author: Per Curiam

text:
    THE LOANERS’ BANK v. ELBERT NOSTRAND, et al.

      Lien of attorney upon judgment in action in which he did not appear, but for the benefit of which judgment he successfully prosecutes creditors' bill under special agreement as to compensation—how protected by the court —Execution on such judgment, when not stayed in attorney's interest.

    Before Sedgwick, Oh. J., and Freedman, J.

      Decided May 3, 1886.
    Appeal by Henry D. Betts, as attorney, from an order made at special term.
    The order appealed from denied an application to set aside and vacate an execution issued upon the judgment in the above-entitled action by Frederick P. Foster, as assignee of the right, title and interest of the plaintiff, the Loaners’ Bank, in said judgment.
    The appellant claimed to have made an agreement with the receiver of the Loaners’ Bank, to prosecute the action of Wright, Receiver, v. Nostrand, et al. (47 Super. Ct. 441; 94 N. Y. 31), for the benefit, and to enforce the collection of his judgment, for one-half of the amount he might succeed in collecting thereon. Said action of Wright v. Nostrand was prosecuted by appellant to judgment, and a decree obtained setting aside certain conveyances of real estate from said Nostrand to his wife, as fraudulent against the owners of the judgment in this action, and declaring said judgment a lien upon said real estate, and authorizing its sale to pay the same under an execution to be issued thereon. Thereafter, on application made to the Supreme Court by the receiver of the Loaners’ Bank, plaintiff herein, for leave to sell said judgment, an order was made authorizing said receiver to sell the right, title and interest of said Loaners’ Bank, subject to all liens thereon, at public sale. Such sale was had, and said Foster purchased thereat said interest in said judgment, and thereupon issued an execution to the sheriff upon said judgment, and caused him to levy upon the real estate, upon which - the decree in the action of Wright v. Nostrand had declared said judgment a lien, and advertised the same for sale ; thereupon this motion was made.
    The following opinion was delivered at Special Term : —“ Ingraham, J. :•—The decree in the equity suit (Wright v. Nostrand) provided that plaintiff, in the judgment in this action, or its successors, are at liberty to sell the said real and leasehold estates under execution to be issued to the sheriff, &c., upon the said judgment, which judgment is thereby declared to be a lien upon the said estate. The execution issued in this action appears to be as directed by the decree, and is issued by the assignee of the plaintiff in the action. I do not see how it can be set aside. The attorney for the plaintiff in the equity suit would undoubtedly have a lien on the judgment for his compensation under section 66 of the Code, and such lien should be protected. The sale under the execution should not be stayed, but the sheriff should be stayed from paying the proceeds of the sale under the execution to the plaintiff, or its assignee, until the amount of the attorney’s compensation can be ascertained. If parties cannot agree upon the amount due the attorney, a referee will be appointed to ascertain such amount.
    “ The motion will be granted to the extent indicated.”
   Per Curiam

:—The order appealed from should be affirmed, with costs, upon the opinion delivered by the learned judge at Special Term. It gave to the appellant all the protection he was entitled to.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOHN T. MARVIN, Respondent, v. THE MANHATTAN RAILWAY CO., Appellant.

      Damages—Personal injuries, evidence as to future consequences of, perma-, nent and, temporary, rule as to.—Remote and indirect consequences of injury, judge's charge as to.

    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided June 9, 1886.
    Appeal by defendant from judgment entered on verdict for plaintiff, awarding him damages for a fractured thigh bone.
    The action was for damages for personal injury caused by defendant’s negligence, as claimed.
    Appellant’s counsel maintained the validity of an exception to the admission of the following question : “Are the conditions that you have described, as having found, such as the shortening and the callus, likely to be permanent or otherwise V This was objected to on the ground that it called for testimony as to what was likely to be, and not what was reasonably certain to be.
    The Court at General Term (after stating the facts as above), said :—“ The latter opinion seems to be that wdiat is relevant, in any degree, to the certainty of future consequences is competent, although it does not, of itself, tend to prove such certainty. It is not necessary to make any decision as to this. The answer contained no incompetent testimony. It was 1 The shortening will be permanent. The shrinking of the circumference of the thigh is not apt to be permanent, neither is the callus apt to be permanent ; the latter will be apt to remain only for probably several years.’ The jury might have found the meaning of this answer to be that the shortening will certainly never be changed; and that the callus and then present size of the thigh will probably not be permanent, but will certainly last for some indefinite time. The plaintiff was entitled to recover not only for permanent impairments of the body, but for those that would certainly last for some time, although not always, and receive damages for the temporary effects. If the answer were true, the plaintiff was entitled to recover nominal damages for the temporary effects, even if they could not give a greater sum, because the duration of the temporary effects was not shown, except indefinitely. The counsel for defendant requested the court to charge that ‘ the jury can give no damages for such consequences of the injury as are merely likely, but must confine themselves to considering those consequences which are reasonably certain.’ The court did not charge in those words, and probably the exception which the argument supposes to have been taken to the refusal to charge this, did not with enough definiteness, call the attention of the court to a few words which if altered, would have made the charge the equivalent of the request, if it would have been necessary tó the rights of the defendant to charge those words. The court said ‘ if upon the whole case you are satisfied that the injury will involve consequences in the future you may consider those consequences, provided, upon the evidence you can say that they are the direct and natural result of defendant’s negligence.’ The jury was here confined to things certain to occur in the future. The proviso does not permit damages for consequences not certain of occurrence, but in substance tells the jury not to regard as consequences, though the jury might think they will occur, those things that will not be the direct and natural effect of defendant’s negligence. The proposition relates to the theory of legal causation, which refers to a proximate cause only. This is proper to be considered, as well to future events as to past. The judge next said, ‘ for remote consequences, which are' merely likely to result, but which are not the direct and natural consequence of defendant’s negligence, you can award no compensation.’ There was no error here. The jury were told that there could be no recovery for remote result^, not direct and natural effects of the negligence, and that were only likely to happen ; for two reasons,—they were not certain to happen, and besides were not legal consequences. The implication that counsel argues there was, that there might be a recovery for remote effects naturally and directly caused, was prevented by the earlier part of the charge that has been considered. The damages were clearly excessive. They were $7,500. The jury could not have used a calm, unbiassed method in assessing them. For that reason the judgment should be reversed, unless the plaintiff should prefer and elect to reduce the verdict to $3,500, and in such case the judgment as affirmed, without costs. Otherwise judgment is reversed, and new trial ordered, with costs to abide events.

      Davies & Sapallo, attorneys, and Hugh L. Cole, of counsel for appellant.

      W. H. McDougall, for respondent.
   Opinion

Per Curiam.


text:
    THOMAS NUGENT, Respondent, v. MARCELLA KEENAN, as Executrix, &c., Appellant.

      Security for costs—Amount given will not be increased except on allegation of facts showing necessity therefor — Oosts and disbursements—Stenographer's fees on reference not taxable—Stipulation that each, party shall pay one-half—Successful party cannot tax amount paid by him.

    Before Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Appeal from an order made by a judge at special term, denying the defendant’s application for an order directing the plaintiff to file additional security for costs as a nonresident.
    The Court at General Term said :—“ The plaintiff has already given an undertaking for security for costs under section 3268 of the Code of Civil Procedure, and cannot be compelled to give an additional undertaking until it shall have been shown by satisfactory proof that the sum specified in the first undertaking is insufficient. In this case that fact has not been established by satisfactory proof. It is true that the defendant alleges that the sum mentioned in the first undertaking is not sufficient, but no facts are shown that will warrant the court in concluding that that sum is insufficient. The defendant suggests that he may obtain an extra allowance, but that is altogether too contingent a supposition to warrant us to reverse the order. The stenographer’s fee on the trial of an action before a referee is not a disbursement within the meaning of the law regulating the adjustment of costs, and cannot be taxed without a stipulation between the parties to that effect (Newhall v. Appleton, 4 Law Bui. 5). And where the parties on a trial before a referee employ a stenographer to take the minutes, and agree that each party shall pay half the fee, the successful party cannot tax as a disbursement the amount paid by him (Colton v. Simmons, 14 Hun, 75; Mark v. City of Buffalo, 87 N. Y. 184).

      Daniel Daly, for appellant.

      J. Stewart Boss, for respondent.
   Opinion by Truax, J. ; O’Gorman, J., concurred.

Order affirmed, with costs and disbursements.


text:
    EDWARD A. KLEIN, Respondent, v. THE SECOND AVENUE R. R. CO., Appellant.

      Settlement of ease on appeal—When order denying motion to resettle not appealable—Trial—Objectionable remarles of counsel, when must be

    Before-Truax and Ingraham, JJ.

      Decided July 2, 1886.
    Appeal from order denying the defendant’s motion to resettle the case on appeal herein, by inserting therein an alleged extract from the remarks of plaintiff’s counsel to the jury in summing up, and by annexing to the case a certain envelope or piece of paper which had been marked for identification at the plaintiff’s request, but was excluded upon defendant’s objection when offered by plaintiff’s counsel.
    The Court at General Term said :—“It was the duty of the judge before whom the case was tried to settle the case on appeal, and from his determination no appeal will lie. The case, as settled by him, must be presumed to correctly set forth what happened at the trial so far as it is necessary to properly review the questions presented. It is very evident, however, that the envelope not being in evidence, and there being no exception by defendant to its rejection, is no part of the case. The defendant also moved to have inserted in the case the remarks of counsel in summing up. It does not appear that any exception was taken to the remarks of counsel, or that the attention of the court was called to the fact that what the counsel said was improper. It is evident, therefore, that the remarks of counsel were no part of the case.”

      Waldo Hutchins, Jr., for appellant,
    that the order was appealable, cited Marckwald v. Oceanic Steam Nav. Co., 8 Hun, 547.

      Zimmermann & Jacobs, attorneys, and Frederick A. Ward, of counsel,
    that the order was not appealable, cited Canzi v. Conner, 43 Super. Ct. 569 ; Porter v. Parks, 2 Hun, 675 ; Dambmann v. Shulting, 9 Rep: 487.
   Opinion

Per Curiam.

Appeal dismissed, with $10 costs and disbursements.


text:
    LEONARD HANGEN, Respondent, v. CHRISTIAN HACHEMEISTER, Appellant.

      Conversion—Evidence of value—Amount paid at auction sale, and amount paid shortly before wrongful taking, admissible—Damage to business, loss of profits, how shown—■ Commission improperly executed, objection to, waived by not moving to° suppress it before trial—Public administrator —Bight of to disregard fraudulent mortgage on property of estate, in the interest of simple contract creditors of estate.

    Before Truax and O’Gorman, JJ.

      Decided July 31, 1886.
    Appeal from a, judgment entered against the defendant in favor of the plaintiff, and from an order denying defendant’s motion to set aside the verdict and for a new trial.
    Action to recover damages for the conversion of certain personal property, and for the breaking up of the plaintiff’s business by the defendant. The defendant alleged that he took the property by virtue of a chattel mortgage which he held.

      The Court at General Term said :—“ The only question litigated on the trial was whether or not the mortgage under which the defendant justified or attempted to justify the taking of the property, was a valid mortgage. The court charged that if this mortgage was good the defendant was not a trespasser in going into the plaintiff’s place and taking the property, and then, further charged that the only ground upon which they could find that the mortgage was void or fraudulent was, if there was an agreement between the mortgagor and the mortgagee that the mortgagor should have the right to sell part of the mortgaged property. To this charge there was no exception. The jury have determined that there was such an agreement, and we are bound by this determination, there being no exception that presents the question to this court. There were numerous exceptions taken on the trial which will be considered in the order in which they were taken. The plaintiff had testified that he had in his possession at the time of the taking other property than the mortgaged property. He was then asked what was the cost of this extra property to him ? To this the defendant objected as incompetent, and as furnishing no evidence of the actual value at the time the property is alleged to have been taken. The inference from the testimony is that this property was bought after the sale made by the public administrator, and some two weeks before the taking by the defendant. The defendant was also asked what he paid for the property at the auction held by the public administrator. This was objected to on the ground, among others, that what he paid for the property at that sale is no criterion of the actual value. This objection was overruled, and the defendant excepted. Evidence of what the property was sold for at ;public auction, and evidence of what the plaintiff gave for the property a short time before the taking, is proper upon the question of its value at the time of the taking (Hoffman v. Conner, 76 N. Y. 121). The defendant alleges that there was error in allowing the plaintiff to testify as to the receipts from his business. The objection which is alleged to present this error is not really before the court, because it was taken after the answer to the question had been made. But the evidence was not irrelevant ; the plaintiff was entitled to recover damages for the breaking up of his business. One of the elements of this damage was the loss of the profits he might have made if the business had not been destroyed by the acts of the defendant; and one way, in fact, the only way, that the defendant has left to the plaintiff to show this loss, is to show what the profits were for a corresponding period (Schile v. Brokhahne, 80 N. Y. 614). The defendant also alleges that it was error to admit a certain commission in evidence on the ground that the commission was improperly executed. The defendant, if the commission was improperly executed, should have moved to suppress it before the trial. The defendant also alleges that it was error to allow the plaintiff to prove that certain creditors had filed claims with the public administrator against the estate. Chapter 314, of the Laws of 1858, authorize an assignee or other trustee of an estate of an insolvent, for the benefit of creditors and others interested, to disaffirm and treat as void all transfers in fraud of their rights, and to maintain all necessary actions for that purpose. And an action by such a trustee to aqnul a fraudulent transfer, and to recover the property or its avails, may be made for the benefit of simple contract creditors (Southard v. Benner, 12 N. Y. 424). Therefore, it was necessary to show that there were creditors of the mortgagor, and this evidence was not irrelevant for that purpose. There were a number of other alleged errors urged on the argument at general term, but most of them were not presented by any exception taken at the trial. The only exception to the charge was cured by the charge of the court made subsequent to the taking of that exception.”

      Henry Daily, Jr., for appellant.

      Glover, Sweezy & Glover, for respondent.
   Opinion by Truax, J. ; O’Gorman, J., concurred.

Judgment and order affirmed, with costs.


author: per Curiam.

text:
    Charles W. Durant, Jr., Respondent, v. William P. Abendroth, Appellant.
    Decided January 4, 1886.
    Appeal from order denying motion to set aside judgment entered on verdict.
    William H. Arnoux, for appellant, and Carlisle Norwood, Jr., for respondent.
    Sedgwick, Oh. J., Van Vorst and Freedman, JJ., sitting.
   Opinion

per Curiam.

Order affirmed, with $10 costs, &c.


text:
    Abraham Van Dolsen, et al., Respondents, v. William P. Abendroth, Impld., &c., Appellant.
    Decided January 4, 1886.
   Appeal of like nature of appeal in Durant v. Abendroth (ante, p. 15); argued by same counsel, before the same judges, and a like decision rendered.


text:
    Charles W. Durant, Jr., Appellant, v. Whliam P. Abendroth, Respondent. Abraham Van Dolsen, et al., Appellants, v. William P. Abendroth, Impld., &c., Respondent.
    Decided January 4, 1886.
    These were appeals from orders staying in certain conditions all proceedings on the part of the plaintiffs and sheriff to enforce the judgments in the actions, and the hearing and determination of appeals taking from orders, dated September 21,' 1885, denying defendant’s motions, among other things, to vacate and set aside the executions issued on the judgments, the decisions on which are reported ante, pp. 15, 35.
    William H. Arnoux, for appellants.
    Carlisle Norwood, for respondent.
    Sedgwick, Oh. J., Van Vorst and Freedman, JJ., sitting.
   No opinion. Orders affirmed, with costs.


text:
    The Oregon & Transcontinental Co. v. Abraham Kuhn, et al.

    Decided January 4, 1886.
    Execeptions by defendants to direction of verdict in favor of plaintiff, ordered to be heard at general term in the first instance.
    Holmes & Adams, and James C. Carter, for plaintiff.
    John E. Parsons, for defendants.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
   Opinion

Per Curiam.

Exceptions overruled and judgment ordered for plaintiff upon verdict, with costs.


text:
    Thomas M. Carter, Respondent, v. The Brooklyn Life Insurance Co., Appellant.
    Decided January 4, 1886.
    Appeal from judgment entered at special term.
    W. H. Ford, for appellant.
    Raphael J. Moses, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgment affirmed, with costs.


text:
    The People, ex rel. The Twenty-Third Street R. R. Co., Respondent, v. Rollin M. Squire, Commissioner of Public Works of, &c., of New York, Appellant.
    Decided January 4, 1886.
    Appeal from order directing writ of mandamus to issue.
    E. Henry Lacombe, counsel of corporation, &c.
    Osborn E. Blight, for relator.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
   Per Curiam.

Order affirmed, with costs.


text:
    Edward Tamsen, Appellant, v. Joseph Larchen, et al., Respondents.
    Decided January 6, 1886.
    Appeal from judgment dismissing complaint.
    Wehle & Jordan, for appellant.
    Joseph E. Newburger, for respondents.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Nelly Harris, Appellant, v. Valentine Stratten, Respondent.
    Decided January 27, 1886.
    Appeal from judgment dismissing complaint.
    John Brooks Leavitt, for appellant.
    P. C. Tallman, for respondent.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    Christian Brecht, as Admr., &c., Appellant, v. H. Clausen & Son Brewing Co., Respondent.
    Decided March 1, 1886.
    Appeal from judgment in favor of defendant on dismissal of the complaint.
    Wehle & Jordon, for appellant.
    Guggenheimer & Untermeyer, for respondent.
   Opinion by O’Gorman, J. ; Sedgwick, Oh. J., concurred. Judgment affirmed, with costs.'


text:
    Jacob Rubino, Appellant, v. William L. Scott, Respondent.
    Decided March 1, 1886.
    Appeal from judgment.
    Deuel & Willson, for appellant.
    Shearman & Sterling, for respondent.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Opinion by O’Gorman, J. Judgment affirmed, with costs.


text:
    Agnes Slattery, Respondent, v. Milton C. Boynton, Appellant.
    Decided March 1, 1886.
    Appeal from judgment and from order denying motion for new trial.
    Philo Chase, for appellant.
    Sullivan & Cromwell, for respondent.
   Opinion by O’Gorman, J. ; Sedgwick, Oh. J., concurred. Judgment and order affirmed, with costs.


text:
    Stephen A. West, Respondent, v. The Manhattan Railway Co., Appellant.
    Decided March 1, 1886.
    Appeal from judgment and from order denying motion for new trial.
    Davies & Rapallo, for appellant.
    Taylor & Parker, for respondent.
   Opinion by O’Gorman, J. ; Sedgwick, Ch. J., concurred. Judgment and order reversed, and new trial ordered, with costs to abide event.


text:
    Jefferson Patten, Jr., et al., Respondents, v. Richard Pancoast, et al., Appellants.
    Decided March 1, 1886.
    Appeal from judgment and from order denying motion for new trial.
    John L. Logan, for appellants.
    Cephas Brainerd, for respondents.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Opinion by O’Gorman, J. Judgment and order affirmed, with costs.


text:
    Ellen Diable, Appellant, v. The Mayor, &c., of the City of New York,. Respondents.
    Decided March 1, 1886.
    Appeal from judgment.
    E. R. Terry, for appellant.
    E. H. Lacombe, for respondents.
    Before Sedgwick, Ch. J., Truax and O’G'orman, JJ.
   Opinion by O’Gorman, J. Judgment affirmed, with costs.


text:
    Fredrick A. Baldwin, et al., Respondents, v. Ira E. Doying, et al. Impleaded, &c., Appellants.
    Decided March 1, 1886.
    Appeal from judgment entered on report of referee.
    John C. Shaw, for appellants.
    Alvin Burt, for respondents.
   Opinion by Ingraham, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred. Judgment affirmed, with costs.


text:
    Galen W. Lovatt, Respondent, v. Ellen T. Watson, et al., Appellants.
    Decided March 1, 1886.
    Appeal from judgment on demurrer to answer.
    A. B. Conger, for appellants.
    E. P. Wilder, for respondent.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Opinion per Curiam. Judgment affirmed, with costs.


text:
    Sophie Rosenberg, Respondent, v. Reece M. Oberteufer, et al., Appellants.
    Decided March 1, 1886.
    Appeal from judgment entered on verdict, and from order denying motion for new trial.
    Blumenstiel & Hirsh, for appellants.
    Kurzman & Yea-man, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   Opinion per Curiam. Judgment and order affirmed, with costs.


text:
    Emlen T. Littell, et al., Respondents, v. William Kent, Appellant.
    Decided March 1, 1886.
    Appeal from judgment entered on verdict directed by court.
    G-. Tillotson, for appellant.
    R. W. De Forest, for respondents.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Andrew Tockerson, Respondent, v. Myron H. Chapin, Appellant.
    Decided March 1, 1886.
    Appeal from judgment entered on verdict.
    F. B. Van Vleeclc, for appellant.
    John M. Bowers, for respondent.
    Before Sedgwick, Ch. J., and Ingraham, J.
   Opinion per Curiam. Judgment affirmed, with costs.


text:
    Edward S. Hamilton, et al., Executors, &c., Respondents, v. Cassius H. Reed, et al., Appellants. [Two cases.]
    Decided April 7, 1886.
    Appeals from judgments for plaintiffs entered upon report of referee.
    Christopher Fine, for appellants.
    I. T. Williams, for respondents.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Per Curiam.

Judgments affirmed, with costs.


text:
    Mary E. Burns, an Infant, &c., Respondent, v. William E. Dodge, et al., Appellants.
    Decided April 7, 1886.
    Appeal from order allowing plaintiff to sue as a poor person, &c.
    Edmund Coffin, Jr., for appellants.
    Hugh Coleman, for respondent.
    Before Sedgwick, Ch. J. and O’Gorman, J.
   Opinion per Curiam. Order affirmed, without costs.


text:
    Michael Sheridan, Respondent, v. George H. Christie, Appellant.
    Decided April 10, 1886.
    Appeal from judgment entered at special term.
    Jeroloman & Arrowsmith, for appellant.
    John C. Shaw, for respondent.
    Before Sedgwick, Oh. J., Truax and. O’G-orman, JJ.
   Opinion

per Curiam.

Judgment modified, and affirmed' as modified, without costs to either party.


author: Per Ouriam.

text:
    Karoline Wood, Appellant, v. Edward Wood, Responddent.
    Decided May 3, 1886.
    Appeal from judgment entered on verdict directed by court.
    Edward P. Wilder, for appellant.
    Carlisle Norwood, Jr., for respondent.
   Opinion

Per Ouriam.

Before Sedgwick, Oh. J., and Ingraham, J. Judgment affirmed, with costs.


text:
    Edward B. Merrill, Respondent, v. The Consumer’s Coal Co., Appellant.
    Decided May 3, 1886.
    Appeal from judgment entered upon verdict and from order denying motion for new trial.
    M. Hershfield, for appellant.
    Henry D. Hotchkiss, for respondent.
   Opinion

Per Ouriam.

Before Sedgwick, Oh. J., and Freedman, J. Judgment and order affirmed, with costs.


text:
    Eben Plympton, Appellant, v. William H. Davidson, Respondent.
    Decided May 3, 1886.
    Appeal from judgment for defendant on demurrer to complaint.
    Cook & Warner, for appellant.
    William J. Lippman, for respondent.
   Opinion

Per Curiam.

Before Sedgwick, Oh. J., and Freedman, J. Judgment affirmed, with costs.


text:
    Catharine Donohue, Respondent, v. The Twenty-Third St. Railway Co., Appellant.
    Decided May 3, 1886.
    Appeal from judgment entered on verdict and from order denying motion for new trial.
    Robinson, Scribner & Bright, for appellant.
    Lindsay & Flammer, for respondent.
    Before Sedgwick, Oh. J. and Freedman, J.
   Per Ouriam.

Judgment and order affirmed, with costs.


text:
    Edmund R. Morse, Respondent, v. George H. Morrison, Appellant.
    Decided May 3, 1886.
    Appeal from judgment entered upon verdict, and from order denying motion for new trial.
    Sewell, Pierce & Sheldon, for appellant.
    John J. Thomassan, for respondent.
    Before Sedgwick, Ch. J. and Freedman, J.
   Opinion

Per Curiam.

Judgment and order affirmed, with costs.


text:
    Edward Willis, Administrator, &c., Appellant, v. James Finan, Respondent.
    Decided May 3, 1886.
    Appeal from judgment dismissing complaint.
    J. N. Goldbacher, for appellant.
    J. M. Lyddy, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Clark P. Washburn, et al., Appellants, v. Katherine Schmuck, Respondent.
    Decided May 3, 1886.
    Appeal from judgment entered upon verdict, and from order denying motion for new trial.
    G. W. Galinger, for appellants.
    John Hardy, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion

Per Curiam.

Judgment and order affirmed, with costs.


text:
    The Central National Bank of the City of New York, Respondent, v. Leonard D. White, et al., Appellants.
    Decided May 3, 1886.
    Appeal from order permitting plaintiff, upon terms, to comply with a certain previous order as to which it was in default.
    Edwards & Odell, for appellants.
    Martin & Smith, for respondent.
    Before Sedgwick, Ch. J. and Freedman, J.
   Opinion

Per Curiam.

Order affirmed, with costs.


text:
    Carl Pfeiffer, Respondent, v. James Campbell, et al., Appellants.
    Decided May 3, 1886.
    Appeal from judgment entered upon the report of referee.
    Thomas C. Ennever, and William H. Arnoux, for appellants.
    Stickney & Shepard, for respondent.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    Peter Born, Appellant, v. Henry Schrenkeisen, et al., Respondents.
    Decided May 3, 1886.
    Appeal from judgment dismissing complaint.
    Wehle & Jordan, for appellant.
    MacFarland, Reynolds & Harrison, for respondents.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Laura S. McCall, as Executrix, &c., Appellant, v. Arthur B. Proal, et al., Respondents.
    Decided May 3, 1886.
    Appeal from judgment entered on the dismissal of complaint on the pleadings.
    D. M. Porter, for appellant.
    Thomas F. Wentworth and Felix Jellenik, for respondents.
    Before Freedman and Ingraham, JJ.
   Opinion

Per Curiam.

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


text:
    Justo de Susini Etcheverry, Appellant, v. Edward de Castro, Respondent.
    Decided May 3, 1886.
    Appeal from interlocutory judgment sustaining demurrer to complaint.
    Charles B. Meyer, for appellant.
    E. J. Myers, for respondent.
    Before Sedgwick, Ch. J. and Ingraham, J.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    Vincent Barker, Appellant, v. Niels Poulson, et al., Respondents.
    Decided May 12, 1886.
    Appeal from judgment entered on verdict.
    Isaac N. Mills, for appellant.
    John H. Bird, for respondent.
    Before Sedgwick, Ch. J. and Ingraham, J.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    Maria Fredericks, Appellant, v. Alexander V. Davidson, as Sheriff, &c., Respondent.
    Decided June 8, 1886.
    Appeal from a judgment on verdict, and order denying motion for new trial.
    Francis B. Ohedsey, for appellant.
    W. Bourke Cockran, for respondent.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.
   Opinion by O’Gorman, J. Verdict set aside ; new trial ordered ; costs to abide event.


text:
    Enoch Rutzler, Appellant, v. William Belden, Respondent.
    Decided June 8, 1886.
    Appeal from judgment entered upon verdict directed by court.
    Flanagan & Hamlin, for appellant.
    Marsh, Wilson & Marsh, for respondent.
    Before Sedgwick, • Oh. J. and Truax, J.
   Opinion

Per Curiam.

Judgment set aside ; new trial ordered ; costs of appeal to abide event.


text:
    Leander Taggart, Respondent, v. Edward Annan, et al., Appellants.
    Decided June 8, 1886.
    Appeal from judgment entered on verdict and from order denying motion for new trial.
    James 0. Bergen, for appellants.
    Jerome Buck, for respondent.
    Before Sedgwick, Oh. J. and Ingraham, J.
   Opinion

Per Curiam.

Judgment and order reversed on facts ; new trial ordered ; costs to abide event.


text:
    Edwin D. Bettens, et al., Respondents, v. Anderson Fowler, et al., Appellants.
    Decided June 9, 1886.
    Appeal from judgment entered upon report of referee.
    Martin & Smith, for appellants.
    Bettens & Lilienthal, for respondents.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    The Florida Midland, &c., Co., Respondent, v. Edwin E. Glashin, Appellant.
    Decided June 14, 1886.
    Appeal from order setting aside order of reference.
    Ira Shafer, for appellant.
    Charles B. Meyer, for respondent.
    Before Sedgwick, Ch. J. and Truax, J.
   Opinion by Sedgwick, Ch. J. Order reversed; motion below denied. Defendant to have $10 costs.


text:
    Monitz Cohn, Appellant, v. Edward H. Ammidown, et al., Respondents.
    Decided July 2, 1886.
    Plaintiffs exception ordered to be heard in first instance at general term.
    Leonard Brown, for plaintiff.
    A. P. Whitehead, for defendants.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Opinion by Sedgwick, Ch. J. Exception overruled and judgment for dismissal of complaint, with costs.


text:
    Ward E. Robinson, Respondent, v. Luther M. Fuller, as Executor, &c., Appellants.
    Decided July 2, 1886.
    Appeal from a judgment and order denying motion for new trial.
    William King Hall, for appellant.
    John C. Shaw, for respondent.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Opinion by Truax, J. Judgment reversed ; new trial ordered ; costs to appellant to abide event, unless plaintiff stipulate to reduce verdict to $235, in which event judgment affirmed, without costs to either party.


text:
    Peter Lappin, Appellant, v. George Taylor, Respondent.
    Decided July 2, 1886.
    Appeal from an order setting aside verdict and granting new trial.
    John Delahunty, for the appellant.
    A. B. Conger, for the respondent.
   Opinion by Truax, J.; O’Gorman, J., concurred. Order affirmed, with costs.


text:
    Elizabeth C. Wardwell, Appellant, v. The Mayor, &c., of New York, Respondents.
    Decided July 2, 1886.
    Appeal from judgment in favor of defendants, entered on verdict rendered by direction of court.
    Moore, Low & Sandford, for appellant.
    E. H. Lacombe, for respondents.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Opinion by O’Gorman, J. Judgment and order affirmed, with costs.


text:
    Mary T. Barnes, by Guardian, &c., Respondent, v. James R. Keene, Appellant.
    Decided July 2, 1886.
    Appeal from judgment entered on verdict, and from order denying motion for new trial.
    Shipman, B. L. & C., for appellant.
    S. H. Bandall, for respondent.
    Before Sedgwick,.Ch. J., Truax and O’Gorman, JJ.
   Opinion by O’Gorman, J. Judgment and order affirmed, with costs.


text:
    Marshall Cutler, et al., Respondents, v. The American Exchange National Bank, Appellant.
    Decided July 2, 1886.
    Appeal from judgment entered on verdict.
    L. B. Bunnell, for appellant.
    Dudley B. Horton, for respondents.
    Before Sedgwick, Ch. J. and O’Gorman, J.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    John Merry, Appellant, v. Evan T. Hoopes, Respondent.
    Decided July 2, 1886.
    Appeal from judgment at special term.
    George B. Carrington, for appellant.
    Clark & Sanborn, for respondent.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Per Curiam.

Judgment is affirmed with costs, on the opinion of the trial judge.


text:
    Frederick H. Betts, et al., Respondents, v. The Eagleton Manufacturing Co., Appellants.
    Decided July 2, 1886.
    Appeal from order of reference to hear and determine.
    John E. Parsons, for appellant.
    Thomas Hunt, for respondents.
    Before Truax and Ingraham, JJ.
   Opinion

Per Curiam.

Order reversed, with $10 costs and disbursements, and motion to refer denied.


text:
    William D. Shipman, et al., Respondents, v. The Engleton Manufacturing Co., Appellant.
    Decided July 2, 1886.
    Appeal by defendant from order of reference to hear and determine.
    John E. Parsons, for appellant.
    Thomas Hunt, for respondents.
    Before Truax and Ingraham, JJ.
   Opinion

Per Curiam.

Order reversed, with $10 costs and disbursements, and motion to refer denied.


text:
    James H. Newall, Respondent, v. Edward B. Bartlett, et al., Appellants.
    Decided July 6, 1886.
    Appeal from a judgment in favor of the plaintiff for $2,284.75 entered on a verdict of a jury, and also from an order denying defendants’ motion for a new trial. The facts appear in the opinion.
    Goodrich, Deady & Platt, for appellants.
    Nelson Smith, for respondent.
   Opinion by O’Gorman, J. ; Sedgwick, Oh. J., concurred. Judgment and order affirmed, with costs.


text:
    The Mayor, &c., Respondents, v. Collis P. Huntington, Appellant.
    Decided July 6, 1886.
    Appeal from judgment.
    Charles N. Tweed, attorney, and Francis Lynde Stetson, of counsel for appellant.
    E. H. Lacombe, counsel to the corporation, and D. J. Dean, for respondents.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Per Curiam.

The judgment is affirmed with costs, on the opinion of the trial judge.


text:
    Morris C. Mengis, Appellant, v. The Mayor, &c., Respondents.
    Decided July 22, 1886.
    Appeal from judgment.
    Fleischman & May, for the appellant.
    E. Henry Lacombe, corporation counsel, and Arthur H. Masten and John J. Townsend, Jr., for the respondents.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Per Curiam.

Judgment affirmed, with costs, on the opinion of the trial judge.


author: Freedman, J.

text:
    EMILY De SILVER v. HOWARD HOLDEN.

      Execution against person—Neglect in issuing.—Code, § 572, effect of amendment, 1886.
    Prior to the amendment passed June 15, 1886, of § 572, Code Civ Proe., plaintiff was not chargeable with neglect for failure to issue execution against the person within three months after the entry of judgment, unless the defendant was in actual custody.
    Where defendant was not in such custody plaintiff is not chargeable with neglect, and therefore the execution will not be set aside, if it be issued within three months after the passage of said amendment, though more than that period had passed since entry of judgment prior to such amendment.
    Section 572, as amended in 1886, is not peremptory, but authorizes a denial of the application to set aside the execution, whenever reasonable cause-is shown why such application should not be granted.
    At Special Term.—Before Ereedmajst, J.

      Decided October 29, 1886.
    Motion to set aside executions against the person.

      Edward P. Wilder, for the motion.

      C. Bainbridge Smith, in opposition.
   Freedman, J.

This is a motion to set aside two executions • against defendant’s person. Of the grounds assigned, only one requires serious consideration. The others are, under the circumstances shown, clearly untenable.

The ground which does present a grave question, is that the said executions were not issued within three months after the entry of the respective judgments upon which they are based.

Prior to the amendment of section 572 of the Code of Civil Procedure, passed June 15, 1886, the ground stated was available only to a -defendant in actual custody, which is not the case of the present defendant. The amendment of 1886 abolishes the requirement of actual custody, and, except in a case where an order of arrest can be granted only by the court, enables a defendant in any event to make the motion upon proof that the plaintiff neglected to issue the execution within three months after the entry of the judgment.

In the case at bar the first judgment was entered upon a demurrer to the complaint on or about January 18, 1884, for the sum of $2,643.98. The defendant appealed from said judgment to the general term, which affirmed the same. Judgment of affirmance was entered in April, 1884, with $66.10, costs. Upon these judgments executions against defendant’s property were issued May 21, 1886, and returned unsatisfied July 20, 1886. Thereupon executions against defendant’s person were issued July 28, 1886, and the same having been returned September 27, 1886, with the endorsement “ not found,” alias executions against the person were issued October 2, 1886. Defendant’s motion is to set aside the alias executions.

Upon these facts it is clear that the plaintiff did not issue the executions against defendant’s person within three months after the entry of the judgments. But is he chargeable with any neglect ? Prior to the amendment of 1886, the plaintiff was under no duty to enter judgment, or to issue execution thereon within three months, unless the defendant was in actual custody, which was not the case. Moreover, as matter of fact, the plaintiff did issue executions against defendant’s person in less than two months after the amendment took effect.

No neglect within the meaning of the law has therefore been established, and the defendant upon whom the burden of proof in this respect rests, has not brought himself within the statute.

Moreover, this failure to establish neglect constitutes also a sufficient reason in another respect, why defendant’s application should he denied. Section 572, as amended in 1886, is not peremptory. It authorizes in express terms a denial of the application whenever reasonable cause is shown why the application should not be granted. The facts disclosed and the absence of neglect do constitute such reasonable cause.

This disposition of the motion renders it unnecessary to determine whether cases pending at the time the amendment of 1886 went into effect, do or do not remain wholly unaffected by said amendment.

The motion must be denied, with $10 costs.


text:
    JAMES M. SHAW, et al., v. FREDERICK W. COLEMAN, et al.

      Notice of motion, when must he given.—Motion to sever action.

    Where defendants’ answer admits part of plaintiffs’ claim, an order, under section 511 of the Code of Civil Procedure, that the action be severed and that plaintiffs have judgment for the part admitted, may be made' ex parte, although in general it may be better practice to require notice to be given; and where defendants are not prejudiced the order should not be disturbed.
    General rules as to notice of motion stated by the court.
    At Special Term. Before Freedman, J.

      Decided October 30, 1886.
    Motion by defendants to set aside an order granting judgment for part of plaintiffs’ claim admitted by the answer, and to set aside the judgment and execution.

      Adams & Bootliby, for the motion.

      Edward S. Clinch, opposed.
   Freedman, J.

Upon the service of defendants’ answer, the plaintiffs, claiming that the answer admitted part of plaintiffs’ claim in suit, obtained an ex parte order that the action be severed, and that the plaintiffs have judgment for the part admitted. The plaintiffs entered judgment as authorized by the order, and issued execution.

The defendants now move that the order, judgment and execution be set aside, for the reason that the order was obtained without no„tiee to them.

Section 511 of the Code of Civil Procedure authorizes the court, in its discretion, to make such an order under certain circumstances upon the plaintiff’s motion, but is silent as to the requirement of notice. No other provision can be found which specifically regulates the exercise of the power of the court.

Section 780 applies to cases in which notice is necessary, and for which special provision has not otherwise been made by law,, or by the general rules .of practice, but it does not define the cases in which the necessity exists.

The language of 'Rule 87 of the general rules, it is true, is broad enough to require all motions to be brought before the court on a notice, or by an order to show cause. But when it is considered that undep section 768 of the Code, every application for an order, which includes every application for an order to show cause, is a motion, and that the Code expressly authorizes many applications for an order to be made ex parle, while as to others it not only requires notice, but specifically prescribes the land and length thereof, and that as to a third class it is silent, Buie 37 cannot be enforced literally. In actual practice the rule applies, like section 780, to cases not specifically provided for and in which notice is necessary. But it no more defines the cases in which the necessity exists than section 780 does.

The same remark may be made concerning the former rule in chancery, which under the decision of Martine v. Lowenstein (6 Hun, 225: affirmed 68 N. Y., 456) still prevails, at least in equitable actions, that by appearing in the action the defendant acquires the right to a notice of every subsequent step in the action, though he has no defense to interpose.

The truth is that there are many applications for orders as to which no special provision exists that notice shall be given, and that such orders are constantly granted ex parte, although there is no specific authorization for such practice. In every such case much depends upon the particular facts presented, the circumstances under which the application is made and the discretion of the court or judge applied to.

Where an order may be made upon proof to the satisfaction of the court or judge of a certain fact, or the presentation of a pleading or affidavit or other paper showing certain things specifically named, and no provision exists as to giving notice of the application, the necessary implication is that notice of the application for the order need not be given, provided the applicant ask for no more than under all the circumstances he is strictly and specifically entitled to.

The true test as to necessity of notice of motion in a case not specially provided for, is therefore as follows: If upon the particular facts presented the applicant is entitled to the precise order applied for as a matter of strict right, and the adverse party is powerless to oppose, the order may be granted ex parte, even though it might be better practice to require notice to be given. But if the adverse party appears for any reason to be entitled to be heard in opposition to the whole or any part of the relief sought, the application must be made on notice to such adverse party.

An omission to give notice of motion where such notice should have been given, constitutes ground for a motion on behalf of the adverse party to set aside the order obtained ex parte. But even then the order may be allowed to stand, if it should be made to appear that the adverse party was in point of fact in nowise prejudiced.

These principles seem to be so firmly established that they cannot well be disturbed except by future legislation.

In the case at bar the complaint is upon a draft or bill of exchange drawn by the defendants to the order of the plaintiffs and not paid at maturity. The answer admits the drawing of the draft or bill of exchange and its non-payment, but avers that the same was given for the purchase price of certain goods sold and delivered by the plaintiffs to the defendants under a certain representation as to quality, that the goods as delivered were not of the quality as represented and were worth 25 per cent, less than the price charged, in consequence of which there was a failure of consideration for the draft or bill of exchange to the extent of 25 per cent, of the amount expressed therein. The matters thus set forth involve an admission upon the record that at least 75 per cent, of plaintiffs’ claim was due at the time of the commencement of the action. Taking this view of it, the plaintiffs’ attorney applied for an order that the action be severed and that judgment be entered for the plaintiffs for the 75 per cent, of the claim so admitted. The court entertained the application under section 511 of the Code, which provides that where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed and that a judgment be entered for the plaintiff for the part so admitted. In the exercise of its discretion upon the facts presented, the court did not require notice of the application to be given to the defendants," and, as the case was a plain one, the order was granted as prayed for. Nor did the plaintiffs take any more than the court was specifically authorized to give them.

Under these circumstances I cannot see how the defendants were in any wise prejudiced in a legal sense. They adduced no proof- that they were. As the answer contains no counterclaim, no claim of set-off, nor a claim of recoupment, and the defendants affirmed the contract by retaining the goods, they are really liable for the whole amount sued for, because a breach of warranty not pleaded as the basis of a claim for affirmative relief never constitutes a want of consideration.

My final conclusions are :

1. That inasmuch as section 511 does not require notice to be given, the court in its discretion and under the circumstances of this case, had the power to act upon plaintiffs’ ex parte application and to make the order complained of, although in general it may be the better practice under the said section to require notice to be given; and

2. That inasmuch as the defendants were not prejudiced no reason exists for disturbing the order.

' The motion to set aside the order and the judgment entered thereon and the execution issued should be denied.


text:
    FRANCIS W. WHITTAKER v. THE NEW YORK & HARLEM R. R. CO.

      Attorneys' lien, what on—Measure of, as between attorney and client, as between attorney and opposite party—Agreements as to validity of—Section 66, constructive notice—Enforcement of lien—Vacating satisfaction of judgmeni to protect the lien.

    Under section 66 of the Code of Civil Procedure, as amended in 1879, a plaintiff’s attorney has a lien on his client’s cause of action from the commencement of the action, and a defendant’s attorney on the counterclaim set up in the answer from the time of its service, for his compensation, which attaches to a verdict, report, decision or judgment, in his client’s favor, and the proceeds thereof, in whosesoever hands they may come, and which cannot be affected by any settlement between the parties before or after judgment.
    This lien is given in every action, including an action founded on a tort for personal injuries.
    The measure of the lien where there is an express agreement as to compensation, which is shown to the court to be fair and just, and entered into understandingly by the client, is the compensation .provided for in such agreement; this though the compensation may have been made contingent upon success, and payable out of the ¡n'oceeds of the litigation. And where there is no express agreement, or the express agreement is not shown to the court to be fair and just, and entered into understandingly, it is the reasonable value of the services.
    Where the agreement as to compensation is such that it will be enforced as between the attorney and client, it will be upheld and enforced as against the opposite party to the litigation who compromises with the attorney’s client, without his knowledge and in face of express notice of the attorney’s lien and of its amount, and subject to the rights of the attorney, the full extent of which were made known.
    Section 66 of the Code of Civil Procedure is of itself constructive notice of the existence of á lien.
    To enforce the lien in case of a settlement between the parties, while it is not now necessary to prove fraud or collusion by or between them to deprive the attorney of his compensation, yet the attorney must prosecute the litigation to final judgment—for it is only through collection upon final judgment that his lien can be satisfied.
    The court has the power to, and in a proper case will, on motion set aside and vacate a satisfaction of judgmeni entered upon a settlement between the parties, without the attorney’s compensation being paid or provided for, to such extent as may be necessary to protect his lien. Coughlin v. N. Y. C. & H. R. R. Co. 71 N. Y., 443, and Tuttle v. Village of Cortland, 21 Week. Dig. 528, distinguished.
    At Special Term. Before Freedman, J.

      Decided November 3, 1886.
    Motion to vacate satisfaction of judgment, and for further relief.
    The facts appear in the opinion.

      Chauncey S. Truax and Chauncey Schaffer, for the motion.

      Anderson & Howland, in opposition.
   Freedman, J.

This is a motion made by Chauncey S. Truax, attorney for the plaintiff herein, for an order vacating and setting aside the satisfaction of the judgment for $10,646.73, entered herein March 24, 1884, in favor of the plaintiff, and against the defendant, and for other and further relief. The satisfaction took place upon a satisfaction piece executed by the plaintiff purporting to have been executed August 4, 1886, and filed in the office of the clerk of this court, October 7, 1886.

The papers submitted on both sides are quite voluminous, but there is no substantial conflict as to the material facts which, briefly stated, are as follows, viz.:

The action was brought by the plaintiff to recover damages for a personal injury in consequence of having been run over by a car of the defendant. Truax was not the attorney who brought the action. He was retained as counsel during the pendency of the litigation, and as such he tried the case. The trial resulted in a verdict in favor of the plaintiff for $10,000, upon which a judgment was entered March 24, 1884, for $10,646.73.

On that day, and before the entry of the judgment, Truax, by agreement with the attorney then of record and with the plaintiff, was duly substituted as attorney of record, and from that time on he acted as the attorney and counsel of the plaintiff in the proceedings hereinafter referred to, and was recognized as such by the defendant. As such he entered the judgment already spoken of. About a month thereafter the defendant, upon voluminous affidavits, moved to set aside the verdict, to vacate the judgment, and for a new trial, upon the ground of surprise at the trial. This motion was denied October 11th, 1884. From the order denying the same defendant appealed, but the general term affirmed the order. The defendant also perfected an appeal from the judgment, but after argument the judgment was affirmed by the general term in February, 1885, with costs. The defendant thereupon perfected an appeal to the court of appeals from the judgment entered on the verdict and from the judgment of the general term affirming the first judgment, and this appeal is still pending.

For all the services thus rendered Truax never received any compensation. It was agreed, however, between him and the plaintiff and the attorney in whose place and stead he had been substituted, that his compensation for his services in the action should be fixed at the sum of $5,000, which was one half of the verdict, and that in addition he should have the whole of the costs of the action and interest on the total amount coming to him from March 24, 1884.

On November 22, 1884, Truax caused to be duly served upon the defendant and its attorneys a notice stating that he had an interest in and lien upon the judgment to the extent of one half thereof, besides the costs of the action, and warning them against making any settlement or compromise without his knowledge or consent.

After the service of this notice Truax heard of several attempts made on behalf of the defendant to bring about a settlement with the plaintiff, and he thereupon, on or about August 1, 1885, caused to be duly served upon the defendant and its attorneys of record a second notice, which stated, that he had an interest in and lien upon the judgment to the extent of $5,000, with interest thereon from March 24, 1884, and of the costs inserted in the judgment amounting to $600, with interest thereon from March 24, 1884, and which warned them against making any settlement or compromise without his knowledge or consent.

Notwithstanding the service of these notices, the defendant persisted in attempts to settle with the plaintiff directly, and the final result was that the plaintiff eventually, in consideration of $3,500 paid to him, executed and delivered to the defendant, without the knowledge or consent of Truax, a satisfaction piece of the judgment. This satisfaction piece purports to have been signed and acknowledged by the plaintiff on August 4, 1886, but it was not filed until October 7, 1886.

It is now shown, by the affidavit of the plaintiff and of his wife, that, in making this settlement, the plaintiff intended to release to the defendant only his interest in the judgment; that, at the time of making it, the plaintiff, in the most unequivocal terms, stated to the agents of the defendant who negotiated the settlement, that he would only make it subject to whatever interest or lien Truax, as his attorney, might have, and that he finally made it upon the assurance of said agent that Truax’s interest would be respected and taken care of by the defendant.

Upon the argument of the motion, the learned counsel for the defendant conceded that Truax had an interest in the judgment which the court would protect, but they strenuously contended that defendant’s liability for such interest extends only to the reasonable value of the services rendered by Truax as attorney; that the agreement between him and the plaintiff was void as against the defendant under the rules relating to champerty and maintenance; and that the amount claimed by him was unreasonable.

This contention calls for a determination of the precise nature, character and extent of the said interest.

■ As shown by me in McCabe v. Fogg (2- Monthly Law Bull., 7), the hen of an attorney for compensation did not, under the old Code, exist before verdict or judgment, except on the papers in his hands, and it was only in the case of a settlement privately effected between the parties with the design of defrauding the attorney, that the court could insist upon the payment to him of at least the taxable costs before granting a discontinuance or leave to serve a supplemental answer shoAving settlement. The Code of Civil Procedure, as originally passed, did not change the law upon this point, as .it then stood, and Quincey v. Francis (5. Abb. N. C. 286), is simply a decision to this effect. The amendment, of § 66 of the Code of Civil Procedure, passed in 1879, for the first time gave to every attorney or counsellor, from the commencement of an action, or the service of an answer containing a counterclaim, a lien upon his clients’ cause of action or counterclaim which attaches to a verdict, report, decision or judgment in his clients’ favor, and the proceeds thereof, in whosesoever hands they may come, and which cannot be affected by any settlement between the parties before or after judgment.

The lien of a plaintiff’s attorney extends now to the whole of the compensation to which he is entitled for his services, whatever that may be (Albert Palmer Co. v. Van Orden, 64 How. Pr. 79), which statement must be taken, however, with the qualification that the lien is upon the actual cause of action, and not upon the one alleged in the complaint (S. C. 49, Super. Ct. 89).

Nor does § 66 apply only to actions on contract. It gives a lien in every action. This being so, the rule that a personal cause of action founded upon a tort is not assignable, can no longer be invoked to defeat the legitimate claim of an attorney for which he has a lien.

Having a lien under all circumstances for his legitimate claim, it becomes necessary to consider to what extent the attorney of a plaintiff can make a claim for compensation which the law will uphold.

The extent of the compensation of an attorney for Ids services is governed by the agreement existing between him and the client, which may be either express or implied. Formerly an attorney was under a disabihty so to contract. This disability was removed by the old Code, and thereupon attorneys were left free to contract with their clients as to their compensation beyond the allowances given by statute. The freedom so to contract was continued by § 66 of the Code of Civil Procedure.

Notwithstanding these facts, the courts exercise a strict supervision over such contracts. Whenever a contract between an attorney and his client gives benefits or advantages to the attorney, the court will scrutinize it with care. All presumptions are in favor of the client and against the propriety of the transaction, and the burden is upon the attorney to show, by extrinsic evidence, that all was fair and just, and that the client acted understandingly (Haight v. Moore, 37 Super. Ct. 161, and cases there cited; Allison v. Sheeper, 9 Daly, 365).

But where an attorney does show that all was fair and just and that the client acted understandingly, the contract must be upheld and enforced, although by it the attorney’s compensation may have been made contingent upon success and payable out of the proceeds of the litigation (Forstman v. Schulting, 35 Hun., 504, and cases there cited; Fowler v. Callan, 5 East. Rep., 549).

In the case last referred to, the court of appeals of the state of New York went so far as to hold, that an attorney may now not only agree with his client that his compensation shall be contingent upon his success and payable out of the proceeds of the litigation, but that he may also, without violating the statute relating to champerty and maintenance, agree to assume all costs and expenses of the litigation and indemnify his client against them, as long as he did not by the promise of such an agreement, or by the agreement, stir up the strife and induce the litigation.

Coughlin v. N. Y. C. & H. R. R. R. Co. (71 N. Y., 443), upon which the defendant in the case at bar strongly relies, was a case which arose before the amendment of § 66 of the Code of Civil Procedure in 1879, and in which it moreover conclusively appeared that the agreement of the attorney had induced the client to place the claim into the hands of the attorney for prosecution. It is clearly distinguishable from the case before me.

In the case at bar the complaining attorney is not the attorney who commenced the action, nor had he any interest in it at that time. No collusion between him and the attorney who brought the action is even suggested. By his agreement he did not obligate himself to assume the costs and expenses of the litigation aiid to hold the client harmless. He stirred up no strife and induced no litigation. It is clear therefore that the agreement is not void under any rule still in force relating to the doctrine of champerty and maintenance.

But the question still remains whether under all the circumstances the agreement was a fair one. Upon this point it appears that the agreement made with him concerning his compensation was made by the client with the sanction of the attorney then of record; that the client has never complained of any unfairness, but has steadily insisted, and still insists, that the said complaining attorney is entitled to the whole of the compensation secured to him by the agreement. Under these circumstances, and in view of the many valuable services successfully rendered by said attorney, I cannot see how the court can pronounce the agreement an unfair one.

If then the agreement was a fair one between attorney and client, how can the defendant claim the contrary ? There is neither authority nor principle for such a claim. As already shown, section 66 of the Code of Civil Procedure expressly provides that the compensation of an attorney or counsellor for his services is governed by agreement, express or implied. To that extent he has a lien. To uphold the contention of the defendant the court would have to say, that, though there may be one agreement between attorney and client as to the attorney’s compensation which is in all respects fair, the court may make another and different one between the attorney and the defendant whenever the defendant sees fit to settle with the plaintiff without the IcnoAvledge or consent of the attorney. If this can ever be done, it certainly cannot be done in a case like the present in which the defendant settled in the face of express notice and subject to the rights of the attorney, the full extent of Avhich were made known.

In this connection reference should be made to the reasoning of the court at general term in Tuttle v. Village of Cortland (21 Week. Dig., 528), which has been cited by the defendant, but which does not support defendant’s contention. It was there said that § 66 of the Code of Civil Procedure is not designed to prevent litigants from fairly compromising and settling their suits without the assent of their attorneys, but simply to protect attorneys from being deprived of their compensation by settlements which deprive them of the means to recover their compensation. But this Avas said concerning a settlement which in no wise impaired or imperiled the attorney’s lien upon the judgment. The attorney claimed but $243.53. By the terms of the settlement the good faith of which was not impugned, the sum of $1,112.53 was agreed to be paid at a future period, and upon that the lien of the attorney remained. It was for these reasons that it was held, and very properly 'held, that the attorney had no right to have the settlement set aside.

The examination so far made fully establishes that the complaining attorney had, at the time of the satisfaction of the judgment, an interest in and lien upon the judgment to the extent of $5,646.73, with interest thereon from March 24, 1884 ; that the defendant not only had constructive notice under § 66 of the Code of the existence of a lien, for every person is presumed to know the law, but also had actual notice of the precise amount of the lien ; and that consequently the satisfaction of the judgment was in violation of the rights of said attorney. Moreover, it was further shown that the said attorney also holds in his own right an absolute assignment to him by the plaintiff of one half of the verdict and of all the costs of the action, and that the plaintiff is wholly insolvent.

Under these circumstances the attorney must be protected to the full extent of his rights in the premises, and the only remaining question is as to the manner in which it shall be done.

As pointed out in McCabe v. Fogg (supra), the amendment to § 66 of the Code passed in 1879, though giving a more extensive hen, provided no new remedy for the enforcement of the lien. In order to enforce it, therefore, in the case of a settlement before final judgment, the attorney, while he need no longer prove fraud or collusion, must go on with the litigation until final judgment as under the former practice. The defendant cannot be compelled to pay by a mere order. To the same effect are Forstman v. Schulting (35 Hun, 504), and Albert Palmer Co. v. Van Orden (64 How. Pr., 79, as modified in 49 Super. Ct., 89).

How this practice probably originated was pointed out by East, J., in delivering the opinion of the court of appeals in Coughlin v. N. Y. C. & H. R. R. R. Co. (71 N. Y., 443).

My final conclusion is that the satisfaction of the judgment must be vacated and set aside except as to the sum of $5,000 released by the plaintiff by virtue of his settlement, and that Mr. Truax, as the attorney of the plaintiff, must be left at liberty to prosecute the appeal still pending in the court of appeals and, in the event of an affirmance of the judgment, to enforce the judgment to the extent of his rights in the same manner as if no settlement between the plaintiff and the defendant had taken place.

The motion is therefore granted to the extent indicated, with $10 costs.


author: O’Gorman, J. Sedgwick, Ch. J., (concurring)

text:
    MARY ANN DOHERTY, et al., Grantors of Charles Jones v. GEORGE W. MATSELL, Jr., et al.

      Ejectment.—Statute of Limitations.—Adverse possession originating during tax lease, effect of as postponing time when statute begins to run—Direction of verdict on specified ground, when judgment not sustained on other claimed grounds—Death pendente lite of some of plaintiffs in action brought under section 1501 Code—Effect of.

    Adverse possession originated during the term demised by a tax lease cannot ripen into a title as against the owner in fee, until the expiration of twenty years from the expiration of the demised term, and of such further terms as may be demised by subsequent tax leases, each subsequent lease being made before the expiration of the term demised by the one immediately prior thereto, such owner not attacking the leases.
    Thus in the case at bar the plaintiff claimed by various mesne conveyances from Yallas Hopper, who in 1829 had the paper title to, and was claimed to have had actual possession thereunder of the locus in quo.
      In 1848, one Matsell, Senior, went into possession under a tax lease to him for a term of twenty-five years from September 5, 1848. This lease was his only paper title. In February, 1857, Matsell, -Senior, gave a quit claim deed to Mickle, 'and also assigned to him the tax lease. Mickle went into possession and continued in possession for about a year when he was either disseized by Matsell, Senior, or Mat-sell, Senior, re-entered by the consent and acquiescence of Mickle. In 1861 the premises were again sold for taxes and tax lease thereof, given to Francis Owens for a term of fifteen years from November 15, 1861. This lease was in 1862, assigned to George Matsell, Senior. In 1864 George Matsell, Senior, conveyed to George Matsell, Jr., one of the defendants herein, by an absolute deed, who entered under the deed and remained in possession thereof and was in possession at the time of the commencement of this action on October 19, 1883.

      Held, that the defense of title by adverse possession was not on these facts sustained; since the plaintiff could not at any time prior to 1874, have maintained an action of ejectment, and he was entitled to twenty years thereafter in which to bring his action.
    Where the court below directs a verdict against the appellant on a certain specified ground, and the appellate court holds that the ground specified does not support the direction, the judgment entered on the direction cannot be upheld on the ground that some fact essential to a recovery or to the defense (as the case may be) as to which some evidence was given, but which was not passed upon by the court -below, was either not proved or insufficiently proved. Per Sedgwick, Ch. J.
    The death of some of the parties plaintiff in an action of ejectment brought by a grantee in the name of his grantors under § 1501 of the Code, pending the action, is not cause for dismissal of the complaint; nor can a direction of a verdict for the defendant, otherwise unsupported, be sustained by reason thereof.
    Before Sedgwick, Ch. J., and O'Gorman, J.

      Decided November 8, 1886.
    Exceptions ordered to be heard at general term.
    Action of ejectment to recover possession of four lots ■of land on the north side of Eighty-Third Street, between First and Second avenues in this city.
    The appeal hook shows that before plaintiffs rested, some testimony had been given on their behalf on the subject of one of their ancestors in their paper title— to wit, one Tallas Hopper, being in actual occupation of the locus in quo from 1820 to about 1830, holding a paper title thereto; also that plaintiffs’ evidence established that two of the plaintiffs, to wit, Mary Ann Doherty and Margaret A. Lauter had died since the commencement of the action. It also shows that at the close of plaintiffs’ case defendants moved to dismiss the complaint on the grounds that the plaintiffs had not proved affirmatively that either themselves or their ancestors were in possession of the property within twenty years of the time of the commencement of the action; that there was no sufficient proof of the possession of the property by Tallas Hopper, or any of the parties through whom title is derived down to the plaintiffs; that it appeared in evidence that Mary Arm Doherty died since the commencement of the action, entitled to a life estate, and the action has not been revived in the name of her executor; that Margaret A. Lauter died since the commencement of this action, leaving a will, and her executors Avere not made parties; that the motion was denied and defendants excepted. It also shoAvs that at the close of the whole testimony, defendants’ counsel moved the court to direct a verdict for the defendants, on the ground that adverse possession had been proved for at least thirty years on a claim of title; that the motion was granted, and the court directed a verdict for defendants on that ground, to which direction plaintiffs excepted.
    The court ordered plaintiffs’ exceptions to be heard in the first instance at the general term, judgment meanwhile to be suspended.
    The other facts in the case sufficiently appear in the opinion.

      Thain & Kearney, attorneys, and John Townshend and Alex. Thain, of counsel for plaintiffs, on the questions considered in the opinions argued:—

      I. The possession of Tallas Hopper having been established under conveyances to him and a complete chain of conveyances from his executors and their grantees down to the plaintiffs and their grantor, the surviving plaintiffs were entitled to recover, unless an adverse possession of twenty years has been established in favor of the defendants (Code Civ. Proc., § 368).
    II. Possession having been shown in Tallas Hopper, possession of his grantees and those claiming under him will be presumed until twenty years adverse possession has been established in some other person (Code Civ. Proc., § 368).
    HI. The possession of George W. Matsell, Sr., having been commenced in 1849, and there being no evidence of title in Mm other than the tax lease, it will be presumed that his possession was under that lease. In fact he assigned the lease to Mickle in 1857, and gave quit claim deed to accompany it at the same time. There is no evidence of any oral or other declaration of Matsell, making any other or different claim of title. This is more than presumptive—it is direct evidence that Mat-sell entered “ under and subordinate to the legal title ” (Code Civ. Proc., § 368).
    IV. The tax lease continued in operation for twenty-five years from September 25, 1848, and expired on September 25, 1873, so that George W. Matsell and his successors in interest were rightfully in possession during the continuance of that lease, and had the right to remain in possession for one month thereafter, for the purpose of removing buildings, &c. (Robinson v. Phillips, 65 Barb., 418; s. c., 56 N. Y., 634). The plaintiffs had no cause of action by way of ejectment, they not attacking the lease until September or October, 1873, and then it was that the adverse possession began; or about ten years before the commencement of this action. No adversé possession could be acquired under the tax lease (Gross v. Welwood, 90 N. Y., 638; Bedell v. Shaw, 59 Ib., 46; Hoyt v. Dillon, 19 Barb., 644),

      The case of Sands v. Hughes (53 N. Y., 287) is not ip conflict, but rather in confirmation of this doctrine. There the plaintiff attacked the lease, and the court ruled, that if there was no lease, then defendants’ possession was not subordinate to, but rather adverse to the legal title; while if the lease were conceded defendants could not be ejected until after the expiration of the term.

      Thomas H. Barowsky, attorney, and John C. Shaw, of counsel for defendants, on the questions considered in the opinions:—
    I. In order to maintain this action the plaintiffs must show conclusively that their ancestor, predecessor or grantor was seized or possessed of the premises in question within twenty years before the commencement of the action (§ 365 Code Civ. Proc.,; Sherman v. Kane, 86 N. Y., 64; Hanse v. Mead, 27 Hun, 164). The possession of a record in paper title is not sufficient of itself on which to maintain an action of ejectment—possession must accompany the legal title. There was not a particle of evidence to show (except the hearsay testimony of Waldron) that the plaintiffs, or any of their alleged ancestors, predecessors or grantors down to the conveyance to Jones in 1883 (a period of about ninety-six years) ever actually occupied or were ever in possession of these premises, or ever exercised any acts of ownership over them whatsoever. This was not enough (Miller v. Downing, 33 Barb., 386; Thompson v. Burhans, 79 N. Y., 93; Roberts v. Baumgarten, 51 Super. Ct., 482; Miller v. Downing, 54 N. Y., 631; Gardner v. Heart, 1 Ib., 528; Stevens v. Hauser, 39 Ib., 302; 2 Greenleaf Ev., § 303 ; Adams on Ejec., 32, 285; Chitty on Pleadings, 172 Ia., 209 [7th ed.] ; Christy v. Scott, 14 How. [U. S.], 282; Lamont v. Cheshire, 65 N. Y., 30-3).
    n. The defendant on the trial established by abundant and undisputed evidence, both oral and documentary, a clear and perfect title to the premises in controversy by an adverse possession of the same for a period of over tioenty-five years. The possession and occupation of the premises in question by the defendant, his predecessor and grantor during the twenty-five years prior to the commencement of these actions, meets with all the requirements of law to originate and complete a perfect title to the same by adverse possession under the statutes of limitation (Bolton v. Schriever, 49 Super. Ct., 158; 2 Washburn Real Prop., § 501; Thompson v. Burhans, 79 N. Y., 93, 99; Sherman v. Kane, 86 Ib., 57; Shriver v. Shriver, Ib., 575; Humbert v. Trinity Church, 24 Wend., 587; School District v. Lynch, 33 Conn., 334; Thompson v. Pioche, 44 Cal., 517; Foulke v. Bond, 12 Vooom. [N. J.], 541; Samuels v. Borrowscate, 104 Mass., 210; 2 Smith’s L. C., 565; Bell v. Denson, 56 Ala., 448 ; Poignard v. Smith, 6 Pick., 172 ; Jackson v. Warford, 7 Wend., 62; Sands v. Hughes, 53 N. Y., 287). The two periods of time during which this defendant and his grantor and predecessor, George W. Matsell, Sr., had possession of the premises, when joined or tacked together, form one continuous and uninterrupted possession from 1858, when Matsell, Sr., disseized Andrew H. Mickle, and entered for the second time into possession, down to the time of the commencement of these actions in 1883, a period of over twenty-five years. There was a privity of estate between them by purchase, and their consecutive possessions joined together make a continuity of disseizin (Simpson v. Downing, 23 Wend., 320; Haynes v. Boardman, 119 Mass., 415; Wheeler v. Moody, 9 Texas, 377 ; Benson v. Stewart, 30 Miss., 57; Chandler v. Rushing, 38 Texas, 595; Riggs v. Fuller, 54 Ala., 146 ; Day v. Wilder, 47 Vt., 583 ; Howland v. Newark Cemetery Ass’n, 66 Barb., 366; Dowell v. De La Lanza 20 How. [U. S.], 32; 2 Washburn Real Prop., §§ 7, 489, 493).
    IH. The introduction by the plaintiffs of tl e tax lease of September 5, 1848, from the mayor, &c., of the city of New York, to George W. Matsell, and the subsequent assignment of the same by him to Andrew H. Mickle in 1857, and the tax lease to Owens dated November 15, 1861, did not in any way affect the defendants' title to the premises in dispute under the statutes of limitations. If Matsell, Sr., entered into possession under the first of these tax leases—and this was the only right he had to the possession of the property, he could still grant the land in fee to Mickle. An entry under that grant, and claiming title from the latter, is a sufficient foundation for an adverse possession under claim of title (Sands v. Hughes, 53 N. Y., 287). Possession of land under a deed given without right is adverse to the rightful owners, and a subsequent deed executed by them during such adverse possession is void (Jackson v. Smith. 13 Johns., 466; Thurman v. Cameron, 24 Wend., 87; Bradstreet v. Clark, 12 Ib., 602 ; Sands v. Hughes, 53 N. Y., 287).
    IY. The plaintiff’s motion for a new trial must be denied, if it clearly appears that he was not entitled to succeed upon the trial below. The proper parties, plaintiffs, were not before the court when the action was tried. These actions 'were brought in the names of six plaintiffs, grantors of Jones, who claim they were the owners, and .seized in fee simple absolute of the premises in dispute. On the trial herein it appeared from the testimony of Charles W. Doherty, one of the plaintiffs’ grantors, that his brother and alleged ancestor, John Doherty, died in 1859 intestate, unmarried, and leaving no lawful issue him surviving, but leaving a mother, Mary Ann Doherty, and five brothers and sisters him surviving at the date of the conveyance to Jones. They are the plaintiffs herein in whose names this action was brought, pursuant to section 1501 of the Code. Mary Ann Doherty, the mother of John Doherty, would, therefore, take a life estate in the premises, and be entitled in this action to recover tibe rents and profits arising therefrom for a period of six years prior to the commencement thereof, subject to the defendants’ offset for improvements (§ 1531 Code). In the event of plaintiff’s succeeding in this action, and on her death, the five other plaintiffs would succeed to the title as tenants in common (1 R. S., ch. 2, § 6, p. 703). It further appeared on the trial that said Mary Ann Doherty and her daughter Margaret A. Lauter, two of the plaintiffs, had died (pending the action and before the trial thereof), each leaving a last will and testament, which wills had both been admitted to probate, and their respective executors had qualified thereunder ; that the action had not at the time of trial been revived or continued in the names of their legal representatives. These actions were not brought to recover the undivided shares of the several plaintiffs, but by all claiming the undivided whole. In ejectment suits prosecuted by a grantee in the names of his grantors, in pursuance of section 1501 of the Code, all of the plaintiff’s grantors are necessary and proper parties to a complete determination of the action, and also the legal representatives of such of them as had died pending the suit, and before trial. The plaintiff’s right is entire, and he cannot split his claim and harass the defendant with several actions in the names of his grantors separately (Hasbrouck v. Bunce, 62 N. Y., 475).
   O’Gorman, J.

It was conceded by both sides that there was no question of fact to go to the jury.

The plaintiffs put in evidence as the origin of their title, conveyances made in 1787 and 1793, to one Tallas Hopper, of a tract of land in Harlem, and also a map of the same, the correctness of which was supported by the evidence of experts, showing that the lots in suit were part of the tract covered by these conveyances. Plaintiffs also gave evidence that Tallas Hopper was living in 1828 and then resided on a farm known as the “ Tallas Hopper farm,” which was situate between lines now known as 83d street and 84th street and Second avenue, and also that the lines of fences of that farm which ran East and West and North and South existed within recent memory, and that the tract of land thus hounded was substantially the same as that covered by the map.

This paper title is carried by a series of conveyances down to the plaintiffs, and, coupled with actual or constructive possession in Tallas Hopper, constitutes seizin, and a prima facie title in him, which enures to the benefit of his successors in interest (Pope v. Hanmer, 74 N. Y., 243).

Tallas Hopper died in 1830, and there is no evidence that the plaintiffs, or any of their ancestors or grantors, other than he, had any actual possession of this tract of land or any part thereof.

In an action in ejectment, the plaintiff must depend for success on the strength of his own title, not on the weakness of that of his adversary, and must prove his right to immediate possession and that he was seized or possessed of the premises in question within twenty years before the commencement of the action (Code Civ. Proc., § 365). The mere production of isolated conveyances as proof of title, without proof of possession, is not enough (Stevens v. Hauser, 39 N. Y., 304; Gardner v. Heart, 1 Ib., 529). In addition to paper title, the plaintiff in an action in ejectment must show also possession in the grantor, or possession accompanying the deeds—without this, he proves no title.

But where it is found or conceded that a party named has title, that is sufficient—his possession will be presumed, and the occupation by any other person is presumed to be subordinate to the legal .title, unless it appears that the premises have been held adversely twenty years before action brought (Stevens v. Hauser, supra, 304 ; Carleton v. Darcy, 46 Super. Ct., 493 ; Roberts v. Baumgarten, 51 Ib. 482).

° The paper title and the actual possession being proved to have been in Tallas Hopper in 1829, a legal seizin and constructive possession, which enured for the benefit of his successors in interest, are presumed, and the burden of proving adverse possession for twenty years before commencement of the action rests on the defendants (Code, § 368).

To maintain this defense, the defendants have proved that in 1848 the tract of land, within which these lots were situated, was vacant and unfenced; that the lots were sold for unpaid taxes, and that a lease for a term of twenty-five years from date was made, on September 5, 1848, to George W. Matsell, who thereupon entered into occupation of the lots and built five houses thereon. The term of this lease expired on September 5, 1873. The occupation by Matsell under this tax lease (and no other paper title is proved in him), did not constitute adverse possession against the OAvners of the fee, and he could not, during the continuance of the lease, sustain a claim to any higher title than that of lessee under a term of years (Bedell v. Shaw, 59 N. Y., 46).

On February, 1857, Matsell executed a quit claim deed of these lots to one Andrew Mickle, and the deed Avas duly recorded on March, 1857. Mickle thereupon entered into occupation of the lots and collected the rents of the houses built thereon. On February 29th, 1857, Matsell assigned to Mickle the tax lease, and that assignment was also duly recorded Avithout delay, and the tax lease continued in possession of Mickle until the end of the term. After Mickle had been in possession of the premises for about one year, he was disseized by Matsell, who resumed occupation of the premises and continued to occupy them for his own benefit until November 1, 1864, when he conveyed them to his son George Matsell, Jr., by an absolute deed. This deed was duly recorded on November 11, 1864, and thereupon Matsell, Jr., entered into actual possession of the premises and continued in possession until the commencement of this action.

On November 15, 1861, the lots had been again sold for unpaid taxes, and a lease thereof of that date and for the term, of fifteen years had been executed by the city to one Francis Owens, who assigned the lease to George Matsell the elder, on December 2, 1862. The term of this tax lease did not expire until November, 1876.

Thus from September 5, 1848, to September 5, 1873, and from that time to November, 1876, a period of twenty-eight years, the premises were held subject to one or other of these tax leases.

The defendant Matsell, Jr., claims that he has held adverse possession of these lots for nineteen years, that is to say, from November 1, 1864, when he received the deed from his father to October 9, 1883, when this action was begun, and that he is entitled to add to that period the period when his father held also adverse possession, which period together would exceed twenty years. The question is whether this claim can be maintained.

As to the title acquired by Matsell, Jr., by the deed from his father to him, it has been held that an entry under a deed, even although an invalid deed, coupled with actual possession in the grantee, is entry under a colorable title and adverse possession (Sand v. Hughes, 53 N. Y., 287, 294, 295). The same doctrine may apply also to the title acquired by Mickle under deed from Matsell, Sr., under which Mickle held possession for a vear.

But in order to the establishment of a possession, as against the owner in fee, defeating his title, the possession must be adverse to the legal title, and founded on a written instrument and under a claim of title exclusive of any other right. During the time of possession claimed to be adverse the owner in fee must not be under any disability preventing him from asserting his title by action of ej ectment against him who holds adversely. No possession can be deemed adverse to a party who has not at the time the right of entry and possession (Robinson v. Phillips, 65 Barb., 418, affirmed ; 56 N. Y., 634). Possession and claim under a municipal tax lease are not adverse to the claim of the owner in fee (Bensel v. Gray, 62 N. Y., 633). Possession of land to establish a title to the fee must be accompanied by claim of title in fee (Bedell v Shaw, 59 N. Y., 46 ; approved in Hilton v. Bender, 69 Ib., 79).

The only paper title that Matsell, Sr., could claim was for a term of years, and the law will not from the mere fact of his possession adjudge him to be in, under a higher right or larger estate (Ib., 50). Any occupation which he may have had of the premises before receiving the tax lease was without any paper title, and was not, from all that appears, in assertion of any claim of special title or otherwise openly adverse to the title of the plaintiffs (Crary v. Goodman, 22 N. Y., 175).

During all the twenty-eight years under which the premises were subject to possession under the tax lease, the plaintiffs could have maintained no action of ejectment. In order to maintain an action of ejectment the plaintiffs must be legally entitled to immediate possession, and that would be impossible while the right to possession was in the tax lessee (Kukell v. Haley, 47 How., 82, 75).

Again, the defendants’ title depends on the alleged disseizin of Mickle by Matsell, Sr. Matsell had before that conveyed the lots to Mickle, who had entered, and but for the disseizin the title would have been in him. The facts on which this legal result of disseizin is predicated, do not appear in the evidence, and if, in fact, there was no disseizin, but only a re-entry by Matsell, Sr., by consent and acquiescence of Mickle, no new or stronger title was acquired by Matsell, and he held only by mere occupation, without any paper title or any claim of any specific title as against the plaintiffs which would establish adverse possession.

But putting the argument solely on the fact that during the thirty-five years which had elapsed from 1848, when Matsell, Sr., entered in occupation of the lots, to the time of the commencement of the action in 1883, there was for twenty-five years some one holding a tax lease of the premises, and in possession, or having right to take possession of the lots under the tax lease, and that during that period the plaintiffs could not have successfully maintained an action of ejectment, or recovered immediate possession of the lots, I am of opinion that, during that period, they were not occupied adversely under claim of title hostile to the plaintiffs, and their cause of action was not barred.

The plaintiffs’ exceptions are sustained and a new trial is ordered, with costs to abide the event.

Sedgwick, Ch. J., (concurring)

I agree with Judge O’Gorman in his views of this case. It is said in Sands v. Hughes (53 N. Y., 294): “ But there is no rule which prevents a hostile title being acquired, or an adverse possession being originated, during the running of an assessment lease, which possession would ripen into title in twenty years after the end of the term.” The due inference from the testimony in this case is that the plaintiffs could not bring ejectment against Mickle, Mat-sell, Senior, or Matsell, Junior, until 1874, at the end of the twenty-five years’ term of the tax lease, and that their right to bring ejectment commenced then and would continue for twenty years.

It is claimed that the plaintiffs failed to show title to the land, because they did not prove that any ancestor in their paper title had been in occupation of the land. Some testimony on this subject was given, and made a question of fact submitted to the court by the parties. The court did not pass upon this, for its decision was placed solely upon adverse possession by the defendants. This court must now remit the determination of this question to the future proceedings to be held.

The death of some of the plaintiffs since the action was begun, does not assist the defendants on this hearing. In Hasbrouck v. Bunce (62 N. Y. 483), it is said of such a state of facts, “ If the defect of parties had existed at the time of the commencement of the action, it would have been waived by the failure to take the objection in proper form. But having arisen since the commencement of the action, the only mode in which the defence could set it up, was by objecting to the cause proceeding without bringing in the representative of the deceased parties.” This objection, therefore, does not authorize a dismissal of the complaint, nor tend to sustain an otherwise unsupported direction to the jury in favor of defendants. The objection goes to the further continuance of the action. The order here should be the same as the order in the cited case ; the plaintiffs’ exception being sustained, a new trial is ordered, with costs to abide the event.


author: By the Court.—Truax, J.

text:
    CATHARINE M. BURNHAM, Respondent, v. CHARLES B. WEBSTER et al., Appellants.

      Married women—Assault and battery, action for by—Damages—Medical, etc., expenses incurred by husband, not recoverable.

    In an action by a married woman for assault and battery and false imprisonment, no recovery can be had for expenses incurred by the husband for services of a physician and travelling and other expenses in the care of and in endeavoring to cure the wife of the injuries inflicted by defendant.
    For the damages sustained by the husband through the acts of the defendant, he must bring an independent action.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided November 8, 1886.
    Appeal by defendants from a judgment entered on a verdict in favor of plaintiff against defendants, and from an order denying a motion on the judge s minutes for a new trial.
    The action was brought to recover damages for an assault and battery and false imprisonment.

      Joseph H. Choate, and Augustus C. Brown, for the appellants.

      Benjamin F. Watson and F. A. Burnham, for the respondent.
   By the Court.—Truax, J.

The principal question on this appeal is presented by the exceptions that were taken to the admission of evidence showing that plaintiff’s husband had expended $5,000, in endeavoring to cure plaintiff of the injuries that had been inflicted bv the defendants; by the exception that was taken to the refusal of the court to charge that the plaintiff could not recover for moneys expended by her husband for services of physicians, and travelling and other expenses ; and by the exception to the charge that in estimating the damages that had been sustained by the plaintiff, the jury might consider the expenses incurred by the husband in the care of his wife, and the expenses incurred by him while travelling with plaintiff in Europe.

We are of the opinion that the expenses incurred by the husband were no part of the damages that the wife sustained by reason of the assault and battery or false imprisonment. She was entitled to recover only for the damages that she personally had sustained. For the damages that her husband has sustained by reason of the acts of the defendants, he had a cause of action against the defendants.

We are of the opinion that the errors committed in the admission of this evidence, and in the refusal to charge as requested, and in the charge as made, to which an exception was taken, call for the reversal of this judgment and for the granting of a new trial.

We are also of the opinion that the complaint states, and that the evidence tended to prove a cause of action against all of the defendants.

Judgment and order appealed from reversed, and new trial ordered, with costs to appellants, to abide the event.

Sedgwick, Ch. J., concurred.