author: Mayham, P. J. :

text:
    The People of the State of New York ex rel. Rignal D. Woodward, Respondent, v. Simon W. Rosendale, Attorney-General of the State of New York, Appellant.

      Mandamus — what cannot be reviewed thereunder — certiorm’i— the duty imposed on the Attorney-General by section 10 of article 1 of chapter 690 of 1892, as amended by chapter 725 of 1898, is judicial — the duties of the Superintendent of Insurance thereunder are ministerial.

    The judgment of an officer, court or body charged with judicial functions cannot be coerced by mandamus. The most that can be accomplished by that writ is to compel such officer, court or body to act, leaving the decision to the free exercise of the judgment of the tribunal charged with the duty of deciding, and reserving to the party affected the right to review the decision by certiorari or appeal.
    The office of a mandamus is to set a ministerial or administrative officer in motion and to compel him to act, while a certiorari may be resorted to to review the legality of his act, and if found illegal, to set aside or reverse it.
    The Attorney-General, in the performance of the duty imposed upon him by section 10 of article 1 of chapter 690 of the Laws of 1892, .as amended by chapter 725 of the Laws of 1898, acts in a judicial character; his duties thereunder are judicial; and by mandamus he can only be compelled to exercise his j udgment by acting. A party who claims that his act or determination is erroneous can review it by certiorari and thus correct any error therein.
    The duties of the Superintendent of Insurance under such acts are purely and solely ministerial.
    Appeal by tlie defendant, Simon W. Rosendale, Attorney-General of tlie State of New York, from an order of the Supreme Court, made at the Albany County Special Term and entered in the office of the clerk of the county of Albany on the 14th day of November, 1894, granting the relator’s motion for a peremptory writ of inandamus.

      3. W. Rosendale, Attorney-General, and John W. Hogcrn, Deputy Attorney-General, for the appellant.

      Woodward <& Mayer, for the respondent.
   Mayham, P. J. :

The relator and twelve associates signed a certificate of their intention to organize an insurance corporation, and presented it with a proposed charter, also signed and verified by them, to the Superintendent of Insurance, who referred it for examination and certification, to the defendant as Attorney-General, pursuant to section 10 of chapter 725 of the Laws of 1893.

The proposed certificate or declaration was in the following form:

“Exhibit ‘A.’

“In conformity with the laws of the State of New York, passed on the 18th day of May, 1892, entitled ‘ An act in relation to insurance corporations, constituting chapter 38 of the General Laws.’

“We, the undersigned, do hereby declare that we intend to associate and form an incorporated company for the following purposes, to wit: The inspection and certification as to the sanitary conditions of buildings and premises. The insurance of owners, lessees or tenants' of buildings and premises against loss or damage to life or .health from causes arising from the imperfect sanitary conditions of such buildings or premises; the insurance of landlords, lessees, tenants or occupants of houses, flats, office buildings or other structures from loss occasioned by imperfect plumbing, bursting pipes or leaks, to walls, ceilings, furniture or goods, and for the doing of such other business as may be lawfully connected with the business of sanitary inspection, care and insurance, under subdivision 8 of section 70, article 2 of chapter 690 of the Laws of 1892, and that we propose to adopt the following charter as the charter of said company.”

The proposed charter was attached to this declaration.

To this communication from the Superintendent of Insurance, the Attorney-General made the following reply, • declining to grant a certificate:

“Exhibit ‘B.’

“ STATE OF NEW YORK:

“Attorney-General’s Office. ) “Albany, N. Y., Sept. 22, 1893. [

“Hon. James F. Pierce, Superintendent of Insurance:

“ Dear Sir —-1 have the honor to acknowledge the receipt of yours of the 12th instant, inclosing proposed declaration and charter of the Sanitary Inspection and Insurance Company of New York, and you ask if there is no question as to the legal right of said company to organize under the Insurance Law to transact the business specified in the declaration and charter, and the papers are otherwise made out and executed in accordance with the Insurance Law, tliat I attach tbe certificate of this department approving the same.

“ In reply, permit me to say tliat this application is made under subdivision 8, section Y0 of the Insurance Law. The business proposed to be carried on is the inspection and certification as to the sanitary conditions of buildings and premises against loss or damage to life or health frourcanses arising from the imperfect sanitary conditions of such buildings or premises; the insurance of landlords, lessees, tenants or occupants of houses, flats, office buildings or other structures from loss occasioned by imperfect plumbing, bursting-pipes or leaks, to walls, ceilings, furniture or goods, and for the doing of such other business as may be lawfully connected with the business of sanitary inspection, care and insurance under subdivision 8 of section YO, article 2 of chapter 690 of the Laws of 1892.

“ In my opinion this is not a kind of casualty insurance such as is specified in any of the subdivisions of section YO; nor is it a kind of insurance that can be lawfully carried on under said section.

“ I, therefore, decline to attach my certificate of approval to said proposed declaration and charter.

“ Y ery truly yours, ‘

“(Signed) S. W. ROSENDALE,

“Attorney- General.”

The relator thereupon applied at Special Term for, and obtained the following order r On reading and filing the affidavit of Rignal D. Woodward, verified on the 26th day of September, 1893, and the notice of motion attached thereto, and after hearing Rignal D. Woodward, the relator, in person, for the motion, and Erancis R. Gilbert, of counsel, appearing for the defendant, and objecting that mandamus is not the proper remedy, and that the act of the Attorney-General in declining to make and sign the certificate in the moving papers referred to, can only be reviewed by certiorari, and in opposition to the motion,- and due ' deliberation being had thereon. It is ordered that the objections raised by the counsel for the Attorney-General, defendant herein, be overruled.

“ It is further ordered that the prayer of the relator herein be, and the same is hereby granted, and that a peremptory writ of man-damns forthwith issue out of and under tlie seal of this court, directed to tlie above-named Simon W. Rosen dale, Attorney-General of tlie State of New York, requiring and commanding him to certify to the Superintendent of Insurance that the declaration and charter of the proposed Sanitary Insurance and Inspection Company of New York is in accordance with tlie requirements of law, as provided for by section 10 of article 1, chapter 690, Laws of 1892, to wit, in accordance with section 70 of article 2 of chapter 690, Laws of 1892, of the State of New York.

“ It is further ordered that the relator is hereby allowed fifty dollars costs of this proceeding.”

Prom this order and determination the defendant appeals to this court. The first and most important question presented by this appeal for examination is whether the Attorney-General, in the performance of the duty imposed upon him by section 10 of article 1 of chapter 690 of the Laws of 1892, as amended by chapter 725 of the Laws of 1893, acts in a ministerial or judicial character. If in the former, then he had no discretion and no right to exercise his judgment or follow his_ convictions, but must, as Attorney-General, certify such declaration and proposed charter to the superintendent to be in accordance with the requirements of law, whether or not he believed it conformable thereto.

In other words, his only duty is to make and sign the certificate without regard to liis own judgment as to its accuracy or truth, or suffer tlie pains and penalties of a writ of mandamus, obedience to which might compel him to certify falsely.

If, on tlie other hand, liis duties were judicial or qxidsi judicial, he could.only be compelled to exercise his judgment by acting, leaving the party who claimed that his acts or determinations were erroneous to his certiorari for the correction of such error. We can best determine whether he acts ministerially or judicially by reference to the act of the Legislature from which he derives liis authority. Section 10 of chapter 725 of the Laws of 1893, under which the Attorney-General is required to act, is as follows:

When application is made to the Superintendent of Insurance by any persons desiring to become incorporated as an insurance corporation, or for authority'to transact the business of insurance in this-State under or pursuant to any declaration and charter presented for filing in the insurance department; or any amended declaration or charter required by law to be filed or to be approved by the superintendent, the superintendent shall not file such declaration and charter or grant such certificate of authority, until such declaration aiul charter have been examined by the Attorney-General and certified by him to the superintendent to be ■ in accordance with the' requirements of law.”

The plain duty imposed by this section upon the Attorney-General is to examine the declaration and charter proposed for the purpose of determining whether they are in accordance with the requirements, of law. That examination involves the exercise of his judgment and a determination of the question whether or not the subject of the. proposed insurance, the form of the application and charter proposed are within the scope and conformable to the law under which the respondents propose to organize and incorporate.

lie cannot discharge that official duty without the examination of the proposed articles and charter, or comparison of the same with the law, and an official determination, which is to be expressed in his official certificate that they are conformable to the law. Suppose such examination leads him to the conclusion that they are not conformable to the law ? Must he still abdicate his judicial functions imposed by this law, which requires him to determine, and in violation of that determination perform only this ministerial function of signing and filing a certificate which he believes false? We think not. The law has long been settled that the judgment of an officer, court or body charged with judicial functions cannot be coerced by mandamus.

The most that can be accomplished by that writ is to compel such officer, court or body to decide, leaving the decision to the free exercise of the judgment and conscience of the tribunal charged with the duty of deciding, and reserving to the party affected by such decision the right to review the same by certiorari or appeal. This rule is well stated in The Matter of Petition of Howland (43 N. Y. 457), where the Court of Appeals say: This is the universal rule in respect to all subordinate courts and tribunals clothed with the exercise of judgment or discretion. They may by mandamus, be compelled to proceed and determine the matter, but cannot be: compelled to decide in any particular way. If they could it would no longer be their judgment or discretion, but that of the court awarding the writ.”

Under this rule, if the Attorney-General had refused to pass upon ■the sufficiency and legality of the application and proposed charter of the relator, a mandamus would issue to set him in motion and ■compel him to make the examination contemplated by section 10 ■above quoted, but could not issue to compel him to decide in any particular way. But in this base it is not objected that he failed to act; the only complaint is, that having acted and made a determination, he did not determine ás the relator desired.

If the court can compel him by this writ to act as required against his own judgment, his act and determination would, in .the language of the court in the case last cited, “no longer' be (his) their judgment and discretion, but that of the court awarding the writ.”

In that event the court would not be reviewing the judicial determination of the Attorney-General by any method of review known •to the law or practice, but would be substituting its determination in the first instance, and compelling him to make a certificate which the court is not authorized by statute to make and which he had determined he could not legally make. The case is not like that of a review by the court on certiorari- of his determination and a reversal of it if erroneous, but rather an effort to have the court determine for him how he shall decide in a given case, and thus to ■compel him to adopt and act upon as his own the judgment of the ■court. It is no answer to this suggestion that if his decision was reversed on certiorari, and he contumaciously refused to obey the ■order of the court, made on such reversal, the court would still be compelled to enforce its determination by mandamus.

His duty in that event would become purely ministerial, requiring him simply to execute the judgment of the court. But it is said ■that the act of 1893, authorizing the certificate of the Attorney-General that the application conformed to law, is similar to that vested in many cases in the Secretary of State and Comptroller, and to that heretofore vested in the Superintendent of Insurance, and that while the Attorney-General is the law officer of the State, he as such has no judicial functions, and, therefore, is but a ministerial administrative officer.

While, in the absence of any statutory authority conferring on him judicial functions, this may be conceded, yet the Legislature, in taking this duty from the Superintendent of Insurance, and conferring it upon the law officer of the State, must have had in view the presumed legal capacity of the Attorney-General to examine, determine and certify to the insurance department his determination of questions of purely a judicial character, which, when certified, fixed the ultimate rights of the appellant and rendered the duties of the Superintendent of Insurance purely and solely ministerial, and leaving nothing for him but to file the application and charter, and grant the certificate of authority.

It is fair to presume, therefore, that when the Legislature transferred the determination of these questions from the insurance* department to the Attorney-General, authorizing him to make a determination and record in the form of a certificate that the law had been complied with, that they intended to and did impose upon him certain quasi judicial functions which he did not before, possess.

These duties when performed by the Superintendent of Insurance,, have frequently been held to be of a judicial character, and, when, determined by him, the courts have refused to interfere by mandamus to change such determination.

In The Matter of Schmitt et al. v. Maxwell (32 N. Y. St. Repr. 573) this court held that the Superintendent of Insurance acted, judicially in determining whether or not the proposed association had, in all respects, complied with the provisions of law authorizing its incorporation, and affirmed the order of the Special Term refusing a peremptory writ of mandamus, and in rendering their opinion uses this language: It is plain that the superintendent was confronted with a grave question of fact, not only judicial in its nature, but one requiring the special facilities and qualifications which that, office is presumed to command and possess. Unless he determined it in favor of the society no occasion for the ministerial duty of issuing the final certificate exists,” citing the following cases in the Court of Appeals: People v. Common Council (78 N. Y. 33);. People v. Chapin (104 id. 96); People v. Barnes (114 id. 317).

If in Schmitt v. Maxwell (supra) the Superintendent of Insurance, in determining whether the appellants had complied’ with the-provisions of the Insurance Law, acted judicially, and for that reason could not be coerced by mandamus, for the same, and, we think, a much stronger reason, the Attorney-General, when called upon to make a similar determination, could not be controlled by mandamus in the decision he was required to make, in the case at bar.

If we are right in our conclusion that this statute imposed upon the Attorney-General the performance of a judicial act, in determining whether this application and charter were conformable to law, then it must follow as a legal sequence that such judicial determination cannot be reviewed by this court on an application for a mandamus. His judgment and determination is not before us for review. That only can be reviewed in some other proceeding in the nature of an appeal or 'certiorari.

The office of a mandamus is to set a ministerial or administrative •officer in motion, to compel him to act, while a certiorari may be resorted to to review the legality of "liis act, and if found illegal to set them aside or reverse them.

We are cited to many cases by the learned counsel for the relator where ministerial officers have been compelled by mandamus to perforin their ministerial duties, but none has been cited where an officer acting judicially has been compelled by this writ to depide in a way differing from his own determination or decision. In the case of The People v. Tremain, Attorney-General (17 How. 10), cited by the learned judge at Special Term, the statute required the Comptroller to draw his warrant upon the Treasurer, where costs in a civil suit or proceeding had been adjudged against the State, for the amount of the same, on the production of an authenticated copy of the record of the judgment, and the certificate of the Attorney-General that such suit had been duly instituted as by law required.

In that case a Special Term held that a mandamus would lie to ■compel the Attorney-General to make such certificate. But that •case was reversed on appeal by the General Term upon another point.

But in such a case the Attorney-General had nothing to pass upon judicially; the record of the judgment to which his certificate was to be affixed imparted absolute verity, that the suit in which the judgment was obtained was duly instituted as by law required, and the Attorney-General, in enforcing the payment of the judgment by his certificate, was in the performance of that duty as much a ministerial officer as the sheriff who was required to execute final process in the collection of the judgment, or the cleric in satisfying a judgment of record after the execution had been returned satisfied.

In the case of The People ex rel. Bockes v. Comptroller (115 N. Y. 302) the comptroller had no judicial duties to perform. It was his ministerial duty to pay the salary of the judge, and on his failure to do so it is clear that he could be compelled to do so by mandamus. The question of the propriety of proceeding by mandamus was not raised or determined in that action, and that case is, therefore, no authority in this one.

The case of People ex rel. Gilbert v. Wemple, Comptroller (125 N. Y. 485), presented the same question as that presented in the case of Bockes v. Wemple [supra), and, therefore, is not an authority in this case.

There is, therefore, no real analogy between the statute under which the Attorney-General was required to act in that case and the one under consideration. In the view which we have taken in this case we do not deem it important to examine the question of the correctness of the determination of the Attorney-General in holding that the proposed insurance was “ not a kind of casualty insurance such as is specified in any of the subdivisions of section Y0, nor is it a kind of insurance that can be lawfully carried on under said section.” »’

That question is not properly before us on appeal from an order granting a mandamus.

The order must be reversed, with fifty dollars costs and printing disbursements.

Putnam, J., concurred; IIerrioic, J., not acting.

Order reversed, on ground of lack of power to grant mandamus, with fifty dollars costs and printing and other disbursements.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    The People of the State of New York ex rel. James C. Fargo, as President of the American Express Company, Appellant, v. Simon W. Rosendale, Attorney-General, Respondent.

      Costs against the People under chapter 488 of 1892' — collected under section 8241 of the Code — section 3243 does not apply — certification of a judgment by the Attorney-General — ichen a ministerial act.

    Where costs are awarded against the plaintiff in an action prosecuted in the name of the People of the State, under the direction of the chief game protector, to recover penalties for an alleged violation of the provisions of section 46 of chapter 488 of the Laws of 1892, which penalties, if recovered, are not to be paid into the treasury, or for the benefit of the county in which the wild game charged to have been illegally transported was captured, the payment of such costs should be enforced against the People of the State, under the provisions of section 3241 of the Code of Civil Procedure. Such a case does not come within the provisions of section 3243 of the Code of Civil Procedure so as to authorize the collection of the costs from the county in which the gams was captured, or from any of the counties through which it passed.
    The certification by the Attorney-General of a judgment which is certified by a clerk of the court, and which imports on its face absolute verity, is in no sense a judicial but is purely a ministerial act.
    Appeal by tlie relator, James O. Fargo, as president of the American Express Company, from an order of the Supreme Court, made at the Albany County Special Term and entered in the office of the clerk of the county of Albany on the 5th day of September, 1893, denying the relator’s application for a peremptory writ of mandamus.

      Frank Ilasbrouek, for the appellant.

      Jolm W. Hogan, for the respondent.
   Mayham, P. J.:

The principal question to be determined on this appeal is whether the actions prosecuted in the name of the People of the State under the direction of the chief game protector thereof, to recover penalties for violations of the provisions of section 40 of chapter 488 of the Laws of 1892, were actions prosecuted for the benefit of the county, in which the wild game, charged to have been illegally transported by the relator, was captured, or for the benefit of the State in whose name the actions were prosecuted and into whose treasury the penalties, if recovered, were to be paid.

If for the benefit of the former, the costs awarded in favor of the relator should be charged, under the provisions of section 3243, against the county of Herkimer where the game in these cases was captured; but if for the benefit of the State, then the costs should be awarded against the People of the State and the payment of the same enforced under the provisions of section 3241 of the Code of Civil Procedure.

Prior to the enactment of chapter 488 of the Laws of 1892, most, if not all, of the legislation for the protection of game and fish in the State was of a local character, with the powers and duties conferred and imposed for their enforcement upon certain local officers and boards acting in towns and counties, and the penalties for the violation of such laws were given, some portions to the informer, and the balance to the county in which the action was brought. By section 33 of chapter 534 of the Laws of 1819 district attorneys were required to prosecute for penalties for violation of the game laws, and one-half of the penalty belonged to the informer, and the other -half was required to be paid to the treasurer of the county in which the action was brought.

This chapter conferred jurisdiction upon Courts of Special Sessions of towns to try all actions for penalties, and directs the payment of the fines and penalties so collected to the county treasurer of the county where the offense was committed, and makes it the duty of all sheriffs, constables and game constables to arrest for violations of such act.

The same chapter confers jurisdiction upon the boards of supervisors of the State, except in the counties therein expressly excepted, to appoint game constables, who are authorized to prosecute for penalties under the game laws and makes their compensation for such service a charge against the county. Chapter 591 of the Laws of 1880 authorized the Governor to appoint eight game and fish pro-1 teetors, who were authorized to prosecute actions in the name of the People for violations of the game laws of the State, and district attorneys of counties were, on request of the game protectors, to prosecute for penalties, and the moneys collected in such prosecutions, except costs, which belonged to the district attorney, were required to be paid to the county treasurer of the county in which the actions were prosecuted, and after reimbursing the county for ■all expenses incurred by it in the prosecution and collection of the penalty, the treasurer is required to pay the balance into the State treasury.

Under the provisions of these statutes the penalties seem to be recovered to the use of the county where the actions are prosecuted, so far, at least, as to reimburse the counties for all expenses in their collection and in most cases for the absolute benefit of the county.

The case of The People v. John Alden (112 N. Y. 117), which was relied upon by the learned justice at Special Term in deciding this motion, was decided under the provisions of chapter 534 of Laws of 1879, as amended by chapter 531 of the Laws of 1880.

By section 277 of chapter 488 of the Laws of 1892, chapter 534 of the Laws of 1879, above referred to, was repealed, and all actions prosecuted after the 5th of May, 1892, must be governed by chapter 488, above referred to. Section 230 of that act provides that “All penalties imposed by this chapter may be sued for and recovered in the name of the People of the State of New York.” .Section 238 of this chapter provides that the penalties recovered shall be paid to the board of commissioners and be disbursed by it, as provided in that act. Section 240 jirovides that one-half of the penalties shall be paid to the protector or special protector upon whose information the action shall be brought, and section 241 that the remaining money received by the board of commissioners shall be applied to the paymeut of expenses of actions for violations of the game laws, on the certificate of the chief protector.

It will be seen that none of the penalties recovered for violations of the provisions of the game laws goes into the county treasury of the county either where the action is prosecuted or where the offense was committed by the Capture or destruction of the fish or game, the capture or destruction of which is made a penal offense under the act, and it would seem to follow that a decision of the ■ court under the former acts would not necessarily control in the interj>retation of the provisions of chapter 488 of the Laws of 1892.

It is true that in People v. Alden (supra) Judge Andrews uses this language: “ But we think the action was brought for the benefit of the county of Warren within section 3243 of the Code, whether brought upon the information of the State game protector or of some-other person. The statutes, as we have said, assume that the protection of game and the enforcement of the game laws is a county interest. It imposes upon county officers the duty of bringing actions. It requires the county treasurer to advance from the county funds the necessary sums for disbursements and expenses. Whether the county is pecuniarily benefited or not by a recovery, a county interest is thereby protected.”

The court in that case held that the county should pay the costs to the defendant on,his recovery. But it will be remembered that the law under which that action was prosecuted required that the penalty in the first instance went into the county treasury for the express purpose of indemnifying the county against all costs and expenses, while in this, as we have seen, no part of the proceeds of the litigation, if successful, could by any possibility reach the county treasury, either of the county in which the game was killed, or any of the counties through which it is alleged it was carried by the defendant.

The facts of this case are not, therefore, like those in People v. Alden (supra), and the law under which this action is prosecuted is, in many respects, as we have seen, different from that under which that case was decided.

The penalty was not given for the benefit of any one county. Nor can any one county be regarded as solely and directly benefited by the prosecution of the action. The case does not, therefore, come within the provisions of section 3243 of the Code of Civil Procedure, so as to authorize the collection of their costs out of the county in which this game was captured, or any of the counties through which it passed, and while, as was held in the case of People v. Alden (112 N. Y. 121, supra), that the defendant is entitled, to his costs, there seems to be no way open to the defendant for the recovery of the same except that furnished by section 3241 of the Code.

The judgment certified by the clerk, to which the certificate of the Attorney-General is desired, imports on its face absolute verity, and the certification of the same by the Attorney-General is in no sense a judicial, but is purely a ministerial act, and it is quite unlike that required of the Attorney-G-eneral in perfecting the charter of an insurance corporation, and no point is made that a mandamus is not the proper remedy for the relator.

The order of the Special Term must be reversed and a peremptory writ of mandamus awarded, with costs and disbursements in favor of the relator.

Putnam and TIerrick, JJ., concurred.

Order of Special Term reversed and a peremptory writ of mandamus ordered to be issued, with costs of motion at Special Term and costs and printing disbursements of this appeal to the relator.


text:
    Isaac McConihe, Appellant, v. Charles Palmer, as Sheriff of the County of Fulton, Respondent.

      O hange of place of trial — local action within § 983 of the Code of Civil Procedure —. § 986 is directory not mandatory — demand dispensed with — affidavit of merits — technical defeats cured.

    Where a summons and complaint show upon their face that the action is prosecuted against a public officer for an omission to perforin an official duty as sheriff, the action is local and within the provisions of section 983 of the Code of Civil Procedure.
    Such an action may he tried in the county designated in the summons and complaint, although not the proper county, unless the place of trial is changed to the proper county by consent or by an order of the court.
    Section 986 of the Code of Civil Procedure is directory and not mandatory, and in a proper case a court may dispense with the making of the demand, therein provided for, that the trial of an action he had in the proper county, and may change the place of trial although no demand has been made.
    Motions to change the place of trial for the convenience of witnesses are largely in the discretion of the Special Term, and its determination of such motions will not be reversed on appeal, unless it clearly appears that there was an abuse of that discretion, or that the court erred in coming to the conclusion it did.
    Upon a motion to change the place of trial of an action, any defect in the technical requirements of an affidavit of merits is cured if enough appears by other affidavits in the case (if established by proof and not explained away), to amount to a defense upon the merits.
    Appeal by the plaintiff, Isaac McConihe, from an order of the Supreme Court, made at the Albany County Special Term and entered in the office of the clerk of the county of Rensselaer on the 3d day of November, 1893, granting the defendant’s motion to change the place of trial from the county of Rensselaer to the county of Fulton.

      Warren MoGonihe, for the appellant.

      Gla/rk L. Jordan, for the respondent.
   Mayham, P. J.:

The summons and complaint in this action show upon their face that the action is prosecuted against a public officer for an alleged omission to perform an official duty as sheriff of Fulton county.

It was, therefore, a local action, and within the language of section 983 of the Code of Civil Procedure “must be tried in the county where the cause of action arose,” unless the defendant has by some act or omission on his part forfeited his right to insist upon that provision of the Code.

It is true that, notwithstanding this apparently mandatory provision, the action may, if the county designated in the summons and complaint is not the proper county, be tried therein, unless the place of trial is changed to the proper county upon a demand of the defendant, followed by a consent of the plaintiff or the order of the court.

In this case the defendant omitted to serve a demand on the plaintiff for a change of the place of trial, but that, we apprehend, did not deprive the court of the power when applied to, to change the place of trial to the proper county. Section 987 of the Code of Civil Procedure provides that the court may, by order, change the place of trial in either of the following cases :

“ 1st. Where the county designated for that purpose in the complaint is not the proper county.”

It is insisted by the plaintiff that the defendant has waived his right to ask the court to change the place of trial to the proper county by farjjag to serve either before, or with the answer, a demand for the trial in the proper county, as recpiired by section 986 of the Code. But it seems that that section is directory only, and not mandatory, and that the court may, when a satisfactory reason is presented, dispense with the making of such demand, and change tlie placo of trial to tlie proper- county, although no demand was made as required by that section, and after the time fixed therein ■for such demand, provided the motion is made with reasonable dilligence. (Clark v. Campbell, 54 How. 166; Gifford v. The Town of Gravesend, 8 Abb. N. C. 246; Darragh v. McKim, 2 Hun, 337.)

Although none of the cases cited discuss the precise question of the effect of a neglect to servé a demand for a change of the place of trial when the action is local, yet they clearly recognize the power of the court to change the place of trial in that class of cases even when the defendant has failed to comply strictly with all the provisions of the Code upon this subject, so long as the plaintiff has not suffered by such failure.

In the case at bar we thinlc the Special Term might fairly have regarded the stipulations between the parties relating to this motion as a waiver by the plaintiff of a strict compliance with all the provisions of the statute, and a consent that the motion might be heard upon its merits.

It is also insisted that the defendant’s affidavit. of merits on this motion is defective. There would be force in this objection if the defendant’s papers, outside of the technical affidavits of merits, did not upon their face, disclose a meritorious defense.

Rut we think enough appears upon the face of the defendant’s papers, if established by proof, and not explained away by the plaintiff, to amount to a defense upon the merits, and that any defect in the technical requirements of an affidavit of merits is cured by the other affidavits in the case.

The motion was, therefore, properly granted on the ground that this being a local action and not brought in the proper county, the court might properly order it tried in the proper county on this motion. But the motion in this case was also made on the ground of the convenience of witnesses, and upon that aspect of this motion we think the Special Term decision must be sustained.

Motions to change the place of trial for the convenience of witnesses are largely in the discretion of the Special Term, and its determination of such motions will not be reversed on appeal unless it clearly appears that there was an abuse of that discretion, or that the court erred in coming to the conclusion it did. (Lane v. The Town of Hancock, 29 N. Y. St. Repr. 635; Schmidt v. Lithograph & Printing Co., 31 id. 258.) We see no reason for the reversal of this order on either of these grounds.

Several objections are embodied in the order and urged as reasons of reversal, but, we think, on the whole sufficient was considered by the learned judge at Special Term to- enable him to reach a correct conclusion, and that his determination should be sustained.

The order must be affirmed, with ten dollars costs of this motion and printing disbursements.

Putnam, J., concurred in the result; Herrick, J., not acting.

Order affirmed, with ten dollars costs, and printing and other disbursements.


text:
    The People of the State of New York ex rel. Jacob Dreicer, Respondent, v. Isaac Y. Ouderkirk et al., Assessors, and Another, Appellants.

      Gode of Givil Procedure, § 2005 — writ of certiorcuri — tender of fees necessary.

    Section 2005 of the Code of Civil Procedure requires a person upon whom a writ of certiorari is served, upon payment or tender of the fees allowed by law, to make a return. The tender or payment of fees for copies of papers required to be returned is a condition precedent which must be complied with before a person or a public body or an officer can be compelled by mandamus to make such return.
    Appeal by the defendants, Isaac Y. Ouderkirk and others, from an order of the Supreme Court, made at the Washington County Special Term and entered in the office of 'the clerk of the county of Saratoga on the 27th day of September, 1893, commanding the appellants to' make and file a return to a writ of certiorari.

      Edgar T. Brackett, for the appellants.

      A. Wi Shepherd, for the respondent.
   Mayham, P. J. :

The assessment roll which the relator by his certiorari desired to bring up for review was at the time of granting of the writ filed pursuant to law in tlie town clerk’s office, from which the defendants coidd not legally withdraw the same. But they could obey the writ by returning sworn or certified copies thereof. ( Winegard v. Kromer, 5 Misc. Rep. 54.)

Such a return would, however, impose upon the defendants the labor and expense of making or procuring copies of the assessment roll.

Section 2005 of the Code of Civil Procedure requires a person upon whom a writ of certiorari is served, upon payment or tender of the fees allowed by law, to make a return. The tender or payment of fees for copies of papers required to be returned seems to 'be a condition precedent which must be complied with before a party can be compelled by mandamus to make such return.

This rule applies to public bodies, or officers as well as individuals. Accordingly, this court held that a board of supervisors whose acts in refusing to allow a sherifE’s bill were sought to be reviewed on certiorari, could not be compelled to return their action, and the bill presented to them for audit until the fees for making such return were paid. (People ex rel. Sutliff v. The Board of Supervisors of Fulton County, 64 Hun, 375.)

This case is in principle like the case at bar, and we think decisive of it. The order must be reversed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JJ., concurred.

Order reversed, with ten dollars costs and printing and other disbursements.


text:
    John S. Cronin, Appellant, v. Johanna C. Crooks, Respondent.

      Wa/rramt of attachment — recital of grounds thereof — charge therein in the alternative — not a compliance toith Code of Civil Procedure, § 636.
    Where the charge in a warrant of attachment is “that the said defendant is a natural person and a resident of the State, and has assigned and disposed of, or is about to assign and dispose of, her property with intent to defraud her creditors,” such charge is an equivocal or alternative assertion, leaving the ground in doubt, and. therefore, fails to be a recita, of the ground of the attachment such as is required by section 641 and by subdivision 2 of section 636 of the Code of Civil Procedure.

      Appeal by the plaintiff, John S. Cronin, from an order of the Supreme Court, made at the Albany County Special Term and entered in the office of the clerk of the county of Rensselaer on the 1th day of November, 1893, vacating and setting aside a warrant of attachment granted on the 31st day of October, 1893. •

      Thomas 8. Fagan and T. F. Long, for the appellant.

      John P. Ca/rley and Frcmk 8. Black, for the respondent.
   Mayham, P. J.:

In this case a judge of this court at Chambers granted a warrant •of attachment on an ex pm'te application of the plaintiff, and subsequently on a motion made by the defendant on notice, but upon the affidavit used on the motion for the attachment and the warrant of attachment issued by him, the same justice vacated the attachment and the levy made thereunder by the sheriff, and by the order vacating such warrant and levy directed the sheriff to deliver the attached property to a person therein named.

A summons in this action was issued and served on the defendant with the attachment.

The affidavit upon which the warrant of attachment was issued alleges indebtedness from the defendant to the plaintiff. That the defendant was the owner of a store of dry goods in Troy, N. Y., and that she, without any actual consideration, executed and delivered to her son a chattel mortgage for $1,900, and on the execution thereof surrendered the nominal jiossession of the goods and store to the mortgagee. The affidavit also alleges certain conversations and admissiqns of the defendant, which, it is claimed, tend to prove that this mortgage was fraudulent, but did not, we think, establish that fact. The affidavit concludes with the following statement: That, as this plaintiff verily believes, the said .defendant being a natural person and a resident of the State, by the execution and ■delivery of said chattel mortgage by her to her said son, James Walsh, on the entire stock of goods in her said store, which said stock of goods were at that time fairly worth, as plaintiff believes, about the sum of $6,000, and by putting said-Walsh in possession of said stock of goods for her benefit as aforesaid, has assigned and disposed of, and is about to assign and dispose of, her property with intent to defraud her creditors, and to hinder, delay and defraud this plaintiff in the collection of his claim and demand against her.”

On this affidavit and upon the execution of a proper undertaking by the plaintiff, the learned judge issued his warrant of attachment in the following form:

“ SUPREME COURT — County of Rensselaer.

“John S. Cronin against Johanna C. Crooks.

“The People of the State of New York.

To the Sheriff of the County of Rensselaer, Greeting:

Whereas, an application has been made to mq for a warrant of attachment against the property of Johanna C. Crooks, defendant, in an action in the Supreme Court of Rensselaer county, wherein John S. Cronin is plaintiff and Johanna C. Crooks is defendant.

“And whereas, it appears by the affidavit of John S. Cronin, which is presented to me on such application, that a cause of action, upon contract, for the recovery of money exists against said defendant in favor of such plaintiff, and that the sum of one thousand one hundred and thirteen dollars is due from said defendant to the said plaintiff, upon the ground that a cause of action exists against said defendant in favor of the plaintiff for the breach of a contract for goods, wares and merchandise sold and delivered and moneys paid to defendant’s use by the plaintiff at defendant’s request, which constitutes the plaintiff’s demand against the defendant in said a'ction, and that the said defendant is a natural person and a resident of the State, and has assigned and disposed of, or is about to assign or dispose of her property with intent to defraud her creditors, and that the plaintiff is entitled to said attachment according to the provisions of the Code of Civil Procedure, and he having given the undertaking required by the provisions of the said Code, now, you are hereby commanded and required to attach and safely keep so much of the property within your county which the defendant has or which she may have at any time before final judgment in this action, as will satisfy the plaintiff’s demand above stated, together with costs and expenses, as security for the satisfaction of said judgment as said plaintiff may recover in said action; and when this warrant shall be fully executed or discharged you are required to return the same, with your proceedings thereon, to this court.

In witness whereof I have hereunto set my hand this 31st day of October, 1893.”

The controversy in this case seems to arise on the sufficiency of the statement in the warrant of the grounds of the attachment, and the sufficiency of the affidavit used on the application for the warrant does not seem to be in question on this appeal. The question presented is whether the recital in the warrant is defective and does not state a valid ground for the attachment.

By section 641 of the Code of Civil Procedure it is provided' as follows: The warrant must be subscribed by the judge and the plaintiff’s attorney, and must briefly recite the ground of the attachment.” This provision is mandatory, and unless we can find on the face of. the warrant a statement of the ground upon which it was issued we cannot hold that this section has been complied with.

The charge in this warrant is “ that the said defendant is a natural person and a resident of the State, and has assigned and disposed of, or is about to assign or dispose of her property, with intent to defraud her creditors.”

Subdivision 2 of section 636 of the Code of Civil Procedure .specifies the various grounds upon which an attachment may issue, either of which, when appearing, is sufficient to warrant its issuance ; but without the existence of one or more of such grounds it cannot issue. If, therefore, it appeared on the face of this warrant, and was stated in it that the defendant had assigned or disposed of her property with intent to defraud her creditors, it would have been a sufficient recital of the grounds of the attachment to.meet the requirements of section 641 of the Code.

Or if it liad recited that she was about to assign, secrete or dispose of her property with intent to defraud her. creditors, such recital would have been sufficient. Or if the recital had united both these grounds by a copulative conjunction that would' have been a compliance with the provisions of that section, because that would have been a recital of one or more of the grounds upon which an attachment may issue.

But by disjunctively uniting two grounds, either of which, when ■standing alone, would be sufficient, or botli of which, when coupled, would be good ground, that which would be a positive assertion when standing alone, or copulatively connected, becomes an equivocal or alternative assertion, leaving the ground in doubt, and, therefore, fails to be a recital of the grounds of the attachment, sucli as is required by subdivision 2 of section 636 of the Code of Civil Procedure. This question seems to have been settled in several well-considered cases. In Dintruff v. Tuthill (62 Hun, 591) it was expressly held that statements in the alternative were not a compliance with section 641 of the Code of Civil Procedure, which required that the warrant must briefly recite the grounds of the attachment.” To the same effect were Arnot v. Wright (55 Hun, 561); Collins v. Beebe (27 N. Y. St. Repr. 4); First National Bank v. Bushwick Chemical Works (25 id. 830); Rothschilds v. Mooney (36 id. 565).

It is true that in some of these cases it was held that the use of the disjunctive “ or ” instead of the copulative “ and ” in an ■affidavit for an attachment, was a mere irregularity, for which the warrant would not be vacated if the affidavit on its face showed ‘■sufficient ground for the issuance of an attachment.

But I have found no case holding such a defect in the warrant could be disregarded. Other questions are raised by the appellant on this appeal, but in the view we have taken they need not be considered.

Ve are, therefore, of the opinion that the learned judge at Special Term was right in setting aside the warrant of attachment in this case, for the reason that no ground was stated therein for the granting of the same ; for the reason that the statement in the alternative neither stated one fact nor the other, and for that reason the order should be affirmed.

Putnam, J., concurred: Herrick, J., not acting.

Order affirmed, with ten dollars costs and printing disbursements.


author: Per Curiam :

text:
    Edmund F. Bennett, Plaintiff (Clara F. Bennett, Respondent), v. John I. Thompson and Others, Appellants.

      Assignment of a cause of action — death of the plaintiff assignor — right of theassignee to substitution.

    The plaintiff, in an action brought to recover from a sheriff the value of goods alleged to have been converted under an execution and in which the sheriff’s indemnitors had been substituted as defendants, having died after issue joined and before trial, the assignee of the cause of action, under an assignment executed by the plaintiff about a week before his death, noticed for hearing at Special Term, a year and four months after the plaintiff’s death, a motion to be substituted as plaintiff and to have the action revived and continued. It appeared that the original plaintiff died intestate, and that no administrator of his estate had been appointed. The motion was granted.

      Held, that the court had power to grant the motion ;
    That in the absence of a denial of the assignment by the defendant, there was no necessity of giving any notice of the motion to the personal representatives of the deceased plaintiff;
    That the objection to the motion on account of laches was properly overruled.
    Appeal by the defendants, John I. Thompson and others, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Rensselaer county on the 1st day of December. 1893, granting the application of Olara F. Bennett, as assignee of the plaintiff, to revive the above-entitled action and to be substituted as plaintiff therein in the place and stead of Edmund F. Bennett, deceased.
    The action was begun by the service of the summons and complaint on Shepard Tappen, as sheriff of Rensselaer county, the original defendant herein, April 11, 1890. On September 30, 1890, an order was made, on the application of said Tappen as sheriff, substituting the present defendants, as indemnitors of the said sheriff,, in the place and stead of the said Tappen as defendant herein.
    Plaintiff’s amended complaint was served April 9, 1891, and defendants’ answer thereto was served May 19, 1891. On November 2, 1891, a stipulation was made referring the issues herein to a referee to hear and determine.
    Edmund F. Bennett, the plaintiff, died on March 23, 1892. Olara F. Bennett, on July 11, 1893, served a notice of motion, returnable at Special Term on July 25, 1893, praying for a revival of this action and for the substitution of herself as plaintiff. The motion was from time to time postponed until November 28, 1893.
    No proof of the service of said notice of motion upon the personal representatives of the said Edmund F. Bennett, deceased, was produced upon the hearing of the said motion, but it was shown that ■notice had been served on his widow and son, named in the moving ■affidavit, which was as follows:
    “ Clara F. Bennett, of Troy, N. Y., being duly sworn, says that the above-entitled action was brought by this plaintiff to recover of .the sheriff of Bensselaer county the value of certain goods, wares ■and merchandise alleged, in plaintiff’s complaint, to have belonged ;to this plaintiff, and to have been converted by said sheriff to his ■own use, as more fully appears in the complaint herein; that subsequently, in accordance with the law in such cases made and provided, the said sheriff had these defendants substituted as defendants ■in his place and stead, and said defendants duly answered and said ■cause was duly noticed for trial by both parties and placed upon the calendar for trial; that subsequently said action was by a stipulation of parties referred to W. "W. Morrill, Esq., as referee, to hear and determine the same.
    “ That subsequently thereto and before trial was had, to wit, on ■or about the 16th day of March, 1892, by an instrument in writing, this plaintiff, Edmund F. Bennett, sold, assigned, transferred and set ■over to Clara F. Bennett all his right, title and interest in and to this cause of action and all moneys due or to become due him thereunder.
    “ That subsequently thereto and on or about March 23d, 1892, ■said plaintiff, Edmund F. Bennett, died intestate, leaving him surviving him his widow, Flora A. Bennett, and his son, Charles E. Bennett, his only heirs at law and next of kin, and that no administrator of his estate has been appointed nor letters of administration applied for.
    “And deponent further says that she is the absolute owner of said cause of action, and that no other person or persons has or have any interest therein.
    “And deponent further says, that since she became the owner thereof, she has, through her attorney, George B. Donnan, repeatedly ■informed defendants’ attorneys of such fact, and has asked them to stipulate that she might enter an order continuing said suit in her name as plaintiff, that said suit might be brought to a speedy trial, but that defendants by their said attorneys declined so to do.”
    The assignment was as follows:

      “ SUPREME COURT — Rensselaer County.
    “ Edmund F. Bennett agst. John I. Thompson, William A.
    Thompson and James F. Cowee.
    “ This indenture witnesseth that in consideration of thrée hundred dollars heretofore paid me by Clara F. Bennett, the receipt whereof is hereby acknowledged, I hereby sell, assign, transfer and set over to Clara F. Bennett the foregoing cause of action, and all my right, title and interest in and to the same and all moneys due or to grow due me thereunder, with full power to her, to the said Clara F. Bennett, to prosecute said suit in the same manner as I might do were these presents not made.
    “ Signed and sealed, March 16th, 1892.
    “ EDMUND F. BENNETT, [l. s.] ”

      Hennj J. Specie, for the appellants.

      George R. Donncm, for the respondent.
   Per Curiam :

We think that the court below had power to grant the motion. Its authority to do so seems unquestionable since the decision of the Court of Appeals in Schell v. Devlin et al. (82 N. Y. 333). In that case the motion was not granted, as counsel for appellants suggests, under the provisions of section 1298 of the Civil Code, no appeal having been taken, and the authority seems directly in point.

It is difficult to see what interest the personal representatives of the deceased plaintiff had in the motion. The assignment by plaintiff previous to his death to the moving party was clearly proved and was not denied by appellant. In the absence of a denial of the assignment there was no necessity of giving any notice to the personal representatives of the deceased plaintiff. As Judge Andrews remarks in Schell v. Devlin et al. (supra): The interests of the ajipellants in the question is that the person substituted shall be the real owner of the claim, or if not, that the real claimant shall be concluded by the order.”

The court below, in its discretion, overruled the objection of defendants to the motion on account of laches, and we see no reason to overrule its rulings in that regard. The plaintiff died a few days after the assignment, and defendants did not satisfactorily show any injury to them resulting from the delay.

The order should he affirmed, with costs and disbursements.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Order affirmed, with ten dollars costs and printing and other disbursements.


author: Putnam, J.:

text:
    In the Matter of the Accounting of Anna Parker Pruyn, as Executrix of the Last Will and Testament of John V. L. Pruyn, Deceased. Anna Parker Pruyn, as Executrix, Appellant; John V. L. Pruyn, Respondent.

      Executors and legatees — accounting and settlement out of court — release as a bar to ' a compulsory accounting.

    While executors cannot, by a settlement between themselves, release each other from their duty to the estate or to a legatee not a party to the settlement, they can make an accounting and settlement out of court, as executors and legatees, valid as between themselves, and as to legatees acquiescing therein.
    The fact that a party to such a settlement is an executor as well as a legatee does not prevent the settlement, and a release executed hy him, from being binding on him.
    A release, under seal, duly executed by and between an executrix, a legatee who was also co-executor, and the only other adult legatee, reciting an accounting ■ between the parties and containing a full mutual release and settlement between them up to a certain date, and not attacked in any way, will bar an application hy the legatee executor to compel the executrix to account in a proceeding to which he and she alone are parties, in regard to matters as to which she has already voluntarily accounted with him, and which are covered hy the settlement and release.
    This is so, notwithstanding the fact that the release is not binding upon a minor legatee who was not a party thereto.
    The accounting sought cannot he compelled in reference to- certain securities which it appears by the release have been set apart by the applicant himself, and the executrix, as a fund for a purpose of the will.
    In such proceeding for an accounting, the applicant is to he deemed as occupying the position of legatee only, and not that of executor.

      Appbal by Anna Parker Pruyn, as executrix, etc., of J olm Y. L. Pruyn, deceased, from an order of the Surrogate’s Court of Albany county, entered in the surrogate’s office of that county on the 10th day of November, 1893, denying her motion to dismiss this proceeding, and directing her to render a full and complete account of all her proceedings as executrix.

      J. Newton Fiero, for the appellant.

      Barnwell B. Ileyioard and F. Gov/nt/rymcm, for the respondent.
   Putnam, J.:

The papers presented to us show that the parties interested in the estate of John V. L. Pruyn, as legatees, are Anna Parker Pruyn, his widow, and-John Y. L. Pruyn, Harriet Parker Pruyn and Huybertie L. Pruyn, his children. The two former qualified as executors, said Anna on January 17, 1878, and said John on March 21, 1880, the estate, however, having been managed almost exclusively by the said Anna, and no considerable part thereof having been received by her said co-executor.

On or about September 11, 1893, said John Y. L. Pruyn, in a petition presented to the surrogate of Albany county, set up the fact that he was a legatee under the will of said deceased and also an executor, and that one of the legatees, Huybertie, ivas a minor, and asked for an order compelling the said Anna Parker Pruyn to render and settle her account of her proceedings as executrix of deceased. The surrogate thereujjon issued the usual citation, requiring the said Anna to show cause why she should not render such account.

On the return day mentioned in the said citation she appeared, and in her answer set up a release under seal executed by said petitioner and Harriet Parker Pruyn on June 15, 1889, after a full settlement and accounting between the parties, and asked that the proceedings be dismissed. Issue being thus joined between the parties, the appellant introduced the said release in evidence. No other evidence was offered by either of the parties. The release is dated June 15, 1889, and is signed by Anna Parker Pruyn of the first part, John Y. L. Pruyn of the second part, and Harriet Parker Pruyn of the third part. After giving a history of the facts of ' the case, and stating that the parties had examined the books and accounts relating to said estate from the death of the testator up to July 1, 1887, the paper contained the following clause : “The said party of the first part does hereby release and discharge the other parties hereto, and each of them, of and from all liability for moneys received or had from said estate, by them or either of them. The said party of the second part does hereby release and discharge the party of the first part of and from all liability to him, as executrix of the said will, and the party of the second part does also discharge and release the said party of the first part of and from all liability to him, as the former guardian of his estate.

“And the parties of the first and second part hereto do mutually release each other from all and every claim and liability by reason of any thing relating to the said estate or the doings or proceedings of either of them, as executrix or executor of said will. * * *

“ But this agreement is and is to be considered as a full settlement of all the accounts of the parties of the first and second part hereto up to July 1st, 1887, and a ratification and confirmation of the division made that day,, and a full and mutual release and acknowledgment of satisfaction between the parties of the first and second part up to and including the said 1st day of July, 1887.”

The surrogate denied the motion made by appellant to dismiss the proceedings, and directed her to render a full and complete account of all her proceedings as executrix of John Y. L. Pruyn, deceased.

We are unable to concur with the conclusion reached by the learned surrogate. The'appellant on the trial before the surrogate introduced a release under seal, duly executed by the jietitioner, which has not been attacked in any way, and which recited an accounting between appellant and petitioner as legatee and executor and contained a full release and settlement up to July 1, 1887. The case of Wagner (52 Hun, 23 ; 119 N. Y. 28) is cpiite similar, and, we think, decisive of the question under consideration. That case holds that such a settlement and release between legatees and executors is valid, and an answer to an application by a party to the release to compel an accounting.

It is true that the release is not binding upon one of the legatees named in the will of testator, Huybertie L. Pruyn, not a party to it, and who is yet a minor, and if she should ask for an order to compel an accounting by the executrix this paper would be no answer to her application. But she has not applied for such an order ; she is not a party to this proceeding or in any way affected by it. The only parties here are Anna Parkef Pruyn and John Y. L. Pruyn, who have already settled with each other as to all their transactions up to July 1, 1887. Should appellant again account before-the surrogate as to matters embraced in the settlement of 1887 in this proceeding the account would only be binding as between the parties to it. (Civil Code, § 2712.) It would have no more force than the account and release of 1887. The account sought for by respondent in this proceeding would not, as suggested by respondent, be a final settlement. That could only be brought about by an accounting in which all the legatees were parties. It is true that appellant, if compelled to account under the provisions of section 2727 of the Civil Code, might make an application for a final settlement of her accounts as provided by section 2728 of the Civil Code. But she would not be compelled to do so.

The parties then having voluntarily accounted with and released each other as to all transactions up to July 1, 1887, we are of opinion that the -appellant cannot again be compelled to account on the application of respondent as to matters for which she has already voluntarily accounted with him. We agree with the contention of respondent that the executors could not, by a settlement between themselves, release each other from their duty to the estate and to the minor who did not join in such settlement. They could, however, make an accounting as executors and legatees valid as between themselves and the legatee of full age who acquiesced in such settlement.

The fact that a party to such a settlement is an executor as well as a legatee does not prevent the settlement from being binding on him. In the Wagner case (supra) there were six legatees interested in the estate, of whom three were executors. The six had an .accounting as legatees and executors and executed a mutual release which was held valid. Afterwards the personal representative of one of the deceased executors made an application to compel an accounting. The learned judge who delivered the opinion of the 'Court of Appeals in his opinion remarks : “ Whatever standing the petitioner lias she obtained through the transmission of rights and interests from the deceased legatee, and if this paper represents a genuine transaction, is it conceivable that the deceased would have been heard upon such an application if made by him ? He was executor, as well as beneficiary, and could he so dissociate himself in the one capacity from himself in the other as to entitle himself to be heard by the surrogate to complain of fraud or other causes to invalidate the settlement? Evidently that would be absurd.” (lli) N. Y. 35.)

The above-cited authority in effect determines that a legatee who is also an executor may make a valid settlement out of court with his co-executor, and make a release binding upon the jiarties who join in the settlement.

"We conclude that the account, as far as made, and the release executed thereupon is valid, and that appellant, as far as she lias accounted to respondent, cannot be compelled to again account to him.

It is claimed by respondent, however, that the release was not intended as a final disposition of the whole of the estate. That it has attached to it a schedule of securities aggregating $30,000 which are declared to be held for certain purposes set forth in the will, thus showing that a large part of the estate is still undistributed, the will providing that a fund sufficient to produce $2,000 per year be set aside and maintained for a tax and repair fund as long as the widow occupies the family residence.

Why should the appellant be called to account by the respondent as to this fund ? In the language of the schedule : The following property belonging to the estate of John Y. L. Pruyn. deceased, is set apart as a fund to yield an income for the payment of the ordinary taxes, water rates, insurance and repairs of the dwelling house and grounds on the northerly side of Elk street,” etc. At the end of the schedule is the following sentence : The above setting aside of securities done by us and agreed to March 23, 1887. Signed, Anna Parker Pruyn, executrix, John Y. L. Pruyn, executor.”

It appears, therefore, by the release and schedule attached that the respondent himself in connection with appellant has set aside the $30,000 for the purpose of carrying out the provisions of the will. Before the surrogate he does not suggest or claim, nor does lie on this appeal, that said property was so set aside improperly; that there was any fraud or mistake in the transaction; that the amount was in excess of the amount required, or any reason why the appellant should render an account to him as to the fund which he in fact so set apart for the purposes of the will.

We think the release, in the absence of other evidence, is am answer to the claim of respondent for an accounting. The petition herein should not be deemed made by John V. L. Pruyn as an executor. The only parties to this proceeding are Anna Parker Pruyn and himself. If an accounting were had they are the only parties bound by the decree. Hence, the respondent in this proceeding is acting only for himself and occupies the position of a legatee. If he desired to act as executor it would have been his duty to apply for a final settlement and have a citation issued to all the parties interested in the estate. As we have seen, this is not such a proceeding.

If before the surrogate there had been any evidence that since the settlement of 1887 the appellant had received any property, or that the property set aside as aforesaid was in excess of the amount required, or that it was not so set aside in pursuance of the provisions of the will, the surrogate might have required an accounting. But under the papers and proofs in fact before the surrogate, we think that the order from which the appeal was taken was improvidently granted.

The appeal papers herein contain a stipulation that the case contains a correct copy of the order and the papers upon which the court below acted in making such order.” We think, therefore, that we can properly pass upon the questions presented to us by the appellant.

The order must be reversed, with costs and disbursements.

Mayham, P. J., and Herrick, J., concurred.

Decree of surrogate reversed, with costs of this appeal and printing and other disbursements.


text:
    Henry W. Sage and Others, Respondents, v. Shepard & Morse Lumber Company, Appellant.

      Compulsory reference — long account — waiver of tort.

    When, in an action brought to recover an alleged balance due on a running account for lumber sold and delivered, and the value of other lumber alleged to have been obtained by the defendant at different dates and in different amounts, and retained by him, the tort is waived and the action is brought on the implied contract, and it appears that the plaintiff must establish, as a part of his case, the delivery of over 400 items of lumber, and the price or value thereof, and that no difficult questions of law are involved, a proper case for a compulsory reference is presented.
    Appeal by the defendant, the Shepard & Morse Lumber Company, from an order of the Supreme Court, made at Special Term on the plaintiff’s motion and entered in the office of the clerk of Albany county on the 22(1 day of May, 1893, referring the action to a referee to hear and determine.
    The complaint contains two causes of action. The first cause of action is for a balance of $5,083.03 due the plaintiffs from the defendant on a running account for lumber sold and delivered. It appeared by the affidavit of one of the plaintiffs that this account contains 147 items of charges made by the plaintiffs against the defendant, and 53 items of credit made by the plaintiffs.
    The answer of the defendant admits the purchase of the lumber, but denies that it was worth the sum for which suit is brought, denies that it. owes the plaintiffs any balance on the account, and alleges payment for all the lumber purchased.
    The second cause of action sets up the obtaining possession by the defendant of certain lumber of the plaintiffs at various dates and in different amounts, worth in all $29,778.98, and the retention of the same by the defendant, and its failure to pay therefor, or for any part thereof, and its refusal to pay therefor. It further 'states that the'plaintiffs waive the torts committed by the defendant in obtaining possession of said lumber, and bring this suit upon the contracts arising on the facts stated in this cause of action.
    The defendant, as to this cause of action, denies generally each allegation, and alleges affirmatively that it has paid the plaintiffs for all the lumber which came into its possession belonging to them.

      The affidavit- of one of the plaintiffs showed that the account involved in the second cause of action contains 295 items of charge made by the plaintiffs against the defendant.

      Alphem T. Balkeleij, for the appellants.

      James Fealmore Goojper, for the respondents.
   Putnam, J.:

In this case we deem an opinion unnecessary. Under the pleadings plaintiffs on the trial will be compelled to show the delivery of the various items of lumber for which the action was brought. It is not denied that the account set out in the first cause of action in the complaint consists of 141 items, and in the second 295 items. Plaintiffs on the trial must establish, before resting, each of the items, showing the delivery of the lumber and the price at which the same was sold, or the value thereof.

It will not be practicable under the pleadings to try the question of the power of Abbot, and of defendant’s knowledge of the limitations of that power, separately. The question as to whether defendant had notice as to the power of Abbot, plaintiffs’ salesman, is not, properly, an issue in the action. The evidence given in that regard will bear on the real issue, the price at which the lumber was sold, or whether any price was agreed upon.

"We do not think that difficult questions of law are involved in the case. The questions to be tried are of fact.

As to the second cause of action in the complaint, plaintiffs having waived the tort, it is to be deemed a cause of action on contract, and referable.

Had defendant, in the answer, admitted the delivery to it of the several items of lumber set out in the complaint, averring that it purchased said lumber at a specified price, which had been paid, it may be that a reference should not have been directed. As it is, plaintiffs, as a part of their case must show, before resting, the delivery of over 400 items of lumber, and the price or value thereof.

"We think the order should be affirmed, with costs.

Mayiiam, P. J., concurred; Herrick, J., not acting.

Order affirmed, with costs and printing and other disbursements.


text:
    The City of Albany, Appellant, v. The Watervliet Turnpike and Railroad Company, Respondent.

      Negligence — injury from an electric current carried from a railroad trolley by a fallen telegraph tcire — proximate cause.

    In the absence of evidence showing that the use of guard wires, to prevent overhanging telegraph and telephone wires from falling upon the trolley line of a street surface railroad single trolley electric system, is necessaiy or usual in the construction of such a system, the failure to maintain such guard wires does not constitute negligence on the part of the railroad company.
    If a telegraph or telephone wire, suspended over the trolley wire of a street surface railroad company operating the single trolley electric system, in the manner in which that system is ordinarily applied in the propulsion of street cars, breaks and falls upon the trolley wire, which is at the time in its proper place, necessarily uninsulated, performing its necessaiy and proper functions in the propulsion of cars, and then falls, while resting upon the trolley wire, upon a horse in the street, and thus communicates a deadly electric current from the trolley wire to the horse, which kills the latter, the trolley wire cannot lie said to he the proximate cause of the injury, so as to entitle the owner of the horse to maintain an action for damages against the railroad company on the ground of its negligence in the construction and operation of its trolley system.
    Appeal by the plaintiff, The City of Albany, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of that county on the 24th day of February, 1893, upon an order dismissing the complaint at the close of the ¡daintiff’s case upon the trial.

      John A. .Delehanty, for the appellant.

      Marcus T. JItm, for the respondent.
   Mayham, P. J.:

This action was prosecuted by the plaintiff to recover damages alleged to have been sustained by the negligence of the defendant in 'the construction and operation of its trolley for the propulsion of its railroad cars, by reason of which the plaintiff’s horses were injured by electricity.

The defendant owns and operates a surface street railroad through Broadway in the city of Albany. At the time of the alleged injury a violent storm of wind broke or detached telephone or telegraph Avires which were elevated above the trolley wire of the defendant’s raiLvay, and also the trolley Avire of the Albany Raihvay Company, operating a line of street cars through State street in the city of Albany, Avliicli tAvo raihvay lines intersect each other at the junction of BroadAvay and State street in said city; and such broken or detached telephone or telegraph Avires fell upon the trolley Avire of one of these railroads, at or near their point of intersection, by means of Avliicli a poAverful current of electricity was transmitted to such broken wire, in which the horses of the plaintiff Avere, AA-hile properly upon such public street, entangled and killed, or seriously injured, by such electrical current. The question as to Avliicli of these railroad trolleys connected Avith the broken Avires of the telephone or telegraph companies, and thus furnished the current AAdiich produced the injury, Avas sharply contested on the trial, the plaintiff seeking to connect the defendant’s trolley Avire with it by the evidence, and the defendant seeking to sIioav that the current came from the electric light Avires, or the Avires of the Albany Railroad Company. That the injury resulted from a current from one of these poAverful electrical agencies Avas established beyond question, and substantially conceded on the trial, and upon the question as to AA'hetlier or not the current came from contact Avith the defendant’s trolley Avire, or span wires, there Avas, Ave think, sufficient evidence to raise a question of fact for the jury.

It is true that no Avitness traced the telephone or_ telegraph Avire which communicated the current to the horses, directly from the horses to the defendant’s trolley or span Avire, but the Avitness avIio cut the Avire in which the horses Avere entangled gaAre the general direction of the same toAvards the defendant’s trolley and span Avires, and the testimony of Hawley and McNamara tends strongty in the same direction, so that if the case had turned upon that point and a jury had found for the plaintiff upon that evidence, the court Avould not be authorized to set it aside as wholly unsupported by eAÚdence. The inference could have been fairly draAvn from this evidence that the current was communicated from the defendant’s trolley or span Avires, and in such case it is for the jury to decide. (Hart v. Hudson River Bridge Co., 80 N. Y. 622; Bernhard v. Rensselaer, etc., R. R. Co., 32 Barb. 165, affirmed in 1 Abb. Ct. App. Dec. 131.)

But if tlie jury had found that the current which caused the injury proceeded or was diverted from the defendant’s trolley, or cross or span wires, still the plaintiff could not predicate the right of recovery upon that fact alone, unless there was some evidence that the defendant was guilty of negligence in the construction or maintenance of its line. The right of the defendant to use electricity as a motive power or energy upon the single trolley plan is not denied, and unless by its negligent use the plaintiff was in jured it cannot complain, and I find no evidence in this case that its use in this instance was not in the manner in which it is ordinarily ajiplied in the propulsion of street cars, and the only precautionary measure suggested by the evidence is by suspending a guard wire over the trolley and span wires, so as to prevent telephone and telegraph wires, suspended above it, from falling upon those uninsulated and highly charged wires, and I find no evidence that such guard wires are either necessary or usual in the construction of single trolley lines for propelling street cars.

Under these circumstances was there any evidence of negligence which the court could have submitted to the jury upon which a recovery could be had ? . If the proof had established beyond any doubt that the telephone or telegraph wire had fallen upon the trolley wire, and thence on the plaintiff’s horses, and thus communicated a deadly current to the horses, so long as the trolley, which cannot be insulated, was in its proper place, performing its necessary and proper functions in the propulsion of cars, could it be said to be even the proximate cause of the injury ?

Within the adjudged cases ujion, this subject in this State we think not.

It is quite clear that the proximate cause of this injury was the falling of the telegraph or telephone wire upon the live trolley wire of one or the other of these lines of railroad. Had not that occurred there is no claim that the electricity from the trolley wire of the defendant’s railroad could have communicated with or injured the plaintiff’s horses.

The construction and operation of the defendant’s railroad by a single trolley power was not the direct, necessary and natural cause of the injury complained of. But for the occurrence of other-events, over which the defendant had no control, the injury could not have happened. The doctrine is so old as to be elementary that the injury for which damages are claimed in actions for wrongs, must be the natural consequence of the wrong complained of.

In Butler v. Kent (19 Johns. 228), Spencer, Oh. J., in discussing this principle, uses this language: “ In cases of torts it is necessary to show that the particular damages in respect of which plaintiff proceeds must be the legal and natural consequence of the -wrongful acts imputed to the defendant.”

In Selleck v. Langdon (55 Hun, 26) the court uses this language: “ In an action for an injury the courts cannot go back of the proximate cause, and as between other causes preceding that, select one. rather than another upon which to permit a recovery,” citing in support of that doctrine Sellick v. Railroad Co. (58 Mich. 195) ; Daniel v. Balentine (23 Ohio St. 532); McClary v. R. R. Co. (3 Neb. 44); Henry v. R. R. Co. (76 Mo. 288); Ryan v. R. R. Co. (35 N. Y. 210).

Wharton, in his work on Negligence, section Y3, says: “ Negligence is the juridical cause of an injury when it consists of such an act or omission on the part of a responsible human being as, in ordinary natural sequence, immediately results in such injury.”

In Lowery v. The Western Union Telegraph Co. (60 N. Y. 198) Andrews, J., in delivering the opinion of the court in commenting upon this rule, says: The law does not undertake to hold a person who is chargeable with a breach of duty towards another with all the possible consequences of his wrongful act.

“ It in general takes cognizance only of those consequences which, are the natural and probable result of the wrong complained of, and which, in the language of Pollock, C. B., in Rigby v. Hewitt (5 Exch. 240), may reasonably be expected to result, under ordinary circumstances, from the misconduct.

“ Every injury is preceded by circumstances, if any one of which had been wanting the injury would not have happened. In some sense, therefore, each is a cause of the injury, but to fasten a legal responsibility for the injury upon every person whose wrongful act, however remote therefrom, had contributed to bring about a situation or. condition which made the injury possible, would be an impracticable rule and one which, if enforced, would, in most cases, inflict a punishment wholly disproportionate to the wrong.”

In Selleck v. Langdon (55 Hun, supra) the plaintiff sought to recover for an injury sustained by the falling of a platform on which lie was employed to work, occasioned by the prop on which the platform rested being knocked out by vehicles visiting the platform to remove coal, and the court, in reversing a judgment in favor of the plaintiff, after reviewing the authorities upon this question, uses this language: From these various authorities it may be stated, as the true and guiding rule, that unless the wrong and damage are known to be usually in consequence, the damage according to the ordinary ■course of events following from the wrong, they will not support an action.”

In Allen v. The Atlantic & Pacific Telegraph Company (21 Hun, 22) the plaintiff sought to recover for injuries resulting from the falling of a telegraph pole which was knocked down by being run against by a runaway team, although the pole was at the time somewhat decayed, and Talcott, J., after an exhaustive review of the authorities, sums up his opinion in the following words: “ If, ■therefore, the proximate cause of the breaking of the pole, whereby the accident to the plaintiff was occasioned, was the collision with Chubb’s team, we do not think the defendant was liable for the consequences of the accident.”

Applying the principle of these decisions to the evidence in the ■case at bar as it appears in the record, we do not think it was error for the learned trial judge to dismiss the plaintiff’s complaint.

We have examined the exceptions taken by the plaintiff to the rulings of the trial judge in the receipt. and rejection of evidence, and see no error for which the judgment should be reversed.

Putnam, J., concurred ; Herrick, J., not acting.

Judgment affirmed, with costs.


author: Herrick, J.:

text:
    Hiram L. Washburn, Jr., as Receiver of the Property of Peter Kalteux and John La Grange, Respondent, v. Andrew Dettinger, Appellant.

      Building contract — notice by the owner of an intention to complete the building on the contractor’s default — subsequent fall of the building — the contractor’s right to payment for work done — defective work.

    The service of notice upon the contractor by the owner of a building, in accordance with a provision therefor in a building contract, that if the contractor does, not complete the building the owner will do so himself, does not terminate the-contract, and, consequently, does not release the contractor from liability for defective work done by him, or throw the responsibility therefor upon the owner.
    When, in an action brought to recover from the owner an alleged balance due the ’ contractor on a building contract, it appears that, in accordance with a provision in the contract, the owner, on the contractor’s stopping work before-completion, had served notice upon him that if he did not complete the building the owner would complete it himself ; that the contractor did not resume-¿he woris, and that a few days after the expiration of the notice the building fell, a recovery cannot be had for the contract price less what it would have-cost to complete the building in a good and workmanlike manner, according to the terms of the contract, where the evidence shows that a portion of the-work done by the contractor was defective.
    Such a recovery cannot be upheld on the theory that the owner, by the service-of such notice, and the omission of the contractor to comply therewith, became responsible for the building, and that it was his business to complete it in a good and workmanlike manner, and that if he did not do so before the building-fell, the loss was his.
    To entitle the contractor to recover for the work done by him, it is necessary for him to establish that such work was done in a workmanlike manner.
    bo held, where it appeared that the expense of doing what was left undone by the, contractor, and of doing properly what was defectively done, was unimportant compared with the loss occasioned by reason of the work not having been properly done in the first instance, and that the work was not done, or was defectively done, and the defect was not such as could have been readily discovered’ by the owner, and that the lapse of time between giving notice that he would, complete the building himself and the fall of the building, was not sufficient to justify the owner's being held responsible for not having discovered the-defects, and remedied them in time to prevent any evil results,
    Appeal by tlie defendant, Andrew Hettinger, from a judgment of tlie Supreme Court in favor of tbe plaintiff, entered in tlie office of’ the clerk of Albany county on the 31st day of March, 1893, upon, the report of a referee.

      The action was brought to recover an alleged balance claimed to "bo due the firm of Kalteux & La Grange, contractors, on a contract for building an icehouse for the defendant.
    The contract contained the following provision : “ Should the contractor, at any time during the progress of said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days’ notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract.”

      W. Frothvngham and O. J. Buchanan, for the appellant.

      L..IIotaUng and F. Gountrxyman, for the respondent.
   Herrick, J.:

The plaintiff, as receiver of the property and effects of Kalteux ■& La Grange, brings this action against the defendant upon a contract made by the said Kalteux & La Grange in November, 1875, for the construction- and erection Ity them of an icehouse for the -defendant. The contract price thereof was $6,000. Kalteux & LaGrange proceeded to erect said icehouse and received $4,000 thereon.

On or about the 21st of February, 1876, it was mutually agreed, by parol, that further work upon said icehouse should be suspended until the opening of navigation on the Hudson river in the spring.

The referee to whom the case was referred finds that at the time -of such suspension of work, there remained of work and material to be done and furnished, the following: “ About twenty-three cords sawdust; materials for constructing six French windows; materials for the inside doors; materials to replace tie beam/ materials for repixvning; and the necessary labor of filling in sawdust ; completing French windows; making inside doors; scarfing and pinximg tie beams j repinning building ¡ hanging and trimming outside doors.”

That prior to the suspension of such work the defendant had partially filled said icehouse with ice, and subsequently placed more therein, and that at the time of the falling of the house, as hereinafter stated, it was more than half filled with ice. Sometime in the early part of April the defendant served notice upon Kalteux & La Grange that they must complete said icehouse, or in default thereof, that after the expiration of three days from the time of said service, he, the defendant, would complete said icehouse, and deduct the amount of the expense of so doing from the amount unpaid of the contract price for the erection thereof.

That a few days afterwards, the referee finds more than three, how many does not appear, but on the sixteenth day of April said icehouse fell. The referee has found that it would have cost $300 to do the work and furnish the materials left undone and unfurnished, as hereinbefore specified.

He reported in favor of the plaintiff in the sum of $1,700, with interest thereon, amounting in all to $3,481.87, for which amount judgment was entered against the defendant.

The defendant appeals from the judgment and brings up for review many exceptions to the findings and refusals to find of the referee, both upon questions of fact and law.

After a careful review of the evidence in- this case I cannot resist coming to the conclusion that the building was improperly constructed and that it fell in consequence of defective construction, although the referee has found “ that it does not appear what caused the icehouse to fall.”

I think the learned referee erred in refusing to find, as requested by the defendant, “ that said building was not constructed in a good and workmanlike manner, and was not, at the time of the commencement of this action, substantially completed.”

It appears in the evidence that the building was not properly , pinned together.

That the wooden pins used were not of the kind of wood proper to be used for such purposes, being brittle and easily broken; that in a number of instances where such pins were attempted to be driven in they broke off, and other pins were not put in their places • that one of the tie beams was not properly fastened, so that for some days before the building fell it became drawn apart from its fastening, and there were other minor defects, as the result of which the building was not solid but vibrated in the wind.

The only architect, a man of high standing in his profession, called as a witness testified that the workmanship was bad. The effect of this is sought to be avoided, however, upon the ground that the defendant, having served notice upon the contractors that if they did not complete said building that he, the defendant, would at the expiration of three- days go oil and complete it himself, and the contractors not complying with said notice, that the defendant thereafter became responsible for the building, and that it was his business to complete it and in a good and workmanlike manner, and that if he did not do so before the building fell the loss was his, and the only relief that he is entitled to is to deduct the amount of money which it would have been necessary to exjiend to complete the building in a good and workmanlike manner, according to the terms of the contract, from the contract price.

There is evidence tending to show that after the service of the notice one of the contractors informed the defendant that he would go on with the completion of the building as soon as he could obtain the sawdust, and subsequently notified him that he could not procure it, but that if he, the defendant, could get it elsewhere that he could send a force of men to put it in. If this story is true, and the preponderance of evidence seems to be that it is, although the referee has found to the contrary, 'then the contractors still remained in charge of finishing the construction of the building, and the defendant did not assume the responsibility of it. Furthermore, not only had the contractors omitted the doing of some things which were necessary to be done to complete their contract, but it appears, as already stated, that some of the work which they had done was defectively done, so that if it is to be assumed that the defendant in serving notice that he would go on and complete the building himself, thereby assuming the responsibility of doing the work which under the contract remained to be done to complete it, he did not assume the responsibility for bad or defective work performed by the contractors prior to the time they ceased work upon the building.

Serving notice upon the contractor by the owner in accordance with the provisions therefor in the contract, and even proceeding-pursuant to such notice to go on and do the work, does not terminate the contract. (Murphy v. Buckman, 66 N. Y. 296; Taylor v. The Mayor, etc., 83 id. 625; Crouch v. Gutmann, 134 id. 45.)

The contract being still in existence, and the conti-actors not being released from its terms and conditions, they are responsible for any defective work done in performing it; to hold to the contrary would be to sustain the proposition that, where there is a provision in the contract providing that in case of delay to complete, the owner may go on and do so, the contractor by abandoning his contract and .thus compelling the owner to complete it, may escape liability for defective work done by him and throw it upon the owner; I do not think that this proposition can be successfully maintained.

Neither in a case like this can the owner be made whole by deducting from the contract price the amount of money that it would have cost to have made a perfect job; the'expense of properly securing tie beams, of putting in good pins, of taking out defective ones and replacing them by perfect ones, is trivial compared with the injury resulting from the work having been neglected or improperly done.

The expense of doing that which was left undone, and of doing over again properly that which was defectively done, is unimportant compared with the loss occasioned by such work not having been done or properly done in the first instance.

Neither does it appear in this case that the work which was not done, or which was defectively done, was such as could have readily been discovered by the owner; and the lapse of time between the giving of the notice that he would complete the work himself,' and the falling of the building, does not appear of sufficient length to hold the owner responsible for not having discovered these defects in the building, and to have remedied them in time to prevent any evil results.

To enable the contractors, or the plaintiff, standing in their place, to recover for the work which was done by them, it was necessary for them to establish that such work as was done by them was done in a! good and workmanlike manner, and that I think the evidence shows there has been a failure to establish, and for the error of the referee in refusing so to find the judgment should be reversed, the referee discharged, and a new trial granted, with costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

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