, have no benefit from -his exception taken to the receipt of this, it cannot be used as a fact to establish the plaintiff’s right of recovery for the purpose of setting aside the judgment -rendered upon the report adverse to him.

The case also discloses that during the time the plaintiff and deceased resided together in the manner indicated, the deceased paid and advanced in all $6,523.65 in taxes between July, 1884, and May 1890, on the premises owned by the plaintiff’s wife and occupied by the parties, as indicated in this case, being an annual average annual payment of about $1,182, and largely in excess of any amount to which the claimant would be entitled, if allowed for the whole time, at the rate of twenty dollars per week, for the board of deceased and his wife.

On the whole case, it would seem that no just claim was established by the evidence against the estate of the decedent. And there were, at least, suspicious circumstances attending the presentation of this claim so long after its alleged accruing, and, under the circumstances, we think the referee was justified in holding that there was nothing due from the estate of the deceased to the claimant at the time the claim was presented to the administrator, or at the time of the trial of this action.

It seems to be well settled that claims against the estates of deceased persons, in order to be upheld, must be clearly proved by competent evidence, and be free from any just or well-grounded suspicion of their validity.

In the Matter of Van Slooten v. Wheeler (140 N. Y. 624) the court says: “ Public policy requires that claims against the estates of the dead should be established by very satisfactory evidence, and that courts should see to it that such estates are clearly and properly protected against unfounded and rapacious raids.”

And to the same effect is Ulrich v. Ulrich (17 N. Y. Supp. 721); Kearney v. McKeon (85 N. Y. 139, 140); Ellis v. Filon (33 N. Y. Supp. 140).

We think the report of the referee in this case was clearly right, and that the judgment must be affirmed.

The remaining question is as to the allowance of costs.

While doubt has existed as to the propriety of allowing costs beyond the actual disbursements against executors and administrators who have unsuccessfully resisted claims referred under the statute, it seems now to be well settled upon authority, under section 2718 of the Code of Civil Procedure, that the proceeding is to be treated after reference as an action in the Supreme Court, which would clearly imply that the successful party is entitled to costs the same as in an action in that court.

In Adams et dl. v. Olin et al., Executors (78 Hun, 309), it was held that, after reference, all subsequent proceedings should be treated as though had in an action, and that the defendant executor, if successful in resisting the claim made against the estate, is entitled, as matter of right, to costs, and Yan Brunt, J., in delivering the opinion in this case, uses this language: Such being the case, the defendants were entitled, as matter of right, to costs, upon their successful defense of the claim presented against the estate which they represented. We think that it was the intention of the Legislature, in reference to these proceedings, to make them exactly parallel to those which take place in an action after a reference has been ordered.”

The judge further holds that the only discretion vested in a referee in proceedings of this character is as to allowing costs against an executor or administrator who has been unsuccessful in a defense.

The costs and disbursements which appear in this record as the costs taxed, have been taxed in conformity with the rule in the case last cited.

The judgment must be affirmed, Avith costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


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    The People of the State of New York ex rel. Helen L. Sprague, Respondent, v. The Board of Excise of the Town of Moriah, Appellant.

      License — defects in an application therefor cannot be cured on an application for a writ of certiorari to review the action of the excise board — affidavits of the individual members of the board are'inadmissible — the excise hom'd must act jointly.

    An application made to a town board of excise for a license is defective where it fails to show the age, citizenship and place of residence of the applicant, as required by statute, and a demand for a license based upon such a defective application may properly be denied.
    Where an application for a license is defective, it cannot be cured by alleging the necessary facts in a petition for a writ of certiorari to be issued to review the action of the excise commissioners in refusing to grant such license.
    Affidavits upon the part of the relator, not used upon the application for the writ, and first presented when the matter was heard by the court on the return thereto, form no part of the return and are not admissible in the case.
    Where a town board of excise refuses to grant a license, and a writ of certiorari is granted to review the action of the board, the court is limited, in its consideration of the matter, to the writ and return and the papers upon which the writ was granted, and cannot consider subsequent affidavits of the individual excise commissioners.
    Where a board of excise commissioners has made a return to a writ of certiorari, authorized by chapter 481 of the Laws of 1893, and such return complies with the requirements of the law, the members of such board have no power subsequently to make and file individual corrected affidavits. Where a return is for any reason insufficient, the proper course is to procure an order for a further return.
    The manner in which a board of excise shall perform its duties is governed by section 19 of chapter 677 of the Laws of 1892, and any attempt by individual members thereof to perform such duties in any other manner will be ineffectual.
    Appeal by the defendant, The Board of Excise of the Town of Moriah, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Essex on the 27th day of June, 1895, directing the board to grant the application of the relator and to issue a license thereon to her upon the payment by her of the license fee established by it.

      A. W. Boynton, for the appellant.
    Foote, Stokes c& Owen, for the respondent.
   Mayham, P. J.:

The case on this appeal discloses that on the 27th day of May, 1895, .the relator presented her petition to the Special Term of this court, praying that a writ of certiorari be granted to review the action of the board of commissioners of excise in refusing to grant the application of the petitioner for a license.

The Special Term thereupon made an order that the writ as prayed for be issued, directed to the board of commissioners of excise of the town of Moriah, and that it be made returnable at the chambers of the justice who held the Special Term on the 11th day of June, 1895. Pursuant to that order, a writ of certiorari was issued and made returnable as therein directed.

The petition upon which that writ was granted, among other things, alleged that the relator was over twenty-one years of age, and resided at the village of Port Henry, in the town of Moriah, and was the sole owner of a hotel known as the Lee House in that town; that on the 13th day of May, 1895, she made application to the board of commissioners of excise of such town for a license to sell liquors as a hotelkeeper at the Lee House.

The petition also alleged that the application was made in conformance to the law and was accompanied with a bond conditioned in accordance with the statute in such cases made and provided.” The petition also alleged that the Lee House ” was the leading hotel in the village of Port Henry, and stated the population of said village and town and the capacity of the hotel for the accommodation of guests, and alleged that the refusal of the commissioners to grant the relator a license injured the popularity of petitioner’s hotel and lessened her opportunity to earn a livelihood and to provide for the comforts, conveniences and necessities of the patrons of the hotel; and that license had theretofore been issued to her, and that no license granted to her had been annulled or revoked. The petitioner also alleged that the commissioners did not consider her application on its merits, but arbitrarily, and without good or valid reason therefor, denied the application of the petitioner and all other applications for license iii that town.

Accompanying the petition was an affidavit of one of the attorneys of the petitioner, confirming in some respects the allegations of the petition, which was read by the Special Term on the application for the order allowing the issuance of the writ.

To this writ the board of commissioners of excise made and filed their return on the 11th day of June, 1895, the day on which the writ was made returnable, which return was duly signed by all of the commissioners, and verified by the oath of two of their number, attached to which and made a part of the return was the application of the relator for a license, signed and verified by her, which was indorsed by the commissioners, Application denied, May 20, 1895, reasons to be filedalso the relator’s bond on her application for license; also the written statement of the reasons filed by the commissioners for refusing the license; also an affidavit of two of the commissioners of excise, denying that any vote was ever taken by the board of commissioners of excise fixing by vote or resolution the rate at which hotel licenses should be granted.

The affidavit also alleges that the affiants were voted for and elected excise commissioners as against the granting of licenses, and states in substance that their interpretation of the vote by which they were elected was as a vote against the granting of licenses in that town.

The affidavit also stated that the members of the board understood that it appeared from the records of the Couit of Sessions of Essex county that the applicant for license had pleaded guilty to a violation of her previous hotel license.

The case shows that on the filing of this return the further hearing was adjourned until the 25th day of June, 1895. On that day corrected or amended affidavits of the- commissioners were received, and the court thereupon made an order directing the commissioners composing the board of excise, and each of them, to grant the application of the above-named relator, and to issue to her a license upon the payment by her of the fee established by the board therefor.

The order also charged the commissioners with the payment to the relator of fifty dollars costs. From this order the commissioners appeal to this court. The appellants insist that the application for the license in this case wras insufficient upon its face, and that the commissioners were for that reason justified in refusing the petitioner a license. Section 18 of chapter 401 of the Laws of 1892,-as amended by chapter 480 of the Laws of 1893, provides as follows : “ A board of excise shall not grant any license to any person or persons, unless each such person is over twenty-one years of age, is a citizen of the United States, a resident of this State, and of good moral character, approved by the board,” and section 20 of chapter 401 of the Laws of 1892, as amended by chapter 480 of the Laws of 1893, provides that “ A board of excise shall not grant a license until the applicant or applicants shall have presented to and filed with such board:

“ 1st. A written or printed application, signed and sworn to by such applicant or applicants; * * * and a full statement showing that such applicant or applicants may lawfully be licensed tO' carry on the business sought to be licensed upon said premises.”

The application for a license filed by the relator with the commissioners, and upon which she claims the commissioners were bound to grant her a license in this case, is as follows:

To the Board of Commissioners of Excise in and for the Town of Moriah, Coimty of Essex:

“The undersigned applicant for license, respectfully represents that she desires to sell and dispose of Strong and Spirituous Liquors, "Wines, Ale and Beer in quantities less than five gallons at a time, to be drank on the premises, at her hotel known as Leo House, in the town of Moriah, County of Essex; that she proposes to keep an Inn, Tavern or Hotel thereat; that she is the only person interested in the business to authorize which the license shall be used.

“ Dated May 6th, 1895.

“(Signed) “ H. L. SPRAGUE.”

This application was duly verified by the petitioner. Testing' this application by the requirements of sections 18 and 20 of the statute above quoted, it will be seen that it does not contain a statement of the facts which seem to be required by these sections to authorize or at least to require the commissioners to grant a hotel license. It fails to show the age, citizenship or place of residence of the applicant, and is not, within the language of tbe statute, “a full statement showing that such applicant or applicants may lawfully be licensed to carry on the business.”

If the allegations of the facts required by statute to be contained in the application to the commissioners for a license were omitted in that application, upon which alone the commissioners must grant or refuse a license, it would seem to be too late for the relator to cure that defect by first alleging such facts in the petition upon which the ■certiorari is allowed.

It is true that most if not all of the requisite facts which were omitted in the application for a license, are stated in the petition for the writ of certiorari.

But it is not the province of that wi*it to review and reverse the acts of a subordinate tribunal which has not acted erroneously upon the facts before it, but whoso acts might be questioned if tested by a ■different state of facts first presented in the petition for such writ. The real question to be determined on this branch of the case is whether the commissioners erred in refusing the license upon the facts sot out in the application for it. We fail to see. that they did, and think that they were right in their first reason filed by them for refusing the license, which they say was “because the application does not conform to the requirements of sections 18 and 20 of chapter 401 of the Laws of 1S92, and amendments thereof, in that it does not contain a full statement showing that the applicant is a person that may lawfully be licensed.”

On the day upon which the hearing on this writ was had the relator presented affidavits, not used upon the application for the writ, nor embraced in the return, and while it does not appear from the record that the respondents made any specific objection to their use or to the consideration of them on the hearing by the court, it is insisted on this appeal that such affidavits constituted no part of the return, and that their consideration by the court was error.

flection 2138 of the Code of Civil Procedure provides that “Except as prescribed in the next section, it (the certiorari) must be heard upon the writ and return, and the papers upon which the writ was granted.” The next section referred to provides a method of supplying a return when the person wdiose duty it is to make a return has died, absconded or removed from the State after the writ is issued, and before making a return, or after making an insufficient return, and it appears that there is no other person or officer from whom a return could bo required. In such a case the section provides that the court may permit affidavits or other written proof relating to the matter not sufficiently returned to be produced, and may hear the case accordingly.

It also provides that the court, in its discretion, may permit either party to produce affidavits, or other written proof, relating to any alleged error of fact, or any other question of fact, which is essential to the jurisdiction of the body or officer to make the determination to be reviewed, when the facts in relation thereto are not sufficiently stated in the return, and the court is satisfied that they cannot be made to appear by means of an order for a further return.

There is nothing in this case to bring it within the exceptions contained in section 2139 of the Code of Civil Procedure above referred to.

But it is insisted by the relator that as this certiorari is authorized by chapter 481 of the Laws of 1893, and not by the Code of Civil Procedure, the return is not conclusive, and the provisions of the Code of Civil Procedure are not applicable. That chapter amends section 24 of chapter 401 of the Laws of 1892, and among other things extends the proceeding by certiorari to cases where town boards of excise commissioners refuse to grant licenses on proper application. It authorizes the writ issued in such a case to be made returnable before various inferior courts, and the Supreme Court or a judge thereof, and provides: “If the writ shall be granted, the board of excise to which it is directed shall, in its return thereto, include copies of all papers on'which its action was based, and a statement of its reasons for refusing to grant such application.” It seems that this provision was strictly complied with by the commissioners in their return in this case. If, however, the return was defective, there was no death, insanity or absence of the commissioners, or either of them, which would allow a resort to the methods prescribed in section 2139 of the Code of Civil Procedure to supply such defect, and the board of commissioners of excise should have been called upon to make an amended return, instead of filing individually corrected affidavits, as appears to have been done in this case.

It would lead to great uncertainty and confusion if the members of a board of public officers could by individual affidavits falsify or impair the validity and effect of a return made by the board in its official character, in cases where boards of public officers are required, as such, to make returns to writs of certiorari. Section 19 of chapter 677 of the Laws of 1892 provides the manner in which a board of public officers, consisting of three or more members, shall perform its public duties, and any attempt by any of its members to perform such duty iii any other manner will bo ineffectual. We are, therefore, of the opinion that it was error for the learned judge at Special Term to receive and consider the affidavits of the individual members of the excise commissioners on the final healing and determination of this certiorari.

In People ex rel. Sims v. Fire Commissioners (73 N. Y. 437) it was held that the return to a writ of certiorari must be taken as conclusive and acted upon as true, and if false in fact the remedy is by action for a false return if insufficient in form, by compelling a further and more specific return, and in People ex rel. Peck v. Commissioners of Brooklyn (106 N. Y. 67) the court says c “ But by section 2138 of the present Code it is now required that the hearing upon the return to a writ of certiorari must be had (upon the writ and return, and the papers upon which the writ was granted.’ ” In the case at bar it is clear that, standing upon the papers upon which the writ was granted, the writ, the return and the papers made a part of the same, the commissioners were authorized to deny the petitionei’’s application for a license.

By section 24 of chapter 401 of the Laws of 1892, as amended by chapter 481 of the Laws of 1893, it is provided that If the writ shall be granted, the board of excise, to which it is directed, shall, in its return thereto, include copies of all papers on which its action was based, and a statement of its reasons for refusing to grant such application. If such court shall upon the hearing determine that such application for a license has been by such board arbitrarily denied, or denied without good or valid reasons therefor, such court may make an order commanding such board of excise to grant such application, and to issue a license to such applicant upon the payment of the proper license fee.” Taking the return as true and considering, as we must, the reasons of the board of commissioners for refusing the same, as a part of the return, we cannot agree with the learned trial court that the board arbitrarily denied the application without good and valid reasons.

The order of tlie Special Term must be reversed, with costs.

Putnam and Herrick, JJ., concurred m result.

Order of Special Term reversed, with costs and disbursements.