text:
    ALFRED C. LEWIS and ALVIN R. SMITH, Respondents, v. WILLIAM H. DOUGLASS, as Late Sheriff of Delaware County, Appellant.

      Attachment — neglect of the sheriff, having agreed to do so, to file in the county cleric’s-office a notice-of attachment of real estate.

    In an action to recover damages resulting from the alleged negligence of the defendant, a sheriff, in failing to complete a levy on real estate, under an attachment issued to him in an action brought in the Supreme Court by the plaintiffs-against one Thomas H. Clark, it appeared that on September 8, 1885, the-plaintiffs in the action against Clark obtained an attachment against his property. This attachment was, on the same day, delivered to the defendant for service, and he on the same day, by virtue thereof, levied on certain personal property belonging to Clark, and properly served the papers on him.
    On the evening of September ninth one of the plaintiffs and their attorney met the-defendant for the purpose of having the attachment levied upon the interest of Clark in certain real estate of the value of $600 and over, and a notice in the form required by law was prepared and signed by the sheriff, and by the-plaintiffs’ attorney, which notice, together with copies of the affidavit and undertaking, the warrant, the oath of the appraisers, and the certificate of' appraisal, were left with the defendant to be filed with the county clerk, the office-of the clerk being then closed, the defendant being instructed and agreeing to-file them with the clerk on the following morning. The plaintiff, who resided out of the county, then left. Through neglect on the part of the defendant to file any of the papers until October 19, 1885, Clark was enabled to convey his-interest in the real estate to another person before the plaintiffs could recover-judgment in his action against Clark.
    Upon an appeal from a judgment, rendered in favor of the plaintiffs, it was claimed by the defendant that it was not part of the duty of the sheriff to file the notice;, and that if he had agreed to do so, it would be only an individual matter and would not support an action against him as sheriff.

      Held, that the filing of the notice was within the direct line of the official duty of the sheriff; and that the fact that the attorney must sign the notice did not make it the duty of the attorney to make or complete the levy.
    That, assuming that either had a right to file it, when properly prepared and executed, the sheriff, by undertaking with the attorney to do it, relieved the» attorney from responsibility in the matter, and the attorney, as well as the party, had the right to rely upon the promise of the sheriff.
    'The plaintiffs did not, within ten days after the granting of the attachment, cause the affidavits upon which it was granted to be filed as required by section 689 of the Code of Civil Procedure.

      Held, that this did not affect the validity of the warrant, or the proceedings under it.
    Appeal from a judgment in favor of tbe plaintiff, entered in an action in tbe Supreme Court in Delaware county, on tbe 9th day of October, 1888, upon tbe report of a referee.
    Tbe action was brought to recover damages for tbe negligence of tbe defendant in failing to complete a levy on real estate, under an attachment issued to him in an action brought in the Supreme Court by the plaintiffs against one Thomas H. Clark.
    Tbe defendant, during tbe year 1885, was sheriff of Delaware county. Clark was indebted to tbe plaintiffs in 'the sum of $215? with interest from April 25, 1885, on two promissory notes. On tbe 8th of September, 1885, tbe plaintiffs, by their attorney, issued and delivered to the defendant for service, a summons and complaint against Clark, upon said debt, and these papers were served on Clark, personally, on September 9, 1885. On tbe 8th of September, 1885, tbe plaintiffs obtained from tbe county judge of Otsego county, an attachment against tbe property of Clark, in proper form, directed to tbe sheriff of Delaware county. This, with tbe papers accompanying it, was on tbe same day delivered to tbe defendant for service, and be, on tbe same day, by virtue of the .attachment, duly levied on all tbe personal property of Clark in that county liable to sale on execution, and properly served tbe papers -on Clark. After this, and on tbe evening of September 9, 1885, •one of tbe plaintiffs and their attorney met tbe defendant at Delhi, for tbe purpose of attaching tbe interest of Clark in certain real ■estate in that county, such interest being, as tbe referee found, of the value then of $600 over and above all incumbrances.
    A notice in tbe form required by section 649 of the Code was prepared and signed by tbe sheriff and by tbe plaintiff’s attorney, and an inventory and appraisal was made. This notice, together with copies of the affidavit and undertaking upon which the warrant of attachment was issued, the warrant, the oath of the appraisers and the certificate of appraisal, were left with the defendant to-be filed with the clerk. The office of the clerk was then closed. The defendant was instructed to and then agreed to file the same with the clerk on the following morning, and the plaintiff and his attorney, relying on the defendant to file the papers, left Delhi. They resided out of the county. The defendant, through his forgetfulness, neglected’ to file any of the papers until October 19,. 1885. On the 23d of September, 1885, Clark conveyed his interest, in said real estate to one Bell, who owned a mortgage on said lands, on which was then due and unpaid about $3,400, and this was the consideration of the deed. It is not found that this deed was fraudulent, or that Bell had notice of the attachment. The evidence shows that Bell had other claims against Clark, amounting to about $150. The deed to Bell was recorded September 26, 1885. On the 12th of October, 1885, plaintiffs obtained judgment against. Clark for $282.18. Upon execution issued, the personal property-levied on under the attachment was sold, realizing fifty-six dollars.. Clark was insolvent, and had no other property out of which to-satisfy the plaintiff’s claim, except the personal property so levied, on and sold, and said real estate.
    The referee found that, by the failure to complete the service of' the attachment by filing the notice, the plaintiffs lost the balance-of their debt; that it was the duty of the defendant, as sheriff, to-file the notice within a reasonable time after it was prepared, and that, by the negligent failure of the defendant to do so, the plaintiffs were damaged in the amount of such balance. For such balance, being, after deducting some fees due the defendant, the sum of $242.74, including interest, the refereej ordered judgment.

      Youmans, Adee & Youmans, for the appellant.

      Burr Mattice, for the respondents.
   Merwin, J.:

There is no doubt about the liability.of the sheriff for damages-occasioned by his negligence in the execution of process. (Ransom v. Halcott, 18 Barb., 56; Hoffman v. Conner, 13 Hun, 541; Code of Civil Procedure, § 102.) But it is claimed here that it is not a part of the duty of the sheriff to file the notice required by section 649 of the Code, and that if he agreed to file it that would only be an individual matter and would not support an action against him as sheriff. This seems to be the main proposition urged on defendant’s behalf.

By section 644 of the Code, the obligation is on the sheriff to immediately execute the warrant by levying on so much of the personal and real property of the defendant, within his county and not exempt, as will satisfy the plaintiff’s demand, with the costs and expenses. Section 649 prescribes how a levy must be made on real estate, and ■.the filing of the notice is an essential part of it. It cannot be •completed without it. The filing is, therefore, within the direct line of the official duty of the sheriff. The fact that the attorney must sign the notice does not make it the duty of the attorney to make or complete the levy. The attorney'by signing does his part towards enabling the sheriff to perform his duty. Under the old Code the filing of this notice was not required, but a notice of pendency could be filed (Code of Procedure, § 132) that would effectuate a lien, and this could be attended to by the attorney.

Under the present Code the provision as to notice of pendency •does not apply to attachments, but the notice in question takes its place. (Sec. 1670 and Throop’s note.) In some respects this notice is the act of both the sheriff and the attorney. Assuming that •either had a right to file it when properly prepared and executed, the sheriff, by undertaking with the attorney to do it, relieved the attorney from responsibility in the matter, and the attorney, as well as the party, had the right to rely on the promise of the sheriff. By such promise the act did not cease to be a part of his official duty. We think that the sheriff, m failing to file the notice before the conveyance by Clark, neglected his official duty.

The finding of the referee as to the value of the property is fully sustained by the evidence. The plaintiffs, therefore, by reason of the neglect of the defendant, failed to obtain a lien and lost the opportunity to collect the full amount of their judgment. It is suggested that the deed to Bell was invalid and that he had knowledge of the attachment. But neither of these things are found by tbe referee or disclosed by tbe evidence. Tbe defendant cannot, as a defense, turn the plaintiffs over to a litigation with Bell, when, if he had done his duty, the plaintiffs would have acquired a lien, from which 'presumptively they could have realized the amount of their judgment. Nor is there anything in the case to support a waiver or an estoppel. The plaintiffs did not, within ten days after the granting of the attachment, cause the affidavits upon which it was granted to be filed as required by section 639, but this did not affect the validity of the warrant or the proceedings under it. (1 Rumsey’s Pr., 523, and cases cited.) The defendant testifies that when he filed the papers on the 19th of October, 1885, he did so at the direction of the plaintiffs’ attorney. This was after the recovery of the judgment and did not operate as a waiver of any rights the plaintiffs had against the sheriff. The other points suggested by the appellant’s counsel we have examined, but find no good ground for reversing the judgment.

The judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    NANCY M. KENYON and MARGARET E. HOARD, Appellants, v. LEVINA YOULEN, Respondent.

      Equitable title to real pn'operty a/l'ising out of an agreement to lire with the owner thereof— ?nay be interposed as a defense to a/n ejectment suit brought by the devisee of such owner — statute of frauds inapplicable — evidence as toa transaction with a deceased pwty.

    In an action of ejectment it appeared that the-premises consisted of a house and lot, which were owned by Mary Piper, deceased, in her lifetime, and that the plaintiffs claimed, as the devisees under her will, and the defendant as the equitable owner, under an agreement between the decedent and the defendant and one George Y. Piper, whereby the decedent agreed to convey or devise the premises to them, in consideration that the defendant and Piper would move on to the premises and take care of the decedent during the remainder of her life.
    The defendant having fully performed on her part demanded judgment for the specific performance of the agreement.

      Held, that the defendant was entitled to a specific performance of the contract, and to assert her right of possession as a defense to this action.
    That the fact that the contract in this case was an oral one did not bar the defendant’s right to enforce specific performance, as the statute of frauds was not applicable to such a case.
    Upon the trial the defendant was called as a witness on her own behalf, and was asked and allowed, against the plaintiffs’ objection and exception, to answer, “Was there a time when you went to live with George Piper? ”

      Held, that the exception was not well taken as the plaintiffs were not the executors, administrators or survivors of George Piper, nor did they derive their title or any interest from, through or under him.
    Appeal from a judgment recovered at tbe Herkimer Circuit, which was entered in the office of the clerk of Herkimer county on April 26, 1888, dismissing the plaintiffs’ complaint; and also from an order denying a motion for a new trial on the minutes of the justice presiding at the trial, which was entered in the same office on May 14, 1888.

      Joseph J. Dudleston, for the appellants.

      Smith & Steele, for the respondent.
   Martin, J.:

This action was ejectment. The premises involved consist of a house and lot situated in the village of Frankfort, N. Y. They were owned by Mary Piper, deceased, in her lifetime. The plaintiffs claim title as devisees under her will. The defendant claims as equitable owner. Her claim is founded upon an alleged agreement between the decedent and the defendant and George Y. Piper, whereby the decedent agreed to convey or devise the premises to them in consideration of their moving on to the premises and their taking care of her during the remainder of her life. This agreement was fully performed on their part. The defendant in her answer demanded judgment for the specific performance of their agreement.

On the trial the defendant gave evidence which tended to show that the decedent was quite earnest in her solicitations that the defendant and said George should move on to the premises and take care of her during the remainder of her life; that to induce them to do so she agreed, if they would move on the premises and thus take care of her, that they should have the premises in question at her death; that she would convey or devise the premises to them ; that in consideration of such agreement upon her part, the defendant and said George agreed to move on said premises and take care of her during the remainder of her life; and the defendant left the business in which she was then employed, and, with George, moved on to the premises, and in all things fully performed said agreement upon their part; that the decedent did not perform the agreement upon her part, but only devised to said George a life estate in the premises. The defendant has succeeded to the interest of George under said agreement, so far as such interest is involved in this action. The jury found the facts as claimed by the defendant. If the contract proved wa&gine which the court, under the evidence, might have required the plaintiffs to specifically perform, it follows that the judgment herein was correct and should be sustained. If' the defendant was entitled to a specific performance of the contract, she was entitled to the possession and to assert her right of possession as a defense to this action.

In Parsell v. Stryker (41 N. Y., 480) it was held that an agreement on a good consideration to devise land is valid, and will be-enforced by compelling a conveyance from the heirs of the premises- or purchasers with notice. (See, also, Lobdell v. Lobdell, 36 N. Y., 321.)

The fact that the contract in this case was an oral one does not-bar the defendant’s right to enforce a specific performance. The-statute of frauds is not applicable in such a case. (Freeman v. Freeman, 43 N. Y., 34; Pomeroy on Specific Performance, 30;; Smith v. Smith, 51 Hun, 164.) Ve think the agreement, as proved and found by the jury, constituted a defense to this action.

The defendant was called as a witness in her own behalf, and was asked: “Was there a time when you went to live with George Piper ? ” To this the plaintiffs objected upon the ground “ that it is a personal transaction.” The objection was overruled and the plaintiff excepted. We do not think the exception well taken. The plaintiffs were not the executors, administrators or survivors of George Y. Piper, nor did they derive their title, nor any interest, from, through or under him. We have examined the other exceptions in the case but have found none that require discussion or that would justify an interference with the judgment.

After a full and careful examination of the evidence and proceedings in this case, we are of the opinion that the case was properly submitted to the jury, that the verdict is sustained by the evidence, and that the judgment and order appealed from should be affirmed.

IIardin, P. J"., concurred; Merwin, J., not sitting.

Judgment and order affirmed, with costs.


text:
    MARGARET VAN VALKENBURG and PHILIP LASHER, as Administrators, etc., of ANNA M. LASHER, Deceased, Appellants, v. GEORGE H. LASHER, Respondent.

      Surrogate — may not determine the validity of a disputed claim made by the estate against one of the next of kin.

    A surrogate, upon a final settlement of the accounts of an administrator is not invested with authority to try the validity of a disputed claim made by the •estate against a debtor, although the debtor is one of the next of kin, and appears as such.
    Appeal from a judgment of nonsuit directed at the Delaware 'Circuit, which was entered in the office of the clerk of the county of Delaware on the 7th day of January, 1889.
    Frederick Lasher, of Middletown, Delaware county, N. Y., died intestate October 29, 1881, leaving his widow Anna M. Lasher, the plaintiffs and the defendant herein, Janet Gill and others, his children and only heirs-at-law and next of kin.
    On the sixteenth day of January, 1886, said Anna M. Lasher was duly appointed administratrix of the estate of said decedent. On the 11th day of June, 1886, said administratrix instituted proceedings for an accounting, and a citation was duly issued, returnable August 5, 1886, in which the defendant was named as one of the next of kin and which was duly served upon him. On the return day of such citation, objections to the account of such administratrix were filed by Janet Gill, whereby it was sought to have the said administratrix charged with an indebtedness which the contestant alleged existed from the defendant in this action to the estate of said Frederick Lasher, and which was due at his death and not collected. Pending this accounting, and before a hearing of the issues raised by the objections, Anna M. Lasher died. On the 13th of November, 1886, the plaintiffs were appointed administrators of her estate, and on the 2d day of December, 1886, the plaintiffs were also appointed administrators de bonis non of the estate of said Frederick Lasher. On February 14,188Y, the plaintiffs, as such administrators de bonis non, presented their petition to the surrogate of Delaware county for a final judicial settlement of their accounts as such, and citations were issued to the defendant and the other next of kin, requiring them to appear before the surrogate to attend such settlement, which citation was duly and personally served on the defendant.
    Upon the return day the administrators de bonis non filed their account as such, charging themselves with the money and funds of said estate in the hands of the former administratrix at the time of her death, as shown by her account. To this account the said Janet Gill refiled the 'same objections which she had filed to the account of said Anna M. Lasher, and asked that their account should be surcharged with the various items alleged to be due the estate of Frederick Lasher from the defendant, as set forth by such objections, which it was alleged the former administratrix had failed to collect while acting as such; and having so failed, asked that her interest in the estate of said Frederick Lasher should be charged with such sums alleged to be due. It was thereupon stipulated by the administrators of the estate of Anna M. Lasher, and the administrators de bonis non of the estate of Frederick Lasher, that as all the parties interested in both estates were in court and were the same,, the surrogate should take and state the account of the estate of said Anna M. Lasher, deceased, to the estate of Frederick Lasher, deceased, in the proceedings thgn pending for an accounting: The defendant was not a party to that stipulation. He, however, appeared on the return day of such citation in person and by attorney, and witnesses were sworn, both upon the part of the contestant and the.part of the plaintiffs, as to the liability of the defendant to the estate of Frederick Lasher.
    Upon the completion of the trial the surrogate made his decision, whereby he found that at the death of Frederick Lasher the defendant was liable to him upon various matters in the sum of $318, and directed that said sum should be charged to the account of Anna M. Lasher, as administratrix, and that her estate should pay the same to the estate of Frederick Lasher. The said decision also provided that the sum of $318 should be deducted from the distributive share in his estate belonging'to Anna M. Lasher. The plaintiffs demanded said sum of the defendant before action. This action was then brought to recover that amount from the defendant as money paid out and expended for him and in his behalf. The judge at the-circuit nonsuited the plaintiffs.

      C. L. Andrus, for the appellants.

      Edwin D. Wagner, for the respondent.
   Martin, J.:

The only question which we deem it necessary to examine in this, case is whether the decree of the surrogate of Delaware county, entered in the matter of 'the accounting by the plaintiffs with the estate of Frederick Lasher, deceased, was sufficient evidence of the defendant’s liability to the plaintiffs to justify a recovery in this action. No proof of any claim or indebtedness against the defendant was given, unless the decree of the surrogate was evidence, thereof.

The question involved in the proceeding before the surrogate ivas, whether the plaintiffs’ intestate had been guilty of negligence, or an omission of her duty as administratrix of her husband’s, estate, in not enforcing certain alleged liabilities of the defendant, to such estate. The defendant was a party to that proceeding as next of kin, but was not made a party as a debtor to the estate, nor sought to be charged as such. There was no issue between the plaintiffs and the defendant on that procéeding. The issue was between the plaintiffs and the contestant of their account. If the plaintiffs’ claim, that the surrogate has jurisdiction of the person of the defendant and of the subject-matter of the constroversy in that, proceeding, be admitted, still as the controversy there related solely to the question of the negligence of their intestate, the decree of the surrogate was not evidence of the defendant’s liability in this action. The Code of Civil Procedure declares of what facts a surrogate’s decree sliall be evidence (§ 2742), which does not include the facts necessary to sustain this action. (Van Rensselaer v. Van Rensselaer, 21 N. Y. State Rep., 948, 951.)

However, we do not think the surrogate would have had jurisdiction to try that question. No authorities have been cited, and we have found none, statutory or other, which would justify us in holding that a surrogate is invested with authority on a final settlement to try the validity of a disputed claim made by the estate against a debtor, although the debtor is one of the next of kin and appears as such. On the contrary, it has been held that the surrogate has no power to determine the validity of a claim of an estate against another, even when he is a legatee and the executor seeks to have such debt adjudged as a partial satisfaction of such legacy. (Matter of Colwell, 15 N. Y. St. Rep., 742; Greene v. Day, 1 Dem., 45 ; see, also, Kintz v. Friday, 4 id., 541; Matter of Kellogg, 39 Hun, 275; Matter of Keef 43 id., 98.)

Hence we are of the opinion that the learned trial judge was right in holding that the decree of the surrogate was not conclusive or binding upon the defendant, that the surrogate had no jurisdiction to determine the claim between the estate and the defendant, and that he properly granted the defendant’s motion for a nonsuit.

The judgment should be aifirmed, with costs.

HardiN, P. J., and MerwiN, J., concurred.

Judgment affirmed, with costs.


text:
    JACOB M. MERTENS, as Surviving Farther, etc., Respondent, v. JOHN C. FITZWATER, Appellant.

      Costs — when a defendant is not entitled thereto as against a plaintiff succeeding as to a part only of Ms claim.

    la an action of replevin brought to recover possession of goods sold to the defendant’s assignor on March 3, April 12, May 15, August 21, September 15, October 21 and 22, in the year 1886, and on March 8,1887, the complaint contained a single count in which it was alleged that the plaintiff was the owner of such goods; that he had demanded the same of the defendant; that the defendant had refused to deliver them to the plaintiff, and demanded a judgment for the return of the goods or for their value.

      The plaintiff recovered the goods sold to the defendant’s assignor on the 8th "day of March, 1887, and the defendant the goods sold, at the various times mentioned, during the year 1886.

      Held, that the defendant was not entitled to costs against the plaintiff; that the complaint alleged hut one cause of action within the meaning of section 8384 of the Code of Civil Procedure.
    That section 1728 of the Code of Civil Procedure had no hearing upon the question of costs in this action; that, except where the complaint sets forth separately two or more causes of action and the plaintiff recovers a portion of the property and the defendant the remainder, the defendant is not entitled to recover costs under section 8231 of the Code of Civil Procedure.

      The Newell Universal Mill Company v. Muxlow (24 N. Y. St. Rep., 545) followed.
    That when the goods in question were demanded hy the plaintiff, and the defendant refused to deliver them up, a cause of action arose in favor of the plaintiff against the defendant for all of the goods demanded, if they were fraudulently obtained hy the vendee, and that, as between the parties, hut one right of action was asserted hy the plaintiff, which was a right to all of the goods taken.
    Appeal from an order of a Special Term, held in Onondaga county, denying a motion made on the part of tbe defendant to require tbe clerk of Onondaga county to tax and adjust tbe defendant’s costs against tbe plaintiff in tbis action, which order was entered in tbe office of the clerk of Onondaga county on February 2, 1889.

      Calvin J. Huson, for tbe appellant.

      Charles E. Ide, for the respondent.
   Martin, J.:

On March 3, April 12, May 15, August 21, September 15, October 21 and 22, in tbe year 1886, and on March 8, 1887, tbe firm, of which tbe plaintiff is tbe surviving member, sold to David O. Gray, tbe defendant’s assignor, bills of goods consisting of various articles of ready-made clothing. By tbis action the plaintiff sought to recover possession of the goods so sold from tbe defendant, who claimed title and the right of possession under and by virtue of a general assignment made to him by said Gray for the benefit of creditors.

The complaint in tbis action contained but a single count, in which it was alleged that the plaintiff was the owner of such goods; that he had demanded them of the defendant, and that the defendant had refused to deliver them to the plaintiff. The plaintiff demanded judgment for a return of said goods, or their value, if a return could not be had, and for damages for their detention. The defendant, by his answer, admitted that the plaintiff demanded the goods, but alleged that he owned them as such assignee, and demanded a, judgment that the property be returned, and that he have damages for the detention thereof by the plaintiff.

On the trial the plaintiff sought to establish title to the goods on the ground that they were fraudulently purchased of the firm, of which the plaintiff is the surviving member, by the defendant’s assignor. The defendant had a verdict. Subsequently a motion for a new trial was made, which resulted in an order granting a new trial on the payment of costs, unless the defendant should stipulate to amend the verdict rendered by awarding to the plaintiff the goods purchased of his firm March, 1887, fixing the value thereof at $170, and assessing the plaintiff’s damages for the detention of the same at six cents, and by awarding to the defendant the remainder of the goods, fixing their value at $475.43, and assessing defendant’s damages for the detention thereof by the plaintiff at forty-six dollars and forty-one cents. The stipulation provided for by this order was given. The defendant applied to the clerk of Onondaga county to adjust his costs in the action, which he declined to do. The defendant then moved at Special Term for an order requiring the clerk to adjust such costs, which was denied, and from that order this appeal was taken. *

In determining the question presented by this appeal the verdict, as amended, must be treated as though it had been rendered by the jury on the trial. It must, therefore, be regarded as a verdict for the plaintiff for the goods sold to Gray on the 8th day of March, 1887, and a verdict for the defendant for the goods sold, at the various times mentioned, during the year 1886. The plaintiff sought to avoid the various sales made by his firm, and to recover the property thus sold on the ground that each of such sales was induced by the fraud of the defendant’s assignor; and thus the question was presented, as to each of such sales, whether it was induced by such fraud.

The defendant claims that, under the provisions of the Code of Civil Procedure, he was entitled to costs against the plaintiff. Section 1728 provides: “ Where the action is brought to recover two or more chattels, the verdict, report or decision, may award to one party one or more distinct chattels, which can be identified and set apart from the others, and the residue to the other party, and, if necessary, the complaint must be amended so as to conform thereto. The final judgment rendered thereupon must award to each party the same relief, with respect to the finding in his favor, as if separate judgments were rendered, except that where each .party is entitled to an absolute award of a sum of money against the other, the smaller sum must be deducted from the greater and the balance only must be awarded.”

Section 3234 declares: “ In an action specified in section 3228 of this act, wherein the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue, in which casé the plaintiff only is entitled to costs.”

Among the actions specified in section 3228 is an action to recover a chattel. In this case there was no certificate that the substantial cause of action was the same upon each issue. The defendant contends that the plaintiff’s claim for the property sold upon each of the occasions mentioned constituted a distinct and separate cause of action witfijn the intent and meaning of section 3234, and that he was entitled to recover costs against the plaintiff, although the plaintiff failed to set forth sej>arately in his complaint these several causes of action, as he sought to recover upon them all.

Where, as in this case, it is claimed that the sale of goods was induced by fraud on the part of the vendee, and they have passed into the hands of an assignee for the benefit of the creditors of the vendee, and the assignee had no knowledge of the alleged fraud when he took possession under the assignment, and no, proceeding had been taken by the vendor to rescind the sale prior to the assignment, a demand from the assignee is necessary before an action for the possession of the goods can be maintained. The assignee lawfully acquired the title and possession of the goods, subject to the right of: the plaintiff to reclaim them upon rescinding the contract between him and the defendant’s assignor. (Godwin, v. Wertheimer, 99 N. Y., 149.) Until a demand was made the plaintiff had no right of action against the defendant. When the goods in question were demanded by the plaintiff and the defendant refused to deliver them up, the plaintiff had a cause of action against the defendant for all the goods demanded, if they were fraudulently obtained by the vendee. As between the parties but one right was .asserted by the plaintiff, and that was a right to all the goods taken. The plaintiff’s asserted right of action was an entire one. It constituted but one cause of action. Hence the case is not within the provisions of section 3234.

Moreover, the Court of Appeals, in the Newell Universal Mill Company v. Muxlow (24 N. Y. St. Rep., 545), held that section 1128 has no bearing upon the question of costs in such an action, and that where the complaint does not set forth separately two or more causes of action, and the plaintiff recovers a portion of the property and the defendant the remainder, the defendant is not entitled to costs under section 3234 of the Code of Civil Procedure. 'The decision in that case must, we think, be regarded as decisive of the question under consideration. It follows, therefore, that the order appealed from should be affirmed.

Hardin, P. «L, and Merwin, J., concurred.

.Order affirmed, with ten dollars costs and disbursements.


author: Merwin, J.:

text:
    CATHERINE E. PALMER, Plaintiff, v. THE COMMERCIAL TRAVELERS’ MUTUAL ACCIDENT ASSOCIATION OF AMERICA, Defendant.

      -Accident insurance policy — time of inception of contract — notice of death to the company — contract containing ultra vires conditions — death occurring from an injury after the expiration of the time fixed by the policy.

    On a submission of controversy without action, under section 1279 of the Code of Civil Procedure, it appeared that the plaintiff, Catherine E. Palmer, claimed to recover the sum of $5,000 as the amount of an insurance benefit, payable to her as the beneficiary of her husband, Joseph H. Palmer, a deceased member of the Commercial Travelers’ Mutual Accident Association. On August 3,1887,
    Joseph H. Palmer, then of Syracuse, executed and sent to the aforesaid association, the defendant, at Utica, N. Y., an application for membership in the form adopted by its board of directors, stating the name of the plaintiff as the beneficiary, and that he understood that the certificate would not cover accidental injuries which might happen under the influence of intoxicating drinks. On August fourth this application, together with the initiation fee and other sums required by its 'constitution and by-laws to be paid, were received by the defendant, and at a meeting of its board of directors, on August fifth, the application was examined and approved and Palmer was admitted to membership. The record showed that the secretary presented nineteen applications for membership, which were examined and approved and accepted for membership, among which was Palmer’s.
    The certificate, which was thereupon sent to Palmer, and was in the form adopted by the board of directors at that time, and not afterwards changed, provided, among other things, that the said Joseph H. Palmer should only recover the-sum named therein in case he should have sustained bodily injuries effected through external, violent or accidental means, and that such injuries should have occasioned death within ninety days from the happening thereof; and also, provided that it was issued and accepted, subject to all the provisions, conditions,, limitations and exceptions therein contained or referred to, and of the by-laws, of the association; one of the conditions being that, in the event of any accident for which any claim should be made, or in case of death resulting therefrom,, immediate notice should be given in writing, addressed to the secretary at. Utica, stating certain things, and that the failure to give such notice would invalidate all claim under the certificate.
    On August 8, 1888, Palmer died from injuries received, accidentally, on March twenty-eighth. No notice of the accident was given to the defendant until after the death. Palmer’s widow, who had no information as to the membership of her husband until August tenth, wrote, on the fifteenth, to the association for blank proofs of death, received them on August nineteenth, and presented to-the association, on September eighth, proofs of death on the blanks so received.
    The association refused to pay the loss on the ground that the certificate of membership was void as the association had not been immediately notified of the accident, and as the injuries sustained by the insured did not occasion his death within ninety days from the happening thereof.
    The plaintiff claimed that the certificate was not a bar to the contract, and that she was not bound by its conditions, and claimed that the contract was complete upon the passage by the board of directors of the resolution approving the application and accepting Palmer as a member of the association.

      Held, that the resolution was preliminary to the contract, and that the issuing of the certificate was the corporate act which completed it, until the execution and delivery of which it was incomplete.
    That the presumption was that Palmer expected to receive a certificate in the usual form issued by the defendant, and that this presumption was strengthened by the fact that Palmer kept the certificate sent to him, and thereafter paid his dues; and assessments.
    It was claimed by the plaintiff that the board of directors had no power to make such a contract as was indicated by the certificate.

      Held, that as the contract in that form was the only one made and delivered on the part of the association, that if that contract was void for want of power, then the widow had no ground t’o stand on.
    It was further urged by the plaintiff that the provision that death must happen within ninety days after the accident was not binding upon the insured, for the reason that it was in conflict with the provisions of its constitution on that subject.

      Held, that the plaintiff could not accept one part of the contract and reject another. That the association was not bound to accept the candidate for membership, and if, in so doing, it imposed conditions beyond the constitutional powers given it by its constitution, but not illegal, and these conditions were repudiated by the other party to the contract, that then there was no acceptance thereof and it never took effect.
    That there was nothing in this case upon which the widow could base an estoppel, as there was nothing to show that Palmer expected to receive anything different from what he, in fact, did receive.
    That the fact that the death did not occur within ninety days of the happening of the accident was a perfect defense.
    Submission of a controversy, without action upon admitted facts, under section 1279 of the Code of Civil Procedure.
    The plaintiff claims to recover the sum of $5,000, as the amount of an insurance benefit, payable to her as the beneficiary of her husband, Joseph H. Palmer, a deceased member of the defendant association. The defense is that the defendant was not immediately notified of the accident, and had no knowledge of it until after decedent’s death, nearly five months after the accident; that the notice of death was not immediate; that the injuries sustained by the decedent did not occasion his death within ninety days from the happening thereof.
    The defendant is a corporation, duly incorporated on March 20, 1883, under chapter 319 of the Laws of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies,” and the acts amendatory thereof, and its particular business and object, as stated in its certificate of incorporation, is “ the collection and accumulation of a fund to be held and used for the mutual benefit and protection of its members (or their beneficiaries) who shall have sustained, while members of the association, bodily injury, whether fatal or disabling, effected through or by external, violent and accidental means, and under such conditions, provisions, limitations and exceptions as may be established under the constitution, rules and by-laws of the association.”

      The association, immediately upon its incorporation, adopted a constitution, by-laws and rules, which, among other things, provided for the election of a president and board of directors; that the president be recognized as the legal representative of the association, and execute all papers legally demanded or requisite in connection with the affairs of the association, subject, however, to instructions, with respect to the same, of the board of directors; that the duty of the board of directors should be to take a general .supervision of the business of the association, “prescribe the form' and manner of applications for membership, and decide upon the same, determine the qualifications and eligibility of persons applying for membership, decide on all proofs of accident; and death by accident, order assessments to pay weekly indemnities and to pay death losses,” execute and carry into effect the provisions therein contained not otherwise provided for, make report of their action and proceedings to the membership at each annual meeting; that (art. 5, § 4), “ upon sufficient proof of the death of any member by bodily injuries effected through external, violent and accidental means, each member shall be assessed the sum of two dollars, and the amount so derived, not exceeding in amount the limit pre.scribed, shall be paid to the beneficiary of the deceased member; ” that (art. 6, § 3), “ upon suitable proof of the death by accident of ■any member of the association, the board of directors shall order a .special assessment upon each and every member of the association of two dollars; the amount so collected, not exceeding five thousand dollars, shall be paid to the person or persons whose names shall, at the time of the death of such member, be found recorded as his last designated beneficiaries, or, in case of .their death, to their legal representatives or heirs; and the receipt of the proper party in either case shall be conclusive and final, except when such member shall have, in his last will and testament, left the amount to other parties than the one designated on the books of the association, and legal notice of the probate of such will shall have been served upon the secretary of the association, before the payment of the loss shall have been made; ” that any failure to comply with the requirement ■of the constitution and by-laws shall operate against such member in respect to his claim upon the benefits of the association, and all .such cases shall be decided by the board of directors; that (by-laws, art. 3, § 4) “the board of directors may make such rules for their government and the transaction of their business (not provided for in the constitution, or otherwise provided by law) as they may deem necessary and best.”
    On the 3d of August, 1887, Joseph EL Palmer, then of Syracuse, N. Y., executed and sent to the defendant at TJtica, N. Y., an application for membership in the form adopted by the board of directors, of defendant, stating, among other things, the name of the plaintiff as the person to whom death loss was to be paid, and that he understood that the certificate of membership would not cover accidental injuries which might happen while under the influence of intoxicating drinks or in consequence of such condition. No other reference to a certificate of membership was made in the application. On. August 4,1887, this application, together with the initiation fee and the other sums required by the constitution and by-laws to be paid, was received by defendant from Palmer, and at a meeting of the board of directors of defendant on the evening of Friday, August 5,1887, the application was examined and approved, and he was admitted to membership in said association by action then taken by said board,, the record reading as follows: “ The secretary presented the following nineteen applications for membership, which were examined and approved, and at 8 — 13 were accepted members, viz.: * * * J. EL Palmer, Syracuse, N. Y.” Thereafter, and on the following day, the president and secretary of the association executed and mailed to Palmer a certificate of membership, which was received by him in due course of mail and remained in his possession until his death. This certificate was in the form adopted by the board of directors on March 24, 1883, and not afterwards changed. It is dated August 5, 1887, purports to be the act of the incorporation and under its corporate seal, and in form constitutes Palmer a member in accordance with its articles of incorporation and by-laws, and agrees to pay “ to his wife Catherine E. Palmer, her executors, administrators or assigns, the sum represented by the payment of two dollars by each member of said association, as provided by the by-laws, which sum, however, is in no event to exceed the sum of five thousand dollars, said payment to be made within ninety days after satisfactory proof shall have been duly filed with its secretary that the said Joseph EL Palmer at any time during the continuance of this membership, shall have sustained bodily injuries effected through external, violent or accidental means, within the intent and meaning of this contract, and the conditions hereto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof.”
    It contained a proviso “ that this certificate has been issued and accepted, subject to all the provisions, conditions, limitations and exceptions herein contained or referred to, and of the by-laws of the association, which are referred to and made part of this contract,” and one of the conditions was that “ in the event of any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, immediate notice shall be given in writing, addressed to the secretary at TJtica,” stating certain things, and that a failure to give such notice should invalidate all claim under the certificate.
    Palmer paid all the dues, fees and assessments required by the rules of the defendant, and at his death was a member in good standing. On March 28, 1888, he accidentally received injuries from which he died on August 3, 1888. His death was caused solely by such injuries and through external, violent and accidental means. No notice of such accident or of such injuries, was given to the defendant until after the death, and defendant had no knowledge of the same until after the death.
    The plaintiff had no information of the membership of her husband until the 10th of August, 1888, nor did she know of the certificate of membership or its provisions, until after August 19,1888. On the 15th of August, 1888, the agent of plaintiff wrote the defendant for blank proofs of death, and received them on August nineteenth, and on September 8, 1888, the plaintiff presented the proofs of death on the blanks so received. On November 11, 1888, the defendant rejected plaintiff’s claim, its secretary writing the agent of the plaintiff that the board of directors had concluded that they had no authority to order an assessment upon the membership on account of the death of Palmer. An assessment would have yielded $5,000 and upwards.

      Knapp, Nottingham, & Andrews, for the plaintiff.

      M. W. Van AuKen, for the defendant.
   Merwin, J.:

The defense in tbis case is based on the provisions of the certificate of membership. The plaintiff claims that that certificate was not a part of the contract, and that she is not bound by its •conditions. Her position is that the contract was complete upon the passage by the board of directors, upon Friday evening, of the resolution approving the application and accepting Palmer as a member, and that the certificate executed the next day could attach .no condition not specified in the constitution or by-laws.

The certificate bears date the same as the resolution, operates as of that date, is under the corporate seal and is executed by the officer who, by the’ provisions of its constitution, is to be recognized as the legal representative of the association, and the one to execute all papers legally demanded or requisite in connection with the affairs of the association. It purports to be the corporate act, constituting the membership and stating the contract on the part of the corporation. It was in the form adopted by the board at its •organization and not afterwards changed. The resolution was preliminary, and the certificate was the corporate act and deed. The matter was not completed until the execution and delivery of the certificate.

In determining what was, in- fact, the corporate act at that time the resolution and certificate must be taken together. "Very clearly that was the intention of the officers of the corporation. Their membership contracts had always been in that way, and there was no reason for a change in this instance. That was the contract they assumed to make in conducting the affairs of the corporation. I can .see no reason to doubt that the contract, which in this case was proffered by the corporation to Palmer in return for his application, was represented by the certificate. That was what they sent to Palmer, and was the only communication from defendant to Palmer of its manner of action upon the subject; the only obligation delivered by defendant. This Palmer received and kept. That Palmer expected to receive a certificate is indicated by a reference to one in the application. The presumption is he expected to receive a certificate in the usual form issued by the defendant (Van Loan v. Farmers’ Mut. Fire Ins. Assn., 90 N. Y., 285 ; De Grove v. Metropolitan Ins. Co., 61 id., 602); and this presumption is strengthened by the fact that. Palmer kept the certificate sent him and thereafter paid his dues and assessments. It was apparently not contemplated by either party that there should be anything else that represented the obligation of defendant except the certificate. There is nothing to indicate that Palmer had any reason to believe that the contract with him would be any different from the usual form.

The plaintiff in this respect must occupy her husband’s position. I see no way to avoid the conclusion that the certificate must be considered in determining the obligations of the' defendant. The certificate must be deemed to indicate what both parties meant and understood by the acceptance mentioned in the resolution. The case of Fried v. Royal Insurance Company (50 N. Y., 243) is cited by plaintiff. There the plaintiff applied to the agent of the defendant in New York for an insurance on the life of her husband, presented a proposal and paid the premium, and received from the agent a receipt stating that the proposal would be forwarded to the home office for acceptance, and if accepted a policy would be issued, and if declined the premium would be returned, and in case the husband died before the decision was received the sum insured was to be paid. The proposal was forwarded and accepted, a policy issued by defendant and forwarded to the agent to be executed and delivered. The agent executed it, but declined to deliver it, having been advised that the health of the assured had declined, and he had standing instructions not to deliver in such a case. It was held that the contract and acceptance were unqualified and could not be limited by private instructions to the agent, stress being laid on the idea that in case the party died before decision the sum insured was to be paid, and that the instructions to the agent did not apply to a case where the premium was paid. The case before us is very different.

But the plaintiffi says that the board of directors had no power to make such a contract as is indicated by the certificate. If, as I think it must be held, the contract in that form was the only one presented and delivered on the part of the defendant, and that is void for want of power, then the plaintiff has no contract to stand on. It is the one presented to and received by Palmer, or none.

It is further urged that the provision that death must happen

witbin ninety days after tbe accident, is not binding upon tbe insured, for tbe reason that it is in conflict with tbe provisions of tbe constitution on the subject. Tbe plaintiff cannot accept one part of the contract and reject another. The question for plaintiff is not what was tbe power of tbe defendant, but what was tbe contract in fact? Tbe defendant or its board of directors was not bound to accept tbe candidate for membership. If, in doing so, it imposed conditions beyond its constitution, and those conditions were repudiated by tbe other party, then there was no meeting of minds, there was no acceptance. But assume tbe plaintiff can raise tbe question that tbe board of directors bad no right to impose tbe condition referred to, let us see bow tbe matter stands. By tbe statute under which tbe defendant was incorporated, it was provided (chap. 319 of 1848, § 3) that tbe directors “shallhave tbe control and management of tbe affairs and funds of said society.” By the constitution and by-laws they are given tbe general supervision of tbe business, tbe right to prescribe tbe form and manner of appbcations for membership, and decide upon tbe same; decide on all proofs of accident and of death by accident; execute and carry into effect tbe provisions not otherwise provided for; make such rules for their government and tbe transaction of their business, not provided for in tbe constitution, or otherwise provided by law, as they may deem necessary and best. Tbe constitution provided in one section that “ upon sufficient proof of death,” through certain means, each member should be assessed tbe sum of two dollars, and tbe amount so derived, not exceeding a certain Hmit, be paid to tbe beneficiary; and in another section it provided that, “upon suitable proof of tbe death by accident,” tbe board of directors should order a special assessment upon each member of two dollars, and tbe amount so collected, not exceeding $5,000, be paid to tbe beneficiary. What was to be deemed sufficient proof or suitable proof was not stated. That was for tbe board of directors to determine. There was no provision as to when tbe money should be paid to tbe beneficiary, or as to when tbe death must happen with reference to tbe accident, or as to what notice should be given. Can it reasonably be assumed that it was designed to leave tbe matter entirely indefinite as to when, with reference to the time of tbe accident, the death should happen or the notice be given? That is not the usual course of such associations and was not so understood here. For the board, immediately upon its organization, adopted the form of certificate in question, and have always used it. In such use the association apparently acquiesced. By the broad language of the statute, fixing the power of the directors, they had the right to adopt the certificate and impose the condition in question. In view of the action of the directors and the acquiescence of the association, we have not, I think, any right to assume that the association designed to limit the power of the directors in this regard. The association did not specifically make any restriction. The more reasonable inference, in view of the subsequent action, is that this was a matter left for the directors' to regulate in determining what was suitable proof or under their general powers.

Be this as it may, I see no escape from the conclusion, upon the other feature of the case, that the only membership proffered or accepted by the defendant or its board of directors, or expected by the recipient Palmer, was the one indicated by the certificate, and that under that the plaintiff, if she takes at all, necessarily takes subject to the conditions therein stated.

There is nothing in the case upon which plaintiff can base an estoppel. There is nothing to show that Palmer expected to receive anything different from what he, in.' fact, did receive. Nor is there anything in the manner of the refusal of the defendant to pay the claim that affects its right to raise the question here considered. In view of the conclusions thus far, it is not necessary to consider the question as to want of immediate notice of the accident or the death, which is raised by the defendant. There is no question but that the conditions of the certificate, if effective, are upon the facts a perfect defense. The death did not occur within ninety days from the happening of the accident. No claim is made on account of temporary or total disability simply, but only for the death. It follows that the plaintiff is not entitled to recover.

HaediN, P. J., and MaetiN, J., concurred.

Judgment ordered for the defendant upon the submission, with costs. Form of judgment to be settled before Merwin, J,


author: Martin, J.: HaediN, P. J.:

text:
    MARTIN S. GRAY, Respondent, v. JAMES SEEBER, APPELLANT.

      Statute of limitations — a Supreme Court money judgment, when barred.

    In an action, commenced March 4,1887, upon a money judgment recovered against the defendant in the Supreme Court, on November 17, 1873, the defendant contended that the judgment was barred by the ten years’ limitation provided by section 388 of the Code of Civil Procedure.

      Held, that this contention could not be maintained.
    That a limitation of twenty years, in actions on judgments of the character therein mentioned, was specially prescribed by section 376 of the Code of Civil Procedure, and that section 388 thereof did not apply to such an action.

      Brush v. Hoar (14 N. Y. Civ. Pro. R., 397; 15 N. Y. St. Rep., 860) followed.
    Appeal from a judgment, recovered upon a trial before the court at tbe Otsego Circuit, a trial by a jury having been duly waived, which was entered in the office of the clerk of the county of Otsego on the 9th day of August, 1888.
    The action was brought upon a judgment against the defendant recovered in the Supreme Court, November 17, 1873, for $527.73. On April 20, 1885, it was assigned to the plaintiff. This action was commenced March 4,1887. No part of the judgment has been paid. The defense relied upon was that the judgment was barred by the statute of limitations.

      Edick & Smith, for the appellant.

      Barnum Bros., for the respondent.
   Martin, J.:

The only question involved on this appeal is, whether an action upon a judgment for a sum of money, rendered in a court of record, may be maintained if brought within twenty years from the time the party recovering it was entitled to a mandate to enforce it or whether it must be commenced within ten years. The appellant contends that section 376 of the Code of Civil Procedure does not prescribe a limitation in actions upon such judgment, and hence that the ten years’ limitation provided for by section 388 is made applicable to such an action,

Section 376 provides that such a judgment is presumed to be paid and satisfied after the expiration of twenty years, and that such presumption is conclusive, except in cases of part payment, or written acknowledgment of the amount, or some part thereof, by the person sought to be charged. Thus the question presented is whether section 376 is to be regarded as a statute of limitation specially applicable to actions on such judgments within the intent and meaning of section 388. The chapter in which these sections are found is entitled, “ Limitation of the time of enforcing a civil remedy; ” and section 378 provides that a party seeking to avail himself of the provisions of sections 376 may allege that such action was not commenced within twenty years, the time therein limited. When this whole statute is examined and its language and purpose considered, it becomes quite manifest that the legislature regarded, section 376 as prescribing a special limitation in actions upon such judgments.

It is said there is a clear distinción between a presumption of payment and a statute of limitation. As an abstract proposition, that. statement may perhaps be correct. It is doubtless true, that there may be presumptions of payment which are not statutes of limitation, but it does not follow that a presumption of payment created by statute may not constitute a statutory limitation of the time within which an action can be maintained. That a statute like the one under consideration, which creates an artificial and conclusive presumption of the payment and satisfaction of a debt, is, in effect, a statute of limitation, cannot, we think, be successfully denied. A statute which declares that a judgment shall be conclusively presumed to be paid and satisfied after the expiration of twenty years as effectually bars the remedy to enforce it, and as absolutely limits the time within which a recovery may be had thereon, as would a statute which provided that no action could be maintained thereon unless brought within that time.

Moreover, such statutes have always been regarded as statutes of limitation. In Morey v. Farmers’ Loan, and Trust Company (14 N. Y., 308), Judge Weight, in speaking of a similar statute, says: It is, in effect, a statute of limitations merely,” and he repeated the same statement in Lawrence v. Ball (id., 480). In Johnson v. Albany and Susquehanna Railroad Company (54 N. Y., 427), it was said that the statute of limitations was “ entirely like the statute giving the presumption of payment in respect to a sealed obligation after twenty years.” In Fisher v. Mayor (67 N. Y., 79), Judge Andrews speaks of such a statute as a statute of limitations. In Diefenbach v. Roch (21 N. Y. St. Rep., 573), Judge Eael refers to section 376 as a statute of limitation. "Without multiplying instances where this and similar statutes have been spoken of and treated as statutes of limitation, we think it may be safely said that the general, if not universal, understanding of the profession, as well as of laymen, is, and has been, that such a statute is a statute of limitation and is generally spoken of and designated as such.

We can perceive no good reason for holding otherwise than that a limitation of twenty years in actions on judgments of the character therein mentioned is specially prescribed by section 376, and that section 388 does not apply to such an action. It was so held in Brush v. Hoar (14 N. Y. Civ. Pro. R., 297; S. C.,15 N. Y. St. R., 860), and we see no reason why we 'should not follow the authority of that case.

As the correctness of the decision of the trial court is challenged only on the ground that the plaintiffs judgment was barred by the ten years’ statute of limitation, it follows that the judgment should be affirmed.

MebwiN, J., concurred.

HaediN, P. J.:

According to the provisions of section 376 of the Code of Civil Procedure, “ after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it ” a judgment “ is presumed to be paid and satisfied.” By the use of the word “ satisfied” it is apparent that after the lapse of twenty years the conclusive presumption mentioned in that section, in effect, discharges the record of the judgment.

Section 378 expressly provides how the presumption referred to in section 376 maybe availed of, to wit: By “an allegation that the action was not commenced or that the proceeding was not taken within the time therein limited.” By the use of the expression “ time therein limited ” it is inferable that the legislature intended by section 376 to limit the right of recovery to the period mentioned in section 376.

Section 381 expressly limits the time to twenty years for an action upon a sealed instrument. And in section 382 it provides limitations within six years, for actions upon contract, obligation or liability expressed or implied; words are inserted excluding from the operation of that section “a judgment or sealed instrument.”' Thus inferentially assuming that provision had been made limiting the right of action in respect to judgments and sealed instruments. The limitation prescribed by section 376 being specially prescribed ” as to judgments in courts of record, section 388 is not applicable thereto. This construction seems to be favored by the comments of Mr. Throop, and in referring to the mode of pleading he says : “ The allegation should be, as wb other cases of limitation, that the action was not commenced with twenty years.” He then adds: “ To remove any possible doubt on the subject section 378 has been added.” (See note to section 376.)

In the Matter of Kendrick (107 N. Y., 107), it was assumed by the Court of Appeals that the time within which an action could be brought upon a judgment was twenty years. In the course of the opinion in that case Rapallo, J., uses the following language : “ More than twenty years had then elapsed after the recovery of the judgment, and the statutory presumption of payment had then attached. It is not claimed that any payment had been made, or acknowledgment of a continuing indebtedness given, before such presentation, and the claim being then barred by the statute, no acknowledgment or new promise made by the administrator after it had become thus ba/rred would, if made, have been available to revive the debt against the other creditors or the next of kin of the intestate!”

This language, as well as the further language of the opinion, indicate very clearly that the Court of Appeals assumed the limitation to be twenty years. These views, as well as those expressed in the opinion of brother MaotiN, lead me to favor an affirmance of the judgment.

Judgment affirmed, with costs.


author: Hardin P. J.:

text:
    GEORGE W. HEAD, DWIGHT D. WINSTON, HARVEY E. DINGLEY AND PETER McEVOY, Appellants, v. CONRAD WOLLNER, Respondent.

      Attachment, heaaxwe of defendant concealing himself with intent to mold service of a summons — sufficiency of moving affidavits.

    On an application for an attachment, on the ground that the defendant has kept himself concealed with intent to avoid the service of a summons, it is not sufficient to show that the defendant could not be found at his place of business, although an attempt was made to find him there on several occasions.
    The attempt at concealment with a view to avoid service must be established clearly and positively, not by affidavits based upon information and belief, unless the sources of such information and belief are clearly shown.
    Appeal from an order of tbe Onondaga Special Term entered in the office of the clerk of Oneida county February 5, 1889, setting aside an attachment issued on the alleged ground that the defendant kept himself concealed to avoid the service of a summons in the city of Htica.
    A motion was made upon the affidavits and papers used to obtain the attachment. These affidavits were to the effect that the deponent went on several occasions to the place of business of the defendant and could not find him; that he telephoned to such place of business; that the voice which answered, the deponent thought to be that of the defendant, but when it was stated who had called another voice replied. A deponent in another affidavit alleged, on information and belief, that the defendant kept himself concealed to avoid the service of a summons upon him.

      William H. Bright, for the appellants.

      H. F. & J. Coupe, for the respondent.
   Hardin P. J.:

Plaintiff obtained an attachment January 24, 1889, upon the ground that defendant kept himself concealed to avoid the service of a summons.

Section 636 of the Code of Civil Procedure requires the party obtaining an attachment on such ground to show by affidavit to the satisfaction of tbe judge granting tbe same that the defendant keeps himself concealed ” with intent to avoid tbe service of a summons.

The affidavit must make legal proof so as to judicially satisfy the officer who is called upon to issue an attachment. (Mott v. Lawrence, 17 How., 559.) Because the defendant was not found in his place of business, where the agent of plaintiff called on the twenty-second of January or on the twenty-third of January, did not establish concealment, nor intent to conceal, to avoid service of a summons. (Towsley v. McDonald, 22 Barb., 608; Wallach v. Sippilli, 65, How., 501; Castellanos v. Jones, 5 N. Y., 164.)

Ambiguous declarations or acts which are susceptible of an honest purpose, as well as of an intent to avoid service, do not authorize an attachment. The purpose 1^o accomplish a concealment with intent to avoid service of the summons is the ground mentioned in the statute, and it must be made clearly and positively to appear by the facts; they must be clearly and positively shown, not by information and belief, unless the' sources of such information and belief is clearly shown. (Steuben County Bank v. Alberger, 18 N. Y., 252; Andrews v. Schwartz, 55 How., 190.) If the defendant was out of his store collecting, or had gone down town on business, as was stated to the plaintiff’s agent, then he was engaged legitimately, and such engagement did not indicate an intent to avoid service of summons. (Sickles v. Sullivan, 5 Hun, 569.)

In Genin v. Tompkins (12 Barb., 275) there was an actual concealment for nine hours, shown under circumstances warranting an inference therefrom that the defendant intended to avoid service of summons, and in that case no member of his family, “ no person in his employment, knew where he was ” while he was concealed at Kipp’s tavern. Where the statements, as in this case, are intrinsically innocent, they do not establish the intent required by the statute. (Evans v. Warner, 21 Hun, 574.) The belief of the affiant that the defendant was concealed, with intent to avoid service of summons, is not sufficient; facts tending to prove it, were not sufficiently stated so that it might be judicially determined that such was the intent of the defendant. (Stevens v. Middleton, 26 Hun, 470.) Conjectures, surmises and suspicions are not sufficient. (Herman v. Doughty, 15 Week. Dig., 94.) In that case it was said, viz.: The proofs should be of such a character as to fairly justify other construction and dishonest purposes on the part of the defendant.” Appellants call attention to Schoonmaker v. Spencer N. Y., 366); that was a case involving the validity of an attach-issued by a justice of the peace, and rested upon facts and circumstances tending to show the defendant had left the county State with intent to defraud his creditors; and as the facts fairly called for a judicial conclusion that such was the intent of the defendant, the attachment was upheld. We see nothing in the case which sustains the sufficiency of the affidavits before us. Inasmuch the motion was made upon plaintiffs’ papers used to obtain the attachments, the plaintiffs were not at liberty to use further or other supporting affidavits. (Steuben County Bank v. Alberger, 75 N. Y., 185.) W e must sustain the order of the Special Term.

Order affirmed, with ten dollars costs and disbursements.

Martin, J., concurred; Merwin, J., not sitting.

So ordered.


author: Hardin, P. L:

text:
    ALFRED A. HOLMES, as Committee of the Property of ALANSON R. LEWIS, Respondent, v. J. HENRY ABBOTT and Others, Appellants.

      Action by a committee, bringing in all the alleged creditors of a lunatic, in order to determine as to the validity of their claims — complaint not demwrrable for misjoinder.

    Under the provisions of subdivision 9 of section 484 of the Code of Civil Procedure the committee of a lunatic is authorized to bring an action, alleging the insolvency of such lunatic, that various persons named as defendants are interested, or claim to be interested, in the property, which, by virtue of the appointment of the committee, has come into his care and custody, and ashing that the extent of the interest of the lunatic in said property be ascertained, and, as an incident thereto, the validity and extent of the liens thereof held by the respective parties defendant in the action, alleged creditors of such lunatic.
    A complaint setting forth the foregoing facts is not demurrable, upon the ground that the several causes of action existing against the respective parties defendant has been improperly united in one action.
    Appeal from a judgment in favor of tbe plaintiff, entered in Jefferson county January 16,1889, upon a decision made at a Special Term in that county, overruling demurrers to the complaint.

      At a Special Term held on the 18th day of September, 1888, plaintiff was authorized to institute and prosecute to judgment, as committee of the property of Alanson R. Lewis, an action in the Supreme Court against J. Henry Abbott, Duane Spalsbury and Polly Butler, “ and to join such other parties, as defendants therein, as are related to the transactions involved in the action, and such as have or claim to have an interest in the property of said Lewis, such action to be prosecuted for the setting aside of liens upon the said property of said Lewis, claimed by the said Abbott, and said Spalsbury and said Polly Butler, either by judgment or mortgage, or otherwise, and to set aside alleged sales and transfers made by said Lewis to them, or either of them, and for an accounting by them, and for the ascertainment of the just and lawful liens existing upon the property of said Lewis, and for directions to the said committee for the satisfaction of the same, and for such other purposes as may be necessarily or properly related to the matters aforesaid.” The order was made after hearing Y. P. Abbott, “ attorney of record for Duane Spalsbury and Henry J. Abbott judgment-creditors consenting.”
    The complaint in this action alleged that the plaintiff had been appointed committee of the property of Alanson R. Lewis, a person incompetent to manage himself or his affairs in consequence of lunacy, that said Lewis was possessed of a considerable quantity of personal property and was also seized of certain lands, the chief portion of which lands was subject to a mortgage- executed by Lewis thereon; that one judgment had been recovered against the said Lewis by confession founded upon a statement in writing verified by him, which was held by one defendant; that certain of the other defendants had claims in judgment or not sued upon; that if such claims were found to be valid the said Lewis would be insolvent; that the plaintiff represented the said Lewis, and also his general creditors, as well as those having specific liens on his property, and that it was impossible for him to sell the property in his charge or liquidate and adjust the various debts and obligations claimed to exist against the said Lewis, until the rights of the respective claimants were adjudicated-and directions were given by the court as to his action in the premises. The plaintiff, therefore, asked judgment for the decision, amonn other things, as to what amount of the claims mentioned in the complaint were just and proper and should be paid by the plaintiff.

      V. P. Abbott and W. S. Farmer, for the appellants.

      Arthur L Chapman, for the respondent.
   Hardin, P. L:

Subdivision 9 of section 484 of the Code of Civil Procedure contains the substance of subdivision 1 of section 167 of the Code of Procedure, which was said by Comstock, J., in New York and New Haven Railroad Company v. Schuyler, Cross, etc. (17 N. Y., 592), to be “well chosen for the purpose intended, because it is so obscure and so general as to justify the interpretations which shall be found most convenient and best calculated to promote the ends of justice.”

In Wiles v. Suydam (64 N. Y., 178), Church, Ch. J., says of it, viz.: “ There is certainly ample scope for construction, but it is sometimes difficult to determine what interpretation will best promote the ends of justice. It is probable that the primary purpose of this provision was intended to apply to equitable actions? which frequently embrace many complicated acts and transactions relating to the subject-matter of the action, which it would be desirable to settle in a single controversy.” In the case in hand it is averred that Lewis, the incompetent person, over whose estate the plaintiff has been appointed a committee, is insolvent, and that the various persons named as defendants are interested or claim to be interested in the property, which by virtue of the appointment of plaintiff came into his care and custody.

To ascertain the extent of the interest of Lewis in the property, and incidentally the validity and extent of the liens thereon held by his respective creditors, is the purpose and scope of the complaint. In short, the property which has come into the custody of the plaintiff, and which as committee or trustee he holds, is the “ subject of action.” ( Wiles v. Suydam, 64 N. Y., 178.) "Whether any of the claims of the defendants are prior to the lien and interest of the plaintiff will be determined in the action, and properly so. (Bank of Orleans v. Flagg, 3 Barb. Ch., 316; Brown v. Volkening, 64 N. Y., 83.) Plaintiff seeks to ascertain the extent of property or fund, and in doing so to have investigated the several claims thereto and liens thereon.

In Garner v. Thorn (56 How. Pr., 458), it was said: “ The cause of action consists in the several violations and misappropriations which the trust estate has suffered in passing through the hands of the various defendants, and with which they have been more or less connected. The restoration and preservation of the trust fund is the primary and important subject-matter of the action.” The reasoning and cases cited in the opinion from which the quotation just given is taken support the conclusion reached at the Special Term. We do not deem it needful or important to add anything further to the opinion delivered by the Special Term in overruling the demurrers.

Judgment affirmed, with costs, with leave to the defendants to withdraw their demurrers and answer, upon payment of the costs of the demurrers and of the appeal.

Martin, J., concurred ; Merwin, J., not sitting.

So ordered.


author: Hardin, P. J. :

text:
    WILLIAM BARRY, Respondent, v. ORSON COVILLE and GABRIEL A. MORRIS, Appellants, Impleaded, etc.

      Conveyance, absolute in form, given as collate/ral to a debt — in an action to procure a retransfer, fraud need not be shown — attorney amd client —privileged communicatiom.

    In an action to obtain a reassignment of certain interests in patent-riglits, upon paying the amount of whatever indebtedness may exist to the party holding the legal title thereto, evidence showing that there was no fraud or deceit practiced, and that the party making the assignment knew the contents thereof when making it, are not inconsistent with the giving of proof that the assignment was made, although absolute in form, merely as a collateral security for the repayment of an indebtedness existing on the part of the party making such assignment and conveyance to the party receiving the same.
    An attorney, who has been applied to by a party to draw a deed for him, and also for counsel in regard to matters relating to the subject-matter of the deed, is incompetent to testify to communications made to him in such matter in an action between the grantor and a third person.

      Appeal from an interlocutory judgment, entered in Onondaga county February 12, 1889, upon a decision made at Special Term in that county, declaring that the plaintiff was entitled to a reassignment and reconveyance of certain interests in several patent-rights or inventions, upon paying to the defendants whatever indebtedness might exist, for which it was claimed said inventions were turned out as security, and ordering a reference to state an account between the parties and allowing an application to be made to the court upon the referee’s report for further and final judgment.

      B. N. Bailey and I. D. Garfield, for the appellants,

      Baldwin, Lewis & Kennedy, for the respondent.
   Hardin, P. J. :

Before the Code allowing legal and equitable remedies to be had in the same action, it was held that parol evidence was admissible, independent of proof of fraud or mistake to show that a deed, although absolute on its face, was, in fact, intended by the parties as a mortgage. (Strong and Others v. Stewart, 4 Johns. Ch., 167; Whittick v. Kane, 1 Paige, 202; Van Buren v. Olmstead, 5 id., 9; Lansing and Others v. Russell, 3 Barb. Ch., 325.)

Since the adoption of the Code of Procedure it has been repeatedly held that parol evidence is admissible in all classes of actions, whether legal or equitable, to show that a deed absolute on its face was given as a security only. (Despard v. Walbridge, 15 N. Y., 374; Horn v. Keteltas, 46 id., 605.)

When the instrument of October 2, 1884 (Exhibit 1) was executed by the parties to this action, the plaintiff was indebted to the defendants, and they also agreed to “ furnish funds,” and it was stipulated in the agreement that the defendants “ will pay the indebtedness for goods to September 16, 1884, to wit, $168.16, thirty-five dollars in cash, heretofore paid to procure patent, etc., on the willow stripping machine herein mentioned, for all goods had since September 16th, aforesaid, and all moneys hereafter paid or advanced and goods and provisions had hereafter.”

In that agreement the defendants reserved “ the right to terminate” the agreement, and following the reservation of that right were the words, which are quite significant in determining the intention of the parties; they are as follows: “But shall retain their interest and claims herein till they shall be fully paid their said indebtedness up to such time as they shall terminate this agreement, but they shall, upon payment to them of their said indebtedness, reassign their said interest in said inventions herein to said Barry.” The right to terminate the agreement was extended by a stipulation of the parties to July 1, 1885.

(1.) It is apparent that the parties executing the agreement of October 2, 1884, treated the assignment of the plaintiff’s interest in the several patents as collateral security for his indebtedness to the defendants.

(2.) • It is obvious, from reading the testimony found in the appeal book, that such was the intention of the parties, and the finding of the learned trial judge to that effect must, therefore, be sustained.

(3.) The finding of the learned trial judge “ that there is no. evidence of any fraud or deceit attempted or practiced towai’d the plaintiff by the defendants, either in regard to Exhibit No. 1 or Exhibit No. 4; ” and, also, his finding “that plaintiff knew the contents of both Exhibit No. 1 and Exhibit No. 4 when he signed them,” are not inconsistent with or at war with his conclusion that the defendants held the several transfers which they received from the plaintiff as collateral security for any indebtedness or advances.

(4.) ¥e are of the opinion that the evidence warranted the finding that the several assignments were held by the defendants as security for any indebtedness, and when they elected to terminate their relations, to the plaintiff, existing in virtue of said assignments, we think the plaintiff is entitled to an accounting, and upon that accounting, the amount found due to the defendants being paid or tendered, the defendants ought to assign to the.plaintiff the several inventions which they took under the circumstances disclosed by the trial judge.

(5.) When Cornelius W. Smith was upon the stand as a witness it appeared that he drew the deed known as Exhibit No. 4, and that he was an attorney-at-law, and that the plaintiff applied to him to draw the deed, and also for counsel in regard to matters relating to the subject-matter of the deed. While his testimony was being given, and subsequently on a motion to strike the same out, the question of the admissibility of his evidence was raised, and the court intimated an opinion that Ms testimony was inadmissible, because he was not at liberty to violate the privilege existing between attorney and client in respect to confidential communications, The court finally struck out his testimony except so far as it related to the fact that he drew the deed. The defendants took an exception. We are inclined to the opinion that the learned trial judge kept within the rule laid down in Root v. Wright (84 N. Y., 72), where it is said the “ rule prohibits him from testifying to such communications in an action between his clients and a tMrd person.” It is also said in that ease that the rule “ extends to communications in reference to all matters which are the proper subject of professional employment.” (Citing Williams v. Fitch 18 N. Y., 550; Yates v. Olmsted, 56 id., 632).

(6.) As the trial judge found that there was no evidence of fraud or deceit practiced, and that the plaintiff knew the contents of both Exhibits No. 1 and No. 4 when he signed them, the ruling was not prejudicial to the defendants, and we ought to disregard their criticism in respect to the same. (Code of Civil Procedure, § 1093.)

We see no occasion to interfere with the interlocutory judgment.

The judgment should be affirmed, with costs.

Martin, J., and Merwin, J., concurred.

Judgment affirmed, with costs.


text:
    DAN S. RICHARDS and Another, as Assignees of MARTIN C. ROCKWELL and MELVIN C. ROCKWELL, and of MARTIN C. ROCKWELL & CO., for the Benefit of Creditors, Appellants, v. ELMINA La TOURETTE and Others, Respondents.

      Counter-claim — against assignees who acquired the chose in action sued v/pon by them before its maturity.

    In an action, brought for the foreclosure of a mortgage by the assignees of a private banker, a counter-claim was interposed by one of the defendants, who had assumed payment of the mortgage, arising out of a deposit which had been made by such defendant with the assignor. By the terms of the mortgage the sum secured to be paid thereby did not become due until a date subsequent to that of the execution of the general assignment by the banker.

      Held, that as, at the time of the assignment, nothing was due upon the mortgage, and as, at that time, the defendant could not have maintained an action to set off the amount of his deposit with the private banker, as against the amount due upon the mortgage held by him, that such right of set-off did not constitute a demand existing against the banker, at the time of the assignment thereof, within the meaning of section 502 of the Code of Civil Procedure, and could not be set up as a counter-claim in an action brought for the foreclosure of the mortgage by the assignees.

      Richards v. Village of Union (48 Hun, 263), followed ; Smith v. Felton (43 N. Y., 421), distinguished.
    Appeal from a judgment, entered April 15,1889, upon the report of a referee in Broome county.
    Plaintiffs, as assignees of Martin C. Rockwell, commenced an action to foreclose a mortgage made by La Tourette to secure a part of the purchase-money upon certain premises conveyed, to wit: To secure the sum of $1,700 in ten years from the 30th day of March, 1880. On the 24th of March, 1884, La Tourette conveyed the mortgaged premises to the defendant Edward C. Mersereau, subject to the mortgage, “ which mortgage said Mersereau, by the terms of the deed to him, assumed and agreed to pay. On the 9th of March, 1885. Rockwell and Rockwell, as individuals and as alleged partners, under the name of M. O. Rockwell & Go., made a general assignment for the benefit of creditors to the plaintiffs of all their individual and firm property, and the plaintiffs qualified as assignees and commenced this action upon the bond and mortgage, which were a part of the assets that came to them under the assignment. The firm of M. O. Rockwell & Go. assumed to be private bankers in the village of Union prior to their assignment (although the referee found that' no such partnership, in fact, existed, and that Martin C. Rockwell was the real owner of the business), and the defendant Mersereau had on deposit with them, as bankers, subject to his check, the sum of $193.51, at the time of the assignment, and Mersereau also had a certificate of deposit for the sum of $267.73, payable, with interest, on demand and return of the certificate of deposit. No demand for the payment of the certificate of deposit had been made prior to the assignment to the plaintiffs.
    The referee found that on the 6th of March, 1889, there was due upon the bond and mortgage $907.16, and that there remained due to Mersereau on his certificate and on his deposit $596.51, And as a conclusion of law lie found, viz.: “ That the amount which should be thus applied is $596,51, leaving the amount unpaid on said bond and mortgage $310.65, for which sum I direct that the usual judgment of foreclosure and sale be entered, with the disbursements in this action in favor of the defendant Edward C. Mersereau.”

      Chayman & Lyon, for the appellants.

      E. C. Moody, for the respondents.
   Hardin, P. J. :

Upon this appeal the pivotal question is whether the defendant Mersereau was entitled to set off the claims which he held against the Rockwells against the mortgage which the plaintiffs, as assignees seek to foreclose. At the time of the assignment by the Rockwell,, to the plaintiffs nothing was past or overdue upon the mortgage.. The principal had not matured, nor had any interest become overdue,, nor had there been any demand of payment of the money on deposit with the banking-house, nor any return of the certificate- and demand of payment thereof.

In Richards v. Village of Union (48 Hun, 263) we held that the-plaintiffs, being the owners of an order for the payment of money before it came due, they were clothed with all the rights of assignees before maturity of negotiable instruments, 'and that the-defendant was not entitled to offset, as a counter-claim against the said order, the balance of money due it from the firm. Our decision was placed upon the ground that “at the time of the-assignment the defendant was not entitled to offset or counter-claim against said order the balance of money due to it, $221.17. Before-the order came due the defendant had notice of its assignment to’ plaintiffs. If the defendant, on the day before the assignment, or the day after the assignment, had commenced the action to recover the balance due its treasurer, the order in question would not have been a legal offset or counter-claim against the balance due to the defendant.”

It is insisted in behalf of the respondent that our decision in that case “is in no way a precedent to govern this,” and the only suggestion made why it is not is found in the remark of the respondent’s counsel, to wit: “ It was not contested, and only submitted on points presented by tbe assignee.” That was an action upon an order, and this is an action upon a bond and mortgage. At the time tbe assignment was made to tbe plaintiffs, IVIersereau could not bave maintained an action to set off either bis deposit or bis certificate of deposit against tbe mortgage held by Rockwell, as tbe mortgage was not, nor was any part of it, then due and payable.

In Smith v. Felton (43 N. Y., 421) tbe note on wbicb tbe assignees brought tbe action was not due at tbe time of tbe assignment to them, or at the time of tbe failure of their assignor, nor was tbe note on interest, and it' was said, therefore, tbe bolder would lose nothing by a present payment,” and in that case “ tbe plaintiffs took title to tbe note, subject to tbe equitable claim of tbe defendants, as it existed at the time of the assignment, wbicb was to set off their debt against tbe note to tbe amount of the latter, and tbe legal title will not avail to defeat this prior equity of tbe defendants.” Thus it appears that tbe right to set-off was rested upon tbe circumstance that although tbe note was not due, yet, as it did not bea/r interest, tbe bolder, at tbe time of making tbe assignment thereof, would not suffer by a set-off. In tbe circumstance we bave mentioned that case differs from tbe one before us.

In Lindsay v. Jackson (2 Paige, 581), tbe debt of tbe complainants who sought to compel an offset was not due, and tbe debt to them from tbe defendant was overdue, and an injunction restraining tbe defendants from disposing of their debt was sustained, and tbe chancellor observes: “ Tbe complainants alone bad any interest in obtaining tbe time of credit wbicb was given on these demands. It might present an entirely different question if tbe defendants’ debt was now due from tbe complainants, who were seeking to compensate it by a claim against tbe defendants, payable at a future day.” (See Young v. Guy, 10 J. B. Moore, 193.) That case furnishes no authority for tbe contention of tbe defendants here.

In section 501 of tbe Code of Civil Procedure it is provided that a counter-claim, in an action on a contract, may be set up of “ any other cause of action on contract existing at tbe commencement of tbe action.” That provision is limited and restricted, however, by tbe language found in section 502 of the Code of Civil Procedure. In subdivision 1 of the latter section it is provided that “ if tbe action is founded upon a contract which, has been assigned by the party thereto * * * a demand existing against the party thereto * * * at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counter-claim, to the amount of the plaintiff’s demand, if it might ha/oe been so allowed agai/nst the party or the assignee, while the contract belonged to him.” Applying the provision just quoted to the ease in hand, it is to be observed that while the bond and mortgage belonged to Rockwell they were not due, and, therefore, the defendants’ claim was not such an one as “ might have been so allowed against the party while the contract belonged to him.” ( Wells v. Stewart, 3 Barb., 40.) In Bradley v. Angel (3 Comst., 475), the complainants held debts which were not due, and they sought to compel an offset againt them of debts held by the defendants’ testator which were overdue; and in speaking of the situation Gardiner, J., says: “ The proposition is, in effect, to change the contract of the parties, in some of its most important provisions, in order to meet a supposed equity arising from matters expost facto.”

In Martin v. Kunzmuller (37 N. Y., 397) it was held that, “ in an action by an assignee the defendant cannot offset a note made by the assignor which fell due after the assignment of the subject of the action was made.”

Seymour v. Dunham (24 Hun, 95) is distinguishable from the case before us. There the action was upon a promissory note which fell due before the holder thereof made an assignment to the plaintiffs, who brought an action thereon, and an outstanding certificate was allowed to be offset, although the defendant had made no demand for the money deposited, a majority of the court being of the opinion that, as the banker had become insolvent, “no demand of the deposit is needed for his protection,” and that deposits are debts payable in presentí, and it was also intimated, viz., “ that no demand was needed when the deposit was to be used only as a .set-off or defense.”

In Jordan v. National Shoe and Leather Bank (74 N. Y., 470) it was held that a bank “ has not a right to retain the balance of a customer’s deposit to pay or apply upon an indebtedness of the customer to the bank not yet matured.”

In Munger v. Albany City National Bank (85 N. Y., 580) it was held that there is no right of action upon a certificate of deposit in ordinary form issued by a bank until demand, of payment, and in the latter ease the court observed, in reference to Smith v. Felton (supra), viz.: “We repeat that, there, the defendants were willing and desirous to pay the debt owing by them, whether then payable or not, and had so acted as to make the debt owing to them become-accrued, due and payable, and the debtor to them was insolvent.”

In respect to the case in hand we are lead to apply the remark found in Myers v. Davis (22 N. Y., 492), in the opinion of Denio, J., viz.: “ The defendants’ difficulty is that at the time-of the assignment they had no demand against any one ” entitling them to a set-off, and by the assignment the creditors have become-interested in the proceeds of the bond and mortgage, and to allow an offset “would-change the contract of the parties to the prejudice-of the other creditors of the ” assignor.

If the foregoing views are correct, the referee fell into an error in allowing an offset against the plaintiffs, who were assignees for the benefit of creditors.

Judgment reversed upon the exceptions, and a new trial ordered,, with costs to abide the event.

Martin and Merwin, JJ., concurred.

Judgment reversed on the exceptions and a new trial ordered before another referee, with costs to abide the event.


author: Daniels, J.

text:
    First Department,
    May, 1889.
    In the Matter of the Final
    Accounting of William Simpson.
   Order reversed, with costs to appellants to abide event, and new reference ordered.

Opinion by

Daniels, J.


text:
    Morris Saffer, Respondent, v. The Dry Dock, East Broadway and Battery Railroad Company, Appellant.
   Judgment reversed and new trial ordered, with costs of the appeal to the defendant to abide the event.

Opinion by

Daniels, J.


text:
    William H. Yeandle and others Appellants, v. Celeste Yeandle, Respondent.
   Judgment reversed and n«w trial directed, with costs to the appellants to abide the event.

Opinion by

Daniels, J.


text:
    Stephen M. Chester, Respondent, v. Francois Henry Jumel and others, Appellants.
   Judgment, as modified, affirmed, without costs of the appeal to either of the parties.

Opinion by

Daniels, J.


text:
    Stephen M. Chester, Respondent, v. Francois Henry Jumel and others, Appellants.
   Judgment affirmed, without costs to either party.

Opinion by

Daniels, J.


text:
    Stephen M. Chester, Respondent, v. Frances A. Gesnor, Appellant, Impleaded, etc.
   Judgment, as modified, affirmed, without costs to either party.

Opinion by

Daniels, J.


text:
    Stephen M. Chester, Respondent, v. Francois Henry Jumel and others, Appellants. (Appeal by John Elliott.)
   — The judgment, so far as it is drawn in question by this appeal, affirmed, with costs.

Opinion by

Daniels, J.


text:
    Stephen M. Chester, Respondent, v. Francois Henry Jumel and others, Appellants.
   Order, as modified, affirmed, without costs to either party.

Opinion by

Daniels, J.