author:
Follett, J.:
      Bbunt, P. J.:

text:
    Jose F. J. Xiques, Appellant, v. The Bradstreet Company, Respondent.

      Mercantile agency — reports upon financial standing — its liability to its subscriber's. ,
    When the contract between a mercantile agency company and one of its subscribers, for the furnishing of information as to the financial standing of persons in business, expressly stipulates that the company “shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company in procuring, collecting and communicating said information,” the company cannot be held liable to the subscriber for the consequences of misinformation, unless the company is so grossly negligent in acquiring or communicating it that its conduct in effect amounts to a fraud.
    When a subscriber to a commercial agency company, under a contract to furnish information, which contains the above stipulation and a stipulation to the effect that the company does not guarantee the correctness of its information, applies to the company for information as to the commercial standing of a person named, described in the inquiry as doing business at a certain address in a certain city, and the company, not finding such person at the address given, furnishes a favorable and correct report upon a person of the same name doing business at another address in the city na'med, and the subscriber then, without making further inquiries, sends goods on-credit to the address mentioned in his inquiry, but to which the report did not relate, and it turns out that no person of the name in question is doing business at the address to which the goods were sent, hut they are delivered by the carrier to a person calling himself by that name, and are not paid for, the subscriber cannot, on such facts and in the absence of evidence that the company did not make inquiries, maintain an action against the company to recover damages on the ground that they were occasioned by its negligent performance of its contract to furnish information.
    Appeal by the plaintiff, Jose F. J. Ñiques, from a judgment of tbe Supreme Court, dismissing bis complaint, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 5 th day of December, 1892, upon a verdict directed for tbe defendant at tbe New York Circuit, and from an order denying tbe plaintiff’s motion for a new trial made upon tbe minutes.

      Benjamin G. Uitohings, for tbe appellant.

      John JET. Bird, for tbe respondent. '
   Follett, J.:

This action was Drought to recover damages occasioned oy the alleged negligent performance of a contract entered into between the parties.

Since 1884 the plaintiff has been a manufacturer and dealer in cigars in tbe city of New York. In 1876 tbe defendant was incorporated under tbe laws of tbe State of Connecticut, for tbe purpose of conducting a mercantile agency and collecting and disseminating information in respect to tbe standing and condition of persons engaged in business within tbe United States and Dominion of Canada. In tbe course of its business the defendant for many years has published printed volumes containing tbe mames of persons, firms and corporations engaged in business, tbe kind of business in which engaged and their place of business, and also showing their supposed financial standing and business reputation. Tbe defendant in the course of its business delivers a copy of this book to every one of its subscribers.

•On tbe 12th of January, 1885, tbe litigants entered into a written contract, of which tbe following is a copy:

“ (129) Original — For the Bradstreet Company.
The Undersigned hereby employs The Bradstreet Company, from January 12th,...... 1885, to January 12th,...... 1886, to procure, to the best of its ability, information concerning the responsibility and character of Mercantile Persons inquired for, within the States represented in the volumes loaned, said inquiries not to exceed......50......except as hereinafter agreed. And in consideration of such service, including the loan of the January...... 1885,...... 188 , July,...... 1885, and’......188 . Volumes of its U. S. and Canada Reports, the undersigned hereby agrees to pay The Bradstreet Company,......one hundred......dollars, pay $50 now and $50 1st July, ’85, at the commencement of the said subscription term, and for each inquiry exceeding the ......50......before-mentioned thirty-three and one-third cents on demand. And it is further expressly agreed, by the undersigned, that all information, whether printed, written or verbal, furnished by The Bradstreet Company, to the undersigned, shall be held in strict confidence, and shall never be revealed to the persons reported; that the undersigned will neither ask for information for the use of other parties, nor permit it to be done; that the said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company in procuring, collecting, and communicating said information; that the said company does not guarantee the correctness of the aforesaid information, and that the said volumes to be loaned, as aforesaid, shall be returned to the company, without notice from it, upon the receipt by the undersigned of any subsequent edition of its books, or at the expiration of the subscription term. It being understood and agreed that the company reserves the right to reject, or, upon the return of a fro rata sum of the amount paid, to cancel this subscription and recall the volumes. The conditions of this subscription, as set forth above, embody and merge all the agreements and understandings heretofore made or had with said company, or its agent or agents acting in its behalf, either verbal or written.
“ J. F. J. XIQUES.
“Street address......316 Canal st.
“ Dated at Jany 12th, New York,..... 1885, P. O. Box.....
“ Enter here place at, and date when signed.”

The volume delivered to the plaintiff contains the following:

“ Herman Brinker, grocer, Detroit, Michigan. W. D.”

The letters W. D. indicate that Brinker was estimated to be worth two or three thousand dollars, and that his credit was fair.

A copy of the above contract was inclosed to the plaintiff m a letter of which the following is a copy:

“ Executive Offices, 1
“New York, Pee. 31, 1886. j
“Established 1849.
“ Charles E. Clark, Pres., Edward E. Randolph, Treas.
Capital & Surplus exceed $1,500,000.
“ The Bradstreet Company.
“ Executive Offices, 279, 281, 283 Broadway.
“New York, Pee. 81, 1888.
“ Mr. J. F. J. Xiques,
New YorTc, N. Y:
“We are to-day in receipt of your subscription and, having emered its details on our ledger, beg to hand you herewith a verbatim copy of same that there may be no misunderstanding on your part as to its terms and conditions.
“We shall spare no efforts to furnish you information promptly in reply to your inquiries and shall, in return, require at your hands a full recognition of our rights as set forth in the contract.
“ Yours very truly,
“CHARLES F. CLARK,
President.”

In September, 1885, the plaintiff received two letters of which the following are copies:

“ Office of Herman Brinker,
“ 263 Grand River Ave.,
“ Detroit, Michigan, Sept. 19th, 1885.
“Mr. Jose E. J. Xiques, New YorTc':
“ Dear Sir • — • Please send me by express, samples of your manufacture, ranging in prices from $25 to $35, and from $45 to $65. Should you keep imported Havana segars, please quote the prices, and if convenient, send also a few samples.
“ Yery respectfully,
“H. BRINKER.
“Office of Herman Brinker,
“ 63 Grand River Ave.,
“ Detroit, Michigan, Sept. 28, 1885.
“Mr. J. F. J. Xiques, New York:
“ Dear Sir— Tours of Sept. 25th. received, and would be pleased to see samples of domestic and imported cigars. Domestic to range in prices from $25 to $35, and $55 to $75, and imported up to about $150 per mille. Please send per American Express.
“Yery respectfully yours,
“H. BRINKER.”

Shortly after .the reception of the last letter, the plaintiff sent samples of cigars, of the value of sixty-three dollars and seventeen cents, addressed to “Herman Brinker, 63 Grand River Avenue, Detroit.” Afterwards the plaintiff received the following letter and order:

“ Office of Herman Brinker,
“ 63 Grand River Ave.,
“ Detroit, Michigan, Oct. 5, 1885.
“Mr. J. F. J. Xiques, New York:
“Dear Sir — Tours of the 1st inst., and samples to hand, ana sent you enclosed an order for 5 milles imp. cigars. Please ship same per Blue Line fast freight, via Canada Southern. Some of the domestics that you sent me, I think will take here, and will see what can be done with them. Please send me samples of your Picadura Cheroot, and I have no doubt that I can handle it satisfactorily if the price is not too high, and goods acceptable. Tou did not quote price for them.
“ If I should introduce the brand, I would, as a matter of course, expect to have sole control of same for Detroit and vicinity, as per your proposal.
“ Expecting to hear from you.
“Yery respectfully,
“H. BRINKER.
“Office of Herman Brinker,
“-63 Grand River Ave.,
“ Detroit, Michigan, Oct. 5, 1885.
“ Order, per fast freight, Blue Line, via Canada Southern.
2 milles............ Eanita............... Medianos---- 77
1 “ ............ “ ...............Bouquets..... 115
1 “ ............ Carolita Conch........ Esp........... 91
1 “ ............ “ ........ Beg. Beina ex. 105
“ Please select medium colors.”

On the 7th of October, 1885, the plaintiff sent the following to the defendant:

“ Bradstbeet’s, \
“Nos. 279, 281, 283 Broadway.
“New Tork, Oct. 7, 1885.)
“ Give us in confidence, for our exclusive use and benefit in our business, as per contract, the results of your investigations concerning the character, standing, responsibility, etc.., of
“ Name................................ Herman Brinker:
“ Business.................»............ Grocer.
“ Street and No......................... 63 Grand River Ave.
“ City (or P. O. Address)................. Detroit.
“ County...............................
“ State..............;.................. Michigan.
J. E. J. Xiques................ Subscriber.
“192B’way.................. P. O. Address.
“No information will be furnished except upon the proper filling up of this blank, cmd the signature of the subscriber.”

Stamped on face: “Western Department, New Tork, Oct. 14, 1885.

“Rec. 3, 22, ’82.”

To this inquiry, the defendant replied as follows:

“Brinker, Herman, Grocer & Saloon, Detroit, Michigan, 573 Russel, cor. Ohio.
“ Additional:
“ Has continued doing quite fairly since last report, and has been making steady headway. Property has also grown some in value, and he is now estimated worth 3 to $5,000, reported as a cash buyer here in most instances, but would, be granted a moderate line if he asked it. Is spoken of as a German of very fair character, &c. “ 60. 10, 21, 1885. 21, 3. Y. D. Oct. 12, 1885.”

Indorsed as follows:

“N. Y., 10-14, 1885.
“ To J. E. J. Xiques :
“The correctness of this report is not guaranteed, but having been obtained by us in good faith — from authorities deemed reliable — it is transmitted to you in strict confidence for your exclusive use and benefit, and in accordance with the terms of the contract existing between us.
“ Respectfully,
“THE BRADSTREET COMPANY.”

October 15, 1885, the plaintiff shipped 5,000 cigars, pursuant to the foregoing order, of the value of $455, via the Canada Southern Blue Line, addressed to “ Herman Brinker, 63 Grand River Avenue, Detroit, Michigan,” which were delivered on the nineteenth of the same month to some person calling himself Herman Brinker, at No. 163 Grand River avenue. The cigars were not paid for, and Brinker not making any reply to the plaintiff’s letters, the latter addressed the following inquiry to the defendant:

“ Bradstreet’s, )
“Nos. 219, 281, 283 Broadway. r
“New York, Dea. 10, 1885. ^
“ Give us in confidence, for our exclusive use and benefit in our business, as per contract, the results of your investigations concerning the character, standing, responsibility, etc., of
“ Name.......................... Herman Brinker.
“Business....................... Cigars.
“ Street and No................... 63 or 263 Grand River Ave.
“ City (or P. O. Address).......... Detroit.
“ County.........................
“ State........................... Mich.
“ J. E. J. Xiques......... Subscriber.
“ 192 B’way............ P. O. Address.
“No information will be furnished except upon the proper filling up of this blank, cmd the signaPu/re of the subscriber.”

Stamped on face: “ Western Department, New York, Dec. 18, 85, Cret. 12, 10, 85.”

To this inquiry the defendant made the following reply:

“ (20)
“ Brinker, Herman............Cigars, &c......-. Detroit, Mich.
63, 163 or 263 Grand River Ave.
“No such party can be found at any of the numbers given above, neither is there such a number as 597 Russell St., the only person of above name known here is at 573 Russell Street, corner Ohio.
“Deo. 16, 1885.”
Indorsed on back: “ New York, 18
“To ........ The correctness of this report is not guaranteed, but having been obtained by us in good faith — from authorities deemed reliable — it is transmitted to you in strict confidence for your' exclusive use and benefit, and in accordance with the terms of the contract existing between us.
“ Respectfully,
“THE BRADSTREET COMPANY.”
On the 18th of December, the plaintiff inquired of the defendant: “Have you any further reports of Herman Brinker, 63 Grand River Avenue, Detroit, Michigan ? ” To this inouiry the defendant made the following reply :
“........ 7 ........
“ Brinker H............... Cigars......... Michigan, Detroit
163 Grand River Ave.
“ Upon a close investigation of this case it is found that such a party who is described as a light complexioned man, aged about 35 or seven years, rented a small space in front room at above location during the latter part of Sept, last of Geo. R. McDonald — who occupies the place as a plumbing shop and dwelling ■— at a rental of $2 per month. He paid his rent as agreed upon, but said very little about himself, except that he admitted that he was a married man, and claimed to be making $10 or more a day. No information was however volunteered as to his previous abiding place or business. "Was in and out every day or so, looking for mail or other matter, and replenishing his satchel from the occasional packages of goods which -came to the store for him, the last one of which he emptied about six weeks ago, since which time nothing has been seen or heard of him. He left no directions as to his mail matter either with “ Mcl).” or with P. O. authorities. The Cartage Co. who delivered the goods looked for him first at No. 63 Grand River, the mdse, having been billed out to that number, but not finding him were referred to the one above. The different packages were receipted for and charges paid by Mrs. McDonald at B.’s request, he having exhibited bills of lading to the Cartage Co., who eventually got his acknowledgment on all of the receipts except the last one, in which instance they seemed to have neglected the matter. The last delivered to the above address was one case of cigars via Blue-Line way bill 3351, Canada Southern Line Car No. 15099. Left N. Y. Oct. 16th, arrived here Oct. 20th and was delivered same day. A comparison of signature — on copy of letter enclosed — with that of Herman Brinker, 573 Russel st., shows no similarity. Over 200 of these were carefully examined at his bank where a savings account has been kept ever since 1876. Aside from this he is not a man who would become a party to any such transaction as above named.
“Deo. 24, 1885.
“ 60 12-24-1885 27-3 Pass.”

Indorsed:

“ N. Y. Dec. 28, 1885. To J. P. J. Xiques. The correctness of this report is not guaranteed, but having been obtained by us in good faith — from authorities deemed reliable — it is transmitted to you in strict confidence for your exclusive use and benefit, and in accordance with the terms of the contract existing between us.
“ Respectfully,
“THE BEADSTREET COMPANY.”

This action was brought to recover the value of the samples first shipped and of the cigars shipped pursuant to the order of October 5, 1885. On the trial the plaintiff failed to show that it made any inquiry of the defendant before the shipment of the samples, and he abandoned all claim to recover on account of them. The gravamen of the complaint is that “ the defendant * * * without any investigation or inquiry and without having any knowledge or information concerning any man of that name located or doing business at the place specified in the inquiries carelessly and negligently reported that Herman Brinker, giving a number in Russell street, was worthy of credit.”

It is to be observed that, by tbe terms of the contract entered into between the litigants, it was expressly stipulated “ that the said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company in procuring, collecting and communicating said information.” Under this stipulation the defendant cannot be held liable for the consequences of misinformation, unless it is so grossly negligent in acquiring or communicating it that its conduct in effect amounts to a fraud.

The first question presented for consideration is, was the evidence sufficient to raise an issue of fact for the jury as to whether the defendant was grossly negligent in answering the plaintiff’s inquiry?

The plaintiff by his letter of October seventh asked for a report in respect to Herman Brinker, grocer, 63 Grand River avenue, Detroit. The defendant’s reply of October twelfth related to Herman Brinker, grocer and saloon, 513 Russell, corner Ohio, Detroit, Michigan. The letters written to the plaintiff by Brinker do not purport to come from a person engaged in business as a grocer, nor indeed do they show that the writer was engaged in any other business than as a dealer in cigars. The communication of the defendant did not purport to relate to Herman Brinker of 63 Grand River avenue, but distinctly referred to Herman Brinker, a grocer, engaged in business at 513 Russell street. The plaintiff offered no evidence tending to show that the defendant did not make proper inquiries of its correspondents at Detroit, and the allegation in the complaint that it did not was entirely unsupported by the evidence. It is very plain upon the face of the defendant’s communications that it did not assume to give any information in regard to the financial standing of Herman Brinker of 63 Grand River avenue; and the plaintiff having failed to show that the defendant did not make inquiries, we are unable to see how it can be successfully maintained that he established that the defendant was negligent either in the inquiry which it made or in communicating the information.

The nature of the business in which the defendant is engaged is such that reliable information as to the wealth and integrity of persons engaged in business cannot be guaranteed. Dealers are often honestly mistaken as to their own financial situations, and the means of others for learning their exact condition are limited and often uncertain. If the truth could in all cases be learned and reported, those giving credit would seldom, if ever, sustain a loss. All that can be demanded of such a corporation is that it shall make due and diligent inquiries and furnish the results to its customers. It seems to us that the evidence in this case shows that the defendant made such inquiry in respect to the business standing of the person inquired after, and, failing to find the person described engaged in business at the place designated by the plaintiff’s letter, made a report about another person engaged in a similar business at another place in the same city. The defendant did not guarantee that the person reported was the person inquired after, which appears upon the face of the communications which it sent to the plaintiff.

Did the plaintiff, by his negligence, contribute to the loss of his goods? After having received the defendant’s communication, which related solely to a person doing business at No. 513 Russell street, without making further inquiries, he shipped his goods to a person of the same name, purporting to be engaged in business at No. 63 Grand River avenue. The evidence shows that a man by the name of Herman Brinker was at the time engaged in business at No. 573 Russell street; that he was in good credit; worth from $3,000 to $5,000, and that the information furnished in respect to this person was correct.

"Whatever of negligence there was in the case was the plaintiff’s in shipping goods to a person, at a street and number, about whom no information ■ had been given by the defendant. The plaintiff having received reliable information in respect to the standing of Herman Brinker of Russell street, negligently shipped his goods to a Herman Brinker of 163 Grand River avenue, and they were delivered by the carrier to some person who called himself Herman Brinker, at that number. This negligence was the cause of the plaintiff’s loss.

We think that the trial court correctly ruled that there was no question of fact for the jury.

The judgment should be affirmed, with costs.

PARKER. J., concurred.

Bbunt, P. J.:

I concur. There was uo attempt to furnish any as a man located oh Grand Eiver avenue.

It was a man doing business at 573 Eussell street, corner Ohio, that was reported upon, and no goods were sent to him.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    James S. Manning, as Surviving Partner of the Firm of A. C. MANNING & Co., Appellant, v. James W. Lyon, Respondent.

      Compulsory election between consistent causes of aetion — note of a third pa/rty given for property — failure to notify an indorser of non-payment.

    Compelling a plaintiff to elect between consistent causes of action, suchas a cause of action upon an original indebtedness for property sold, and a cause of action upon the indorsement of the note of a third party taken in exchange for the property sold, is harmless, and affords no ground for reversing a judgment dismissing the complaint, where it appears that none of the plaintiff’s evidence to establish the excluded cause of action was rejected, and that under all the evidence he was not entitled to recover thereon.
    When a note made by a third party is exchanged for property, the presumption is that it was received in payment of the price of the property.
    The mere failure of the maker to pay similar notes, affords no sufficient excuse to the holder of a note for omitting to present it for payment, and to notify the indorsers of its dishonor, so'as to prevent the discharge of the indorsers.
    Appeal by tbe plaintiff, James S. Manning, as surviving partner of tbe firm'of A. O. Manning & Co., from a judgment of tbe Supreme Court, in favor of tbe defendant, entered in tbe office of tbe cleric of tbe city and county of New York on tbe 25tb day of February, 1893, upon a dismissal of the complaint by tbe court, after a trial, at tbe New York Circuit.
    On the 20th day of January, 1890, A. C. Manning & Go. and James W. Lyon entered into a written contract by which tbe former agreed to sell, and tbe latter to purchase, an Otto gas engine for $1,250, to be paid for when set up and in running order, as follows: “$350.81 cash on completion of tbe work, and tbe balance in a promissory note made by tbe Salmon Eiver Paper Co., for tbe sum of $899.19, and interest at tbe rate of five per cent, dated tbe 2d day of December, 1889, and payable to the order of Clark, Neergaard & Co., twelve months after its date, indorsed by tbe said Clark, Neergaard & Co., also by J. W. Lyon & Go., and James W. Lyon, whose indorsement for the payment of the note is to be secured by a chattel mortgage on said Otto gas engine and fixtures.”
    On January 27, 1890, the engine was delivered in running order, and on that day the defendant paid $350.81 in cash, and indorsed and delivered the promissory note described in the contract, which was payable at the American Exchange National Bank. On the date last mentioned the defendant executed and delivered to the plaintiff a mortgage on the gas engine as provided by the contract “ for securing the payment of the money hereinafter mentioned.” This mortgage contained the following condition: “ Upon condition that if I, the said party of the first part shall and do well and truly pay unto the parties of the second part, their executors, administrators or assigns, and discharge all my liability as endorser of and upon a certain promissory note,” describing the note mentioned in the contract of sale. The note was not presented for payment at the time when and place where payable, nor was it protested.

      JoTm J. Oormelly, for the appellant.

      Geo. W. Yam, Slyok, for the respondent.
   Follett, J.:

In the complaint the sale of the engine and the indorsement of the note were set out, and the plaintiff sought to recover on the original indebtedness, and also on the contract' of indorsement. Before the case was opened the defendant moved that the court compel the plaintiff to elect whether he would seek to recover on the original indebtedness or on the indorsement. This motion was granted, the plaintiff excepted, and then elected to recover on the contract of sale. After the case had been opened, but before any evidence was offered, the plaintiff, with leave of the court, reconsidered his election and elected to seek to recover on the defendant’s indorsement.

Assuming that the court erred in compelling the plaintiff to elect between these consistent causes of action (Abb. Tr. Brief, § 704 and cases there cited), we think it was an error without prejudice, causing no harm to the plaintiff. The contract of sale and the chattel mortgage were received in evidence without objection, and no evidence offered by the plaintiff to establish the allegations was rejected. If under all tlie evidence the plaintiff was not entitled to a recovery on the original indebtedness, he was not harmed by the election he was compelled to make. Whether the defendant was liable upon the original indebtedness was a question which arose upon the original contract, chattel mortgage, and the testimony given on the trial, which was wholly undisputed, and was a question of law for the court. It is expressly provided in the contract that $899.19 of the purchase price of the engine should be paid by this note indorsed by the Clark, Neergaard Co., by J. "W. Lyon & Co., and J ames W. Lyon. It is recited in the chattel mortgage that it was given for securing the payment of the money thereinafter mentioned. There is no provision in the mortgage acknowledging an indebtedness of the mortgagor to the mortgagee, nor does it contain a promise to pay any sum. The condition is that the party of the first part shall pay to the parties of the second part and discharge all his liability as indorser upon the note described.

When a note made by a third party is exchanged for property, the presumption is that it was received in payment of the price of the property. (Whitbeck v. Van Ness, 11 Johns. 409; Noel v. Murray, 13 N. Y. 167.) There is nothing in the evidence which tends to rebut this presumption, and upon the entire record we think the plaintiff was not entitled to recover on the original indebtedness.

Is the defendant liable on his indorsement ? The note was not presented for payment when due, and no notice of non-payment was given to either indorser, nor is there any evidence that either indorser waived presentation of the note for payment or notice of its dishonor. The only excuse for not presenting it alleged in the complaint is the averment that before the maturity of the note the maker and first indorser became and ever since have remained insolvent. This fact was not proved. The only evidence bearing on this question was, that several notes of the same character as the one described in the complaint, were payable at the American Exchange Bank, that no funds were provided for their payment, and that they were not paid. It was not shown, nor was it attempted to be shown, that the maker or first indorser had no property out of which the sum due on the note, or some part of it, could not have been collected. Such a state of facts affords no legal excuse for the plaintiff’s failure to present the note for payment, and bis neglect to notify tbe defendant of its dishonor. In tbis State tbe mere proof of tbe insolvency of tbe maker of a promissory note is not a sufficient excuse for faibng to present the note for payment, and to no'tify tbe indorser of its dishonor. (Smith v. Miller, 52 N. Y. 545.)

Plaintiff did not ask to have any' question of fact submitted to tbe jury, nor did be except to tbe dmection of a verdict for defendant.

Of course tbis court has power to grant a new trial, even though no exception has been taken, in case tbe court below has beard or decided tbe issue on a wrong theory and it appears that injustice has been done tbe defeated party. But the case at bar does not call for the exercise of tbis power.

The-judgment should be affirmed, with costs.

O’BeieN and Paijkeb, JJ., concurred.

Judgment affirmed, with costs.


text:
    John A. Smith, Appellant, v. Union Milk Company, Defendant; Jesse Durland, a Subsequent Attaching Creditor, Respondent.

      Attachment against a foreign corporation — residence of the plaintiff — what the attachment pa/pm's must show.

    To maintain, an attachment, issued with the complaint in an action brought against a foreign corporation (which has neither been served with process in the State nor has appeared in the action) to recover damages for a breach of contract, as against a motion made by a subsequent attaching creditor, whose writ is in all respects regular, to vacate the attachment upon the papers on which it was granted, such papers, in case they do not show that the plaintiff is a resident of the State of New York, must show either that the contract in suit was made within this State, or that the cause of action arose therein.
    Appeal by the plaintiff, John A. Smith, from an order made at tbe New York Special Term, and entered in tbe office of tbe clerk of tbe city and county of New York on tbe 30th day of August, 1892, vacating the plaintiff’s attachment, upon tbe motion of Jesse Durland, a subsequent attaching creditor.

      Henry W. Smith, for tbe appellant.

      Maelay & Forrest, for tbe respondent.
   Follett, J.:

The actions brought by the parties to this appeal are for the recovery of damages for the breach of contracts. Such an action may be maintained by a resident of this State against a foreign corporation, though the contract was not made in this State, and though the cause of action did not arise therein. But a non-resident cannot maintain such an action unless the contract was made within the State, or unless the cause of action arose therein. (Code Civ. Pro. §1180.) Unless a foreign corporation appears in such an action, and either expressly, or tacitly, acquiesces in the jurisdiction of the court, none is acquired without it is established either that the plaintiff is a resident of, or that the contract was made, or the cause of action arose within the State.

It is conceded that the defendant in these actions is a foreign corporation. Both attachments were granted exclusively on that ground, and were levied on the same property. It is not shown that the defendant has been served with process in this State, or that it has appeared in either action. Therefore, it does not appear that jurisdiction of the defendant has been acquired in either action. So far as it appears, the only effect of a judgment in either action will be to bind and authorize a sale of such property as has been or may be attached before judgment entered. (Code, § 707.)

The sole question in this case is, did the appellant, whose attachment was first issued and levied, acquire a legal lien as against the subsequent attachment of the respondent ?

The sufficiency of the respondent’s papers to support his attachment is not questioned. He alleges in his verified complaint, and avers in his affidavit, upon which, together with the summons and complaint, his writ was granted, that the plaintiff is a resident of this State, and also that the promissory note, which is set up as a first cause of action, was made and dishonored in this State.

The appellant avers in his affidavit, upon which, together with the summons and complaint, his attachment was granted, that the defendant is a foreign corporation with an office in this city, and has horses, wagons, milk cans, bottles and accounts within this State; and he alleges in his verified complaint that the defendant is a foreign corporation organized under the laws of New Jersey, and is doing business in the State of New York, with an office at No. 57 Sixth avenue in the city of New York. It is also alleged in the complaint that in June and July, 1892, the plaintiff sold and delivered to the defendant milk and cream of the value of $1,168, which sum the defendant agreed to pay therefor, but has wholly failed so to do. It is not alleged where the sale or delivery was made, or at what place payment was to be made; nor is it alleged or averred that the defendant was exclusively engaged in business in this State. The papers do not affirmatively show that the contract was made, or that the cause of action arose, within this State. And we do not think, from the facts alleged and averred, that we can infer that the contract was made or broken in this State, as against a subsequent attaching creditor whose writ is in all respects regular and founded upon sufficient facts affirmatively alleged and averred.

The milk and cream may have been sold and delivered in New Jersey, to be there paid for. The residence of the appellant is neither alleged in the complaint nor stated in his said affidavit, nor is any fact stated from which his place of residence can be inferred. So, whether the appellant be a resident or non-resident, he failed to allege in his complaint, or to aver in his affidavit, sufficient facts to authorize him to maintain an action- against a foreign corporation.

The appellant urges that a decision denying him a lien will be harsh and founded upon a technicality; that he may amend his complaint and allege or prove the necessary facts on the trial. So he may, if the defendant is personally served in this State, or appears generally and does not raise the question of jurisdiction. He complains that the respondent moved to vacate the attachment solely on the papers on which it was granted, and this deprived him of the right to show that he is a resident of this State, and that the contract was made and broken therein. This is a risk which, under the statute, a creditor must take. If he fails to disclose a cause of action, or a legal ground for an attachment, though he may have both, a creditor having seized the same property by virtue of a valid attachment may have the prior one set aside and thus gain priority.

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

O’BeieN and Paukbe, JJ., concurred.

Order affirmed, with;ten dollars costs and disbursements.


author: Parker, J. :

text:
      In the Matter of Opening Beach Avenue, etc., in the City of New York; The Mayor, Aldermen and Commonalty of the City of New York, Appellant; Michael H. Haggerty and Others, Executors and Trustees under the Will of John McConville, Deceased, Respondents.

      Public streets — dedication— description in deeds — reference to a map —• acceptance.

    On an application by the city of New York to acquire the fee of a piece of land called Beach avenue, extending from One Hundred and Forty-ninth street to Kelly street, the city claimed that the land had been dedicated by the owners to public use, and as proof of this relied mainly upon two conveyances, made by the executors of the deceased owner, in which Beach avenue was made one of the boundaries of each of the lots conveyed, and in which reference was made to a map on which Beach avenue was laid out. At the time of these conveyances Beach avenue was inclosed by a fence, and leased for pasturage, under a lease containing a condition that the fences should be maintained as then existing, which had been done. One of the lots conveyed fronted on Kelly street, its westerly boundary being the easterly side of Beach avenue; the other conveyance was of a lot fronting on One Hundred and Forty-ninth street, the easterly side of Beach avenue being its westerly boundary; it thus appearing from the deeds that no part of Beach avenue was intended to be conveyed. The map referred to was not a public map, and on it were represented the stone walls and fences as they actually existed at the time of the execution of the deeds.

      Held, that the deeds and map, considered in connection with the manner in which the property was fenced and used, and the conduct of the grantors in respect thereto, compelled the conclusion that the executors did not intend to offer to dedicate the land to the public, nor were their acts of such a nature as to warrant a finding of constructive dedication.
    A dedication is not complete until the offer of the owner to dedicate his land for a public use be accepted, either by an actual acceptance by the public authorities through some formal act, or in terms, or by an implied acceptance by use by the public generally for such a length of time that an interruption of such use would result in great inconvenience.
    Appeal by tbe Mayor, Aldermeu and Commonalty of tbe City of New York from an order of tbe Supreme Court made at tbe New York Special Term, and entered in tbe office of tbe clerk of tbe city and county of New York on tbe 22d day of June, 1892, ordering tbat tbe report of tbe commissioners of estimate and assessment in these proceedings be referred back for correction and revision, and tbat tbe said commissioners award to tbe owners of Beacb avenue tbe value of tbe property taken.

      The proceeding was taken to acquire title to tbe land called Beach avenue, extending from One Hundred and Forty-ninth street to Kelly street in the city of New York.

      T. Oormol/y, for the appellant.

      G. P. Hawes, for the respondent.
   Parker, J. :

The city of New York by this proceeding seeks to acquire the fee of a certain piece of land commonly called Beach street. Commissioners of estimate and assessment were by the Special Term appointed, who, after taking evidence and hearing counsel, decided not to award to the owner of the fee of such land its value, but to allow nominal damages only. Such determination was based on the conclusion reached by the commissioners that the respondents here, who are the executors and trustees under the last will and testament of John McConville, who died seized of the premises, dedicated the same to the public, to be used as a street. A motion was thereupon made at a Special Term of this court to confirm the report and award of the commissioners, resulting in an order setting aside the report, and referring the matter back to the commissioners for revision and correction with a direction that the commissioners award to the owners of Beach avenue the value of the property.

This decision, we think, was required by the evidence, but in the view which we have taken it is unnecessary to consider one of the propositions discussed by the learned judge at Special Term relating to the power of the executors and trustees under the will to dedicate to the public for street purposes any portion of the land devised, for the evidence fully justifies the conclusion that the executors and trustees did not attempt nor intend to dedicate Beach avenue to the public.

The land in controversy, called Beach avenue, extended from One Hundred and Forty-ninth street to Kelly street. The evidence presented by the city for the purpose of showing a dedication consisted mainly of two conveyances by the executors in which Beach avenue was made one of the boundaries of the lots conveyed, and in which reference was made to a map on which Beach avenue was laid out. It may be observed that none of the parties assessed have filed objections, or appeared on tbis appeal. Therefore, no question of estoppel is presented as between grantor or grantee, and we have only to consider the bearing which this evidence has on the question of dedication for public use. The conveyances were made in January and February, 1890. At that time Beach avenue with other lands devised by the will was inclosed by a fence, and leased to a tenant for pasturage purposes, the lease containing a condition that the fences should be maintained as then existing, and they have been so continued substantially down to the time when these proceedings were instituted. One of the lots conveyed fronted on Kelly street, its westerly boundary being the easterly side of Beach avenue. The other conveyance was of a lot fronting on One Hundred and Forty-ninth street, the easterly side of Beach avenue being its westerly boundary. Thus it appears from the deeds that no part of Beach avenue was intended to be conveyed; and the grantors as well as the attorney who drafted the deeds testified that the purpose in so describing the lands was to prevent any possible contention that there was an intention to dedicate the lands to the public. No conveyance was made of any lot on Beach avenue, between the lots already referred to, which fronted as we have observed, one on One Hundred and Forty-ninth street and the other on Kelly street.

The map referred to in the deeds was not a public map and on it were represented the stone walls and fences as they actually existed at the time of the execution of the deeds. The deeds and map, considered in connection with the manner in which the property was fenced and used, and the conduct of the grantors in respect thereto, compel the conclusion that the executors did not intend to offer to dedicate the land to the public; nor were their acts of such a nature as to warrant a finding of constructive dedication. But if it could be found either that the executors intended to dedicate the land, or that their acts were of such a chai-acter as to estop them from insisting that they did not so intend, there would yet be lacking an element essential to a complete dedication —■ the element of acceptance. Until the offer of the owner to dedicate his land for a publiQ use be accepted, the dedication is not complete. At any time prior to such acceptance he may revoke his offer. The acceptance may be actual or implied. It is actual when the public authorities having charge of the subject by some formal act, or in terms accept it. It is not pretended here that such action was taken by the officers of the city. Acceptance is implied when the public use it so generally, and for such a length of time that an interruption of such use would result in great inconvenience. In this case it cannot be said that there was such use by the public. Until 1890, at least, it was fenced. It has- never been thrown open for use, nor generally, if at all, used. The leading witness for the city was not quite sure that there was even a wagon track there. Indeed there is no evidence that even one team was ever driven from Kelly street to One Hundred and Forty-ninth street through Beach avenue.

The order should be affirmed, with the costs and printing disbursements.

O’BeieN and Follett, JJ./ concurred.

Order affirmed, with the costs and printing disbursements.


author: Van Brunt, P. J.:

text:
    Roger M. Sherman Appellant, v. Irving Grinnell and Others, Respondents.

      False imprisonment — execution against the person — executors.
    On the trial of an action brought against the defendants as individuals, to recover damages for false imprisonment, where the complaint alleges that the plaintiff was taken into custody under an execution against his person unlawfully issued at the instance of the defendants, it is error to exclude an execution offered in evidence by the plaintiff for the purpose of connecting the defendants with the arrest, under the objection that it appears upon its face to be issued by persons not identical with the defendants, because they are therein stated to be executors.
    Appeal by the plaintiff, Roger M. Sherman, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 17th day of March, 1893, upon a verdict in favor of the defendants rendered by direction of the court at the New York Circuit.

      Jas. M. Smith, for the appellant.

      W. V. Howe, for the respondents.
   Van Brunt, P. J.:

This action was brougnt to recover damages for false imprisonment, the claim being that the plaintiff was taken into custody, under an execution unlawfully issued at the instance of the defendants. The difficulties into which the plaintiff has fallen have arisen entirely from the fact that he has alleged much more than was necessary for the proper setting forth of his cause of action.

But such surplusage in no way affected the force of the proof attempted to be offered and which was excluded.

The complaint alleged, amongst other things, that on the 27th of February, 1889, the defendants, under the color of authority of an execution issued against the person of this plaintiff, which they' had illegally issued to the sheriff of the county of New York upon said judgment (judgment having been previously referred to) at the city of New York, maliciously, unlawfully and without legal authority, assaulted the plaintiff, arrested this plaintiff, and detained and unlawfully deprived him of his liberty for the space of six months thereafter. This was the gravamen of the complaint; and in order to prove this allegation, the plaintiff offered in evidence an execution, wherein it was recited that a judgment had been obtained on the 23d of November, 1886, in an action in the City Court, between-Irving Grinnell and J". S. Bowdoin, executors plaintiffs, and Eoger M. Sherman, defendant, in favor of said Grinnell and Bowdoin against the said Sherman 'for the sum therein stated, etc., together with proof of the handwriting of the defendant Hardon upon such, execution, and with testimony that it was the execution under which. The plaintiff was arrested.

This execution was objected to upon the ground that it appeared upon its face that it was not an execution such as was complained of in the complaint, but in a wholly different action, by .different persons not at all identical with the defendants in this suit or any of them. The court thereupon excluded the execution.

We think this objection was entirely untenable. The allegation in the complaint was that on the 27th of February, 1889, the plaintiff was arrested under an execution issued upon a judgment obtained in favor of the defendants, Grinnell and Bowdoin, on the 23d November, 1886, which is precisely the judgment described in the execution in question. The introduction of the word “ executors ” in the execution in the manner in which it is introduced was entirely surplusage and meant nothing. The judgment is not recited to have been obtained by them as executors, but they are simply stated to be executors — of what or of whom, there is no statement.

The plaintiff had a right to introduce this paper in evidence for the purpose of showing the connection of the defendants with this arrest, and then it became necessary for the defendants to justify the issuing of the execution by showing the existence of a proper judgment as a foundation therefor. Rut in the very commencement of the proof, the evidence of the plaintiff, by which he sought to connect these defendants with the act of the sheriff, is shut out. This, we think, was error which calls for a reversal of the judgment.

It is difficult to see upon what theory the defendants, Grinnell and Bowdoin, could be sued as executors for a wrong, if any, committed against the plaintiff, even if they did the wrong in the administration of the estate. It is a well-settled principle that for all acts of executors, they are liable individually and not in then representative capacity; and, therefore, even if the process was issued in their name as executors and was improperly issued, they would be only individually liable only for the wrong.

Certain other evidence was attempted to be offered upon the part of the plaintiff, which was excluded. And the court thereupon directed a verdict for the defendant, and granted the exorbitant allowance of $1,000. ¥e cannot see upon what theory the court directed a verdict in favor of the defendants, because for failure of proof the most that could have been done under such circumstances was to dismiss the complaint.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Barrett, J., concurred; Eollett, J., dissented.

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


author: Van Brunt, P. J. :

text:
    Charles A. Smith, as Ancillary Administrator, etc., of Caroline G. Smith, Deceased, Appellant, v. Second National Bank of the City of New York, Respondent.

      Ancilla/ry administrate — duty and powers of — lie cannot pledge assets of the estate.

    An ancillary administrator in the State of New York has no right to pledge any portion of the assets of the estate which may come into his hands.
    The only duty of an ancillary administrator in this State is to transmit the assets received hy him to the State or country where the principal letters were granted, unless he is directed by express decree to retain some portion of the same for the purpose of payment of debts due to resident creditors. (Code Civ. Proc. §§ 3700, 3701.)
    An ancillary administrator obtained, as such, a loan from a hank, on his stating that he required it for the purposes of the estate, in anticipation of income, and delivering to the bank a promissory note therefor, together with a -municipal bond, which stood in the name of and formed a part of the assets of the estate of his intestate, as collateral security. The note was not paid, and the bank undertook to realize upon the bond, but was enjoined from so doing at the sui,t of an ancillary administrator, appointed in the place of the one who had delivered the bond to it.
    In an action brought by the new ancillary administrator against the bank, to compel the delivery of the bond to him,

      Meld, that the bank could not be deemed a bona fide holder of the bond, so as to be protected in its possession of the bond.
    Appeal by tbe plaintiff, Charles A. Smith, as ancillary administrator of the goods, chattels and credits of Caroline G. Smith, -deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the city and county of New York on the 18th day of February, 1893, upon a dismissal of the complaint, after trial, at the New York Circuit.

      H. Parsons, for the appellant.

      Jno. JVotmcm, for the respondent.
   Van Brunt, P. J. :

The facts established upon the trial were, that on the 1st of November, 1886, one Sidney T. Smith, as ancillary administrator of the estate of one Caroline G. Smith, applied for a loan of $600 from the defendant, the Second National Bank, stating to its president that he wanted the money for the purposes of the estate, in Anticipation of income. The bank made the loan, and it was credited to the account of the ancillary administrator. He delivered a promissory note therefor, together with a New York seven per cent accumulated debt bond for $5,000, which stood in the name of, and formed part of the assets of said Caroline G. Smith. The said bond and note have been in possession of the bank ever since, and no part of the note has been paid, although payment has been demanded. The whole amount of the note was paid to the ancillary administrator oh checks drawn by him as such administrator, in the ordinary course of business, from time to time. The bank subsequently attempted to collect this bond from the city of New York, but its transfer had been stopped by the plaintiff, who had‘been appointed ancillary administrator in the place and stead of said Sidney T. Smith. The bank subsequently attempted to sell the bond at public auction, on notice to plaintiff, but was enjoined by temporary injunction in this action, which was brought to compel the' delivery of the bond in question.

At the close of the trial, the appellants moved that the court direct judgment for the delivery of the bond, which was denied, and upon motion of the defendant’s counsel, the complaint was dismissed, and from the judgment thereupon entered this appeal is taken.

The sole question involved in this appeal is as to the right of an ancillary administrator to pledge any portion of the assets of the estate which may come into his hands. In the case of Hopper v. Hopper (53 Hun, 394), decided by the General Term of the second department, such right seems to have been recognized, although not necessary to the decision of the case, it having been determined in that case that an ancillary administration is as efficacious as any other administration, so far as the question of legal title is concerned, the fact that the administration is ancillary only going to the discretion of the court in the disposition of the assets. The question involved in that case, however, was simply whether an executor, who receives ancillary letters in this State, is liable to be sued here in the same manner as other executors, whether he has ■assets of the estate in his hands or not.

In the case at bar, we think an entirely different question is involved, and that a consideration of sections 2100 and 2701 of the Code of Civil Procedure sbow that the rights of an ancillary administrator, in reference to the estate which comes into his hands, are very different from those which belong to an administrator or executor of a will proved within this State.

Sections 2100 and 2701 are as follows:

“ Sec. 2700. The person to whom ancillary letters are issued, as prescribed in this article, must, unless otherwise directed in the decree awarding the letters, or in a decree made upon an accounting, or by an order of the surrogate made during the administration of the estate, or by the judgment or order of a court of record in an action to which that person is a party, transmit the money and other personal property of the decedent received by him after the letters, are issued, or then in his hands in another capacity, to the State, territory or country where the principal letters were granted, to be disposed of pursuant to the laws thereof. Money or other property so transmitted by him at any time before he is so directed to retain it, must be allowed to him upon an accounting.
“ Sec. 2701. The Surrogate’s Court, or any court of the State which has jurisdiction of an action to procure an accounting, or a judgment construing the will, may, in a proper case, by its judgment or decree, direct a person, to whom ancillary letters are issued as prescribed in this article, to pay out of the money or the avails of the property received by him under the ancillary letters, and with which he is chargeable upon his accounting, the debts of the decedent due to creditors residing within the State, or, if the amount of all the decedent’s debts, here and elsewhere, exceeds the amount of all the decedent’s personal property applicable thereto, to pay such a sum to each creditor residing within the State as equals that creditor’s share of all the distributable assets, or to distribute the same among legatees or next of kin, or otherwise dispose of the same as justice requires.”

It appears, therefore, by section 2700 that there is only one duty which an ancillary administrator is to perform, viz., that he must, unless otherwise directed, in the manner provided for in the section, transmit the money and other personal property of the decedent received by him after the letters are issued, or then in his hands in another capacity to the State, territory or country where the principal letters were granted, to be disposed of according to the laws thereof. This is his first and primary duty, and the provision is mandatory. He must transmit the same unless otherwise directed in the decree awarding the letters, or in a decree made upon an accounting, or by an order of the surrogate made during the administration of the estate, or by the judgment or order of a court of record in an action in which the ancillary administrator is a party.

Then by section 2701 power is given to the Surrogate’s Court, or any court of the State which has jurisdiction of an action to procure an accounting, or a judgment construing a will, by its judgment or decree, to direct the person to whom the ancillary letters are issued to pay out of the money or avails of the property received by him under the ancillary letters, and with which he is chargeable upon his accounting, the debts of the decedent due to creditors residing within this State. And that is all. Having done that, section 2100 becomes operative again, and he is bound to transmit the balance, if any, to the State, territory or country where the principal letters were granted, to be disposed of pursuant to the laws thereof.

But it is said that section 2102 enlarges the rights and duties of ancillary administrators in that it expressly provides that the provisions relating to the rights, powers, duties and liabilities of an executor or administrator apply to a person to whom ancillary letters are granted, except those contained in the fifth title of the chapter (which relates to distribution by principal, executor or administrator), and except where special provision is otherwise made in the article, or where a contrary intent is expressed in, or plainly to be inferred from, the text.

It is plain that it was not the intention by section 2102 to repeal any of the restrictions or requirements contained in sections 2700, 2701. And reading all these sections together it seems to be apparent that the only duty of the ancillary administrator is to transmit the estate, unless he is directed by express decree to retain some portion of the same for the purpose of payment of debts due to resident creditors.

In the case at bar, the ancillary administrator obtained this loan, as he stated to the president of the defendant, in anticipation of income. It is difficult to see how, either for the purpose of transmission or even for the payment of debts, the administrator could possibly have any occasion to anticipate income. It would seem, therefore, to be apparent that the loan was required for some purother than connected with the administration of the estate, so as the ancillary administrator was authorized to administer the same. This being the case, we do not thinb that the defendant was bona fide holder of the bond, so as to be protected.

The judgment should be a new to appellant to abide the event.

Follett and PabKER, JJ., concurred.

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


author: VaN Brunt, P. J.:

text:
    Alexander T. Compton, Respondent, v. The Chelsea, Appellant.

      Ejectment — anew trial under section 1525 of the Oode of Giml Procedure, denied where another cause of action is joined with that in ejectment.

    To entitle a plaintiff to the right to a new trial given by section 1525 of the Code of Civil Procedure in actions of ejectment, his action must be clearly one of ejectment only.
    If two causes of action are united so that the may ejectment or an action for forcible entry and detainer, the extraordinary privilege of obtaining a new trial under section 1525, which pertains to the action of ejectment and which does not belong to the action of forcible entry and detainer, cannot be taken advantage of by the plaintiff in case of defeat.
    A plaintiff, after judgment had been recovered against him, applied, under section 1525 of the Code of Civil Procedure, for a new trial of an action in which the complaint alleged that the defendant held forcible possession of the premises of which the plaintiff had been in possession, and demanded treble damages.

      Held, that this allegation and demand characterized the action as one for forcible entry and detainer; and, consequently, that the plaintiff was not entitled to a new trial.
    Appeal by the defendant, The Chelsea, from so much of an order •of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 19th day of May, 1893, as vacated a judgment entered upon a verdict in favor of the defendant and granted the plaintiff a new trial under section 1525 of the Oode of Civil Procedure.

      W. JET. Shepard, for the appellant.

      A. T. Compton, respondent, in person.
   VaN Brunt, P. J.:

It is undoubtedly true that upon the previous appeals this action has been characterized as an action of ejectment, and this probably arose, not from an examination of the pleadings, but because of the manner in which it was treated by counsel in their presentation of the questions involved to the court, it being of little moment in respect to the result desited, as to whether it was an action of ejectment, or an action'for forcible entry and detainer.

Upon this motion, however, it becomes important to consider the question whether the action is really simply one of ejectment.

If it is an action which may be an action in ejectment, or an action for forcible entry and detainer, it seems to be manifest that the extraordinary privileges which pertain to the action of ejectment, and which do not belong to the action of forcible entry and detainer, cannot be availed of by the plaintiff in case of defeat, the familiar rule being that where two causes of action are united, to one of which only peculiar remedies belong, the right to such remedies in such action is lost.

Upon examining the complaint in the case at bar it would seem that it is exceedingly doubtful whether the complaint contains such allegations as are proper to an action of ejectment, and it seems also to be certain that the pleader in framing the complaint, did so upon the theory that he was bringing an action for forcible entry and detainer, and for that only; because he alleges that the defendants hold forcible possession of the premises of which the plaintiff had been in possession, and he also demands treble damages, to which he had a right if he established his action of forcible entry and detainer, and to which he would have no right if his action were one of ejectment.

~We think that the plaintiff should be bound by this plain characterization of his action, and that it must be considered to have been an action for forcible entry and detainer, and that, therefore, the plaintiff was not entitled as matter of right to a new trial.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and tbe motion denied, witb ten dollars costs.

Follett and PACKER, JJ., concurred.

Order reversed, witb ten dollars costs and disbursements, and tbe motion denied, witb ten dollars costs.


text:
    In the Matter of the Application of The Manhattan Railway Company, Respondent, v. John L. Stroub, Appellant, Relative to Acquiring Title to Certain Real Property in the City and County of New York.

      Condemnation of real property —stay pending appeal by the defendant.

    By force of section. 3375 of the Code of Civil Procedure the right of a defendant in proceedings for the condemnation of real property to a stay of the plaintiff’s proceedings, pending an appeal taken hy the defendant to the General Term; is not an absolute one, hut the decision of the question as to whether the stay shall he granted or refused rests in the discretion of the court, and must he determined hy the circumstances of each case.
    The Manhattan Railway Company, operating elevated railroads in the city of New York, having acquired the fee of certain premises, subject to a lease thereof, commenced proceedings under chapter 23 of the Code of Civil Procedure to condemn such leasehold estate therein; the defendant, the owner of the leasehold interest, answered; the issue so joined was tried at Special Term and an interlocutory judgment rendered, adjudging that the plaintiff had a right to acquire the property described in its petition; commissioners were appointed to appraise the defendant’s damages, and made an award, which was confirmed at Special Term. The defendant refused to accept the award, which was deposited with the city chamberlain, and appealed to the General Term, and applied for a stay of all proceedings on the part of the plaintiff until the appeal should he decided.
    It appeared that the plaintiff had expended about §250,000 on the improvement which the acquisition of the property in suit was necessary to make available; the defendant did not tender any bond to pay damages caused hy a stay, in case his appeal should he determined against him, nor was it asserted that the plaintiff was not abundantly able to respond in any sum hy which the defendant’s damages might he increased, in case a rehearing was ordered.

      Held (without passing upon the question of power to stay the plaintiff from entering into possession), that the application for a stay should he denied upon the facts.
    MotioN by tbe defendant, John L. Stroub, for a stay of tbe plaintiff’s proceedings pending an appeal taken by tbe defendant to tbe General Term in a proceeding for the condemnation of real property under chapter 23 of the Code of Civil Procedure.
    The plaintiff, the Manhattan Railway Company, is a railroad corporation, engaged in the business of transporting persons and property upon elevated railroad tracks in the city of New York.

      Edwa/rd O. Perhins, for the defendant’s motion.

      Ernies, Short do Townsend, for the plaintiff, opposed.
   Follett, J.:

In February, 1891, the plaintiff acquired the fee of the property affected by these proceedings. The defendant is in possession under a lease granted by a former owner for a term which expires May, 1897. These proceedings were begun June 23, 1892, and the defendant filed and served his answer as permitted by section 3365 of the Code of Civil Procedure. The issue so joined was tried at a Special Term, and an interlocutory judgment rendered adjudicating that the plaintiff had the right to acquire the land and easement described in the petition. Subsequently commissioners were appointed to appraise the damages sustained by the defendant, and they awarded $2,720. On the 5th of June, 1893, their award was confirmed by a Special Term, and an order of confirmation was duly entered. The defendant refused to receive the award, and it has been deposited, pursuant to the order, with the 'chamberlain of the city. The defendant has appealed to the General Term, from the interlocutory judgment, and from all the orders granted in the proceedings, and now applies for a stay of all proceedings on the part of the plaintiff, until the appeal is decided.

The view we take of the rights of these litigants renders it unnecessary to consider the question, much debated by the counsel for the respective parties, whether under section 3375 the court has power to stay the plaintiff from entering into possession of the property condemned. The following -is a copy of the section referred to : “ Appeal may be taken to the General Term of the Supreme Court from the final order, within the time provided for appeals from orders, by title 4 of chapter 12 of this act; and all the provisions of such chapter relating to appeals to the General Term from orders of the Special Term shall apply to such appeals. Such appeal will bring up for review all the proceedings subsequent to the judgment, but the judgment and proceedings antecedent thereto may be reviewed on such appeal, if the appellant states in his notice that the same will be brought up for review, and exceptions shall have been filed to the decision of the court or the referee, and a case, or a case and exceptions, shall have been made, settled and allowed, as required by the provisions of this act, for the review of the trial of actions in the Supreme Court without a jury. The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court, upon notice to him, and the appeal shall not affect his possession of the property taken, and the appeal of a defendant shall not be heard except on his stipulation not to disturb siich possession.”

It will be observed that by this section, and also by section 3316, the proceedings on an appeal from a judgment are to be governed by the provisions of title 4 of chapter 12 of the Code of Civil Procedure, except in so far as they are modified by the provisions of chapter 23 of the Condemnation Act. The section quoted provides: “ The proceeding of the plaintiff shall not be stayed upon such an appeal except by oi’der of the court, upon notice to him.” This cuts off the absolute right of the appellant to a stay of proceedings pending the appeal under section 1352, by simply giving an undertaking. The appellant’s right to a stay pending appeal, is not an absolute one, but whether it shall be granted or refused, rests in the discretion of the court, and must be determined by the circumstances of each case.

In this case the plaintiff owns the fee of the land, the defendant having only a leasehold interest of short duration. The right of the plaintiff to acquire the property has been determined by a judgment, and the amount awarded has been deposited with the chamberlain. The record shows that the plaintiff has expended about $250,000 on the improvement which the acquisition of this property is necessary to make available.

The defendant does not tender a bond to pay the damages which will be caused by a stay in case his appeal shall be finally determined against him, and it may be doubtful whether an undertaking indemnifying against such consequences could be procured. It is not asserted that the plaintiff is not abundantly able to respond in any sum by which the damages may be increased in case a rehearing is ordered. The Code provides that any additional sum awarded shall be a lien, on the land taken, which, with the sum deposited, would seem to be an ample protection to defendant. If it shall be finally determined that the plaintiff is not entitled to acquire the property, it is liable for the damages, and, as before stated, it is not asserted that it is not entirely able to make the damages good.

Without discussing or determining the question of power, we think the application must be denied, with ten dollars costs.

O’Brien and Parker, J J., concurred.

Application denied, with ten dollars 'costs.


author: Parker, J.:

text:
    Victoria A. Romaine, Respondent, v. George S. Bowdoin and Others, Appellants.

      Sew issue, created by cm amended complaint and answerold issue superseded a/nd stricken from, the calenda/r — stipulation.

    When the original issue in an action has been superseded by a new issue created by the service of an amended complaint and the answer thereto, after the original issue has been disposed of on demurrer, a new note of issue and a new notice of trial are necessary to bring on for trial the issue presented by the amended pleadings, and if the old issue thereafter appears upon the Circuit calendar, it should be stricken therefrom.
    The requirement of a new note of issue and a new notice of trial is not to be deemed waived by a stipulation which, at a time when the defendants’ time to answer the original complaint was extended, fixed the date of issue, but which had no reference to the new issue.
    Appeal by tbe defendants, George S. Bowdoin and1 others, from an order made at the New York Supreme Court Circuit, and entered in the office of the clerk of the city and county of New York on the 9th day of May, 1893, denying the defendants’ motion to strike the cause from the calendar.

      Artlvwr S. Vcm Rrunt, for the appellants.

      Robert L. Redfield, for the respondent.
   Parker, J.:

This action being regularly reached on a call of the calendar in Circuit Court, the defendants moved that it be stricken therefrom on the ground that the issue represented on the calendar had been superseded by a new issue- created by tbe service of an amended complaint and answer. Sucb was tbe fact, and a new note of issue and a new notice of trial were necessary to bring on for trial tbe issue presented by tbe amended pleadings. (Ostrander v. Conkey, 20 Hun, 421.) But tbe point was made on tbe motion, and is renewed bere, tbat tbe usual practice bad been waived by stipulating tbat the date of issue should be December 29, 1891.

"We do not so understand tbe stipulation. At the time it was made tbe complaint bad been served, and in extending defendants’ time to plead, plaintiff’s attorneys inserted therein: “ Date of issue to be of this date.” Tbe issue referred to Avas, of course, tbe issue to be joined by the service of tbe pleading which tbe defendant was obtaining time to prepare. Subsequently, tbe issue was joined by tbe seiwice of a demurrer. It was afterwards tried and tbe trial resulted in favor of tbe defendant. That issue, which was the one appearing on tbe calendar, was, therefore, at an end. It was with reference to it, and not to tbe issue subsequently created, tbat the parties stipulated.

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

Eollett, J., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    Sarah L. Myers and Another, Appellants, v. Thomas Bolton and Others, Respondents.

      Action for pa/i'tition between clem sees — sale of the land by executors — pa/yment of the proceeds into court.

    If a sale of a testator’s land made "by his executors is authorized by the will, the Surrogate’s Court in which proceedings are pending for a judicial settlement of the executor’s accounts has jurisdiction to decree distribution of the proceeds, whether they arc to be regarded as realty or personalty, and the executors will not be compelled to pay such proceeds into the Supreme Court in an action of partition pending therein between the devisees of the-land.
    If, during the pendency of an action brought for the partition of a testator’s lands among his devisees, the lands are attempted to be sold by the executors, and it appears that, if the power of sale was not conferred upon the executors by the will, the undivided part of the real estate devised to each of the plaintiffdevisees who object to the sale is vested in them, it may be partitioned in the action, but'such devisees have no right to insist that the other devisees, who have consented to the sale by the executors, shall pay into court'in the partition action the consideration which may have been received from a purchaser for their interests in the land.
    Appeal by the plaintiffs, Sarah L. Myers and. Mary A. Little-wood, from an order of the Supreme Court, made at the New Y ork Special Term, and entered in the office of the clerk of the city and county of New York on the 22d day of May, 1893, denying the plaintiffs’ motion to require the payment into court of the proceeds of the sale of certain land.

      James H. Marvin, for the appellants.

      Alex Thain, for the respondents.
   Parker, J.:

The plaintiffs and six of the defendants are residuary legatees and devisees under the will , of Ann Bolton, deceased. The action in which the order appealed from was made was brought to partition the lands so devised. Thereafter the executors, Thomas and Henry B. Bolton, under a general power of sale given by the will, assumed to sell and convey a portion of the premises for the sum of $30,000. The plaintiffs challenging the validity of the power of sale, all of the devisees — except the plaintiffs, who. refused to do so — united in a conveyance to the purchaser. The executors offered to bring the proceeds of the sale into the Surrogate’s Court, where their accounting was pending, but objection was made by these plaintiffs that there was no authority vested in them as executors to make the sale and hence the proceeds could not form a part of their account. Subsequently the executors sold the residue of the real estate which passed by the residuary devise, from which was realized the sum of $8,161.97. The latter sum was applied in payment of the debts of the deceased. Since then proceedings have been taken for a final judicial settlement of tlieir accounts as executors before the surrogate of "Westchester county, an account has been filed reciting the receipt of the proceeds of the last sale and the disposition thereof,, plaintiffs have appeared therein and requested and secured adjournments from time to time, but at the date of making this motion had not filed any objections to such account.

Upon tliese .facts the court denied the plaintiffs’ motion to compel the executors to pay the sum of $8,161.97 into court.

Aside from the fact that the executors as such are not parties to the action in which this motion is made, the decision of the court was right for the following reasons,;

(1) If the sale of the lands attempted to be made by the executors was authorized by the will, then the Surrogate’s Court in which proceedings are pending for a judicial settlement of their accounts has jurisdiction to decree distribution, whether the proceeds are to be regarded as realty or personalty. (Code Civ. Pro. § 2724, subd. 4.) Such has been the law of this State at least since 1837 (Chap. 460, Laws 1837).

(2) If power of sale was not conferred on the executors by the will, as the plaintiffs have hitherto contended, then the undivided part of the real estate devised to each of them by the residuary clause is now vested in them and may be partitioned in the pending action. But they have no right to insist that the other devisees shall pay into court the consideration which they may have received from a purchaser for their several undivided interests.

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

Yan Brunt, P. J., and Follett, J., concurred.»

Order affirmed, with ten dollars costs and disbursements.


text:
    Mary McBride, Administratrix, etc., Appellant, v. The American Surety Company, Respondent.

      Answer containing a denial and setting up new matter — demurrer to the entire answer.

    When an answer contains denials of material allegations in the complaint together with averments of new matter as a defense, a demurrer to the entire answer, instead of to the new matter only, on the ground that it does not set up a defense, is unauthorized and should he overruled.
    This is so, although the new matter alleged as a defense arose subsequent to the commencement of the action, and the plaintiffs attorney might have declined to receive the answer on that ground.

      Appeal by tbe plaintiff, Mary McBride, administratrix de bonis non of tbe estate of Bridget Murray, deceased, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 29th day of April, 1893, upon a decision of the court at the New York Special Term, overruling the plaintiff’s demurrer to the defendant’s amended and supplemental answer.

      3. G. 3a/rris, for the appellant.

      3en/ry O. Wilcox, for the respondent.
   Parker, J.:

Plaintiff’s predecessor in administration was by decree of the Surrogate’s Court directed to pay to the plaintiff $204.18, and to deliver to her all other property in her hands as administratrix. She failed to comply with the decree, and the plaintiff by this action sought to recover the money adjudged to be in her hands from the surety on her official bond, this defendant. Subsequent to the granting of the decree, which lies at the foundation of this action, the Surrogate’s Court, on notice to plaintiff, so amended it as to direct the deposed administratrix, or her surety, this defendant, to deposit said sum with the chamberlain of the city of New York, instead of paying it to the plaintiff, as was originally provided, and providing that upon,such deposit the administratrix and her surety should be released from all liability on the bond. Thereafter defendant answered the complaint, denying certain material allegations; alleging an amendment of the decree in the respects already briefly alluded to; averring a deposit with the city chamberlain in compliance therewith, and demanding a dismissal of the complaint, with costs.

At the time of the service of the answer, therefore, the only subject of controversy remaining was whether the plaintiff or the defendant should recover costs of the action. That controversy. must necessarily have resulted in favor of the plaintiff, had her attorney declined to receive the answer, on the ground that in it was alleged a defense which had arisen subsequent to the commencement of the action, thus putting the defendant to its motion for leave to serve what it described in its answer as an amended and supplemental pleading.” On tbat motion the court could, and doubtless would, have imposed, as a condition of its service, the payment of plaintiffs costs of the action up to that time. Instead, the plaintiff pleaded, by way of demurrer, as follows:

“ The plaintiff in the above action demurs to the answer of the defendant therein, upon the ground that the said answer does not set up a defense to the plaintiff’s complaint.”

The demurrer was, therefore, to the entire answer, which com tained denials of material allegations in the complaint, as well as averments of new. matter, and was unauthorized. (Niohóls v. JOumpTcm, 51 Super. Ct. 88.)

The Code authorizes a demurrer “to a counterclaim or a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law upon the 'face thereof.” (Code Civ. Pro. § 494.) And had the plaintiff demurred specifically to the new matter, the question would have been presented whether it was sufficient in law to constitute an affirmative defense. As she did not, we need not inquire further.

The interlocutory judgment should be affirmed.

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

Interlocutor"- judgment affirmed.


text:
    The Bucyrus Steam Shovel and Dredge Company, Respondent, v. Siegmund T. Meyer and Arthur L. Meyer, Appellants, Impleaded with James A. Simmons.

      Promissory note — indorsement for the accommodation of the holder.

    On the trial of an action against the indorser on a promissory note, where the defense was that the indorsement was made for the accommodation of the plaintiff, the holder of the note, and upon an agreement with the plaintiff that the indorser would he protected and indemnified against payment of the note, the office manager of the maker testified that on the day the note was dated he • was requested hy either the president of the plaintiff (a corporation) or hy the maker and in the presence of both of them, to take the note to the defendant and get his indorsement thereon; that he took the note to the defendant, hut failed to get his indorsement, and on his return told the plaintiff’s president that the defendant had said that if the note were returned to him with a letter stating that the plaintiff’s president requested his indorsement, he would give it; that the witness then wrote the following letter to the defendant while the plaintiff’s president was present: “I enclose herewith anote dated this day at two months for $3,857.50, which the Bucyrus Shovel & Dredge Co. [the plaintiff] request that you endorse, [signed] Jas. A. Simmons [the maker] per N. S. Bailey ” [the witness] ; and that the note came hack indorsed ;

      Held, that this evidence entitled the defendant to have the jury pass upon the question whether he was an accommodation indorser for the plaintiff or not.
    Appeal by the defendants, Siegmund T. Meyer and Arthur L. Meyer (composing the firm of Siegmund T. Meyer & Son), from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 5th day of January, 1893, upon a verdict in favor of the plaintiff tendered by direction of the court at the New York Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    The note in suit was as follows:
    New York, Ma/rch 20, 1890.
    “ Two months after date I promise to pay to the order of myself Thirty-five hundred and eighty-seven Dollars at the Commercial National Bank of N. Y. city, value received.
    “JAMES A. SIMMONS.”
    It was indorsed by the maker as payee, and by the appellants Under their firm name of Siegmund T. Meyer & Son.

      Mel/uille S. Rogensberger, for the appellants.

      Albert Symington, for the respondent.
   Parker, J.:

This is an action on a promissory note alleged to have been made by one Simmons and indorsed by the defendants Meyer. Simmons did not answer, but the other defendants did, admitting the indorsement, but alleging by way of defense that the indorsement was made for the accommodation of the plaintiff and upon an agreement with it that they would be protected and indemnified against the payment thereof.

On the trial Nathaniel S. Bailey testified that on March 20,1891, the date of the note, he was the office manager for the maker Simmons ; that he was requested either by the president of the plaintiff or the maker and in the presence of both of them to take the note in suit to the office of Mr. Meyer to get his indorsement on it; that he failed to get the indorsement, and that on his return with the note he liad a conversation with the president of the plaintiff which he details as follows: “ I said to him that Mr. Meyer declined to indorse the note. He asked me to make another effort, saying that he wished to have the same indorsement on the paper as he had on the previous paper, so that he could use it at his bank. I told him that Mr. Meyer had said, ‘ send that note back to me with a letter stating that Col. Harris (plaintiff’s president) requests my indorsement on the note and I will place it there.’ * * * Dwrote a •letter to Mr. Meyer while Col. Harris was there, in which I stated that this indorsement was at the request of the Bucyrus Company. This is the letter I wrote :

45 Broadway, Ma/roh 20th, 1890.
“ ‘ Messrs. S. T. Meyer & Son:
“ ‘ Dear Sir — I inclose herewith a note dated this day at two months for $3,857.50, which the Bucyrus Steam Shovel and Dredge Company request that you indorse.
“ ‘ Yours truly,
“‘JAS. A. SIMMONS.
“ ‘ Per N. S. Bailey.’
“ The note came back indorsed.”

This is substantially all the evidence relating to the procurement of the indorsement. Other questions were asked of Mr. Bailey and excluded which we think he should have been allowed to answer, in view of the fact that he went to Meyer with the acquiescence, if not at the request of Col. Harris, and that it was upon Bailey’s report of what took place that led to the writing of the letter stating that the plaintiff requested the indorsement. He was asked: “ Q. Did Mr. Meyer say anything to you as to the purpose or make any inquiries of you, as to the purpose or object for which the Bucyrus Steam Shovel and Dredge Company wished the note ? Q. Was anything said by Mr. Meyer at that interview as to whether the indorsement was for the accommodation of the Bucyrus Steam Shovel and Dredge Company ? Q. Was anything said at that interview by you to Mr. Meyer as to the use which the note was to be put to ? ”

It may well be that answers to these several inquiries might have thrown some light on the question whether the indorsement was for the accommodation of the maker or the plaintiff. But without evidence other than that disclosed by the record, the defendants were entitled to have the jury pass upon the question whether they were accommodation indorsers for the plaintiff or not. This right was denied them, the court directing a verdict in favor of the plaintiff. It is 'quite probable that the suggestion which appears in the record, that the plaintiff surrendered to the maker at the time of receiving the note in suit, a note for substantially the same amount, bearing the indorsement of the defendants Meyer, may have had weight with the court in determining that the defendants were not accommodation indorsers for the plaintiff. Their indorsement on the prior note is suggested only, not proved. It' is alleged in the complaint, but denied in the answer. The note was not produced on the trial, nor was any competent evidence tending to show an indorsement, received or offered. Had there been the refusal of the court to permit the defendants to testify that they had not indorsed such a note, would have constituted error.

The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event.

Yan Brunt, P. J., and Follett, J., concurred.

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


author: Per Curiam :

text:
    Dirck Dode, Respondent, v. The Manhattan Railway Company and The New York Elevated Railroad Company, Appellants.

      Elevated railroads — fee damages — extra allowance — refereés certificate that the case was difficult and extraordinary — resettlement of an order.

    When, in an action brought by an abutting owner to recover damages occasioned by the construction and operation of an elevated railroad in a street, the injury to the plaintiff’s easements, termed “fee damages,” is assessed at a certain sum, such sum represents the value of the subject-matter involved, and may constitute the basis for an extra allowance under section 3353 of the Code of Civil Procedure.
    It is the better practice for the court not to grant an additional allowance in an action tried by a referee, on the ground that the case was “difficult and extraordinary,” without a certificate of the referee to that effect; but the absence of such a certificate is not jurisdictional and does not deprive the court of the power to consider a motion for an extra allowance and determine for itself whether the case falls within the language of the Code.
    The defendant, in an action tried before a referee, moved to have an order which had been granted giving the plaintiff an extra allowance resettled by inserting therein the fact that it was agreed upon the argument of the motion for the extra allowance that the referee had refused a certificate that the case was difficult and extraordinary on the application of the plaintiff, and that his report was read on the motion.
    This motion for a resettlement of the order was refused.

      Held, that such refusal was proper;
    That the report of the referee being a part of the record on appeal, it must be presumed that it was used upon the motion; and that had the parties desired to make the fact that a certificate of the referee had been applied for and refused a part of the record, they should.have either filed a stipulation or else the party desiring'to have it appear should have presented an affidavit on the hearing of the motion stating the fact.
    Appeal by the defendants, tbe Manhattan Railway Company and the New York Elevated Railroad Company from an order of the Supreme Court made at the New York Special Term at Chambers, and entered in the office of the clerk of the city' and county of New York on the 18th day of May, 1893, granting an extra allowance to the plaintiff, and from an order entered on the 27th day of May, 1893, denying the defendants’ motion to resettle the first order.

      Herbert Ba/rry, for the appellants.

      Henry A. Forster, for the respondent.
   Per Curiam :

This action was brought to recover the damages sustained by an abutting owner occasioned. by the construction and operation of the defendants’ railroad in one of the streets of this city. It was tried before a referee, who found that the damages sustained by the plaintiff by the operation of the road from the time it was built to the 'date of the trial of the action were $338.76, and that the injury sustained by the plaintiff by the taking of the easements, usually termed fee damages, amounted to $800. The plaintiff moved for an additional allowance, and five per sent was granted. ' The defendants insist that the court erred in granting an additional allowance upon the amount of the so-called fee damages.

Tbe Code provides- (§ 3253) tbat an allowance may be made “ upon the sum recovered, or claimed, or the value of the subjects matter involved.” The $800 does not represent a sum absolutely recovered by the plaintiff. It was payable at the election of the defendants. But the injury to the plaintiff’s easements was a part of the subject-matter involved in the action, and the damages occasioned by the injury to those easements having been assessed at the sum of $800, we think that that amount represents the value of the subject-matter involved, and that the court might grant an additional allowance upon that sum. (Lattimer v. Livermore, 72 N. Y. 174; Johnson v. Shelter Island Assn., 122 id. 330.)

Upon the motion made for an additional allowance the plaintiff failed to produce a certificate of the referee that the case was difficult and extraordinary. It is usual, and we regard it as the better practice, not to grant an additional allowance without a certificate of the referee who tried the cause, but the absence of it is not jurisdictional and does not deprive the court of the power to consider the motion and determine for itself whether the case falls within the language of the Code.

It is not recited in the order granting the additional allowance that the referee’s report was read upon the motion, and the defendants insist that it was orally agreed on the hearing that the plaintiff had applied for a c'ertificate from the referee, which had been refused. The defendants moved for a resettlement of the order by having inserted therein the fact that it was agreed upon the argument that the referee had refused a certificate on the application of the plaintiff, and that his report was read on the motion, which was refused.

The report of the referee is a part of the record presented upon this appeal, and it must be presumed that it was used upon the motion, and so both parties get the same benefit from it as though it had been recited in the order that it was so used. The court had the right to determine for itself whether or not it was agreed upon the hearing of file motion that a certificate of the referee had been applied for and refused. It may be that the attention of the court was not called to the statement. Had the parties desired to make this fact a part of the record, either they should have filed a stipulation or else the party desiring to have it appear should have presented an affidavit, on the hearing of the motion stating the fact.

"We fhi nk no error was and under the view we have taken of the case, a resettlement of it would not have affected the rights of the defendants.

The orders should be affirmed, disbursements.

Present — Yast RbuNt, P. J., Follett and Parkek, JJ.

Orders affirmed, with ten dollars costs and printing disbursements.