text:
    The People of the State of New York, Respondent, v. Charles Young, Defendant. Charles Rieger and Elizabeth Rieger, Appellants.

      Bail — liability for the expenses of extraditing a prisoner — an application for a remission is addressed to the court’s discretion — in what court made.

    Upon an appeal by Charles Rieger and another, sureties upon a bail bond, from an order of the Court of Sessions of Monroe county denying- their motion for a remission to a certain extent of tlie forfeiture of the bail bond of one Young, it appeared that Young was arrested and that the appellants became his bail in the sum-of 82,500 for his appearance to answer to an indictment if one should he found; that subsequently Young was indicted for assault in the first degree; that in the meantime he had gone to England; that an attempt was made t-o extradite him, and that the sheriff of Monroe county sent a deputy to England; that Young was tried, convicted and imprisoned in England, and that the deputy returned; that the sheriff presented a bill to the board of supervisors for these services, which was audited at 8989.90; that when Young’s term of imprisonment in England expired tlie sheriff sent another deputy- to England, who brought Young to the county of Monroe, and that tlie sheriff’s bill for ibis service was 81,049.19; that judgment was taken against the appellants as bail for-82,518.30; t-liat by the order appealed from there was remittee) the excess of that sum over 82,039.

      Held, that the order being one affecting a substantial right was appealable;

      That although made in a court having criminal jurisdiction it would, for the purposes of the motion, be deemed to have been made in a civil special proceeding as distinguished from a criminal special proceeding, and would be treated as coming within the provisions of the Code of Civil Procedure;
    That the motion might have been made either in the Court of Sessions or in the County Court;
    That the motion must be regarded as one which sought a favor and was addressed to the discretion of the court;
    That as a general rule one court would not review the discretion of anotheicourt unless authorized to do so by statute, or unless the discretionary power had been abused by the lower court in such a manner as to constitute an error in law;
    That, although the sheriff’s bills were large, the sheriff’s charges would, unless paid by the sureties, fall upon the county, and that the county was entitled to indemnity;
    That while it was true that, as between the United States and Great Britain, the expenses of extradition were those of the Federal government, yet, when the question as to who should pay them arose as between the Federal government and the county where the crime was committed, such expenses having been incurred by the officers of the county, they could not seek indemnity elsewhere.
    Appeal oy Charles Bieger and another, sureties on the bail bond of the defendant, from an order of the Court of Sessions of Monroe county, entered in the office of the clerk of. the county of Monroe on the 29th day of January, 1895, denying their motion for a remission, to the extent sought, of the forfeiture of the bail bond of Charles Young.

      Abraham Benedict, for the appellants.

      Fred. 0. Hanford, Assistant District Attorney, for the respondent.
   Bradley, J.:

The defendant Young was arrested on the charge of assault in the first degree, and the appellants became his bail in the sum of $2,500 for his appearance to answer to an indictment if it should he found by the grand jury. They presented one against the defendant for assault in the first degree. In the meantime Young had left the country and gone to England. With a view to his extradition a requisition and warrant of the Executive of the United States were obtained and the sheriff of Monroe county sent his deputy to England after Young. lie remained there during the pendency of a prosecution in that country against the defendant which resulted in conviction and imprisonment. Thereupon the deputy returned to this country. The bill presented by the sheriff to the board of supervisors for the service was $1,159.90, of which the sum of $989.90 was audited by the board and put into the tax levy. Shortly prior to the expiration of the term of imprisonment for which Young was sentenced in England, the deputy of the successor in office of the sheriff before mentioned went to England, was there when Young was discharged from such imprisonment, and pursuant to the extradition treaty between the two countries took Young into custody and brought him from there to the county of Monroe. The amount of the sheriff’s bill for this service, as made out for presentation to the board, was $1,019.19. It does not appear that any action of the board of supervisors had been taken on this bill at the time the proofs in this proceeding were prepared in April, 1891., In October, 1893, judgment was recovered against the appellants upon tlieir undertaking as bail for the sum of $2,518.30. The excess of that sum over $2,039 was remitted by the order appealed from.

The main purpose of the statutory requirement of bail, which, when furnished, relieves the person charged with crime from custody, is to have such assurance as it may furnish of the appearance of the principal to answer to an indictment and of his presence for trial, and as indemnity' for the consequences of his failure to submit himself to the jurisdiction of the court. Iiis default gives a right of action upon the undertaking executed by the bail to recover the amount of it. This was the consequence of the default of the principal in the case in question. By their motion the sureties of Young sought to invoke the discretion of the Court of Sessions for relief pro tanto from the judgment recovered against them. The statute on the subject provides that “After the forfeiture of the undertaking or deposit, as pro videdin this article, the court directing the forfeiture, the County Court of the county * * * may remit the forfeiture or any part thereof upon such terms as are just.” (Code Cr. Proc. § 597.)

“ The application must be upon at least live days’ notice to the District Attorney * * * and can be granted only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.” (Id. § 598.) The forfeiture was directed by the Court of Sessions of Monroe county, and, therefore, the motion was properly made in that court for the remission.

The right of appeal in criminal cases is dependent upon the statute as are also appeals from orders. (People v. Thompson, 41 N. Y. 1.) If the order in question should be deemed to have been made in a criminal action, the appeal would have the support, of no statute. The Court of Sessions is a court of criminal jurisdiction. It is, nevertheless, a court of record of original jurisdiction. And the statute provides that an appeal may be taken to the Supreme Court from an. order affecting a substantial right made -by a court, of record possessing original jurisdiction in a special proceeding instituted in that court pursuant to a special statutory provision. (Code Civ. Proc. § 1357.) The order was made in a special proceeding, and, although made in the Court of Sessions, it may, in view of the purpose of the motion, be deemed to have been made in a civil, as distinguished from a criminal special proceeding, and, therefore, treated as within the provisions of the Code of Civil Procedure, entitled “An act relating to Courts, Officers of Justice and Civil Proceedings.” It was optional with the appellants to make the motion either in the Court of Sessions or the County Court.

Assuming, therefore, that the order affects a substantial right, it is appealable. The difficulty encountered by the appellants is in the fact of the discretion of the Court of Sessions in determining the matter of the application on which the order was made. The bills for charges and expenses in recapturing Young and bringing him into the jurisdiction of the court for the purpose of his trial for the offense, may seem large and somewhat unreasonable, as they were made to appear upon the application of the appellants for relief. Yet the motion made by them was in some sense one for favor. And the court was justified in requiring that the county of Monroe should, so far as the obligation of the sureties would permit, be indemnified against loss arising from the expenses with which it was or might be chargeable in consequence of the default of their principal. The charges for the amounts mentioned were made by the sheriffs. Those of one of those officers had been acted upon, considered and audited by the board of supervisors for a sum somewhat less in amount than that for which the bill was presented by him. The other bill, on the same basis, very likely became the subject of consideration, and was audited for some amount before the order appealed from was made, and as between the boárd of supervisors and the sheriffs it does not appear whether or not the bills were challenged otherwise than by the investigation given to them by the board. In this and in the audit the board of supervisors are deemed to have acted judicially. It may, therefore, be assumed that the taxable property of the county of Monroe became chargeable with the amount of such bills as audited and allowed by the . board of supervisors. So far as appears, the order in question remits the amount of the recovery in excess of that found necessary to indemnify the county for the expenses charged in taxes upon the assessment rolls as perfected by such board.

The provision of the statute, that the court referred to “may remit the forfeiture,'or any part thereof, upon such terms as are just,” confers a discretionary po.wer upon it. (People v. Spear, 1 N. Y. Cr. Rep. 538.)

And the general rule is that one court will not review the discretion, of another court unless authorized by statute to do so, or unless such discretionary power has been abused by the latter court in such manner as to constitute error in law. (Wavel v. Wiles, 24 N. Y. 635; Reilley v. D. & H. C. Co., 102 id. 383; Tanner v. Marsh, 53 Barb. 438; Thomas v. Keeler, 52 Hun, 318; Tucker v. Pfau, 70 id. 59.)

The appellants, by their application to the Court of Sessions, sought its favor and discretion for relief, and by requiring full indemnity to the county for the expenses incurred in recapturing Young, with which it was through its constituted authorities charged, it cannot well be said that the discretion of the court was abused by the order there made. It is, however, urged on the part of the appellants that the expense of recapturing Young was not a county charge, but that such expense is primarily that of the Federal government. It is true that as between the United States and Great Britain the expenses of the extradition pursuant to the treaty are to he borne by the former, but the relation in that respect between the two governments does not control as to the primary or ultimate duty or obligation as between the Federal government and the county in which the crime is alleged to have been committed by the extradited person.

The expenses of the recapture of Yonng were incurred by the officers of Monroe county. Those officers cannot seek indemnity elsewhere. And it was within the power of the court to treat the expenses as incurred in behalf of the county. And they were properly the subject of consideration by the court upon the motion made for remission of the forfeiture.

These views lead to the conclusion that the order must be affirmed.

Lewis and Adams, JJ., concurred; Ward, J., not sitting.

Order affirmed, without costs.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. Lewis Johnson, Respondent, v. Charles A. Webster, as Superintendent of the Penitentiary of the County of Monroe, Appellant.

      Court of Special Sessions■ — a sentence of, must be for a definite term — discharge under a habeas corpus because of an improper sentence— distinction as to remanding the accused between courts of record and those not of record.

    A certificate of conviction which adjudges that a person shall be imprisoned in a penitentiary for a period not exceeding 180 days is void, for the reason that it does not definitely determine the length of time during which the imprisonment shall continue.
    A Court of Special Sessions has no power to render such a judgment and the prisoner is entitled to be discharged at once upon a writ of habeas corpus.
    In such a situation the prisoner cannot be remanded for the further action of the court and for resentence, because the Court of Special Sessions, by which ho was tried and convicted, ceased to exist for the purposes of the case when the judgment was pronounced. '

    It is otherwise when a judgment of conviction of a court of record is void by reason of a want of power to impose a punishment pronounced by it, for in such a case the prisoner may be remanded for resentence and the record may be corrected accordingly.
    Appeal by George JD. Forsyth, district attorney of the comity of Monroe, “in the name of the People of this State and as attorney for the defendant,” from an order made by the county judge of the county of Monroe bearing date the 3d day of October, 1894-, discharging the relator from the custody of the superintendent of the Monroe County Penitentiary.

      Howard II. Widener, for the appellant."

      W. II. Sullivan, for the respondent.
   Bradley, J.:

The relator was imprisoned in the Monroe County Penitentiary by virtue of a certificate of conviction, made by a justice of the peace of that county, on the charge of assault in the third degree upon one William PfEarr, by which certificate it appears that it was adjudged that he be imprisoned in the Monroe County Penitentiary for a period not exceeding 180 days. To the return of the defendant to the writ of habeas corpus, that the relator was in custody by virtue of the warrant of commitment or certificate before mentioned, the relator answered and demurred to the effect that the certificate of conviction furnished no warrant for his detention by the defendant. It must be assumed that the relator was properly before the Court of Special Sessions and was tried and convicted for the offense charged. Thereupon it was within the power of that court to render judgment imposing a fine not exceeding fifty dollars or imprisonment for a term not exceeding six months, or both such fine and imprisonment. (Code Cr. Proc. § 717.)

The term of imprisonment, however, must be definitely fixed and declared by the judgment. It cannot lawfully be left to the management of the jail or penitentiary to determine the length of time for which, within a certain pei’iod, the imprisonment shall'continue. In that respect the' judgment of conviction and the certificate thereof, constituting the warrant of commitment, were ineffectual to continue, the relator in custody for any length of time.

But it is said on the part of the defendant in the proceeding that this, at most, was merely error available only on review, and, therefore, it is not within the legitimate purpose of a writ of habeascorpus to relieve the relator from his imprisonment. While it is-true that upon the return of such a writ an inquiry cannot be made into the legality or justice of the mandate or judgment of a competent tribunal of civil or criminal jurisdiction when the time for which the prisoner may be legally detained has not expired (Code Civ. Proc. §§ 2032, 2034), this proceeding is founded not upon any alleged want of jurisdiction to render a judgment of conviction against the relator or upon any alleged error of the court in the trial leading to the judgment, "but it rests upon the alleged fact that there was no power in the court to render the judgment which was pronounced, and that the certificate of conviction, by virtue of which lie was imprisoned, was no warrant for his detention.

The question to be considered here is one relating to the power of the Court of Special Sessions, and that is not necessarily included within the meaning of the words legality ” and “ justice ” as used in the statute. Although it was within the power of the court to render a judgment, unless the court had power to render the judgment pronounced, it was not the judgment of a competent tribunal . within the meaning of that term and was void. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559.)

It is urged by the learned counsel for the appellant that the sentence of the court was for imprisonment for 180 days. "While •such effect might be given to the execution of the judgment, it is the nature of it, not the consequences of its execution, which may follow, that determines the character of the judgment. The term •of imprisonment is not so pronounced that its determination before the expiration of the 180 days would violate the direction expressed in the sentence of the court. ITow then can it be said to have been •definite or certain in that respect ? And if not so, how can the judgment be treated as one which it was in the power of the court to render?

It would seem at the most that the sentence was one of imprisonment. for no specific time, and, therefore, the relator was entitled to his discharge from custody in the penitentiary at any moment after he had been confined there pursuant to the judgment, for the reason that the time for which he might legally have been detained had expired. (Code Civ. Proc. § 2032.)

There is no opportunity to remand the relator for further action of the court and for resentence "because the Court of Special'Sessions, by which he was tried and convicted, ceased to exist for the purposes of that case when the judgment was pronounced and the certificate of conviction was made, and it cannot be reorganized to take further proceedings in the matter of that prosecution of the relator. (People ex rel. Cook v. Smith, 28 N. Y. St. Repr. 306; People ex rel. Lotz v. Norton, 76 Hun, 7.)

It is otherwise when a judgment of conviction of a court of record is void by reason of a want of power to impose the punishment pronounced by it. Then the prisoner may be remanded for resentence and the record may be corrected accordingly. (People ex rel. Devoe v. Kelly, 32 Hun, 536; 97 N. Y. 212.)

These views lead to the conclusion that the order appealed from should be affirmed.

Lewis, Ward and Adams, JJ., concurred.

Order affirmed.


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    George F. Ditmars and Abram R. Wyckoff, as Executors, etc., of John V. Ditmars, Deceased, Plaintiffs, v. Frederick B. Sackett and Others, Defendants.

      Usury — agent of a lender accepting an illegal bonus — the principal is not chargeable with usury unless he acquiesced in such act ■ — a conversation of a decedent with a third person in the presence of a person interested cannot be proved by the latter.
    A personal transaction or communication, between a witiltess having an interest in. the result of an action and a decedent, to which the prohibition of section 829 of the Code of Civil Procedure applies, includes a transaction or communication of a decedent with another in the presence of the witness, upon the subject to which, his interest relates, although the latter takes no actual part in the transaction or communication.
    Upon the trial of an action of replevin, brought to recover the possession of certain personal property, transferred by a chattel mortgage made by the defendant Frederick D. Sackett to the plaintiff’s testator to secure the payment of a promissory note made by Frederick D. Sackett and W. Gilmore Sackett, and payable to the te'stator, in which the defense of usury was interposed, it appeared that the amount of the note was $150, and that W. Gilmore Sackett, the borrower, received only $140, the loan being made through the testator’s; attorney, who retained ten dollars. When the attention of the testator was. called to this fact, he said to the person who talked with him about it that his. brother, meaning W. Gilmore Sackett, had agreed to pay the ten dollars.
    Upon the trial of the action the court directed a verdict for the plaintiff.

      Held, that this direction was erroneous;
    That a question was presented for the consideration of the jury whether or not the loan was made by the plaintiff’s testator, pursuant to a corrupt agreement, in violation of the statute relative to usury;
    That the taking of a bonus by the agent or attorney of a lender without the knowledge or acquiescence of the latter would not charge the lender with usury; that it is essential to the defense of usury that the principal be chargeable with such knowledge or acquiescence, as of the time when the loan was made;
    That this principle did not apply to the present case as the only reasonable inference from the testator’s statements relative to the ten dollars was that the usurious agreement was made before the loan was perfected.
    Motion by the defendants, Frederick B. Sackett and others, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the plaintiffs rendered by direction of the court after a trial at the Seneca Circuit on the 5th day of March, 1895.

      William /S. Moore, for the plaintiffs.

      Frank G. Gushing, for the defendants.
   Bradley, J.:

The action is replevin to recover the possession of certain personal property mentioned in and transferred by a chattel mortgage ■of date November 16, 1891, made by the defendant Frederick B. Sackett to the plaintiffs’ testator to secure the payment of a promissory note of the same date made by the defendants, Frederick B. Sackett and W. Gilmore Sackett, for $150, payable to the testator three months after its date with interest. The defense alleged is usury. The trial court refused to submit any question to the jury and directed a verdict for the plaintiffs; exceptions were taken by the defendants. The purpose of the note and mortgage was to secure the payment of a loan of money by the plaintiffs’ testator to the defendant W. Gilmore Sackett. The amount received by him was $110. The alleged usury was in the reservation by the lender of ten dollars in excess of the legal rate of interest. And the evidence on the part of the defendants Was to the effect that after the testator had promised to make the loan on such security, and on the ■day of the date of the note and mortgage, "W. Gilmore Sackett met the plaintiffs’ testator and George F. Ditmars at the office of the latter, and that the latter, who was an attorney, handed to that defendant $110 and no more as the loan upon the security so given. The negotiation for the loan of $150 shortly prior to the time of the transaction last above mentioned was had by Garry Y. Sackett, a brother of W. Gilmore Sackett, with the plaintiffs’ testator. He was not present at the time the loan was made. His evidence is that few days thereafter lie met the testator and said to him: “You took ten dollars on that loan the other day. * * I came over here to-day to settle that matter up with yon, and it must be settled; ” that the testator answered : “Well, your brother agreed to pay the ten dollars; ” that the witness then said: “ It don’t make any difference whether he did or not, they can’t afford to pay usury, and they won’t submit to it. You must straighten it lip;” that the testator then said: “ Then I won’t have any more to do about it; go and see George.”

It does not necessarily appear that the testator was present when the money was handed to Sackett by the attorney, George F. Ditmars, but the inference that he was present is permitted by the evidence before referred to, that W. Gilmore Sackett met him in the office of the attorney on that day, and saw something take place between them. The evidence of the witness offered to prove what did take place there between the testator and George F. Ditmars was excluded as within the inhibition of section 829 of the Code of Civil Procedure. The facts which the evidence tended to prove were substantially that pursuant to an understanding that the testator should loan to W. Gilmore Sackett $150 upon such security, the note and mortgage were received by him and the loan made through his attorney, who advanced only $140, and when the attention of the testator was afterwards called to the fact lie said the borrower “ agreed to pay the ten dollars.” Tiiis ■not only tends to prove that he was cognizant that ten dollars of the amount of the note was withheld from Sackett, but the inference is permitted that the plaintiffs’ testator was a party to an agreement with the borrower that ten dollars in excess of the legal rate of interest should be, as it was, reserved and taken for the loan.

The view taken of the evidence is such that it presented for the consideration of the jury the question of fact whether or not the loan was made by the plaintiffs’ testator pursuant to a corrupt agreement in violation of the statute relating to usury. (Catlin v. Gunter, 11 N. Y. 368.)

It is true, as urged by the learned counsel for the plaintiffs, that the taking of a bonus by the agent or attorney of a lender, without the knowledge or acquiescence of the latter, does not charge him, and that the burden of proof of such fact is with the party charging usury. (Condit v. Baldwin, 21 N. Y. 219; Philips v. Mackellar, 92 id. 34.) And it is also true that it is essential to the support of the defense of usury that the principal is chargeable with such knowledge or acquiescence as of the time when the loan is made. (Stillman v. Northrup, 109 N. Y. 473; Baldwin v. Doying, 114 id. 452.) It could, with much force, have been urged on the part of the plaintiffs, that the proof would have been insufficient to warrant that imputation against the plaintiffs’ testator in the absence of the evidence of the subsequent interview with him at which he stated in reference to tiro loan that the borrower agreed to pay the ten dollars. The only reasonable import of this statement is that such agreement was made before the loan was perfected. The statement as testified to by the witness does not purport to have been founded on information or otherwise than upon personal knowledge of the plaintiffs’ testator.

"When this case was here on a former review, the new trial -was granted for reasons not prejudicial to the defendants upon this review. (Ditmars v. Sackett, 81 Hun, 317.)

The view taken renders it unnecessary for the purpose of the result to consider the questions arising upon exceptions to the exclusion of evidence offered by the defendants. Those rulings were mainly to the effect that the witness, being one of the defendants, was incompetent by force of section 829 of the Code to testify to the facts sought to be proved by him.

It is now quite well settled that the personal transaction or communication between a witness having an interest in the result and a decedent, to which the inhibition applies, includes a transaction or communication of the decedent with another in the presence of the witness on the subject to which his interest relates, although the latter takes no actual part in it. (Matter of Bernsee, 141 N. Y. 389.)

The question whether any of the evidence offered and excluded on that ground was admissible is not considered.

The motion for a new trial should be granted, costs to abide the event.

Lewis and Ward, JL, concurred.

Motion for a new trial granted, costs to abide the event.


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    George Lowenthal, Respondent, v. Maria Elizabeth Lowenthal, Appellant.

      Divorce —framing issues — the court may disregard a finding made under an erroneous direction by the court — a decision should be made.

    Where an absolute divorce is sought upon the ground of adultery, and issue is taken as to the fact of adultery, the defendant has a right to have a trial by jury of an issue framed comprehending that charge.
    Where that issue has been duly tried by a jury the subsequent proceedings in the case are the same as where issues are framed for a jury trial, in actions where neither party can require such a trial as a matter of right, except that the court has no right (unless the verdict be set aside or a new trial be granted) to disregard the finding of the jury upon the issue of the alleged adultery.
    Where the jury, through a misapprehension by the court, was directed to find that the plaintiff had consented to the acts of adultery, although there was no proof in the case justifying such a finding, the court may disregard the finding and find the fact according to the truth of the matter.
    The court should make a decision, stating concisely the grounds upon which the issues have been decided, and direct a judgment thereon. This decision should be filed, and the defeated party is at liberty to file exceptions tp it.
    Appeal Dy the defendant, Maria Elizabeth Lowenthal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 26th day of June, 1895, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 13th day of May, 1895, which, among other things, grantéd* plaintiff’s motion to set aside the jury’s answer to the thirteenth question submitted to it, and also from an order bearing date the 31st day of June, 1895, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon a case containing exceptions.

      Quincy Van Voorhis, for the appellant.

      Dmid Hays, for the respondent.
   Bradley, J.:

The action is brought to obtain a divorce. ■ 'Of the fourteen questions framed for trial by the jury the first one only was submitted to them. That one related to the charge of adultery, and the jury found against the defendant on that issue. The court directed the jury to answer by their verdict the other of the questions in the negative. The jury did so. Thereafter it was discovered that the court, by misapprehending the form of the question numbered 13, directed the answer to it in effect contrary to that intended. The thirteenth was the inquiry on the subject of the consent of the plaintiff to any of the alleged acts of adultery. Hpon the plaintiff’s motion the answer of the jury thus directed and given to that interrogatory was set side, and judgment by order was directed for the plaintiff. The defendant’s motion for a (new trial, made on a case and exceptions, was denied. The right of the defendant was to have the issue taken by the answer to the charge of adultery tried by jury. (Code Civ. Proc. § 1157 ; Conderman v. Conderman, 44 Hun, 181.) It was so tried. The subsequent proceedings in such case are the same as those in which issues are framed for jury trial in a case where neither party can as of right require such a trial, except that the finding of the jury on the issue of adultery is conclusive, unless the 'verdict be set aside or a new trial granted. (Code, § 910.)

The court, therefore, when the action came before it for determition, and after the rendition of the verdict, could reconsider the other matters within the issues, and disregard them for the purposes of the result to be determined by the decision. (Whitney v. Whitney, 16 Hun, 585, and cases there cited.)

There was no support in the evidence for the finding that any act of adultery of the defendant was committed with the consent, connivance, privity or procurement of the plaintiff. And the court was at liberty, in its decision following the verdict, to disregard the answer so made by the jury to that interrogatory, and determine such question to the contrary. (Acker v. Leland, 109 N. Y. 5.) The affirmative and onus of proof were with the defendant upon that issue. (McCarthy v. McCarthy, 143 N. Y. 235.) It follows that there was no error prejudicial to the defendant in setting aside the answer given by the jury to the thirteenth interrogatory.

The question whether the charge of adultery against the defendant was sustained by proof was one of fact for the jury. It was, by the charge of the court, fairly submitted to them, and the verdict, as found in that respect, was warranted and supported by the evidence, to which it is unnecessary here to specifically refer. The place of the occurrence upon which the charge of adultery was made was in what was called the Hooker road, which led to land adjacent to the river., A witness was asked by the plaintiff’s counsel whether that place adjacent to the river had a reputation as a rendezvous of persons for immoral purposes. The defendant’s objection was overruled and exception taken, and the witness answered in the affirmative.

While the evidence may not have been competent or relevant, it is not seen that the defendant could have been prejudiced by it. It does not appear that she and her companion went to that place adjacent to the river on the occasion referred to, or that they were there at any time, and, therefore, the character of that place could have had no pertinence, nor did it merit consideration by the jury as bearing upon the question submitted to them. It seems quite clear that such evidence must necessarily have been entirely harmless. The court was requested by the defendant’s counsel to charge the jury that “ a divorce should not be granted without evidence which is, after careful scrutiny, satisfactory, and can command the confidence of a careful and prudent and cautious judge or jury.” This was well enough, and such instruction may properly have been given to the jury. But the charge made in answer to the request was to the effect that the question for them was whether the plaintiff’s case had been proved by a fair preponderance of evidence, thus instructing the jury that the support of the charge against the defendant was dependent upon such preponderance of evidence, was all that the court was legitimately required to charge on the subject of the request. No error, therefore, can be predicated upon the exception to the refusal or failure of the court to charge as requested.

The final completion of the trial in such a case as this should be represented by a decision of the court. And the decision may state concisely the grounds upon which the issues have been decided and' direct judgment thereon. (Code Civ. Proc. § 1022.) -

In the present case an order was made by the court directing judgment in favor of the plaintiff for the relief demanded in the complaint. The decision provided for by the statute last cited is to be made and filed, and the defeated party is at liberty to file exceptions to it. The order referred to is not the decision contemplated by the statute. The plaintiff’s attorney may deem it necessary to obtain from the trial court a decision and file it with a view to completely perfecting the judgment. And whether the defendant may or not thereupon file exceptions and take another appeal from the judgment, it is not now necessary here to inquire. Instead of making a motion on the ground of alleged irregularity in that respect the defendant has appealed from the judgment as well as from the order denying the motion for a new trial and the order granting the plaintiff’s motion to set aside the answer of the jury to the thirteenth interrogatory, and we have considered the case on the merits and reached the conclusion that there was no error at the trial to the prejudice of the defendant and that the judgment and orders should be affirmed.

Lewis and Adams, JJ., concurred; Ward, J., not voting.

Judgment and orders affirmed.


text:
    Mary Beier, Appellant, v. Nellie M. Spaulding, Respondent.

      Executory contract for the sale of land — assignment by the vendee of an interest therein — failure of title in the vend/»' — right of the assignee against the vendee — tender back of the instrument of assignment.

    While in an executory contract to sell land there is an implied warranty of title in the vendor, yet the fact that he has not such title, when he contracted, will not constitute a breach of warranty if, in fact, the vendor is ready and able to perform at the time stipulated for conveyance, nor is a total failure of consideration necessarily the consequence of a want of title in the vendor at the time when he contracted.
    In an action brought to recover the sum of $500 paid for the transfer of a one-third interest in a contract for the purchase and sale of land, it appeared that by the contract, made December 24,1892, -Leonard Fierle and Victoria, his wife, agreed to sell to the defendant certain premises for the sum of §3,500, of which the defendant paid §500 at once, agreed to pay §1,000 in six months, and was then to receive a conveyance by warranty deed and to give back a purchase-money mortgage for the balance of the purchase price; that the vendor agreed to furnish, within ten days after the date of the contract, tax and title searches showing a marketable title.
    On December 30, 1892, the plaintiff bought for §500 a one-third interest in the contract, and subsequently the defendant brought an action against the vendors* alleging their failure to perform, and recovered judgment for the $500 paid to the vendors ; the court found in that action that the vendors had failed to furnish the stipulated searches; that they had no title to the premises when they executed the contract, and that they had no title thereto between the time when the contract was executed and August 1, 1893.
    The complaint in the present action alleged in substance that the defendant’s agent represented to the plaintiff, before her payment of the $500 for the one-third interest, that the title of the vendors was clear and perfect; that the money would be entirely safe, and that if any trouble arose concerning the title the defendant would return the $500; and it was further alleged that the plaintiff relied on and was induced by such representations to pay the $500 for the transfer of the one-third interest.
    Upon the trial of the action the plaintiff offered to prove the substance of the interview between her and the agent of the defendant, but the evidence was excluded.

      Held, that the evidence should have been received;
    That although the complaint did not specifically allege a mutual mistake as to the state of the title, yet, under its allegations, the plaintiff was entitled to prove the representations of the defendant’s agent, as tending to show that both the plaintiff and the defendant were mistaken as to the ability of the vendors to perform;
    That it was not necessary as a condition precedent to maintaining the action that the plaintiff should have offered to return to the defendant the.instrument under which a one-third interest in the contract was assigned to the plaintiff, as the plaintiff knew of and acquiesced in the action which was brought by the present defendant against the vendors, and that action proceeded upon the assumption that the present defendant owned the entire interest in the contract as vendee, and as the judgment recovered was for the entire amount paid upon the contract, and she was consequently estopped by that judgment from asserting as ' against the vendors any claim founded on the assignment by the present defendant of any interest in that contract to the present plaintiff, and the assignment, therefore, could be of no value to the plaintiff.
    Appeal by the plaintiff, Mary Beier, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 18th day of June, 1895, upon the verdict of a jury rendered' by direction of the court after a trial at the Erie Circuit, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 27th day of May, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.
    By a contract of date December 24, 1892, Leonard Fierle and Victoria, his wife, agreed to sell to the defendant certain premises situate in the town of Hamburg, Erie county, for the sum of $3,500, of which the defendant agreed to and did then pay $500, and agreed to pay $1,000 in -six months, and the vendors agreed thereupon to convey to her by warranty deed and take her bond and a mortgage on the premises to secure the payment of the residue of the purchase money. And they also agreed to furnish full tax and title searches, showing a marketable title' within ten days'-after the date of the contract.
    On December 30,1892, the defendant assigned to the plaintiff an undivided third part of an interest in that contract in consideration of $500 then paid to her by the plaintiff. Afterwards the defendant brought an action against the Fierles for an alleged failure on their part to perform the contract, and to recover damages sustained by her in consequence of their default. The issues in that action were tried and a decision and judgment followed. By the decision the court found that the defendants therein failed to furnish the searches as they had agreed; that at the time of the execution of the contract they had no title to the property described in it, and, that they had no title thereto between the time of the execution of the contract and August 1,1893. Judgment was directed in that action for $536.06 and costs. By this action, in which a verdict was directed for the defendant, the plaintiff seeks to recover the sum of $500 paid for the transfer of the one-third interest in the said contract.

      Oarleton H. White, for the appellant.

      Thomas A. Sullivcm, for the respondent.
   Bradley, J.:

It is urged on the part of the plaintiff that she is entitled to the return of the sum paid by her for the transfer ■ of a one-third interest in the contract for the reason that there was a total failure of consideration. For the support of that charge the plaintiff relies upon the record of a judgment in the defendant’s action against the Fierles by which it appears that the court found that they had no title to the premises described . in the contract at the time it was made nor between that time and the 1st day of August, 1893.

This situation constituted a breach of the contract available to the vendee to obtain the relief sought and obtained by her action. But those findings of fact did not necessarily require the conclusion for which the plaintiff’s counsel contends. While in an executory contract to sell land there is an implied warranty of title in the vendor, yet the fact that he had not such title when he contracted will not constitute a breach of warranty if he is ready and able to perform at the time stipulated for the conveyance. Nor is a total failure of consideration necessarily the consequence of want of title in the vendor at that particular time, although time may be of the essence of the contract, and the vendee may have his remedy, founded upon the breach, to rescind the contract and recover back the money paid upon it. (Burwell v. Jackson, 9 N. Y. 535; Spaulding v. Fierle, 86 Hun, 17.)

There was no partial failure of consideration founded upon warranty in the transfer made by the defendant to the plaintiff. None was expressed in the instrument, and by it no warranty of title to the premises in the vendors was implied. (Thomas v. Bartow, 48 N. Y. 193.)

The plaintiff in her complaint alleged in substance that Willis M. Spaulding, the agent of the defendant and acting as such in the transaction, stated and represented to the plaintiff before the payment of the $500 by her for the assignment that the title of the premises in the Eierles was clear and perfect; that the $500 to be paid by the plaintiff would be entirely safe, and that if any trouble arose concerning the title the defendant would return the money to her. And the plaintiff further alleged that she relied upon and was induced by such representations to pay that sum for the transfer so made by the defendant.

It cannot be assumed that if the plaintiff had been advised when she took the transfer from the defendant that the Eierles then had no title to the premises described in the contract, she would have taken the transfer. And it is quite reasonable to suppose that both parties to such assignment then believed that those vendors had the title. Although it is not specifically alleged in the complaint that the assignment was made and taken by mutual mistake of the parties in that respect, the question whether the assignment was made and taken by mutual mistake as to that fact was properly the subject for proof and consideration within the purview of the matters alleged by the plaintiff. She offered to prove what took place between her and the defendant’s agent who transacted the business in behalf of the defendant. And the offer and ruling excluding it were made in such manner and form as to relate to any matter within the scope of the allegations of the complaint and legitimately bearing upon any question available to the plaintiff in support of the action.

There is no fraud on the part of the defendant alleged or claimed. It must be assumed that the defendant through her agent acted in good faith in making the representations in respect to the title to the preriiises and believed them to be true as did also the plaintiff. All these facts or any portion of them may be deemed.to have been included in the evidence offered and excluded. And as the evidence would tend to prove that the money was paid by the plaintiff and the assignment taken by her from the defendant upon their mutual mistake in respect to the title and, therefore, as to the then ability of the vendors to perform the contract, the exception to the exclusion of the evidence was well taken unless some other reason rendered it futile.

It is now urged on the part of the defendant that the plaintiff was in no situation to obtain a rescission .of the contract of transfer and a return of the money paid by her for it, on the ground of nmtual mistake, because she had not, before the commencement of the action, tendered to the defendant the instrument by which the assignment in question was made. There is force in this proposition if the assignment had any value to the defendant. (Voorhees v. Earl, 2 Hill, 288; Baker v. Robbins, 2 Den. 136; Wheaton v. Baker, 14 Barb. 594.) Otherwise the tender before suit was not essential to its support. (Nellis v. Bradley, 1 Sandf. 560; Nichols v. Pinner, 18 N. Y. 295, 312; Nichols v. Michael, 23 id. 264; Stone v. Frost, 6 Lans. 440; 61 N. Y. 614.)

The only value the assignment apparently had after the recovery of the judgment by the defendant against the vendors was in the right it gave the plaintiff to proceed against them. But no such right in fact existed. The defendant’s action proceeded and the result was had on the assumption that she owned the entire interest in the contract as vendee, and by the judgment she recovered the entire amount which had been paid upon it with interest. That suit was prosecuted with the knowledge, acquiescence and full consent of the plaintiff in this action. These facts are substantially alleged by the parties in their pleadings in the present action. And the defendant charges that, as the consequence, the plaintiff is concluded by it and entitled to one-third of the avails of the recovery, which the defendant avers she is ready to transfer to her. The plaintiff, therefore, is, by the judgment, concluded, as against the Fierles, from asserting any claim against them founded on the assignment by the defendant of such interest in the contract to her, and consequently the instrument of assignment had no value to require the tender of it before suit. It is not seen that the fact that the defendant, for the purpose of her action against the vendors, appropriated the entire interest in the contract with the consent of the plaintiff, has the effect to deny to the plaintiff any remedy, as against the defendant, arising out of the transaction of the assignment made to her.

The view taken, that the exclusion of the evidence offered by the plaintiff was error, leads to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the event.

Lewis, Ward and Adams, JJ., concured.

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


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    Harriet M. S. Hutchinson, Respondent, v. The City of Rochester and Samuel B. Williams, as Treasurer of the City of Rochester, Appellants.

      Municipal corporation — a tax upon one piece of property and an assessment upon another against the same person in the same tax roll are independent — one may bepaid and not the other — what is “a claim" against the city of ^Rochester.

    In an action brought to compel the defendant to accept the amount of a tax upon land belonging to the plaintiff and for a determination that the amount of an assessment made upon other property of the plaintiff and inserted in the same general city tax roll should not be deemed a charge upon the lot upon which the tax was levied, it appeared that in 1891, a parcel of land owned by the plaintiff and known as Warwick avenue was assessed for improvements; that in 1898 the plaintiff was assessed for city taxes upon another lot, described as ' No. 12; that the assessment upon Warwick avenue, not having heen paid, was placed upon the tax roll in a column distinct from the column in which the tax on lot No. 12 appeared; that the plaintiff tendered the city treasurer the amount of the tax, and that he declined to receive it unless she also paid the assessment.

      Held, that the plaintiff had a right to pay the tax on lot No. 12, and that the city treasurer had no authority to make its reception conditional upon her payment of the assessment;
    That if the city desired to recover the assessment it should, under the provisions of the city charter, sell the property known as Warwick avenue.
    That the matters set up in the answer, that the assessment was properly set up in the tax roll and that thereupon the plaintiff became personally liable to pay it, were not available as a counterclaim;
    That the plaintiff was not alleging a claim against the city, but merely the right to pay a tax, and that, therefore, the provisions of the city charter, which required that a claim, debt or demand must have been presented to the common council for audit forty days before an action could be brought against the city to recover or enforce it, had no application.
    Appeal by the defendants, The City of Rochester and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 26th day of February, 1895, upon the decision of the court rendered after a trial at the Monroe Equity Term.

      Eugene J. Dwyer, for the appellants.

      John E. Hopkins, for the respondent.
   Bradley, J.:

In 1891 a certain parcel of land known as Warwick avenue, then owned by the plaintiff, was assessed $1Y4.Y9 for improvement on Chili avenue in the city of Rochester. In 1893 the plaintiff was assessed for a general city tax $138.94 upon her other premises described in the complaint and known as lot No. 12 in the city. And the assessment of 1891, made as before mentioned on Warwick avenue, not having been paid, was inserted in the general city tax roll of 1893 in a column distinct from that in which the tax on lot No. 12 appeared. For some reason which does not appear in the record here the plaintiff claims that she is not chargeable with that assessment, and she alleges that the city seeks to treat it as a charge upon her lot No. 12, and threatens to sell that lot for that assessment inserted in such roll as well as for such other tax. The plaintiff having tendered the amount of the latter tax to the city treasurer, and, on his refusal to accept it, having paid the money into court, brings this action to require the city treasurer to receive the money so paid into court in payment of the tax to pay which it was tendered, and for the determination by the court that the amount of the assessment so made upon Warwick avenue and inserted in the general city tax roll is not a charge upon her lot No. 12. This relief was given by the judgment.

It is not seriously contended by the defendants’ counsel that' the amount of such assessment of Warwick avenue became a lien upon the lot No. 12, but it is insisted that it was properly inserted in the general city tax roll; that thereupon the plaintiff became personally liable to pay it, and that the treasurer'was not required to accept the payment of the other tax without the payment of that also.

The city charter provides that when a warrant shall have been issued for the collection of an assessment and returned unsatisfied, the assessors, in preparing the next roll for general city taxes, shall insert therein against the property on which it was assessed the amount of such unpaid assessment; that “ such amount shall be in a separate column from the general city tax to be levied for the ensuing year.” (Laws of 1880, chap. 14, § 209.)

It also provides that the assessment made in the manner prescribed shall create a personal obligation or liability of the owner of the land assessed to pay the city the amount of it, and that for its collection an action may be maintained by-the city. (Id. § 206.)

The amount of the assessment was on the roll in a column distinct from the tax, and no good reason appears for denial to the plaintiff of the right to pay either without including the other in the amount paid. It may be assumed that both could be united in an action for recovery against the plaintiff personally, yet the assessment was not a charge on any other than the land embraced within it. The charter provides that in the event there mentioned the city treasurer may cause to be sold real estate charged with any tax or assessment. (Laws of 1880, chap. 14, § 94.)

The purpose of the plaintiff in tendering payment of the tax was to relieve her lot No. 12 from the charge of it. This could not in any legal sense prejudice the city. It had the same right if the assessment was valid to charge the plaintiff personally for it, or, so far as appears, proceed to sell the land assessed by it. The assessment and tax are not analogous to different items of a single debt, nor is there any support for the condition which renders relief from one by its payment dependent upon the payment of both of them. The tender was sufficient in amount and effectual, to entitle the plaintiff to relief from the tax.

The matter set up in the answer is not available as a counterclaim in the action. (Code Civ. Proc. § 501; Equitable L. Ins. Society v. Cuyler, 75 N. Y. 511.)

It is urged on the part of the defendant that the purpose of the action comes within the provision of the city charter which requires that a claim, debt or demand shall have been presented to the common council for audit forty days before an action against the city to recover or enforce it is permitted. (Laws of 1890, chap. 561, § 18.) The subject of this action is not a claim against the city in the ordinary sense of the term, nor is there anything for the common council to audit. The plaintiff alleges no claim against the city. She merely asserts the right to pay its treasurer the amount of a tax without including in the payment an assessment, and seeks to have defendants required to recognize such alleged right and receive for such purpose the money tendered to pay it. This constitutes no claim against the city in the common acceptation of that term. And, therefore, this action does not come within the fair meaning or import of the provision last mentioned of the city charter. Nor are the cases cited by counsel applicable to the purpose of the action.

The judgment should be affirmed.

Lewis, Ward and Adams, JJ., concurred.

Judgment affirmed, with costs.


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    William W. Armstrong, as Receiver, etc., of George S. Riley, Respondent, v. Hector McLean, Appellant, Impleaded with George S. Riley.
    Bquity— application of payments — several claims held hy a creditor specially secured as to one of them — rights of other creditors as to the application of a general collateral held hy him.

    "Where a creditor, who holds certain securities specially pledged to secure a particular indebtedness, forecloses certain mortgages given to secure generally all the indebtedness of the same debtor to Such creditor, a receiver, appointed in proceedings supplementary to executions, issued upon judgments in favor of other creditors against such debtor, may maintain an action to compel the creditor thus specially secured to apply the proceeds of the mortgage foreclosure sales pro rata upon all the indebtedness of the debtor to such creditor, including the particular indebtedness which is specially secured.
    Where, however, the mortgage foreclosure results in a deficiency judgment the mortgagee is to the extent of such deficiency still a creditor of his debtor, and is entitled as such to share pro rata with other creditors in the excess that remains of the securities specially pledged after the payment of the particular indebtedness secured thereby.
    Appeal by tlie defendant, Hector McLean, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of May, 1895, upon the decision of the court rendered after a trial at the Monroe Equity Term.

      Cassius C. Davy, for the appellant.

      J. K Durand, for the respondent.
   Bradley, J.:

In proceedings supplementary to executions issued on several judgments amounting to upwards of $5,000, against George Riley, the plaintiff was appointed receiver of his property. The purpose of this action was to require the defendant to turn over to the plaintiff certain land contracts and a bond and mortgage assigned by Riley to the defendant to secure the payment of a certain indebtedness of Riley to the defendant of $3,636.41, or the proceeds of such securities in excess of the amount remaining unpaid of such indebtedness. The nominal value of those securities was $8,300. The trial court found that the amount of that particular indebtedness had been reduced to $2,012.02, by the application which had been made thereon by operation of law of certain of the proceeds of a judicial sale of real property on foreclosure of mortgages given by Riley to secure all his indebtedness to the defendant, amounting to upwards of $40,000.

The foreclosure, by action, of those mortgages of Riley to the defendant, resulted in net proceeds of $19,411.36, and in a deficiency of $21,520.20, for which judgment was perfected in favor of the defendant against Riley. Those proceeds of the sale in that foreclosure action constituted 47.42 per cent of the total amount of the indebtedness of Riley to McLean, as found by the court, and the application therefrom of that percentage on the amount of that particular debt mentioned, of $3,636.41, with interest upon it, would reduce the debt to $2,012.02; and as the defendant liad received from some of those securities an amount in excess of. the last-mentioned sum, judgment was directed that the defendant pay to the plaintiff such excess, and hand over to him the residue of the securities so taken by the defendant for the payment of such debt.

Treating the mortgages foreclosed by the defendant’s action as security for the payment of all the indebtedness of Riley to him, the other creditors of Riley could insist that the net proceeds of the sale should be appliedyw rata on the several debts, the payment of which the mortgages were intended to secure. This, upon recognized equitable principles, is the general rule applicable to such cases, although it has no application to voluntary payments. And since such proposition must be deemed settled by judicial authority in this State, the reasons upon which it is founded need no special consideration on this review. (Bridenbecker v. Lowell, 32 Barb. 9; Orleans County National Bank v. Moore, 112 N. Y. 543.)

It is, therefore, assumed that the debt of $3,636.41 was, by the legal application upon it of sufficient of the proceeds of the mortgage foreclosure sale reduced to $2,012.20. But it does not follow that the plaintiff was entitled to the entire excess of that sum in the amount of the securities and the proceeds which the defendant had taken on account of that debt. It has been observed that the defendant had a judgment of upwards of $20,000 for deficiency against Riley. He was a judgment creditor of Riley to that extent. No reason appears why he as such judgment creditor should not beneficially share with the creditors represented by the plaintiff in the amount of such excess: His relation of judgment creditor places him in the same relation to it as that which they have through the receiver, and his equities are equal to theirs for aught that appears by the record here. It would seem to follow that, on the principle before referred to, such excess should be applied pro rata on the judgments upon which the plaintiff’s claim is founded, and that which the defendant recovered against Riley as to the amount of it remaining unpaid. ■

There is some evidence tending to prove that the defendant’s judgment may have been reduced about $10,000 by the application of the surplus resulting from the foreclosure of a prior mortgage upon some of the property covered by one of the mortgages which was foreclosed in his action. Whatever the fact is in that respect may be made to appear on another trial.

The view taken is that upon the evidence, undisputed, the plaintiff was not entitled to take from the defendant the entire amount of the securities first above mentioned in excess of that remaining unpaid upon the debt they were taken by the defendant to secure, but that, because the defendant was also a judgment creditor of Riley, he having them, was entitled to share pro rata with the plaintiff in the amount of such excess.

The judgment should, therefore, be reversed and a new trial granted, costs of this appeal to abide the final award of costs.

Lewis and Ward, JJ., concurred.

Judgment reversed and a new trial granted, costs to abide the final award of costs.


text:
    Miranda Miller, Plaintiff, v. Thomas J. Reynolds, Defendant.

      Corporations — implied warranty where a person makes a note in the na/me of a corporation — when the right of action upon such warranty passes to another — where a case is submitted as containing only questions of law the court may decide the facts.

    Where a person makes a promissory note in the name of a corporation he impliedly warrants that he has authority to do so, and, if he does not have such authority, he is liable upon the implied warranty for the damages which have resulted from the breach.
    This liability, however, does not accompany the transfer of the note unless the claim arising out of the implied warranty is also assigned to the transferee of the note.
    Where a woman demands that such a note, representing part of the purchase price of premises proposed to be purchased of her-husband by the maker of the note, be made payable to her as a consideration for the release pf her inchoate right of dower in the premises, the husband may be considered as having acted as her agent as well as for himself in the transaction, and the lia- ' bility upon the implied warranty will in this view inure to her benefit and be available to her.
    A person employed by a refrigerator company, as its general manager, with directions to pay himself a reasonable salary, not exceeding 8100 per month, and to pay and discharge all indebtedness of the company due to him or upon which he was in any manner liable as surety, does not by such an arrangement, acquire any authority to give a note in the name of the corporation upon a purchase by himself of property which is in no manner related to the business of the corporation.
    The fact that, at the time when he made the note, the corporation was indebted to him in a greater sum than the face of the note, and that he gave the corporation credit upon its debt to him to the extent of the note, does not alter the rule in a case where the corporation did not assent to this application of the note at the time of the transaction, and subsequently repudiated the note.
    Where a case is tried, as presenting questions of law only, the plaintiff moving-for the direction of a verdict and the defendant for a nonsuit, and a verdict is directed by the court, the questions of fact in such case must be deemed to have been submitted to the court and to have been decided by it adversely to-the defeated party.
    Motion by the defendant, Thomas J. Reynolds, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Circuit.

      Eugene Van VoorMs, for the plaintiff.

      E. A. Nash, for the defendant. :_
   Bradley, J.:

In February, 1891, Ransom H. Miller and the plaintiff, his wife,, joined in a conveyance to the defendant of certain real estate at the price of $22,000, and as part of the consideration the defendant executed and delivered a promissory note for $6,000, payable to the plaintiff on July 15, 1891, and signed to it the name of “ Trotter Refrigerator Company, by T. J. Reynolds, Prest.” This action is founded on the charge that the defendant had no power or authority to make the note in the name of or for that company, and to recover as the consequences the damages sustained by the plaintiff. When he made the note there was an implied warranty on the part of the defendant that he had authority to do it for and in the name of the company, and, if he was without authority to do so, he became liable upon such warranty for the damages resulting from the breach. (Baltzen v. Nicolay, 53 N. Y. 467; Taylor v. Nostrand, 134 id. 108.)

Such liability, however, does not accompany the transfer of a note so made, unless the claim founded upon the warranty is also assigned to the person to whom the note is transferred. Battle v. Coit, 26 N. Y. 404.) As the title to the land conveyed to the defendant was in Ransom H. Miller up to the time of such conveyance, it is urged that the plaintiff has no right of action upon such implied warranty of the defendant. This objection to her right of action might be effectual if she could have asserted no interest in the land conveyed. But it seems that she declined to join in the conveyance and thus relinquish her inchoate right of dower in the premises, without receiving the consideration expressed in the note, and that it was taken payable to her as the consideration of her execution of the deed of conveyance to the defendant. In making the sale and the conveyance, in which she joined, the husband maybe deemed to have acted in behalf of the plaintiff as well as for himself. And, therefore, any liability incurred by the defendant upon such warranty may be deemed to have inured to the benefit of the plaintiff and to have become available to her.

It is insisted on tlie part of the defendant that he had authority to make the note in the name of the company. This contention is founded upon the fact that he was the president, and had been constituted the manager of the company, and to that end a contract had been made between him and the refrigerator company whereby he was given substantially the entire charge of its business up to January, 1892, with directions to pay from its proceeds a reasonable compensation to himself, not exceeding $100 per month, and to pay nnd discharge all the indebtedness of the company due to him or upon which he was in any manner liable as its surety. At the time of making the note the indebtedness of the company to the defendant exceeded the amount of such note, and he gave evidence tending to prove that he credited the company with the amount of the note. The purchase of the real property of Miller by the defendant had no relation to the business of the company, and the fact that he gave it credit for the amount of the note did not charge it with liability upon the note without the adoption of such liability by the company. This it did not do, but by the receiver of its property, afterwards appointed, the note was repudiated. It seems quite clear that the defendant derived from the contract before mentioned between him and the company no authority to make the note in question.

The defendant also claims that the note was paid by the transfer made by him to Ransom LI. Miller of the property of the company, in part consideration of which Miller agreed to surrender up the note. Barring all right of the plaintiff to withhold the note, it is not seen that the evidence requires the conclusion that Miller made uny effectual promise to surrender the note in consideration of such .sale or transfer to him. Negotiations with that view were had between them,’ and a written bill of sale was made by the defendant in the name of the company to Miller of the property of the company at the price of $16,154.33, the amount due from the company to the ■defendant. After deducting from this the amount of the $6,000 note and interest, there was left a balance of $10,046.33, for which Miller gave the defendant his notes*. •

In the view taken of the case it is not necessary to determine whether or not the defendant had, under his contract with the company, the right to make the sale which he undertook to make to Miller.

The evidence of the latter is to. the effect that the sale and purchase were not to be perfected unless the consent to it was given by certain stockholders of the company, and that they refused to consent to it and advised Miller that the defendant liad no right to make it, and that thereupon Miller declined to complete the purchase, refused to deliver the $6,000 note to the defendant, tendered back to him the bill of sale and demanded-the surrender of the notes he had made to the defendant.

Whilo there was a conflict in the evidence upon the subject, there was that which permitted the conclusion that the sale of the property of the company as between the defendant and Miller was not perfected by reason of the failure of the condition before mentioned, upon which Miller had agreed to complete the purchase.

The motion for a nonsuit was, therefore, properly denied, and since the case was tried as presenting questions of law only, the counsel for the respective parties having moved for a nonsuit and for the direction of a verdict without ■ requesting the submission of anything to the jury, the question of fact must be deemed to have been submitted to the consideration of the court and to have been disposed of by it, adversely to the defendant, in directing the verdict rendered by the jury. (Winchell v. Hicks, 18 N. Y. 558, Dillon v. Cockcroft, 90 id. 649.)

The amount of damages recovered was warranted by the evidence. And there was no error, to theqirejudice of the defendant, in any of the rulings at the trial to which exceptions were taken.

The motion for a new trial should be denied and judgment directed for the plaintiff on the verdict.

Lewis and Ward, JJ., concurred.

Motion for a new trial denied and judgment directed for the plaintiff on the verdict.


author: Bradley, J. •

text:
    Zeicha Sweet, Respondent, v. The City of Buffalo, Appellant.

      Municipal corporations — Buffalo—presentation of a claim — objection that a claim was not properly made and verified — how waived — Laws of 1891, chap. 105, §§ 15, 16.
    Under the provisions of the charter of the city of Buffalo the filing of a claim against the city with the city clerk is a presentation of the claim to the common council.
    Where a claim against the city of Buffalo is not made out and verified as required by its charter, the board of aldermen may, within thirty days after such claim is presented, refuse upon that ground to audit it, but unless the objection is taken by the board of aldermen within thirty days it is not available thereafter for any purpose whatever.
    A claim against the city of Buffalo for damages because of personal injuries, was presented in the form of a petition containing all the requisite facts, the verification of which was to the effect that “the said petition is true, and the whole of it.”

      Semble, that such verification was not a sufficient compliance with the provisions of section 15 of the charter of such city, requiring that claims of such nature “ shall be accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made and no set-off exists.”
    Appeal by the defendant, The City of Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 4th day of April, 1895, upon the verdict of a jury rendered after a trial at-the Erie Circuit, and also from an order entered in said clerk’s office on the 5th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Charles L. Feldmcm, for the appellant.

      L. L. Lewis, Jr., for the respondent.
   Bradley, J. •

The purpose of the action was to recover damages for personal injuries suffered by the plaintiff and alleged to have been occasioned by the negligence of the defendant. The evidence was sufficient to permit the court to submit the questions of the negligence of the defendant and of the contributoi-y negligence of the plaintiff to the jury and to support the verdict.

The further question arises upon the provisions of the city charter that “ The common council shall audit all claims against the city. Unliquidated claims shall be filed with the city clerk * * * and if for damages for wrong or injury when, where and how occasioned, and shall be accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made and that no setoff; exists except those stated.” (Laws of 1891, chap. 105, § 15.) Also that “No action or proceeding to recover or enforce any claim against the city shall be brought, until the expiration of forty days after the claim shall have been filed with the city clerk for presentation to the common council for audit, in the manner and form aforesaid. * * * If the .claim be not made out and verified, as above required, the board of aldermen may, within thirty days after its presentation, refuse, on that ground, to audit it.” (Id. § 16.)

The claim of the plaintiff was filed with the city clerk on April 18, 1893, and on the twenty-second day of May following the claim was rejected by the board 'of aldermen, on the ground that the affidavit of verification was defective. The claim was presented in the form of a petition, which contained all that was essential for such purpose. The affidavit annexed to it was to the effect “ that the said petition is true and the whole thereof.” This was not a full compliance with the statute. As has been seen, the statute permits the board of aldermen, on that ground, to refuse, within thirty days after the presentation of a claim, to audit it. The filing of the claim with the city clerk was a presentation to the board. (Murphy v. The City of Buffalo, 38 Hun, 49.)

The purpose of the statute, evidently, was to require adverse action of the hoard, founded upon defects in an affidavit of verification, within that time, so that the claimant might not be prejudiced by further delay in making another presentation of his claim, supported by his corrected affidavit.

It would seem that this provision of the statute limits the time within which the board can, for such defect, reject a claim, and as a consequence that, unless the objection is taken by the board within the thirty days, it is not available for any purpose, after the expiration of such time. This is a reasonable interpretation of the purpose of the statute in that respect. And as the claim was not rejected within thirty days after its presentation, the defect in the affidavit is not tenable to defeat the action.

The judgment and order should be affirmed.

Lewis, Ward and Adams, JJ., concurred.

Judgment and order affirmed.


text:
    In the Matter of the Application of The Depew and Southwestern Railroad Company for a Certificate Required by Section 59 of the General Railroad Law.

      Pailroad commissioners— application by two rival roads for a certificate under § 59 of chapter 676 of 1892 — the commissioners act judicially ■ — presumption in favor of their decision — power of the court to review it.

    Two corporations, the Terminal Railway of Buffalo and the Depew, and Southwestern Railroad Company, proposed to the Board of Railroad Commissioners lines of railroad having their termini at the same places, to wit, Depew and Blasdell in the county of Erie. The convenience and necessity of a railroad between these places was not questioned. Both corporations took steps in the-matter at the same time, but the Depew and Southwestern Railroad Company was incorporated two days before the Terminal Railway of Buffalo. The-Board of Railroad Commissioners heard both applications at the same time, granted the application of the Terminal Railway of Buffalo and denied that of the other company. The Depew and Southwestern Railroad Company brought the matter to the General Term upon an application for an order directing the-Board of Railroad Commissioners to issue the certificate provided for in section 59 of chapter 676 of the Laws of 1892.

      Meld,, that the fact that the Depew and Southwestern Railroad Company was incorporated first gave it no vested right to priority in a case where both, the applications were heard at the same time by the Board of Railroad Commissioners;
    That the Board, in reaching a conclusion in the matter, must be deemed to have-acted judicially, and that the burden was upon the defeated company to show that the Board had erred in its conclusion;
    That the decision of the Board was entitled to support, so far as it was fairly justified by the facts, to the same extent as that of any other judicial tribunal whose judgments were subject to review;
    That the only question before the General Term was that presented by the refusal of the Board to grant a certificate to the Depew and Southwestern Railroad Company, and that the propriety of granting one to the Terminal Railway of Buffalo could not be considered;

      That the court had no power under the statute to - reverse the action of the Board and require it to issue a certificate to the Depew and Southwestern Railroad Company.
    Application hy the Depew and Southwestern Railroad Company to the General Term of the Supreme Court for a certificate provided by section 59 of chapter 676 of the Laws of 1892, upon a certified copy of all maps and papers on file in the office of the Board of Railroad Commissioners of the State of New York in the matter of the application of said railroad company for such certificate, said hoard having, by an order made at the capitol in the city of Albany on the 6th day of August, Í895, denied the application of said railroad company for such certificate.

      Wilson 8. Bissell, for the motion.

      Daniel II. McMillan, opposed.
   Bradley, J.:

The Depew and Southwestern Railroad Company was duly incorporated, and the termini of its proposed line of railroad were Depew and Blasdell, in the county of Erie. The Terminal Railway of Buffalo was also duly incorporated, and the proposed termini were the same. Each company made application to the Board of Railroad Commissioners for a certificate under the statute, which provides that “ no railroad corporation hereafter formed under the laws of this State shall exercise the powers conferred by law upon such corporations or begin the construction of its road * * * until the' Board of Railróad Commissioners shall certify,” amongst other things, that public convenience and necessity require the construction of said railroad as proposed in said articles of association.” (Laws of 1892, chap. 676, § 59.) The two applications were heard together, and the Board of Railroad Commissioners granted the application of the Terminal Railway and issued a certificate to the effect that the public convenience and necessity required the construction of the railroad proposed by the articles of association of that company. The board denied the application of the Depew and Southwestern Railroad Company. The case was brought here pursuant to the statute, which provides that after a refusal to grant such certificate the board shall certify a copy of all maps and.papers on file in its office, and of the findings of the board when so requested by the directors,” who “may thereupon present the same to a General Term of the Supreme Court of the department within which said road is proposed in whole or in part to be constructed, and said General Term shall have power, in its discretion, to order said board, for reasons stated, to issue said certificate, and it shall be issued accordingly.” (Laws of 1892, chap. 676, § 59.)

The convenience and necessity of a railroad from Depew to Blasdell is not questioned, and for the purpose of facilitating the transportation of freight both east and west between New York and Chicago, its importance is apparent. It will shorten the distance between those cities about six miles, and the time required in the transportation of freight about that number of hours, and will obviate the necessity and inconvenience of taking freight cars through the city of Buffalo to interchange with connecting roads. There are five railroads passing through Blasdell to be brought into more immediate or direct connection with four at Depew by the proposed line between those two places. Both companies in their organization complied in all respects with the statute, and did all that was essential preliminary to their respective applications to the board, proceeded in good faith, and had the jrarpose and ability to construct the roads proposed by their articles of association. But the public convenience and necessity required the construction of only one line of railroad having those termini. The question, as treated by the board, was one of preference between them. In this it is insisted on the part of the Depew and Southwestern Railroad Company, that the board misapprehended its powers given by the statute, and in violation of it issued the certificate in behalf of the Terminal Company; that it was within the province of the board to determine whether or not the public convenience and necessity required a railroad having the proposed termini, and that when that was determined in the affirmative the Depew and Southwestern Company was, by reason of the priority of its corporate creation, entitled to the benefit of the certificate which the board was thereupon required to issue. The directors of both companies proceeded concurrently in the process of organization. While the articles of association of the Terminal Company were executed two days prior to those of the Depew and Southwestern Company, the latter was, by the filing of them, incorporated two days earlier than was the other company. The application of each of the companies for a hearing was filed with the board the same day, the publication of the articles of association of both companies occupied the same time, the notices for the hearing were given at and for the same time, and the applications were heard together. It may be that the situation presented in this case was not contemplated by the statute. And in case of competing companies in applications made to the board for a certificate under section 59 of the Railroad Law (Laws of 1892, chap. 616), there maybe some reason in the matter of fairness and propriety for granting the certificate to the one first incorporated, other things being equal as between them. But it is not seen that there is any vested legal right of any one of two or more companies making applications, concurrently heard and considered by the board, to have the benefit of a certificate upon the determination of such board that public convenience and necessity require the construction of the proposed railroad.

Without the aid of some statute to that effect the priority in such case of corporate existence does not necessarily furnish priority of legal right as against a competing application to the board. There is no statute in support of such a proposition applicable to that stage of the corporate action of a railroad company. While the creation of a railroad .corporation is a right to be exercised in the manner provided by the statute, the right'to exercise the power of proceeding to the construction of its proposed railroad is subject to and dependent upon the supervisory consideration of the board and its certificate preliminarily made that “ public convenience and necessity require the construction of said railroad as proposed in said articles of association.” This has reference to the articles of association of some particular company to be mentioned in the certificate. It would not answer the purpose of the statute for the board to certify merely that public convenience and necessity required the construction of a railroad having the termini mentioned. It is to certify that such convenience and necessity require the construction of the road “ as proposed in said articles,” and the certificate is apparently available only to the company having the articles 'thus mentioned in the certificate. And, although the termini described in the articles of both companies were the same, it may be assumed that, as represented by the maps and profiles, there were some distinguishing features in the route or line of the road as proposed by the two companies. Ii> reaching the conclusion essential to the issuing of a certificate the board acts judicially, and when, after refusal to grant it, the matter is brought to the General Term, the action of the court is in the nature of a review of the determination of the board, and the burden is with the moving company to make it affirmatively appear that the board erred in its conclusion and in its refusal of the certificate upon the facts as presented to it.

The reasons given for the action of the board do not necessarily control the disposition to be made of the case on the review, unless the facts required a different conclusion on the hearing. It is not enough to overcome the refusal there that the facts merely permitted the issuing of a certificate, nor unless the determination of the board was contrary to the clear weight of' the evidence. Its judgment is entitled to support so far as it is fairly justified by the facts the same as is that of any other tribunal subjected to review. (People v. Ulster & D. R. R. Co., 58 Hun, 267; Matter of New Hamburgh & Poughk. R. R. Co., 76 id. 76; Matter of Amsterdam, J. & G. R. R. Co., 86 id. 578.) The only power of the General Term to reconsider the action of the board is that given by the statute before referred to, and it can be sought and exercised only when the certificate is refused. In the present case it was denied to the Depew and Southwestern Company, and that refusal is subject to review by this court. The propriety of granting the certificate to the Terminal Company cannot be the subject of consideration in this proceeding. The claim urged in behalf of the moving company, that it was not within the power of the board to deny to it the certificate and to grant one to the other company, presents a question which can only be considered and determined elsewhere than on this statutory review.

The suggestion that in this matter the court may reverse the action of the board in granting the certificate and direct it to issue one to the Depew and Southwestern Railroad Company, or require the board to issue a certificate to the latter company and place the other company in a subordinate relation todt in respect to the right to proceed in the construction of the proposed railroad' is not tenable. No such power is within the contemplation of the statute from which the court derives all its power in a proceeding: of this character. The issuing of the certificate in behalf of the one company was not the refusal of a certificate in behalf of the other, although it furnished to the board a reason for the denial of one to the latter company. The relativé' merits of the two companies on whatever grounds or -for whatever reasons they may be claimed to exist in favor of one and against the other company as respects their applications to the board are not here for consideration. It was in the power of the board'to issue a certificate, and' having granted the certificate in behalf of the Terminal Company to-refuse a like certificate to the other company. With the certificate issued we have nothing to do except so far as it bears upon the question whether public convenience and necessity require the construction of more than one railroad. having the termini before mentioned.

It cannot well be urged that such necessity exists, or that the board was required to issue more than one certificate for that purpose. And since this was done the refusal to grant another certificate to the Depew and Southwestern Railroad Company requires no further consideration.

The application for direction to the Board of Railroad Commissioners to issue a certificate to the applicant should] therefore, be denied.

Lewis, Ward and Adams, JJ., concurred.

Application for direction to the Board of Railroad Commissioners denied.


author: Eradlby, J.:

text:
    Stanislaus Rutzkowski, Appellant, v. William George, Respondent.

      ■Constable — Ms liability for a failure to return an exeeuiion — that it was not collectible is not a defense to Mm — costs on appeal — Code of Civil Procedure, §§ 8089, 8068.
    A constable is absolutely liable to a judgment creditor for a failure to return ail execution within the time fixed by statute for that purpose, for the amount unpaid upon the execution.
    It is not a defense to the constable that the judgment debtor had no property subject to levy upon execution.
    Where the remedy against a constable is severe under the circumstances of a particular case, an appellate court may, in its discretion, refuse to give costs against him upon bis unsuccessful appeal.
    Appeal by the plaintiff, Stanislaus Rutzkowski, from a judgment of the County Court of the county of Chautauqua, entered in the office of the clerk of the county of Chautauqua on the 30th day of July, 1895, upon the decision of the court rendered after a trial before the Chautauqua County Court reversing a judgment rendered by a justice of the peace, with notice of an intention to bring up for review upon such appeal an order dated July 10, 1895, adjudging that a certain judgment for costs recovered by the plaintiff against Oscar Naetzker and Peter Sécula be set off against the amount of costs adjudged to be due from the plaintiff to the defendant by the judgment appealed from, and directing that defendant have execution for the balance.

      Thomas II. Larkins, for the appellant.

      S. P. Fox, for the respondent.
   Eradlby, J.:

The recovery in the Justice’s Court against the defendant was for his default as constable in not returning an execution within the time prescribed by the statute. The view of the County Court was that the defendant should have been permitted to prove' as a defense that the judgment debtor had no property subject to levy other than that seized and sold by the defendant on the execution, and that, therefore, it was error to exclude evidence offered tending to prove such fact. This is the rule applicable to sheriffs. .From an early day the statute has provided that the action against a. sheriff in such case is one for damages sustained by the judgment creditor by reason of the default. (1R. L. [1813] 423, § 10; 2 R. S, 440, § YY; Code Civ. Proc. § 102.) And-the question whether the default was prejudicial to him is open to the sheriff in so far that he is permitted to prove in mitigation of damages that the debtor had no leviable property. (Pardee v. Robertson, 6 Hill, 550; Ledyard v. Jones, 7 N. Y. 550.) But that statute-and the doctrine of those cases are not applicable to constables for default in returning executions issued to them. The Revised Statutes provided that If a. constable neglect to return an execution within five days after the return day thereof, the party in whose favor the same was issued may maintain an action of debt against such constable, and shall recover therein the amount of the execution, with interest from- the time of the rendition of the judgment upon which the same was issued'.”' (2 R. S. 253, § 159.) And that “ a constable shall not levy upon or sell any property * * * upon any execution, after the time limited therein for its return, unless such execution shall have been renewed,” and then not after the time for which it shall have been renewed. (Id. § 161.) The same provisions remain effectual. (Code Civ. Proc. §§ 3039, 3040.) It may be observed that a constable is given five days within which to return an' execution after the time when his power to take any proceeding- thereon has terminated. It is otherwise with a sheriff. He may sell' after the expiration of the return day mentioned in the process any personal property upon which he has previously levied an execution, and no formal act of levy upon real estate is essential for such purpose.

The statute declaring the liability of constables and the extent of it, is very clear in its terms and permits from the consequences of the default no relief by way of defense in the fact that the judgment debtor had no property subject to levy.' The statute makes the amount of the execution the measure of liability. It is penal in its nature. And it should be enforced only in cases coming clearly within its provisions. (Hampton v. Boylan, 10 N. Y. St. Repr. 788.)

There is but very little judicial authority on the subject of this statute. The proposition is merely stated in Sloan v. Case (10 Wend. 370). Prior to 1857 the provisions of section 159 of the Revised Statutes, before referred to, were not applicable to constables in the city of New York. (Brown v. Jones, 3 Abb. Pr. 80; 1 Hilt. 204.) After the act of that year (Chap. 344, § 57) its provisions were so distinguished from those of the Revised Statutes in that respect as to relieve them from the penal character of those of that section. (Curry v. Farley, 8 Daly, 228.) In Knapp v. Sweet (24 N. Y. Supp. 817) the view of the court as there expressed was that the same right is allowable to mitigate damages by a constable, liable in an action for default in returning an execution, as is available to a sheriff as a defense. This would be so if the statute provided for the recovery of damages, but the provision that the party may recover against the constable “ the amount of the execution ” has no qualification in the terms of the statute. In People ex rel. Comstock v. Lucas (93 N. Y. 585) this question was not presented or ■considered.

It is suggested that the justice erred in rendering judgment in ■excess of the amount which the plaintiff was entitled to recover. It is very likely that if the attention of the justice had been specifically called to the fact that the costs of the justice in the judgment upon which the execution was issued had been paid by the defendant, the recovery would, as it should, have been twenty-one dollars and eighty-one cents instead of twenty-three dollars and ninety-seven cents. The amount of the execution, within the meaning of the statute, is that which remains unpaid to the justice or person ■entitled to it at the time when the action founded upon the default is commejiced.

As the judgment was reversed by the County Court on the question hereinbefore mentioned, the matter of the excess had there no consideration. The correction, however, may here be made by deducting the two dollars and sixteen cents from the recovery as of the time of the entry of the justice’s judgment appealed from. (Code Civ. Proc. § 3063; Weed v. Lee, 50 Barb. 354; Fields v. Moul, 15 Abb. Pr. 6.)

The action was originally commenced against George, the constable, and Naetzker and Sécula, his sureties on his official bond. The justice dismissed the complaint as. to those sureties. On an .appeal by the plaintiff the judgment of dismissal was reversed by the County Court, with costs, and that court directed that the costs against them should be set off against the costs there recovered by the defendant against the plaintiff. The plaintiff, in his notice of appeal to this court, expressed his intent to review that order. The reversal of the judgment against the plaintiff necessarily renders such order ineffectual.

The remedy sought against the constable is somewhat severe under the circumstances of the case, and, in view of the modification, the plaintiff, we think, should not have costs of the appeal to this court against him.

The judgment of the County Court "in favor of the defendant George should be reversed, and that of the Justice’s Court against him, reduced two dollars and sixteen cents, and as so reduced should be affirmed, with costs in the County Court and without costs of this appeal, and the order of the County Court directing that the costs recovered by the plaintiff against Naetzker and Sécula be set off against those recovered by the defendant- George against him should be reversed, without further costs.

Lewis, Ward and Adams, JJ., concurred.

Judgment of the County Court reversed and that of the Justice’s Court, reduced two dollars' and sixteen cents, and as so reduced affirmed, with costs in the County Court and without costs in this court, and the order of the County Court .directing that the costs of the plaintiff against Naetzker and Sécula be set off, reversed without further costs.