text:
    In the Matter of the Estate of Josephine Patterson (otherwise known as Josephine West), Deceased.

      Sections 2681 and 2481 of the Code of Civil Procedure — relief which may be granted thereunder — limited by the prayer of the petition — a decree on a final accounting opened without revoking the letters of administration.

    A proceeding to vacate letters of administration is authorized by section 2681 of the Code of Civil Procedure, and a proceeding to vacate a final accounting is authorized by section 2481 thereof; the relief which may be granted under these sections in proceedings instituted pursuant to them is not similar.
    Where a petition for a final accounting made by an'administrator alleged that the only person interested in the estate of the decedent as husband, next of ldn, or otherwise, was the petitioner, the husband of the deceased, and such allegation was untrue, and the petitioner was not the husband of the deceased, there is a sufficient cause for vacating the proceeding for an accounting under section 2481 of the Code of Civil Procedure, and the Surrogate’s Court is not precluded on the final accounting from adjudging such allegation to be untrue by the fact that the petition on which the letters of administration.were granted contained a similar allegation. In a proper case it may, notwithstanding such allegation in the petition for letters of administration, upon the application of a person not cited upon the application for letters or upon the final accounting, vacate the decree made upon such accounting.

      No person can be deprived of his property 'without due process of law, and when a court decides a question adversely to the interests of a person who ought to have been a party to the action or proceeding, but was not, and is not a privy of a party, the judgment obtained is not conclusive upon such person, and he may attack the same collaterally.
    In case the petition in a proceeding in a Surrogate’s Court contains facts entitling the petitioner to two dissimiliar kinds of relief, and concludes with a prayer that he have one kind and for such other and further relief, etc., no relief except that prayed for and such as is consistent therewith can be granted.
    On February 27, 1889, William H. Patterson filed a petition in the Surrogate’s Court alleging that he was the husband of a decedent and her only next of kin, and prayed that letters of administration be granted to him upon her estate. Letters of administration were accordingly granted to him and he took upon himself the execution of the trust and filed- an inventory of the estate, which consisted entirely of personalty. A notice to creditors was duly published, and thereafter Patterson filed a petition in the Surrogate’s Court praying that his account as administrator be settled,11 and on the same day a decree was entered judicially settling his account and directing the distribution of the assets of the estate in his hands.
    Thereafter a sister of the intestate-filed a petition in the Surrogate’s Court setting forth the facts above stated and further alleging that the intestate died unmarried, and that the final account was filed and the decree settling the same was entered without notice to the petitioner.
    The relief prayed for was as follows: “Your petitioner, therefore, prays that an order be entered herein vacating and setting aside the decree entered herein on the 21st day of March, 1890, and directing the said William H. Patterson, the administrator of said estate, to pay over to your petitioner and her mother and brother all of the funds of said estate which have come into his possession or under his control as such administrator, and why she should not have such other and further relief, or both, as to the court may seem just and proper. And your petitioner will ever pray.”

      Meld, that the Surrogate’s Court was not authorized in such proceeding to vacate its order granting letters of administration;
    That it had power, if the facts authorized the exercise thereof, to open the decree settling the final account without first revoking the letters of administration.
    Appeal by William II. Patterson from a decree of tlie Surrogate’s Court of the county of New York, entered in the office of the clerk of the New York County Surrogate’s Court on the 3d day of November, Í892, confirming the report of a referee and revoking, setting aside and annulling the letters of administration granted to him and the decree passing and settling his accounts as administrator, with costs against the said William II. Patterson personally.
    Susanna Clark was born in Meriden, Ct., in 1845, and at an early age removed to the city of New York and assumed the name of Josephine or “Joe” West, and at one time she assumed the name of Mr.s. William II. Patterson, had her cards so printed and for a short time ran a house on Thirteenth street under that name. For more than twenty years she was the proprietress of assignation houses in the city of New York, during which period one William H. Patterson lived with her as husband or companion, but whether they intermarried was the question of fact tried in the court below. It was found that they never married. On the 23d of February, 1889, she died intestate at the city of New York, leaving her surviving Mary Clark, mother, Christopher C. Clark, brother, and Mary J. Mosher, sister, but left no descendants. On the 27th of February, 1889, William FI. Patterson filed a petition in the Surrogate’s Court alleging that he was the decedent’s husband and only next of kin, and prayed that letters of administration might be granted to him upon her estate. February 28, 1889, the mother and brother renounced all of their rights to administration on the estate. The sister, Mary J. Mosher, did not renounce her right, if any she had. On the 4th of March, 1889, letters of administration were granted to William II. Patterson, who took upon himself the execution of the trust, and filed an inventory of the estate showing that it amounted to $5,892.30, all in personalty. The intestate left no real estate. Pursuant to an order of the Surrogate’s Court, a notice to creditors to present their claims at No. 160 Broadway on or before March 19, 1890, was duly published. March 21, 1890, William FT. Patterson filed a petition in the Surrogate’s Court praying that his account as administrator be judicially settled, and on the same day a decree was entered judicially settling the account by which it appeared that after the’ payment of the debts of the intestate and all the expenses of administration and $4,200 previously paid by the administrator to himself as husband, there was in his hands $2,132.30, cash in bank, and jewelry of the value of $505, making $2,637.30, and directing that this sum be distributed according to law. On the 18th of September, 1890, Mary J. Mosher, a sister of the intestate, filed a petition in the Surrogate’s Court setting forth the facts before stated, and- alleging that the intestate died unmarried; that the allegations contained in the petition of William FL Patterson for letters and in the petition for a judicial accounting, that he was intestate’s husband, were false, and that she died unmarried. It was also alleged that the final account was filed and the decree judicially settling it was entered without notice to the petitioner. The petition concludes with the following prayer :
    “ Your petitioner, therefore, prays that an order be entered herein vacating and setting aside the decree entered herein on the 21st day of March, 1890, and directing the said "William II. Patterson, the administrator of said estate, to pay over to your petitioner and her mother and brother all of the funds of said estate which have come into his possession or under his control as such administrator, and why she should not have such other and further relief, or both, as to the court may seem just and proper.
    “And your petitioner will ever pray.”
    On the 9th of September, 1890, the Surrogate’s Court entered an order by which it was:
    “ Ordered, that William II. Patterson, the administrator of said deceased, show cause before me, at a Surrogate’s Court to be held in the city and county of New York on the 7th day of October, 1890, at 11 o’clock in the forenoon of said day, or as soon thereafter as counsel can bo heard, why the decree entered herein on the accounting of said administrator on the 21st day of March, 1890, should not be vacated and set aside, and why said administrator should not pay to said petitioner and her mother and brother, who are claimed to be the only heirs at law and next of kin of said deceased, all of the proceeds of said estate, and why said petitioner should not have such other and further relief in the premises as shall be just and proper.”
    On the 10th of November, 1890, Patterson appeared in the Surrogate’s Court and filed a verified answer to the petition, denying some of the allegations and admitting others, and with the answer lie filed an affidavit of Charles II. Beckett, verified November 10,1890. On February 17, 1891, an order was granted and entered, reciting that a motion had been made “ to vacate and set aside the decree entered herein on the 21st day of March, 1890, settling the account of William EL Patterson as administrator,” and concluding as follows:
    “ Ordered, that it be referred to Robert Bonynge, Esq., counselor at law, who is hereby appointed referee for that purpose, to take proof of the matters alleged in said petition and affidavits, and to report the same with his opinion to the surrogate.”

      On the 6th of February, 1892, the referee reported: “I am of the opinion that the decedent and respondent were never married, that the respondent was not the husband of the decedent, and that, therefore, letters of administration issued to respondent should be revoked.” This report, and the evidence accompanying it, were filed, upon which the Surrogate’s Court made findings of fact sustaining the report and conclusions of law, on which, November 3, 1893, a decree was entered by which it was “ ordered and decreed that the report of said referee be and the same hereby is in all respects confirmed, and the letters of administration on the goods, chattels, credits and estate of the above-named decedent granted to the respondent 'William IT. Patterson on the 4th day of March, 1889, be and the same hereby are revoked, and the said order and decree entered and filed in the office of said clerk on the 21st day of March, 1890, passing and settling the accounts of said William IT. Patterson, as such administrator, bo and the same hereby is vacated, annulled, set aside and made of no force or effect.”
    By the decree Patterson was personally charged with the costs and expenses of the proceeding, which were taxed and allowed at S747.75. From this decree this appeal is taken.
    Booraem, Hamilton & Beohet, for William H. Patterson, appellant.

      Charles Blandy, for the petitioner, respondent.
   Follett, J. :

A single issue of fact was litigated in the court below — whether the intestate and William H. • Patterson were husband and wife. And it was found that they were not, which result was justified by the evidence, and the finding is affirmed. This issue was necessarily tried and determined in order to ascertain whether Patterson was entitled to the avails of the-estate, or whether the mother, brother and sister of the intestate were entitled to the avails. Two questions of law arise on the record: (1) Whether in this proceeding the Surrogate’s Court was authorized to revoke the letters of administration. (2) Whether, without revoking those letters, the Surrogate’s Court could determine that Patterson and the intestate were not married, and that the mother, brother and sister of the intestate were entitled to the avails of the estate.

By section 2472 of tlie Code of Civil Procedure jurisdiction is conferred on Surrogates’ Courts to revoke letters of administration, but the last clause of this section provides: This jurisdiction must be exercised in the cases and in the manner prescribed by statute.” Sections 2684 and 2689 provide that letters may be revoked in certain cases, which are not germane to the case in hand. By section 2691 the Surrogate’s Court is authorized to vacate letters of administration on its own motion and without a petition in four cases, but the cause for which the letters were vacated in this case is not one of the four. Under the facts found, the only section under which these letters could be revoked is 2685, which provides that a person interested in the estate of a decedent may present to the Surrogate’s Court, from which letters were issued to an * * * administrator, a written petition, duly verified, praying for a decree revoking those letters; and that the * * * administrator may be cited to show cause why a decree should not be made accordingly.” The section then specifies the causes for which letters may be revoked, and among them is the following:

“ 4. Where the grant of his letters was obtained by a false suggestion of a material fact.”

Section 2686 prescribes how proceedings shall be instituted for the revocation of letters for causes specified in section 2685, to wit:

§ 2686. A petition, presented as prescribed in the last section, must set forth the facts and circumstances showing that the case is one of those therein specified. Upon proof by affidavit or oral testimony satisfactory to the surrogate of the truth of the allegations contained in the petition, a citation must be issued according to the prayer thereof. * * * ”

By reference to the petition it will be observed that the petitioner did not pray for a decree revoking the letters, but simply for an order 'vacating the decree entered March 21, 1890, on the final accounting, and that the administrator pay to the mother, brother and sister the net avails of the estate. The order which was entered upon the petition, the answer, and the affidavit filed in connection therewith, required the administrator to show cause why the decree entered March 21, 1890, on the final accounting, should not be vacated, and why he should not pay to the mother, brother and sister of the intestate all of the proceeds of the estate.

It is true that the petition concludes with the prayer for such other and further relief, or both, as to the court should seem just and proper, and the order follows the prayer in the petition and required the administrator to show cause why the petitioner should not have such other and further relief in the premises as should be just and proper.

The petition contains no prayer pursuant to section 2685 for a decree revoking the letters, and the order granted thereon does not require the administrator to show cause why the letters should not be revoked. The order required the administrator to show cause according to the prayer of the petition, as required by sections 2685 and 2686, and there is no hint in the petition or in the order that the proceeding was instituted for the purpose of obtaining a decree revoking the letters of administration.

A proceeding to vacate letters of administration is authorized by section 2681, and a proceeding to vacate a final accounting* is author ized by section 2481, and the reliefs which may be granted under these sections, in proceedings instituted pursuant to them, are not similar. The rule in Chancery was laid down in Colton v. Ross (2 Paige, 396) as follows: “Where the case made by the bill may entitle the complainant to one kind of relief or another, but not to both, the prayer should be in the disjunctive. So if the complainant is in doubt whether the facts of his case entitle him to a specific relief prayed for, or to relief in some other form, his prayer, concluding for general relief, should be in the disjunctive. And in such a case, although he is not entitled to the relief specifically prayed for, he may, under the general prayer, obtain any other specific relief, provided it is consistent with the case made by the bill. (Per Thompson, J., 1 Johns. 559 ; 13 Ves. Jun. 119 ; 1 Johns. Ch. 117; 2 Young & Jervis, 33 ; 2 Pet. 595.) But if a complainant prays for particular relief, and other relief in addition thereto, he can have no relief inconsistent with such particular relief, although founded upon the bill.” (1 Ban. Ch. Pr. [3d Am. ed.] chap. 6, § 4, pp. 7 and 382, and cases there cited.) In case a petition contains facts entitling the petitioner to two dissimilar kinds of relief, and concludes with a prayer that he have one kind, and for such other and further relief, etc., and the citation issued on the petition follows it with respect to the relief, no relief except that prayed fox and such as is consistent therewith can be granted. The practice in courts of equity is peculiarly applicable to a proceeding to vacate letters of administration, because section 2742 provides that the jurisdiction of a Surrogate’s Court to vacate letters must be executed in the manner prescribed by statute, and section 2G85 provides that the prayer of the petition shall be for a decree revoking the letters, and section 2636 that a citation must be issued in accordance with the prayer of the petition.- Under these proceedings, we think the Surrogate’s Court was not authorized to vacate the letters, and that the part of the decree which assumes to grant that relief must be reversed.

Had the Surrogate’s Court power to open the decree settling the final account without first revoking the letters ? Section 2481, of the Code provides:

“A surrogate, in court or out of court, as the case requires, has power: * * *
6. To open, vacate, modify or set aside, or to enter as of a former time, a decree or order of his court * * * for fraud, newly discovered evidence, clerical error or other sufficient cause.”

The petition and the order to show cause are entirely sufficient to institute a proceeding to vacate the decree entered on the final accounting for “ fraud * * * or other sufficient cause.” The administrator in his verified petition for the final accounting alleged “ That the only person interested in the estate of said decedent * * * as husband, next of kin or otherwise, together with their places of residence, are, to the best of your petitioner’s knowledge, information and belief, as follows, to wit: "William IT. Patterson, the petitioner herein, the husband of deceased, who resides at No. 464 6th ave., New York city.”

The court found that this allegation was false and that the petitioner was not the husband of the intestate and was not entitled to any share of her estate, and this finding we have affirmed. This was a sufficient cause for vacating the accounting for “ fraud -x- * * or 0ther sufficient cause.” But it is urged in behalf of the administrator that because it was alleged in the petition for letters that the intestate and William H. Patterson were husband and wife, and letters were issued thereon to him, the Surrogate’s Court is concluded on the final accounting from adjudging that the fact is otherwise and that he was entitled to no part of the estate. This contention we do not think can be maintained.

To the end that a citation may be issued as provided by section 2728, an administrator, in his petition for a judicial settlement of his accounts, is required to state the names of. creditors, of the next of kin, and the name of the husband or wife of the intestate. On the hearing any party may contest the account with respect to a matter affecting his interest in the settlement and distribution of the estate.” (§ 2728.)

Section 2743 provides : Where an account is judicially settled, as prescribed in this article,' and any part of the estate remains and is ready to ho distributed to the creditors, legatees, next of kin, husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. * * * Where the validity of a debt, claim or distributive share is not disputed or lias been established, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same.”

The appellant, in his petition for letters, alleged that he was the husband of the intestate and her only next of kin, and had the respondent aqtpeared in the Surrogate’s Court on the application for letters and contested his right on the ground that he was not the husband of the intestate, she would have been concluded from again litigating the question. (Caujolle v. Ferrié, 13 Wall. 465 ; Freem. Judg. § 319-a.) But this she did not do, and no citation was issued requiring her to appear, and there is no evidence that she had notice of the application, and the question is presented whether, under such circumstances, she is bound by the adjudication made on issuing the letters. If the issue of marriage had been contested, or an opportunity had been given' to the respondent to contest the question, the determination of the Surrogate’s Court would have been conclusive upon her in a proceeding for distribution, but 'it is a principle of law too well settled to require the citation of authorities that no person can be deprived of his property without due process of law, and when a court decides a question adversely to the interest of a person who ought to have been a party to the action or proceeding, but was not, and is not a privy of a party, the judgment is not conclusive upon such person and he may attack the judgment collaterally. A familiar illustration arises in cases of partition, which are actions quasi in rem. In such a case if a person having a . vested interest in the land is not made a party to the action, although it is alleged and proved on the trial that the persons who were parties were the owners of the entire title, the person who was not made a party may prove his title and recover his share of the land as against all the world. So in the case at bar the respondent, not being a party to the proceeding, or the privy of any person who was a party, is not concluded by the letters of administration, but wras at liberty, under the sections of the Code and the authorities cited, to contest the question of marriage on the final accounting. (Yan Fleet Coll. Attack, § 17.)

The rule contended for by the appellant would make it possible for a person not of kin to an intestate, by alleging in a petition for letters that he was the sole next of kin and entitled to administration, to obtain an adjudication that he was so related and thereby estop the true next of kin from questioning his right to the estate collaterally in an action or in a proceeding to compel distribution among those entitled to the estate.

It should be observed that in this case it was not asserted on the trial in the Surrogate’s Court that the administrator had failed to account for all of the estate, or had in any way misapplied or misappropriated any part of it, except by claiming and receiving the net avails, and every interest will be protected by setting aside the accounting and permitting the surrogate to distribute the estate to those entitled.

That part of the decree vacating the letters of administration issued to William II. Patterson March 4, 1889, is reversed, and that part of it vacating the final accounting of March 21, 1890, is affirmed, without costs to either party, and the case is remitted to the Surrogate’s Court that final distribution may be had among those entitled to the estate.

O’Brien and Parker, JJ., concurred.

Decree reversed in so far as it vacates the letters of administration, and affirmed in so far as it vacates the final accounting, without costs to either party; case remitted to Surrogate’s Court


source: Caselaw Access Project

author: DyemaN, J.:

license: Public Domain

text:
    Charles De Kay Townsend, Appellant, v. Emma M. Work, Impleaded with Albert C. Hendrickson et al., Respondents.

      Neglect to foreclose a mechanic’s lien — cancellation of the lis pendens.

    When the plaintiff, in an action brought for the foreclosure of a mechanic’s lien, unreasonably neglects to proceed with his action within the meaning of section 1674 of the Code of Civil Procedure, the owner of the premises therein described, after the dismissal of the complaint, is entitled to an order canceling of record the notice of Us pendens.

    Appeal by the plaintiff, Charles De Kay Townsend, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Queens on the 4th day of April, 1894, granting the defendant’s motion to have the lis pendens filed by the plaintiff canceled of record.

      Mortimer 8. Brown, for the appellant.

      Charles Fox, for the respondent.
   DyemaN, J.:

This is an appeal from an order directing the cancellation of the notice of lis pendens filed in the action.

The action is by the assignee of a mechanic’s lien to procure the foreclosure thereof.

A referee was appointed on the 29th day of November, 1892, to hear and determine the action, and the trial proceeded before him until the 29th day of March, 1893, when the complaint was dismissed as against the defendant Emma M. "Work, tbe owner of the premises.

After such dismissal no lien could be established against the property, and the only reason for the continuation of the action was to enable the plaintiff to appeal from the judgment to be entered upon the report of the referee when it should be made. In that situation the plaintiff was required to use active diligence to bring the trial to a close to the end that an appeal could be taken. Instead of activity there was a delay of one year before the order was made from which this appeal is taken. In the meantime the plaintiff received an admonition from the court when the order for the cancellation of the Us pendens was denied in December, 1892, with leave to renew the motion unless the plaintiff proceeded diligently with the action.

We think the plaintiff has unreasonably neglected to proceed in the action within the intention of section 1614: of the Code of Civil Procedure, and that the order should be affirmed, with ten dollars costs and disbursements.

Bbown, P. J., and Cullen, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: DyKMAN, J.:

text:
    Fred Baker, Respondent, v. Edward Brundage. Charles Collins, Appellant, v. Edward Brundage.

      Receiver — appointed in supplementary proceedings — execution not returned unsatisfied— a junior judgment creditor cannot take advantage of the irregularity — when, waived.

    The appointment of a receiver of a judgment debtor in proceedings supplementary to execution, instituted upon an affidavit which, states that the execution issued against the judgment debtor has been returned unsatisfied, when the fact is otherwise, will not be set aside upon the motion of a junior judgment creditor, as none but the judgment debtor can take advantage of such an irregularity, and where he has consented to the appointment of such receiver, he has thereby waived the same.
    Appeal by Charles Collins, a judgment creditor of Edward Brundage, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on tlie 3d day of March, 1894-, denying bis motion to vacate the supplementary proceedings and order appointing a receiver in the action brought by Fred Baker against Edward Brundage.

      JL. 8. Sterrit, for Charles Collins, appellant.

      A. II. F. Seeger, for the respondent.
   DyKMAN, J.:

The plaintiff in the first of these actions obtained a judgment against the defendant therein on the 16th day of January, 1893, for $1,145.90, and an execution was issued thereon to the sheriff of Orange county on the same day.

On the 27th day of July, 1893, proceedings supplementary to execution were instituted upon the judgment. The affidavit upon which such proceedings were based stated that the execution upon the judgment had been returned unsatisfied, but the fact was otherwise.

The judgment debtor was examined under the proceedings and a receiver was appointed by his consent.

On the 20th day of November, 1893, the plaintiff in the second action obtained a judgment against the defendant for $493, and execution thereon was issued to the sheriff of Orange county, which was returned unsatisfied on the same day. .

Thereafter, on the 8th day of February, 1894, proceedings supplementary to execution were instituted upon that judgment, which were adjourned to afford time for a motion on behalf of Collins, the plaintiff in the second judgment, to set aside the order appointing a receiver in the first action upon the ground that the execution issued upon the judgment therein had not been returned at the time when the proceedings were commenced.

The motion was denied and an appeal has been taken from the order of denial.

It is unnecessary to examine the irregularities set up by the appellant, because none but the judgment debtor can take advantage of them. ( Underwood v. Sutcliffe, 10 Hun, 453, and cases cited.)

The defendant himself has waived all irregularities by consenting to the appointment of the receiver in the first action.

The order should be affirmed, with ten dollars costs and disbursements.

Cullen, J., concurred; BeowN, P. J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: DtKMAN, J.:

text:
    Oliver H. Booth, Respondent, v. Hannibal Smith and Another, as Administrators, etc., of James Vassar Harbottle, Deceased, Appellants.

      Receiver of a pcvrtnership — when not appointed on the application of the surviving partner.

    A receiver will not be appointed of the partnership property of a firm, in an action brought by the surviving member thereof to procure an accounting, where the complaint contains no allegation showing any especial necessity for a receiver, and the appointment is opposed by the personal representatives of the deceased co-partner, who have not interfered with the surviving partner in closing up the affairs of the co-partnership, and are willing to allow him to exercise all. the rights with which he is clothed by law, and where all the books of account and property of the firm are in his possession.
    Appeal by the defendants, Hannibal Smith and another, as administrators, etc., of James Vassal- Iiarbottle, deceased, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Dutchess on the 30th day of December, 1893, as amended by stipulation, appointing a receiver of the partnership of M. Vassal- & Co.

      Smith & Smith, for the appellants.

      Frank B. Lovm, for the respondent.
   DtKMAN, J.:

This is an appeal from an order ajipointing a receiver of the partnership property of M. Vassal- & Co.

The plaintiff is the surviving member of that firm, and this action is brought to procure an accounting between him and the personal representatives of a deceased co-partner in respect to the dealings of the firm, and the complaint contains a prayer for the appointment of a receiver.

Tbe complaint contains no allegation showing any especial necessity for a receiver, and the appointment was opposed by the defendants, who are the personal representatives of the deceased co-partner of the plaintiff.

The plaintiff presented a' claim to the defendants against the estate of their intestate of about $9,000, which they rejected and offered to refer under the statute. The plaintiff did not accept the offer, but commenced this action.

The defendants have not interfered with the plaintiff in closing up the affairs of the co-partnership as surviving partner, and all the books of account and property of the firm are in his possession.

The defendants declare their confidence in the plaintiff and their willingness to allow him to exercise all the rights with which he is clothed by law as surviving partner.

The’'e is no suggestion that the property will be removed, or that it will he endangered in any way. It is in the undisputed possession of the plaintiff with the approbation of all parties interested.

Under these circumstances we can perceive no possible necessity for the appointment of a receiver, and the order should be reversed, with ten dollars costs and disbursements.

Bfown, P. J’., and Cullen, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Dykmak, J.:

text:
    David F. Wright, Appellant, v. Robert Bowne, Respondent.

      Irregular notice of motion — when it does not deprive the court of jurisdiction.

    file fact that a motion was noticed for argument at Schenectady and the order therein purported to he made at Brooklyn, does not deprive the court of jurisdiction although the notice of motion was irregular.
    Appeal by the plaintiff, David F. Wright, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of April, 1894, modifying an order made at the Kings County Special Term on the 21st day of October, 1893, granting the plaintiff’s motion for an order compelling the defendant to accept service of 'the plaintiff’s demurrer to a portion of the defendant’s answer, by ¡•striking therefrom the words “ The plaintiff to have $10, costs of tliis motion to abide the event of the action,” and vacating an order 'made at the Kings County Special Term on the 27th day of October, 1893, denying the defendant’s motion to resettle the order made the 21st day of October, 1893.
    A motion was noticed “ before the Hon. J. S. LaNDON at his Chambers, in the city of Schenectady, New York, on the 30th day of March, 1891, at 10 o’clock in the forenoon, or as soon thereafter .as counsel can be heard.”
    The order granted upon such motion was headed as follows: '“At a Special Term of the Supreme Court of the State of New York, for the county of Kings, at Chambers thereof, the 30th day of March, 1891.
    ■“Present — Hon. JunsoN S. LaNDON, Justice.”

      Henry L. Brcmt, for the appellant.

      Charles Sfrauss, for the respondent.
   Dykmak, J.:

This is an appeal from an order modifying a previous order and vacating another, both of which had been made by the same judge.

The last order seems to be just and the objection to it is technical •only.

While it is true that the motion was noticed for argument at Schenectady, yet the order purports to have been made at Brooklyn.

While the notice was irregular it cannot be said that the court .had no jurisdiction.

Besides the notice can scarcely be said to be a notice of motion before a court. It was a notice that an argument would be made in writing before a justice of the court to vacate one order previously made by him and modify another.

The order should be affirmed, without costs.

BkowN, P. J., and Culluk, J., concurred.

Order affirmed, with costs.


text:
    Albany City National Bank, Respondent, v. The Hudson River Brick Manufacturing Company, Appellant, Impleaded with Others.

      Action to foreclose a chattel mortgage — allegation of interest, or claim of interest, by a defendant — judgment justified thereby.

    In an action brought for the foreclosure of a chattel mortgage, an allegation that a defendant has or claims to have some interest in the mortgaged property is sufficient to show that such defendant is a proper party to the action, and in case of his failure to protect his interest in the subject-matter thereof, the complaint is sufficient to justify the plaintiff in entering a judgment of foreclosure and sale cutting off all rights which such defendant has therein which are subordinate to the plaintiffs mortgage.
    Appeal by the defendant, The Hudson River Brick Manufacturing Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff overruling the defendant’s demurrer to the complaint, entered in the office of the clerk of the county of Westchester on the 12th day of February, 1894, upon the decision of the court rendered at the Orange Special Term.

      Lent (& Herrick, for the appellant.

      J. Newton Fiero, for the respondent.
   DyKman, <1.:

This is an appeal from an interlocutory judgment overruling a demurrer to the complaint.

The action is for the foreclosure of a chattel mortgage, and the allegation in respect to the brick company is that it has or claims to have some interest in the mortgaged property.

The brick company demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action against it.

The statement already recited was sufficient to show that the brick company was a proper party to the action and it is not necessary for us to determine the relief to which the plaintiff is entitled under that allegation.

The defendant against whom it is made must protect its interest, and in case of failure to do so the complaint is sufficient to enable the plaintiff to take judgment of foreclosure and sale as against all rights which are subordinate to the mortgage.

Our conclusion is that the judgment should be affirmed, with costs.

■ CulleN, J., concurred; BeowN, P. J., not sitting.

Judgment affirmed, with costs.


author: DykmaN, J.:

text:
    Lillian Cauchois, Appellant, v. William Proctor, Respondent.

      Order requiring a plaintiff to reply to matter in avoidance, as distinguished from a counterclaim.

    Section 516 of the Code of Civil Procedure gives a legal discretion to the courts to direct a plaintiff to reply to new matter set up in an answer by way of avoidance as contradistinguished from a counterclaim, and the discretion should he exercised to promote the interest of justice.
    Where a decedent has set up matter in avoidance in his answer, after confessing the original agreement alleged in the complaint, it is his right to know whether the plaintiff intends to controvert the facts so alleged, and the discretion of the court is wisely exercised in making an order requiring the plaintiff to reply to the same.
    Appeal by the plaintiff, Lillian Cauchois, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk pf the county of 'Westchester on the 23 d day of February, 1894, granting the defendant’s motion requiring the plaintiff to reply separately to the second and third defenses contained in the answer.

      Roger M. Sherma/n, for the appellant.

      Theron G'. Strong, for the respondent.
   DykmaN, J.:

This is an appeal from an order made at the Special Term requiring the plaintiff to serve a reply to the second and third defenses set up in the answer of the defendant.

The action is to procure an accounting in relation to a partnership between the plaintiff and the defendant. The complaint alleges a partnership agreement between the parties, by which the plaintiff became entitled to one-half of the profits of the business, and one-half of the capital.

The answer admits the execution of the agreement by the parties, but alleges that nothing was done under the same.

For a second defense the answer alleges that the defendant and the husband of the plaintiff entered into an agreement of co-partnership for the purpose of carrying on a certain business, which is described, that the husband thereafter became insolvent and applied to the defendant to release him from the partnership and substitute his wife in his place, and an agreement to that effect was prepared and executed.

But that no partnership was formed between the plaintiff and defendant, and nothing was done under that agreement, and the agreement was canceled and destroyed.

That thereupon an agreement was made between the defendant and the husband of the plaintiff whereby the co-partnership between them was dissolved and the husband sold all his right and interest in the assets of the firm to the defendant, and agreed to withdraw from the firm, and that thereafter the husband ceased to have any interest in the business.

For a third defense the answer alleges that the plaintiff and her husband finally settled and adjusted all their matters of difference with the defendant, and for a valuable consideration executed and delivered to him a release under seal of all claims and demands whatsoever.

Thereujton the defendant made a motion to require the plaintiff to reply to the second and third defenses separately, and the motion was granted. From that order granting the motion the plaintiff has appealed to this court.

The motion was made and granted under section 516 of the Code of Civil Procedure, the first clause of which is as follows : “ Where an answer contains new matter constituting a defense by way of avoidance, the court may, in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter.”

That section commits a legal discretion to the courts to direct the plaintiff to reply to new matter set up in an answer by way of avoidance as contradistinguished from a counterclaim, and the discretion should be exercised to promote the interest of justice.

In this case tbe defendant lias set up matter in avoidance after confessing tbe original agreement, and it is bis right to know whether the plaintiff intends to controvert tbe facts so alleged. Such a course will avoid a surprise upon the trial and narrow the issues to be tried.

We think tbe discretion of tbe court was wisely exercised in making tbe order, and tbe cases of Mercantile National Bank v. Corn Ex. Bank (73 Hun, 78); Steinway v. Steinway (68 id. 430), support our conclusion.

Tbe order should be affirmed, with ten dollars costs and disbursements.

BeowN, P. J., concurred; CulleN, J\, not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: CüXLEN, J.:

text:
    Julia Ward, as Administratrix, etc., of Charles C. Ward, Deceased, Appellant, v. The New York and Harlem Railroad Company, Respondent.

      Right of a surface railroad to the use of its tracks, paramount but not exclusive — ■ duty of the di'iver of a car.

    The right of a surface railroad to the path of its tracks over the streets of a city is paramount hut not exclusive, and vehicles traveling the streets have the right to drive along the tracks, respecting the paramount right of the railroad cars, and using reasonable diligence to turn out of their way. The driver of a car is bound to give the driver of a vehicle a reasonable opportunity to get oil the track, and not to run him down.
    Appeal by the plaintiff, Julia Ward, as administratrix, etc., of Charles C. Ward, deceased, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of tbe county of Kings on the 12th day of March, 1894, upon the decision of the court, rendered after a trial at the Kings County Circuit, dismissing tbe plaintiff’s complaint and for costs.

      Edward If. Grout, for the appellant.

      William 8. Cogswell, for tbe respondent.
   CüXLEN, J.:

This is an appeal from a judgment in favor of tlie defendant entered on a nonsuit at Circuit. Tlie action was for causing tlie death of plaintiff’s intestate. Tlie complaint was dismissed at tlie. close of tlie wliole evidence.

We think this disposition of the case was erroneous. The deceased was killed by a collision on Center street, New York,, between a wagon he was driving and one of the defendant’s ears.

There were but two witnesses called to testify as to the occurrence; one for the plaintiff, a bystander, and the other for the defendant, the driver of the car. According to the testimony of the first witness, the vehicle of the deceased was in the railroad tracks about ten feet in advance of the car, both proceeding in the. same direction. The deceased started to turn his wagon out of the tracks, but before he had wholly accomplished this object the. car collided with his rear wheels. According to the evidence of the driver the wagon of deceased was alongside of the curb and between the tracks and the sidewalk, and as the car was proceeding on its route the vehicle was suddenly driven across the front of the car, the driver in vain endeavoring to stop the car in time to avoid the collision. If the driver’s testimony be true there was no negligence on the part of the defendant. But if the testimony of the plaintiff’s: witness lie credited, that the deceased was driving in the track, there was a question of negligence on defendant’s part to be submitted to the jury. The right of the defendant to the path of its tracks was only paramount, not exclusive. (Fleckenstein v. Dry Dock, etc., R. R. Co., 105 N. Y. 655.)

Yehicles traveling the streets have the right to drive along the tracks, respecting, however, the paramount right of the railroad cars, and using reasonable diligence to turn out of their way. The driver of the car was bound to give the driver of the vehicle a rear sonable opportunity to get off the track, and not to run him down.. If this, therefore, was the case of a “ rear-end ” collision, it was certainly a ease for the jury.

The defendant contends that the testimony of the driver of the car, that the deceased was driving across the front of the car, wasuncontradicted. We think not. The driver testified that he saw the wagon of deceased twenty-five feet in front of the car. The bystander says tliat lie. saw tlié deceased driving in tbe line of the car ten feet in front of it. The evidence of tlie driver, therefore, goes back of the time when the other witness first observed the deceased, but it might very well be argued that if the deceased started to cross in front of the car at a distance of twenty-five feet away he could not be found at a distance of ten feet away driving in the lino of the .track. The evidence presented a question of fact whether the collision occurred as the deceased was driving across the track, or when he was turning out of the tracks.

The judgment appealed from should bo reversed and a new trial ordered, costs to abide the event.

Beown, P. J., and Dykman, J.,’ concurred.

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


author: Cullen, J.:

text:
    Clara Harmon, Appellant, v. The Vanderbilt Hotel Company, Respondents.

      A complaint against a Corporation ■ — must allege whether the corporation is domestic or foreign — such defect cured, by motion and not by demurrer— such allegation is no part of the cause of action.

    A complaint in an action which states that the defendant is a corporation, and fails to state whether it is a domestic or foreign corporation, and if the latter under the laws of what sovereignty incorporated, is defective as not complying with the requirements of section 1775 of the Code of Civil Procedure; such defect is not a ground of demurrer hut is the subject of a motion to compel its correction.
    The cause of action in a complaint is represented by the facts which constitute the grounds of the claim against the defendant; the allegation therein that the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant.
    Appeal by the plaintiff, Clara Harmon, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of April, 1894, upon the decision of the court sustaining the defendant’s demurrer to the complaint, and modifying a ju’evious interlocutory judgment entered in said clerk’s office on the 12th day of March, 1894, and also from an order made at the Kings County Special Term and entered in said clerk’s office on the 30th day of March, 1894, modifying the decision of the court sustaining the defendant’s demurrer to the complaint.

      Henry D. Birdsall, for the appellant.

      Wm. Sulser and Wm. Armstrong, for the respondent.
   Cullen, J.:

This is an appeal from an interlocutory judgment entered upon an order sustaining a demurrer to the plaintiff’s complaint. The objection taken to the complaint is, that while it states that the defendant is a corporation, it fails to state whether it is a domestic or foreign corporation, and, if foreign, under the laws of what sovereignty incorporated.

That the complaint is defective in failing to make, such an averment, which is required by section 1775 of the Code, cannot be doubted. But the question here involved is, whether such defect is ground for demurrer or the subject of motion. It has been the subject of numerous conflicting decisions in this court and in the superior city courts. The exact point lias not been determined by the Court of Appeals or passed on in this General Term. We are, therefore, at liberty to decide it as a new question.

The grounds of demurrer are specified by section 488 of the Code. The only specified ground under which the demurrer in this case can be brought is that the complaint fails to state facts sufficient to constitute a cause of action, for the cause of action arose in this State, and, even if the defendant were a foreign corporation, the court would have jurisdiction of the subject of the action.

The cause of action is the facts which constitute. the grounds of the claim against the defendant. In Fox v. The Erie Preserving Company (93 N. Y. 54) it is said : “ The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant.” This dictum is not obiter as suggested, but strictly in point to the question involved in that case. It is true that the provisions of section 1775 of the Code were not under consideration in that case, and that the provision of that section that the complaint shall state the character of the corporation is mandatory. But section 481 is equally mandatory that the complaint shall specify the place of trial and the names of all the parties. For defects in these respects it is settled practice that demurrer will not lie, but that the remedy is by motion. If the complaint stated erroneously the character of the defendant, whether a domestic or foreign corporation, it would not affect the right of the plaintiff to recover. We do not see that an' allegation can be deemed part of a cause of action, the successful controversion of which cannot defeat the action.

The order appealed from should be reversed, with costs, and judgment given for plaintiff on demurrer, with costs, with leave to defendant to answer within twenty days on the payment of such costs.

Brown, P. J., and Dykman, J., concurred.

Judgment and order reversed, with costs, and judgment given for plaintiff on demurrer, with costs, with leave to defendant to answer in twenty days on payment of such costs.


author: Brown, P. J.:

text:
    Arthur I. Griggs, Plaintiff, v. John S. Brooks and Others, Defendants.

      General Term — laches in questioning its jurisdiction or the regularity of its procedure— it has no power to grant an extra allowance — substitution of an attorney — compensation of attorney — how determined.

    It is too late, after tlie lapse of ten years, to question- tlie jurisdiction of tlie General Term of tlie Supreme Court to render a j udgment or the regularity of its procedure on a motion to vacate sucli judgment, if it has remained unquestioned during such period, and no fraud or mistake is alleged against it, and no claim is made that the person against whom it was rendered did not understand its full scope and effect.
    The General Term has no power to grant an extra allowance to the successful party -upon a reference to determine the amount of compensation due from a party to an action to his attorney therein, hut where an order granting an extra allowance in such proceeding has stood unquestioned for upwards of ten years it is too late thereafter to change it.
    Where an attorney, who had an alleged claim against his client, a party to an action, accepted the terms of an order made in such action, which were a condition to the granting of his client’s motion for leave to substitute another attorney therein, and submitted his claim to the determination of a referee, although he might have brought an action for the same, and where such referee was appointed and his report confirmed upon the motion of such attorney, by thus acquiescing in the proceeding and submitting himself to the jurisdiction of the court he has waived the right to question the power which he invoked in his own behalf.
    The General Term of the Supreme Court has power to change an attorney upon the application of his client, under the provisions of rule 10 of the General Rules of Practice, and it also has the power, upon the application of the attorney, to determine the compensation to be made to him, by means of a reference, and upon the determination of the amount due by the referee judgment may be awarded therefor to the successful party.
    Motion made by Danfortli Becker on the 14th day of May, 1894, for an order vacating, canceling and setting aside a judgment and order of the Supreme Court in favor of the plaintiff and against the said Danfortli Becker, who was the plaintiff’s attorney in the above-entitled action, entered in the office of the clerk of the county of Kings on the 6th day of June, 1883, upon the report of a referee.

      Frederick A. Ward, for the motion.

      George Tifftmy, opposed.
   Brown, P. J.:

Upon the commencement of this action Danforth Becker was the attorney for the plaintiff. In November, 1881, the plaintiff made application to the court for leave to substitute a new attorney in Becker’s ]ilace. That application was granted upon condition that the plaintiff give a bond to pay any sum found to be due to Mr. Becker. The bond was given and a referee appointed to determine the amount due to the attorney for costs, counsel fees and disbursements.

Both parties appeared before the referee and the question of the attorney’s compensation ivas litigated. The referee made his report and it was confirmed with some modifications upon Mr. Becker’s motion. He was allowed two motion fees as costs, and as disbursements the referee’s fees, stenographer’s feesj witness fees and expense of serving subpoenas.

The plaintiff ivas directed to pay such compensation and costs and disbursements within ten days, and in default of payment Becker had leave to apply to the court for such process to enforce payment as the court should award.

The plaintiff appealed to the General Term, where the order of the Special Term was reversed, and upon such reversal the plaintiff was allowed the same costs that had been allowed Becker by the Special Term, together with his disbursements on the reference, liis costs and disbursements upon the appeal, and an extra allowance of $100, and it was directed that he have. judgment for such amounts, to be taxed by the clerk, and costs having been taxed judgment was thereupon duly entered.

An appeal to the Court of Appeals was taken from this order by Mr. Becker, but subsequently withdrawn.

Thereafter Mr. Becker removed from this State to Wisconsin, and in 1892 the plaintiff sued Becker in the Superior Court of Milwaukee county in that State upon the judgment .entered against him, and recently the Supreme Court of that State has decided against Becker, and directed judgment in favor of the plaintiff for the amount of the judgment rendered against him in this court, with interest.

The motion now made should be denied. The judgment' rendered in this court has been permitted to stand unquestioned for upwards of ten years. No fraud or mistake is alleged against it. Neither is there any claim or pretense that Mr. Becker did not understand its full scope and effect.

Having assailed its validity in the courts of Wisconsin and been ■finally beaten, he now returns to this court to attack its jurisdiction and the regularity of its procedure. It is too late now to raise these questions. The record shows that, upon the hearing of the motion to confirm the referee’s report, the plaintiff questioned the jurisdiction of the court on that proceeding to determine the amount due to Becker, and the objection was overruled. Having then successfully opposed that contention, and caused the court upon his motion to confirm the report, he cannot now, when the final decision has gone against him, be permitted to assert that the objection was well taken.

With the exception of the allowance of $100 the order of the General Term meted out to the plaintiff the same justice which at the Special Term had been awarded to the attorney, and while I am of the opinion that the General Term had no power to' grant the extra allowance, the order has stood unquestioned too long to now change it.

' Mr. Becker was not bound to accept the conditions of the order and submit his claims to the determination of the referee.

He might have brought an action for the sum due him had he so desired. But the referee was appointed and the report confirmed upon his motion. He thus acquiesced in the proceedings, and" submitted himself to the jurisdiction of the court, and it does not lie with him now to question the power which he invoked in his own behalf.

The power of the court to change an attorney upon the application of ,the client is not debatable. It is provided for by rule 10 of the General Rules of Practice.

The court also has power, upon the application of the attorney, to determine the compensation to be made to him in the summary manner adopted in this case. (Code Civ. Proc. § 1015; In re Knapp, 85 N. Y. 281-297 ; Greenfield v. The Mayor, 28 Hun, 320.)

And upon the determination of the amount due judgment may be awarded therefor to the successful party. (Austin v. Rawdon, 42 N. Y. 155 ; Greenfield v. The Mayor, supra; rule 27, General Rules of Practice.)

There is no merit in the application, and it is denied, with costs.

Dykman, J., concurred; Cullen, J., not sitting.

Motion denied, with costs and disbursements.


text:
    The Merchants and Manufacturers’ National Bank of Middletown, N. Y., Respondent, v. Ira T. Cummings, Appellant, Impleaded with Another.

      Collateral securities giren to a surety — enfoi'cible by the creditor.

    It is a settled rule in equity that the creditor shall have the benefit of any counter bonds or collateral securities which the principal debtor has given to the surety or persons standing in the situation of surety for his indemnity. Such securities are regarded as a trust fund for the better securing of the debt, and the execution of such trust will be compelled for the benefit of the creditor.

      Joseph Cummings made his note for $2,000 to the order of John L. Cummings, which the latter indorsed for the accommodation of the maker, and the note was discounted by the Merchants and Manufacturers’ Bank. As security for such indorsement Joseph Cummings made a second note to John L. Cummings for the same sum and payable at the same date, which note, before delivery, was indorsed by Ira T. Cummings for the purpose of securing the first-named indorser. John L. Cummings assigned this latter note to the bank which, upon default in the payment of the first note, brought an action thereon which was defended by Ira T. Cummings. On the back of the second note was written at the time of its delivery the words : “This note is given to and to be held by John L. Cummings as collateral security for his indorsement on my note, same tenor, date and amount, favor of said John L. Cummings * * * to be by him indorsed and delivered to the Merchants and Manufacturers’ National Bank of Middletown, * * * (signed) Joseph Cummings.”
    It was conceded that although John L. Cummings was the payee and Ira T. Cummings the indorser of the note in suit, that by the original agreement between the parties Ira T. Cummings was liable as indorser to the payee.
    Recovery was resisted on the ground that the payee, having paid nothing on account of the original note, no liability had accrued on the collateral note in suit.

      Held, that the plaintiff could compel John L. Cummings to assign the note in suit to him and could enforce its payment, and that the jtrdgment rendered thereon in its favor should be affirmed.
    .Appeal by the defendant, Ira T. Cummings, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 26th day of December, 1893, upon the decision of the court rendered after a trial at the Orange Special Term.

      Geo. II. Deolcer, for the appellant.

      Daniel Finn, for the respondent.
   Cullen, J.:

This is an appeal from a judgment in favor of the plaintiff, entered on the decision of the Special Term before which this cause was tried without a jury.

One Joseph Cummings made his note for $2,000 to the order of John L. Cummings, which the latter indorsed for the accommodation of the maker. The note was discounted by the plaintiff. As security for such indorsement Joseph Cummings made a second note to John L. Cummings for the same sum and payable at the same date which note before delivery was indorsed by the defendant Ira T. Cummings for the like purpose of securing the first-named indorser. John L. Cummings assigned this latter note to the plaintiff who ripon default in the payment of the first note brought this suit. Ira T. Cummings, the indorser, alone defends.

On the back of the second note was written at the time of its delivery this statement: This note is given to and to be held by John L. Cummings as collateral security for his indorsement on my note, same tenor, date and amount, favor of said John L. Cummings, * * to be by him indorsed and delivered to the Merchants and Manufacturers’National Bank of Middletown * * * (signed) Joseph Cummings.”

It is conceded that though John L. Cummings is the payee, and the defendant the indorser on the note in suit, still, by the original agreement between the parties, the defendant is liable as indorser to the payee. The recovery is resisted upon the ground that the payee has paid nothing on account of the original note, and that, therefore, no liability has accrued on the collateral note. We do not think it worth while to follow the elaborate discussions in the briefs of counsel as to the character of the note in suit as affected by the written statement on its back. We may admit that the note could not have been disposed of by the payee either before or after maturity, so as to constitute any obligation against the parties to it separate from the debt created by the original note discounted by the plaintiff. Still, we think the plaintiff was entitled to recover on it. John L. Cummings, the accommodation indorser, was in the nature of a surety on the debt of the plaintiff. The note in suit was a security to the surety. “ It is a settled rule in equity that the creditor shall have the benefit of any counter bonds or collateral securities which the principal debtor has given to the surety or persons standing in the situation of surety for his indemnity. Such securities are regarded as trusts for the better security of the debt, and Chancery will compel the execution of the trusts for the benefit of the creditor.” (Vail v. Foster, 4 N. Y. 312.)

It is not necessary that the surety shall have j>aid anything on account of his liability as such to give the creditor the right to enforce the collateral obligations. In fact, if the creditor could collect his claim directly from the surety, ordinarily he would have little need to seek these collateral securities. In Vail v. Foster (supra) the principal debtor gave his surety a bond and mortgage as security. The surety paid nothing on the principal debt, and became insolvent. The creditor was held entitled to foreclose the mortgage for the payment of his claim. The case of Crosby v. Crafts (5 Hun, 327; affd., 69 N. Y. 607) is still stronger. The debtor confessed judgment in favor of the surety for the amount of the debt. It was assumed that the estate of the surety was discharged from any liability by his decease, yet it was held that the judgment still remained a valid lien as security for the benefit of the creditor. It follows that the plaintiff could compel John L. Cummings to assign the note in suit to him and could enforce its payment.

The judgment appealed from should be affirmed, with costs.

DykmaN, J., concurred; BrowN, P. J., not sitting.

Judgment affirmed, with costs.


author: DyiímaN, J.:

text:
    Alice Crocker, Plaintiff, v. Lester A. Lewis, Respondent. James H. Watson and Another, Appellants.

      Doctyrine of Ms pendens — a judgment for costs is subsequent in lien to that of a mortgage given after the filing of the lis pendens — lien of a judgment in equity.

    The doctrine applicable to a notice oí Ms pendens is based upon the theory of public policy that, while a suit is pending, there should be no change in the existing state of thing's. Its purpose is to give effect to the right ultimately established by the judgment and its office is to carry into effect the rule that pending the suit nothing shall be changed.
    After the filing of a notice of lis pendens against real property, it is out of the power of the owner thereof to deprive the person filing the same of any right in' such property, by any alienation of .the property involved by mortgage or otherwise, and any person to whom such property is mortgaged subsequent to the filing of such Us pendens is bound by all proceedings in the action wherein the lis pendens was filed, subsequent to the filing thereof, to the same extent as if he had been made a party to the action.
    A notice of Us pendens was filed in an action commenced against the owner of certain real estate to obtain an adjudication that such premises, were subject to certain restrictive easements; subsequently, and during the pendency of such action, the owner of such premises mortgaged the same. The plaintiff was finally successful in the action, and a judgment in his favor, and for costs, was docketed after the recording of such mortgage.

      Held, that whatever the judgment in such action determined in rem touching such property was res adjudicata against such mortgagee; hut that such mortgage was a lien on such real estate prior to the judgment for costs recovered in such action.
    A court of equity will so control the legal lien of a judgment creditor as to protect the rights of those who have prior equitable interests in or liens upon such property or the proceeds thereof, and the lien of a judgment does not in equity attach upon the mere legal title to land existing in a defendant when the equitable title is in a third person.
    Appeal by tbe defendants, James II. Watson and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the Ith day of May, 1894, denying the defendants’ motion to confirm the report of a referee appointed, in surplus money proceedings.

      Josiah T. Marean, for the appellants.

      W. G. Beecher, for Lester A. Lewis, respondent.
   DyiímaN, J.:

This was a proceeding to determine disputed claims to the surplus money arising from the sale rxnder a judgment in an action to foreclose a mortgage.

The controlling facts are these: On the 30th day of April, 1890, the defendant Gollner executed a mortgage to the plaintiff covering certain property situated on Union street in the city of Brooklyn.

At this time Gollner had made a restricted agreement with the defendant Lester A. Lewis, whereby he had promised, for the consideration of $G,000, not to build flats or apartment houses in that neighborhood, but after he had obtained the title to the property in question he commenced the construction of flats thereon in violation of that agreement. Lewis began an action in the City Court of Brooklyn to restrain Gollner from the violation of his agreement, and to enforce his restrictive easement upon the property. The plaintiff’s mortgage was recorded on the 1st day of May, 1890, and he filed his Us pendens in that action against the property on the 5th day of May, 1890. Mortgages for $9,000 to the defendants Watson and Pittinger were made by Gollner and his wife upon the same property several months after the commencement of the action by Mr. Lewis, and the filing of his Us pendens therein, one of them being dated March 2, 1891, and recorded March 3, 1891, and the other being dated April 4, 1891, and recorded April 6, 1891. There is due -on these mortgages the sum of $7,442.52, with interest.

Gollner having made default in his payment upon the mortgage to the plaintiff, she brought this action to foreclose the same, making Lewis and Watson and Pittinger parties defendant. No answer having been put in, judgment of foreclosure and sale was entered October 20, 1891, and a sale of the premises was had thereunder.

At this time Lewis had upon the record no rights in this property, the City Court having dismissed his complaint, and his appeal was then pending in the Court of Appeals.

The sale occurred on the 21st day of November, 1891. On the 1st day of December, 1891, the Court of Appeals handed down a decision in the case of Lewis against Gollner, reversing the judgment of the court below and granting a new trial, costs to abide the event, and holding that Lewis had a restrictive easement in this property by virtue of his agreement and was entitled to his injunction.

Upon the announcement of this decision the purchaser at the sheriff’s sale under the judgment in foreclosure refused to complete his purchase, and a motion was made to compel him to do so. On this motion Lewis, Watson and Pittinger were represented, and the motion was denied. Thereafter Lewis retried his action in the City Court, and obtained a judgment, which was entered and docketed on the lltli day of May, 1892, perpetually restraining Gollner from erecting flats on the property or using the building thereon as flats and awarding Lewis judgment against Gollner for $490.26 costs.

Gollner appealed to the General Term and his appeal was dismissed with twenty-three dollars and seven cents costs. Thereafter Lewis moved in this action to open the default as against him, and to be allowed to come in and answer, setting up his equitable rights against the property. Iiis default was opened and he served his answer.

The case came on for trial at the Special Term and resulted in a supplemental judgment, which was entered herein on the 29th day of June, 1893, directing, among other things, that the decree entered herein in October, 1891, be amended so as to direct that a sale bf the premises herein be made subject to the rights and equities of the defendant Lester A. Lewis, and it was thereby decreed that such sale should be subject to the rights, equities and easements of the defendant Lester A. Lewis in and to said property particularly described in said judgment, as the same hare been adjudged and decreed by the judgment of the City Court of Brooklyn in an action wherein Lester A. Lewis was plaintiff and Ervin G. Gollner and Ada M. F. Gollner were defendants, and that was entered and filed in the clerk’s office of said county onvtke 11th day of May, 1892.

A resale was had of the property under the original judgment as amended and the supplemental judgment, and the property hid in for sufficient to pay off the mortgage herein and leave a surplus of $691.20. Claims were made against this surplus by Lewis as a judgment creditor under the decree, and hy Watson and Pittinger as mortgagees under their mortgages. The amount due to Watson and Pittinger upon their mortgages is a lien upon the surplus prior to any other lien, unless it be that of the Lewis judgments in the City Court against Gollner for the costs of that action in that court, and that judgment for costs was docketed subsequent to the making and recording of the Watson and Pittinger mortgages.

The appeal requires the determination of the effect of a notice of pendency of action, there being no question about the sufficiency and propriety of the notice or the filing thereof.

The question involved is under the control of section 1671 of the Code of Civil Procedure, which is this : Where a notice of the pendency of an action may be filed, as prescribed in the last section, the pendency of the action is constructive notice, from the time of so filing the notice only, to a purchaser or incumbrancer of the property affected thereby, from or against a defendant with respect to whom the notice is directed to be indexed, as prescribed in the next section. A person whose conveyance or incumbrance is subsequently executed, or subsequently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action.” ■

The language is plain, but it is not easily applied to this case. The theory of the doctrine of Us pendens is the public policy that, while a suit is pending, there is to be no change in the existing state of things. It is simply a rule to give effect to the right ultimately established by the judgment. Its office is to carry into effect the familiar legal maxim pendente lite nihil innovetur, pending the suit nothing shall be changed. It was, therefore, out of the power of the defendant Gollner, after the filing of the notice of Us pendens, to defeat Lewis by any alienation of the property involved by mortgage or otherwise, and Watson and Pittinger were bound by ai. the proceedings in the action of Lewis subsequent to the filing of the notice of Us pendens to the same extent as if they had been parties to that action. So much is clear. But how far does that rule reach ? It means certainly that Gollner’s title, which these two mortgages covered, was limited by the rights, equities and easements of Lewis. But does it also mean that the lien of the judgment for costs took effect as of the time of filing his notice, and so became prior to the lien of the two mortgages? A judgment becomes a lien by virtue of the statute, and not by virtue of the notice of lis pendens. It would seem to be inequitable to hold that the simple provision for the recovery of costs gives the judgment therefor a retroactive effect and subordinates the lien of the mortgages thereto. The object and requirement of the statute in relation to the effect of a notice of Us pendens would seem to be met and answered by holding the mortgage to be subsequent to the provision of the judgment for a restrictive easement in the property. Whatever the judgment determines in rem touching the property is res adjudieata against Watson and Pittinger as subsequent incumbrancers, but we discover no reason for holding that the judgment is to attach as a lien before it was actually docketed.

The respondents rely upon the case of Hull v. Spratt (1 Hun, 298), but that case was entirely dissimilar to this. The facts in that case were these: On the 2d day of September, 1870, the defendant Spratt agreed to sell certain premises to the defendant Stephenson, who was unable to perform the contract. In April, 1871, Stephenson commenced an action to compel the specific performance of the contract and filed a notice of Us pendens therein on the 29th day of April, 1871. On the 10th day of June, 1872, judgment was entered in favor of Stephenson, by which it was adjudged that he should recover of Spratt $1,350, for the mpney he had been paid by Stephenson upon his contract as a specific lien on the surplus money arising from a sale of the premises under a judgment for the foreclosure of a prior mortgage.

On the 18th day of May, 1871, the defendant Bowne recovered a judgment against Spratt for $4,452.58, which was duly docketed, the premises having been sold under a mortgage which was prior to both of those judgments. It was referred to a referee to report as to the proper, distribution of the surplus moneys arising from the sale. The referee reported in favor of Stephenson, and this report being confirmed, the defendant Bowne appealed to the General Term. The following is the first paragraph of the opinion of the General Term : “ The respondent’s judgment directed to be paid as a prior lien to the judgment recovered by the appellant out of the surplus moneys arising from the foreclosure sale, was recovered as a specific lien upon the fund. The action was^ brought to enforce the specific performance of a contract for the conveyance of the property, and a notice of Us pendens was properly filed in it before the appellant recovered his judgment, and as the property was sold under the foreclosure of a mortgage, superior to the rights of either of these parties, the respondent recovered a judgment for the money he had paid upon his contract as a specific lien on the vendor’s 'interest in the fund. This was equitable and just, because by the contract the vendor became in effect the trustee of the title for the vendee. The property was equitably his, so far as the purchase price was paid, and to that extent a judgment recovered against the vendor did not become a lien upon it.”

It was also said that the judgment of Bowne was subordinate to the action of Stephenson by reason of the filing of the notice of Us pendens, and that by the judgment in his favor so much of the fund as was necessary for that purpose was appropriated to this payment. So the judgment of Bowne, which was obtained about one year before that of Stephenson, was subordinated to the judgment of the latter, not by reason of the operation of the notice of Us pendens, but because by the terms of the judgment it was declared a specific lien upon the surplus money upon the equitable ground that Spratt, the vendor, became, by virtue of the contract, the trustee of the title for his vendee, Stephenson.

The decision was made in obedience to the rule that a court of equity will so control the legal lien of the judgment creditor as to protect the rights of those who have prior equitable interests in or liens upon such property or the proceeds thereof. (Wilkes v. Harper, 2 Barb. Ch. 338.) The lien of a judgment does not in equity attach upon the mere legal title to land existing in the defendant when the equitable title is in a third person. (Ells v. Tousley, 1 Paige, 280.)

Such was not the provision in the judgment in favor of Lewis. Had he been awarded a specific lien upon the surplus money his judgment would be entitled to preference in payment out of that fund.

The court decided the Sprcott case upon the peculiar provisions of the judgment, making it a specific lien upon the fund, and there was no intimation that the filing of a notice of lis pendens would have subordinated the lien of the Bowne judgment to that of Stephenson. There was no valid reason why it should. The Us pendens had performed its office; it had rendered the judgment effective against both Bowne and Stephenson. So it had here. Watson and Pittinger were bound by the judgment entered in the Lewis suit. Their rights under their mortgages are limited by the provisions in that judgment which restrained Gollner from the erection of fiats upon tire premises. We think the Us pendens can have no further or greater effect, and that the judgment for costs does not take precedence to the lien of the two mortgages of Watson and Spratt. Prior specific equitable liens are always entitled to a preference over a subsequent legal lien by judgment. (Matter of Howe, 1 Paige, 125; Dwight v. Newell, 3 N. Y. 187.)

And the allowance of the judgment to Lewis for costs, which is the general lien in preference to the specific equitable lien, would be at variance with that principle.

We shall yield all the effect the statute requires for a notice of Us pendens if we hold, the mortgagees are bound by all the proceedings in the Lewis suit to the same effect as if they were parties thereto. That is, their mortgages are subject to the conditions contained in the final judgment in that action. Their mortgages are specific, equitable liens. His judgment is a general legal lien.

Our conclusion, therefore, is that the order should be reversed, with ten dollars costs and disbursements, to be paid from tbe fund, and the motion to confirm the report of the referee granted, with twenty dollars costs, besides disbursements, to be paid from the fund also.

Brown, F. J., and Cullen, J., concurred.

So ordered.


text:
    George W. Johnson, Respondent, v. The Hardwood Door and Trim Company, Defendant. Herbert E. Millholen, Appellant.

      Motion to vacate an attachment — the merits of the case will not he decided on such motion — right of a junior' attaching creditor to intervene — defense he may interpose.

    The general rule is that, on a motion to vacate an attachment, the court will not try the case, and determine whether the plaintiff can ultimately succeed or not.
    An attachment against a foreign corporation will not be vacated upon the application of a junior attaching creditor, upon proof by affidavit that the original consideration, out of which the obligation in the suit brought by the senior attaching creditor sprang, was the purchase by the foreign corporation from the assignor of the plaintiff, of certain shares of the capital stock of such corporation, and that such purchase was, by the law of the domicile of such corporation, void.
    A junior attaching creditor may apply to intervene in an action brought by a senior attaching creditor against a foreign corporation, and on being made a defendant in such action, he may contest the validity of the plaintiff’s claim therein in the ordinary manner by answer and trial.
    Appeal by Herbert E. Millholen, a subsequent attaching creditor of the defendant, The Hardwood Door and Trim Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of January, 1894, denying his motion to vacate a prior attachment of the plaintiff in the action in which the motion was made.

      Robert F. Little, for the appellant.

      Frederick P. Bellamy, for the respondent.
   Cullen, J.:

This is ail appeal from an order denying the motion of the appellant, a junior attaching creditor, to vacate the plaintiff’s attachment. The action is on contract, and the defendant a foreign corporation. The appellant sought to vacate the attachment on proof by affidavit that the original consideration out of which the obligation in suit sprung was the purchase by tlie defendant, from plaintiff’s assignor, of certain shares of tlie defendant’s own capital stock, and he also, by proof, showed that such a purchase was, by the law of Pennsylvania (the domicile of defendant), void.

The motion was denied on the ground that the court would not, on such an application, pass upon the merits of the action.

We think that this position was correct. The general rule is that on a motion to vacate an attachment the court will not try the cause itself and determine whether the plaintiff can succeed or not. (Brown v. Wigton, 45 N. Y. St. Repr. 135; Sterns Paper Co. v. Johnson, 44 id. 916; Rowles v. Hoare, 61 Barb. 266.)

There are some exceptions to this rule, but this cause plainly is not one. On the contrary, the rule should here be given full force. The defendant is a foreign corporation and has not appeared in the action. If the attachment should bo vacated the plaintiff will not only be deprived of his security but also of the right to try his cause of action, for the court has acquired no jurisdiction of the defendant but by the attachment. The rights of the appellant can be entirely protected by another course. Under the authority of Lee v. Pfeffer (25 Hun, 97) he may apply to intervene in this action, and, on being made a defendant, contest the validity of the plaintiff’s claim in the ordinary manner, by answer and trial.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brown, P. J.,.and Dykman, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Cullen, J.: .

text:
    George Ganz, Respondent, v. The Edison Electric Illuminating Company of New York, Appellant.

      Demand for a change of venue — when served in time — when one of right — fractions of a dag not noticed by the courts.

    The general rule is that a court will not divide a day into fractions except for the purpose of guarding against injustice, and where a demand for a change of the place of trial of an action was not served until some hours after the service of the answer therein, hut was served upon the same day, the motion to change the place of trial will not be denied on that account, where the county in which the action was brought was not the proper county.
    The application for a change of the place of trial of an action from the county in which the action was brought, wherein none of the parties thereto resided, to the proper county, if the demand for the change of the place of trial be served in time, is one of right.
    Appeal by the defendant, The Edison Electric Illuminating Company of New York, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of February, 1894, denying the defendant’s motion to change the place of trial, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 5th day of February, 1894, substantially to the same effect.

      Arthur P. Itodghins, for the appellant.

      Oantor & Van SohaioTc, for the respondent.
   Cullen, J.: .

This is an appeal from an order denying defendant’s motion to change the place of trial. • The venue was laid in Westchester county, and the application was based on the ground that such was not the proper county, neither party residing therein. The facts were conceded, but the motion was resisted on the ground that the demand for change of place of trial was not served till some hours after the service of the answer though served upon the same day.

We think that the demand was served in time. The general rule is that the court will not divide a day into fractions except for the purpose of guarding against injustice. (Blydensburgh v. Cotheal, 5 How. Pr. 200 ; Jones v. Porter, 6 id. 286; Clute v. Clute, 4 Den. 243; Small v. McChesney, 3 Cow. 19.) “Where the ends of justice do not demand it the court will not inquire at what particular hour the process, pleadings or notices in a cause were served.” (Rogers v. Beach, 18 Wend. 533.) As the demand was served in time the application was one of right.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.

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

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs and disbursements.


author: CuLLJEN, J. :

text:
    The People of the State of New York, Respondent, v. John Eberspacher, Appellant.

      Illegality or fraud in bringing the accused before the court — not a defense on a criminal trial— against whom in civil actions — power of a magistrate to examine amd that of a court to try, distinguished.

    Where a complaint is made and a warrant properly issued and the court has jurisdiction of the offense charged, it is authorized to try and determine the complaint against the defendant whenever he is brought before the court, and it is no defense to a criminal prosecution that the defendant was illegally or forcibly brought within the jurisdiction of the court.
    In civil prosecutions the force or fraud used against the defendant in that respect is a good defense only against those who are parties to the fraud or force, but this rule has no application to trials for criminal offenses.
    There is a marked distinction between the power of a magistrate to hold an examination and that of a court which has acquired jurisdiction of the charge to try the accused. The first is merely a proceeding to detain for trial if indictment be subsequently found, and it may be that such a detention is to be considered a continuation of the original arrest, but such principle does not apply to the trial court.
    Appeal by tbe defendant, Jolin Eberspaoher, from a judgment of the Court of Sessions, held in and for the county of Dutchess, rendered on the 9th day of December, 1893, affirming the judgment of the recorder of the city of Poughkeepsie, convicting the defendant of the crime of assault in the third degree, with notice of an intention to bring up for review on such appeal “ the whole of the evidence and the exceptions therein taken, and that the said recorder did not have jurisdiction to try the said defendant, and that defendant was illegally brought within the county of Dutchess, and under protest, and that the evidence did not warrant the conviction and the sentence imposed by said recorder, and all exceptions taken on said trial to the rulings of said court, and that said court did not have jurisdiction of defendant, and from the affirmance of such conviction and sentence.”

      J. F. Barnard, for the appellant. ,

      Horace D. Hufout, for the respondent.
   CuLLJEN, J. :

This is an appeal from a judgment of the Court of Sessions affirming the conviction and sentence of the defendant by a Court of Special Sessions held by the recorder in the city of Poughkeepsie.

On a complaint against the defendant for assault in the third degree a warrant was issued by the recorder. The defendant was arrested in Westchester county, the warrant not being properly indorsed, and was denied his request to be taken before a magistrate of that county to- give bail. On being brought before the recorder he asked his discharge on the ground of the illegality of his arrest and the denial of his privilege to give bail before a magistrate in the county of his arrest. This application for discharge was denied, and thereupon the defendant pleaded not guilty, and was subsequently tried, convicted and sentenced. The only objection to the trial and judgment taken on this appeal is the illegality of the defendant’s arrest.

We think that the point as to the defendant’s arrest does not affect the validity of his trial and conviction. The complaint was made and a warrant properly issued, and the court had jurisdiction of the offense charged. It was, therefore, authorized to try and determine the complaint against the defendant whenever he might be brought before the court. The general rule is that it is no defense to a criminal prosecution that the defendant was illegally or forcibly brought within the jurisdiction of the court. In civil prosecutions the force or fraud, used against the defendant in that respect is a good defense only against those who are parties to the fraud or force. (Adriance v. Lagrave, 59 N. Y. 110.)

But this rule as to immunity from arrest has no application to criminal offenses. (Matter of Lagrave, 45 How. Pr. 301.)

The same principle was held in People v. Powe(4 Park. Cr. 253). (See, also, U. S. v. Caldwell, 8 Blatchf. 131; U. S. v. Lawrence, 13 id. 300.) In Crocker on Sheriffs ([3d ed.] p. 35) it is said: “ In general, where one is liable to be detained upon a criminal charge, the court will not inquire into the manner of his capture, * * * (but) will hold him to answer thereto, and leave the accused to his remedy against the person or officer avIio has acted under void process or who has exceeded his powers.”

This case is to be distinguished from that of People v. Shaver (4 Park. 53). In that case the recognizance was held void because taken by a justice of the peace in Fulton county for appearance in Montgomery County Sessions. The dictum that the recognizance could be avoided because the arrest in Montgomery county was illegal, was rrot necessary to the decision of the case, and seems opposed to the current of authority. But there is a marked distinction between the power of a magistrate to hold an examination and that of a court Avhich has acquired jurisdiction of the charge to try.

The first is merely a proceeding to detain for trial if indictment be subsequently found, and it may be that such a detention is to be considered a continuance of the original arrest, but such a principle would not apply to the trial court.

The judgment of the Court of Sessions, appealed from, should be affirmed.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed.


text:
    John T. Barnard, as Temporary Administrator, etc., of Ann E. Crouse, Deceased, Appellant, v. John F. Grantz and Others, Respondents.

      Failure to obey a judgment — contempt — another judgment in another action, how fa/r an excuse.

    In proceedings to punish a party for contempt it appeared that he was the defendant in an action in which a judgment was entered on the decision of the Court of Appeals, which directed him to deliver to the plaintiff in such action certain specified securities, which he had failed to do.
    It was also shown that in an action in the Supreme Court, to which the plaintiff in the prior action was not a party, such defendant was removed as trustee and directed to transfer the securities*in question to a trust company as a substituted trustee, and that in compliance with such judgment he had so transferred the securities, which transfer was made pending the prior litigation, and after a judgment in the trial court against the plaintiff, from which an appeal had been taken, and was then pending in the General Term, where it was subsequently reversed.
    The court denied the motion to punish such defendant for contempt.

      Held, that the order denying the plaintiff’s motion was erroneous ;
    That the plaintiff’s judgment was in full force and effect, and that, as such defendant had not been relieved from it, the plaintiff had the right to enforce it to'the same extent as any other judgment, and that his motion to punish such defendant for contempt should have been granted.
    Appeal by tlie plaintiff, John T. Barnard, as temporary administrator, etc., of Ann E. Crouse, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of April, 1894, denying the plaintiff’s motion to punish the defendant Clinton W. Starkey for contempt.

      E. B. Barnum, for the appellant.

      John J. Sullivcm, for Clinton W. Starkey, respondent.
   Cullen, J.:

The plaintiff recovered a judgment on the decision of the Court of Appeals that defendants forthwith deliver to him certain specified securities. "With this judgment the defendants fail to comply, and a motion is made to punish defendant Starkey for contempt. He answers that in an action in this court in New York county, to which this plaintiff was not a party, he (Starkey) was removed as trusfcee, and directed to transfer the securities to the People’s Trust Company, as substituted trustee; that, in compliance with such judgment, he so transferred the secui’ities. This transfer was made pending this litigation, after a judgment in the trial court against the plaintiff, which was then on appeal to the General Term, where it was reversed. The court denied the motion to punish for contempt, holding the plaintiff must seek relief in the New York action. This we think erroneous. The plaintiff’s judgment is in full force and effect. The defendant Starkey lias not sought to be relieved from it. The plaintiff has, therefore, the right to enforce it to the same extent as any other judgment. Had the transfer been made previous to the commencement of this action the defendant would have been compelled to plead that fact as a defense. If he failed to do so, and judgment went against him, he could not attack that judgment afterwards. The transfer being had pending the action, he could, after the decision at General Term, set up the fact by supplemental pleading. He could have secured perfect protection by application to have the new trustee made a party to this litigation, and by having the plaintiff made a party to the litigation in New York. Ho failed to take any steps to protect himself and now fails to comply with the judgment against him. "We do not say that he may not obtain relief now by applying to open the judgment in this action and obtaining an order in the New York action for the transfer of the bonds to the plaintiff. But it is clear to us that it is the defendant who is embarrassed by the two judgments and who must seek relief, and not the plaintiff. The plaintiff has the right to stand on his judgment, and, having recovered it, cannot be compelled to bring a new litigation.

The motion might well have been held over to permit the defendant to apply for relief, but the absolute denial of the motion to punish for contempt practically abrogates the plaintiff’s judgment.

The order appealed from should be revei-sed, with ten dollars costs and disbursements, and motion granted, but proceedings thereunder stayed for sixty days to enable defendant to apply for such relief in this action and in the New York action as he may be advised.

Brown, P. J., and Dykman, J., concurred.

So ordered.