text:
    ELIZA LEGGETT, Appellant, v. CHRISTOPHER C. FIRTH, Respondent.

      Etewutogy devise, dependent upon the exercise of an absolute right of disposition by a priman'y devisee, valid.

    A valid executory devise may now be made to depend on the non-execution, by a primary devisee, of an absolute beneficial power of disposition vested in him by the will creating the limitation, and may now subsist under an absolute power of alienation in the first taker, and to this extent the rule of the common law has been changed by the statute in this State.
    A testator, by his will, provided as follows : “I also give, devise and bequeath to my wife, Ellisheba, all the rest and residue of my real estate, but, on her decease, the remainder, if any, I give and devise to my children, or their heirs, respectively, to be divided in equal shares between them. I do nominate and appoint my wife, Ellisheba, tobethesole executrix of my last will and testament. ”

      Held, That the devise to the wife gave to her an absolute fee, and the superadded words “but, on her decease, the remainder thereof, if any, I give and devise to my children,” conveyed an estate dependent for its existence upon the failure of the primary devisee to exercise the power given to her to dispose of the entire estate.
    Appeal by the plaintiff from a judgment rendered at the Kings County Special Term in favor of the defendant, and entered in the office of the clerk of that county on the 18th day of April, 1889.

      James C. Church, for the appellant.

      Frank H. Parsons, for the respondent.
   Dykman, J.:

This is an action for the specific performance of a contract in writing, for the conveyance of real property. The plaintiff in the action claimed to be the owner of the premises involved and entered into a written agreement to sell and convey the same to the defendant, who agreed to purchase, but who subsequently refused to consummate the agreement under an apprehension of a defect in the title, based upon the following facts: In the year 1857 one John Francis Flazzelard died seized and possessed of the premises, leaving a wife and three minor children, and leaving a last will and testament, which reads as follows, so far as it affects the question to be solved in this action: “ I give and bequeath to my sons Cyrus and Eli and Edward one dollar each; I give and bequeath to my wife Ellisheba •all my household furniture and all the rest of my personal property, after paying from the same legacies already named, to her forever, but if there should not be at my decease sufficient personal property to pay the aforesaid legacies, then so much of my real estate shall be sold as will raise sufficient money to pay the same. I also give, devise and bequeath to my wife Ellisheba all the rest and residue of my real estate, but on her decease, the remainder, if any, I give and devise to my children or their heirs, respectively, to be divided in equal shares between them. I do nominate and appoint my wife Ellisheba to be the sole executrix of my last will and testament.”

After the death of the testator and the proof of the will, the wife claimed to be the owner of the jn-emises in fee, and in the year 1859 she executed a mortgage upon the premises, which was subsequently foreclosed, and under the judgment in the foreclosure suit the property was sold and conveyed to Augustus P. Mange, who thereafter conveyed the premises to the plaintiff. All the foregoing facts are undisputed, but the claim is that the title is infirm and unmerchantable, because the wife of John Francis Flazzelard took a life estate only in the property in question under his will, and his mima- children took a valid remainder.

The court, at the trial of the case at the Special Term, sustained that position and rendered judgment for the defendant, from which the plaintiff has appealed. We find ourselves unable to concur in the conclusion reached by the court at Special Term, and it is important at the outset to observe the terms of the primary devise to the wife of the testator : I also give, devise and bequeath to my wife Ellisheba all the rest and residue of my real estate.” These words constitute a devise to the wife of an absolute fee, and the superadded words, “but on her decease the remainder thereof, if any, I give and devise to my said children,” etc., by a necessary implication, confer a beneficial power of disposition of all the property upon the wife during her lifetime, with a limitation over in the event of her death without an exercise of the power. "Whether the children took anything under the devise over of all the remainder depended upon a contingency not, indeed, expressed, but jfiainly implied from the words “ if any,” and the power of the primary devisee to dispose of the entire estate is implied from the same words of limitation.

The first part of the devise vests the absolute title of the real estate in the wife of the testator ; and where the language of a will indicates a disposition to give the entire interest and use of property to the primary devisee, it will not be curtailed without words which manifest a clear intention to cut it down. (Clark v. Leupp, 88 N. Y., 228; Roseboom v. Roseboom, 81 id., 356.) As, therefore, the devise of the remainder of the real estate of the testator to Iris children was upon the contingency of the death of the wife without having disposed of the property, and as it was the intention of the testator to give his wife an estate in fee in his real property, and the words employed demonstrate such intention, she could sell and convey or incumber the same as an incident and result of her absolute interest therein. This construction of the will renders the same harmonious and effective in all its parts and provisions; but if more was intended for the children than a contingent interest or remainder, then the limitation of the primary devise was inconsistent with the absolute gift to the wife, and, therefore, void.

In this State the earliest discussion of the principles involved here arose from the will of William Alexander, who was a prominent officer in the American army in the Revolutionary War under the name of Lord Sterling. In that will the language was this: “ I give, devise and bequeath all my real and personal estate whatsoever unto my dear wife Sarah, to hold the same to her, her executors, administrators and assigns, but in case of her death without giving, devising or bequeathing by will or otherwise selling or assigning the said estate, or any part thereof, then I do give, devise and bequeath all such estate or all parts thereof as shall so remain unsold, undevised or unbequeathed unto my daughter Lady Catharine Duer, the wife of the Honorable William Duer, Esq., of the State of New York, to hold the same to her, her executors, administrators or assigns.”

Many cases came before our courts requiring the construction of that will, but the questions involved received the most critical and elaborate examination by Chancellor Kent in the Court of Errors, in the case of Jackson v. Robins (16 Johns., 537), and he reached the conclusion, which received the unanimous concurrence of the court, that Lord Sterling intended to give his wife an estate in fee, and, in the course of his exhaustive opinion, he said: “ There is not a case to be found in wlpch a valid executory devise was held to subsist under an absolute power of alienation in the first taker.” The whole subject also received an able and thorough examination by Judge Andrews in the Court of Appeals, in the case of Van Horne v. Campbell (100 N. Y., 287), in an opinion of great length and perspicuity, and his conclusion and the decision of the court was that an absolute power of disposition annexed to a primary devise in fee is deemed conclusive of the existence in the devisee of an absolute estate.

Thus far, therefore, the case is plain, but the examination has been independent of the effect of our Revised Statutes (1 R. S., 725, §§ 32, 33), upon the rule of the common law. Those sections are as follows:

“ Section 32. No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseizin, forfeiture, surrender, merger or otherwise.
Section 33. The last preceding section shall not be construed to prevent an expectant estate from being defeated in any manner or by any act or means which the party creating such estate shall, in the creation thereof, have provided for or authorized, nor shall an expectant estate thus liable to be defeated be, on that ground, adjudged void in its creation.”

At the common law, as we have seen, where an estate was given to a person generally, with a power of disposition, expressed or implied, as in this .case, it invariably carried a fee, and a valid executory devise could not subsist under such- absolute power of alienation; and the effect of these sections of the statute is to modify that rule. Now an expectant estate in lands will not be adjudged void because it may be defeated in any manner provided by the party creating the same, and expectant estates may be created, which may be defeated by any means authorized by the party creating them.

In any case, therefore, where an expectant estate can be lawfully created or devised it will not be adjudged void in its creation because the party creating the estate in doing so or in its creation provided a means or prescribed an event by which it might be defeated. In other words, a valid executory devise may now be made to depend upon the non-execution by the primary devisee of an absolute beneficial power of disposition, vested in him by the will creating the limitation, and, therefore, a valid executory devise may now subsist under an absolute power of alienation in the first taker, and so far the rule of the common law seems to be changed by the statute. (Greyston v. Clark, 41 Hun, 125 ; Terry v. Wiggins, 41 N. Y., 518; S. C., 2 Lans., 275; Bell v. Warn, 4 Hun, 408.) Such change, however, does not affect this case because, under the will in question, the wife of the testator was vested with the power of absolute alienation of the property during her lifetime without restriction in respect to the purposes of such disposition. There was no limitation upon the power of disposition except a limitation of time. So long as it was exercised during the lifetime of the wife its exertion was valid. She might not exercise the power by will, because the testator disposed of the portion remaining at her' decease by giving it to his children. (Flanagan v. Flanagan, 8 Abb. N. C., 413.) Such being the intention of the testator, it must be carried out as well under the statute as at common law.

Our conclusion, therefore, is, that the wife of the testator took a fee in the premises in question under the will of her husband, subject to the condition that the power of disposition should be exerted during her lifetime (Campbell v. Beaumont, 91 N. Y., 464), and that the children took a valid expectant estate liable to be defeated by the exercise of the power of disposition vested in the wife during her lifetime. A power to sell includes a power to mortgage, and the execution of the mortgage by the wife was, therefore, a valid exercise of the power of disposition with which the wife was clothed by the will. The wife was not restricted in the objects and purposes which induced her to execute the mortgage, and she was not required to-account in any way for the proceeds of the incumbrance. There is no claim that the power of disposition was exercised in an improper manner, and we must assume that it was neither wanton nor fraudulent. The title of the plaintiff is made under a regular sale by virtue of the judgment in the action for the foreclosiue of the mortgage so executed by the wife, and we find it valid and free from infirmity. In our view, the title is not doubtful, and the defendant should be required to perform this contract of purchase.

The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment reversed.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. McGRATH, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF WESTCHESTER, Appellant.

      Fees of a constable for the transportation of prisoners convicted of misdemewnors — are a town or city, not a county, charge.

    The fees to which a constable is entitled for conveying prisoners, convicted of a misdemeanor committed in the city of Yonkers, at a Court of Special Sessions held therein, from the city of Yonkers to the Albany penitentiary, are a city charge.

      The People ex rel. Post v. The Supervisors of Ontario (4 Denio, 260) followed;

      The People ex rel. Bancroft v. The Supervisors of Orange (18 Hun, 19) not followed;

      The People ex rel. Van Tassel v. The Supervisors (67 N. Y., 330) distinguished.
    Appeal by the Board of Supervisors of the County of Westchester from an order made at the Dutchess County Special Term, and entered in the office of the clerk of the county of Westchester on the 11th day of March, 1889, granting a peremptory mandamus, on the application of the relator, an assignee of John T. McGrath, the constable of the city and town of Yonkers, against the Board of Supervisors of the County of Westchester, requiring said board to forthwith meet and examine whether to allow three certain bills presented by the relator, as assignee of John T. McGrath, for conveying prisoners, convicted at Courts of Special Sessions in the city of Yonkers, to the Albany penitentiury.

      Odle Close, for the appellant.

      Joseph F. Daly, for the respondent.
   Dykman, J.:

The relator held a bill for constable fees for conveying prisoners from Yonkers to the Albany penitentiary under a conventional arrangement between that institution and the Board of Supervisors of "Westchester County. All persons so transported were convicted by a Court of Special Sessions in Yonkers of misdemeanors perpetrated within the boundaries of that city.

At the annual meeting of the board of supervisors the bill of the relator was presented for audit and allowance, as a county charge, and was rejected by that body. Thereupon an application was made to the Special Term of the Supreme Court for a peremptory writ of mandmnus, which should require the board to audit and allow the bill, and an order was made for the issuance of such writ. The respondent appealed from the order, and so the case comes to us to determine whether the bill in question is a town or county charge, and a satisfactory solution of the question will involve the examination of the statutory provision relating to the subject.

Under the Revised Statutes, the compensation allowed by law to constables for services and expenses in conveying criminals to jail, which are the only services involved in this examination, were county charges (1 R. S., 385, § 3); and that provision of the statute remained unrepealed and undisturbed until the enactment of chapter 180 of the Laws of 1815 ; and section 26 of that act, which pertains to the question before us, was amended by chapter 155 of the Laws of 1817, so as to read as follows: “ All fees and accounts of magistrates and other officers for criminal proceedings, including cases of vagrancy, shall be paid by the several towns or cities wherein the offense shall have been committed, and all accounts rendered for such proceedings shall state where such offense was committed, and the board of supervisors shall assess such fees and accounts upon the several towns or cities designated by such accounts; but when any person shall be bound over to the Oyer and Terminer, or Oourt of Sessions, or committed to jail to await a trial in either of said courts, the costs of the proceedings had before the single magistrate shall bo chargeable upon the towns or cities as aforesaid, and the costs of the proceedings had after the person shall have been so bound over or committed shall be chargeable to the county, but nothing herein contained shall apply to cases of felonies; nor where the proceedings or trial for the offense shall be had before any court of Oyer and Terminer or Oourt of Sessions of the county, and the fines imposed and collected in any such cases shall be credited to such towns or cities respectively. And whenever any criminal warrant or process shall be issned by any magistrate residing out of the town or city wherein the offense shall have been committed, it shall authorize the officer executing the same to carry the person charged with an offense under this act before any magistrate resident and being in the town or city wherein such offense shall have been committed, to be proceeded against according to the provisions of the fifteenth section of this act; but the magistrate issuing such warrant or process shall not lose any jurisdiction over the trial and proceeding against any such persons by reason of anything herein contained, nor shall such magistrate be allowed any compensation for any further proceedings in any such case beyond issuing such warrant or process.”

By the twenty-fifth section of this law of 1847 all laws incon sistent with any provisions of that act were thereby repealed.

By chapter 324 of the Laws of 1875 a previous statute, relating to fees in civil and criminal cases, was amended so as to read as follows:

“ Constables shall hereafter be allowed the fees hereinafter stated for the following services in criminal cases : Bor serving a warrant, seventy-five cents; for every mile traveled, going and returning, ten cents ; for taking a defendant into custody on a mittimus, twenty-five cents ; for every mile traveled in taking a prisoner to jail, going and returning, ten cents; for serving subpoena, twenty-five cents; for every mile traveled in serving subpoena, going and returning, five cents; for notifying a complainant, twenty-five cents; for every mile' traveled in notifying a complainant, five cents, going and returning; for taking charge of a jury, during their deliberations, fifty cents.”

Under the statute of 1847, as we have seen, all the fees enumerated and prescribed, down to this point, are town charges, and that conclusion is rendered irresistible by the remaining portion of the same statute, which is as follows :

“ For attending any court, pursuant to a notice from the sheriff for that purpose, two dollars for each day, and five cents a mile for each mile traveled in going to and returning from such court, which fees shall be chargeable to the county, and shall be paid by the treasurer thereof on the production of the certificate of the clerk, specifying the number of days and distance traveled.”

If all the fees of constables, prescribed in the fore part of this amended statute, were county charges, then a specific provision, making the fees for attending court a county charge, was a work of supererogation.

Chapter 108 of the Laws of 1876 amended certain previous statutes, and, by the second section, it was enacted as follows:

It shall be the duty of the sheriffs, deputy sheriffs, constables or policemen, in and for the several counties of this State, to whom any warrant of commitment for that purpose may be directed by any court or magistrate in this act mentioned, to convey, forthwith, such person so sentenced to the penitentiary referred to in the second section of this act, and there deliver such person to the keeper of such penitentiary, whose duty it shall be to receive such persons so sentenced, during the continuance of said agreement, authorized by the first section, of this act, to be there safely kept and employed, according to the rules and discipline of such peni tentiary; and the officers thus conveying such convicts so sentenced shall be paid such fees and expenses therefor as .the several boards of supervisors of the several counties of this State shall prescribe and allow.”

So far as we can discover, we have now referred to all the statutes relating to the subject under examination. The law of 1847 amended the law of 1845, as we have seen, and repealed the provisions of the Revised Statutes, which made constables’ fees a county charge, because those statutes made all such fees a town charge, and were, therefore, inconsistent with the old statute. The primary provision in section-,26 of chap. 180 of the Laws of 1845, and in the amendment of 1847, is precisely the same, in these words: “All fees and accounts of magistrates and other officers for criminal proceedings * * * shall be paid by the several towns or cities wherein the offense shall have been committed.” Thus the radical change intended to be wrought by the statute was effected in a few words, and the remaining portion of the section is devoted to exceptions and provisions to effectuate the purposes intended to be accomplished thereby, which was to impose the charges for criminal proceedings in local criminal tribunals upon the localities where the offense was perpetrated or the crime committed. For that purpose the statute requires all accounts rendered for such proceedings to state where such offense was committed, to the end that the boards of supervisors shall assess such fees and accounts upon the several towns or cities designated by such accounts. Then follows a discrimination, confirmatory of the design of the legislature to localize the criminal charges, as follows: “ But when any person shall be bound over to the Oyer and Terminer or Court of Sessions, or committed to jail to await a trial in either of said courts, the costs of the proceeding had before the single magistrate shall be chargeable upon the towns or cities as aforesaid, and the costs of the proceedings had, after the person shall have been so bound over or committed, shall be chargeable to the county.” After that follows an exception which renders the entire section inapplicable to the cases of felonies or proceedings or trials for the offense before any Court of Oyer and Terminer or Court of Sessions of the county. Then, still pursuing the same purpose, it is provided that whenever any criminal process shall be issued by a magistrate residing out of the town or city wherein the offense was committed, it shall authorize the officer executing the same to carry the accused person before any magistrate in the town or city wherein the offense was committed, to be proceeded against according to the provisions of section 15 of the Laws of 1845, which had relation entirely to the organization of Courts of Special Sessions. A non-resident magistrate issuing the process did not lose jurisdiction of the ease, however, by reason of the last requirement, but he could not be allowed any compensation beyond the issuance of the process.

Thus the primary purpose and the design of the legislature to localize the expenses of criminal proceedings is easily traced through all the provisions of this section of the statute of 1847. No intention of the legislature to repeal that statute, or interfere with any of its provisions in any way, can be discovered in any of the subsequent statutes. Under the last clause of section 2 of chapter 108 of the Laws of 1876, as we have seen, the officers conveying convicts to the penitentiary are to be paid such fees and expenses therefor as the several boards of supervisors of the several counties of this State shall prescribe and allow, but this statute is neither repugnant to nor inconsistent with the statute of 1847, and both may operate harmoniously, and be allowed full force and effect. The commitment and transportation of prisoners to the penitentiary direct in the first instance was permitted by the law of 1876, for the first time in the history of this State, and as no rate of fees or expenses was fixed by statute, the legislature delegated the power to prescribe such fees and expenses to the boards of supervisors of the several counties, and gave the officers such fees and expenses as such boards should dictate, without reference to the source from whence the officers should receive them. Repeals of statute by implication are disfavored by the law, and never allowed except in cases of repugnancies or inconsistencies, and these statutes, construed together, clothed the boards of supervisors with power to fix the fees and expenses to be allowed to executive officers for conveying prisoners to the penitentiary, and, when so fixed, the charges are to be paid by the town or city wherein the offense was committed.

As we have seen, the first part and primary provision of the twenty-sixth section of the law of 1845 (chap. 180), and the law is the same as the first part of the amended section in the law of 1847, and section 26 of the law of 1845 received a construction in the old Supreme Court, in the case of People ex rel. Post v. Supervisors of Ontario (4 Denio, 260); and Chief Justice Bronson, in delivering the opinion of the court in that case, said: The fees and accounts of magistrates and other officers for criminal proceedings of every hind are a charge upon the town where the offense was committed, except in the following cases: 1. Where the proceed-

ings are not had within the county in which the offense was committed. 2. Where the proceedings are for felonies, and, 8. Where the proceedings or trial for the offense shall be had before any Court of Oyer and Terminer or General Sessions.”

The case of the People ex rel. Bancroft v. The Supervisors of Orange County (18 Iiun, 19) was decided under the provisions of the Revised Statutes, and no reference was made to any subsequent legislative enactments. The case was, therefore, not well considered, and cannot have any force as an authority here. The case of the People ex rel. Van Tassel v. Supervisors (67 N. Y., 330) bears no analogy and has no application to this case. That was the case of a sheriff’s bill for receiving, boarding and discharging prisoners.

The only part of section 26 of chapter 180 of the Laws of 1845, as amended by chapter 455 of the Laws of 1847, which received any attention or consideration in that case was the portion which provided that the costs of the proceedings had after the person shall have been so bound over or committed shall be chargeable to the county. The bill in that case was held to be a county charge under the Revised Statutes, which require the jail keepers to receive and keep any person committed to their custody, and provide them with food at the expense of the county, and make the compensation of sheriffs for commitments and discharges of prisoners a county charge. (1 R. S., 385.)

Judge Church, in his opinion in that case, says: “We think that the language of the act of 1847, above quoted, ‘ all fees and accounts of magistrates and other officers for criminal proceedings,’ does not include the fees of the sheriff as jailer of the county. The legislature intended that the fees of magistrates and other local officers for costs in preliminary criminal proceedings, in cases under the grade of felony, should be a town charge.”

This examination discloses no intention of the legislature to repeal or interfere with the statute of 1847, and under that law all fees and accounts of magistrates and other officers for criminal proceedings, down to the time of the delivery of the prisoner to the keeper of the jail or penitentiary, are charges against the town within which the offense with which they are charged was committed.

The order appealed from is, therefore, erroneous and should be reversed, with ten dollars costs and disbursements.

Pratt, J., concurred; Barnard P. J., not sitting.

Order reversed, with den dollars costs and disbursements.


author: Dykman, J. :

text:
    ROSA OTTMAN, Appellant, v. JOHN GRIFFIN and FERDINAND GARNJOST, Respondents.

      Bill of pa/rtiaula/rs — what statements can be required by the cowt.

    In an action, brought to recover possession of six lady masquerade suits, which, it was alleged, were wrongfully detained by the defendants, the plaintiff was required to serve upon the defendants “ a bill of particulars, giving the number, description and value of the articles which she sues to recover, and the names of the persons to whom the same were delivered, and, as fully as she may be able, the residence of each such person, and, as to each such matter as she shall not be able so to state, she must state, in writing, that she does not know, and never did know, and why she has not now the knowledge.”

      Held, that the plaintiff should not have been required to specify, in such bill of particulars, anything further than the number, description and value of the articles which she sought to recover, and that all the other requirements above specified should be stricken out of the order requiring such bill of particulars to be furnished.
    Appeal by tlie plaintiff from an order of the City Court of Yonkers, requiring tire plaintiff to serve “ a bill of particular’s, giving tbe number, description and value of the articles which she sues to recover, and the names of the persons to whom the same were delivered, and, as fully as she may be able, the residence of each such person, and, as to each such matter as she shall not be able so to state, she must state, in writing, that she does not know, and never did know, and why she has not now the knowledge.”
    The action was brought by the plaintiff, as sole lessee thereof, to recover the possession of six lady masquerade suits, of the price and value of $300, which, it is alleged in the complaint, were leased and hired by the plaintiff for the use and benefit of the defendants, on the express agreement the same should be returned by plaintiff on February 22, 1889, or the value thereof, with damages paid for their detention.
    The defendants denied any knowledge or information sufficient to form a belief that the plaintiff is the sole lessee, and entitled to the immediate possession of six lady masquerade suits; denied that said suits were leased to them, or leased or hired by the plaintiff for their use and benefit, on the express agreement that the same should be returned by plaintiff on February 22, 1889, or the value thereof, with damages paid for their detention.

      Walter J. Donohue, for the appellant.

      Arthur J. Burns, for the respondents.
   Dykman, J. :

This is an appeal from an order of the City Court of Yonkers, requiring the plaintiff to furnish a bill of particulars, and we think the order requires too much. It is the office of a bill of particulars to specify the items of the claim set up in a pleading and apprise the opposite party of the particulars of the claim. But a party cannot be required to furnish the evidence by which his claim is to be established upon the trial.

The defendants can require no more in this action than the number, description and value of the articles which the plaintiff seeks to recover. All the other requirements of the order should be stricken out, and as so modified the order should be affirmed, without costs to either party on this appeal.

Barnard, P. J., and Pratt, J., concurred.

Order for bill of particulars modified by limiting it to the number, description and. values of the articles claimed.


author: Pratt, J.:

text:
    HENRY T. McCOUN, Jr., Appellant, v. WILLIAM SPERB, Jr., Respondent, Impleaded with Others.

      Administrators’ bond, — surety upon —right to compel an honest administs-ator to malee good the loss caused by the dishonesty of his co-administrator.

    The surety upon a bond given by two administrators can call upon either principal for indemnity, although this may have the effect of rendering one administrator liable for the torts of his co-administrator.

      Nanz v. Oakley (37 Hun, 495) followed.
    Appeal by the plaintiff from a judgment rendered at the Orange County Circuit, upon a decision by the court without a jury, and entered in the office of the clerk of that county on the 15th day of February, 1889, dismissing the plaintiff’s complaint upon the merits.
    The action was brought by the surety, Henry T. McCoun, Jr., upon an administrator’s bond given by the defendants, as administrators of the goods, chattels and credits of Gilbert Dunspaugh, deceased, to recover an amount which the surety had been obliged to pay, in an action brought against him and his co-surety, because of the failure of one of the administrators to pay over, out of the assets of the estate in his hands, the sum which he had been directed to pay by the surrogate of the county of Queens, in whose county said letters of administration had been issued.

      Arnold & Greene, for the appellant.

      William H. Arnoux and Edward Marshall Grout, for the respondent.
   Pratt, J.:

The case of Nanz v. Oakley (37 Hun, 495) is a distinct authority for the plaintiff in this action. The Court of Appeals, in Sperb v. McCoun (110 N. Y., 605), call attention to the fact that Nanz v. Oakley was, in effect, prosecuted for the individual benefit of the administrator, who was the only heir-at-law and next of kin, and appear to approve the decision upon that ground. They certainly express no disapproval of the result arrived at by the Supreme Court, and we cannot well believe, as is stated in respondent’s points, that, on the publication of the decision of the Court of Appeals in Sperb v. McCoun, Nanz abandoned his appeal.

The authorities cited from other States seem to concur to the effect that the surety on an administration bond can call upon either principal for indemnity. And, in view of the implied approval by the Court of Appeals of Nanz v. Oakley, as distinguished and limited by them, we are of opinion that we must be bound by its authority. This leads to a reversal of the judgment appealed from.

Ye clearly see that, in effect, this renders an administrator liable for the torts of his co-administrator. But we do not see how this result can be avoided unless the legislature intervenes, as has been done in Massachusetts, and permits separate bonds to be filed by the administrators.

The judgment is reversed, new trial ordered, costs to abide event.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment reversed, new trial ordered, costs to abide event.


text:
    HUGH FLYNN, Respondent, v. J. MONROE TAYLOR, Appellant.

      Obstruction of a sidewalk by the constant receipt and, dischao'ge of merchandise — right of an adjoining owner to prevent such use of the street.

    The owner and occupant of a piece of ground abutting upon a street in a city is entitled to have the street and sidewalk kept clear of all obstructions, except such as are reasonable and necessary under all the circumstances of the case. An owner of land abutting upon a city street has not a right to keep his horses and wagons upon the sidewalk in front of his premises during the greater portion of the day, and thus compel the adjoining owners, and all others having occasion to use the sidewalk, to turn out into the street in order to get around such obstruction.
    Appeal by tbe defendant from a judgment rendered at tbe Kings County Special Term, and entered in the office of tbe clerk of that county on tbe 28th day of November, 1888, by wbicb tbe defendant, bis agents, servants and employees were enjoined from unnecessarily or unreasonably obstructing tbe sidewalk on tbe southerly side of Second street, in tbe city of Brooklyn, in front of tbe defendant’s factory.
    It appeared upon the trial tbat tbe defendant occupied at tbat time, and had for several years prior thereto occupied, a plot of ground on tbe southerly side of Saekett street, in tbe city of Brooklyn, between Yan Brunt street and Ferry place, having about. 140 feet frontage upon tbe street, on wbicb there was a large factory; tbat defendant had erected in tbe street, in front of bis factory, a platform, about ninety feet long and two feet ten inches in height, projecting into tbe street across tbe sidewalk about four feet and eight inches, and bad maintained tbe same there for several years; that defendant used said platform for tbe purpose of loading and unloading merchandise therefrom and thereon, and bad been for several years past in tbe habit of keeping bis wagons for several borfrs each day, during such loading and unloading, standing upon so much of tbe sidewalk adjoining said premises as said platform did not cover. He also maintained a platform scales in tbe street, upon tbe sidewalk, in front of said building.
    Tbe plaintiff owned and occupied, and bad since September, 1884, owned and occupied, a building and lot on tbe same side of tbe street, about sixty feet west of the defendant’s premises, where he carried on the retail liquor business.
    The court found that the use of the sidewalk, as above stated, by the defendant, unnecessarily and unreasonably interrupted and interfered with the passage of the public along the same, and that the plaintiff had sustained damage by reason of such use thereof.

      De Witt C. Brown, for the appellant.

      Josiah T. Marean, for the respondent.
   Pratt, J.:

The court below found, 'as matters of fact, that the defendant for several years unnecessarily and unreasonably interrupted and interfered with public travel upon the street and sidewalk in question, and that the plaintiff was specially damaged thereby, and these conclusions are sustained by the proofs. The plaintiff has a clear right to have the street and sidewalk clear of all obstructions, except such as are reasonable and necessary under all the circumstances. It is not reasonable that during a greater portion of the day the defendant should keep his horses and wagons upon the sidewalk, and thus make the plaintiff and all others having occasion to use the walk turn out upon the street in order to get around such obstruction The plaintiff is injured by having so to turn out .in going to and from his place of business. Again, his place of business is so near to this place that it may well be inferred that custom may be diverted from his place by the inconvenience of his customers in having to pass such obstructions. In a case of such a glaring public nuisance it is not essential to prove great damage to warrant its abatement, but slight special injury is sufficient to give a plaintiff standing in court for redress. (Callanan v. Gilman, 101 N. Y., 360.)

The judgment is affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


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    THE CONEY ISLAND AND BROOKLYN RAILROAD COMPANY, Respondent, v. THE BROOKLYN CABLE COMPANY, Appellant, Impleaded with THE BROOKLYN CROSS-TOWN RAILROAD COMPANY.

      Lease of railroad tracks — it confers no right upon the lessee to authorize other roads to use the tracks in common with itself.

    The Coney Island and Brooklyn Railroad Company and the Park Avenue Railroad Company entered into an agreement, in writing, whereby the former agreed that the latter company and its assigns might use one track of the Coney Island and Brooklyn Railroad Company on certain specified terms and conditions. The Park Avenue Railroad Company thereafter consolidated with the Greenwood and Coney Island Railroad Company, forming the Prospect. Park and Coney Island Railroad Company, and subsequently this corporation sold its horse railroad routes in Brooklyn to the Atlantic Avenue Railroad Company, and the latter company thereafter assumed to assign to two parties the right to use, jointly with the Atlantic Avenue Railroad Company, the tracks which had been so leased by the Coney Island and Brooklyn Railroad, and, under a transfer of the right so assigned, the Brooklyn Cable Company was engaged in running its cars over such tracks.
    In an action, brought to restrain the further use of these tracks by the Brooklyn Cable Company:

      Held, that the agreement of the Coney Island and Brooklyn Railroad Company was a mere license or privilege for hire; that the word “assigns,” which was used in such agreement, was intended to cover the case of the Park Avenue Railroad selling out all its franchises, so that its assigns would succeed to its routes under the agreement, but was not intended to give a right to the Park Avenue Railroad to sublet or to convey a privilege to other parties to use the tracks while the Park Avenue Road also made use of them.
    Appeal by the defendant, the Brooklyn Cable Company, from a judgment rendered at the Kings County Special Term, in favor of the plaintiff, and entered in the office of the clerk of that county on the 26th day of June, 1888.
    The action was brought to restrain the further use of certain railroad tracks, owned by the plaintiff, by the defendants, who claimed to exercise such right under a lease executed by the plaintiff to the Park Avenue Railroad Company.

      James C. Church, for the appellant.

      William G. De Witt and William W. Dykman, for the respondent.
   Pratt, J.:

Nothing need be added to the able opinion of the learned judge who tried this case. All the facts are therein' fully stated, and we concur in the law therein expressed.

This General Term, in February last, passed upon a case in many respects similar to this, in which it was held that under such a contract the party hiring a right to run upon the tracks of another railroad could keep the right or part with it by assignment, but it could not retain the right itself and multiply the beneficiaries.' The contract here is a mere license or privilege for hire. It is not a lease conveying an interest in the realty, but an agreement containing mutual stipulations in the nature of a license. It is clear the intent was to permit the first licensee to run its cars over the tracks mentioned. Had it been designed to cover any more than such a privilege other terms would have been used to indicate such an intention. It seems unreasonable to say that such an agreement can be divided up into a large number of parts so as to increase the use of the tracks many fold and still the compensation remain at the same fixed price. Again, the covenants in the agreement about time tables indicate that but one party was intended to use the road under the agreement. The word assigns was used in the agreement to coyer the case of the Park Avenue Railroad selling out all its franchises so that its assignees would succeed to its rights under the agreement. It was not used in the sense of giving a right to sub-let or to convey a privilege to other parties to use the track while the Park Avenue Road retained the right to use them. But it is claimed by defendants that the Park Avenue Railroad Company and its assignees acquired other franchises, and that the agreement must be held to extend to them while in use by the Park Avenue Company, and that it was competent for them to lease or convey such franchises and that such conveyance carried the right to run cars under said agreement, but this contention not only contains the vice of splitting and multiplying the privilege contained in the agreement among different owners, but it is inconsistent with the statute conferring the franchise. Section 2 of act of 1874 (chap. 448), which provides “ that in the operation or use of such railroad upon the route or routes herein designated” the company may use tracks already laid, but must agree with the owner or have compensation fixed by commissioners. ' It seems plain that the existing agreement did not extend to cover such newly-acquired franchise. Neither, for the same reason, can it be successfully claimed that the agreement became appurtenant to the franchise granted to the Park Avenue Railroad by chapter 448 of Laws of 1874. The agreement was made to fit the existing circumstances and it could not be made to cover material changes not provided for in its terms, or within the intent of the parties at the time it was made. The question is not whether a corporation can sell or assign its franchises, but whether the agreement in question became vested in the defendant so that it can enforce it against the plaintiff. As we have before stated, this agreement was not a lease, and is, therefore, not a subject of sub-letting to different parties to be conjointly used with the original parties.

Judgment is affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


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    DENIS MURPHY, Appellant, v. THE BOARD OF EDUCATION IN THE CITY OF YONKERS, Respondent.

      Duty of an appellant to ham a case on appeal state that it contains all the evidence.

    It is the duty of an appellant who intends to review, upon appeal, the findings of fact in the court below, to put in the case a statement that all the evidence upon which those fabts depend is returned.
    The service of a proposed case, containing no such statement, is equivalent to saying to the respondent that only questions of law are to be taken up for consideration on the appeal. This rule is so well established that the respondent has a right to rely upon its enforcement by the court.
    Appeal by the plaintiff from a judgment rendered at the Westchester County Special Term, and entered in the office of the clerk of the county of Weschester on the 24th day of September, 1888, for the sum of $732 in favor of the plaintiff and against the defendant.
    The action was brought to recover upon a contract, by which the plaintiff agreed to construct a building for the defendant, and upon wliich he claimed that there remained due and unpaid to him the sum of $3,527.

      John F. Brennan, for the appellant.

      J. Hampden Dougherty, for the respondent.
   Pratt, J.:

The testimony is conflicting, and the trial judge is much better fitted to determine what weight to give the differing statements than a tribunal that has not seen the witnesses possibly can be.

It must also be remarked that the case does not show that all the testimony given below has been put before this court. Por that reason we cannot review the facts. It is the duty of an appellant who intends to call the conclusions of fact in question to put in the case a statement that all the evidence is returned upon which those facts depend. If the case contains no such statement, it is equal to saying to the respondent that only questions of law are to be taken up on appeal. (See Howlamd v. Howland, 20 Hun, 472 ; Spence v. Chambers, 39 id., 193; Porter v. Smith, 107 N. Y., 531.) This rule is so well established that a respondent may properly rely upon it. And after a case has been made in a manner appro priate only for the review of questions of law, to reverse a judgment upon the facts would be an injustice to the respondent who has a right to rely upon the court enforcing the rules it has announced for the guidance of litigants. We have examined the exceptions and find none that require the judgment to be interfered with.

It must, therefore, be affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


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    SAMUEL C. BROOKS, Appellant, v. MICHAEL K. WILSON, ELIZABETH A. MUNOZ, Individually and as Administratrix, etc., and Others, Respondents.

      Fraudulent conveyance — mortgage given by the fraudulent grantee to secure a valid debt of his grantor, valid — a judgment good against the debtor is conclusive against his creditors —priority of rights of judgment-creditors in property fraudulently disposed of by the debtor — declarations, as evidence.

    Where an insolvent debtor, with intent to hinder, delay and defraud his creditors, has conveyed his property, and the fraudulent grantee, at his request, for the purpose of securing a valid indebtedness of the insolvent debtor to a third person, executes a mortgage upon such property to such third person, such mortgage constitutes a just appropriation of the property of the insolvent debtor to the payment of his debt, and the mortgagee becomes, in judgment of law, a bona fide purchaser.
    A judgment obtained without fraud or collusion, and which concludes the debtor, whether rendered upon default, confession or after contest, is, upon all questions affecting title to the debtor’s property, conclusive evidence against "his creditors to establish, first, the relation of creditor and debtor, between the parties to the record, and, second, the amount of the indebtedness.

      Munoz v. Wilson (111 N. Y., 295) followed.
    There is no rule which requires a creditor, in order to establish his claim, to make all other creditors of tlje common debtor parties to an action brought for its recovery.
    Where property has been fraudulently transferred by an insolvent debtor with intent to defraud his creditors, and judgment-creditors of the debtor bring successive actions to set aside the fraudulent conveyance, they will acquire priority of right in the property so fraudulently transferred; not in the order of the date of the docketing of their respective judgments, but in that of the commencement of the actions for their enforcement against the property fraudulently conveyed.
    Effect cannot be given to the statute avoiding fraudulent conveyances, unless the creditor obtains an adjudication establishing the fraud and compelling the application of the property fraudulently conveyed to the payment of his debt.
    A creditor may cause the property to be sold on execution, but he cannot recover possession from the fraudulent grantee, or from any one claiming under him, except by means of a judgment establishing the fraud; the fraudulent conveyance being effectual between the parties to it, the mere right to have the conveyance annulled does not, per se, avoid it or make the property that “ which the judgment-debtor has ” in any sense.

      Miller v. Sherry (2 Wall., 249) followed.
    Under the most favorable circumstances, the declarations of a party to a transaction, made without any apparent motive or object, to a stranger, who has no interest in or relation to the matter, are regarded by the courts with distrust, and as being the lowest and most unreliable species of evidence.

      Appeal by tbe plaintiff from a judgment rendered at a Special Term of the Supreme Court held in and for the county of Kings and entered in the office of the clerk of that county on the 29th day of March, 1889, dismissing the plaintiff’s complaint and dissolving the preliminary injunctions theretofore granted in the above-entitled action. •
    The action was brought to have certain conveyances made by Michael K. Wilson to George Wilson declared to have been made with the intent to hinder, delay and defraud the creditors of said Michael K. Wilson and to be fraudulent and void; that the plaintiff be adjudged to be entitled to the payment to him of the amount of a certain judgment recovered against the said Michael K. Wilson out of the proceeds arising from the sale of said real estate upon the foreclosure of certain mortgages which were upon said premises at the time of said conveyance, which proceeds of sale had been deposited with the county treasurer of Kings county, and that such judgment, until paid, be declared to be a lien upon said proceeds of sale, and that the defendants, and each of them, be enjoined from taking any proceedings to obtain the payment of any of such surplus moneys from the county treasurer until the payment of the amount due to the plaintiff upon said judgment.
    The court found that Michael K. Wilson, the debtor, conveyed the premises in question to George Wilson, his nephew, with intent to hinder and defraud the creditors of the former. That the said George Wilson executed and delivered to Elizabeth Jane Clay a mortgage upon the premises to secure an indebtedness owing by the •said Michael K. Wilson to said Elizabeth Jane Clay. And, as conclusion of law, that such mortgage was superior to any lien or charge existing under and by virtue of the judgment against said Michael K. Wilson sought to be enforced by the plaintiff against said proceeds of sale.

      A. W. Gleason, for the appellant.

      William T. Gilbert, for the respondent Munoz.
   Pratt, J.:

We are unable to discover any error in the disposition of this case at Special Term. The findings of fact are amply sustained by the evidence, irrespective of the judgment record put in evidence by the defendant. It is not disputed' that the conveyance from Michael K. Wilson to his 'nephew George Wilson, and that from said George to Eliza A., wife of said Michael K., were made with intent to hinder, delay and defraud the creditors of said Michael K., or that the mortgage held by the respondent, Mrs. Munoz, was made by said George at the request of said Michael K. for the ostensible purpose of providing for the payment of the indebtedness of Michael K. to the mortgagee, which the mortgagee thereby assumed and covenanted to pay. The mortgage recites such indebtedness and contains an express covenant to pay the same. The legal effect of such a transaction is not open to discussion. The mortgage having been made by the fraudulent grantee at the request of the fraudulent grantor, for the purpose of securing the indebtedness of the latter to the mortgagee, it was a just appropriation of the property of such grantor to the payment of his debt, and the mortgagee became, in judgment of law, a bona ficle purchaser. The right of creditors to have the fraudulent conveyance of Michael K. set aside, to the predjudice of the mortgagee, was cut off, and the mortgagee is entitled to the same measure of protection as would have been afforded if the mortgage had been made by the fraudulent grantor before he made his fraudulent conveyance. (Seymour v. Wilson, 19 N. Y, 421; Murphy v. Briggs, 89 id., 446; Munoz v. Wilson, 111 id., 295; Ledyard v. Butler, 9 Paige, 132; Davis v. Graves, 29 Barb., 480; Pom. Eq. Jur., § 777, and cases cited.)

It is urged that the mortgage was never, in fact, delivered. This question was fully considered on the appeals from the judgment for the foreclosure of the mortgage in question. (Munoz v. Wilson, 111 N. Y., 295.) It was held in that case by this court, and by the Court of Appeals upon substantially the same facts as are presented on this appeal, that the mortgage was duly and effectually delivered; that the acts which constituted the delivery having been done for the benefit of the mortgagee and being beneficial to her, her assent thereto must be presumed, and that her administratrix, the respondent Mrs. Munoz, might, if necessary, ratify and affirm such acts, there being no intervening rights of creditors entitled to protection against the effect of such ratification. No right of the plaintiff intervened to prevent the respondent Munoz from exercising her right to ratify the making and delivery of the mortgage. The acts which constitute the delivery were completed, and the mortgage was recorded, upon well settled principles, therefore the mortgage would have priority even if it appeared that the act of ratification occurred after the recovery of the judgment. A judgment being a general lien is subject to every equity which existed againt the real property of the judgment-debtor, where the judgment was docketed. (In re Howe, 1 Paige 125 ; Arnold v. Patrick, 6 id., 310; Chase v. Peck, 21 N. Y., 581; Cook 409; Wharton’s Maxims, 67.)

The case of Foster v. Beardsley Scythe Company(47 Barb., 505), cited by the appellant, is not in conflict with these cases. The court there held merely that a deed executed but not delivered, until after another conveyance had been made and actually delivered to a bona fide purchaser, could not be made effectual so as to give it priority over the deed first delivered by reason of the grantee having ratified the inchoate acts which were held insufficient to constitute a delivery. Upon this question of the delivery of the mortgage the case of Munoz v. Wilson (supra) is decisive, and renders further discussion of the subject superfluous. (Messelbach v. Norman, 16 Hun, 414.)

It is also insisted that the mortgage is devoid of consideration. The case of the plaintiff, on this point, rests upon the testimony of Michael K. and George Wilson and one Litchault. We are of opinion that the testimony of the Wilsons should have been disregarded, for the reason that they were excluded by section 829 of the Code of Civil Procedure as witnesses to any personal transactions with the deceased mortgagee. They were parties to the action and interested in the event thereof — George to annihilate the covenant to pay the mortgage and Michael K. to obtain the surplus, and thus to discharge the plaintiff’s judgment against him. (Redfield v. Redfield, 110 N. Y., 671; Miller v. Montgomery, 78 id., 282; Holcomb v. Holcomb, 95 id., 324; Smith v. Cross, 90 id., 549; Pope v. Allen, id., 298.) The suggestion that their interest was balanced is unfounded. If Michael’s indebtedness to the mortgagee was not paid by the mortgage, it is barred by the statute of limitations. George is indebted solely upon the mortgage. The plaintiff’s judgment is not against him, nor is the mortgage against Michael. In Wilson v. Munoz the above facts were not shown. The case, therefore, is inapplicable. The credibility of the Wilsons, too, was impeached by the fact that they participated in a scheme to cheat certain creditors. Their testimony was given for the purpose of invalidating the claim of another creditor. They were interested. Their manner and appearance on the stand may also have impeached their credibility. We are of opinion that the trial court would have been justified in rejecting their testimony altogether. With respect to the testimony of Litchault, the trial court was warranted in attaching little weight to his statements so far as those statements represented Mrs. Clay’s declarations to him as referring to pecuniary transactions between her and Michael K. Wilson, they are exposed to grave suspicion. He did not at first so characterize them. It was only after the plaintiff’s counsel had put the word “money” into his question that any reference by Mrs. Clay to money or business appeared. His subsequent addition of the statement that Mrs. Clay told him that she held mortgages of Michael K. Wilson, and then again that she held the particular mortgage in question, specifying the amount of it, for safe-keeping, and his statement of the amount of her personal property, justly arouse suspicion as to the truth of his story. It may not be improbable that Mrs. Clay had used language in conversations with this witness expressive of obligations to Mr. Wilson for acts of personal kindness to her, hut the relations which the witness testified existed between Mrs. Olay and himself preclude a belief that she made him her confidant in respect to her business affairs. Some of Mrs. Clay’s declarations, according to his testimony, were made five or six years before the mortgage in question was executed. The date of the others was left in uncertainty. There does not appear to have been any reason or motive for the making of any of them. Observation of the examination of the witness, and his manner of testifying, also formed proper elements of judgment as to the degree of credibility to be given to his testimony. Under the most favorable circumstances, loose declarations of a party to a transaction, made without any apparent motive or object to a stranger who has no interest in or relation to the matter ¿ have been uniformly regarded by courts with distrust, and as being, at best, the lowest and most unreliable species of evidence. In the case before us the conversations which the witness related occurred, if they ever occurred, more than ten years before the trial, for Mrs. Clay had been dead during that period. Those conversations are wholly inconsistent with the written evidence, with the conduct and statements of Michael K. Wilson in his overtures to Mrs. Munoz to obtain a satisfaction-piece of the mortgage, and with his declarations to the witness Kimball. It is taxing the credulity of an appellate court too much to ask that full evidence be given to such testimony.

Upon a consideration of all the oral evidence in the case, therefore, we are of opinion that the findings of fact and the judgment are amply warranted by that evidence alone.

The judgment in the case of Munoz v. Wilson (supra), is conclusive upon all the questions here involved affecting the validity of the mortgage in controversy. That principle was declared in Candee v. Lord (2 N. Y., 269), where the Court of Appeals unanimously held that “ a judgment obtained without fraud or collusion, and which concludes the debtor, whether rendered upon default, confession or after contestation, is, upon all questions affecting the title to his property, conclusive eiddence against his creditors to establish, first, the relation of creditor and debtor between the parties to the record; and, second, the amount of the indebtedness.” This case has been followed in numerous instances and under a great variety of circumstances, and has never, to my knowledge, been questioned. (Hall v. Stryker, 27 N. Y., 596; Burgess v. Simonson, 45 id., 225; Pray v. Hegeman, 98 id., 351; Carpenter v. Osborn, 102 id., 552; Decker v. Decker, 108 id., 128 ; Stout v. Lye, 103 U. S., 66.)

The rule thus established is founded in manifest reason and necessity, and, on grounds of public policy, ought to be firmly tqiheld. It has not been suggested, nor does the case afford any basis for the suggestion, that any fraud or collusion was practiced in procuring that judgment. Nor does the principle asserted conflict with the rule that parties and privies only are bound by a judgment, for creditors can claim the property of their debtor only through him. They are, therefore, in privity of estate with him whenever his property is subjected to the payment of their debts. A rule that would require a creditor to make all tbe other creditors of the common debtor parties to an action to recover the debt would be palpably unjust, for compliance with it would be utterly impracticable. The judgment in Munoz v. Wilson has a two-fold operation; first, to establish the validity of the mortgage, and, second, to bar the parties to the action and subsequent grantees and incumbrancers from all claims upon or interest in the land. The plaintiff’s judgment is junior to the mortgage held by Mrs. Munoz. The validity of and the amounts due upon that mortgage having been established by the judgment in Munoz v. Wilson, and the surplus which arose upon the sale of the mortgaged premises on the foreclosure of prior mortgages being insufficient to satisfy the mortgage held by Mrs. Munoz, it is, perhaps, immaterial to inquire whether that judgment was a bar to the claim of the plaintiff to a hen on the mortgaged premises by virtue of his judgment. If the docketing of that judgment made it a hen on the mortgaged premises, is is clear that he was not barred by the judgment in Mumoz v. Wilson, because the action in which that judgment was obtained was not commenced until after the plaintiff’s judgment was docketed, and the plaintiff’s assignor was not a party thereto. That fact, however, does not impair the effect of the judgment obtained by Munoz, according to the rule in Candee v. Lord (supra). We are of opinion that no hen on the mortgaged premises or upon the surplus by virtue of the plaintiff’s judgment was acquired until this action was commenced. The lien of a judgment is given by statute only. It does not exist in cases not provided for by the statute creating it. (Buchan v. Sumner, 2 Barb. Ch., 165.) This case is governed by section 1251 of the Code of Civil Procedure, which gives a hen on the “ real property which the jrodgment-débtor has.” With what propriety can it be said that a judgment debtor “ has ” property which he has conveyed away? It is claimed that the statute which avoids conveyances made with intent to defraud creditors, rendered the conveyance of Michael K. Wilson, a judgment-debtor, a nullity as respects his creditors; and, therefore, that judgments against him become hens on the property conveyed, as if no conveyance had been made. The answer to this argument is that the fraudulent conveyance is not void, but is voidable only, at the election of creditors defrauded. (Anderson v. Roberts, 18 Johns, 516; Harvey v. Varney, 98 Mass., 120; Waite’s Fraud. Conv., §§ 395-445.)

The fraudulent grantee can transfer the title to the property conveyed, to a bona fide purchaser, notwithstanding outstanding judgments against the fraudulent grantor, docketed before the transfer, and creditors in successful actions to set aside the fraudulent conveyance have priority, not in the order of the date of the docketing of their respective judgments, but in that of the commencement of the actions. These well-established rules are inconsistent with the argument referred to, as between the fraudulent grantor and fraudulent grantee the conveyance is perfectly valid and effectual. Effect cannot be given to the statute avoiding fraudulent conveyances, unless the creditor defrauded obtains an adjudication establishing the fraud, and compelling an applicalion of the property fraudulently conveyed .to the payment of his debt. He may, it is true, cause the property to be sold on execution, but he cannot recover possession from the fraudulent grantee, or from anyone claiming under him, except by means of a judgment establishing the fraud. The creditor defrauded has a right of election to bring an action to have the fraudulent conveyance annulled, or to abstain from a contest respecting its validity, and so, by implication, to affirm its validity. But, if he should elect to bring an action to have the conveyance annulled, a judgment in his favor would not reinvest the fraudulent grantor with the title to the property fraudulently conveyed, but would merely divest the fraudulent grantee of his title to so much of the property as should be sufficient to satisfy the judgment against the fraudulent grantor. The fraudulent conveyance, being effectual between the parties to it, the right to have the conveyance annulled does not, per se, avoid it, or make the property that “ which, the judgment-debtor has,” in any sense, popular or legal.

I can find no decision in this State directly on this point. There are cases in which judgments against fraudulent grantors, recovered after conveyances by them, are mentioned incidentally as liens, but in all the cases that have come under my observation, such expressions were used only to denote priority of equitable rights. None of them can be treated as expressions of opinion, much less as adjudications of the question here discussed. The Supreme Court of the United States, however, has decided the precise point. In Miller v. Sherry (2 Wall., 249), which involved the question under consideration, the court said: “ The judgment obtained by Mills & Bliss was the elder one, but it was subsequent to the conveyance from Miller (the debtor and fraudulent grantor) to Williams. It is not contended that the judgment was a lien on the premises. The legal title having passed from the judgment-debtor before its rendition, by a deed valid as between him and his grantee, it could not have that effect by operation of law.” We concur in that decision.

The foregoing remanes, if correct, dispose of all of the plaintiff’s exceptions.

The judgment is affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


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    In the Matter of the Summary Investigation of the Financial Affairs of the TOWN OF EASTCHESTEP

      Petition and form of order proper under chapter 307 of 1879.
    A petition, signed by twenty-five freeholders of the town of Eastchester, alleged that they had paid taxes on such real estate in said town within one year, and that they had cause to believe that the moneys of such town were being unlawfully or corruptly expended; that the bills for town government, audited by the town auditor, were enormously large and out of proportion to the expense of governing any other town in the county, and that they had reason'to believe that the same were either wholly or in part fraudulent, unjust and corrupt, that unless such action should be restrained by the court such bills would be paid, and prayed for a summary investigation.
    To this petition, which was duly verified by the several freeholders, was attached an abstract of the accounts audited by the board of town auditors of the town of Eastchester, at their annual session preceding the date of the verification of the petition.

      Held, that the petition was in due form and contained all the allegations necessary to set the machinery, provided by chapter 307 of the Laws of 1879, in motion.
    That the fact that the petitioners had other remedies afforded them, by which to prevent the waste of the public moneys, was not a ground of objection to the present proceeding.

      That the fact that the bills in question had been examined and audited by the town board did not give them any validity, if fraudulent.
    That the act was a remedial statute and should be liberally construed to effect its intent.
    That it was not intended to punish acts already done, but to prevent the doing of acts prejudicial to the public interest.
    Appeal by David Quackenbush, supervisor of tbe town of Eastchester, individually and as such supervisor, from an order made in the above-entitled matter by lion. Jackson O. Dykman, on the 5th day of March, 1889, and entered in the clerk’s office of Westchester county on that day. The petition was as follows :
    State oe New York, ss. :

      To the Supreme Court of the State of New York :

    Gerd Martens, * * * being, severally, duly sworn, says: That they are freeholders of the town of Eastchester, and have paid taxes on such real estate in said town within one year, and they have cause to believe that the moneys of such town are being unlawfully or corruptly expended.
    That the bills for town government audited by the town auditor, and now included in the tax levy by the board of supervisors of the county of Westchester, are enormously large, aggregating about $20,000, to wit, $19,539.0J, and are out of proportion to the expenses of governing any other town in the county, and deponents have reason to believe that the same are either wholly or in part fraudulent, unjust and corrupt.
    That the receiver of taxes, one George IT. Behrmann, will open his books on February twentieth, inst., as advertised, unless this court affords relief to the deponents the said bills will be paid by the supervisor of the town of Eastchester, or by the said receiver, and the deponents, the taxpayers, be without remedy; that a copy of the said accounts for town bills is hereunto annexed.
    Deponents, therefore, pray for a summary investigation of the affairs of the said town, and that an injunction be granted restraining the payment of the said bills until further order of this court.
    The'order appealed from, after reciting the petition and an order to show cause granted in this matter, and the affidavit of the supervisor of the town of Eastchester in opposition thereto, proceeded as follows:

      “ Francis Larken, Jr., James S. Millard and Peter IJ. Fowler are appointed experts to make a summary and speedy investigation into the financial affairs of the town of Eastchester, and the official accounts of all the officers of that town, and make a full report of the state and condition of all such accounts of such officers with or relating to the said town.
    They shall also make a full and complete examination of the claims and accounts presented against the town of Eastchester during the last year to any of the officers of that town, and the amounts allowed therefor, and make a full and complete statement and report of the same.
    They shall also make a full and complete statement and report of the accounts and claims of all the town officers of the town of Eastchester against the said town for services or fees or allowances during the last year.
    They shall also ascertain and report whether any claims presented against the town of Eastchester during the last year are or were unlawful or in excess of lawful fees and rates, or were fraudulent or corrupt.
    They shall also ascertain and report whether any sums or amounts allowed by any town officers or board are unlawful or in excess of legal rates or fees, or were corrupt or fraudulent, or whether any claims or accounts prescribed by any town officer for fees or services or disbursements were unlawful or in excess of legal rates.
    All and each of the town officers of the town of Eastchester are ordered and directed to facilitate such investigation in all ways, and to furnish all town books, papers, documents and accounts to the persons above-named as experts, which they may require, and to permit them to make a full and free and unobstructed examination of the same; and all town officers of the town of Eastchester are required and directed to permit such experts to examine all the town books, papers, documents and accounts of the town, and all accounts and claims presented against that town during the last year either by officers or individuals.
    And the experts named are authorized to compel the attendance of witnesses, and the production of papers, documents, books, accounts and claims by subpoena, signed by them, and compel and enforce the examination of all witnesses so subpoenaed.

      The experts or the counsel for the petitioners are authorized to make further application for instruction and authority on two days’ notice to the supervisor of the town of Eastckester.
    The experts are directed to hold all their sessions in the village of Mount Yernon, to sit from day to day continuously as far as possible, to employ a stenographer, if they deem such employment necessary, and to make their report at the earliest day consistent with a proper discharge of the duties imposed by this order.”

      P. L. MeOlellcm for David Quackenbush, supervisor, appellant.

      Henry W. Bates, for the taxpayers, respondents.
   Pratt, J.:

The act in question is a remedial statute, passed to prevent waste of public moneys, and must be liberally construed to effectuate such intent. It is in no sense an act to punish acts already done, but to prevent the doing of acts prejudicial to the public interest. The petition was in due form, and contained all the allegations necessary to set the machinery provided in the act in motion. The fact that the petitioners had other remedies to prevent waste of the public moneys is not material, as the statute gave them specifically this remedy. Neither does the fact that the bills had been examined and audited by the town board affect the question. If a bill is fraudulent, the fact of its being audited gives it no vitality. The statute was passed to stop the payment of such bills, and the fact that they are audited raises a presumption that the moneys of the town are being illegally applied. The objection that the experts appointed were vested by the order with any illegal powers was not well taken. The order? in every respect, complied with the statute, and the order must be affirmed, with costs.

Barnard, P. J., concurred ; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


author: Landon, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN PRICE, Appellant.

      Crime — cha/rged in an indictment as a second offense — when the first offense was committed in another State, effect of a pan'don by the governor thereof — exception to the ruling as to the competency of a jure»', subsequently peremptorily challenged, where the pei'emptory challenges were not exhausted.

    Under an indictment for the crime of grand larceny in the first degree, charged asa second offense, evidence showing that the defendant had been convicted of a felony in Richmond county, in the State of Georgia, namely, larceny of $3,500 from the National Bank of Augusta, in that State, is competent, notwithstanding the fact that a pardon was shown to have been granted to the-defendant by the governor of the State of Georgia for the offense committed in that State.

      Me parte Garland (4 Wall, 380) distinguished.
    There is no constitutional provision which prevents the legislature of the State of New York from providing that where persons have been convicted of felony in another State, whether subsequently pardoned or not, they shall, upon a subsequent conviction of felony in this State, be, by reason of such prior conviction, more severely punished for the latter offense.
    An objection and exception taken to the erroneous ruling of the court, to the effect that a juror was not disqualified, is not available to a prisoner on an appeal taken by him, where such juror is thereafter peremptorily challenged by the prisoner and excluded from the panel, and it appears that the prisoner did not, upon the trial, exhaust the number of peremptory challenges given to him by law.

      Appeal by the defendant from a judgment of conviction of the crime of larceny in the first degree, charged as a second offense, rendered at the Court of Oyer and Terminer, held in and for the county of Albany, on the 30th day of October, 1888.
    The defendant was tried, convicted and sentenced at the Albany county Oyer and Terminer, in October, 1888. The indictment was for the crime of grand larceny in the first degree, charged as a second offense under section 688 of the Penal Code.
    The indictment charged the defendant with having stolen from one Peter K. Dedrick, in the city of Albany, on the 30th day of July, 1888, thirty-five bonds of the value of $1,000 each, made by the Equitable Mortgage Company of Kansas City. The indictment further charged that, in 1884, the defendant was duly convicted of a felony in Richmond county in the State of Georgia, namely, larceny of $2,500 from the National Bank of Augusta, in that State. The testimony tended to show that on the 30th of July, 1888, at about half-past ten o’clock in the forenoon Aaron Dedrick, acting for his brother Peter K. Dedrick, went to the Mechanics and Farmers’ Bank, situate on the corner of State and James streets, in Albany, and there received thirty-five bonds, executed by the Equitable Mortgage Company of Kansas City, of the value of $35,000, of which bonds Peter K. Dedrick was the owner. Aaron Dedrick wrapped them in a paper, put two rubber bands around the package, and holding the package in his hand went out of the bank on to State street, turned the corner into James street and walked north on the east side of James street 120 feet to< his one-horse buggy, which he had left there, the horse being tied to a lamp-post, the horse’s head facing north. He laid the package of bonds on the buggy seat, took from the seat his duster coat and was .in the act of putting it on, standing on the edge of the sidewalk with his face towards the buggy, when the defendant passed on the walk behind him, and accosted him with the remark, “ How are you doctor ? ” Dedrick was not accustomed to the title of doctor, and without turning around, and supposing that the defendant had made a mistake, replied, “ How are you ? ” The defendant passed on to the head of the horse and said “Has that horse got the glanders?” Dedrick replied, “ I guess not,” and turned to see who it was. The defendant then pointed towards or touched the horse’s nose and said, “ There, there, the glanders; ” defendant then moved on toward the north; Dedrick turned to look at his package of bonds and it was gone. As Dedrick laid his package on the buggy seat he casually observed two or three persons between him and the corner of State street, but when he missed his bonds he saw no one in that direction. He saw no one take them; he recalled an impression as of a shadow of some one near him when the defendant was speaking, but he did not see anyone whom he could suppose had taken the bonds; his horse had no symptoms of the glanders; the defendant had been in Albany for two or three days before the theft; had registered at the Kenmore Hotel under the name of “ "W. IT. Hall.” Two other strangers had been at the hotel at the same time. The defendant was on State street near the Mechanics and Farmers’ Bank about half-past ten, in company with two strangers. Evidence was given tending to show, that the strangers seen in company with defendant on State street were the same who had been at the Kenmore Hotel. The defendant, immediately after the theft, was seen on Pearl street going toward the Kenmore Hotel. Shortly after the theft the two strangers hired, a hack for five dollars, and left the Kenmore Hotel and were driven to Troy. The defendant was arrested in Troy the same afternoon, and gave an account of himself which was, in the main, false. The bonds were not recovered and the two strangers were not found.
    The People read the record of the defendant’s conviction in Georgia under the name of -O. H. Simmons. The defendant read ■in evidence his full pardon granted by the governor of that State. Other facts are stated in the opinion.

      Peter Mitchell, for the appellant.

      Hugh Reilly, for the People.
   Landon, J.:

The trial court refused to hold that the pardon granted the defendant by the governor of the State of Georgia exempted him from liability to conviction here as for a second offense. The court held that the pardon did not disprove the fact of conviction in the State of Georgia, but was consistent with it, and hence the defendant might be lawfully convicted under section 688 of our Penal Code, notwithstanding the pardon. The question does not appear to have been decided in this State. The defendant relies upon the principles announced in Ex parte Garland (4 Wall., 380). The court there held that “ a pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” This broad doctrine is reiterated in subsequent cases. (U. S. v. Padelford, 9 Wall., 531; Carlisle v. U. S., 16 id., 147; Osborn v. U. S., 91 U. S., 478.) Of course, past acts cannot be obliterated, but the legal effects of them can be. It remains true that the defendant was convicted in the State of Georgia, although subsequently pardoned, and hence it is urged that the defendant still remains in the class described in section 688 of our Penal Code, as one “having been convicted under the laws of another State.”

Section 692 of the Penal Code provides that a pardon which shall reheve from a judgment of habitual criminality shall not prevent a subsequent judgment of habitual criminality upon subsequent conviction for felony. Tins, at first, seems to be an excejrtion, and to imply that only with respect to habitual criminals is previous pardon made inoperative; but it. is obviously inserted, because needed with respect to habitual criminals, but not needed in the cases mentioned in section 688, because there the fact of previous conviction is made descriptive of the renewed offense, irrespective of the fact of pardon.

The cases cited from the Supreme Court of the United States hold that, since the pardoning power is conferred upon the executive by the Constitution, it is not within legislative control or restriction, and hence the legislature cannot diminish the full absolution which the pardon imports. Assuming this to be true, the result would be that the legislature or the State of Georgia could not impair the force of the pardon which, under the Constitution of that State, her governor grants. The same reasoning would apply to the legislature of the State of New York with respect to a pardon granted by the governor of New York, but does not touch the phase of the case here presented. The police power of every State is complete, except as restrained by her own or the Federal Constitution. No constitutional provision restrains the legislative power of New York from prescribing that where persons have been convicted for felony-in another State, whether subsequently pardoned or not, they shall, upon subsequent conviction of a felony in this State, be more severely punished. That the power exists is clearly inferable from the extent of the police power as defined by the Supreme Court of the United States. (Railroad Co. v. Husen, 95 U. S., 465,471, and cases there cited; Bowman v. Chicago, etc., Railway Co., 125 id., 465, 492.) Our own courts recognize the fact that a moral stigma rests upon a convict, notwithstanding his pardon. (Matter of -, an Attorney, 86 N. Y., 563; People v. Eighmy, 78 id., 333.) The fact of conviction is a part of his past history. (People v. Raymond, 96 N. Y., 41.) In none of the cases in the Supreme Court of the United States was the pardoned person on trial for a second offense. His pardon proved effectual to exempt him from the penalty incurred either under a prior or subsequent law. Here no penalty is incurred for the offense committed in Georgia, but a double penalty is inflicted upon the repetition here of the like offense.

We conclude, therefore, that the fact of the defendant’s conviction for a felony under the laws of the State of Georgia was properly alleged and proved, and that the pardon did not exempt him from the increased punishment prescribed for a second offense.

The defendant excepted to the ruling of the court that one Cochrane was not disqualified as a juror. The defendant then peremptorily challenged him. The defendant did not exhaust his peremptory challenges. Thus, the defendant, who did not want this person as a juror, was permitted to exclude him without the least embarrassment to his liberty of choice and challenge with respect to the other persons called as jurors.. Assuming, but not deciding that Cochrane was disqualified, the defendant was not obliged to challenge him peremptorily, and if he had not his exception would have been good within the McQuade Case (110 N. Y., 284), for he could not know that if he challenged him he might not have to exhaust all his peremptory challenges in setting aside jurors more objectionable than Cochrane, and yet not have enough to exclude them and Cochrane. JBut he chose to exercise his peremptory challenge, and the result proved that he did have enough peremptory challenges to exclude all the objectionable jurors and Cochrane. He, therefore, was not injured. (People v. Carpenter, 102 N. Y., 243.)

We have examined, tbe exceptions to the admission of various portions of the testimony and to the denial of motions to strike out, and find none that we regard as well taken. We have read the entire evidence and we think it was sufficient to warrant the verdict rendered by the jury. The case against the defendant was one of circumstantial evidence; but we have read the evidence and are satisfied that, although the defendant did not take the package of bonds, he purposely diverted Dedrick’s attention enough to enable a confederate to take them.

The judgment should be affirmed.

Learned, P. J., and Ingalls, J., concurred.

Judgment and conviction affirmed.


author: Landon, J. :

text:
    GEORGE W. OSTRANDER and Others, Appellants v. ERASTUS DARLING, Respondent.

      Gcmcellation of a tax sale try the comptroller — ■ invalidity of, as against the purchaser at such sale, where it is canceled without notice to him.

    The power of the comptroller of the State of New York to cancel a tax sale was given with a view of relieving the purchaser at such sale from a defective title, and of restoring the purchase-money, paid at the sale, to him.
    When such purchaser insists upon the validity of the tax sale, and of his deed under it, for which he has parted with his money, the Constitution protects him against an adjudication adverse to his right thereunder, unless such adjudication is made in due process of law, an essential element of which is that the purchaser shall have notice, actual or constructive, according to some antecedent provision of law, of the proceedings being taken, so that he may be heard in defense of his rights before being deprived of them.
    The cancellation of a tax sale by the comptroller, without such notice to the purchaser, while it may conclude the State as to the matter decided, does not bind or conclude the purchaser at the sale, who has no notice thereof, and who does not accept the benefit of the cancellation.
    Appeal by the plaintiffs from a judgment rendered at the Eulton Circuit, on a trial before the court, which was entered in the office of the clerk of that county on the 22d day of December, 1888.

      Arthur L. An&rews, for the appellants.

      John M. Gwrroll, for the respondent.
   Landon, J. :

This action is to recover for logs and bark which the defendant ent upon and carried away from lot No. 20, Ox Bow Tract, Hamilton county. The only question in issue was whether the plaintiffs or defendant had the better title.

In 1842 the State, by its surveyor-general, and in pursuance of the statute, gave a certificate of sale of the lot to Andrew K. More-house, he then paying twenty-five per centum of the agreed price and giving his bond for the balance, payable with interest in six equal annual payments. This transaction gave him the right of possession of the lands, and, upon payment of his bond, the right to a deed or patent from the State. The State had the right to tax the lot, and upon default upon the bond to resell the lot. The lot was then unoccupied, and has never since been occupied or enclosed. There is evidence tending to show that Morehouse made default upon his bond, and that the State thereupon resold the lot in 1847 to one Bickford, and that .in the same year one Elliot redeemed the lot and paid the State in full. Whether Elliot redeemed for Morehouse does not appear, but as a stranger could not redeem, we presume that he so far acted for Morehouse that the latter could ratify his action. It also appears that, as late as 1856, Morehouse redeemed the lot from tax sales made by the county treasurer. We assume, therefore, that in 1856 Morehouse could have obtained his deed or patent from the State. He lived until 1882, but never obtained any patent. In 1884, Josephine Winchell, his daughter, and as his heir, did obtain a patent therefor, and the plaintiffs now have whatever title, if any, she thus obtained. We assume, upon an examination of the statutes, this title to be good, unless the one produced by the defendant is better.

The defendant read in evidence a deed of the lot in question from the comptroller of the State to the people of the State, dated March 11,1862. It recites that, in November, 1859, the lot was sold at public auction by the comptroller to the said people, for taxes unpaid for more than two years. It contains recitals that the statute had been complied with. The defendant also read in evidence a deed or patent from the State to Patrick N. Crowe, dated August, 1870, of the lot in question. This deed recites that the title of the State was by virtue of the tax sale and deed aforesaid. This deed was recorded in the secretary of state’s office August 4, 1870, and in the clerk’s office of Hamilton County November 30, 1883. The defendant claims under Patrick N. Crowe, and, if his title is good, the defense is established.

Under chapter 427, Laws of 1855, section 65, the comptroller’s deed was presumptive evidence that the “ sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular,” etc. The tax title could not be successfully assailed in any court, except upon showing some material omission of the requirements of the statute. Wood v. Knapp (100 N. Y. 109).

By chapter 448, Laws of 1885, section 65 aforesaid was amended by making the comptroller’s deed and the deed of his grantee, after having been recorded two years in the proper clerk’s office, and after December 9, 1885, conclusive evidence of the facts aforesaid. (People v. Turner, 49 Hun, 466.)

The deed to Crowe had been recorded in the proper clerk’s office more than two years prior to December 9, 1885. The deed to Crowe, therefore, constituted a perfect title, unless the facts now to be noticed overreached and destroyed it.

In May, 1884, the plaintiff Ostrander applied to the comptroller to cancel the tax sale of 1859, and evidence is presented tending to show that, in August, 1884, the comptroller did cancel it. This evidence was not satisfactory to the trial judge, and he refused to find that the cancellation was made. ¥e have examined the evidence, and we think it shows the cancellation was made. It was procured to be made for the benefit of the plaintiffs, and without disclosure to the comptroller of the rights of Crowe. Ostrander obviously sought, by such cancellation, to defeat Crowe’s rights, and he now insists that he succeeded in doing it. Crowe had no notice and no opportunity to be heard. The object of the statute authorizing the comptroller to cancel a tax sale is to relieve the purchaser from a defective title, and restore the purchase-money to him. (People ex rel. Wright v. Chapin 104 N. Y.. 369 ; People ex rel. Ostrander v. Chapin, 105 id., 309.)

The proceeding assumes the purchaser’s consent, which is usually manifested by his receipt for the purchase-money. It would seem that when the purchaser insists upon the validity of the tax sale and of his deed under it, for which he has parted with his money, the Constitution protects him against an adverse adjudication unless the same is made in due process of law, an essential element of which is that he shall have notice, actual- or constructive, according to some antecedent provision of law, that he may be heard in defense of his rights before being deprived of them. The fact that no such notice is provided for by this statute or by chapter 120, Laws of 1873, which authorizes the comptroller to set aside such cancellation, whenever procured by fraud, mistake, misrepresentation or suppression of material facts, would appear to be conclusive that in no case is the power to be used to overreach or subvert the purchaser’s title to his prejudice. There is nothing in the latter act authorizing the purchaser to institute any proceeding before the comptroller to set aside the cancellation. Yet, if .there were, it would simply imply that Crowe may hereafter have his rights determined by due process of law, and also imply that as yet it has not been done. The defect alleged in this case was that the notice to redeem as published was not such as the statute prescribed. A defective printed notice was produced from the comptroller’s ^office, but whether no proper notice was duly published was not otherwise established. If the law had provided that Crowe might have been heard, possibly he would have appeared and produced the proper proofs. Possibly, if he had been permitted to allege that the proof produced did not show publication of an imperfect notice, the comptroller would have decided in his favor. But, assuming that the comptroller had the right to cancel the sale, his order binds the State, but, according to elementary rules, cannot bind persons not parties, or not coming in and accepting the benefits of the order.

"We do not think the order bound Crowe, and hence his title was not affected by it.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concurred.

Judgment affirmed, with costs.