text:
    HENRY B. KINGHORN, as Receiver of the Property of James M. Melville, Plaintiff and Appellant, v. EDWARD WRIGHT, JAMES M. MELVILLE and LOUISA, HIS WIFE, Defendants and Respondents.
    I. Fraudulent conveyance.

    1. Action by judgment creditors to set aside one.

      (a) Prior conveyances by judgment debtor of other property CANNOT BE ATTACKED WHEN THE ACTION DOES NOT COMPREHEND THE SETTING THEM ASIDE.
    1. Consequently the fact that the consideration for the conveyance sought to be set aside was paid by the grantee out of funds which can be traced as forming a part of the proceeds arising from the sale by the grantee of the judgment debtor of property which had been previously owned and conveyed by the judgment debtor to such grantee, is immaterial.

    1. Such proceeds cannot, in such an action, be shown tp be the property of the judgment debtor, by evidence showing that the deed made by the judgment debtor to his grantee of the property from the sale whereof, by such grantee, the same was derived, was fraudulent as to creditors.

      Before Speir and Freedman, JJ.

      Decided June 13, 1879.
    The plaintiff was appointed receiver of the property of James M. Melville in proceedings supplementary to execution issued on a judgment recovered by the First National Bank of Saugerties against said James M. Melville.
    The action was brought to set aside a deed made by said James M. Melville and wife to Edward Wright, of premises 307 West Twenty-second street, as fraudulent and void as against creditors. This deed was made in payment for advances therefor made by Wright to James M. Melville, and for a small amount of costs paid at the time of the conveyance. No other conveyance was sought to be set aside.
    Plaintiff claimed that the money out of which the advances were made was the money of James M. Melville himself.
    The judge at special term dismissed the complaint on the merits, with costs, holding, among other things, that, under the complaint and the evidence applicable to the issues joined by the pleadings, the money could not be regarded as that of James M. Melville.
    The original source of the money, and the mode in which it came to the hands of the defendant, Wright, appear in the. opinion of the judge before, whom the cause was tried at special term, which opinion was as follows:
    “Sedgwick, J.—It appears that the advances made by Wright to Melville, Maginley & Cooke, on Melville’s credit, were from sums deposited to Wright’s credit with Duncan, Sherman & Co. These funds were principally made up of a sum of $9,750, the proceeds of a check to Mrs. Melville’s order,, paid as a consideration of the sale of the Orange Lake Hotel property, standing in the name of Mrs. Melville, and the conveyance of this to Mrs. Melville was a part of the consideration paid to her for her conveyance of No. 37 West Twenty-eighth street-. This last property had been conveyed to her by her husband through a third person, December 16, 1873. This action did not comprehend the setting aside of these conveyances to Mrs. Melville as fraudulent. Nor are there any facts in evidence which would justify these being declared fraudulent as against the creditor whom the plaintiff represents. It did not appear that, at the time of the conveyance, December 16, 1873, the defendant, Melville, meant to defraud his future creditors, still less the creditor particularly represented here. But the conclusive consideration is that these conveyances are subsisting and valid, until competently they are adjudged fraudulent, and that they cannot be adjudged fraudulent- upon an examination of them as matters of evidence.
    “The deposit of Mrs. Melville’s check in Wright’s bank account- made the money Wright’s, and left her a creditor of Wright. There was no proof that she had ever given this money to her husband. The general evidence given by Mrs. Melville, as a witness for plaintiff, viz.: —that she gave to her husband her money whenever he requested it,—does not justify the conclusion that she had given this $9,750 to Melville, so that the advances by Wright were made out of Melville’s money.
    “It cannot be said that the relations between the parties and their transactions that regarded the disposition of Melville’s earnings do not present considerations in favor of plaintiff ; and upon these considerations the counsel for plaintiff has made an exhaustive and very able argument, but the conclusion must be that they do not amount to proof. And it- is further right to say that defendant claimed that the transaction alluded to did not call for explanation on the common issue in this case.

      “If the money did not belong to Melville, it does not change the legal effect of the action that Mrs. Melville was a creditor of Wright.
    “The complaint is dismissed with costs, but no allowance.”
    From the judgment of dismissal on the merits, with costs, entered upon the findings of facts and law made by the court below, plaintiff appealed.

      Coleridge A. Hart, attorney, and Horace C. Downing, of counsel, for appellant.

      Townsend Wandell, attorney, and Jacob F. Miller, of counsel, for respondent.
   Per Curiam.

The judgment should be affirmed, with costs, in the opinion of the learned judge below.


source: Caselaw Access Project

author: Speir, J.,

license: Public Domain

text:
    META VOLKMANN, et al., Plaintiffs and Respondents, v. HENRY FIELDMANN, Defendant and Appellant.
    Before Sedgwick and Speir, JJ.

      Decided November 3, 1879.
    Appeal from judgment, in favor of plaintiff.

      Edward S. Clinch, for respondent.

      Henry Wehle, for appellant.
   Speir, J.,

wrote for affirmance, with costs.

Sedgwick, J., concurred.


text:
    CHARLES L. WRIGHT, Plaintiff and Respondent, v. ADOLP LECOUR, Defendant and Appellant.
    Before Speir and Freedman, JJ.

      Decided November 3, 1879.
    Appeal from an order made by the judge before whom the case was tried, setting aside the verdict of the jury as against the evidence, and granting a new trial.
    The case involves no point of interest.

      F. J. Moissen, for appellant.

      Edwin M. Felt, for respondent.
   Speir, J.,

wrote for affirmance, with costs.

Freedman, J., concurred.


author: Freedman, J.,

text:
    In the Matter of the Petition of THE BOWERY SAVINGS BANK v. CAMILLE MAHLER, as Executor, and GEORGETTE GOLDNER, for an Interpleader.
    I. Ihtepleader.
    1. Moti/m for, by savings bank.

    The application of the bank, under Laws 1875, c. 371, § 25, was a motion in the action then pending against it, and not a special proceeding.
    Costs.—The order of interpleader allowed “ the costs of the petitioner herein.” Held, costs in the action to time of motion were meant. The order was not appealed from, and hence was binding on the cleric and judge who entertained the appeal from the taxation.
    Before Speir and Freedman, JJ.

      Decided November 3, 1879.
    Appeal from order re-adjusting petitioner’s costs.

      Carlisle Norwood, Jr., for petitioner, appellant.

      Downing & Stanbrough, for Georgette Goldner, respondent.
   Freedman, J.,

wrote, holding as above, and that the re-adjustment ordered being correct as to the amount, notwithstanding the assignment of an erroneous reason, the order appealed from must be affirmed, with costs.

Speir, J., concurred.


author: Per Curiam.

text:
    VEDDER VAN DYCK, as Receiver, Plaintiff and Respondent, v. JOHN McQUADE, Defendant and Appellant.
    I. Corporation.
    1. Savings Banks.

      (a) TRUSTEES AND DIRECTORS,. LIABILITY OF.
    (6) Payment of dividends or interest not earned.
    1. Trustees are liable for all such payments under a resolution declaring dividends passed with their co-operation or concurrence, or subsequently approved of by them.
    1. Mode of signifying concurrence or approval.

      Before Sedgwick, Speir and Freedman, JJ.

      Decided November 3, 1879.

      (a) Need not be by record of a vote “Aye” on the merits, but may be by a vita toce vote.
    1. This notwithstanding the terms of section 34 of chapter 371, of the laws of 1875.
    2. Joint and several,—The liability is several as well as joint.
    3. Liability rests on.
    1. Common law.
    2. If the measure of the liability for acts done after May 17, 1875, is to be sought for only in chapter 371 of the laws of 1875, then the liability may be rested on the provisions of that chapter.
    3. As to the Yorlcville Savings Sanie the liability independently of the common law may also, as to all dividends declared prior to May 17, 1875, if it be regarded as a moneyed corporation, be rested on sections 1 and 10, of article 1, title 2, chapter 18, part 1 R. S., and if not regarded as a monied corporation, then by virtue of the act of 1809 chartering it, upon section 2, title 4, chapter 18, part 1 R. S.
    4. Right of action by reason of such payment, accrues to whom.

      (a) To a receiver under a judgment dissolving the corporation and appointing a receiver rendered in action against the corporation by the people, &c.
    5. Set off, a consideration.

      (a) Sums assessed on, and paid by trustees into the corporation before the appointment of a receiver, for the purpose of paying such dividends or interest as were improperly declared and paid, cannot be set off or counterclaimed.

    Appeal by defendant from a judgment for $13,534.25, entered against him in favor of plaintiff on the report of the referee.
    This action brought to recover $9,096.45 and interest thereon, being the amount of fifteen dividends declared, credited and paid by the Yorlcville Savings Bank of the city of New York, of which plaintiff is receiver.

      Defendant was a trustee of said bank from its organization in 1869, until its dissolution ; and, until December 29, 1873, was its first vice president, and chairman of its executive committee ; and all said dividends were declared and paid with the knowledge and approval, and by the vote and direction of the defendant as a trustee and officer o’f said bank.
    The bank was insolvent during its entire existence, and its income was never sufficient to pay its running expenses ; and the moneys appropriated to pay said dividends were therefore mis-applied.
    The action was tried before Hon. Joseph S. Bosworth, as referee, who delivered the following opinion.
    “ J. S. Bosworth, Referee.—In Austin v. Daniels, 4 Denio, 299, 301, the court, said: ‘ Bank officers are but agents of the corporation, and if they transcend or abuse their powers, are as much responsible to their principal as are the agents of an individual. This ought to be regarded as too plain to require argument or authority, and I shall offer neither.’
    1 ‘ Perry, in his treatise on the Law of Trusts and Trustees, enunciates as rules well settled, that the directors of corporations are trustees and agents of the shareholders and of the corporation (§ 207) ; that a trustee cannot sleep on his trust; that the law knows no such person as a passive trustee ; that if a loss occurs from any want of attention, care or diligence, of the trustee, after he accepts the office of trustee, he may be held responsible for not taking such action as was called for (§ 266); that if a person assumes to act as trustee and becomes possessed of the trust fund, and misapplies it, he cannot protect himself by showing that he was not legally a trustee (§ 846); and that executors and administrators will be answerable for a breach of trust of their testator, though they may have distributed the assets without notice of the claim ; unless the distribution was made by order of the court, or the time limited for suits against them has expired (§ 846).
    Robinson v. Smith, 3 Paige, 222, 231; Cunningham v. Pell, 5 Id. 607, 612; Butts v. Wood, 37 N. Y. 317; Osgood v. Laytin, 3 Abb. Ct. App. Dec. 418, and Osgood v. Ogden, Id. 425, affirm these principles, illustrate to the same extent their application and the rights of action in favor of a receiver, which he can enforce.
    “The act incorporating the Yorkville Savings Bank (L. 1869, p. 788), names the defendant as one of the corporators (§ 1), and as one of the first trustees of that corporation (§ 4), and he continued to act as such trustee, until the appointment of the plaintiff as receiver herein.
    “The dividends alleged in the complaint to have been declared and paid, were declared by the co-operation, concurrence and approval of the defendant.
    “There was no surplus profits at the time these dividends were declared, out of which they or any part thereof could be paid, and this fact was well known to the defendant. His misconduct, by willfully co operating with other trustees to effect, and in effecting a declaration and payment of dividends, when there was no surplus profits out of which they could be paid, is clearly and fully established. I think, therefore, that independent of any statutory enactments, he is liable to the corporation for this misconduct, and that the receiver can enforce that liability.
    “I think the defendant is, also, clearly liable by force of statutory provisions, whether this corporation is or is not a moneyed corporation, within the meaning of that term, as defined by the Revised Statutes.
    “ Section fourteen of the act incorporating this corporation (L. 1869), declares that ‘ the corporation hereby created shall be subject to the provisions of the eighteenth chapter of the first part of the Revised Statutes, and all other general laws affecting savings institutions, so far as the same are applicable. . .
    “Section 2, of title 4, of that chapter (1 R. S. 601), declares that it, shall not be lawful for the directors or managers of any incorporated company in this State to make dividends, excepting from the surplus profits accruing from the business of such corporation, . . . and in case of any violation of the provisions of this section, the directors, under whose administration the same may have happened, except those who may have caused their dissent therefrom to be entered at large on the minutes of the said directors at the time, or were not present when the same did happen, shall, in their individual and private capacities, jointly and severally be liable to the said corporation, and to the creditors thereof, in the event of its dissolution, to the full amount of the capital stock of the said company so divided, withdrawn, paid out or reduced, with legal interest on the said respective sums, from the time such liability accrued, and no statute of limitations shall be a bar to any suit at law or in equity, against such directors for any sums for which they are made liable by this section.’
    “ This language is so clear and precise, that there can be no doubt that it includes a corporation like the Yorkville Savings Bank.
    “ Such continued to be the law up to the time that chapter 371 of the Laws of 1875 (passed May 17, 1875,) took effect and still continues "to be applicable to the directors or managers, of savings institutions, unless, as to them, it is repealed by the act of 1875. Section 56 of the act (Id. 416) repeals several enumerated statutes, relating especially to savings banks. No part of the Revised Statutes is, in terms, repealed. If repealed, it must be because some provisions of the act of 1875, relating to its trustees or managers, are in direct conflict with the part of the Revised Statutes above quoted. I do not discover anything in the act of 1875 which is necessarily of this character. If it is claimed that section 52 (Id. 416) is of this character, it may be answered, as I think, that that section only relates to the powers, privileges, duties and restrictions conferred upon the corporation itself, and confirms the powers, rights and privileges of the corporation and subjects the corporation to the duties, restrictions and liabilities imposed by that act. It does not in terms, and in my opinion it does not by necessary implication repeal so much of the act of 1869 as imposes upon the trustees the liability above stated, for making dividends, when there are no surplus profits with which to pay them. Hence, it is clear, that if this corporation is a moneyed corporation, the trustees are liable for all dividends declared prior to the passage of the act of 1875, under sections 1 and 10 of 1 R. S. 591, and if not a moneyed corporation, then for all such dividends under section 2 of 1 R. S. 601 (Vide Id. § 11, p. 605).
    “ And even if the ground and measure of the liability of a trustee of a savings bank, for acts done after the act of 1875, are to be sought only on that act, then it will be found that section 33 of that act (p. 411) makes it the duty of the trustees of such corporation to regulate the rate of interest not exceeding six per cent, per annum, upon the deposits therewith, in such manner, that depositors shall receive, as nearly as may be, all the profits of such corporation, after deducting necessary expenses.
    “Section 34 declares that no dividends or interest shall be declared, credited or paid, except by authority of a vote of the board of trustees, duly entered upon their minutes, wherein shall be recorded the ayes and noes upon such vote, and whenever any interest or dividends shall be declared and credited in excess of the interest or profits earned and appearing to -the credit of such corporation, the trustees voting for such dividends shall be jointly and severally liable to the corporation for the amount of such excess so declared and credited.
    “The words ‘interest’ and ‘dividends’ are used in this act, as equivalent expressions. I cannot accede to the proposition that only such trustees are liable as appear by the minutes to have voted ‘ aye,’ in favor of making a prohibited dividend. Nor that those who caused it to be declared, if paid in pursuance of such declaration, are not liable, because it may have been declared at a meeting when less than a legal quorum was present. All who voted to make the declaration, though they may have voted viva voce, and all who subsequently, at a meeting of the board, approved of such act, though they approved of it by a viva voce vote, are liable ; they voted for it within the meaning of the provision, imposing the liability named for the misconduct specified. I think, therefore, that the defendant is liable by the rules of the-common law, and is liable under and by force of the statutory law.
    “ I think the right of action upon this liability of the trustee is vested in the receiver.
    “By the act of 1875, the liability imposed is declared to be a liability to the corporation. There can be no question that such a right of action is vested in the receiver.
    “The liability created by section 2, of title 4, of chapter 18, of the Revised Statutes (vol. 1, p. 601), is declared to be a liability to the said corporation and to the creditors thereof, in the event of its dissolution.
    “ The provision of law, under which, in Osgood v. Laytin (supra) it was held that an action could be maintained by the receiver, provided, that ‘any dividend so made shall subject each of the stockholders receiving the same, to an individual liability to the creditors of such company, to the extent of such dividends received by him’ (4 Edm. R. S. 210).

      “The act last cited, subjects each of the stockholders receiving a dividend, to an individual liability to the creditors of such company ; though the liability is several, it is to the creditors generally, and not to each creditor. The liability imposed by the Revised Statutes, though several as well as joint, is to the creditors thereof generally ; that is, to the creditors of the corporation, in the evept of its dissolution. The reasons assigned by the court, Grover, J., in Osgood v. Laytin, 3 Abb. Ct. App. Dec. 424, at the foot of that page, for holding that the receiver might maintain the action in that case, apply with like force to this, and that case is an authority in point, in favor of the receiver’s right to maintain this action.
    “Hence, it follows that whether the liability throughout is declared by the Revised Statutes, or whether his liability as to acts done since the passage of the act of 1875, is to be determined and measured by the provisions of that act, the right of the receiver to recover seems to be free from reasonable doubt. And it also follows, that the defendant is liable in this action, for the amount of the dividends declared by his concurrence and co-operation.
    “I think there is nothing in the defense of nonjoinder of parties set up in the answer. Even if it be open to the defendant to avail himself of the alleged defect by answer, it appears that some of the persons alleged to be co-trustees with the defendant, were not trustees when some of the dividends were declared and credited, and are not liable therefor ; and the liability of the trustees is several as well as joint.
    “The alleged counter-claim is unavailable. The action sounds in tort. It is brought to enforce a liability caused by the misconduct of the defendant. As to the sums assessed upon, and paid by the trustees into the bank, the liability of the corporation therefor, if it be liable to pay the same, arises upon contract.

      “If, by the terms of the resolution, by which these moneys were assessed and paid, the corporation is under no liability to re-pay the same, unless /‘the profits of the bank warrant it,” then the corporation is not liable therefor. The profits of the bank have never warranted the re-payment of any part of these moneys, and, as the institution is dissolved, never can warrant it.”

      Alexander Thain, attorney, and of counsel, for appellant.

      Ely & Smith, attorneys, and Frelingh H. Smith, of counsel, for respondent.
   Per Curiam.

Judgment affirmed with costs.


text:
    CHARLES A. CAMERON, Plaintiff and Respondent, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Defendant and Appellant.
    I. Appeals. Laws relative to taking of.

      No appeal from.

      (a) An order overruling a demurrer to the complaint and giving leave to answer.
    See Garner v. Harmony Mills, 45 N. Y. Super. Ct. 148.
    2. Final judgment.

    (<t) Interlocutory judgment, when not beviewable on appeal FROM FINAL JUDGMENT.
    1. When the notice of appeal from the final judgment does not specify that the interlocutory judgment is appealed from.

      Code,- §§ 1801, 1816, 1317.
    (i) What is not a final judgment for the purposes of
    APPEAL.
    ’ When a demurrer to .the complaint has been-overruled, with leave to answer, and defendant does not answer, and thereupon it is, on motion, adjudged that plaintiff recover his damages, that the same be assessed by a jury, and that a •writ of inquiry issue for that purpose, and thereupon the writ issued and the damages were assessed, and judgment was entered by the clerk against the defendant for the damages so assessed, and costs.
    Before Sedgwick, Freedman and Speir, JJ.

      Decided November 11, 1879.

      Held,

    That the judgment was not such a final judgment as the law provides for appeals.
    In this action an order was made overruling a demurrer to the complaint and giving defendant leave to answer. From this order defendant appealed to the general term.
    Wo answer having been served, an order was, on March 14, 1879, entered, on plaintiff’s motion, made on notice, adjudging that plaintiff recover of defendant the damages by him sustained on account of the cause of action alleged in the complaint; and further ordering that said damages be assessed by a jury, and that a writ of inquiry be for that purpose issued, directed and delivered to the sheriff of the city and county of Wew York.
    A writ of inquiry was accordingly issued, and the damages were clu'ty assessed thereunder, on notice to defendant. Thereafter, the clerk of the court, on March 81, 1879, entered judgment against defendant for the amount of the damages so assessed, and the costs, as adjusted.
    Defendant appealed to the general term from the judgment of March 31, 1879, but did not specify in the notice of appeal that it appealed from the order of March 14, 1879.

      Alexander & Green, attorneys, and Charles B. Alexander, of counsel, for appellant.

      Grimball & Tunstall, attorneys, and R. B. Tunstall, of counsel, for respondent.
   Speir, J.,

wrote for affirming the judgment of March 31, 1879, with costs, and dismissing the appeal from the order of March 14, 1879, on the grounds stated in the head-note.

Sedgwick and Freedman, JJ., concurred.


text:
    ANDREW J. POST, et al., Plaintiffs and Appellants, v. GEORGE H. CAMPBELL, et al., Defendants and Respondents.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided November 11, 1879.
    This was an action to recover the value of certain materials furnished. The question involved was, whether the materials were included in the materials required to be furnished by the terms of a written contract, or were in addition thereto. The cause was tried before a referee, who found that they were included within the contract. From the judgment entered on his finding, plaintiffs appealed.

      Wilson & Wallis, attorneys, and William G. Wilson, of counsel, for appellants.

      Thomas M. Tyng, of counsel, for respondents.
   Speir, J.,

wrote for affirmance.

Sedgwick and Freedman, JJ., concurred.


text:
    JONATHAN OGDEN, Plaintiff, v. JEREMIAH DEVLIN, et al., Defendants.
    Before Curtis, Ch. J., and Freedman, J.

      Decided November 11, 1879.
    I. Attorney.

    1. Substitution op.
    (a) A client has the right, of 1m own volition, to change his attorney of record.
    1. This, though no complaint is made against the attorney, and though the object for which the benefit of his services was required has been accomplished.
    1. Conditions imposed on granting substitution in SUCH CASE.

      (a) The attorney must be fully paid for his services, both as attorney and counsel.
    2. Form op order in such case.
    Appeal by defendants from an order denying their motion for the substitution of an attorney in place of the one originally retained by them.
    The original attorney was the respondent.
    The appeal is from an order denying defendants’ motion for a substitution of attorney. On the motion it appeared that no complaint was made against the attorney, and that the object for which the benefit of his services was required had been accomplished.

      Frank J. Dupignac, for appellant.

      H. B. Bradshaw and J. S. L. Cummins, for respondent.
   Freedman, J.,

wrote for reversal, holding the proposition stated in the head-note ; and further holding that defendants’ motion should be granted by, the entry of an order providing that it be referred to a referee to ascertain and determine what amount, if any, is due to the attorney of record for his services rendered as attorney and counsel, and that, upon the coming in and confirmation of the report of said referee, and the payment by the defendants of the amount so reported due, if any, and the expenses of said reference, Frank J. Dupignac be substituted as the attorney for the defendants in the place and stead of Charles Gr. Dahlgren.

Curtis, Ch. J., concurred.


text:
    ALBERT L. COLES, Plaintiff and Respondent, v. ALBERT COLES, Defendant and Appellant.
    Before Curtis, Ch. J., and Freedman, J.

      Decided November 11, 1879.
    Action brought to recover the balance found due the plaintiff on the dissolution of a partnership between him and defendant. The answer, among other things, set forth the causes which prompted the defendant to dissolve the partnership. On motion, the allegations in these respects were stricken out as irrelevant.
    Defendant appealed.

      Sackett & Lang, attorneys, and of counsel, for appellant.

      Edward S. Clinch, attorney, and of counsel, for respondent.
   Per Curiam.

The order appealed from should be affirmed with costs.


text:
    MARY E. SACIA, Plaintiff and Respondent, v. NEAL W. O’CONNOR, Defendant and Appellant.

    Before Curtis, Ch. J., and Freedman, J.

      Decided November 11, 1879.
    Appeal by defendant- from an order denying his motion for a new trial and for the making of one Lockwood a party defendant.
    The action is ejectment. It appeared in the papers that defendant withdrew his answer, and that judgment had been taken by consent.

      A. J. Roe, attorney, and of counsel, for appellant.

      Ira D. Warren, of counsel, for defendant.

       Decision in this case affirmed by court-of appeals, December 16, 1879; 9 Weekly Dig. 397.

   Per Curiam.

Order affirmed with costs.


text:
    GEORGE W. KIDD, et al., Plaintiffs and Appellants, v. TROY PHILLIPS, et al., Defendants and Respondents.
    I. Judgment.—Practice.

    1. Entry on irregularity in.

      (a) An entry within four days from the filing of the decision (the cause having been tried at special term, before a judge without a jury) and service on the opposite attorney of a copy thereof, with notice of its filing, is irregular.

    (1) Irregularity in this respect, when not cause nor SETTING ASIDE THE JUDGMENT.
    1. Not prejudiced. When the party against whom the judgment was entered lias not been prejudiced thereby, it will not be set aside for such irregularity.

      II. Fraudulent conveyances.

    1. Authorities bearing o.n, cited by counsel.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided November 11, 1879.
    This action was brought to set aside a conveyance as fraudulent and void as against creditors. Judgment was rendered against plaintiffs.
    The action was tried before the court without a jury. Judgment was entered before the expiration of four days from the filing of the decision, and the service on plaintiffs’ attorney of a copy thereof, and notice of the filing. Plaintiffs moved to set aside the judgment for irregularity in this respect, which was denied, on the admission that plaintiffs had in no wise been prejudiced. Plaintiffs appealed from the judgment, and from the order denying the motion to set it aside.

      Thomas J. Tilney, attorney, and of counsel, for appellant, on the appeal from the order, cited:
    Marvin v. Marvin, decided by the court of appeals, November 19, 1878, reported in 7 Weekly Digest, 370. On the appeal from the judgment, he cited, to the point that a fraudulent conveyance cannot be saved by the fact that it was given for an honest debt: Drury v. Cross, 7 Wall. 302; Johnson v. Whitwell, 24 Mass. 74; Graham v. Furber, 14 Com. B. 419; Devries v. Phillips, 63 N. C. 53; Pulliam v. Newberry, 41 Ala. 168; Goodhue v. Berrien, 2 Sandf. Ch. 631; Gans v. Renshaw, 2 Penn. 36; Rutland v. Snow, 20 Conn. 27; Waterbury v. Sturtevant, 18 Wend. 353; Solomon v. Moral, 53 How. Pr. 342; 24 N. Y. 623; 7 Wend. 436; 58 Barb. 625. And to the point that fraud is commonly made out, not by direct proof, but by circumstantial evideuce, he cited: Wehrting v. Sturtevant, 18 Wend. 361.

      Otto Horwitz and E. M. Cohen, of counsel, for respondents, on the appeal from the order, cited:
    Valentine v. Haydecker, 8 Weekly Digest, 478. And on the appeal from the judgment he cited : Laidlaw v. Gilimore, 47 How. Pr. 67, affirmed by court of appeals, 1874; Newman v. Cardell, 43 Barb. 448; Loeschick v. Hatfield, 4 Abb. Pr. N. S. 210; Read v. Livingston, 3 Johns. Ch. 481; 5 Cow. 67; 2 R. S. 137, § 4; 10 N. Y. 190; Id. 227; Carpenter v. Curren, 42 Barb. 300; Waterbury v. Sturtevant, 18 Wend. 352; Auburn Exchange Bank v. Fitch, 48 Barb. 344.
   Per Curiam.

Judgment and order appealed from affirmed, with costs.


author: Curtis, Ch. J.

text:
    JAMES MULDOON, et al., Plaintiffs and Respondents, v. WILSON H. BLACKWELL, et al., Defendants and Appellants.
    Before Curtis, Ch. J., and Freedman, J.

      Decided December 1, 1879.
    Appeal by the defendants from a judgment rendered upon the report of a referee.

      W. T. Birdsall, for appellants.

      J. A. Shoudy, for respondents.
   Curtis, Ch. J.

The action is for goods sold and work and labor done. The answer sets up failure to perform, and matters by way of recoupment. Upon the close of plaintiffs’ case, it was submitted to the referee, who found for the plaintiffs. The evidence appears to sustain the findings of fact presented in the report of the referee. The exceptions of the defendants are not sufficient to call for a new trial.

The judgment appealed from should be affirmed with costs.

Freedman, J., concurred.


text:
    ERIE PRESERVING COMPANY, Plaintiff and Respondent, v. JONATHAN PEARSALL, et al., Defendants and Appellants.
    Before Curtis, Ch. J., and Freedman, J.

      Decided December 1, 1879.
    A contract between "an agent of a manufacturing house, and one proposing to buy the goods sold by him as such agent, by which, payment for the said goods was to be made by supplying said agent with merchandise dealt in by the buyers,—i. e., groceries,—the parties dealing with such agent being aware that he was acting for others, Held, one which requires special authority or ratification.
    Appeal from judgment entered upon a verdict rendered pursuant to the direction of^the court, and from order denying defendants’ motion for a new trial on the minutes.

      Ambrose Monell, for appellants.

      Charles T. Carnes, and E. Louis Lowe, for respondent.
   Freedman, J.,

wrote for affirmance with costs.

Curtis, Ch. J., concurred.


text:
    JOHN J. CORBETT, Plaintiff and Appellant, v. LOUIS DE COMEAU, Defendant and Respondent.

    Before Curtis, Ch. J., and Freedman, J.

      Decided December 1, 1879.

      1. Order compelling plaintiff's attorney to disclose residence, occupation and business address of plaintiff, and staying proceedings.

    A court may in a proper case make suck, an order (Corbett v. Gibson, 18 Hun, 49).
    Appeal from order compelling plaintiff’s attorney to disclose residence, occupation, and present address of plaintiff, and staying plaintiff’s proceedings until full compliance with the order.
    The action is for libel, and was commenced by service of a summons—without a complaint.
    Two similar applications have been made herein, the first of which was denied on the ground that no complaint had been served, and the second on the ground that “ some specific object at least should be shown.” The affidavit on behalf of defendant states that the complaint has been served, and further, “ It is sought to make a new application upon facts raising a presumption that the plaintiff is a non-resident, and is not cognizant of these proceedings, and for the specific object hereinafter stated, viz:
    ‘ ‘ To examine the plaintiff, either before trial or upon the trial, if in the country, or by commission if he is abroad, and show:
    “ 1. Whether or not the plaintiff is a willing party to this action, and the real party in interest.

      “2. That the plaintiff is in fact what it is alleged that he has been charged to be (?'. e., insane).
    “3. That the allegations alleged to be made by the defendant in the complaint herein are, if proved to have been made, true.

    “And further, to secure, if possible, the attendance of the plaintiff upon the trial, in order that the jury may have an opportunity of judging of the plaintiff by his manner and appearance upon the stand, and lastly, to obtain security for costs in case it appears that the plaintiff is in fact a non-resident.”
    The judge below, in rendering his decision on the question herein, made the following memorandum:
    Speir, J.—Upon an examination of the papers and the opinion of the general term of the second district, in the case of Corbett v. Gtibson, I am not disposed to review the decision of that court.
    Let an order be entered making the same disposition in this case on notice.

      W. Frank Severance, for appellant.

      Coudert Bros., for respondent.

       See ante, p. 588.

   Per Curiam.

The order appealed from should be affirmed with costs.


text:
    DAVID DOWS, et al., Plaintiff and Respondent, v. HENRY P. KIDDER, et al., Defendants and Appellants.

    I. Sale and delivery on condition that title shall not pass until payment.—Rights of vendor.—Liability of purchaser from vendee.— Action.—Party.—Defense.
    1. Purchaser for value from vendee.

      (a) WHO IS NOT, SO AS TO BE PROTECTED AGAINST VENDOR.
    1. K. having agreed with A. (the vendee) to buy the bills of exchange on August 12, for $36,000, drawn against several bills of lading, including those of the property in question, paid A. $17,000, on account of the purchase, andfor the balance, say $18,000, drew Ms check toA.'s order, which A. took and immediately indorsed back to K., as security for what he (A.) might be found to owe him (AT.) on previous transactions, and K. passed it to the credit of A. in that shape, and thereafter received from A. the bills of lading against which the bills of exchange were drawn. Matters thus stood, as between K. and A., when the vendors to A. notified K. that the corn was' theirs, and demanded a return of it, or that K. should account for its value or proceeds.
    Held,
    that K. was not a purchaser for value as to the $18,000.

      (b) CONVERSION BY PURCHASER FROM VENDEE.
    1. What will constitute.
    1. If K., before demand on him, had transferred the title and control of the goods, it constituted a conversion, because he must, in that case, have himself received credit for them.
    (c) ACTION, WHAT PROPER IN SUCH CASE.
    1. Trover. An action in nature of trover is.
    1. Party, who not necessary.
    A. is not a necessary party.
    2. Defense, other parties claiming, when not.
    The facts that, after plaintiff's demand, other parties made similar claims in respect to the goods covered by the other bills of lading, present no defense.
    Before Curtis, Ch. J., and Freedman, J.

      Decided December 1, 1879.
    This is an appeal by defendants from a judgment entered against them in favor of plaintiff for $17,652.12, upon the report of a referee.
    The facts of the case, as found by the referee, are as follows:
    On July 24, 1876, plaintiffs agreed to sell to Thomas Atkinson, doing business under the name of Thomas Atkinson & Co., and said Atkinson agreed to buy of plaintiffs 50,000 bushels of sound Western mixed corn, as per sample, at fifty-five cents per bushel of fifty-six pounds, to be delivered during first half of August in prime shipping condition to buyer’s vessel or store, payment to be made in cash on delivery.
    On August 10 and 11, 1876, on request of said Atkinson, plaintiffs caused 24,869|| bushels of corn, of which they were possessed as owners to be delivered on board the bark Emilio Qiampa, then being at Brooklyn in the port of New York and bound to Cork for orders ; said corn was so put on board, for account and to be held for account of plaintiffs ; plaintiffs, as owners of said corn, according to the usual course of business, received, the return of the official weigher dated August 11, showing the delivery of the said quantity of corn on board said vessel; the price of said corn at the sale agreed on, with customary proportion of expenses, amounted to $13,802.61, for which a bill was rendered at the time of the delivery of the weigher’s return, as hereinafter mentioned, for payment to be made in cash ; on August 12, aforesaid, plaintiffs made a conditional delivery of said corn to said Thomas Atkinson, by delivering to him the said weigher’s return indorsed by plaintiffs, the condition-of such delivery being, by standing agreement between said Atkinson and plaintiffs, that the title to said corn should not pass by such delivery until the payment of the price in cash, which agreement was supplemented by a special promise at the time of delivery to give a check for the amount of the bill at,two o’clock of the same day ; the title papers for said corn were indorsed by plaintiffs and delivered to said Atkinson for the purpose of enabling Atkinson to procure bills of lading, in his own name, for the corn, and to prepare and sell his exchange drawn against the same; a check for the price of said corn was demanded by plaintiffs of said Atkinson on the same day, and was refused, and thereupon the return of the corn or of the bills of lading therefor was also demanded of said Atkinson, and refused.
    Said Atkinson, on the same day, publicly failed, and made a general assignment for benefit of his creditors.
    Said Thomas Atkinson, by means of the said weigher’s certificate, so indorsed to him by plaintiffs, procured from the master of said bark Emilio Ciampa bills of lading for said corn, three in number, in the name of Thomas Atkinson & Co., as shippers ; and on the same August 12, 1876, transferred the same to defendants, as security for three bills of exchange for £2,050 sterling, drawn by said Thomas Atkinson & Co. against said corn, and forming part of a parcel of exchange amounting to £6,725 sterling that day sold to defendants by said Atkinson at the aggregate price of §36,331.81.
    Defendants paid to said Atkinson, on account of said purchase of exchange, $17,000, and no more; by .the mail which closed at half-past one of that day defendants forwarded the said bills of exchange and bills of lading, with suitable indorsement or other transfer, to their agents or correspondents in London, McCalmont Brothers & Co., with whom defendants transacted business of this kind on joint account.
    Afterward, on the same day, plaintiffs notified dedefendants that plaintiffs were the owners of said corn, and demanded the same, or the bills of lading therefor, or that defendants should agree to account to plaintiffs for the value of the proceeds thereof.
    At the time of such demand, defendants had in their own hands, of the price of the said exchange, more than $19,000, being much more than the whole value of the said com.
    Defendants neglected and refused to comply with any of the said demands.
    The purchase of said exchange from said Atkinson by defendants was in the usual course of business ; the defendants paid in part for the said exchange, namely, to the amount of $17,000 only. At the time of the said purchase and of their receiving the said bills of exchange and bills of lading, defendants had no notice of the insolvency of said Atkinson, and no. reason to suspect such insolvency, and had no notice or reason to suspect that said Atkinson was not acting in his own behalf, and right and fairly and honestly, and in entire good faith, in respect to said exchange and the said corn, and then had no notice or reason to suspect that plaintiffs • had any interest in or claim upon said corn, or any part thereof.
    Pursuant to the sale of exchange above-mentioned, said Atkinson, at about eleven o’clock in the forenoon, or soon thereafter, of the said August 12, delivered to defendant sixteen bills of exchange, amounting, in the aggregate, to £6,725, all drawn against merchandise, among which were three bills, amounting to £2,050, drawn against the corn on board of the Ciampa.

    Atkinson delivered to defendants with such exchange all the bills of lading for said merchandise, including the bills of lading for the corn, and usual documents, except certain bills of lading representing bacon, and requested a check for $17,000 on account of the transaction, which defendants gave him.
    Soon thereafter the bills of lading for the bacon were delivered to defendants, and the transaction between defendants and Atkinson was complete, on Atkinson’s part.
    To complete the sale and purchase of the exchange, there remained to be paid by defendants to Atkinson the sum of $19,331.81, balance of the price of the exchange.
    About 2 p.m. the same day, Atkinson called at defendants’ office, and then received their check for said balance, $19,331.81, which he immediately indorsed and handed back to defendants, requesting that it be passed to his credit, as additional margin, to protect defendants from losses likely to occur on prior transactions, and defendants received the check so indorsed, and passed the amount to Atkinson’s credit, as requested.
    At the time when defendants so gave and received back the said check, they had no knowledge or notice of any claim, on the part of plaintiffs, to the corn in question.
    Thereafter, plaintiffs demanded of defendants the corn in question, or its value, and defendants refused to comply with the demand.
    Thereafter, namely, August 15, and on August 22, similar demands were made upon defendants by other creditors of Atkinson, for other merchandise purporting to have been represented by bills of lading accompanying the exchange, sold by Atkinson to defendants, as aforesaid, which demands amounted to $11,779.64.
    Plaintiffs’ demand was renewed on Monday, August 14, and that the defendants were willing, and offered to pay to plaintiffs the price of the exchange drawn against the corn, if Atkinson would consent; that Atkinson refused to consent, and thereupon defendants refused to pay to plaintiffs the price of such exchange, and retained j>ossession of the corn without agreeing to account for the same to plaintiffs.
    The market value of the corn on that day was fully equal to the aforesaid contract price.
    The referee wrote an opinion holding the propositions stated in the head-note.

      C. T. Rice, attorney, and of counsel, for appellant.

      C. Van Santvoord, attorney, and of counsel, for respondent.

       Note—See Farmer’s & Mechanic’s National Bank, &c. v. Hazeltine, ante, 576.

   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the referee.


author: By the Court.—Sedgwick, J.

text:
    BENJAMIN P. FAIRCHILD, Respondent, v. THERESA LYNCH, Appellant.

      Covenant to pay mortgage —construction of—effect thereon of purchase of the bond and mortgage by the mortgagor—Defense in the nature of matter of avoidance—when need not be set up in answer.

    The mortgagor of certain premises conveyed the same by a deed containing the following clause: “Which said mortgage the party hereto of the first part hereby assumes and agrees to pay as part of the consideration hereinbefore expressed.” Held, that this was the covenant of the party of the second part (Fairchild v. Lynch, 42 Super. Ct. 265).
    Where the grantee covenants to pay a certain mortgage, as part of the consideration of the deed, &c., and his grantor, who is also the mortgagor and obligor, thereafter purchases the said bond and mortgage, the grantee is not liable on his said covenant;—this, though the bond and mortgage be subsequently transferred to third parties, and foreclosure proceedings instituted, in which the mortgagor is charged with and pays a deficiency. In such a case the mortgagor voluntarily extinguishes the personal liability on said mortgage, before there is any breach of the covenant, there being ho equitable reason why it should be kept alive. Whether the pledge or mortgage of the lands could, in any event, be left, qrnere; but in this case it was disposed of by the foreclosure proceedings.

      The nature of covenants to pay mortgage, and what is sufficient to satisfy such covenants, considered.
    Defendant is not precluded by subdivision 2, section 149 of the Code of Procedure (Oode Ow. Broc. § 500, subd. 2), from resting upon a defense in the nature of matter of avoidance, which is not set up in the answer, when the facts upon which the defense is based are stated in the complaint.
    Before Sedgwick and Van Vorst, JJ.

      Decided January 9, 1880.
    Appeal from judgment, and from order denying motion for a new trial.
    The facts are as follows: On February 17, 1873, the plaintiff made his bond, in the sum of $15,000, payable on February 15, 1875, to one Luyster, and to secure payment of the bond, mortgaged certain real estate. On February 18, 1873, the plaintiff conveyed to the defendant the mortgaged premises, subject to the mortgage. The conveyance contained the following covenant : “ Which said mortgage the party hereto of the first part hereby assumes and agrees to pay, as part of the consideration hereinbefore expressed.”
    The complaint stated, and the proof was, that on February 20, 1873, this bond and mortgage were duly assigned by the said Luyster to the plaintiff.
    Afterward the plaintiff assigned the bond and mortgage, and it finally went to certain persons, who, on September 23, 1874, began an action to foreclose the mortgage. The defendant had in the mean time conveyed the premises in fee, her grantee assuming the said bond and mortgage, and agreeing to pay. it. The present plaintiff, and defendant, and the grantee of the latter were made parties defendant to the action in foreclosure, and in that action the complaint demanded judgment that, in case of a deficiency, they pay the amount of the deficiency. The defendant Lynch answered in the foreclosure action, but. after issue was joined consented that there should be judgment for the relief asked, except such part of the relief as demanded judgment against the defendant Lynch for any deficiency. There was a deficiency, which was paid by the present plaintiff to the plaintiffs in the action in foreclosure. The present plaintiff brought this action for damages, from defendant’s breach of her covenant to' pay the mortgage.

      John A. Bryan, for appellant, among other things, urged :
    The assignment by Luyster, as mortgagee, back to the plaintiff, as mortgagor, of the bond and mortgage which constituted the subject of the alleged covenant, was an extinguishment of the debt and a discharge of the lien. 1. The obligation to pay and the right to receive became united in the same'person ; thereby bringing the transaction under the category of “ Confusion,”—one of the terms designated in the list of matters, which will discharge a contract (Bouv. Law Dic. tit. Discharge ; Id. tit. Confusion). The rule is thus stated by Bouvier : “When the qualities of debtor and creditor are united, in the same person, there arises a confusion of rights which extinguishes the two credits.” 3. It is closely allied to the better known doctrine of Extinguishment (Bouv. Law Dic. tit. Extinguishment; Bac. Abr. same title). 3. The rule wus announced, in 1807, by the supreme court of this State, in these words: “That a personal action once suspended, by the voluntary act of the party entitled to it, is forever gone and discharged, is a rule as well settled as any in the law” (Thomas v. Thompson, 3 Johns. 471, 473). The court there observes: “In order to determine when the suspension of the remedy works an extinguishment of the debt, Holt, Ch. J., in the case of Wangford v. Wangford (1 Salk. 306), says, that when the same hand is to receive that ought to pay, it amounts to an extinguishment” (2 Johns. 474). 4. Substantially the same rule was applied, in 1853, by the Supreme Court, in the Seventh District, Monroe. General Term. There, a canal boat was the fund for the payment of notes; and the plaintiff became assignee of both the boat and notes. The notes were regarded as satisfied (Wayne v. Sherwood, 14 Barb. 633. See Nickles v. Dillaye, 15 Hun, 296, 301, and. cases cited). 5. In the present case, the debt was the plaintiff’s bond; the fund was his mortgage on the land; and the assignment to him of both, discharged the debt.

      S. F. & F. H. Cowdrey, for respondent.
   By the Court.—Sedgwick, J.

A former general term has held that the clause as to the assumption of the mortgage, in the deed from plaintiff to defendant, was the covenant of the party of the second part, the defendant herein.

I am, however, convinced that the assignment of the obligee find the mortgagee to the plaintiff, who was the obligor and mortgagor, extinguished any personal liability of the plaintiff upon the bond and mortgage. Upon that bond or mortgage resting in the hands of the plaintiff, there could be no action at law, 1 ‘ and then if a personal thing cannot be had but by action, if the action is extinguished the thing itself is extinguished ” (Plowd. 184; Thomas v. Thompson, 2 Johns. 471, and the cases cited). The plaintiff voluntarily brought the personal obligation to an end before the defendant had committed any breach. All that could be left, if that could be, would be the pledge or mortgage of the land, and the foreclosure proceedings disposed of that in such a way that there is no practical question as to it in this case.

The plaintiff’s sole cause of action is upon the defendant’s promise to pay the mortgage. The defendant cannot be held if there were no breach of that. The defendant’s obligation was not to pay any specific sum, or the amount of the bond and mortgage; the covenant would be satisfied by any extinction of the bond or mortgage as to the plaintiff, by accord and satisfaction, or by release (Mills v. Watson, 31 Super. Ct. 374). The duty of the defendant became absolute for the first time, on the day fixed by the bond or mortgage for payment. Upon that day there was no personal liability of the plaintiff on the mortgage assumed by the covenant. The plaintiff had voluntarily extinguished it, when there was no equitable reason why it should be kept alive.

It does not seem that the foreclosure action involved this point at all. It might have arisen, if the liability of the defendant for the deficiency had been litigated, or could have been litigated, between these parties; but the question was taken out of the issues by the stipulation that there should be no judgment against the defendant here, for the amount of the deficiency.

It is insisted that the defendant cannot rest upon this defence, as the answer does not set it up. I do not think this necessary, when the facts on which the defence rests are stated in the complaint.

This view of the case is so fundamental, that it is not necessary to review the other exceptions in the case.

Judgment reversed, and new trial ordered, with costs of the appeal to the appellant, to abide the event.

Van Vorst, J., concurred.


author: By the Court.—Curtis, Ch. J.

text:
    GEORGE T. NEWHALL, Appellant, v. WILLIAM H. APPLETON et al., Respondents.

      Few trial—when motion for must he made at special term—Jurisdiction —not conferred by appearance.

    Section 1,003, Code of Civil Procedure, requires that in a case not specified in the three preceding sections, the motion for a new trial must be heard and determined at special term, in the first instance. A motion on the ground of surprise and newly-discovered evidence, must, under said section, be made at special term.
    The appearance of the parties before the trial judge, and the argument of the motion on the merits alone, are not acts which confer jurisdiction.
    If the question of jurisdiction is waived, it should appear by recitals in the order or in a stipulation to that effect..
    Before Cttbtis, Oh. J., and Van Voest, J.

      Decided February 2, 1880.
    Plaintiff appeals from an order made at the trial term after judgment, and after the usual motion on the minutes had been argued and denied, granting defendants a new trial, on the alleged ground of surprise and newly-discovered evidence, set forth in affidavits in which an order to show cause at the trial term after judgment was obtained from the justice holding the term, after he had denied by formal order the motion made on the minutes..
    Judgment was entered for $1,882.75, October 18, 1879, and the motion on the minutes,'on all the usual grounds, having been argued and denied at the trial, a formal order of denial was entered October 24.
    No appeal has been taken from this order, nor from the judgment; but the subsequent motion, returnable

      October 24, being adjourned to November 19, 1879, the order was then made from which this appeal is taken.

      Wm. W. Badger, for appellant.

      Douglas Campbell, for respondents.
   By the Court.—Curtis, Ch. J.

The question is raised, whether the judge who presided at the trial by a jury, can, after judgment, entertain a motion at the trial term for a new trial on the grounds of surprise and newly-discovered evidence.

Section 1002 of the Code of Civil Procedure requires that in a case not specified in the three preceding sections, a motion for a new trial must, in the first instance, be heard and decided at the special term. Motions for a new trial on the grounds of surprise, or newly-discovered evidence, are not specified in the three preceding sections, and consequently can' only be heard at the special term.

The legislature having limited the jurisdiction to hear these classes of motions to the special term, the judge presiding at the trial term was without jurisdiction to hear this motion, unless such jurisdiction was ■conferred by the act of the parties.

There is some conflict in the affidavits submitted, as to whether this objection was taken at the hearing of the motion before the trial judge. Even if the parties had it in their power to give jurisdiction to the trial judge to hear and decide the motion, it should be shown by some act, or stipulation, or recital, in the order appealed from, so that such intention or arrangement should clearly appear, and not come before the court on appeal, to be ■ disputed as a matter of fact.

There are intrinsic difficulties in giving a jurisdiction to a judicial officer, from which he is limited by statute, and if it can be inferred, from a waiver to object in time, such waiver should not be in itself left, as a question of fact, to be determined from inferences, - or conflicting proofs upon the hearing of the appeal.

The ruling of Yaw Yorst, J., in Argall v. Jacobs, 56 How. Pr. 167, confirms the view that the order appealed from was void for want of jurisdiction of the subject-matter in the judge holding the trial term after the judgment.

The appearance of the appellant before the trial judge, and arguing the motion on the merits alone, was not an act that could confer jurisdiction (People v. Marine Court, Court of Appeals, 3 Abb. Pr. 309).

No case is presented containing the evidence, or its substance, which is a requisite on an application for a new trial on the ground of newly-discovered evidence (Sproul v. Res. Ins. Co., 1 Lans. 71). Having come to the conclusion that the court was without jurisdiction to make the order appealed from, it is unnecessary to consider the case upon the merits.

The order appealed from should be reversed, but without costs to either party, the question being new.

Yaw Yorst, J., concurred.


author: By the Court.—Curtis,. Ch. J.

text:
    THEOPHILUS MARSH et al., Appellants, v. WEST, BRADLEY & CARY MANUFACTURING COMPANY, Respondent.

      Defense that amount due plaintiff is subject to lien of attachment—how pleaded—Mot/wn for judgment for amount admitted by answer—when granted—appealability of order granting.

      An answer admitting a certain sum to be due by defendant, but alleging as a reason for non-payment that a third party has attached the indebtedness in an action against plaintiff, that said action “has since been pending,” and that the defendant has never been released from its obligations by reason of such levy, is insufficient, and does not constitute a bar to the recovery of the amount, on motion, under section 511, Code of Civil Procedure. The'answer should state that the said attachment and levy are still in force.
    An order denying such a motion sufficiently involves the merits of the action and affects a substantial right, to be the subject of review by the general term.
    Before Curtis, Ch. J., and Vast Vorst, J.

      Decided February 2, 1880.
    Appeal from an order of the special term of this court made in December, 1879, denying the plaintiffs’ motion, that they have leave to enter judgment for $772.58 of their alleged claim, and that the action be severed, and they be at liberty to discontinue or proceed with the action as to the residue, under section 511 of the Code of Civil Procedure. Or that the del fendant be directed to pay that sum into court, pursuant to section 717 of Code, on the ground that cause therefor is shown by the moving papers.

      Stephen H. Olin, for appellants.

      Francis C. Reed, for respondent.
   By the Court.—Curtis,. Ch. J.

The answer admits that $772.58 of the claim in suit is due and owing; but states as a reason for not paying it to the plaintiffs, that a third party attached it, November 29, 1875, in a suit against the plaintiffs, and avers on information and belief, that such suit “ has since been pending.” The answer also further alleges that the defendant has never been released from its obligations by reason of such levy. The answer fails to aver that this attachment is still in force. The allegation that the defendant has never been released from its obligations by reason of such levy, is not equivalent- to an allegation that the levy is still in force. It may well be that no release of the levy has been executed, nor is any required to discharge the levy. The plaintiffs show that the attachment has been vacated by an order of the court, and this is not denied, or in any way controverted by the defendant. This defense is not of a character to constitute a bar to the plaintiffs’ recovery of the $772.58 admitted by the answer to be due and payable to the plaintiff, except for the attachment.

The defendant claims that the appeal should be dismissed, on the ground that the order appealed from, denying plaintiffs’ motion, is not appealable. The order made at special term sufficiently involves the merits of the action, and affects a substantial right, to warrant its revival at the general term.

The order appealed from should be reversed upon the pleadings - alone, with costs, and an order entered directing judgment for the plaintiff, in the sum of $772.58 ; and in plaintiffs’ election, for a continuance of the action, as to the other matters contained in the pleadings, pursuant to section 511 of the Code of Civil Procedure.

Yah Yoest, J., concurred.


text:
    JOHN LEHMAIER et al., Respondents and Appellants, v. ALMON W. GRISWOLD, Appellant and Respondent.

      Supplementary proceedings—contempt in violation of injunction order— when not excused by informalities in affidavit, &a.

    After the defendant has appeared and been examined in proceedings supplementary to execution, without objection, he is not in a position to justify himself when proceeded against for contempt in violating the order restraining him from disposing of his property, by allegations of informalities in the affidavit upon which the proceedings were based, nor to claim that the jurisdiction to which he has submitted, is avoided by such informalities; a fortiori, this is so when the defendant is an officer of the court.
    In this case, the court held that the acts of defendant did not of themselves cause the loss to plaintiffs complained of, and therefore, that defendant should not be fined the full amount of .the judgment, &c., as claimed by the plaintiffs.
    Before Curtis, Ch. J., Van Yorst and Speir, JJ.

      Decided February 2, 1880.
    Appeal by the defendant, from an order adjudging him guilty of contempt, and fining him $250.
    Also appeal by the plaintiffs from the denial of their motion to fine the defendant for the amount of plaintiffs’ judgment, with interest, costs and disbursements.

      S. Kauffmann, attorney, and George N. Sanders, of counsel, for plaintiffs.

      A. Heydenreich, attorney, and Luther B. Marsh, of counsel, for defendant.
   By the Court.—Curtis, Ch. J.

The defendant having appeared, pursuant to the order for his examination in proceedings supplementary to execution, and having been examined thereunder, is not in a position to-justify himself when proceeded against for contempt in violating the order of the court restraining him in the-mean time from transferring or disposing of his property, by setting up informalities in the affidavit as an excuse for violating the order, or to claim that the-jurisdiction to which he has submitted can be avoided by such informalities.

The orders of the court should be respected and obeyed by its officers. The excuse so often urged of ignorance that the act complained of was a violation, of the order, is not presented by the defendant. No-reason is apparent for questioning the discretion of the judge, in imposing the fine of $250 upon the defendant, and adjudicating him guilty of contempt.

The plaintiffs, however, insist that the judge erred in not imposing a fine upon the defendant for the-amount of their loss. He justly considered that the-execution of the second chattel mortgage, and the bill of sale, was in violation of the order of the court. He-also held that the facts showed that the misconduct of the defendant in these respects did not of itself produce an actual injury to the plaintiffs, and that whatever prejudice accrued to them, arose out of their own dealings with the defendant, and out of a waiver of some of their rights subsequent to the commission of the contempt.

After a levy had been made under the plaintiffs* execution, upon property in the defendant’s house, and while it was there held in the possession of the sheriff, the plaintiffs released the latter from all responsibility in allowing the property levied upon to remain in the defendant’s house, and in withdrawing any keeper therefrom.

After the property levied upon had been thus withdrawn from the possession and custody of the sheriff, by this release on the part of the plaintiffs, one Brown, having chattel mortgages on the property, finding no keeper in charge, took possession of the property under -.a chattel mortgage executed before the levy,and assigned his mortgages, and transferred the possession of the property to a Mrs. Perry. The defendant seems to have had no part in these acts of Brown, but to "have nought to dissuade him from taking possession of the property. If the plaintiffs had not requested the sheriff to permit the property to remain in defendant’s house, .and to withdraw any keeper in charge, and released the sheriff from responsibility for the safe keeping of the property, their levy would have been protected. The plaintiffs were prejudiced by their own acts and dealings with the defendant, and by their own waiver of rights. Their loss was not occasioned by the disobedience of the defendant to the order of the court.

The defendant was culpable, in executing the second chattel mortgage, the bill of sale and the lease; but these acts of his for which he is in contempt, and punished by a fine, are not the acts which caused the loss to the plaintiffs.

The orders appealed from, by the plaintiffs and defendant respectively, are affirmed with costs.

Van Vorst and Speir, JJ., concurred.


author: By the Court.—Curtis, Ch. J. “ Sedgwick, J.

text:
    WILLIAM C. JOHNSON, Respondent, v. JAMES I. BROOKS, Impleaded, et al., Appellants.

      JPayment of money to be used in purchase of securities—when trust is created thereby—when delives'y of securities will be decreed- Statute of frauds— Agency.

    'The plaintiff, as a subscriber with others, at the request of defendant Brooks, advanced a sum of money to the latter by payment to his agent, to be used for a specific purpose, viz.: in the purchase of a. certain amount of stock and bonds of the Silver Islet Mining Company, for said subscribers, the plaintiff to receive a specified amount thereof.
    In an action to compel the specific performance of an alleged contract to sell and deliver to plaintiff his said share of the securities in question,

      The court held, that the facts proved raise a presumption that at the time the payment by plaintiff was made, said defendant’s agent was authorized to receive it, and defendant was bound thereby; that upon the evidence, it appears that a trust was created, involving an obligation to use the funds for the purpose for which they were subscribed, which obligation the defendant cannot avoid by showing that he chose to use his own funds and purchase for himself; that the transaction is not avoided by the statute of frauds; and that the plaintiff is entitled to have from the stock and bonds in question the portion which fell to him, according to his subscription, a court of equity having power to administer the distribution of property impressed, as this is, with a trust.
    Before Curtis, Ch. J., and Speib, J.

      Decided February 2, 1880.
    Appeal by the defendant, James I. Brooks, from a judgment directing a transfer to the plaintiff of certain capital stock and bonds of “The Silver Islet Consolidated Mining and Land Company.” The judgment was entered upon findings made by Sedgwick, J., at special term.
    The plaintiff sued to compel the specific performance of an alleged contract, to sell and deliver, under certain conditions, to the plaintiff, the bonds and stock above mentioned.
    The plaintiff claimed that the defendants Brooks and Mifflin contracted with him, whereby he subscribed for the stock and bonds, and paid them three thousand dollars ; that the same rapidly increased in value, and could not be easily purchased in the open market -f
      that a judgment in damages would be no adequate compensation; that the defendant Brooks had them under his control, in the custody of the defendant, The American Exchange National Bank, and that the defendant refused to deliver them..
    ■ These matters were put in issue by the answer.

      William Henry Arnoux, for appellant.

      Albert Stickney, for respondent.
   By the Court.—Curtis, Ch. J.

The case presents several exceptions, but none, that call for a reversal of the judgment. The date of the telegram, and the testimony, especially of the defendant Brooks, that he was advised on the 26th of September of the additional subscription of $8,000 more, indicates that the finding that the plaintiff’s agreement with the defendants, Brooks and Mifflin, was made on- the 27th of September, should have been that the agreement was made on the day previous. It does not appear that this finding, as it stands, prejudices the respondent or the appellant, but it is apparently one of the errors which should be amended under section 721, subdivision 9 of the Code of Civil Procedure.

As regards the disposition of the appeal, the opinion of the judge at special term expresses the views which, after considering the case, we have arrived at.

It is as follows :

“ Sedgwick, J.

The relation between Mifflin and Brooks should be determined only to the extent that it is necessary for the determination of the plaintiffs’ rights, under his transaction with Mifflin. If Mifflin were Brooks’ agent in the matter, it is not material to find whether the agency arose from a partnership between them, or from a- special or implied authority to obtain subscriptions.

“I find, as a matter of fact, that Brooks authorized Mifflin to take subscriptions. I also find that such authority was ended by Brooks’ telegram of September 28, in which were the words: ‘ Balance subscriptions too late ; arranged otherwise.’ Down to the receipt of that by Mifflin, he had authority to take the plaintiff’s subscription.

“In view of the plaintiff’s right to have his interest fixed, upon his payment of the money, Mifflin must be held to have received the $3,000 when it was paid at the bank in Newburyport, to which he had sent it for collection. The plaintiff paid it, he said, on Monday night.’ This does not mean after dark, but in the latest hours of bank business, or in the afternoon.

“I do not mean to intimate that Mifflin was only a subordinate of Brooks. Their relations may have been mutual, and each on equal footing. It is not necessary to decide as to this, especially as there is an action between them.

‘‘ Mifflin being Brooks’ agent, the latter was infected or chargeable with knowledge of what Mifflin did, and the obligation he incurred within the actual scope of the agency, and no farther.

“Mifflin did this, viz., he obtained a subscription of money, not upon a promise to return money, but to use it with other subscriptions in buying the stock in question. So far as subscribers were concerned, Brooks was to be the common agent for the purchase of the stock. He, too, was, as Mifflin was, a trustee for the subscribers.

“The subscriptions were placed with the parties under a trust and confidence, and not to establish the relations of debtor and creditor. I do not mean to decide that the consequences of this trust would not be affected by an implied understanding that the parties would not be held to purchase for the subscribers, if for any sufficient reason the funds subscribed could not be used in that way, or by only the fact that a particular subscription was, without a breach of trust, in excess of the required amount. But the trust includes the general obligation to use the funds subscribed for the particular object.

“ In my opinion it is not a sufficient reason to omit to purchase for a subscriber, that the agent or trustee chose to use his own funds. He is under an obligation not to do it; and at the least, if at any time before the purchase is consummated, the subscriber pays his money, and it is in the hands of another agent, with the constructive knowledge of the purchasing agent, when the latter consummates, he does it for the subscriber. Still more surely if he has actual knowledge.

“These considerations lead to the suggestions that up to the payment actually to Mifflin, the plaintiff here had no interest and was under no obligation, and that when he paid the money, he was not and did not intend to become himself a purchaser. He was placing money in the hands of another who was to purchase for him. If such other did purchase in his own name, but as agent or trustee for the plaintiff, the statutes of fraud in New York or Massachusetts do not avoid the transaction. The actual purchase in New York or Detroit was not void. An agent using his own name in the written contracts of purchase is bound to deliver to his principals (Tomlinson v. Miller, 7 Abb. Pr. N. S. 364; Dykers v. Townsend, 24 N. Y. 57, and many other like cases; Cobb v. Gtoodhue, 11 Paige, 110; Wain v. Warlters, 2 Smith L. C. 316, 6 Am. ed.).

“Brooks, as I understand the evidence, had made no valid contract for the purchase of the stock when he left New York for Detroit, and would not be able to consummate a parchase without subscribers. It is beyond doubt that up to and at and after the time of his making the contract in Detroit he contemplated the necessity of Mifflin obtaining subscribers from persons unknown to him.

“ On September 24 he wrote from New York: ‘ Get some new subscribers if possible ; I have the Baker lot in view for $10,000 and by telegraph on same day: ‘ Get all subscriptions possible.’ On the 26th Mifflin telegraphs : ‘ Have placed $3,000 more; answer if right.’

“Instead of telegraphing answer, Brooks wrote by mail: ‘I have your telegram asking about $3,000-more ; I cannot give answer about that to-day, but will upon my return to New York or Boston.’ On September 27 Brooks telegraphs to Mifflin: ‘ Remit $15,000, subject to my order on delivery of stock and bonds for Perkins and your account. This completes transaction.’ This telegram was not a decisive statement that there were to be no more subscribers, for the day before he had said he could not give answer then, but would in New York or Boston. Mifflin could not have received the letter, but it is important testimony that Mifflin had not made up his mind as to what was to be done with the $3,000 subscription or to revoke Brooks’ authority to receive it.

“Up to the 28th, I believe, on the facts, Brooks had not prepared himself to - stop Mifflin’s subscriptions, even after an arrangement was made to which he testified very obscurely. Unless he made such an arrange'ment he would not be able to reject the $3,000.

“ It is in evidence that the contract was made in Detroit, $5,000 had to be paid. His share of that would be $2,500. He ‘ borrowed part and got rest from New York’ (his letter of September 26); the amount he got from New York was $3,000 and odd; of course the excess over $2,500 would have to be accounted for to the New York parties. That leaves $2,500 that had finally to be made either by subscription or some arrangement by which Brooks could furnish it; at first he believed it would have to be arranged for in New York or Boston, as he said in his letter. But in consequence of something between himself and Darling, in Detroit, he was able to command this amount in Detroit. The amount he received, as I should judge, from a sale of some stock to Darling with some cash he had in his pocket, enabled him to take a fixed position as to the $3,000 subscription, but for some reason he did not wish to avow it. He did not avow it until the telegram of September 28th. 'Balance subscriptions too late ; arranged otherwise.’

“The turning-point in the- issue as to when the agency was ended, is the time when this telegram was received. Was it before or after the plaintiff paid his draft ? There is no specific proof as to this. It does not appear when Mifflin received it. The plaintiff has proved enough to create the presumption of continuance of the agency down to the time of the payment.

“There is a presumption of some weight that Mifflin could not be guilty of the injustice, if not fraud to the plaintiff, of taking his money after receiving such a telegram. On these considerations, and the further consideration of the indecision and wavering of Brooks in regard to the subject-matter of the telegram, I am of the opinion' that the burden of proof rests upon the defendant of showing when the agency was closed by a decisive and affirmative act on his part. It is to be observed that if the subscription was paid before the consummation of the purchase in New York, and at a time when Brooks was a party to the payment through his agent, Mifflin, it is not material that Brooks did not have actual knowledge of the payment.

‘‘ His obligation was as strong as that of a contract with plaintiff to have the knowledge. And again, if he allows the plaintiff to part with his money, and use that as one of his resources, meaning to fall back upon it, if it be for his own interest, he does virtually use the money.

“It is seen from these observations that I do not deem the transaction to be the equivalent of a sale of stock from Brooks to the plaintiff. He was not dealt with as an owner selling stock, nor was he an owner of stock, nor did the arrangement contemplate the transfer of stock from Brooks to the plaintiff excepting nominally. Brooks was to use the funds in a purchase from the Detroit parties. It was not intended that the real title to the whole should first rest in Brooks, although it was contemplated that he should use his own name. His making the executory contract in Detroit did not make him owner. The consummation of it required the use of the subscribed funds. Before he became owner he made a legal arrangement, by which he was to act as agent or trustee for the subscribers in becoming nominal owner.

“ In my view of the case, the assignment made by Brooks has no operation. It was not delivered to the assignee or to any one who is shown to have been authorized to act for her. But especially I think he had no title to the subject-matter involved in this action.

“ I think that in any aspect of the case, whatever technical view is taken of it, that the plaintiff is entitled to have from the stock in question the amount which was to go to the subscribers severally, according to the amount of subscriptions, and that he is not confined to, an action of conversion or of claim and delivery, but that a court of equity has a right to administer the distribution of property impressed as this is with a trust.

“The plaintiff should have judgment with costs. No allowance.”

The judgment appealed from should be affirmed, with costs to the respondent.

Speir, J., concurred.


author: By the Court.—Curtis, Ch. J. Speir, J.— [Concurring.]

text:
    HUGH DILLON, Respondent, v. THE SIXTH AVENUE R. R. Co., Appellant.

      Reply—when irregular, if served without leave of court.

    When the answer contains only new matter constituting a defense by way of avoidance, a reply put in without the direction of the court is irregular, and should be stricken out. Sections 516 and 517 of the Code of Civil Procedure should be construed together.
    Before Curtis, Ch. J., and Speir, J.

      Decided February 2, 1880.
    Appeal by the defendant from an order denying motion to strike out the plaintiff’s reply.
    The plaintiff sued to recover damages alleged to have been sustained through the defendant’s negligence. The defendant set up as a distinct defense that the plaintiff had released the cause of action. The plaintiff replied that the release was obtained by fraud, and undue influence, and without consideration. The defendant moved to strike out the reply, on the ground that none is necessary or allowed. The court denied the motion without costs, as the question was new.
    D. M. Porter, for defendant.

      Nelson Smith, for appellant.
   By the Court.—Curtis, Ch. J.

Section 516 of the Code of Civil Procedure provides that, “when an answer contains any 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.”

Section 517 provides that “a reply may contain two or more distinct avoidances of the same defense or counter-claim.” The reply containing avoidances referred to in this section, is the same reply that may be directed by the court in its discretion upon the defendant’s application, as provided for in section 516. These two sections should be construed together. The reply in the present case was served without any application to the court for direction or leave to make it, so that it is not founded on any exercise of the discretion of the court, or on the application of the defendant, as required by these provisions of the Code.

The order appealed from should be reversed, but as the practice is new, it should be without costs, and the motion should have been granted also without costs.

Speir, J.— [Concurring.]

I also am of the opinion that the order be reversed. The reply was not required. Prior to the last amendment of the Code a reply to an answer was not necessary unless it sets up a counter-claim. Here there is no counter-claim. Before the last amendment to the Code the courts permitted the plaintiff to prove any matter in denial or avoidance of the answer when it sets up new matter. The two sections of the amended Code, 516 and 517, are only a codification of the decisions of the courts.