text:
    Hiram Exstein and others, Respondents, v. Evoline B. Robertson and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J.


source: Caselaw Access Project

license: Public Domain

text:
    Horace B. Claflin and others, Respondents, v. Evoline B. Robertson and others; Appellants.
   Order reversed, with ten dollars costs and disbursements. Opinion by Macomber, J.


text:
    P. Allen McMullen, Respondent, v. Joseph B. Peart, Appellant.
   Judgment affirmed, with costs. Opinion by Macomber, J.


text:
    Edward J. Kelsey, Respondent, v. Jane Sargent, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Mem. with the clerk.


text:
    Charles L. Nichols, an Infant, by Guardian, Respondent, v. Will E. Tuttle and others, Appellants.
   Order affirmed, with costs.


text:
    Thomas Tindle and others, Appellants, v. John H. Keef, Respondent.
   Order reversed, with tpn dollars costs and disbursements.


text:
    Mary A. Striker, Appellant, v. Francis M. Schuyler, Respondent.
   Motion for reargument denied, Barker, P, J., not sitting.


text:
    In the Matter of the Probate of, etc., of Daniel Gould, Deceased.
   Motion for resettlement of case denied, without costs.


text:
    In the Matter of the Accounting of Eugene Heath, Assignee.
   Motion denied.


text:
    Daniel F. Alverson, Respondent, v. The Water-Works Company of Canandaigua, Appellant.
   Motion for leave to appeal to the Court of Appeals denied, without costs to either party.


text:
    Octavius F. Salmon, as Administrator, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by Martin, J.


text:
    Elizabeth Goodyear and others, Appellants, v. Joseph P. Adams and others, Respondents.
   Judgment affirmed, with costs. Opinion by Merwin, J.; Martin, J., not acting.


text:
    In the Matter of the Application to Revoke the Probate of the Last Will and Testament of Lewis Palmer, Deceased.
   Decree of the surrogate of Tioga county affirmed, with costs. Opinion by Martin, J.


text:
    Zada Van Aernam, Respondent, v. George S. Fisher, Appellant.
   Judgment affirmed, with costs. Opinion Per Curiam; dissenting opinion by Merwin, J.


text:
    William S. Larrison, Respondent, v. Benjamin N. Payne and others, Appellants.
   Judgment reversed on the exceptions and a new trial ordered before another referee, with costs to abide the event. Opinion by Martin, J.


text:
    John Nill and another, Appellants, v. Herbert D. Chidester and others, Respondents.
   Judgment affirmed, with costs, on the opinion of Williams, J., delivered at the Special Term.


text:
    Ellen Spaulding, Respondent, v. Marquis L. Keyes and another, Appellants.
   Judgment and order affirmed, with costs. Opinion by-Martin, J.


text:
    Flora E. Graves, Respondent, v. Frederick L. Santway, Appellant.
   Judgment and order affirmed, with costs. Opinion by Hardin, P. J.


text:
    Sarah S. Chellis, Respondent, v. John B Chapman, Appellant.
   Judgment and order affirmed, with costs. Opinion by Hardin, P. J.


text:
    Clara B. Cox, Respondent, v. William T. Cox, Appellant.
   Allowance of $150 stricken out of order and judgment, and order and judgment, as so modified, affirmed, with costs. Opinion by Hardin, P. J.


text:
    William M. Bently, Appellant, v. The Owego Mutual Benefit Association, Respondent.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Opinion by Martin, J.


text:
    Burton W. Atwater, Respondent, v. The Town of Veteran, Appellant.
   Judgment affirmed, with costs. Opinion by Hardin, P. J.


text:
    In the Matter of the Probate of the Will of James D. White, Deceased.
   Decree of the surrogate of Madison county affirmed, with costs. Opinion by Merwin, J.


text:
    Mary A. Underwood and another, Respondents, v. Harriet S. Curtiss aud others, as Executrices, Appellants, Impleaded, etc.
   Judgment reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiffs to amend their complaint within twenty days upon pay- • ment of the costs of the demurrer and of this appeal. Opinion by Hardin, P. J.


text:
    Hannah J. Stebbins, Respondent, v. The Village of Oneida, Appellant.
   Judgment and order affirmed, with costs. Opinion"by Hardin, P. J.; Martin, J., not sitting.


text:
    Josephine E. Stowell, Respondent, v. The American Co-operative Relief Association, Appellant.
   Judgment and order affirmed, with costs. Opinion by Martin, J.


text:
    Charles F. Brown, as Administrator, etc., Respondent, v. Simeon Klock, Appellant.
   Judgment affirmed, with costs. Opinion by Merwin, J.


text:
    Joseph M. Fugit, Respondent, v. Shuler D. Becker, Appellant.
   Judgment of the County Court of Oswego county affirmed, with costs.


text:
    The Wilber National Bank of Oneonta, Respondent, v. Orlando Westcott, Appellant.
   Judgment affirmed, with costs.


text:
    John A. O’Reilly, Appellant, v. The Corporation of the London Assurance, Respondent.
   Judgment affirmed, with costs. Opinion by Hardin, P. J.


text:
    Thomas Coolidge, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.
   Judgment and order affirmed,-with costs. Opinion by Merwin, J.


text:
    Elliott Martin, Respondent, v. Zelotus J. Wood, Appellant.
   Judgment and order affirmed, with costs. Opinion by Merwin, J.


text:
    John P. Douglass, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company. Appellant.
   Judgment and order affirmed, with costs. Opinion by Martin, J.


text:
    Matthias H. Arnot and others, as Surviving Partners, Plaintiffs, v. Henry W. Sage, Defendant. Same v. Same.
   Judgment affirmed, with costs on the opinion of the referee.


text:
    Jane A. Sherman, Respondent, v. Thomas P. Sherman, Appellant.
   Motion denied, with costs.


text:
    Jacob Reals v. The First Presbyterian Society.
   Motion granted.


text:
    In the Matter of the Application of the People’s Railroad Company of Syracuse.
   Motion granted.


text:
    Emer Smith v. Lida Wood.
   Motion granted.


text:
    In the Matter of the Proceedings to disbar William Youmans.
   Reference ordered (see order filed with the clerk of Broome comity).


text:
    Lydia E. Keyes, Appellant, v. Chester C. Wright, Respondent.
   Appeal dismissed, with ten dollars costs and disbursements


text: Byron H. Garland, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.


text: Garrison v. Same.


text:
    Davis v. Same.
   Orders affirmed, with ten dollars costs in one case and disbursements.


text:
    Jacob Deach, Respondent v. William H. Perry, Appellant.
   Order reversed, with ten dollars costs and disbursements.


text:
    O. Brown Milligan, Respondent, v. Malcom McNaught, Appellant.
   Judgment of the County Court of Delaware county affirmed, . with costs.


text:
    Warren Newton, Appellant, v. George I. Seney, Respondent.
   Judgment reversed, with costs, and the demurrer overruled, with costs, with leave to answer upon payment of the costs of the demurrer and of the appeal.


text:
    Jacob Amos, Respondent, v. George H. Greenway, an Habitual Drunkard, by Horace P. Hall, his Committee, Appellant.
   Order reversed, with ten dollars costs and disbursements.


text:
    The Ohio Grindstone Company, Appellant, v. Porter S. Huntley and Henry H. Babcock, Respondents.
   Judgmentaffirmed, with costs.


text:
    Charles Sawyer and another, Respondents, v. Jacob Crouse, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    Robert Gere Bank, Respondent, v. Horace Inman, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    Joseph P. Lawton, Appellant, v. Harvey A. Anthony, Respondent, Impleaded, etc
   Judgment of the County Court of Jefferson county reversed and the judgment of the Justice’s Court affirmed, with costs.


text:
    Spencer Wheeler, Respondent, v. James Hazelett, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Lucien B. Terry and another, Respondents, v. Henry Bange, Appellant.
   Order affirmed, with costs. Opinion by Dykman, J.


text:
    The People of the State of New York, Respondent, v. Anton Nowak, Appellant.
   Judgment of County Court and of justice reversed. Opinion by Barnard, P. J.


text:
    Warren Chapin v. James M. Fitzgerald.
   Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    James Bigler v. The New York and South Brooklyn Ferry Company.
   — Judgment affirmed,with costs. Opinion by Dykman, J.; Barnard, P. J., not sitting.


text:
    Mary E. Briggs v. John R. D Angus.
   Judgment modified by deducting rent of Franklin avenue house prior to February 1,1878. Opinion by; Pratt, J.; Barnard, P. J., not sitting.


text:
    David T. Bayliss v. Austin Roe.
   Judgment affirmed, with costs. Opinion by Barnard. P. J.


text:
    Phebe A. Smith, Appellant, v. John McArthur, Respondent.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.


text:
    Isabella Cuming v. The Brooklyn City Railroad Company.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    Nelson Goetschius v. John E. Hunt.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.


text:
    Richard Murray v. Allison M. Archer.
   Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    Henry McCarthy v. Mary Crowley.
   Order reversed, without costs to either party. Opinion by Pratt, J.


text:
    Harry Wallerstein, Respondent, v. John Bohanna and another, Appellants.
   Judgment affirmed, with costs. Opinion by Pratt, J.


text:
    John Schenck, Respondent, v. Mathew Marx, Appellant.
   Judgment and order denying new trial modified by deducting sixty dollars from judgment, and as modified affirmed, without costs to either party. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    Gilbert T. Davis and others, Appellants, v. George W. Briggs, Respondent.
   Order reversed, without costs. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    E. Merritt Colyer v. George B. Colyer.
   Motion denied, with ten dollars costs.


text:
    Martha Robostelli v. Charles H. Noxon.
   Order reversed, with costs and disbursements, and motion granted, without costs. Opinions by Pratt aud Dykman, JJ.


text:
    George R. Topliff, Respondent, v. Cuyler Freeman, Appellant.
   Order affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    David Cromwell, Treasurer, v. Edward C. Wilson, Trustee.
   judgment affirmed, with costs. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    John M. Waterbury and others, Respondents, v. George C. Eldridge, Appellant.
   Order affirmed, with costs. Opinion by Pratt, J.; Dykman, J., dissenting.


text:
    Edward J. Woolsey, Appellant, v. James Donnelly, Respondent.
   Judgment of the County Court reversed, with costs, and judgment of justice affirmed. — Motion to dismiss appeal denied. Opinion by Barnard, P. J.


text:
    Eliza W. Parkhurst, Respondent, v. Robert H. Berdell, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Eliza W. Parkhurst, as Executrix, etc., Respondent, v. Robert H. Berdell (special appeal), Appellant.
   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    Stephen Hasbrouck, Appellant, v. Josephine L. Disbrow, Respondent.
   Order reversed, with costs and disbursements, and motion denied, with costs. Opinion by Pratt, J.


text:
    William B. Mead, Plaintiff, v. Charles A. Mead and others, Defendants,
   Order affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    Alexander Jones, Respondent, v. Alexander L. Farrington, Appellant.
   Order reversed, with costs and disbursements. Opinion by .Dykman. J.


text:
    Samuel K. Nestor, Appellant, v. Magdalena Bischoff, Respondent.
   Order affirmed, with costs and disbursements. Opinion by Pratt,J.; Barnard, P. J., not sitting.


text:
    Mary P. Taggart, Respondent, v. Mary G. Rogers and others, Appellants.
   Interlocutory judgment reversed and new trial granted, costs to abide event. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    Frank Thall, by Guardian, Respondent, v. John A. Carrie, Appellant.
   judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.


text:
    Ella Tredwell, Respondent, v. Jonas A. Lincoln, Appellant.
   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    George J. Hubbard, Respondent, v. William H. Nearpass and another, Executors, Appellants.
   Order affirmed, with costs and disbursements. Opinion by Pratt, J.


text:
    The People of the State of New York ex rel. John L. Cook v. Egbert H. Hildreth and others.
   Order of commission affirmed and writ quashed, with costs. Opinion by Barnard, P. J.


text:
    Matter of Last Will and Testament of Sarah Gray, Deceased.
   Decree of surrogate affirmed, with costs. Opinion by Barnard, P. J.


text:
    Julian B. Shope v. Daniel Campbell.
   Judgment of County Court affirmed, without costs. Opinion by Dykman J.


text:
    Charles Dickerson, Appellant, v. Milton Gordon, Respondent.
   judgment of County Court reversed and that of justice affirmed, with costs. Opinion by Pratt" J.


text:
    Isabella B. Ball, Respondent, v. William G. McCrea, Appellant.
   Judgment affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., not sitting.


text:
    Mary J. Lynch, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.


text:
    James Cowan, by Guardian, Respondent, v. John H. Snyder, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.


text:
    Terrence McCracken v. William C. Flanaghan and another.
   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    George Lewis v. The New York, Lake Erie and Western Railroad Company.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., not sitting.


text:
    John C. Onderdonk, Appellant, v. Andrew J. Onderdonk and others, Respondents.
   Order sustaining defendants' demurrer, and judgment thereon affirmed, with costs. Opinion by Barnard, P. J.


text:
    Matter of Application of Hubert O. Thompson, as Commissioner of Public Works, etc.
   Award and order confirming same, in case of Charles Butler, affirmed, with costs. Opinion by Pratt, J.,* Barnard, P. J., not sitting.


text:
    Albert W. Van Winkle v. Sylvanus L. Fowler.
   Judgment for plaintiff upon submitted case, with costs. Opinion by Pratt, J.; dissenting opinion by Barnard, P. J.


text:
    Matter of Probate of Will of Mary Hollohan.
   Order admitting will to probate affirmed, with, costs. Opinion by Dykman, J.


text:
    Martha Aldrich, Respondent, v. Julia N. More, Appellant.
   Judgment affirmed, with costs. Opinion by Pratt, J.


text: The Fleming Cut-Sole Company, Appellant, v. John H. Garretson, Respondent.


text:
    George F. Mills, Appellant, v. John H. Garretson, Respondent.
   Judgments affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., not sitting.


text:
    Hermann Jonas, Respondent, v. Antonio Blanco and another, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by Pratt, j.


text:
    Moses Swift, Respondent, v. The Staten Island Rapid Transit Railroad Company, Appellant.
   judgment and order denying new trial affirmed, with costs. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    Samuel W. Boocock, Respondent, v. Mary L. Phipard, as Executrix, etc., Appellant.
   Judgment affirmed, with costs. Opinion by Barnard, P. J.; Dykman, J, not sitting.


text:
    De Witt C. Ward, Respondent, v. The Hudson River Building Company, Appellant.
   Judgment reversed and new trial granted, with costs to defendant to abide event. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    George L. Pease, Respondent, v. Aaron Field and others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    Robert C. Daudge and Wife v. Wallace Mayo.
   Order sustaining demurrer to counter-claim, and judgment thereon, reversed, with costs, at General Term; leave given to reply; demurrer overruled. Opinion by Pratt, J.; Dykman, J., not sitting.


text:
    William H. H. Childs, Respondent, v. William Mayer, as Executor, etc., Appellant.
   Order reversed, with costs and disbursements. Opinion by Dykman, J.; Pratt, J., not sitting.


text:
    William Harrigan v. The City of Brooklyn.
   Order overruling demurrer to complaint, and judgment thereon, affirmed, with costs. Opinion by Pratt and Dykman, JJ.; Barnard, P. J., dissenting.


text:
    Hannah M. Wait v. Sarah O. Cerqua.
   Judgment for plaintiff upon submitted case, with costs. Opinion by Barnard, P. J.


text:
    William L. Caryngham v. John Duffy.
   Order reversed, with costs and disbursements. Opinion by Dykman, J.


text:
    Lemuel S. Bunnell, Respondent, v. The Empire Laundry Machinery Company, Appellant.
   Judgment reversed, referee discharged, new trial granted, costs to abide event. Opinion by Learned, P. J.; Ingalls, J., expressing no opinion.


text:
    In the Matter of the Will of Nancy Rosecrans, Deceased.
   Order affirmed, with costs. Opinion by Ingalls, J.


text:
    George W. Brayton, Assignee, Respondent, v. Darwin W. Sherman, Executor, Appellant.
   Judgment modified by deducting $145 as of the date of its entry, and interest thereon from June 2,1882, and the five per cent extra allowance on the sum deducted, and, as modified, affirmed, without costs in this court. Opinion by Landon, J.


text:
    George MacArthur, Respondent, v. Henry Gordon and others, Appellants.
   Order settled by Landon, J.; Mem. by Learned, P. J.


text:
    Stacia Cullen, Appellant, v. Frederick O. Norton, Respondent,
   Motion for reargument denied, with ten dollars costs. Mem. by Landon, J.


text:
    Edward D. Ransom and others, Respondents, v. Willard E. Masten, Appellant.
   Motion for reargument or to go to the Court of Appeals denied, with ten dollars costs. Learned, P. J., not acting.


text:
    Abraham V. De Witt, as Trustee, etc., v. Emma L. Stender and others.
   Order affirmed, without costs. Opinion by Landon, J.; Learned, P. J., not acting.


text:
    William Ockempaugh, Respondent, v. Mary Slater and another, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Charlotte C. Radloff, Respondent, v. Charles F. Mattlage, Appellant.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by Learned, P. J.


text:
    Willard Lester, Trustee, Appellant, v. Henry A. Mann and others, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements. Mem. by Learned, P. J.


text:
    Horace P. Dann, Appellant, v. Samuel O. Gleason, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Charles B. Wenzell, Respondent, v. John B. Morrissey, Appellant.
   That part of the order imposing a reference reversed, the residue affirmed; no costs of appeal.


text:
    In the Matter of Proving Will of Isabella P. Sarauw.
   Decree affirmed, with costs, against appellant. —Opinion by Learned, P. J.


text:
    Edward Stack, Respondent, v. Charles P. Weatherwax, Appellant.
   Judgment affirmed, with costs. Mem. by Learned. P. J.


text:
    Cyrenius Flint and others, Respondents, v. Orris Frantzman, Appellant.
   Judgment affirmed, with costs. Opinion by Landon, J.


text:
    Susan Davis, Appellant, v. The City of Kingston, Respondent.
   Judgment affirmed, with costs. Mem. by Learned, P. J.


text:
    Smith Hay, Appellant, v. Marcus S. Babcock, Respondent.
   Motion for leave to go to Court of Appeals denied.


text:
    Richard Hoag, Respondent, v. Thyrsa E. Hatch and others, Appellants.
   Appeal dismissed, with ten dollars costs. Mem. by Landon, J.


text:
    Dennis Maher, Respondent, v. Mrs. George W. Wilson, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Garrie H. Delamater, Administrator, etc., Respondent, v. The Prudential Insurance Company, Appellant.
   Judgment and order affimed, with costs. Opinion by Learned, P. J.


text:
    Deborah Dwyer, Appellant, v. Rathbone, Sard & Co., Respondent.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Elizabeth Ludlow, Appellant, v. Jacob Carr, Respondent.
   Judgment affirmed, with costs. Opinion by Learned, P. J.; Ingalle, J., not acting.


text:
    Jerome Bean, Respondent, v. George Van Dyke, Appellant.
   Judgment affirmed, with costs.


text:
    Ella L. Dunckel, Appellant, v. Ephraim Failing and others, Executors, etc., Respondents.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    In the Matter of the Will of Thomas Lantry.
   Decree affirmed, with costs against appellant. Opinion by Learned, P. J.


text:
    Richard Hoag, Appellant, v. Henry M. Prime, Respondent.
   Judgment affirmed, with costs. Mem by Learned, P. J.


text:
    In the Matter of Charges against Patrick Grogan, Police Justice of the Town of Watervliet.
   Motion for reference denied and charges dismissed. Opinion by Learned, P. J.

Note. —Decisions, in cases not reported, of the May, 1889, Term, First Department, will be found in next volume.


author: Daniels, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of BENJAMIN A. KAVANAUGH, Deceased.

      Section 7, chapter 201 of 1866. refers to chapter 319 of 1848, embodied in the “fifth edition ” of the Sevised Statutes.

    The reference in section 7, chapter 201 of the Laws of 1866, to title 7 of part 1 of chapter 18 of the Revised Statutes, in relation to devises or bequests by will, refers to chapter 319 of the Laws of 1848, and the acts amending it, which, in the compilation of the statutes, made in the year 1859, were added to the original Revised Statutes of 1830, as title 7 of chapter 18 of part 1, no such title existing in the statutes as revised, and it being evident that the reference was made to what is known as the fifth edition of the Revised Statutes.
    Appeal by the Sisters of the Poor of St. Francis, legatees named ■in the will of Benjamin A. Kavanaugh, deceased, from that portion of the decree of the surrogate of the county of New York, entered in his office on the 13th day of July, 1888, which declared the sixteenth clause of the will of said decedent to be void.

      George Bliss, for the appellant.

      George W. Carr and Daniel P. Hayes, for the respondents.
   Daniels, J.:

The testator made and executed his will on the 18th of August, 1887, and died on the twenty-ninth of the following month. He left him surviving his mother, Margaret Kavanaugli, of Liscarroll, Cork, Ireland. By the fifteenth paragraph of his will, after directing the payment of various legacies to his relatives, including his mother, and to other parties, he gave, devised and bequeathed two-thirds of all the rest, residue and remainder of his property to the Little Sisters of the Poor in the city of New York, directing them to divide it equally between the houses in Seventieth and One hundred and Sixth streets in said city. These sisters were incorporated under and by virtue of chapter 201 of the Laws of 1866. By section 7 of this act the corporation was made subject to the provisions of title 7, part 1, chapter 18 of the Revised Statutes, in relation to devises or bequests by will. But as the Revised Statutes were enacted by the legislature they contained no title 7, chapter 18, part 1. Chapter 18 of part 1, as it was enacted, includes no more than four titles. But, after the enactment of the Revised Statutes, compilations were made of the statutes and published as the Revised Statutes of the State. The second and third of these were under the sanction of -the revisers themselves, and published with the additions and changes made in the general laws by the legislature, in January, 1836 and 1816. After that, compilations of the general statutes, including so much of the Revised Statutes as remained unchanged, were also published as the Revised Statutes of the State. As these additions have, in this manner, been published they have been mentioned, cited and referred to as the Revised Statutes of the State. In these compilations additional titles have been made of general laws enacted by the legislature of the State, and, in this manner, chapter 319 of the Laws of 1818, aud the acts amending it, providing for the incorporation of benevolent, charitable, scientific and missionary societies, were added as title 7 of chapter 18 of part 1 of the Revised Statutes.

In this manner this act, with its amendments, was incorporated in the compilation of 1859, which preceded the enactment of the statute incorporating the appellant. From the language employed in section 7 of the act incorporating the appellant, the intention of the legislature is clearly evinced to refer to the preceding law relating to devises or bequests by will. This act of 1818, with its amendments, was such a law; and as it was contained at the time of the enactment of chapter 201 of the Laws of 1866, in the compilation pub-listed as the fifth edition of the Revised Statutes of the State, and was denominated title 7 of chapter 18 of the first part of those statutes, it is to he presumed that this was the act in this manner referred to, and to which the appellants were intended to be brought into subjection. This statute, in this manner incorporated and published in this compilation called the Revised Statutes, has by its sixth section declared that, “ no person leaving a wife or child or parent shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate after the payment of his or her debts, and such devise and bequest shall be valid to the extent of such one-fourth; and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.” There was no other provision of the law so far answering the description contained in section 7 of chapter 201 of the Laws of 1866 as to be brought within the language or reference contained in this section, of the act. And as the compilation then existing and used was called and referred to as the Revised Statutes, and the law of 1818, with its amendments, was contained therein, as title 7 of chapter 18, part 1, the inference is irresistible that this section 6 is what the legislature intended the appellant should be subjected to by the reference contained in section 7 of the act of 1866. And that rendered this bequest, contained in the fifteenth paragraph of the testator’s will, invalid, as the will was executed less than two months before the time of his decease. The surrogate was right in the construction of the law adopted by him, and which resulted in the decree excluding this fifteenth paragraph from the will, and holding it to be inoperative and unlawful.

The decree should be affirmed, but, under the circumstances, it should be without costs.

Van Brunt, P. J., and Brady, J., concurred.

Decree affirmed, without costs.


text:
    ELLA L. WINTON, Respondent, v. WALTER W. WINTON, Appellant.

      Imprisonment for non-payment of alimony — discharge from custody on expiration of the three months — the pa/riy is not liable to arrest for the non-payment of alimony subsequently falling dm.

    Where a defendant has been arrested and imprisoned for the non-payment of alimony, previously directed to be paid by the judgment in an action for divorce, and remains in prison under the commitment, because of such default of payment, for the full term for which he could he imprisoned under section 111 of the Code of Civil Procedure, he is not thereafter liable to arrest and imprisonment because of the non-payment of alimony subsequently becoming payable under the provisions of said judgment, as such section prohibits the imprisonment of the party upon a like process, not for the non-payment of the same sum of money, but under a like process issued in the same action.
    Appeal by the defendant from an order adjudging him guilty of contempt and imposing a fine, and directing the issuance of a warrant of commitment, made at the New York Special Term on June 7, 1888, and entered on the same day in the office of the clerk of the county of New York.
    The order was granted in an action brought for a limited divorce in which the defendant was adjudged to pay certain alimony to his wife, which he failed to do, and on the 9th day of August, 1887, because of such default, the plaintiff obtained an order to show cause why the defendant should not be punished as for a contempt, on the return of which he was fined in the amount which was payable under the judgment of divorce, and a warrant of commitment was issued to the sheriff of the city and county of New York, under which he was taken into custody and imprisoned for three months. After the defendant had been discharged from custody, and on April 27, 1888, being again in default of the alimony required by such judgment, the present proceeding was instituted by the plaintiff to punish him as for a contempt because of such default on his part.

      George W. Stephens, for the appellant.

      E. P. Wilder, for the respondent.
   Daniels, J.:

The defendant was arrested and imprisoned for the non-payment of alimony previously accruing, directed to be paid to the plaintiff by the judgment. He remained in prison under the commitment for that default in payment, for tbe full term for wliicb he could be imprisoned under section 111 of the Code of Civil Procedure; and it is because of that circumstance that this proceeding has been resisted for his imprisonment again for the non-payment of other sums of money afterwards becoming due under the judgment.

It was the object of this section of the Code, as it was enacted in 1883, to prevent the abuses which were considered to have arisen in the imprisonment of persons in civil actions under the law as it previously existed; and, by this section, the time for which a person may be imprisoned under an execution or other mandate to enforce •the recovery of a sum of money has been declared and restricted. And the section has been so framed as expressly to include a commitment upon a fine for contempt of court in the non-payment of alimony or counsel fees in a divorce case.” Then it has prescribed the length of time to which the imprisonment may be extended for such non-payment. And the section has further and finally declared that “ the prisoner shall not be again imprisoned upon a like process issued in the same action, or arrested in any action upon any judgment under which the same may have been granted.” This language, in its application to this case, is broad and plain, forbidding a further imprisonment upon a like process issued in the same action; and it has direct reference to the imprisonment previously authorized and sanctioned by this section, and, by its meaning and import, restricts and limits the imprisonment to what has been before provided for and described. If that is not to be the effect of this concluding language of the section, then it has accomplished nothing for the relief of a person imprisoned in an action for divorce. For as the law previously existed, where a person had been imprisoned for a contempt for the non-payment of a sum of money, and had been discharged from imprisonment by the court for his inability to comply with the order, he could not afterwards be arrested and imprisoned for the same default. There was no necessity for legislation to secure relief in that respect; for if the person could not endure the imprisonment, or his circumstances were such that he could not comply with the order for the payment of the money, and the court terminated and relieved him from imprisonment for either of such causes, his further commitment to enforce the payment of tlie same sum of money was neither sanctioned nor provided for by any provision of the law; and, for the future security and protection of the person, there, was no necessity, therefore, for the legislature to declare that he should not be again imprisoned for the same cause.

What was intended by the enactment of this section was to secure still further relief than that before sanctioned to the party who had previously been imprisoned and lawfully discharged. And that was described and directed in clear language, prohibiting the person from being again imprisoned upon a like process, not for the non-payment of the same sum of money, but issued in the same action. This language is very general and entirely unrestrained, and its obvious meaning is that no further process shall be issued against a person in an action for divorce, upon which he shall be committed to prison for the non-payment of a sum of money, after he has been once imprisoned and lawfully discharged under the preceding provisions of the section. If the enactment is not to secure this end, then it has accomplished no substantial benefit to the defendant required to pay alimony in an action for a divorce, for he may still be perpetually imprisoned if this section shall be held to permit his imprisonment after he has once been legally discharged under it. If that discharge is not to secure his protection against like proceedings afterwards instituted under the judgment, then, after he has served his first three or six months in prison and been discharged, he may be immediately arrested and committed again to prison for the non-payment of alimony accruing under the judgment while his imprisonment was endured. And this may go on from time to time through the entire period of his natural life. The intention of the law was not to permit this continued oppression and incarceration, but it was to restrict the right of imprisonment, when the period mentioned in the section should be fully endured by the party, to that imprisonment only, excluding after that the power to arrest or imprison the person in default of future payments.

Neither this construction nor the provisions contained in the section deprives the party in whose favor the judgment is recovered from any other remedy for its enforcement and collection; for it has provided that, notwithstanding such a discharge, the judgment-creditor in tbe execution, or the person at whose instance the mandate was issued, has the same remedy against the property of the person imprisoned which existed before the execution or mandate was issued. If the judgment-debtor, therefore, has property or means which can be resorted to for the payment of the judgment, the creditor is entitled to make use of it to obtain satisfaction from those sources. But the further imprisonment of the person of the debtor has been prohibited.

The order from which the appeal has been taken should, therefore, be reversed and the motion denied, together with the usual costs and disbursements.

Van Brunt, P. J., and Brady, J., concurred.

Order reversed and motion denied, together with the usual costs and disbursements.


author: Van Brunt, P. J.:

text:
    FRANK WORK and Others, Appellants, v. MILES BEACH, Respondent.

      Statement of account, coupled with a condition to “pay the amount due when he could do so” — any implied obligation to pay immediately is excluded by the express agreement.

    One Beach had two accounts with certain stock-brokers, one an individual account and the other a joint account, in which one Marston was interested with him. Beach not having a sufficient margin deposited to make good the joint account, an action was brought by the brokers, against Beach and Marston, to recover a balance due thereon, to which a defense was interposed by the defendants, but before the trial thereof Beach requested the stock-brokers to discontinue such action, to sell all of his margin held by them for both accounts, and, in consideration of such discontinuance, agreed that the proceeds arising from all the margins on both accounts should be credited in one account; that all advances on both accounts should be charged in the same account, the two accounts be consolidated, and that the balance after adjustment, if correct, he would assume as a liability against himself, “ and pay the amount due when he could do so.”
    This proposition was accepted, the action was discontinued, the securities sold and the accounts consolidated, resulting in a balance of some $14,000 against Beach.
    In an action, brought by the stock-brokers against Beach, to recover this balance a demurrer was interposed that the complaint, which set forth the foregoing , facts, did not state facts constituting a cause of action.

      Held, that the demurrer should be sustained.

      Tliat where an account is stated, and as a part of the transaction an express promise is given to pay, upon a condition, any implied promise which would otherwise arise from such statement of account is excluded by reason of the express contract.
    That the fact, in this case, that the balance was admitted to be correct by the defendant did not deprive him of the benefit of the condition with which that admission was coupled, that he would “pay the amount due when he could do so,” and that it rested upon the plaintiffs to show that he was in a_condition to pay this balance.
    Appeal by the plaintiffs from an order made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 24th day of January, 1889, sustaining a demurrer interposed by the defendant to the plaintiffs’ complaint.
    The substance of the complaint was, that prior to February 25,1885, defendant had two accounts with the plaintiffs, who were stockbrokers, one an individual account and the other a joint account in which one Marston was interested with him. That in June, 1884, the brokers, not having sufficient margin upon the joint account, began an action upon it against the defendant and Marston to recover a balance due thereon, and the defendant and Marston appeared and contested their liability. That in December, 1884, and before any trial, the defendant requested the plaintiffs to discontinue said action and sell all of his margins held by them for both accounts, and, in consideration of such discontinuance, agreed that the proceeds of all the margins on both accounts should be credited in one account; that all advances on both accounts should be charged in the same account; that the two accounts should be consolidated into said one account; that he would individually assume liability for the balance due on the accounts after such consolidation, and as soon as the accounts were adjusted, consolidated and reduced to one account he would examine it, and, if correct, would adopt it as a liability against himself “ and pay the amount due when he could do so.” “ That thereupon plaintiffs accepted and assented to said proposition, and in conformity thereto ” discontinued the action, sold the securities, consolidated the accounts, making the debits and credits as agreed, and on or about February 25, 1885, rendered to the defendant the consolidated account, showing a balance of $14,570.68 against him; and that the defendant examined the account, retained it for more than ten days and declared to the plaintiffs that it was correct. The complaint then averred that there upon the said account became an account stated, and the further fact that the balance had not been paid. The ground of demurrer was that the complaint did not state facts sufficient to constitute a cause of action.

      Henry S. Bennett, for the appellants.

      A. O. Brown, for the respondent.
   Van Brunt, P. J.:

It may not be at all necessary to add anything to the opinion of the court below, which satisfactorily and, we think, conclusively disposes of the questions raised upon this appeal. It may, however, be necessary to consider one or two points made by the counsel for the plaintiff, in which it is claimed that the court below misapprehended the theory of the complaint, in that the complaint excludes the idea that there was a new agreement which changed the original cause of action or discharged the original debt. We think that, upon an examination of this complaint, it clearly appears that the original debt was discharged and a new obligation created by the transactions therein recited. It appears from the complaint that the defendant had employed the plaintiff to buy and sell for himself, individually, and also for the joint account of himself and another, various stocks, bonds and other securities dealt in on the Stock Exchange; that the plaintiffs advanced money for making these purchases, and the defendant agreed to leave with them said securities, so purchased, or other valuable securities sufficient to keep them at all times fully indemnified and secured; that for some time previous to June, 1884, the joint account was in arrears and the plaintiffs demanded further security and indemnification from the defendant and his copartner, and brought an action against them to recover the amount advanced which had become due on the joint account; that the defendants duly appeared and interposed a defense contesting their liability on said account. While such action was pending a settlement of that litigation was made, the plaintiffs agreeing to diséontinue the action, and the defendant permitting them to sell the securities lield by them, both for his individual and joint accounts, and agreeing that the proceeds should be credited”in one account, and that the advances on both accounts should be also charged in one account; and that such account should be a consolidation of both accounts; and that he would, individually, assume liability for the balance due on-such account after such consolidation, and pay the amount due when he could do so. If this arrangement was not a discharge of the original debt, it is difficult to see how there could be an accord and satisfaction without actual payment. Claims were being made against the defendant and another which were contested. The plaintiffs held securities which belonged to this defendant, individually, and which had been deposited as security for his individual account and the joint account. The contest as to the liability on the joint account is settled by this arrangement, and the defendant permits the securities to be sold. The wording of the complaint, that he requested them to be sold, has no particular significance. The defendant permits the plaintiffs to sell the securities, and, in consideration of discontinuance of the action, assumes the whole liability and promises to pay the same when he is able.

It is true that this'transaction made this an account stated when the accounts were approved by the defendant as they were, and that in the absence of any promise to pay the law would imply a promise. But where an account is stated and, as part of the transaction, an express promise is given to pay upon a condition, that excludes the implied promise, because an express contract to do a thing excludes the idea of there being an implied contract. For example, when a man purchases goods and nothing is said about prices or time of payment, the law implies a contract to pay the value of the goods upon delivery. If, however, the purchaser makes an express promise to pay in thirty days after delivery, what under such circumstances becomes of the implied promise % It is clear that it does not arise. So in the case at bar, if there had been a settlement of these accounts, and simply an account stated had between these parties, an implied promise to pay would naturally have arisen. But in connection with the settlement is an express promise upon the part of tlie'defendant to pay when he is able. That is the condition upon which he consents to the accounts and to the sale of the securities, and upon which he withdraws his defense to the joint account. Now, after the plaintiffs have accepted the withdrawal of the defense and the sale of the securities, and have accepted the assumption of liability by the defendant, it seems to be difficult to see how they can escape the condition upon which that liability was incurred. In other words, they propose to have the benefit arising, from the settlement relieved from the burden which was specifically attached to it. The mere fact that the account was duly admitted to be correct by the defendant himself, does not deprive him of the conditions with which that admission was coupled.

It is urged, however, that, assuming the appellants to have agreed to forbear, where is to be found the consideration sufficient to support so important an agreement? The consideration seems to be apparent, and the whole question is begged when it is claimed that he had no defense to the account, for he investigated it and admitted its justice; since the admission of the account was induced by the acceptance of his promise that he should not be called upon to pay it until he was able, another instance in which the plaintiffs seem to claim every part of the bargain and settlement which tend in their favor, without taking into consideration anything given to the defendant because of the withdrawal of his contest. If the defendant had stated, “We will settle our differences; we will agree upon a certain sum, which I am to pay in six months,” could the plaintiffs, their claim being admitted, require tlie defendant to pay immediately ? The falsity of this position seems to be established the moment it is stated. Great stress'is laid upon the hardship of such a contract to the plaintiffs. It seems to us that it would be a gross hardship after tlie defendant admitted this account, upon the express undertaking that he was to pay when he was able, and, presumably, not before, that he should be called upon to pay, without proof of this condition. We know nothing of the hardship of the agreement. The defense, which was withdrawn; to the joint account may have been perfectly good, or it may have been a defense in which the chances of success were reasonable, and tlie defendant, for the purpose of getting the time in which to pay the alleged claim, may have been willing to waive his chances of success. He having done so, there is certainly no hardship in calling upon the plaintiffs to adhere to the bargain which they made' with the defendant, and which was the basis of the withdrawal of the defense to the action upon the joint account.

The judgment must be affirmed, with costs.

Bartlett, J., concurred.

Judgment affirmed, with costs.


text:
    MIGUEL GARCIA, as Executor of the Last Will and Testament of JOHN GARCIA, Deceased, Appellant, v. MARY R. CALLENDER, Respondent.

      Right of pre-emption reserved to the grandor in a deed — construction thereof.

    A covenant in a deed providing that the party of the first part thereto “shall at any time have the right of pre-emption of the premises above described and conveyed to the party of the second part by the party of the first part at and after the same price as the above-mentioned consideration for this conveyance, to wit, the sum of $12,000,” gives to the grantor the pre-emptive right, at any time that the grantee desires to sell the premises, to purchase the same.
    It does not confer the absolute right of repurchase at any time, at a given price, and until there is a desire to sell, on the part of the party of the second part to the deed, the pre-emptive right secured thereby to the party of the first part cannot be exercised.
    Appeal by the plaintiff from a judgment, rendered at a Special Term of tlie Supreme Court, in tlie city of New York, and entered in tlie office of the clerk of tlie county of New York on April 30, 1888, by wliicli tlie plaintiff’s complaint was dissmissed upon tlie merits.

      George H. Forster, for the appellant.

      Henry H. Anderson, for the respondent.
   Van Brunt, P. J.:

By deed, executed October 24, 1854, the plaintiff’s testator, John Garcia, conveyed in fee simple the premises in question, a dwelling-house, on Twentieth street, between Fifth and Sixth avenues, in tlie city of New York, to Jane J. Callender, the mother of this defendant. The deed contained the following covenant: And the said party of the second part, for herself, her heirs and assigns, doth hereby further covenant and agree to and with said party of the first part, her executors, administrators and assigns, that the said party of the first part, her heirs, executors and administrators shall, at any time, have the right of pre-emption of the premises above described and conveyed to the party of the second part by the party of the first part, at and after the same price as the above-mentioned consideration for this conveyance, to wit, the sum of $12,000.

Subsequently both the parties to this deed died. The plaintiff became the executor of the grantor, John Garcia, and the defendant became the sole heir of the grantee, Jane J. Callender, and continued to own and occupy the premises. Nothing appears to have been said or done in regard to this covenant until April, 1885, thirty-one years after the execution of the deed, when the plaintiff notified the defendant of a desire on his part to acquire said premises from her by the payment of $12,000, and a demand for a deed at that price was duly made. The defendant refused to convey said premises, stating that the property was not for sale; that she had not offered it for sale and did not intend to sell it. The plaintiff then brought this action to compel the defendant to convey the property to him for $12,000. The court below held that the plaintiff failed to show a right to the relief demanded and dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

It may not be at all necessary to add anything to the opinion of the learned judge who tried the case in the court below. But in view of the fact that attention has been called upon this appeal to certain definitions of the word pre-emption, which were evidently not before the court at the trial of the case, it may be proper to add a word or two to that which was so well said in the opinion rendered upon the trial.

In the construction of the words of a contract the intention of the parties is to be ascertained, if possible, and such intention is to control. It is clear that in this contract the use of the word pre-emption has no relation to the definition given of it by Blackstone, relating, as the word there does, entirely to the prerogative of purveyance, or the right upon the part of the king’s purveyors of buying up provisions and other necessaries for the king’s household. In international law the word had another definition, where it meant the right of a nation to detain the merchandise of strangers passing through its territories or seas in order to afford to its own subjects a preference of purchase. It is certain that this right was not referred to in the deed in question. By the laws of the United States the right given to settlers on public lands to purchase them in preference to others is called the pre-emption right. And as this definition more clearly refers to a subject-matter similar to that which the parties to this contract had under consideration, it must have been some similar right which was intended to be preserved.

It would seem to be clear that some other right than the mere right of repurchase at a given price was in mind or that a term much more common would have been used. And it, therefore, seems that the term in question was employed for the purpose of giving to the grantee a preference in the purchase, over any other person, when the grantee desired to dispose of the property in question.' In all the cases cited by the appellant’s counsel there was a clear covenant to reconvey; and although the phrase “right of preemption ” may have been used, yet in the instrument itself was defined what the parties intended by the use of that term as in the case of Randalls v. Sanders (23 Hun, 611; affirmed 87 N. Y., 578). But in no case has it been held that the mere giving of a right of preemption, without a covenant to convey at any time, gives a light to compel a conveyance against the wish of the grantee.

It may be true that this construction does not give the broadest effect to the words, at anytime, as is claimed by the appellant. But full effect may be given to those words by holding that at any time that the grantee desires to sell the grantor shall have the pre-emptive right to purchase. Ve think that this was what was intended by the parties to the instrument in question, and that the learned court was right in holding that until there was a desire to sell, the preemptive right could not be exercised.

The judgment should be affirmed, with costs.

Bartlett and Macomber, JJ., concurred.

Judgment affirmed with costs.


text:
    JOSIAH LOCKWOOD, Respondent, v. EDWARD GEHLERT, Appellant.

      Redemption from cm assessment sale —• notice to redeem — the certificate of the comptroller, must be signed and sealed by the seme comptroller — purchaser, how fern' affected by a judgment against the clerk of a/rrears.

    Under the provisions of section 9ll of chapter 410 of the Laws of 1882, relating to the redemption of lands from, sales for unpaid assessments thereon in the city of New York, the notice to4redeem, required to be served by section 948 of that act, is not of any effect, if such service is made before the lease of the property has been delivered to the purchaser at the sale.

      Lucas v. McEnerna (19 Hun, 14); Stewart v. Crysler (21 id., 285) followed; People ex rel. Morgenthau v. Cady (105 N. Y., 299) distinguished.
    The certificate mentioned in section 946 of the act which, when made under the hand and seal of the comptroller, makes the conveyance absolute and bars the rights of all persons interested in the property, must be sealed under authority and by direction of the same comptroller by whom it is signed, and cannot be legally sealed by liis successor in office. The certificate must not be under the hand of one comptroller and the seal of another, and it must be made before the day, and not on the day, of the delivery of the lease.

      Quaere, how far the purchaser at such a sale is concluded by the judgment of the court, in an action brought by the owner of the property against the clerk of arrears for permission to redeem, of which action, before the trial thereof, such purchaser has notice.
    Appeal by tlie defendant from a judgment, rendered at tlie New York Special Term, and entered in tlie office of tlie clerk of the county of New York on April 1888, adjudging that the plaintiff was entitled to redeem certain property from-a sale for the non-payment of an assessment levied thereon.

      A. J. Dittenhoefer, for the appellant.

      John Townshend, for the respondent.
   Daniels, J.:

By the judgment in the action, the plaintiff was adjudged entitled to recover the possession of land situated on Fourth avenue, near One Hundred and Twenty-sixth street, in the city of New York. The action was originally commenced in the name of Charles Fremont Willis, and the present plaintiff, having succeeded to his interest and title in the property, was substituted in his place as the' p1a.int.ifF therein. The evidence proved, and the proof, so far, was not controverted, that the plaintiff was the owner of the legal title to the property in dispute; but the defendant resisted his right to recover possession of the premises, under a sale made for the nonpayment of taxes and Croton water rents. After the making of the sale, the clerk of arrears, under the direction of the comptroller, caused an advertisement to be published for six"weeks successively, as that was required to be done by section 941 of chapter 410 of the Laws of 1882, that unless the lands sold should be redeemed by a date therein mentioned they would be conveyed to the purchaser. This» section further provided that in case of a failure to redeem the lands from the sale after the expiration of two years by the payment of the amount mentioned in the certificate of sale, together with interest thereon at the rate of fourteen per cent per annum from the date of the certificate, the comptroller, in the name of the mayor, etc., at the expiration of two years, should execute to the purchaser or purchasers his, her or their heirs or assignees, a lease under the common seal of the city, of the lands so sold, for the term of years for which the sale had been made. These lands were not redeemed within the two years, and on or about the 18th of January, 1884, a lease was made out and subscribed, as the statute required that to be done, for their conveyance to the defendant as the purchaser thereof. The purchaser on that day procured to be served upon the owner and the occupants of the land, notice in writing, stating the sale on the 24th of December, 1881, to him for the taxes of the year 1871, and to and including 1876, and the Croton water rents for the year 1872, and to and including the year 1875. This notice contained the statement that the lands had been conveyed to the defendant for the term of 1,000 years, the period for which they were sold, and that the amount then owing and required to be paid for the redemption of the land was $743.90, together with three dollars for the notice, advertisement and lease. A notice was thereby also given that unless the consideration-money mentioned in the conveyance, with ’the addition of forty-two per cent thereon, together with the sum of three dollars for the notice, advertisement and lease, should be paid to the clerk of arrears in the finance department of'the city of New York, for the defendant’s benefit, within six months after the service of the notice, that the conveyance would become absolute, and .the owners and all others interested in the lands would be barred from all right and title during the term of years for which the sale had been made.

At the time when these notices were served the lease had not been delivered to the defendant, neither was it delivered to him until the 24th of March, 1885. The statute contains no provision making the lease operative as a conveyance of title prior to the time of its delivery. But it requires, by section 941, that it shall be executed to the purchaser or purchasers, his, her or their heirs, etc. And this language could only be conformed with by the formal execution of the instrument, and its delivery to the defendant or to some person to hold it for his use. No such delivery was proved upon the trial, for the evidence went no further than to maintain the fact of the formal execution of the lease, and then its detention until the time when it was finally and actually delivered. This failure to deliver the lease must exercise an important effect over the defendant’s right. Bor, as the premises would not be conveyed until the lease was delivered to or for the defendant, he had no authority, under section 943 of the same act, to give notice to the legal owner and occupant of the property, requiring them to redeem it from the sale to save the title. What this section of the statute has pro-' vided is, that when the lands are conveyed and shall, at the time of the conveyance, be in the actual occupancy of any person the grantee to whom the same shall have been convéyed, or the person claiming under him, shall serve a written notice on the person occupying such lands and tenements, and in all cases on the person owning the property so conveyed, whether it be occupied or not, provided the owner resides in the city of New York, requiring the redemption, within the six months already mentioned, by the payment of the amount for which the premises may have been sold, with the expenses and forty-two per cent interest. It is only after the conveyance of the property has been made to the purchaser that he has, by this section, any authority to serve this notice for its redemption. And the same legal principles must be applicable to and control the facts constituting the conveyance as it would be necessary to observe in the execution of any other effectual conveyance of the title to land. And an essential act for the necessary completion of the conveyance is that it shall be delivered either to the grantee or to some person for him. Neither was done in this instance, and as the defendant could only give the notice for the six month’s redemption after the title had been conveyed, the notice which he did give was not operative, for it was given before the title, under the lease had become vested in him. And the court at the trial while it found all the proceedings to be regular down to and including the notice by the clerk of arrears, did not find a compliance on the part of the defendant with the law prescribing the service of the final six months’ notice upon the occupant and owner.

After the service of this notice, either personally or by leaving it at the dwelling-house of the occupant, or of the person owning the property conveyed, with an individual of suitable age and discretion, an affidavit has been authorized to be made of such service; and it has been further provided, by section 945 of the act, that to complete the title to the land conveyed the person claiming it shall file with the clerk of arrears the affidavit of some person residing in the city of New York who shall be certified as credible by the officer before whom such affidavit shall be taken, that such notice has been duly served, specifying the time, manner and mode of service. The next section then provides that, if the comptroller shall be satisfied by the affidavit that the notice has been duly served, and if the moneys required to be paid for the redemption of the lands shall not have been paid, he “ shall, under his hand and seal, certify the fact, and the conveyance shall thereupon become absolute, and the owner and all others interested in the lands or tenements shall be barred of all rights thereto during the term of years for which the same shall have been conveyed.” This affidavit was filed in the office of the comptroller, and on the 24th of March, 1885, the comptroller made and subscribed the certificate in this manner provided for, but he did not seal it.

These sections of the act of 1882 are substantially similar to those contained in the general laws relating to the redemption of lands sold for State taxes. The notice required to be served upon the occupant when the premises shall be occupied is substantially the same, and after the service thereof the grantee in the conveyance, in order to complete his title, is required to file with the comptroller of the State a copy of the notice served, together with the affidavit of some person, who shall be certified as credible by the officer before whom it shall be taken, that such notice was duly served, and specifying the mode of service. And when that is done and the comptroller shall be satisfied that the proper notice • has been so served, and the moneys so required to be paid have not been paid, he shall, under his hand and seal, certify such facts, and the conveyance before made shall thereupon become absolute, and the occupant and all others interested in the lands shall be forever barred of all right and title thereto.” (2 R. S. [7th ed.], 1030, 1031, §§ 68, 72, 73.) What the legislature endeavored to do in the exactment of this part of chapter 410 of the Laws of 1882 was to conform the proceedings to that required to perfect a tax title upon a sale made by the comptroller of the State. And for that reason the construction which has been given to the general law is applicable to these sections of the act of 1882; and by that construction it has been held that the title of a purchaser at t íe tax sale which will exclude the right of redemption, must be completed and certified in this manner. (Lucas v. McEnerna, 19 Hun, 14: Stewart v. Crysler, 21 id., 285.)

This last case, it is true, was reversed in the Court of Appeals (100 N. Y., 378). . But this reversal proceeded upon a ground leaving this principle entirely unaffected. The case of People ex rel. Morgenthau v. Cady (105 N. Y., 299) contains no statement or reference which will justify the omission of the certificate for a completion of the title. The statute in question, has been enacted in such language as to exclude that construction. For it has provided upon the certificate being made under the hand and seal of the comptroller, that the conveyance shall become absolute, and all persons interested in the land be barred of all right thereto. It is only in this manner that the conveyance can be made absolute. The clear implication of the statute is to that effect. For by providing what shall be done to complete and make the conveyance absolute, it has excluded all grounds for supposition that it could become absolute in any other manner.

Why the legislature should have required this certificate to be sealed is not manifested in the section of the act of 1882. Neither is it in the section 'of the general law using the same language. But that the certificate shall be both subscribed and sealed has been clearly required. Its effect when regularly made will be to divest the title of the owner of the property, and the legislature no doubt intended that so important an event should not be permitted without observing both these formalities. The act is one to be followed by grave consequences, that of forfeiting the estate of the owner for the period, as the sale was in this instance, of one thousand years, and the legislature intended that the law should be carefully, as well as formally, observed to produce this result. For that reason, in each of the statutes, it has required that the certificate of the comptroller of the State in the one instance, and of the city in the other, shall be under his hand and seal. This certificate did not comply with what this section of the act directed should take place to complete the title of the purchaser at the tax sale. For while it was subscribed by the name of the comptroller of the city, it was not sealed by him, but was sealed under the authority and direction of his successor in office. This section of the act required both to be concurrent, and by the same officer. It must be under his hand and seal, and not under the hand of one officer and the seal of another.

A still further and as grave a defect in the certificate consists in the fact that it was so made on the day, and not before the day, of the delivery of the lease. Because of these defects in the title of the defendant the owner of the property had the right to redeem, as he actually did on the 16th of February, 1888, by paying to the collector of assessments and clerk of arrears the sum of $1,059.31, for the benefit of the defendant. This redemption, it is true, was made under the authority of a judgment of the Superior Court, in an action brought by the plaintiff against the clerk of arrears, but of which the defendant before its trial had notice. It is not necessary to decide that he was, by reason of this notice, concluded by the judgment, although the case of Heiser v. Hatch (86 N. Y., 611), would indicate the law to be that he might be held to be bound.

What the law has required to divest the title by reason of a sale of land for taxes is a substantial compliance with all that has been directed to complete the sale and perfect the title of the purchaser. If any material defect intervenes in the proceedings, the title will fail and the owner will not be deprived of the right to redeem his property and hold it against a purchaser under the sale.

Tbe judgment in this case is right, and it should be affirmed, with costs.

Brady, J.,'concurred; Yan Brunt, P.. J., concurred in the result.

Judgment affirmed, with costs.


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    BARTHOLOMEW DONEGAN, Plaintiff, v. WILLIAM MORAN, Defendant.

      One copartner indemnifying a sheriff attaching prope?'ty in favor of the firm — contribution, from his copartner not signing the bond of indemnity, towa/rds the amount paid thereunder.

    A sheriff, under an attachment in favor of a firm, seized property, which was claimed by another party, who ultimately established his right thereto, and the sureties upon the bond of indemnity given to the sheriff were obliged to pay the value of the attached property. The sureties afterwards sued one member of the firm who had signed the bond of indemnity to recover the amount thus paid.

      Held, that the member of the firm so sued was entitled to contribution from his copartner, although such copartner did not sign the bond of indemnity.
    That, by the seizure of the property, under the attachment issued in favor of the firm, a joint liability was incurred by such firm to the party whose property was thus unlawfully taken, and the copartners were jointly liable to the real owner thereof for the property so seized.
    That the obtaining of the bond of indemnity, and the signing thereof by the partner who executed it, was within the scope of the authority of such partner and rendered the act that of the copartnership.

      Tom v. Goodrich (2 Johns., 218); United States v. Astley (3 Wash., 508) distinguished.
    Motion by the plaintiff for a new trial, on the exceptions taken at a trial had June 4, 1888, at the New York Circuit before court and jury, and ordered to be heard in the first instance at the General Term.

      Edward E. Sprague, for the plaintiff.

      Nelson Smith and Stewart Rapelye, for the defendant.
   Daniels, J.:

The defendant and Robert O. Brown were engaged in business in the city of New York, as partners, in the year 1880, under the firm name of Moran & Brown. They commenced an action against Alfred Edwards as defendant, in which an attachment was issued to the sheriff of the county of New York, directing him to attach and safely keep the property of Edwards, or so much as might be necessary to satisfy the plaintiff’s demand of $212, with interest and costs. The sheriff seized property under the attachment which was claimed by the Russell & Hopper Manufacturing Company. To induce and protect the sheriff in continuing to hold the property under the attachment, a bond of indemnity was executed and delivered to him, in which Robert C. Brown, one of the partners, was the principal and A. D. Wyckoff and the plaintiff, Donegan, were the sureties. This bond was conditioned that the obligors should well and truly save and keep and bear harmless and indemnify the sheriff, and all persons aiding and assisting him in the premises of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, etc., that should or might arise, come, accrue or happen to be brought against them, or any of them, for or by reason of levying, attaching and making sale, under or by virtue of the attachment, of any personal property they should judge to belong to the debtor. An action was brought by the Russell & Hopper Manufacturing Company against the sheriff to recover the property levied upon by virtue of the attachment. And in that action the company recovered judgment. After that the sheriff instituted a suit upon the bond and recovered a judgment against the obligors therein, and that judgment was paid by the plaintiff. And this action has been brought by him against Moran, the member of the firm who did not sign the bond, to recover the amount so paid. It was proposed to prove that Moran, the defendant in this action, gave instructions to the sheriff concerning the defense of the suit brought to recover the possession of the property seized under the attachment, and that he was a witness upon the trial of that action. But the court excluded this as well as nearly all the other evidence offered by the plaintiff, and dismissed the complaint. This course was deemed to be warranted by what had beeen decided in the cases of Tom v. Goodrich (2 Johns:, 213) and the United States v. Astley (3 Wash., 508). These are cases where bonds had been executed for the security of duties to the United States government, upon property imported into this country for the benefit of the firms, one of whose members only was a party to the bond. And it was'held that the other copartner was not liable to refund to the surety the amount paid by him in satisfaction of the obligation created by the bond. These decisions, however, proceeded upon the circumstance that the bond given to the custom-house authorities excluded all liability of the party proceeded against for the payment of the duties, and for that reason he could not be called upon to refund the amount paid out by the surety in the bond. This case in this respect is distinguished from those authorities. For, by the seizure of the property under the attachment issued in favor of the defendant and his copartner, a joint liability was incurred by them to the company whose property had been unlawfully seized in this manner. They were liable, both jointly and severally, as long as the property seized, in fact, belonged to the Russell & Hopper Manufacturing Company, to that company for the value of the property so seized. And they continued to be so liable, notwithstanding the fact of the bond being given to the sheriff for his protection and indemnity against liability and damages for having-seized this property under the attachment. The execution and delivery of the bond, therefore, to the sheriff was an expected benefit secured to this defendant, for it induced the sheriff to withhold the property attached from the claimant for this firm, claiming to be entitled to it for the satisfaction of the debt mentioned in the attachment. Obtaining the bond and the plaintiff’s signature to it for this purpose was within the scope and authority of Robert C. 'Brown, the other partner in the firm, and rendered the act that of the partnership. The commencement and prosecution of the action was within the limits of and appertained to the partnership business. And when the plaintiff, at the request of Brown, became a party to the bond, he did so for the benefit of this firm. Brown in making the request did not act solely for himself, but for himself and the defendant, who was his partner. And the bond was obtained to entitle them to have the sheriff hold and retain in his possession the disputed property which had been taken under the attachment; and as the plaintiff had become a surety in the bond for the benefit of the firm, and that fact appeared upon the face of the bond itself, and afterwards was obliged to pay, by virtue of its provisions, the amount of the judgment recovered by the sheriff, and in that manner relieved this firm to that extent from liability, its members became liable to.refund to Mm the amount of money which for this purpose he had paid. In Weaner v. Tapscott (9 Leigh [Va.], 424), the plaintiff had subscribed a sealed instrument with a member, and in the business of a firm as a surety, and he had been obliged, by virtue of the obligation, to pay the amount for which it was given. And he brought his action afterwards for his indemnity against the other partner, who was not a party to the instrument, and was held to be entitled to recover. In Lowry v. Hardwick (4 Humph. [Tenn.], 188), two members of a firm were sued and execution was stayed by the plaintiff as a surety. He was afterwards obliged to pay, and brought his action against a third member of the firm to recover what he had paid, and it was held that he was entitled to succeed in the action. In Wharton v. Woodburn (4 Dev. & Bat. [N. C.], 507), the court made a similar ruling; and so it did in the case of Purvianoe v. Sutherland (2 Ohio St., 478). There the note had been signed by one partner with the name of the firm and sealed^ Sutherland was a surety in this note, and after payment he was held to be entitled to recover against another member of the firm. And a like ruling was made in Burns v. Parish (3 B. Monroe [Ky.], 8), and in Hikes v. Crawford (4 Bush. [Ky.], 19). In Sandilands v. Marsh (2 Barn. & Ald., 679) an instrument was signed by the surety which was executed by one of the firm but in its business. And the court held that the surety was entitled to call upon the other for indemnity and protection. after he had been obliged to pay the obligation, to which he in this manner became a party. And in Konitzky v. Meyer (49. N. Y., 571) it was held, in general terms, by the court that where one person at the request of another became a surety for him the law would imply a promise of indemnity on the part of the person making the request. And this case was brought within the operation and effect of that principle, for the request of Brown to the plaintiff to become a party to the bond was, in legal effect, the request of the defendant also, the other member of the firm having acted in the business and for the benefit of the firm itself. These authorities clearly demonstrate the conclusion that the case was not one which could be disposed of by virtue of the rule followed in the two decisions first referred to. It is true that the authorities which have been here cited in support of the plaintiff’s action were cases proceeding or growing out of the existence of debts and claims voluntarily created for the parties ultimately held liable to satisfy by reimbursing the sureties. But no substantial difference can arise out of that circumstance rendering them inapplicable to this case. For here there was a joint liability created by the voluntary action of the firm in seizing the property of a third person under an attachment issued against their debtor. For that seizure both members of the firm became legally liable. And that liability was assumed and extinguished through the obligation to which the plaintiff had subjected himself by the execution of the bond of indemnity to the sheriff. The firm in this manner had the benefit of the payment. And as the plaintiff had been induced to place himself in this position of liability by the request of one of the members of the firm, acting for and to secure an advance to that firm, each member was liable to protect him against the consequences of the act performed in this manner by him. Certainly, while there was.no direct proof of an individual request from the defendant to the plaintiff to. sign the bond for the firm, there was evidence offered in the case from which even that fact could have been inferred and found by the jury, and it was error to reject the proof and in that manner exclude the case from their consideration.

The verdict should be set aside and a new trial ordered, with costs to the plaintiff to abide the result.

Van Brunt, P. J., and Brady, J., concurred in the result.

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


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    CARRIE E. GOODHART, Respondent, v. CHARLES P. LATTING and Another, as Commissioners for Loaning Certain Money of the United States, etc., Appellants.

      Commissioners for loaning certain money of the United Slates — need not publish notices in the paper selected under chapter 656 of 1874 — they are State, not county officers.

    Tlie commissioners for loaning certain money of the United States, appointed under chapter 150 of the Laws of 1837, are not obliged, in publishing the notice required by law for the foreclosure of the rights of mortgagors in lands upon which mortgages have been given, to publish the same in the paper selected under the provisions of chapter 656 of the Laws of 1874, as such commissioners are within the exception prescribed by said act, which does not “require the publication of any advertisements, notices, reports or statements, now under the direction or control of any officer of the State government, in such paper.”
    The commissioners, selected under chapter 150 of the Laws of 1837, have not been made subject to the control or interference of any county authority, but they hold their offices and discharge their duties wholly in subordination to the provisions and direction of the statute, and although they are known as commissioners of the several counties for which they are appointed, the powers possessed by them are determined by the statute of the State, and their duties relate wholly to the management of the property of the State.
    Appeal by the defendants from an order made at the Special Term of the Supreme Court of Westchester county, and entered in the office of the clerk of the county of New York on the 9th day of February, 1889, granting a motion made by the plaintiff to continue a preliminary injunction pending the hearing and determination of this case. The defendants were commissioners for loaning certain money of the United States, appointed under chapter 150 of the Laws of 1837.

      Leslie W. Russell, for the appellants.

      Joseph P. Joachimsen, for the respondent.
   Daniels, J.:

The action was brought to restrain the defendants as loan commissioners, from making sale of two parcels of land described in the complaint. They had loaned portions of what is called the United States déposit fund on two separate mortgages on this property, situated in the city of New York. Default had been made in the payment of interest upon the loans secured by the mortgagees, and the effect of that default was to vest the commissioners with the absolute title to the lands described in the mortgages, subject only to an outstanding right of redemption (1 R. S. [6th ed.], 750, § 32.) To extinguish this right of redemption the commissioners were required by the statute to cause an advertisement to be put up in not less than three public places in the county where the premises were situated, containing a description of the lands mentioned in the mortgages, and to cause a copy of the advertisement to be published in at least one of the public newspapers printed in the county, if any there should be, and if there should be none, then in the nearest paper to the county, once in each week, successively, until the day of sale. This notice was required to be posted and published within eight days after the time prescribed for the yearly attendance of the commissioners, and they were required thereby to give notice that the sale would take place on the first Tuesday of February, then next. A copy of the advertisement was also directed to be served upon the mortgagor, or his personal representatives, and upon such persons as should appear to be grantees, lessees or mortgagees of the premises, and upon all persons having any lien or incumbrance thereon, by judgment or otherwise, subsequent to the commissioners’ mortgage, and a sale made pursuant to the notice would extinguish the owners’ right of redemption. (1 R. S., 750, 751, §§ 33, 34.) The commissioners proceeded to comply with these requirements of the statute for the posting, publication and service of notices, and published their notice in the paper, published in the city of New' York, called the Daily Register. The plaintiff, insisting that this publication was irregular and without authority, for the reason that the New York Law Journal had been selected for the publication of the notices mentioned in chapter 656 of the Laws of 1874 (Preface to Laws of 1875), obtained an injunction in this action restraining the sale of the premises. This act has provided for the designation of a daily law journal in the city of New York, in which there shall be published every notice or advertisement in legal proceedings required by law to be published in one or more papers in said city or county. And in case the notice is to be published in only one paper, then the publication shall be made in the paper designated under this authority. This general direction, however, as to the publication of notices has been so qualified as not to require the publication of any advertisements, notices, reports or statements now under the direction or control of any officer of the State government in such paper.”

The object which this act seems to have had in view was the publication of notices and advertisements in legal proceedings pending or commenced in the courts. The journal to be designated has been described as a daily law journal, and the calendars of the courts of record held in the city and county of New York have been required to be published in this paper, as well as notices and advertisements already mentioned. It provided a means through which legal information should be conveyed, and the journal mentioned in the act was intended to include the publication of such information and notices as would be adapted to promote the business of the courts. This was not a proceeding in any court, but it was under special provisions of a general statute of the State relating to the management, loan and collection of the United States deposit fund. This fund, under an act of congress passed in 1836, was placed in the custody of the government of the State of New York, subject to certain obligations mentioned in the act. Practically, however, it was donated to the State, and it has been used and managed for the benefit of the schools and educational institutions of the State, and no county in the State had any right or interest in the moneys beyond those prescribed by chapter 2 of the Laws of 1837, and the amendments afterwards enacted. These statutes provided for the division of the interest moneys among the schools in the towns, cities and villages of the State, and their management, loaning and collection were placed under the supervision of officers in each county to be nominated by the governor and confirmed by the consent of the senate of the State.

The commissioners selected in this manner have not been subjected to the control or interference of any county authority, but they have held their offices and discharged their duties wholly in subordination to the provisions and directions of these statutes. And while they are known and designated as commissioners of the several counties in which they are appointed they derive no authority from such counties, but all the powers and authority possessed by them are derived from the statute of the State, and their selection and eonfirma,tion -by tlie governor and senate. Their duties relate wholly to the management of the property of the State, and not of that of the county in which they may be respectively appointed to act.

After the enactment of the first of these statutes, by sections 1 and 2 of article 10 of the Constitution of the State, certain officers, not including these commissioners, have been required to be elected for each county by the electors thereof, and all county officers whose election or appointment has not been provided for by the Constitution have been required to be elected by the electors of the county or appointed by the board of supervisors or other county authorities, as the legislature shall direct. And if these commissioners are officers of the county, then they should be elected by the electors of the county or appointed by the board of supervisors, or other county authorities. But that has not been done or provided for in any manner, the legislature evidently considering them not to have been included in these constitutional provisions. While their functions and duties are to be exercised and performed in the county for which they may be appointed, those functions and duties include no part whatever of the county government, but are wholly directed to the supervision and management of property belonging to the State. This has at all times been regarded as the true scope of their powers, duties and authority. And the uniform conduct of the government in this respect strongly fortifies the construction which it has already been suggested these constitutional provisions should receive. A nd the notices required to be given by the commissioners, under this construction of their duties and authority, are, by its own limitation, excluded from the effect of chapter 656 of the Laws of 1874. The act of 1837 (chap. 150) was intended t'o supply and provide a uniform system and mode of proceeding for the commissioners in every county in the State, while the act of 1874 related only, as its object has been declared in its title, to the publication of judicial proceedings and legal notices in N ew Tork city and county; and being a special and a local act, under well-settled principles of statutory construction, it should not be construed to be applicable to a proceeding under the act of 1837, which the law intended should be uniformly conducted according to its own provisions, by the commissioners in each one of the counties of the State. The commissioners’ notice of sale cannot, therefore, be required to be published in the daily law journal designated for the city of New York, but it may be legally and regularly published in any newspaper printed in the county, under the authority of section 33 of chapter 150 of the Laws of 1837, as that has since been amended.

The commissioners’ notices were published in this manner, and that publication being regular, the injunction was issued and continued without authority. The order should be reversed, with ten dollars costs and the disbursements, and the motion denied, with costs.

Van Brunt, P. J., and Brady, J., concurred.

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


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    JOHN KEENAN, Respondent, v. JOHN O’BRIEN and HEMAN CLARK, Appellants.

      Commission to examine in his own behalf, in a civil action, a fugitive from justice, refused.

    Upon an appeal from an order granting leave to issue a commission to examine, in an action, upon his own application, the plaintiff, who was in Canada, although a resident of this State, it appeared that the plaintiff was absent from the Stale because of indictments which wore pending therein against him.

      Held, that the order should be reversed.

      McMonagle v. Conkey (14 Hun, 326) followed.
    That it was not the case óf a plaintiff who could not come to testify, but of one who refused to come to testify, and by his voluntary absence refused to submit himself to the authority of the court.
    That such a plaintiff, being a resident of the State, could not call upon the court to furnish the facilities which would enable him to continue to evade its authority.
    Appeal from an order made at a New York Special Term, granting leave to issue a commission to examine tbe plaintiff, wlio is in Canada, although a resident of this State ; which order was entered in the office of the clerk of the city and county of New York January 22, 1889.

      E. T. Lovatt, for the appellants.

      George Bliss, for the respondent.
   Van Brunt, P. J.:

It is apparent that the plaintiff in this action is absent from the State because of the indictments which are pending against him, and is brought directly within the rule laid down in the case of McMonagle v. Conkey (14 Hun, 326), in which case it was held that where a plaintiff had fled to Canada to avoid criminal arrest; under the circumstances, such plaintiff should not have a commission to examine himself; and where the plaintiff is a fugitive from justice, having gone to Canada to escape trial on an indictment found against him in this State, and is, therefore, unwilling to submit to the authority of this court, and refuses to come into this State to give testimony, that, in the exercise of a sound discretion, the commission should not be granted.

In this view we concur. It is not the case of a plaintiff who cannot come to testify, but it is that of a plaintiff who refuses to come to testify, and by his absence is refusing to submit to the authority of our courts. Such a plaintiff, being a resident of the State, certainly cannot call upon the facilities.of the court to enable him to continue to evade its authority.

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

Bartlett and Macomber, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.