text:
    GEORGE W. WHITE, Plaintiff and Respondent, v. ALBERT C. COLFAX, CHARLES B. OVERTON and NATHANIEL WHITMAN, Defendants and Appellants.
    I. PABTNEBSHIP.
    1. Partners, rights of, after dissolution.; how affected by agreement of dissolution. a. When a firm, composed of A., B. and 0., as general partners, and D. as special partner, sells out its entire stock and fixtures to D., on an agreement that the purchase money should be paid by applying it to the payment of the outstanding indebtedness of the firm, at such times as they should mature; that all loans to the firm, and open accounts due, should be paid immediately; that all interest on said accounts and loans should cease, and that the whole purchase money should be paid in said manner, on or before July 1,1870; and thereupon, the firm is dissolved, and a new firm composed of B. and C. as general partners, and D. as a special partner, is formed for the carrying on of the same business as the old one; and an agreement is made between the old and new firms, by which the new firm undertakes to wind up the affairs of the old one, and to pay all its debts, on or before July 1, 1870, and to make distribution among the members of the old firm, and by which it was agreed that both firms, and each of the individuals composing them should at all times have free access to, and supervision of the accounts, collections, and business of liquidation; the sale, agreement, dissolution of the old, and formation of the new firm, being simultaneous acts;

      Meld, —1. The stock and fixtures ceased to be the property of the old firm.
    2. The purchase money for the stock and fixtures became a debt due the old firm.
    3. A. stood in the position of a retiring partner, retaining his interest as partner in the assets of the old firm.
    4. A. had a right to supervise the business of liquidation, to receive all information respecting collections, to ask for, and be informed of, the reason why collections are not received, and to have access to the books of the firm.
    5. A. has an interest in having the debts due the firm collected, and the collections applied to the payment of its debts, according to the terms of the agreement.
    H. Receiver, oe Partnership Assets.
    1. When appointed after dissolution, although its articles of dissolution vests the right of winding up the partnership in some one or more of the partners.

      a. At the instance of any one of the other partners, when those charged with winding up the partnership violate the agreement entered into in respect thereto, i. At the instance of a partner who is denied the rights secured to him by the articles of dissolution, such as, access to the books.
    c. When the state of feeling between the partners is such that the rights of supervision, of one or more, cannot be exercised without great unpleasantness and embarrassment.
    2. When continued, although defendant has removed the original causes for which he was appointed.

      a. When those original causes have produced others sufficient to call for a receiver, which have not -been, and cannot be removed.
    Before Monell, McCunn and Freedman, JJ.

      Decided April 1, 1871.
    Appeal from order sustaining- receiver and injunction.
    On February 1, 1870, there existed at the city of New York, a firm under the firm name of George W. White & Co. The members of this firm were George W. White, Albert B. Colfax and Charles B. Overton as general partners, and Nathaniel Whitman as special partner. On that day a copartnership was formed between said Colfax and Overton and Whitman, under the firm name of Colfax and Overton (Colfax and Over-ton being general partners and Whitman special partners), for carrying on the same business as the firm of George W.. White & Co., at the same place of business. On that day the general partners of the firm of George W. White & Co., sold and by bill of sale dated that day, transferred to said Whitman, the special partner, the entire stock of goods and merchandise of the firm of George W. White & Co., for the consideration of sixty-one thousand and seventy-eight dollars and twenty-five cents.
    By an instrument bearing even date with and executed simultaneously with said bill of sale, by and between the said general partners of the firm of George W. White and Co., and said Whitman, the special partner of said firm, he the said Whitman, in consideration of said sale, agreed “to well and truly devote the said sum of sixty-one thousand and seventy-eight dollars and twenty-five cents, to the liquidation and payment of the outstanding indebtedness of said firm of George W. White & Co., at such times as the same shall mature and become due, and all loans to the said George W. White & Go., and open accounts now or past due to be paid immediately, and all interest on such accounts and loans to cease from the date of the instrument, and the whole of said sum of sixty-one thousand and seventy-eight dollars and twenty-five cents to be paid in the manner herein before stated on or before July 1, 1870.”
    On the same day and simultaneously with the execution of the above two instruments, the two firms of George W. White & Co. and Colfax & Overton executed an instrument bearing even date, therewith, which was as follows:
    “Whereas, George W. White, Albert E. Colfax and Charles B. Overton have heretofore carried on the wholesale and retail clothing establishment at Nos. 234 and 235 Broadway, in the city of New York, as general partners, under the firm name and style of George W. White and Company;
    “And, whereas, the said firm has been and is hereby declared to be dissolved ;
    “And, whereas, the said George W. White has retired from said firm, and the said Albert E. Colfax and Charles B. Overton have formed a copartnership for the carrying on the same business at the same place under the firm name and style of Colfax and Overton;
    “Now, therefore, this agreement made this first day of February, A. D. 1870, between the said firm, Colfax and Overton, parties of the first part, of the said city, and the said George W. White and Company of the same place, parties of the second part, for the purpose of liquidation,
    “ Witnesseth,
    “That, in consideration of the premises, the parties of the first part hereto do hereby assume the collection of all outstanding accounts and bills due to the said parties of the second part, and also all rents due or to become due the parties of the second part from real estate or otherwise during the period of this agreement, and do hereby agree well and truly to collect the same so far as collectable, without any charge or expense to the parties of the second part, and to apply the entire proceeds thereby derived to the liquidation and payment of the indebtedness of the party of the second part at such time or times as the same or any part thereof matures and becomes due, until such indebtedness shall be fully paid, not to exceed however beyond July 1, 1870.
    “After such indebtedness shall have been paid as aforesaid, the proceeds of such collections shall be divided between and paid to the said George W. White, Albert E. Colfax, Charles B. Overton and Nathaniel Whitman, the members of the firm of George W. White and Company, in the same proportions to which they are severally entitled under their agreement of copartnership forming said firm, dated February 1, 1869, monthly on the first day of every month thereafter, the said Colfax, Overton and Whitman to first receive such sum or sums necessary to balance and equalize, or make up any amount that the George W. White may have received since February 1, 1870.
    “ It is further agreed that both parties hereto, and each of the individuals composing said firm, shall at all times have free access to and supervision of the accounts, collections and business of said process of liquidation.

      “ And that "on the first day of February, A. D. 1871, a complete and true account shall be made up and rendered as to the amounts collected, realized and paid, when, to whom paid, and of the assets still uncollected, if any, and at that time all assets, accounts, bills or property, of whatever kind, which may remain, shall be divided among the several partners of the late firm of George W. White & Co., according to their respective interests therein, and their several interests therein entirely separated.
    “ It is further agreed that, until the entire indebtedness of the said firm of George W. White & Co. shall be paid, neither of the parties or partners shall draw, take or receive any sum or sums of money whatever from the property, assets, collections or proceeds, for their, or either of their individual purposes.
    “In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written.
    “ Cole ax & Ovebtow. [l. s.]
    “ Geo. W. White & Co. [l. s.]”
    After the execution and delivery of these several instruments, the firm of Colfax & Overton (in which firm said Whitman was a special partner), commenced to carry on, at the place of business theretofore occupied by the firm of George W. White & Co., the same business carried on by that firm, the said Whitman bringing into the firm of Colfax & Overton the stock and merchandise purchased by him as above stated, from the general partners of George, W. White & Co.
    The business thus commenced by Colfax & Overton, is still prosecuted by them.
    At the time of the execution of the said several instruments, the firm of Geo. W. White & Co. was indebted to Abernethy & Co., in the sum of four thousand five hundred and fifty-two dollars and ninety-seven cents ; and to John Whitman & Co. in the sum of thirty-four thousand eight hundred and forty-seven dollars and fifty-seven cents.
    The firm of Colfax & Overton procured an extension of time for the payment of the debt to Abernethy & Co., by giving them four promissory notes, at four, five, five and a half, and six months, amounting in the aggregate to four thousand eight hundred and seventy-four dollars and forty-two cents, being the amount of said indebtedness, with three hundred and twenty-one dollars, and seventy-seven cents accruing interest added thereto, and indorsed said notes with the name - of the firm of Geo. W. White in liquidation. Three of said notes, by their terms, would not mature until after July 1, 1870.
    The defendants, Colfax & Overton, not having collected sufficient of the debt due by Whitman for the stock and merchandise sold to him by the general partners of George W. White & Co., to pay the debts due by George W. White & Co. to Abernethy & Co. and John Whitman & Co., and applied such collections to the extinguishment of these debts, the plaintiff commenced this action, charging above matters, and demanding judgment:
    “1. That a receiver be appointed, to take, hold, receive and collect the assets and property of said firm of George W. White & Co., under the orders and directions bf this court, invested with the usual powers and duties of receivers in such cases, and to pay and discharge all the indebtedness of said firm, and to divide the surplus, if any there be, among the several copartners of the firm of George W. White & Co., according to their respective rights and interests therein, under the orders and directions of this court; that, in the mean time, until the further order and direction of this court, the defendants, and each of them, and their and each of them agents, attorneys, servants or employees be enjoined and restrained from receiving, collecting, discharging, or in any manner interfering with the debts or assets owing to or belonging to the said firm of George W. White & Co., and for snch other and further relief as the court may grant, with the costs of this action.”
    On the complaint and an affidavit of the plaintiff the following order of receivership and injunction was made éx parte:
    “It is ordered, that Francis M. Bixby, of New York city, be and he hereby is appointed receiver of all the co-partnership business, assets, property real and personal, effects, books of account, choses in action and every other matter and thing of or in any way belonging to the said copartnership of George W. White and Company, on executing within ten days from the entry of this order a bond in the sum of twenty thousand dollars with two or more sufficient sureties to be approved by a justice of this court, for the due and faithful performance of the trust, and that upon such execution and approval the said receiver be and he hereby is vested with the usual powers of receivers, and with power to sue for, collect and recover the debts and demands that may be due to and the property that may belong to said copartnership, and to sell and convert into cash all the personal estate of the said copart»nership, and as receiver to pay off, liquidate and settle the debts of the said firm as they respectively mature as far as may be out of the funds of said copartnership in his hands, and after having paid all of said debts, to pay and turn over the balance or surplus if any there be, under the direction and orders of this court.
    “It is further ordered that the plaintiff and defendants, and each of them, turn over and transfer to the said receiver at once, all and every part of the property and assets of the said copartnership of George W. White and Company, now in their or either of their possession or control.

      “ It is further ordered that the said defendants and each of them, and their and either of their attorneys, agents, servants and employees, be and they and each of them hereby are enjoined and restrained from collecting, receiving or holding or discharging any of the assets, debts or property of the said firm of George W. White and Company, or any of the notes, accounts or assets due or to become due to said copartnership, or in any manner obstructing or interfering with the liquidation or settlement of the affairs of said copartnership or said receiver in the proper discharge of his duties.
    “ And it is further ordered that the plaintiff or defendants and said receiver, be at liberty to apply to this court from time to time for further directions in the premises.”
    Defendants moved to vacate the order of receivership and injunction, and among other matters showed by their papers that defendant Whitman, since the commencement of the action, had procured the indorse,ment of the name of the firm of George W. White & Co. to be erased from the notes given to Abernethy & Co., and his individual indorsement to be substituted instead, and said defendant Whitman on the argument of the motion offered through bis counsel, to give to George W. White & Co. a discharge of the debt due Lester Whitman & Co.
    The plaintiff, in opposition to the motion, showed among other things, that since the commencement of this suit he had been denied access to the books of the firm of George W. White & Co., and that the defendants in this action had commenced an action against him in the supreme court, among other things charging him with various derelictions of duty as a copartner in the firm of George W. White & Co., one of which was the purchasing a house and lot on Third street, Brooklyn, and furnishing it, with the funds of the firm and then conveying the same to his wife Charlotte, without consideration, for the purpose of defrauding and injuring the other partners in the firm of George W. White & Co., and demanding judgment “that an account be taken between the said copartners of all its transactions, assets, debits and doings, and of the said real estate; that the said house and lot on Third street, Brooklyn, as well as the other real estate held and owned by the said firm may be sold and the proceeds applied to the liabilities of the partnership.
    “That the defendant, Charlotte A., may be adjudged to convey the same upon a sale to be made under the order or decree of this court.
    “That the defendant, George W. White, be charged with the rent of the said house and lot on Third street, and the said two thousand dollars paid him since the 17th of. February, 1870, and also the said sums collected by him since that date.
    “That the furniture purchased by him with cash or merchandise, from.the stock of the copartnership, may be sold and applied to the payment of its debts, or applied to the equalization of the accounts of the plaintiffs as members of said partnership with the said George W. White.
    “ That an injunction issue, restraining the said George W. White from collecting any of the debts to the said copartnership, or any of the rents of the said real estate belonging to the said partnership.
    “That the said defendant, Charlotte A. White, be restrained by an injunction order, from selling, conveying, or in any manner incumbering the said house and lot in Third-street, Brooklyn.
    “And that the defendant, George W. White, pay the costs of this action ; and that the plaintiff have such other relief as to the court may seem proper.”
    The motion to vacate the order of receivership and injunction was denied, and an order made, modifying that order, as follows:
    “ It is ordered, that the said motion to dscharge the receiver and dissolve the injunction, herein be denied ; but the order appointing receiver a herein, is so far modified as to,
    “1. Appoint the said Bixby receiver of the foliowingjjroperty only, to wit: .debts due, and those owing, but not yet due the firm of George W. White & Co., and the real estate of the firm of George W. White & Co., (not including therein the leasehold premises 234 and 235 Broadway,) and the rents due, and to become due therefrom.
    “2. To limit the receiver to the collection of the debts due, and those owing, but not yet due to the firm of George W. White & Co., including rents of real estate.
    “3. To authorize and direct the said receiver to sell the real estate belonging to the firm at public sale, for cash, at the sales room in Trinity Buildings, in the city of New York, on giving three weeks’ public notice thereof, in two newspapers published ia the city of New York, twice in each week, and to execute deeds of conveyance to the purchaser.
    “4. To authorize and direct said receiver to apply the money realized from the collection of debts, and from the sales of real estate belonging to the said partnership of George W. White & Co., to the payment of debts now due, and those that may hereafter become of due by the firm George W. White & Co.
    “5. To authorize and direct said receiver to distribute the surplus under the further order and direction of the court, according to the rights of the said parties respectively.
    “6. To direct the defendants to surrender to the receiver the account books and evidences of debt, belonging to the said late firm of George W. White & Co.
    “7. To direct the receiver not to sell the leasehold premises known as Nos. 234 and 235 Broadway, in the city of New York, nor interfere with the possession of Colfax & Overton in the said leasehold premises.
    “ The injunction order is modified and limited so as to restrain the defendants only from the collection of the debts and rents due or to become due to the said late firm of George W. White & Co., and from interfering with the real estate of said firm, (not including in said term real estate the leasehold premises 234 and 235 Broadway,) and from interfering with or obstructing the receiver in the collection of said debts or rents.
    “And it is further ordered that all parts of and all provisions and directions contained in said order, made the 18th March, 1870, appointing said Bixby receiver, and enjoining these defendants, which are inconsistent with the above modifications, be, and the same are hereby vacated and set aside.
    “ And it is further ordered that the stay of proceedings contained in the order made by Justice Jokes, March 21, 1870, and the order of modification made by said Justice Jokes on the 24th of March, 1870, so far as they are inconsistent with the above provisions of this order, be, and the same are hereby vacated and set aside.
    1 ‘ And it is further ordered, that at any sale of the real estate of said firm of George W. White & Co., or of any part thereof, made by the said receiver under the provisions of this order, either of the parties to this action shall be at liberty to bid and become purchasers.”
    The following opinion was delivered at special term:
    Jokes, J.—By the bill of sale and the cotemporaneous agreement respecting the mode of the payment of the consideration therefor, the plaintiff divested himself of all interest in the stock and fixtures of the firm of George W. White & Co., but the consideration mentioned became a debt due to that firm to be applied to the payment of debts due by it.
    Plaintiff’s rights, as copartner in the firm of George W. White & Co., attached to that debt.
    The two instruments above referred to did not affect the debts due to that firm, nor the real estate belonging to it.
    As regards this real estate and these debts, including the one due for the purchase of the stock and fixtures, the partnership still continues for the purpose of liquidation, and each member of the firm has all the rights, privileges and remedies in respect thereto which the law accords to partners.
    One of these remedies is, that if the partners cannot agree as to the mode of liquidation, or one of them becomes dissatisfied with the doings of the others, the court will, as a matter of course, appoint a receiver.
    Has the plaintiff done any act which will deprive him of the remedies he would otherwise have %

    It is claimed that the agreement entered into by him in relation to the collection of the debts due the firm has such an effect.
    It is clear that by the agreement he does not part with his interest as a partner in those debts or in its real estate; therefore, if it interferes with rights which he would otherwise have, it must be on some ground other than that of his having parted with his interest therein.
    It is then suggested as a proposition of law, that upon the dissolution of a solvent firm, the partners can make such arrangements for winding up the affairs of the concern as seem to them meet; and in the exercise of this right may select one or more of the members of the firm to wind up the partnership affairs, to call in the debts due, and convert into cash the assets belonging to the firm, to pay therewith the debts due by the firm, and distribute the surplus among its members, and if they do make such a selection, a court of equity will not interfere and appoint a receiver, unless the parties prove recreant to the trust reposed in them; and upon this proposition it is argued that whatever cause of complaint existed against those selected in this case arose from mere inattention, and have been, or are ready to be, removed, and therefore the receiver should not be continued.
    I think that the proposition of law is not strictly accurate. I am inclined to think that all the members of the firm are entitled to have a supervision over the acts of those selected, to receive all information from them respecting the collections made, to ask for and have imparted the reasons why collections are not pressed, and to have access to the books of the firm ; and if those selected deny this right or unreasonably interfere with its exercise, or, even, if the relations of the parties have so changed that the exercise of this right would reasonably be expected to be attended with unpleasantness and embarrasment, the court will appoint a receiver. It is unnecessary to determine whether this right of supervision attaches unless it is expressly reserved in the agreement, for in this case it is expressly reserved.
    The litigation between these parties, already, shows that there has been a great change in the relations of thesé parties. A feeling of great friendliness has changed into one of bitter enmity. Indeed this is asserted in the affidavits on both sides.
    It would be unreasonable to anticipate that the plaintiff’s right of supervision, &c., could any longer be exercised without great unpleasantness and embarrasment, if indeed it could be exercised at all.

      The fact that he has already been refused access to the books is a strong indication that such denial will continue.
    For these reasons I think the receivership should be Continued.
    1 am aware that the complaint does not ask for a receiver on these grounds, and it could not well do so, for they did not exist at the time the action was commenced. I should not therefore continue the receiver were it not for the reasons I am now about to advert to.
    At the time of the commencement of this action defendants had undeniably broke their agreement in two respects, viz: they had procured the extension of the time for the payment of a debt due Abernethy, oí about four thousand dollars, beyond July 1, 1870, giving the note of George W. White & Co. on such extension, instead of applying sufficient of the sum of sixty-one thousand dollars agreed to be paid for the stock to that purpose; and they had not extinguished the debt of about' thirty-four thousand dollars due from George W. White & Co. to Lester White-man & Co., by applying thereto sufficient of said sum of sixty-one thousand dollars.
    The non-compliance in these particulars afforded a sufficient ground for the appointment of a receiver. After the action was commenced and a receiver appointed, the defendants took up the notes of George W. White & Co., which had been given to Abernethy, and substituted other paper, thereby relieving the firm of George W. White & "Co. from any liability for that ■ debt; they also offered, on the argument of the motion to discharge the receiver, to give to George W. White & Co. a discharge of the debt due Lester Whitman & Co. Upon this action of theirs done since the commencement of this suit and the appointment of the receiver, they ask that the receivership should not be continued.
    The appointment and continuance of a receiver pendente lite, rests in the sound legal discretion of the court.
    In the exercise of this discretion, I have no doubt that if since the commencement of the action, the causes for which the receiver was appointed have been obviated so as to place the parties in the same attitude with regard tó each other, and to the subject of the action, as they occupied before, then the receiver should be withdrawn ; per contra, when a defendant by his acts has given rise to causes for the appointment of a receiver, and an action has been commenced, based on such causes, and a receiver appointed therein, and the effect of the commencement of such action and such appointment has been, either to give rise to other causes calling for a receiver, then such subsequent causes are to be regarded as the effects of the original causes, and unless the obviating of the original causes also destroys the effects of them, the party plaintiff should be entitled to retain the receivership. The defendant cannot be heard to say: “ True, I committed a wrong upon you which justified you in obtaining a receiver; and because you did obtain a receiver, I committed further violation of your rights which also justify a receiver; now I will, under your compulsion, remove the first wrongs, thereby throw you out of court, and compel you to bring another action for the appointment of a receiver, in consequence of the subsequent wrongs, which are the effect and result of the first ones.” This will not be permitted.
    Although, if after the appointment of a receiver, the defendant removes the causes for which he was appointed, the court may discharge the receiver, yet it is not bound to do so, and will not do so if it is apparent that these original canses have been productive of others which have not been, or cannot be removed.
    In this case, the breach of their agreement by the defendants, led to the institution of this action by the plaintiff for the protection of his rights; the suit thus incited by the acts of the defendants, together with other causes, has led to an exceedingly hostile feeling between the parties, and under its influence the defendants have further violated the rights of the plaintiff, by refusing him access to the books.
    A suggestion has been made, that the plaintiff has so far overdrawn his individual account, as that he not only has no interest in the surplus to be derived from the collection of the debts due to the firm and the sale of the real estate, but on the contrary, to be indebted to the firm. I have not deemed it necessary to decide how the facts may be, for even if such be the case, still he has an interest in having the agreement concerning the collection of the debts due to the firm, and the application of such collections to the payment of debts due by the firm, carried out according to its spirit and tenor, so that he may be relieved from his liability for the debts due by the firm.
    A great portion of the papers used on the motion before me, consists of criminations and recriminations, concerning matters in relation to the sale of the stock of George W. White & Co. to defendant, Whitman, and the dissolution of the firm of George W. White & Co. ; but as neither side seeks to have that sale and dissolution rescinded, those matters, as far as they can have any bearing in this action, relate only to an accounting, and in the view above expressed, do not affect the question of a receivership.
    It is proper to state, in conclusion, that there is nothing in the papers indicating in the slightest degree that the present firm of Colfax & Overton is not perfectly solvent, and fully worthy of trust and credit.

      The receiver is retained solely for the purpose of collecting the debts due to the firm of George W. White & Co.; converting into money the-real estate belonging to that firm; applying the collections and money realized to the payment of the debts due by that firm, and distributiiig the surplus among the partners of that firm according to their respective rights. And this has become necessary.solely by reason of contentions and hostile feelings arising since Colfax & Over-ton were selected by the firm of George W. White & Co. to wind up its affairs.
    Motion to vacate the injunction and discharge the receiver denied ; but if the order of injunction and the order appointing the receiver do not conform with the above views, they must be modified in accordance therewith.”
    From, the order denying the motion to vacate the order of receivership and injunction, and modifying the same, defendant appealed to the general term.
    Wm. H. Leonard, of counsel for appellants.

      John B. Panner, attorney for respondents

      G. A. C. Barnett, counsel for respondents.
   By the Court.—Monell, J.

The order appealed from by the defendants contains such a modification of the injunction, and of the powers and duties of the receiver, that I think they ought to have rested satisfied ; and instead of subjecting themselves to the expense and delay of an appeal, should have at once gone into an accounting with the plaintiff, to the end, that his interest in the partnership assets might have been ascertained, and he relieved from liability for the partnership debts.

The debt due from Whitman was nearly sufficient to liquidate the partnership debts; and as that debt, by the terms of the agreement,, was to be paid, from time to time, as needed to meet the accruing liabilities of the firm, and all to be paid by July 1, 1870, it is evident that the parties expected to, and therefore did, fix upon that time as the limit, for the settlement of the partnership affairs.

Yet, as late as the last of April, 1870, the defendants took this appeal from an order, which did not in any manner interrupt or interfere with the business in which they became engaged on the dissolution of the previous firm.

But upon the merits. The receivership and injunction as an ad interim relief, to protect such rights and interests as the plaintiff has, under the articles of dissolution, were properly continued.

The plaintiff had been very careful to preserve to himself the right to require the whole assets of the firm to be applied to the payment of the firm debts. And although, by the sale, he parted with all legal title to the partnership property, he yet retained an equity, to enforce the covenants of the remaining partners, and compel them to pay, with such property, the firm’s liabilities. And he had a further right, namely, to his proportion of any surplus there might be, after the liquidation of the debts. The principles applicable to this case, were fully examined in the case of Cory v. Long, decided by this court in June last, but not yet reported.

When a retiring partner transfers the whole partnership property to the remaining partners, merely reserving to himself the equity I have alluded to, the court will be very jealous of his rights, and will not require a very strong case of breach of contract or other misconduct, to authorize it to interfere in his behalf. And it is but fair, that those who have the legal title and the exclugive custody of the means for paying the debts, should be held to a strict performance of duty.

The incurring of a new obligation by indorsing the note to Abernethy & Co. was a violation of the defendants’ agreement, in two senses. First, it was not a payment of the firm debt, but merely an extension of the time of payment beyond the period fixed by the articles of dissolution. And second, and in a more important sense, as the first was afterwards removed, it was an unauthorized extension of payment to Whitman.

Another violation of the plaintiff ’ s rights was, in denying to him such access to the books, as, under the articles of dissolution, I think he was entitled to. His right to inspect the books of the firm, from time to time, is co-equal with that of the defendants’, and when he became deprived of that right by the defendants, the court must help him.

But there is another reason which, perhaps of itself, would be sufficient to authorize the court to take upon itself the adjustment of these partnership differences.

As was very correctly said by the learned justice at special term, that from the embittered feeling existing among the parties, “ it would be unreasonable to anticipate, that the plaintiff’s right of supervision, could any longer be exercised, without great unpleasantness and embarrassment, if, indeed, it could be done at all.”

Under such a state of things, it is highly proper that the court, acting impartially between them, should, through its officers, wind up the partnership.

The right of the defendants, to the custody of the partnership property, was absolute so long only as they faithfully observed their agreement. When they failed in that particular, the right of the plaintiff was revived, and the court will do no more than to see that such right is protected.

The reasons stated by the learned justice at the special term for his modification of the receivership and injunction are satisfactory to me, and, for these reasons, and suchas I have herein expressed, the order appealed from should be affirmed, with costs to abide the final adjustment of costs in the action.


source: Caselaw Access Project

author: By the Court.—Barbour, Ch. J.

license: Public Domain

text:
    THE MERCHANTS’ EXCHANGE NATIONAL BANK OF THE CITY OF NEW YORK, Plaintiff and Appellant, v. THE COMMERCIAL WAREHOUSE COMPANY, Defendant and Respondent.

      Usury—Corporations—Act of 1850, ch. 172.
    1. Where property which has been pledged to secure a loan, made upon an usurious agreement, is transferred by the pledgor to a corporation, whether in payment of, or as security for, an antecedent debt, or for a present consideration (the transfer not being made subject to the usurious loan) the corporation cannot in any shape or manner, or in any form of action, avoid the contract of pledge by reason of the usury.
    2. The act of 1850, ch. 172, prohibits a corporation from relying on or in any manner taking advantage of. the usury in such a case.*
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided April 29, 1871.
    The facts of the case sufficiently appear in the opinion.

      Francis H. DyJcers, attorney and of counsel for respondent made, on the question involved, the following point.
    I. By an act of the legislature passed in 1850, it is declared that ‘‘No corporation shall hereafter interpose the defence of usury in any action.” This provision prevents corporations from pleading usury in bar of the rights of a party, either as plaintiff or defendant (Butterworth v. O’Brien, 23 N. Y. 275 ; Rosa v. Butterfield, 33 Id. 665).

      *Note by Reporters.—This decision has been overruled by the court of appeals.

      Owen, Hash & Gray, attorneys for appellant, and S. P. Hash, of counsel, made the following points.
    I. The court at special term erred in holding that the act of 1850 governs the transaction before the court. The act was passed April 6, 1850, just after the decision of the court of appeals in the case of the Dry Dock Bank v. Am. Life Ins. and Trust Co., 3 N. Y. [3 Comst.] 344; a decision which finally determined that the Dry Dock Bank could repudiate its banking obligations on the ground that though the transactions were in the form of a sale of exchange, they were usurious loans in fact. This decision was made in December, 1849 (3 N. Y. [3 Comst.] 374, note). It was at once seen that it invalidated railroad bonds and a large class of similar securities, issued by corporations and disposed of below par, and would seriously embarrass the prosecution of corporate enterprises needing borrowed capital (Vide 23 N. Y. 275).
    The true construction of the statute, therefore, is to make valid contracts to which a corporation is a party, which, but for the statute, the corporation might defeat upon the ground of usury. ¡No decision, except that appealed from, has given the act a broader construction: ' This, however, holds that though the borrower—in the case at bar, a natural person—was entitled to avail himself of the statute of usury and could transfer the property which he had pledged to secure the usurious loan, to a third person, and that such transferee could reclaim the property and avoid the lien of the pledge ; that such transfer being made to a corporation, the corporation cannot do this, simply because it is a corporation.
    (1.) No reported case sanctions the construction under review. Curtis v. Leavitt, 15 JV. T. 1, was a proceeding by the borrower, to avoid the obligation given for the money loaned. It was, it is true, a proceeding by the receiver of the corporation instead of the corporation itself, and of an affirmative rather than of a defensive character. These features of the case were held to prevent the statute applying. The follow-are some of the dicta in the case :
    “The act must be construed as a repeal of the statutes of usury, as to all contracts of corporations stipulating to pay interest.” Comstock, J., p. 85.
    “The barrier wall.....which the usury laws
    set up between the lender and the borrower, is thrown down, &c., whenever the borrower is 'a corporation.” Brown, J., p. 154. .
    In Butter worth v. O’Brien, 28 Barb. 187, the action was on behalf of the receiver of a corporation to recover usurious premiums it had paid on borrowed money. The court held that the object of the statute was to enable corporations to obtain “pecuniary facilities for the promotion of the objects of their incorporation .....what they have agreed to pay, they'
    must pay,” &c. p. 193.
    This case was affirmed in 23 N. Y. 275, and there are some extravagant dicta in the opinions, but the conclusion of the report is that ‘ ‘ all the judges concurred in the result, without committing themselves to the reasoning of either of the proceeding opinions, or in any respect further than necessary to decide the case.” p. 281.
    In Rosa v. Butterfield, 33 N. Y. 665, it was held that sureties upon notes of a corporation were, equally with the corporation itself, precluded, under the act of 1850, from setting up the defense of usury. This was on the ground that the notes and guaranties were simply securities for one transaction, the loan for which they were given. The act was held “to have effected a repeal of the usury laws as to the borrowing contracts of corporations; ” (p. 669) “no corporation shall ever allege usury to defeat its contracts.'’’’ p. 670.
    In Belmont Branch Bank v. Hoge, 35 if. T. 65, the language of the court is : “The act of 1850 operated pro tanto as a repeal of the statutes prohibiting usury, so far as they were applicable to stipulations for a rate of interest exceeding seven per cent., where a corporation is the borrower.” p. 69.
    (2.) In the case at bar, the plaintiffs were not parties to the original contract, neither to the loan of money, nor the pledge of securities. The borrower was Oakley, a natural person, and as to him the pledge was void; any creditor of his, with judgment and execution, could buy in the property, and contest the defendant’s lien. (Dix v. Van Wyck, 2 Hill, 522); but, according to the construction adopted by the court below, a corporation could not have this remedy, simply because of being a corporation. It could assign its claim, and have some one else receive the judgment, and thus could contest the usurious loan, but not in its own name. Such a construction, it is submitted, cannot be sustained.
    (3.) The act of 1850 permits corporations to pay usurious interest, and prohibits them, and all in privity with them, from setting up the invalidity of the loans ; but it does not permit corporations to exact usurious interest, nor deprive them of the right that other creditors or purchasers have to impeach the transactions of their debtors.
   By the Court.—Barbour, Ch. J.

This is an appeal from a judgment at special term in favor of the defendants, upon their demurer to the complaint, on the ground that it did not contain sufficient facts to constitute a cause of action.

The complaint alleges that each of the parties is a corporation; that in December, 1869, one Cornelius Oakley was the owner of two hundred and four hogsheads of tobacco, which were in the possession, or under the control of the defendants; that such owner sold the same to Edward J. Oakley, and- the latter, on the same day, sold and assigned the property to the plaintiffs ; that, in January, 1870, they requested the defendants to deliver the tobacco to them, and at the same time, offered to pay all the legitimate charges which the defendants had incurred in the way of storage. cartage, insurance, &c., and that the latter refused to surrender the same; and the plaintiffs claim a judgment against the defendants, “as for a wrongful conversion of the said tobacco, and damages to the amount of one hundred thousand dollars, and costs.”

Thus far stated, the complaint contains all the facts necessary, under our present system of pleading, to constitute what was in former times known as an action of trover and conversion, and those facts, if established, would have been sufficient to entitle the plaintiffs to a recovery.

The complaint, however, further alleges, that, prior to the sale by Cornelius Oakley, the original owner, and in February,1868, he placed the tobacco in the hands of the defendants, by a pledge of the warehouse receipts, which had been given to him therefor, as security for a loan of money; that, from time to time, up to the 17th of ¡November, 1869, the defendants loaned and advanced to him, further sums on the pledge of such receipts ; that for such advances, the notes of Oakley were given, payable at sixty days or shorter periods, which were consolidated and renewed from time to time, and that upon such renewals, a charge of one per cent, was made-to Oakley upon the debt, in addition to the legal interest; that on the last named day, the company claimed that there was due to them, on account of those transactions, a balance of $56,733.38, and required Oakley, as a condition of forbearing payment for thirty days, to, and he thereupon did, execute and deliver to them his promissory note for that sum at thirty days, and, also, an instrument in writing, which is set forth in the complaint.

By that instrument, Oakley, after stating by way of recital that he had confided the two hundred and four hogsheads of tobacco to the management, custody, and charge of the defendants, and that they had advanced to him upon it the sum of $56,733.78, for which he had given them his note, stipulated and agreed that for such advance, together with the interest, commissions and charges therein mentioned, the defendants should have a li.en upon the tobacco ; that in case the said advance, with the interest thereon, should not be paid within thirty days, the defendants should be at liberty to sell the property pledged, without notice, and apply the proceeds to the payment of the debt; or, if no sale should be made, the advance should be refunded to them with, interest, and, also, a commission of one per cent, upon the amount of the advance, as a compensation for all management and charge of the property while in their custody, over and above all charges for storage, and all disbursements made by them on account of the same. The complaint further alleges and claims that the defendants never had and were not intended to have any care or actual custody of the property, and that those dealings between the* pledgor and them, as well as the said note 'and agreement, were usurious and contrary to the provisions of the Revised Statutes in relation to usury.

If the plaintiffs’ pleader had contented himself with stating in the complaint such facts only, as were necessary to constitute a cause of action in replevin or for con* version, the defendants would have found it necessary to set forth, in their answer, the fact that the property in question had been placed in their hands by Oakley, and was held by them as a pledge for the payment of the moneys advanced by them ; in which case, the plaintiffs, if they had desired to avail themselves of the statute of usury, would have been compelled to def end themselves against that claim of the defendants, by an averment of the necessary facts in their reply, and by pleading the statute. But the counsel saw fit to insert in his complaint, not only the facts necessary, in the first instance, to entitle his clients to a recovery, but also the claim of the defendants, and the facts upon which it was founded, with the defense of the plaintiffs to that claim. By their own pleading, therefore, the plaintiffs have brought themselves within the very letter of the statute of 1850, which declares that “no corporation shall hereafter interpose the defense of usury in any ■ action.”

The defendants might, probably, have maintained a motion to strike from the complaint all the allegations relating to the transactions between Oakley and themselves, on the ground that those facts did not tend to constitute a cause of action in favor of the plaintiffs. So, too, a motion to strike out the special averment that the dealings and agreements between the defendants and Oakley were contrary to the provisions of the statute of usury, and void, would no doubt have been granted, because of the statutory prohibition against the interposing of a defense of that character by a corporation. Bat I see no necessity for such a course. The statute was, undoubtedly, intended to exclude corporations not only from pleading usury, but from availing themselves of the law in regard to usury in any k manner, as a defense.. The defendants, therefore, might' safely admit, as they did by their demurrer, that their transactions with Oakley were usurious, because, although true in fact, that defense on the part of the plaintiffs to the defendants’ claim was not good in law.

For these reasons, and without discussing here the further questions raised by counsel at the hearing, the judgment below should be affirmed with costs.


author: By the Court.—Monell, J.

text:
    HENRY McGUCKIN, Plaintiff and Appellant, v. JULIA A. COULTER, Defendant and Respondent.
    Mechanics’ Lien.—Act of 1863, chap. 500.

      Discharge of, when motion for, not to be granted.

      a. Not after issue had been joined, which was being tried before a referee, on the ground that it sufficiently appeared before the referee, that no work was done, or materials furnished, upon or for the premises designated in the notice of lien.

      b. Nor on an affidavit in these words: “That the lien had not been renewed according to law, and that more than a year had elapsed since the lien was filed,” when it appears that an order of the court had been made, continuing the lien, which order was in all respects sufficient, both in point of time and manner of making.
    Before Barbour, Ch. J., Monell and Jones, JJ.

      Decided April 29, 1871.
    Appeal from an older discharging of record a mechanics’ lien. u
    In September, 1868, the plaintiff filed with the clerk of the city and county of New York, a notice under the mechanics’ lien law, to.the effect that he had a claim against the defendant, on account of work performed and materials furnished upon, and in the house and premises, on the northeast corner of Ninth-avenue and Sixty-second-street, owned by the defendant, and which had been performed and furnished under a contract with the defendant, as such owner.
    In December of the same year, the plaintiff commenced this action to foreclose the lien ; and in February, 1869, the action was sent to a referee to hear and determine.
    Within one year from the filing of the notice of lien, it was continued by an order of a justice of this court, duly entered.
    Upon an affidavit made on behalf of the defendant, setting forth the commencement and reference of the action, and that it appeared by the testimony and proceedings before the referee, that the plaintiff’s lien is upon a vacant lot belonging to Julia A. Coulter, on the northwest corner of Ninth-avenue and Sixty-second-street, and that no work or labor was done, or materials furnished on the said plot, by the "plaintiff; and that, it further appeared, that whatever work the said plaintiff claimed to have done, or whatever materials he claimed to have furnished, were done and furnished on an entirely different lot, or piece of ground, with an erection on it; and also, that the lien had not been renewed according to law; and that more than a year-had elapsed since the lien was filed, and it had never been renewed ; a motion was made at special term to have the action discontinued, and the lien discharged of record, with a general prayer for further and other-relief, &c.
    In opposition to the motion, the plaintiff, by affidavit, showed the filing of the lien, the commencement of the action and its actual pendency before the referee, and annexed a copy of the order of the court continuing the lien. He further claimed, that it did appear, and was fully proved before the referee, that the lien filed by him covered the premises owned by the defendant, and the work, labor and services, and the materials far • nished by the plaintiff, and for which he sought to recover, were performed and furnished toward the erection of the building situate on the lot upon which the lien was filed, and of which the defendant is the owner, which proof had not been contradicted by the defendant.
    The motion was granted, and an order made discharging the lien of record ; declaring it null and void, and vacating the order continuing the lien.
    From this order, the plaintiff appealed.

      Mr. D. McAdam, for plaintiff.

      Mr. S. B. Noble, for defendant.
   By the Court.—Monell, J.

It is understood that the order in this case was'made upon the grounds: first, that- it sufficiently appeared, that no work or materials was done or furnished, upon the premises designated in the notice ; and, second, that the lien docket had not been properly renewed, namely, that it did not appear, that a new docket had been made by the clerk, stating the renewal by the order of the court.

The tenth section of the mechanics’ lien law (Laws of 1863, p. 863), prescribes the various modes in which the lien may be discharged, neither of which was pursued in this case, and the order discharging the lien in this case, cannot, therefore, be sustained- under any provision of the statute.

But it is supposed that, independently of the statute, the court can exercise such control over actions pending in it, as to direct their discontinuance for reasons other than such as are specified in the statute, if such reasons are in themselves otherwise sufficient. And such, probably, is the power of the court; but the reason must become applicable to all cases pending in the court, and not peculiar to any class of cases. In other words, the power must be exercised under general rules, governing all cases.

In this case the learned justice, who decided the motion, assumed to determine upon affidavits a material, and perhaps the most material, question of fact in the case, and not upon any proof of the fact in the affidavits, but merely upon the assertion that it appeared from the testimony before the referee, without giving the testimony itself.

One of the questions in the action, which the referee was empowered to determine, was the very question which the court, upon this motion, undertook to determine in a summary way, upon ex parte affidavits and upon hearsay svidence.

That could not be done. It was invading the province of the referee, who, having got possession of the case,"could not be interfered with in that way.

The second ground, upon which the decision was placed, is equally untenable.

The eleventh section of the act provides that liens shall cease after one year, unless by order of the Court, the lien is continued, and a new docket made stating such fact.

It is not disputed that the order made by this court continuing the lien was in all" respect sufficient, both in point of time and manner of making, but according to the learned justice below, it did not appear that a new docket had been made by the clerk.

Upon a motion of this kind, which was not founded upon any of the reasons for a discharge contained iii the statute, the burden was upon the moving party to furnish another reason, sufficient in law, for granting the relief sought. That was not done in this case. The defendants’ allegation was merely that “ the lien had not been renewed according to law, and that more than a year had elapsed since the lien was tiled.”

This general allegation, unsupported by any fact, was wholly insufficient. It did not prove anything, certainly not that a new docket had not been made; and the learned justice must have been of the opinion that the burden rested on the plaintiff to show a subsisting lien. That might possibly be so if he was the moving party. It is not so when the owner is seeking to have the lien discharged.

But apart from this, every presumption is in favor of the performance of official duty It was for the county clerk to make a new docket, as required by the statute, and the law will presume that he performed his duty.

It was proved that the order coo tinning the lien was duly filed with the county clerk by the plantiff. With that the plaintiff’s duty ceased. It then became the duty of the clerk to make the entry, and we must intend that he did it (Hartwell v. Root, 19 Johns. 345 ; People v. Carpenter, 25 N. Y. 86).

The order should be reversed with costs.


text:
    HENRY McGUCKIN, Plantiff and Appellant, v. JULIA A. COULTER, Defendant and Respondent.
    Mechanics’ Lien.—Power of General Term to restore. On reversing a special term order discharging a mechanics’ lien, and vacating an order continuing the lien, the general term may include in the order of reversal, an order requiring the county clerk to restore the lien and the record of the order continuing it.

      Before Barbour, Ch. J., Monell and Freedman, JJ.
   The facts will be found in the preceding case of McGuckin v. Coulter.

By the Court.—Monell, J.

The court, at special term, granted an order discharging a mechanics’ lien of record, and vacating an order, made pursuant to statute, continuing such lien. The general term, upon appeal, reversed the special term order. It now appears that the county clerk, pursuant to the special term order, discharged the lien of record; and we are asked to amend the general term order, which merely reverses the order appealed from, by ordering the clerk to restore the lien to the record, and also the order continuing such lien.

I have no doubt that this should be done. The court has the power to make restitution (Chamberlain v. Choles, 35 N. Y. 477), and the plaintiff should be put where he was before the special term deprived him of his lien.

The motion should be granted. The order of the general term should be amended so as to require the county clerk to restore the lien, and also, the record of the order continuing the same


text:
    DELIA DICKSON, Plaintiff and Respondent, v. THE BROADWAY & SEVENTH-AVENUE RAILROAD COMPANY, Defendants and Appellants.
    Negligence.—Passenger case.
    1. Contributory negligence by passenger in alighting from a horse car.
    If, when a horse car has reached its terminus on the up trip, and is about to start on its return trip, it is negligence in the driver to start until he has ascertained that all the passengers on its up trip, who wish to alight, have got out, it is contributory negligence on the part of one of said passengers, who delays in attempting to alight, until he sees the horses passing along the side of the car for the purpose of being attached to the other end, so as to proceed on the return trip, to persist in said attempt without first in some way attracting the attention of the driver or conductor to the fact that he desired to alight, or taking some other precaution to prevent being thrown off by reason of the motion of the car.
    Before Barbour, Ch. J., McCunn and Jones, JJ.

      Decided April 29, 1871.
    The facts of the case appear in the opinion of the court.

      J. M. Scribner, Jr., for appellants.

      Jas. D. Warren, for respondent.
   By the Court.—Barbour, Ch. J.

This action was brought to recover damages for injuries to the person of the plaintiff, claimed to have been caused by the negligence of the defendants in the management of one of their street railroad cars, upon which the former was a passenger.

It appeared upon the trial, that the plaintiff, an old lady, entered the car in Seventh-avenue, near Twenty-sixth-street, intending to go to the Central Park. When the car arrived at a switch, near Fifty-third rstreet, it was stopped to enable the passengers to alight and take another car, and while it was so stopped, the horses were transferred from the northern end of the car to its southern end, and were then started to draw the car that way ; soon after which, the plaintiff received the injuries in question. '

The plaintiff testified that she supposed, at first, that the car had merely stopped there to let off a passenger, but in seeing that the horses had been taken from the north end of the car, and were passing towards the other end of it, she got on her feet to go out before they should start back. Her statement in regard to the particular manner in which the injuries were received by her, was as follows : “ When I came convenient to the door, the horses started quickly, and knocked me against the iron that lay at the dashboard. Then I thought to catch hold of the dashboard, but I missed it, and I went into the street.” . . “I was not exactly out; I was pitched out against the platform; I was within less than one step from the door when the horses started ; just opposite the door, very convenient to it.” . . “ I was within less than one step out; I was just going out of the door, and then they started very fast.” . . “ My right side struck against the railing that run across the dashboard; I am sure I struck my right side.” * * “/ hind of thought 1 would mahe something, but there was nothing for meto getbut to get the street, and I got the street; when I struck against the iron, I tried to get hold of something, but could not, and the next thing, I found myself in the street. I fell on the the left side of the street going down.”

The plaintiff did not testify, directly, that she was thrown from the car, or fell from it, either because of the starting of the horses, or otherwise ; nor, it appears to me, can it necessarily or even properly be inferred from the facts detailed by her, that she did fall or was thrown from the ear to the street, and thus received her injuries. She merely stated, that after being thrown against the dashboard, she tried to catch hold of something, but could not, and “ went into the street,” . . . “got the street,” . . “found her self in the street.”

It is impossible to determine from these statements of the plaintiff, whether she believed, when thus testifying as a witness, that she was thrown over the dashboard, as charged in her verified complaint, or that she was thrown into the street through the eastern gangway, or that, in her fright and excitement, she jumped or stepped off from the car, or whether, in fact, she was unable to state, when testifying, how she reached the the street. Her answer, “I tried to get hold of something, but could not, and the next thing I found myself in the street,” taken in connection with the fact that she failed to explain the manner in which she reached the street, from the place where she collided, with the dashboard, seems to sustain the theory that she did not remember, or was ufiable to state how it was done. Be that as it may, however, it is certain that the plaintiff did not testify that she was thrown off the car by the starting of the horses ; and I think it may safely be assumed, that she did not state facts upon her examination,.which were sufficient to prove that such was the case.

Indeed,.I am fully satisfied, from a careful examination of the entire case, that the evidence given upon the trial was sufficient, not only to establish the fact that the plaintiff was not thrown from the car by the the starting of the horses, but that she must have jumped or stepped off, of her own volition, after the car was in motion. For, she was so thrown out of the car, through the northern doorway, that her right side struck against the dashboard, and she fell upon the •street on the eastwardly side of the car. IN ow, if she had fallen backwards towards the east, after striking the dashboard opposide the door, and had landed upon the ground, her head and shoulders would have received the injury, and not her leg and ankle; and yet, the upper part of her person was unhurt. But, the point where she struck the dashboard, must have been so far from the eastern side of the car, as to render it impossible for her to fall from that point into the street; and such a fall, too, it may be observed incidentally, would have been at a right angle with the line of propulsion. It appears to me, therefore, that the plaintiff must have taken some steps towards the eastern side of the car, before she fell; and I see no way of accounting for the breaking of her leg, and dislocation of her ankle, unless the last of those steps was from the car to the ground. If that step was taken while the car .was in motion, it may well be, that the injuries to her leg and ankle were caused thereby.

The theory that the plaintiff fell immediately upon striking the dashboard, or that such fall was the direct consequence of the starting of the horses, was further disproved by the evidence of her own witness, Ketchell, who stated that he saw her standing upon the rear platform, after the car had started to go back ; by the testimony of Yosburgh, who stated that he saw the old lady standing on the rear of the car, and apparently waiting to get off, and shortly afterwards saw her lying in the street; and by that of the witness Waterman, who testified that he saw her upon the street as the car was moving off, and saw her take a step, stumble, and fall there. The plaintiff, therefore, failed to prove, upon the trial, that the injuries of which she complained were caused by the starting of the horses.

Besides, even conceding for a moment, that the injuries complained of were caused directly by the starting of the horses, I see no reason for imputing to the defendants any negligence or want of care, in starting the horses, even though the plaintiff was standing or walking in the car, but within reach of the door. It is one of the customary and usual incidents of travel on all the street railroads, and cannot be considered negligence, per se. But, if there was negligence of the company in this regard, there was also some negligence on the part of the plaintiff, which contributed to the accident. For she saw the horses going to the southern end of the car, and got up to go out, as she testified, “ before they would start back.” She was, therefore, aware- that they were about to start back, and, as a careful, prudent woman, ought to have guarded against a fall, either by putting her hand upon the door casing, or otherwise. In a word, if it was negligence on the the part of the defendants, to start the horses while the plaintiff was walking in the car, it was equally negligence on her part to walk there when she knew they were about to start.

1 am, therefore, of opinion that the court erred in refusing to dismiss the complaint, after the proofs were closed, and in submitting the case to the jury; and,, for that reason, I think the judgment ought to be reversed, and a new trial directed, with costs to abide the event.


author: By the Court.—McCunn, J.

text:
    JAMES P. MATTHEWS, Plaintiff and Appellant, v. KATE WOOD, Defendant and Respondent
    An appeal from a judgment in an action, and an appeal from an order denying a new trial in the same action, constitute two separate appeals, for which distinct and separate costs will be allowed to the party prevailing in both, although the two appeals were argued and heard by the court at the same time.
    Before Monell, McCunn and Freedman, JJ.

      Decided April 29, 1871.
    This was an appeal from an order of the special term. The facts sufficiently appear in the opinion of the court.

      H. K. Coddington, for appellant.

      Mr. Whilelegge, for respondent.
   By the Court.—McCunn, J.

This is an appeal from an order, readjusting a bill of costs settled by the clerk. The action was ■ tried before the learned Chief Justice and a jury. The verdict was for the plaintiff, and immediately after verdict," defendant’s counsel moved for a new trial upon the minutes of the court. The motion was denied. The defendant appealed from the order denying a new trial, and also from the judgment entered on the verdict; and the matter now comes before us on an appeal from the order reducing the clerk’s taxation.

The fact that the motion for a new trial was originally made on the judge’s minutes, and not on a case, does not alter or affect the costs of the appeal from the order denying the motion. By section 264 of the Code, an appeal from such an order must be heard on a case or exceptions in the usual form. Subdivision 2, of section 349, reads: “ When it (the court) grants or refuses a new trial,” &c. lío distinction is anywhere taken as to how the original motion is to be made; and it must follow, that the appeal from the order must be heard the same way, and governed by the same rules, whether the original motion was heard on a case or not. It is quite clear that when a motion is heard on the minutes of the judge who tried the case, and decided, and an appeal taken from such decision, a case and exceptions must be settled in the usual form, and upon that case, the argument at general term must be ■heard. This being so, it certainly must follow, that the costs on such an appeal are distinct and separate costs to those allowed on the motion for the new trial, on the minutes.

, The books abound in cases showing that an appeal from an order denying a new trial is a separate and distinct proceeding from an appeal from a judgment; the latter presenting for review, only questions of law, while the former enables the appellant to obtain a review of the facts as well; and although, in practice, the two „ appeals may be, and usually are, brought to a hearing at the same time, and upon one set of papers, they are still none the less two appeals, separate and distinct from each other, and presenting different questions to the appellate court for review.. It must follow, therefore, if there be two appeals, there must be separate costs allowed.

The order of the special term must be reversed.


text:
    CHARLES J. FISHER, Plantiff and Appellant, v. CHARLES LULING and ISAAC TAYLOR, Defendants and Respondents.
    The claim of a stevedore for unloading a vessel is not a subject of admiralty jurisdiction; the contract not being a maritime contract. Whenever the admiralty jurisdiction prevails, it is exclusive; but when admiralty has no jurisdiction, the jurisdiction of the State courts is unimpaired and operative.
    The statute of New York, of April, 1863, providing for the collection of demands against ships and vessels, is constitutional, except so far as the same attempts to confer jurisdiction in the State courts, in a 'case of admiralty jurisdiction, of which the United States courts have exclusive cognizance, either in rem or in personam.

    The case of The Josephine (39 W. Y. 19), and The Belfast (7 Wall. 436) discussed. The applications of rulings in The Josephine, to the case of a stevedore, denied.
    Before Monell, McCunn and Spencer, JJ.

      Decided April 29, 1871.
    Appeal from judgment for costs.
    The plaintiff obtained an attachment against the bark Harriet, under State statute of April 3, 1863, on his claim for services as a stevedore, in loading the vessel.
    The defendants gave a bond to procure the discharge of the vessel, and. the action in the court below was brought to recover on this bond, the amount of the claim of the plaintiff.
    After the plaintiff had rested his case, the defendants’ counsel moved to dismiss the complaint, upon the grounds that no contract within the meaning of the statute is proven ; also, upon the ground that the statute is unconstitutional.

      The motion to dismiss was granted, and the plaintiff’s counsel duly excepted.
    The facts and points in the case appear fully from the opinion of the court and the points of counsel.

      William W. Goodrich, for appellant.
    A contract within the meaning of the statute was proven. 1. The statute provides, that whenever a debt “ shall be contracted by the master, owner, charterer,” &c., “ of any ship or vessel, or the agent of either of them,” “ on account of loading” such vessel, such debt shall be a lien upon the vessel, under the provisions of the statute.
    3. Such a debt was contracted by the master, by the owner, by the charterer, and also by the agent of each of them. The term, “ debt shall be contracted,” refers either to an actual or implied contract—not simply to the execution of any written or parol agreement—but to the incurring of an obligation on.the part of the vessel, or her owners or agents. On a given state of facts the law implies an obligation, and the contracting of a debt.
    3. The owner of the vessel, by Euger, his agent, chartered her to Comstock, for a voyage from New York to San Francisco, and in the written charter, agreed that the stevedores should be “satisfactory” to him (folio 36), and that the “ship should pay the stevedore” (folio 37). Accordingly, one of the Euger Bros, ordered the plaintiff to go aboard the vessel. He made his bargain with them, to be satisfactory with the charterers (folio 26), and Comstock sent the plaintiff to Euger Bros., the owner’s agent (folio 7), and in pursuance of these interviews, the plaintiff loaded the vessel. The master, another agent of the owner, was aboard the vessel while the plaintiff did the work (folio 28). These facts would sustain an action against the owner for the bill; in other words, the owner contracted a debt.
    4. But the plaintiff saw fit not to rely solely upon the personal liability of the owner of the vessel. He filed his lien under the statute, which gave him additional rights. If he can show that a debt was contracted by either owner, charterer, master, or the agent of either of them, he obtains under the statute a lien on the vessel in whose service the debt was contracted.

      5. A “debt was contracted by the charterers” of the vessel, Comstock & Co., “on account of the loading of vessel.” They sent the plaintiff to Huger & Co. for the purpose of loading the vessel, and in pursuance of that, he loaded the vessel (folio 7). This was an employment of the plaintiff by the charterers, and the debt was contracted by them.
    6. Again: the debt was contracted by the owner himself. William Huger, one of the firm of Huger Bros., testifies that Ms firm were the brokers of the bark Harriet, and acted as brokers for her (folios 16, 17) up to the spring of 1867 (folio 18) ; to the time of the execution of charter-party (folio 18); and that they closed the charter-party (folio 19) under which the vessel sailed (folios 31, 23), and that they had such authority from Isaac Taylor, the owner (folio 19). The vessel sailed on her voyage with the cargo on board (folios 21, 23). These facts constitute a ratification of the acts and agency of the Huger Bros., in making the charter and providing for, and employing the stevedore, which renders the owner of the vessel liable for the plaintiff’s services, and implies a contract on his part to pay for them.
    7. Again: the master, by the general maritime law, has authority to contract a debt for loading a vessel, and a debt or obligation of the owner therefor, may be incurred by a special contract of the master, or by such a course of conduct pn the part of the master, as to imply the obligation of the owner. The master was aboard the vessel while she was being loaded (folio 28). He permitted it to be done. He adopted and derived the benefit of the plaintiff’a services, on behalf of the owner,- by accepting the services, and sailing with his vessel on the voyage named in the identical charter-party, which provided also for the employment of the stevedore, and his payment by the ship’s owner. This ’ implies an obligation on the part of the owner, none the less actual than that which would arise under the special contract of the master.
    The statute is constitutional, so far as it relates to stevedores. The Constitution of the United States provides that the judicial power of the government shall extend, among other things, “to all cases of admiralty and maritime jurisdiction” (U. S. Const. art. 3, sect. 2, subd. 1). The act of Congress, passed in September, 1789, and .familiarly known as the judiciary act, declared that the district court “shall also have exclusive cognizance of all civil causes of admiralty and maritime jurisdiction,” “saving to suitors in all cases the right of a common law remedy where the common law is competent to give it” (Brightl. Dig. p. 230, § 11.) The term “cases of admiralty and maritime jurisdiction,” in the constitution and judiciary act, have been held to mean all such cases of a maritime character as were cognizable in the admiralty courts of the State at the time when the constitution was adopted, and the best guides as to the extent of that jurisdiction are the federal courts (The Belfast, 7 Wall. 636 ; Waring v. Clarke, 5 How. U. S. 454). The claim of a stevedore for loading a vessel is not a civil cause of admiralty and maritime jurisdiction, and is not within the exclusive cognizance of the courts of the United States, and these courts have repeatedly so decided, refusing to entertain jurisdiction either in rem or in personam, on the ground that a contract for such services was not a maritime contract (The Amstel, 1 B. & H. 215 ; The Joseph Cunard, Olcott, 120 ; The S. G. Owens, 1 Wall. Jr. 370 ; The Circassian, 1 Bened. Ad. 209 ; Davis v.
      Child, Davies, 71 ; The Sophie, 1 W. Rob. 368 ; 1 Parsons’ Mar. L. 489).
    The court oí appeals, in the case of The Josephine (39 N. Y. 19), only held the statute to be unconstitutional in attempting to confer jurisdiction on the State courts, where the case was one of admiralty or maritime jurisdiction, of which the United States courts have exclusive cognizance, either in rem,, or in personam. The above cases show that this does not apply to the claim of a stevedore.
    In the case of The Belfast, (above cited) at page 645, the supreme court of the United States virtually overruled the decision of the court of appeals in the case of The Josephine, to this extent—that wherever there is no lien in admiralty, although there may be a right of action in personam (as for instance, in a contract for materials and supplies furnished to a vessel in the home port, where there is no lien in admiralty, but where there is, by the 13th admiralty rule, a right of action in personam), “it is competent for the States, under the decisions of this court, to create such liens as their legislatures may deem expedient.” Applying this doctrine to our statute, it will be evident that, so far as the claim of a stevedore is concerned, the statute is constitutional.
    The statute is remedial, not penal, and should be so construed as to secure the end it was designed to meet (Weed v. Tucker, 19 N. Y. 433 ; Pillow v. Bushnell, 5 Barb. 156 ; Matter of Smith, 10 Wend. 449 ; People v. Tibbets, 4 Cowen, 384 ; Gildersleeve v. People, 10 Barb. 35.)
    . Vessels are transitory, and the object of giving a lien is two-fold, to secure the person furnishing the labor, and to give vessels a credit, which enables them to be put in a proper condition for pursuing their duties, though the owner may be unknown.

      James K. Hill and Thos. C. T. Buckley, for respondent.
    The proceedings under the statute in question, by virtue of which the attachment in question was issued and the bond taken, being a proceeding against the vessel by name, is a proceeding in the nature of, and with the incidents of an admiralty action, and as such is not within the scope of State jurisdiction; but is exclusively a matter for the cognizance of and within the jurisdiction of the federal courts ; consequently the State statute is unconstitutional and void (The Josephine, 39 N. Y. 19 ; Ferran v. Hosford, 54 Barb. 208.
    By the statute of 1862, to create a lien, there must be:
    1. A debt contracted.
    2. With the master, owner, charterer, builder, or consignee, or the agent of either of them.
    3. For some one of the five purposes specified in the Act (Laws of 1862, p. 960, § 13).
    By the complaint (folio 46) this debt was alleged to have been contracted with Huger Brothers as “the owners, charterers and consignees” of the Harriet. By the specifications of the lien, filed pursuant to the statute, see Exhibit “A” (fol. 68), the debt is stated to have been contracted by Huger Brothers, the owners, charterers or consignees of said vessel, or their agent.
    1. By the proofs on the trial it appeared that the plaintiff dealt directly with Huger, and not with any agent of theirs. See testimony of plaintiff (fols. 6 and 7).
    2. That Huger Brothers were not the owners. See folio 22.
    3. Nor charterers, in the sense in which the term is obviously used in the statute; that is, persons who are owners pro Tiac vice, by charter from the owners.
    4. Nor consignees, but only persons who procured business for the ship as brokers (folios 25, 26).
    There was, therefore, a perfect failure of proof to establish that, the debt was contracted with any person or persons answering the description in the statute or specification, whose relation to the vessel would entitle the party contracting with him or them to any lien.
    The plaintiff, however, not only failed to prove that Huger Bros, were either “ owners, charterers or consignees but he gave no evidence showing who were the owners.
    He sought to recover by introducing a new element in the statute, viz : the introduction of the word “vessel,” and to that end offered certain evidence, which was excluded (See folios 23, 20, 29, et seq.).

    The evidence was excluded properly.
    1. It had no bearing on the question of ownership, and was not offered except to show that the firm acted as agents for the vessel.
    2. It was not stated in the specification, as a ground of lien, that the debt was contracted with them as agents at all.
    ■ 3. The mere receipt of the charter money was immaterial, the inquiry not being as to the party who received it.
    4. The charter-party when admitted proved nothing" as to agency. It was a mere personal obligation of the Rugers, binding no one but themselves personally.
    There is nothing in the statute which allows a lien like this to be created against the property of an owner of a vessel, simply by the performance of the service.
    That is only one element, and it would be contrary to the statute and to the general policy of law to hold, as the appellant’s council contended, that the assumption of the function of agents, or as he expressed it, “ the acting as agents” by any outside party, bound the real owner of this vessel in this case, Mr. Harper, who, finding his property seized, applied for discharge, in the absence of proof of recognition of their acts, or approval by him of the service.
    There is not a scintilla of such proof, nor any proof who were owners, or of any authority from any one having any interest in the vessel, authorizing any one to make this contract.
    It is quite evident that the plantiff supposed Huger Brothers to be owners, and the idea that they acted as “agents for owners” is an afterthought opposed to the complaint and the specifications.
    In fact he relied entirely on the personal credit of that firm, against whom he has a personal action now pending, commenced before the attachment was sued out (See folio 13).
   By the Court.—McCunn, J.

In my judgment the only question on this appeal is whether the court have jurisdiction of the cause of action ? The respondent contends that it is a cause of admiralty and maritime jurisdiction, and as such is exclusively within the cognizance of the Federal judiciary.

I cannot conceive it my duty to be astute in discerning pretexts for ousting the jurisdiction of the State courts; but am inclined rather to maintain that jurisdiction if I can find any solid ground on which to support it. Perhaps, in view of the progressive aggrandisement of the admiralty in this country, it is chimerical to oppose any boundary of principle to its ever expanding jurisdiction. As far as I can see, the only limit to its growth is its own impulse of development. At the present state of its progress, the admiralty j urisdiction of the Federal courts, if it obtain at all, appear^ to be exclusive. It has not yet proceeded so far as to deny the jurisdiction of the State tribunals in cases confessedly beyond its own province.

How the federal courts themselves have uniformly declared that the claim of a stevedore for loading a vessel is not the subject of admiralty jurisdiction, the contract out of which it arises not being a maritime contract (The Sophie, 1 W. Rob. 368 ; The Joseph Cunard, Olcott, 120 ; The Circassian, 1 Bencd. Ad. Rep. 209 ; 1 Parsons’ Mar. L. 488; The Amstel, 1 B. & H. 215 ; The S. G. Owens, 1 Wall. Jr. 370, and Davis v. Child, Davies, 71).

But the judiciary act of 1789 goes no further than to assert, that where the admirality jurisdiction prevails at all it is exclusive. In The Belfast, 7 Wall. 436, the United States supreme court explicitly concedes that when the admiralty has no jurisdiction the jurisdiction of the State courts is unimpaired and operative.

In the case of The Josephine (39 N. Y. 19) the court of appeals, in endeavoring to explain away the act, held it to be unconstitutional only so far as it conferred jurisdiction on the State courts where the case was one of admiralty or maritime jurisdiction ; the United States courts having exclusive cognizance of such cases. But this rule does not apply to the claim of a stevedore.

The supreme court of the United States however, in the Belfast case, has overruled the doctrine laid down in the Josephine case, so far as it conflicts with this view of the act. But apart from all this, the act is a remedial act, not penal, and the most liberal construction should be given it so as to enable the law to meet amply the ends for which it was designed. Certainly, if the legislature intended it to apply to a certain class of cases, this case is one of those cases wherein a special application of the act should be made.

The admiralty itself pretended no jurisdiction of the claim in controversy. I am at a loss to understand why this court is not competent to enforce it.

The nonsuit should be set aside, a new trial ordered with costs to abide the event.

Spencer, J., dissented, but without any written expression of his views of the case.


text:
    JOHN McGINN, Plaintiff, v. JOSEPH ROSS, Defendant.
    Attachment against fbopebty dndeb the Code.
    1. Levy on debt due the defendent in the action in which the attachment was issued; what sufficient to constitute so as to bind, the debt and place it in the custody of the sheriff, a. The service on the debtor of a copy of the attachment, together with a notice from the sheriff that he levied on the debt under the attachment, is sufficient.
    5. The making and return of an inventory by the sheriff is not necessary.
    3. Such a levy is a good defense on part of the debtor to an action brought against him by an asignee of his creditor, claiming under an assignment made subsequent to the levy.
    Before Barbour, Ch. J., Monell and Jones, JJ.

      Decided June 3, 1871
    Exceptions ordered to be heard at general term.
    The action was to receive a balance of purchase money of a stock of goods.
    In March, 1865, Branigan, the plaintiff’s assignee, sold and delivered to the defendant, for a consideration of four thousand dollars, his stock of goods in the store No. 65 Mott-street in this city. Sixteen hundred dollars of the purchase money was paid at the time, partly in cash, and partly by extinguishing a prior indebtedness of Branigan to the defendant. The balance, the defendant agreed to pay the next day to Branigan’s wife, but did not. Branigan absconded, and remained' away several years. After his return, and in September, 1869, he assigned the claim for the unpaid balance of the purchase money to the plaintiff.
    The defendant, amongst other defenses, alleged the issuing of two attachments against the property of Branigan, on the several grounds, that he had absconded from the State, and had assigned, disposed of and secreted his property, with intent to defraud his creditors, a copy of which attachments were served by the sheriff upon the defendant in this action, having indorsed thereon a certificate and notice subscribed by the sheriff, that it was a true copy, and that all debts, credits and effects of Branigan were liable thereto and were thereby attached by him, including the alleged claim assigned to the plaintiff.
    On the trial before Mr. Justice Fbeedhae and a jury, the defendant offered in evidence the attachment proceedings in two suits by creditors against Branigan, one in the court of common pleas, issued in March, 1805, and the other in the supreme court, issued April, 1865, together with the record of judgment in such suits. Executions upon such judgments were issued. The one upon the common pleas judgment was returned satisfied. No return appeared to have been made to the other.
    The offer of this evidence was overruled, and all the proceedings rejected.
    The defendant then offered to show that under the second attachment and execution the sheriff temed upon and attached in the hands of Boss, his liability to pay the balance of the purchase money of the property mentioned in the complaint, by serving upon him a copy of the attachment, together with a notice that he levied upon such claim under and by virtue of the attachment and execution issued in the second suit; all of which took place about the date of the- process referred to, and long before the assignment to the plaintiff.
    This offer was also overruled and the evidence re-¡ jected.
    The defendant excepted to both decisions.

      It appeared in evidence, that under the attachments, the sheriff had taken the stock of goods sold by Branigan to the defendant, and had subsequently sold the same under the execution; upon which sale enough was realized to satisfy the first judgment. The defendant made no resistance to such taking by the sheriff.
    The jury, under the direction of the court, rendered a verdict for the plaintiff for the amount claimed.
    Judgment was suspended and the exceptions sent to the general term.

      Mr. J. H. Whitelegge, for plaintiff.

      Mr. Albert Matthews, for defendant
   By the Court.—Monell, J.

As the rejection of the evidence offered by the defendant appears to have been erroneous, we have not deemed it necessary to examine any of the interesting questions raised by the other exceptions.

It is not understood upon what ground the evidence was excluded; but the plaintiff’s counsel insisted that there had been no sufficient levy upon the claim in shit, so as to vest the right to it in the sheriff. -

It must be assumed, for the purpose of examining the question, that the execution upon the second judgment was unsatisfied; otherwise, the office of the attachment would have been spent, and a new levy would have been necessary under the execution.

These attachments were issued in actions under the Code, and enough appeared to give jurisdiction ; and I think the levy was sufficient to place the debt, due from the defendant to Branigan, in the custody of the law. And as the plaintiff got, by the assignment, such interest only as Branigan had, the evidence offered furnished a defense to the plaintiff’s action.

The levy under the attachment, as it was offered to ¡be shown, was strictly .in conformity with the statute. The Code provides that all property of the defendant in the attachment shall be liable to levy; and in respect to “debts” due to the defendants, that the attachment shall be executed by the sheriff’s leaving a certified copy with the debtor, with a notice showing the property levied on {Code, §§ 234, 235). That all this was done, the evidence offered would have established.

The effect of such notice was to constitute it a sufficient levy upon the claim in this action, and to vest in the sheriff the right of action upon it (Burkhardt v. Sandford, 7 How. Pr. 329), unless, as was claimed by plaintiff’s counsel, the offer of evidence was incomplete, in not embracing an offer, also to show the making and return of an inventory, as required by the statute (2 Rev. Stat. 4, § 8.)

The offer was, I think, sufficient. It was to prove a notice from the sheriff to the debtor that he had levied upon the claim. The lien of the attachment thereupon became complete, and the sheriff became vested with all of Branigan’s interest in the claim.

The omission of the sheriff to make and return an inventory would not, probably, of itself, invalidate the levy, if it was otherwise sufficient, as the provision requiring an inventory is for the benefit of the creditor, and can be enforced only by him.

But, however that may be, it will be seen, that although the sheriff is required (§ 232) to proceed, in all respects, in the manner required of him by law in case of attachments aga’nst absconding debtors, yet the Revised Statutes do not contain any provision constituting a notice to a debtor a levy upon the debt. The provision in the Code is new, and was probably designed, by giving a better notice to the debtor, to protect him against the claim by his creditor.

At and for a long time previous to the assignment to the plaintiff, all the rights of his assignor had passed to the sheriff, and he was incapable of transferring anything to the plaintiff until the attachment levy was removed, which had not been done at the time of the trial.

For these reasons, I think the defendant ought to have been permitted to have made good Ms offer and to haveproved his defense.

The exceptions should be sustained, the verdict set aside and a new trial granted, with costs to the defendant to abide the event.

J ones, J., concurred.


text:
    JOHN MORAN, Plaintiff and Respondent, v. JOHN McSWEGAN, Defendant and Appellant.
    Contract nor Work and Materials.—Damages, Measure op, in case op Breach by Employer.
    1. When the employer prevents the employee from performing and completing the contract, the measure of damages, in an action by the employee, is the fair value of the materials and work furnished and performed.
    Before Barbour, Ch. J., Monell and Jones, JJ.

      Decided June 3, 1871.
    This action was brought to recover the Value of certain materials furnished and services performed by the plaintiff, for the defendant, in altering and repairing the house of the latter. The cause was tried before a referee, who found, that in March, 1868, a contract in writing was made between the parties, whereby the plaintiff undertook to make certain alterations upon the defendant’s house, and the latter promised to pay him therefor, the sum of three thousand one hundred and fifty dollars; that the plaintiff thereupon entered upon the performance of the work, and proceeded therein until the 11th of May, 1868, when he was forbidden and prevented by the defendant from proceeding with his work; that certain other work was done by the plaintiff, under a special agreement between him and the plaintiff; that the fair value of the work and services so performed by the plaintiff, was two thousand seven hundred dollars ; that he had received from the defendant one thousand dollars, leaving a balance, including interest up to the date of the report, of two thousand two dollars and twelve cents; and the referee thereupon held and decided, as matter of law, that the defendant broke and rescinded the contract, and, consequently, the plaintiff was entitled to recover from the defendant, the reasonable value of the work and materials furnished by the former, with interest thereon, and that he was entitled to a judgment for the above sum, with costs. The case comes before the general term upon an appeal from the judgment thereupon.

      Jerome Buck, for appellant.

      H. Andrews and H. Ellis, for respondent.
   By the Court.—Barbour, Ch. J.

Upon a laborous and careful examination of the testimony in this case, of six hundred and fifty folios, I am satisfied that the evidence exhibited by the plaintiff upon the trial, was sufficient, if credited by the referee, to justify all his findings of fact.

There is no merit in the objection, that certain facts were not found by the referee. He has found all the facts necessary to entitle the plaintiff to a judgment, and was not bound to find upon other questions of fact, unless requested to do so by counsel, which does not appear to have been done.

The measure of damages adopted by the referee was correct, The plaintiff was entitled to recover the fair value of his work and materials, furnished and performed under the contract, up to the time when he was prevented by the defendant from proceeding farther (Clark v. Mayor of New York, 4 N. Y. 338).

The judgment should be affirmed, with costs.