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HARV

j t-

0*^)5

CIVIL
PROCEDURE REPORTS.

CONTAINING CASES UNDER THE

CODE OF CIVIL PROCEDURE

AND

THE GENERAL CIVIL PRACTICE

OF THE

STATE OF NEW YORK.

REPORTED WITH NOTES
BT

HENRY H. BROWNE

OF THE NEW YORK BAR.

WITH A REFERENCE TO THE SECTIONS OF THE CODE OF CIVIL PBO-
OEDURE CONSTRUED OR CITED IN THE OPINIONS CONTAINED IN
THE FOLLOWING REPORTS, ISSUED DURING THE PERIOD COT-
BRED BT THIS VOLUME : NEW TORE REPORTS, TOLS. 91,
92, 98 ; DEMAREST'8 REPORTS, TOL. 1 ; HUN'S RE-
FORTS, VOL. 80; ABBOTT'S NEW CASES, VOL. 12;
HOWARD'S PR. TOL. 65; N. T. SUPERIOR
COURT REPORTS, VOL. 48, AND N. T.
CIVIL PRO. REPORTS, TOL. 4.

VOLUME IV.

NEW YORK:

S. S. PELOUBET,

LAW PUBLISHER AND BOOKSELLER,

80 NASSAU STREET.
1884.

COFTBIQHT.

B. 8. PELOUBET,
1^84.

CONTENTS.

Sections of the I

Code of Civil Procedure, f Fife

8 et eeq. 14 Dotlb «. Doyle 265

Sheriff's fees, by whom paid, in proceeding to

punish for contempt.

14, 15 Hall «. U. 8. Reflector Co 148

When motion to punish party after a contempt in

failing to pay costs, etc., of attachment as re*

quired by order will be denied.

55 In re Bailey 140

When attorney's right to costs absolute and not to
be defeated by payment to judgment creditor.

66 Albert Palmer Co. e. Van Orden 44

Attorney's lien for costs; mode of enforcing it.

74 Fowler v. Callajt ... v, 418

Attorney. What constitutes champerty.

102 Steffik e. Steffin 172

The plaintiff in an execution cannot maintain an
action to prevent or recover for the taking away
and conversion of property levied upon there-
under by the sheriff, but he may maintain an
action to remove an obstruction to its orderly en-
forcement and in aid of it.

110 et $eq. Dotle v. Doyle 265

8ection 110 et neq. of the Code does not apply to
proceedings to punish for civil contempt.

181, 182 Werckman v. Werckman 146

Sentence to State prison for term less than life
does not deprive prisoner of right to defend action
against him.

888 Kekly v. McGrandle , 827

Attachment cannot issue out of N. Y. City Court
to sheriff of any county other than New York.
421, 422 Krause v. Averill 410

[iii]

iv CONTENTS.

Sections of the I

Jodc of Civil Procedure, f Page

What notice of appearance sufficient. Order ex-
tending time to answer valid although defendant
has not appeared.

488, 489 Greexbaum t>. Dwter 276

Letter or papers referred to in affidavit to obtain
order for service by publication should be an-
nexed.

446, 448 Danaher *. City of Brooklyn 286

One cannot bring an action as administrator, etc.,
of two persons for damages for causing their
death.

448 Smith €. Davis 158

Prior mortgagee properly made defendant in ac-
tion for foreclosure of mortgage for the purpose
of determining amount due on his mortgage.

448 Smith t>. Crissey . 438

Person claiming money necessary party defendant
in action against municipal corporation to restrain
its payment.

451 Skoog €. N. Y. Novelty Co 144

When summons may be amended by inserting
real names of defendants in place of fictitious
name.

458, 460 Irving *. Garrity 105

An infant may sue in forma pauperis.

481 Morrison v. Lewis 437

Ownership of property in action of replevin when
may be implied.

481 Prickhardt v. Robertson 112

Muber v. Hobertson 112

The facts which must be stated in, a pleading are
ultimate facts only.

481 fttta. 8 DtTSENBURY t>. DUSENBURY 126

A party may, in his complaint demand any relief
to which he deems himself entitled, but ho is
thereby precluded from declining to take any
part thereof, or from demanding aught addi-
tional supported by the facts.

488 Smith v. Davis 158

When complaint not amenable to objection that
there is a defect of parties defendant.

488 Danaher «. City op Brooklyn 286

Two causes of action for damages for causing
death cannot be united in same complaint

CONTENTS. y

Sections of the I

Oofie of Ciril Procedure, f page

488, et §eq. Bbal e. Union Paper Box Co 18

Instance of demurrer which was not frivilous.

495 Bell e. Lesbini 867

Demurrer to counter-claim.

500 Clark «. Dillon , 245

If a material allegation is not directly denied, the
Court is warranted in assuming that no issue is
made. Instance of insufficient denial.

500 Luck e. Alexander 428

Denial in answer when insufficient.

500 Sheldon e. Sabin 4

Instance of an insufficient denial in an answer.

501 Bell e. Lesbini 867

In action on cont ract a counter-claim founded in

tort and not arising out of the facts stated in the

compliant, cannot be sot up.

510 Prickhardt v. Robertson 112

MU8ER e. Robertson '. 112

Construction of pleadings.
581 Stevens tr. Webb 64

Bill of particulars; object of; when not ordered.
581 Train e. Fbiedman 109

A bill of particulars will not be ordered where it

appears that the defendant who seeks it has more

knowledge of the particulars sought than the

plaintiff.
581 Claflin t. Smith 240

Instance of an action in which a bill of particulars

should be required.
581 Mastbrson v. The Mayor 817

When right to bill of particulars lost by Inches.
531 ' Towwsend e. .N. Y. Life Ins. Co 803

Rule as to pleading account and failure to serve,

does not apply to reference of claim against

administrator.
581 Bbal r>. Union Paper Box Co 18

At least five days' notice of motion for judgment

on frivolous pleading must be given; Court cannot

shorten such time; affidavits cannot bo used on

such motion.

544 Tifft e. Bloomberg 840

Supplemental answer when allowed.

545 Hagertt t>. Andrews 823

What matter in pleading, is irrelevant and

▼i CONTENTS. ,

Sections of the I

Code of CiTil Procedure, J Page

redundant Propriety of making party defendant

cannot be determined on motion to strike out

allegations in complaint referring to him.

649 Lawrence ©. Foxwell 840

Pleading in action to enforce liability fraudu-
lently contracted.

649 United States e. Reid 1

Value of goods forfeited for false entry, when
recovered, not a penalty. Contract, in action on
which defendant may be arrested under section
549 of the code, must be between party and party,
not that general contract between members of
society to support the laws implied from living
under them.

549 tub. 4 Lawrence e. Foxwell 851

When order of arrest in action on debt fraudu-
lently contracted must be vacated unless it appears
that the contract has been waived.

559 Godfrey e. Pell 448

Order of arrest; undertaking on granting; juris-
diction. Irregularity how waived.

580, 581 Lewis e. Stevens 224

When bail has once been duly allowed, the allow-
ance cannot be vacated.

690 Pratt e. Underwood » 167

Order restraining defendant from interfering with,
etc., partnership property pending action to dis-
solve partnership cannot be granted unless plain-
tiff gives security.

580 Smadbeck t>. Sisson 858

Attachment granted in action began simultane-
ously with completion of work for which it was
brought should be vacated, unless there are spe-
cial circumstances showing breach of contract.

686 Reilly e. Sisson 801

Same subject.

686 Mershon e. Leonard Scott Publishing Co 819

Attachment cannot be issued out of the City
Court of New York againBt a domestic corpora-
tion.

640 Sheldon t>. Sarin 4

Where an attachment was vacated in part only,
the sureties, on the undertaking to procure it, did
not become liable for damages, and this although

CONTENTS. yii

SectioMoftbe 1

Cedeof CM1 Frocedu*. f PltJ*

it was sustained in part because a portion of tho
property attached had been sold under execution
in the same action.

641 Nkely e. McGrakdlb 327

N. T. City Court has not power to issue attach-
ment to sheriff of any county other than N. Y.

641, 644 Plimpton *. Bioklow 189

647v 649 Shares of stock in a foreign corporation, when
cannot be attached.

650, 651 Ess e. Toplawyi 173

Extent of the examination of a person having
property in his possession belonging to the de-
fendant in an attachment.

689 Sheldon «. Sabin 4

Effect of partial vacation of attachment on under-
taking.

797, 798 Place e. Riley 893

Form of execution where summons served by pub-
lication.

709 Bowk e. U. 8. Reflector Co 154

Sheriff has Hen upon attached property, after va-
cation of the attachment for his fees, etc., and is
not obliged to deliver it to defendant until they
are paid.

709 Hall e. U. S. Reflector Co 148

When motion to compel sheriff to deliver at-
tached property to defendant upon vacation of at-
tachment will be denied.

713, subd. 1 DuBBNBUitY e. Dusenbury 126

Receiver should not be appointed on concurrent
demands in answer and reply in a case where the
code does not authorize appointment of receiver.

713, 715 Pratt «. Uh dbrwood . . 167

Instance of an action to dissolve the co-partnership
in which a receiver was properly appointed.

715 Titus e. Fairchild 418

Bond to officer, when not forbidden by 8 R. 8.
448 § 49.

798 Skooo e. N. Y. Novelty Co 144

Amending summons by inserting real name of de-
fendants sued by name under which they did
business.

788 Davibs v. Tub Mayor 290

Offer of judgment, when accepted, is bar to new

Tin CONTENTS.

Stctioos of the I

Code of Ciril Procedure, f Pmp

action for claim, or part of claim, set oat in com-
plaint.

755 Dalton e. Sakdland 73

When action docs not abate.

755 McXamara v. Harris 70

In case of transfer of interest pendente lite action
may be continued by original party; the substitu-
tion of the transferee is in the discretion of the
court.

757 Dalton ©. Sandland 78

When action not abated by death of defendant, '
both parties have an absolute right to continue it

773 In re National Trust Co 204

Application to vacate, modify or resettle an order
to whom made.

791, 798 Angle v. Kaufman 201

Preferences under the general rules of practice are
governed by Section 793 of the Code.

803, et $eq. Dickie e. Austin 123

Petition for discovery of books must state what
information is wanted, and that the books con-
tain it.

814 Titus e. Faircbild 418

Orders as evidence in suits on receiver's bond.

828 Grbiskann e. Dreyfus 82

Examination of party before trial.

837 Walker e. Dunlrvy (note) 88

Order for examination of party before trial should
not be granted where it will necessarily compel
party to invoke protection of court.

870 Andrews e. Earns '. 330

When axamination of party before trial not allowed
in action for tort.

870 Funk v. Tribune Association 408

When plaintiff in action for libel may be examined
before trial.

870, et teq. Greibmakn «. Dreyfus 82

The fact that questions may be put on examination
of party before trial which will tend to criminate
the witness affords no justification for his refusal
to be sworn.

870, et $eq. Walker v. Dunlevy (note) 38

Order for examination of party before trial should
not be granted in action where the only issue ii

CONTENTS, ix

of the J

j of Civil Procedure, f Page

the criminality of the witness sought to be exam-
ined.

870, et seq. Fogg e. Fisk 844

Party cannot be examined before trial at instance
of adverse party in IT. S. Circuit Court. Such
examination if begun in State Court prior to re-
moval of action to the U. S. Circuit Court may be
continued.

870, 872 Briggs t>. Taylor 828

When party may be examined at his own instance
before trial.

880 Walker e. Dunlevy (note) 88

Examination not allowed when it will necessarily
tend to criminate party examined.

880 Greismann v. Dreyfus 82

Objection that evidence of party on his examina-
tion before trial will tend to criminate him can
only be urged against a specific question.

880 Funk t>. Tribune Association 408

Questions which tend to criminate or render in-
famous party examined before trial should not be
allowed and he should not be required to plead
his privilege as an excuse for not answering them.

881, 883 Fogg«.Fisk 844

Testimony on examination of party before trial
when and how used in action removed to U. S.
Circuit Court.

885 Attorney General 0. Continental Life Ins. Co. 214

Order for taking deposition to be used on motion
cannot be granted on the application of any one
not a party to the action.

886 Gusstaf t>. American Steamship Co 248

Examination of party before trial. Party residing
in State cannot be examined in county other than
that in which he resides or has a place of business.

1013 Stebbins v. Cowles : 302

Actiqp by attorney for professional services; when
referable. Review of discretionary order.

1013 Hull t>. Allen 300

Same subject. Instance of such an action which
should not be referred.

1021 Thompson 0. Schieffelin 270

Order overruling demurrer as frivolous not appeal-
able.

x C0NTENT8.

Sections of the I

Oo4e of Cirll Procedure, f Paje

1904, 1805 Luce t>. Alexander 428

Where bond was given on opening default condi-
tioned for " the payment of any judgment which
plaintiff may recover," and he recovered two
judgments therein, one against all defendants and
another against one, payment of the first judg-
ment will not release sureties to bond.

1907 DUSEKBURY 9. DUSENBURY 126

Court when controlled in awarding judgment by
relief demanded in complaint.

1241 Hall t>. U. S. Reflector Co 148

Punishing for contempt in failing to pay costs,
etc., as required by order.

1819 Estate of Bullajid, deceased 984

When appeal from decree of surrogate, fixiug tbe
sum to the income of which a legatee was en*
titled, does not stay the execution of the decree so
far as it directed the payment of tbe income for
the first year.

1897,1881 Grow*. Snell 834

Undertaking to stay execution of judgment of for-
closure and sale an appeal therefrom.

1847, In re National Trust Co 204

Who may vacate, modify or resettle an order.

1885 Cupfbb t>. Frank 53

When execution may issue of course.

1870 Place v. Riley 893

When summons served by publication on ground
that resident debtor concealed himself, &c, execu-
tion, if it does not go against personal property
not attached, is void.

1875 Cuffer t>. Frank „ 53

Execution may be issued of course within five
years after right to issue has fully accrued.

1891 Keihbr e. Shipherd 974

Share in New York Law Institute owned by prac-
ticing lawyer, when exempt from judgment cred-
itor.

1405 Stbffin *. Steffin 179

Effect of the issuing of an execution and of a levy
thereunder.

1487 United States c. Rbid 1

Execution properly issued out of U. S. circuit
court on judgment recovered in U. S. district

COKTENTS. xi

Sections of the I . .

Code of Civil Procedure, f Page

court, and affirmed on writ of error in the circuit
court.

1538 Scheu e. Lehning * 385

Action for partition cannot be maintained be-
tween remainder men when actual partition can-
not be bad without great prejudice to owners.

1548 Hagertt v. Andrews 823

When defendant must litigate title in action for
partition.

1694 et teq. First Nat'l. Bank of Oswego t>. Dun 878

Second Nat'l. Bank of Oswego ». Dun 878

When property replevied is not in custody of law
so as to prevent levy thereon under execution.
Undertaking given in replevin proceedings does
not secure or protect judgment creditor of defend-
ant.

1720 Morrison e. Lewis 487

Complaint in action to recover personal property
procured by fraud.

1787, 1739 Bowe «. TJ. 8. Reflector Co * 154

Sheriff may bring action to procure sale of at-
tached property to satisfy his lien for fees, etc

1769 Lee t?. Lee 321

Alimony may be granted wife in action by husband
to annul marriage.

1776 Bentson e. Thingvalla Steambhif Co 260

To raise an issue as to the incorporation of a de-
fendant, there must be an affirmative allegation
that it is not a corporation.

1781, 1782 Bebcher «. Schieffelin 231

Complaint in and parties to an action to set aside
an unlawful alienation of the property of a cor-
poration made by its officers and trustees ; such
action may be maintained by manager.
2260, 2263, > Broadwell «. Holcombe 150

2265 J Summary proceedings ; when execution of war-
rant in, will be enjoined.

2866 McNulty t>. Soollet 250

Agreement to arbitrate discontinues action, and
that although it was not acknowledged and the
arbitrators never consented to act.

$485 Cromwell e. Sfofford 273

Supplementary proceedings ; second examination
of judgment debtor in, not allowed when similar

xii CONTENTS.

fteettoot of the I

Code or CWU Procedure. I ?*■■

proceeding on prior judgment between same par-
ties is pending.

844b ALBRIGHT V. KrMPTON 10

Supplementary proceedings; money owing to the
debtor, but not due and payable at the time an
order in, was served, cannot be reached. Court
has no power to make decree appropriating a
debtor's future earnings to the payment of a
judgment.

8451,2463 Hancock t>. Sears 855

Judgment debtor who expends his personal earn-
ings, due before the service of an order in sup-
plementary proceedings containing an injunc-
tion upon him, but received thereafter, for the
support of his family, when not guilty of con-
tempt.

8468, 8464 Keihbr t>. Shipherd 274

Motion for receivership, founded on ownership of
share in New York Law Institute by judgment
debtor, who is a practicing lawer, should be
denied.

2527, 8557 ) Estate of Hewitt 57

8560, 8566 f Costs of appeal from surrogate's decree ; surrogate
has no power to award or order payment of, ex-
cept as directed by the appellate court ; where
appellate court has awarded costs, but has made
no directions as how they shall be paid, the sur-
rogate may exercise his discretion in particulars
in which the appellate court has failed to exer-
cise it; functions of special guardian cease with
entry of surrogate's decree ; if special guardian
recognized as guardian ad litem appellate court
on appeal from surrogate's decree, although not
regularly appointed as such, he is entitled to
compensation for his services.

8591 Brown f>. Landon 11

If surrogate had jurisdiction to issue letters of
administration they are not to be disregarded in
collateral proceedings.

8611, 2618, ) Estate ofBooert 441

8628 ) Testimony of subscribing witness in proceedings
for probate of will not controlling; does not
bind proponent. Will not be invalidated by ab-
sence of or defect in attestation clause.

CONTENTS. ariii

flections of the I

Code of Civil Procedure, f Page

2672 Estate of Fbicxe 177

Extent of Surrogate's power to direct the applica-
tion of money in the bands of a temporary ad-
ministrator.

2695, 2606, ) Browns e. Landon 11

2697, 2702 ) Ancillary letters of administration ; proof required
on issuing. Such letters not void, nor to be dis-
regarded in collateral proceeding, because proof
on which they were granted was defective or
irregular, if surrogate acqui red jurisdiction. Power
of attorney to receive ancillary letters of admin-
istration properly acknowledged before Vice Coruul
of United States.

$717, 2718 Estate of McKiernan 218

Administrator disputing claim should file written
answer on application for order decreeing its pay-
ment.

2786 Estate of Slosbos 280

Amount of commissions to testamentary trustees.

2789, 2740 Snyder v. Snyder 370

Claim in favor of executor against his intestate's
estate can be paid only upon allowance by surro-
gate, and neither he nor his assignee can maintain
action thereon.

2748 Estate of Obseb 129

Surrogates have power to hear and determine
controversies concerning legacy or distributive
share; what subscribing witness may take under
will.

2811 Estate of Slossoh 280

Commissions to testamentary trustees, when allow-
ed; amount of, when fund originally less than
$100,000 was increased by income to more than
that sum.

2868 subd. 4 Steele e. MacDonald , 227

To oust justice of jurisdiction in a matter of
account on the ground that the accounts exceed
$400, they must exceed that sum exclusive of pay-
ments on account.

2863subd. 4Bundick v. Hale 811

When account does not exceed $400, payments on
account go in extinguishment of the debt.

8017 CONNINGHAM V. ElSKMAN 220

Transcript of judgment rendered in N. Y. District

xir CONTENTS.

tactions of the )

Code of Civil Procedure, f Pig*

Court can only be filed with County Clerk by

party in whose favor Judgment was rendered.

8160 Stephenson v. Hanson 104

What must be shown on motion in city court of
New York for security for costs on ground of on
residence.

8160 ' Mershon e. Leonard Scott Publishing Co 819

Attachment cannot issue out of New York City
Court against domestic corporation.

8*28 Bundicx e. Hale 811

Costs where plaintiff recovers less than $50.

8228 subd. 8 Steels o. MacDonald 237

Costs in eourt of record in a matter of account
when plaintiff does not recover $50.
8228 subd. 4 ) Newcomb e. Hale 25

8280 ) Costs; when the Court of Appeals reverse a judg-
ment "with costs to abide the event," the party
eventually successful recovers costs for all steps in
the action ; where a judgment was modified, and
as modified affirmed " with costs to the appellant,"
" with costs" meant costs in the Court of Appeals
only ; the costs of an action for the foreclosure of
a mortgage, wherein judgment for deficiency is
awarded against a grantor of the payment of the
mortgage, are in the discretion of the court.

8251 subd. 5 Malcolm v. Hamfll 221

Argument in Court of Appeals for which costs
are allowed may be either oral or written.

8258 Barclay e. Culver 865

Extra allowance computed on amount involved
in action.

8258, 8254 Weed t>. Paine 805

Additional allowances not limited to $2,000 in the
aggregate, but to $2,000 to each side when both
parties are successful.

8256 Hall v. U. S. Reflector Co 148

Collection of sheriff's fees for executing attach-
ment.

8268 McNamaka v. Harris 76

Order continuing action in name of transferee of
plaintiff's interest, should not be granted where
its effect would be to defeat the legal conse-
quences of an order requiring security for costs.

CONTENTS. v \ X¥

Saetknioftbe )

Qpdt of CMl Procedure, f Ptgt

3268 Ryan e. Totter 80

Security for costs ; in a esse within 8268 of the

code, defendant's right to, is absolute, unless lost

by laches.
$268 Bostwick o. Fifibld 72

Security for costs ; a plaintiff cannot be required

to give, in the New York court of common pleas,

because he is a non-resident of the county..

8288, et ug. Note on Security for Costs 82

8268 Hates t>. Second Ave. R. R. Co. (note) 84

When right to security for costs lost by laches,

court may still require.
8268 Living v. Garbitt 105

When order requiring infant to give security for

costs will be vacated.
8268, 8269 Stephenson v. Hanson. 104

Security for costs in city court of U. S. on ground

of non-residence.

8270 Hoffman t>. Lowell 108

Sum deposited as security for costs to be returned
to plaintiff upon rendition of judgment in his
favor.

8271 Ryan e. Potter 80

Security for costs ; under 8271 the court may, in
its discretion, request plaintiff to give ; not
required in action by administrator simply
because the only asset of the estate is the claim
in suit.

8272 McCall v. Frith 102

When sum deposited as security for costs to be
paid to successful party.

8277 Hoffman v. Ridley , 41

When court not divested of jurisdiction of motion
by entry of judgment, court has power to discon-
tinue an action without costs ; it rests in sound
discretion ; an infant plaintiff, unable to comply
with an order requiring her to give security for
costs, should be allowed to discontinue the action
for personal injuries without costs.

8807 Doyle «. Doyle 265

Sheriffs fees in proceedings to punish for con-
tempt, by whom paid.

8807 Hall *. U. S. Reflector Co 148

xvi CONTENTS.!

flections of the I

Code of Civil Procedure, f Page

Party paying sheriffs fees on attachment, how

reimbursed if ultimately successful.

8848 Bobtwick t>. Fifield 79

The New York court of common pleas belongs to

the class denominated "superior city courts ;" it

is a county court for certain purposes, but not

within the meaning of section 82 AB of the code of

ciril procedure.

TABLE OF CASES REPORTED.

P*ge
Albert Palmer Co. e. Van

Orden 44

Albright v. Kempton 16

Alexander, Luce t> 428

Allen, Hull* 300

American Steamship Co.,

Gusstaf v 243

Andrews, Hagerty v 328

Andrews e. Keene 330

Angle e. Kaufman 201

Attorney-General v. Continental

Life Ins. Co 214

Austin, Dickie t> 123

Averill, Erause v 410

Bailey, In re 140

Barclay 9. Culver , 865

Beal o. Union Paper Box Co.. Id

Bcecher v. Schieflelin 230

Bengtson e. Thingvalla Steam-
ship Co 260

Bell t>. Lesbini 867

Bigelow, Plimpton * 180

Bloomfield, Tift t> 849

Bogert, Estate of 441

Bostwick v. Pifield 70

Bowe e. U. 8. Reflector Co. . . 154

Briggs t>. Taylor 828

Broadwell t>. Holcombe 150

.Brooklyn, City of, Danaher t>. 286

Brown v. Landon 11

Ballard, Estate of 284

Buadick t>. Hale 811

Callan, Fowler 9 .• 45

Claflin v. Smith 240

Clark v. Dillon 245

Continental Life Ins. Co.,

Attorney-General v 214

Cowles, Stebbins v 302

Crissey, Smith e 483

Cromwell v. Spofford ........ 279

Culver, Barclay v 865

Cunningham v. Eiseman 220

Cupfer v. Frank 53

Dalton e. Sandland 78

Danaher «. City of Brooklyn.. 285

Davies t>. Mayor 200

Davis, Smith v 158

Dickie e. Austin. 128

Dillon, Clark t> 245

Doyle ©.Doyle 268

Dreyfus, Greismann e. r . 88

Dun, First Natl Bank of

Oswego* 878

Dun, Second Nat'i Bank of

Oswego 9 878

Dusenbury v. Dusenbury 126

Dwyer, Greenbaum e. 276

Eiseman, Cunningham 9 220

Esa 0. Toplanyi 178

Fairchild, Titus © 418

Fifield, Bostwick e 70

xviii TABLE OP CASES REPORTED,

First Hat'l Bank of Oswego 0.

Dun 878

Fiak, Fogg 0 844

Fogg 0. Fisk 844

Fowler 0. Gallen 412

Fox well, Lawrence 0 840

Foxwell, Lawrence 0 851

Frank, Copfer 0 58

Fricke, Estate of 177

Friedman, Train 0. 109

Frith, McCall 0 102

Funk 0. Tribune Association*. 408

Garrity, Irving 0

Godfrey©. Pell

Greenbaum o. Dwyer

Greiamann 0. Dreyfus.

Grow e. Snell

Gusstaf 0. American Steam-
ship Co

Hagerty 0. Andrews

Hale, Bundick t

Hale, Newcomb 0

Hall 0. U. S. Reflector Co

Hamill, Malcolm 0

Hancock 0. Sears

Hanson, Stephenson *

Harris, McNamara 0

Hayes t. Second Ate. R J?.

Co. (note)

Hewitt, Estate of

Holcombe, Broad well 0

Hoffman 0. Lowell

Hoffman 0. Ridley

Hull 0. Alien

105
448
276
82
884

248

828
811

25
148
221
255
104

159

108

800

Page
Keiher 0. Shipherd 274

Kempton, Albright 0 16

Krauae 0. Averill 410

Landon, Brown 0 11

Lawrence 0. Foxwell 840.

Lawrence 0. Foxwell 851

Lee 9. Lee 821

Lehning, Scheu 0 885

Leonard Scott Publishing Co.,

Mershon 0 819

Lesbini, Bell v 867

Lewis, Morrison v 437

Lewis t>. Stevens 224

Lowell, Hoffman 0. 103

Luce 0. Alexander. ••••.«,% %* 428

McCall 0. Frith , 102

McGrandle, Neeley 0 827

McEiernan, Estate of 218

McNamara 0. Harris 76

McNolty 0. Scolley 250

Macdonald, Steele 0 227

Malcolm 0. Hamill 221

Masterson 0. Mayor S17

Mayor, Davies 0 290

Mayor, Masterson 0 817

Mershon 0. Leonard Scott Pub-
lishing Co 319

Morrison 0. Lewis 437

Muser 0. Robertson 1.2

Irringe. Garrity.

105

Kaufman, Angle 0 201

Keene, Andrews 0 880

National Trust Co., In re..... 202

Neeley 0. McGrandle 827

Newcomb 0. Hale 25

N. T. Life Ins. Co., Towns-
end 0 898

N. T. Novelty Co., Skoog 0... 144

Oner, Estote of 189

TABLE OF CASES REPORTED.

xix

Pra

Paine, Weed*. 805

Pell, Godfrey*.... 448

Place «. Riley 898

Plimpton «. Bigelow 169

Potter, Ryan v 80

Pratt e. Underwood 167

Prickhardt ♦. Robertson 112

Reid, United States *. . , 1

Reilly e. Sisson 861

Ridley, Hoffman v 41

Riley, Place * 898

Robertson, Mnser * 1 12

Robertson, Prickhardt * 112

Ryan*. Potter 80

Smith e. Davis 158

Soell, Grow t> v 884

Snyder e. Snyder 870

Spofford, Cromwell •. 278

Stebbins «. Cowles 80$

Steele *. Macdonsld 227

Steffin e. Steffin 179

Stephenson *. Hanson 104

Stevens, Lewis ft, ..«« . 224

Stevens *. Webb. . . . , 64

Sebin, Sheldon t>

Sandland, Dalton • 78

Seheu e. Lehning

Schieffelin, Beecher *. 280

Schieffelin, Thompson « 270

Scolley, McNulty « 200

Sears, Hancock • 250

Second Ave. R R. Co., Haye*\

(note) 84

Second Natl Bask of Oswego

v.Dnn 878

Sheldon e. Sabin 4

Shipherd, Keiher *. 274

Sisson, Reilly *. 861

Sisson, Smadbecke 858

Skoog *. N. T. Novelty Co. . . 144

Slosson, Estate of. 280

Smadbeck e. Sisson 858

Smith, Claflin * 240

Smith t>. Crissey 488

Taylor, Briggs « 828

Tbingvalla Steamship Co.,

Bengtsone 260

Thompson e. SchieffelitL 270

Tift*. Bloomfleld. 849

Titus e. Fairchild 418

Toplanyi, Bss e 178

Townsende.N.T.IifeIns.Co. 898

Train e. Friedman 109

Tribune Association, Fnnke.. 408

Underwood, Pratt • 167

Union Paper Box Co., Beal e. 18

United States e. Reid 1

U. S. Refleotor Co., Bowee. . . 154

U. S. Reflector Co., Hall *.. .. 148

Yaa Orden, Albert Palmer
Co.e ; 44

Webb, Stevens e 64

Weed 9. Paine 806

Werckman e. Werckman 146

TABLE OF CASES CITED

IN THE OPINIONS.

A.
Cams. Where Reported. Page Cited

Abemathy e. Abemathy 2 Cow. 413 229

Adama «. Holley 12 How. Pr. 826 121

Adee V.Campbell........ 14 Hun, 551; S. C, affM79N.

Y.52 184

Allen e. Patterson 7N.Y. 478 117, 121

Ansonia Brass & Copper Co, *.

Pratt 10 Hon, 448 186

Antonia Brass 6 Copper Co. *.

Pratt 74JT.Y. 400 185

Armstrong «. Cummings < < ..20 Hunt 818 105

Bailey©. Dean ,.5 Barb. 207 , 400

Baker % Mathews *...%,..lDieno, 885 180

Ballard «. Ballard ,18 N. Y. 491 220

Bank of Angosta *. Earle 18 Pet. [88 U. 8.J519 100

Bank of Havana e. Magee 20 N. Y. 855 140

Barante •. Deyeraand 41 N. Y. 885 48

Ban «. King 90 Pa, St 485 199

Barrett e. Western 00 Barb. 205 258

Baskin e. Baskin 48Barb.200;afTd80N.Y.410. 445

Baxter e. Missouri, Kansas & Texas

By. Co , 07 Barb. 288 175

Beardaley «. Littell 14 Blatch. [U. 8. Circ Ct.] 102. 840

Becker v. Becker 47 Barb. 497 275

Belmont*. Cornen 82 N. Y. 250 279

Bettse. Betts 4 Abb. N. C. 442 288

Blossom e. Bstes 84 N. Y. 017 201

Boston Mills f. Bull 0 Abb. N. 8. 819; B.C., 87

How. Pr. 299 229

TABLE OF CASES CITED.

xxi

Gmw. Wkere Reported. Plfe Cited.

Bowman v. Earl 8 Doer, 691... « 6S

Brady v. Smith 8 Hun, 60 878

Brandon MTg Co. *. Bridgman...l4 Hun, 128 409

Breweter 9. Hatch 10 Abb. N. C. 400 217

Brice*. Smith Willes [Eng. C. P.] 1 446

Brinkley «. Brinkley 60 N. Y. 190 888

Brotherson 9. Contains 86 How. Pr. 818 417

Brown, Matter of 81 Wend. 816 184

Brown 9. Met. Gaa L. Co 88 How. Pr. 138 160

Brown 9. Williams 7 Cow. 816 68

Borbank v. Reed. 11 N. Y. Weekly Dig. 676 888

Burkle 9. Luce 1 Coma. 164, aff'g., S. G.

6 Hill, 668 888

Burrall t>. Buahwick R. R. Co. ...75 N. Y. 811 196

Butler* Maynard 11 Wend. 548 186

Butler's Bail 1 Chit 83 886

Cambridge Tal. Nat. Bank 9.

Lynch 76 N. Y. 514 278

Canada Steamship Co. 9. Sinclair.. 8 N. Y. Civ. Pro. 885 883

Ganavan 9. McAndrew 80 Hun, 46 274

Cantrell 9. Connor 51 How. Pr. 45. 275

Carleton e. Carkton 86 N. Y. 815 279

Chadwick 9. Sptfgur 1 N. Y. Civ. Pro. 488 ... . 164, 165

Chaffee 9. Baptist Miss. Soc. ....10 Paige, 85 59,446

Cheesbrough 9. Agate 86 Barb. 603 10

Childs9. Digby ..24 Pa, St. 26 200

Christmas*. Biddle 13 Pa. St 223 200

City Bank 9. Banga 4 Paige, 285 889

Clarksori 9. De Peyster 8 Paige, 920 188

Colgrove 9. Tallman ....67 N. Y. 99 431

Oooley 9. Lawrence 5 Duer, 610 412

Oorbett 9. De Comeau 4 Abb. N. C. 859; 8. C.t 54

How. Pr. 883 87, 39

Corbett 9. De Comeau 5 Abb. N. C. 169 833

Cornell 9. Reynolds 1 Cow. 241 826

Couch 9. Mulhane 68 How. Pr. 79 411

CoughHn 9. N. Y. C. & H. R. R.

RCo 71 N. Y. 443 417

Cram e. Cram 2 Redf. 824 883

Crimu. Cronkhite 15 How. Pr. 850 318

Croft * Pawlet 8 Strange [Eng. K. B.] 1109.. 446

Cudlipp * Whipple 4 Duer, 610 181

xril TABLE OF CASES CITED.

PigtCtted.

Curtis e. Blatchford 10 How. Pr. 481 S39

Cutter f. Pool •..*... >. 8 Abb. N. C. 130 185

Davies «. The Mayor 88 N. Y. 907 804

Dayton s. Wilkes 17 How. Pr. 810 178

Decker «. Decker 8 Paige, 140 870

DeMeerthe. Feldner 10 Abb. Pr. 895 878

Dittenhoefer e. Lewis 0 Daly, 78 808

Doe 69 cUm. Saunders e. Duke of

Newcastle 7 T. R. 888, Jfef* 4 88

Doe ex dam. Webb v. HulL 7 T. R. 888, Note A 08

Donoran e. Vandemark 88 Hun, 807 87

Douglas 9. Haberstro 58 How. Pr. 870 411

Drake*. Price 5 N. Y. 480 888

Drummood *. Hussoo 14 K. Y. 00 10

Dunlope. Patterson Fire Ins. Co... 74 N. Y. 147 801

Dupuy •. Wurte 47 How. Pr. 885....- 81

Durand e. Lawrence 8 Blatch. [U. 8. Circ. Ct]

890 110

Durgin e. Ireland 14 N. Y. 888 417

Dwight 9. Oecmania Life Ins. Co. 84 N, Y. 498 08, 241, 848

Elliott e. Bwartwout 10 Pet [U.S.] 187 180

Elwoode. Western Union Tel. Co. 45 N. Y. 558 445

Farmer's Bank e. Empire, etc. Co. 5 Bosw. 875 188

Farmers' & Merchants' Bank of

Buffalo*. Lang 87 N. Y. 814 881, 884

Ftoon «. Sherwood 17 N. Y. 397 181

Felt e. Tiffany 10 Hun, 08 808, 804

First National Bank of Meadville

*. Fourth Nat'l Bank of N, Y...84 N. Y. 409 87

Fish e. Ferris 3 E. D. Smith, 587 59

Fisher e. Hepburn 48 N. Y. 41 818

Fort e. Burch 6 Barb. 00 .••' 185

Foster e. Hawley 8 Hun, 08 184

Foster e. Pettiborne 80 Barb. 850 888

French «. Willett 10 Abb. Pr. 108 188

Frost «.Mott 84 N. Y. 858 875

Fuller e. Conde 47 N. Y. 89 818, 814, 810

TABLE OP CASES CITED. xxiii

Case*. Where Reported. Page Cited.

Gerouldo. Wilson 81 N. Y. 578 434,427, 438

Gibbs «. Queen Ins. Co 63 N. Y. 114 195, 196

Gilbert «. Moody 17 Wend. 857 ... 383

Gildersleeve «. London 78 N. Y. 609 445

Gillett «. Staples 16 Hun, 588 187

Glencove Starch Co. o. Gottbold. .1 N. Y. Civ. Pro. 866 176

Goodell «. Jackson. 30 Johns. 697 134

Gotto. Cook 7Paige, 523 808

Greaves o. Gouge 69 N. Y, 154 217

Griffin v. Griffin 47 N. Y. 187 332

Grocers' Bank of N. Y. «. Bayard, 31 Hun, 208 , 274

Hague o. Lucas 10 Peters [U. S.] 400 883

Hallo. Samson 19 Hun, 481 884

Halletto. Hare 5 Paige, 815 134

Hammond v. Earle 5 Abb. N. C. 105. . . .* 249

Hands t>. James . . 1 Comyn [Eng. K. B.] 531.445, 446

Hartwell o. Bissei 17 Johns/ 128 186

Healy v. Twenty- third St R. R.

Co IN. Y. Civ. Pro. 15 81

Herrington «. Robertson 71 N. Y. 280 81

Higenbotham v. Green 25 Hun, 216 71

Hosleyo. Black ....28N. Y.48S 121

Howe Machine Co. t>. Pettibone . . 74 N. Y. 68 279

Hullo. Carntey UN. Y. 501 884'

Hurst «. Litchfield i..89N. Y. 877 121

Hurst o. Watkins 1 Campb. [Eng. N. P. R.] 69. 68

Hurtino. Proal 8 Brad f. 414 184

Jackson v. Styles 3 Wend. 49 165

Jessurun c. Mackie 24 Hun, 624 164

Johnson, Inre 2 Curteis [Ecc] 841 447

Jones o. Berwicke L. R. 5 C. P. D. 82 248

Jordan «. Poiilon 77 N. Y. 518 891

Kampo. Kamp 59 N. Y. 212 209, 912

Kearney McKeen 85 N. Y. 186 876

Keep v. Keep 17 Hun, 152 258

Kellingert. Roe..... 7 Paige, 363 59

xxiv TABLE OF CASES CITED.

Cases. Where Reported. Page Cited.

Kenney t>. Roberts 26 Hun, 166 883

Kiefer ©. Webster 6 Hub, 526 360, 864

Kinder©. Macy 7 Cal. 206 243

Kinney v. Roberts & Go 26 Hun, 166 409

Knapp v. Fowler 26 Hun, 202 > 881

Knox o. McDonald 25 Hun, 268.. .< 164

Lafayette Ins. Co. «. French 18 How. [59 U. S.] 404. . .106, 107

Lamoure «. Caryl 4 Denio, 870 314

Lansing v. Lansing » 45 Barb. 182 283

Larkin t>. Bobbins 2 Wend. 505 253

Leech v. Bates 6 Notes of cases [Eng. Ecc. &

Mar. Cts.]699 447

Leggett, In re 4 Redf. 149 .282

Le Roy t>. Piatt 4 Paige, 77 1 87

Losses v. Ellis 13 Hun, 635 81

Low «. Durfen 5 Fed. Rep. 256 3

Lnffman, In re , 5 Notes of Cases [Eng. Ecc. &

Mar. Cts.] 188 447

Lyon v. Isen 42 How. Pr. 155 850

McCabe t>. Fogg 2 Monthly L. Bull. 7 53

McCaffrey t>. Hickey 66 Barb. 491 188

McCluskey *. Cromwell 11 N. Y. 593 10

McGregor t>. McGregor 85 N. Y. 218 877

McGreight t>. Stevens 1 H. & E. 454 243

McKeerv. Delancy 5 Cranch, 22 135

McMillan v. Vanderlip 12 Johns. 165 13

McNair*. Gilbert 8 Wend. 846 68

McNulty «. Hurd 86 N. Y. 547 445

Magee v. Vedder 6 Barb. 852 133

Maliory t>. Willis 4 N. Y. 76 120

Manning o. Keenan 73 N. Y. 45 803

Manning *. Monaghan 28 N. Y. 585 884

Manton v. Poole 4 Hun, 638... 856

March v. Davidson 9 Paige, 580 409

Marsh v. White 3 Barb. 518 186

Martin t>. Windsor Hotel Co 10, Hun, 304 804

Matteson o. Bloomfield 10 Wend. 555 814

Meeker v. Crawford 5 Redf. 463 288

Meeker v. Harris 9 Cal. 289 : 243

Merriam t. Hall I N. Y. Weekly Dig. 60 281

TABLE OP CASES CITED. xxv

Gum. Where Reported. Page Cited

Merrick e. Van Santvoord 84 N. Y. 208 196

Mesick v. Mesick 7 Barb. 180 876

Mills, Ex part* 10 Weod. 557 899

Mills e. N. Y. 0. P 10 Wend. 557 note 814

Miller «. McCloskey 1N.Y. Civ. Pro. 232. ... 949, 483

Mitchell t>. Mitchell 77 N. Y. 596 ; affg 16 Hun, 97. 445

Moett *. People 85 N. Y. 873 444, 445

Moffet *. Sackett 18 N. Y. 529 121

Montague *. Woratell 55 How. Pr. 406 and not* 625. 899

Moody e. Gleason 7 Co w. 482 59

Moore e. Genett.... * Tenn. Cb. 375 200

Morgan*. Morgan 1 Abb. Pr. N. S. 40 61

Morris*. DeWitt 5 Wend. 71 884

Morris t>. Sturges 26 How. Pr. 177 125

Morris *. Whelan 64 How. Pr. 109 486

Nat'l. Bank tr. Huntington... . . . 129 Mm. 444 , 199

Newell «. Cutter 19 Hun, 74 259

New England Iron Co. *. N. Y.

LoanA Imp. Co 55now.Pr. 851 125

Newton «. Millevilie Man'f . Co ... 17 Abb. Pr. 818 146

N. Y. State Monitor M. Pan Ass'n

e. Remington Agc'l Works. . . 89 N. Y. 22 146

North ©.North 1 Barb. Chan. 241 822

Norton e. Woodruff 9 N. Y. 158 120

Orser*,Orser 94 N. Y. 52 444,445,446

Otvia «. Dana 1 Abb. N. C. 268 68

Pwhan e. Moran 4 Hun, 717. ,... 15

Parker c. Moore 8Edw. Chan. 284 187

Pttrshall e. Eggert 54 N. Y. 18 885

Patterson e. Adams 7 Hill, 126 440

Peck e. Cook 41 Barb. 549 278

People v. Bergen 53 N. Y. 405 210

People e. Carpenter 24 N. Y. 86 121

People*. Hopson 1 Denio, 575 186

People v. Ryder 18 N. Y. 483 121

People*. Walker 28 Barb. 805 129

xxvi TABLE OP CASES CITED.

Cases. Where Reported. Page Cited.

People ex rel. Geer e. Common

Council of City of Troy 62 N. Y. 575 887

People exrel. Woods e. Criasey..91 N. T. 616 484

Philadelphia v. Collector 5 Wall [72 U. 8.] 720 180

Phillip «. Bartlett 9 Bosw. 678 440

PhcBoix e. Dupuey 2 Abb. N. C. 146 89,409

Pierson t>. Lawrence 2 Blatchf. [U. 8. Circ. Ct] .495, 116

Pitts v. Chambers .....IF. & P. 684 248

Piatt e. Stout UAbb.Pr. 178 121

Pomeroyt. RicketU 27 Hun, 242 856,868

Poppenhusen o. Seeloy 41 Barb. 450; 8. C, 8 Keyes, 150. 11

Quackenbush e. Leonard 10 Paige, 181 889

Rawleye. Brown 71 N. Y. 89 440

Rhoads*. Woods 41 Barb. 471 185

Riggse. Cragg 89 N. Y. 491 188

Robinson's Case... 8 Abb. Pr. 466 275

Roderigas v. East River Savings

Institution 63 N. Y.460 15

Roderigas «. East River Savings

Institution 76 N. Y. 816 15

Roger*. Hosach 18 Wend. 819 875

Rose v. Clark 8 Paige, 574 184

RuttertJ. Boyd 8 Abb. N. C. 6 177

Sanders 9. Townshend 63 How. Pr. 843; B. C, 11 Abb.

N. Y.217 87

Sanford*. Sanford 45 N. Y. 728 877

Savage *. Gould 60 How. Pr. 255 61

Savage*. Sherman... 24 Hun, 807 282

Schofield*. Churchill 72 N. Y. 565.. 426

Scofield*. Whiteiedge 49 N. Y. 259 440

Schriver*. Schriver 86 N. Y. 580 891

Scott*. Myers ION. Y. Weekly Dig. 581 186

Seagram, In re 8 Notes of Cases [Eng. Ecc. &

Mar. Cto.]436 446

Sedgwick *. Stanton 14 N. Y. 289 417

Seguine*. Scguine 8 Abb. Pr. N. S. 442 61

Seymour *. Newton 17 Hun, 82 888

ttharpeteen *. Tillon 8 Cow. 651 186

TABLE OF GASES CITED. xxvii

Cases. When Reported. Page Cited.

Shaw* Davis 55 Barb. 889 275

Sheldon©. Alierton 1 Sandf. 700 184

Bhipmao v. Clark 4 Denio, 446 888

Bisters of Charity v. Kelly 68 N. Y. 698 29, 80

Skinner v. Stuart 89 Barb. 206 186

Smith*. Davis 8 N. Y. Civ. Pro. 74. .856, 868,864

S mi th v. Field 1 05 U. S. 59 119

Smith f. Lawrence 11 Paige, 207 877

Smith*. Mahon..: 2 N. Y. Civ. Pro. 55 '. 279

Smith «. Blade 57 Barb. 687 275

Southern Navigation Co. «. Sher*

win 1 N. Y. Civ. Pro. 46 449

State Tonnage Tax Cases 12 Wall. [79 U. S.] 204 120

Steiger v. Schultz 8Keyes, 616 48

Stevens e. Phamix Ins. Co 41 N. Y. 150 196

Stewart t>. Beale 7 Hun, 416 (affd. 68 N. Y.

629) 187, 188

Stewart «. Brown 87 N. Y. 350 275

8treet «. Smith 7 Watt & 8. [Penn.] 447. 195

Stockwell o. United States 18 Wall. [80 U. S.] 531 8

Stowell *. Haslett 5 Laos. 382 188

Strong e. Strong 4 Redf. 876 188

Sucar e. N. Y. Central R. R. Co. 21 Barb. 245 289

Sutherland «. Carr 85 N. Y. 105 424

Tanner «. Marsh , 53 Barb. 438 804

Taylor «. Delaney 2 Cai. Cas. 743 184, 108

Terry*. Rubel 12 N. Y. Leg. Obs. 137 125

Thompson «. Erie Ry. Co 9 Abb. Pr. N. S. 233 213

Thompson e. Maxwell 2 Blatchf. (XL S. Circ Ct.) 385. 116

Tilton «. Beecber 59 N. Y. 176 68, 242

Trumbull v. Healy 21 Wend. 670 226

Truscott v. King 6 N. Y. 147 187

Trustees of Auburn Sem. e. Cal-
houn... 25N.Y.425 447

Tucker e. Tucker...* 4Keyesy 136 182, 185

Underbill e. Dennis 9 Paige, 202 59

Union Ins. Co, «. Van Rensselaer 4 Paige, 85 808

United States «. Moller 10 Ben. (U. S. Dist. Ct) 189. . . 4

United States t>. Pinga 4 Fed. Rep. 714 846

xxviii TABLE OF CASES CITED.

CMes. Where Reported. Page Cited.

Vetterlein, In re 18 Blatch. (U. 8. Cir. Ct) 44. . 8

Vilmar v. Schall 61 N. Y. 564 866

Voorhees *. Dorr 51 Barb. 580 417

Walker v. Granite Bank 10 Abb. Pr. HI; 8. C, 44

Barb. 177 125

Walter ©.Fowler 85 N. Y. 621 826

Ward v. Ford 4 Rcdf. 84 288

Ward v. Ingraham IE. D. Smith, 588 229

Ward*. Wiles 24N.Y.635 804

Warts f>. Jenkins 11 Barb. 546 877

Weller «. Weller 4 Hun, 196 402

West*. West 4 8. & T. 22 248

Whipple «. Foot 2 Johns. 418 186

Wigand «. Dejonge 18 Hun, 405 68

Wilcox «. Hawley 81 N. Y. 648 275

Willis v. Wiley 8 Johns. 268 68

Wilson *. Barney \ .5 Hun, 257 213

Wilson v. Simpson 84 N. Y. 674 272

Woodbury v. Sackrider 2 Abb. Pr. 402. 122

Woods*. Pangburn 75 N. Y. 495 431

Woonsocket Rubber Co. *. Rubber

Clothing Co 1 N. Y. Civ. Pro. 850 366

Wortman *. Wortman 17 Abb. Pr. 66 278

Wright v. Miller 8 Barb. Ct 882 .. 839

Wright v. Rogers L. R. 1 Prob. & Div. 678 447

Y.
Yamato Trading Co. *. Brown.... 25 Hun, 248 882

Z.
Zabriskie t. Smith V..1Z N. Y. 828 441

STATUTES, ETC., CITED.

SECTIONS OF THE CODE OP CIVIL PROCEDURE

CITED.

section

F**

Section

ftp

2, subd. 6 & 13 .

. 80

685

. 854

. 207, 269

636

. 820

14, subd. 8 & 15 .

. 151

641

• • •

195, 827

14 .

267, 268, 269

647

•

194, 195, 197,

198, 200

51, 62

649

•

• • •

175, 198

110 . .

. 269

709

• • ••

151, 157

183 . .

. 147

713, subd.

. 127

888 . .

. 827

723

• 146

481 . .

410, 411, 412

787

482 . .

. 410

755

• 75

482 . .

. 196

756

• 77

488

. 897

757

. 75

489

. 278

772

. 210

447 . .

. 485

791,

lubd. 10

. 202

448 . .

. 485,436

793

. 202

481 . .

. 117

814

. 426

495 . .

. 868

870

. 829

500, subd. 1 .

. 240

872

. 829

500 . .

9, 432

881

• • •

846, 848

501 . . .

. 867, 868

888

. 846

519 . .

. 192

885

• • •

915, 216

581 . .

. 403

886

. 244

888

. 122

952

. 13

546 . .

. 121

1002

. 211

949, subd. 4 .

. 844, 852

1021

. 279

549 . .

8, 344

1204

• 431

557 . .

. 852

1205

. 431

558 . .

. 852

1241

. 151

580 . .

. 225

1310

. 285

581 . .

. 226

1826

. 835

599 . .

. 449

1327

•

• • •

835, 889

620 . .

. 171

1831

•

• 886

837, 838

xxx.

STATUTES, ETC., CITED.

Section Page

1347 ... . 910

1865 55

1370 807

1375 55

1301 275

1487 844

1543 325

1550 .810

1570 . . . . .810

1702 882

1703 882

1720 430

1776 264

1780 106

1781 230

1782 ..... 230

1868 138

2260 163

2261 163

2262 .... 163

2268 163

2265 163

2266 .... 267,260

2267 260

2268 260

1268 260

'281 260

83 260

2284 260

2366 253

2447 250

2455 250

2456 ..... 250

68 250

*#57 . • , . 60, 61

2558 . . .60, 61, 62, 68
2558-2560 . • . .60

8ectioa

2560

2566

2580

2501

2618

2672

2605

2606

2607

2702

2718

2780

2740

2742

2748

2811

2863, subd. 4.

8017

8160

3160

3228, subd. 8

3228, subd. 4

3230

8251

8251, subd. 5

3253

3256

3268

3271

8272

8307

8348, subd. 1

3736

Chap. IX., Tit. 8,
" XV., " 1
"XVIL, " 12,

60, 62, 63

. 60

60, 62, 63

447

178

219

375

875

135

181, 132, 135

282

228

221

105

820

81
222
222
300
151
81, 84

81
108
151, 268

80,

Aril
Art 1

245
822
,258

STATUTES, ETC., CITED.

xxxl

SECTIONS OF THE CODE OF PROCEDURE CITED.

TAaw

130 4H

330 175

385 839

388 888

8ESSION LAWS CITED.

Laws of 1817, chap. 58 15

1887 " 460§§83,87 875

1866 " 115 983

1867 " 460 304

1880 " 345 383

1881 " 531 485

1888 " 405 860

NEW YOKE REVISED STATUTES CITED.
FIRST EDITION.

2 R. 8. p. 68 (40 447

3 R. 8. p. 65 §§ 50, 51. . 186, 188

3 R. 8. p. 88 §84 403

2 R. 8, p. 88§§35,37 405

3R. 8. p. 03 | 71 181,133

3 R. 8. p.

3 R. S. p.

3 R. 8. p.

90 175

1434*?. „ 833

464.. 304

606 §82 880

701 §19 147

FIFTH EDITION.

3R. 8. p. 983|73 416

SIXTH EDITION.

3R. 8. p. 1143§11 15

8R. a p. 448§49 438

SEVENTH EDITION.

3 R. 8. p. 3317 J 6 15

8R. 8. p. 3538 § 19 147

xxxii STATUTES, ETC., CITED.

GENERAL RULES OF PRACTICE CITED.

Rule 10 412

" 86 202

" 87 449

" w m

RULES OF COURT OF APPEALS CITED.

Rulel4 229

" 21 ; 222

UNITED STATES REVISED STATUTES, CITED.

686 8

861 846

990 3

991 •••.. 8

1674«ubd.8 15

i 2864 2

2931 115

8011 116, 122

8012 114, 121

OTHER UNITED STATES STATUTES CITED.

12 U. 8. Stat, at L. 787 2

18 U. 6. Stat at L. 470 847

Act of Congress 1863 chap. 76 J 1 2

STATUTES, ETC., CITED. xxxiil

SECTIONS OF CODE OP CIVIL PROCEDURE.

Construed oe citbd w thb opinions contained in the
following Reports, issued dueino the Period Covered
by this Volume : N. Y. Reports, Vols. 91, 92, 93 ; Dema-
rcate j3ur. Reports, Vol. 1; Han's Reports, Vol. 30;
Abbott's New Cases, Vol. 12 ; Howard's Pr. Reports, Vol.
65 ; N. I\ Superior Court Reports, Vol. 48 ; and N. Y.
Civil Procedure Reports, Vol. 4.

|§8 el. *q. Doyle 0. Doyle 4 N. Y. Civ. Pro. 265.

14 HalU. U. 8. Reflector Co 4 N. Y. Civ. Pro. 148.

14 Doyle 0. Doyle 4N.Y. Civ. Pro. 265.

14, subd. 8 Schulte 0. Anderson 48 Super. Ct. 183.

15 Hall 0. U. 8. Reflector Co 4 N. Y. Civ. Pro. 148.

15 Gillies v. Ereuder 1 Dem. 849.

17 Matter of Le fling well ' 80 Hun, 538.

66 Albert Palmer Co. 0. Van Orden 4 N. Y. Civ. Pro. 44.

66 Inre Bailey 4N.Y. Civ. Pro. 140.

66 Piersonc. Safford 80 Hun, 521.

66 Tullis 0. Bushnell 65 How. Pr. 465.

74 Fowler v. Calian 4 N. Y. Civ. Pro. 418.

102 Steffin 0. Steffin 4 N. Y. Civ. Pro. 179.

110 et teq. Doyle 0. Doyle 4 N. Y. Civ. Pro. 865.

181, 132 Werckman 0. Werckman 4 N. Y. Civ. Pro. 146.

190 . Victory 0. Blood 98 N. Y. 650.

191 Crawford 0. W. 8. Bank 93 N. Y. 650.

191 Williams 0. W. U. Tel. Co 98 N. Y. 162.

191, subd. 3 American Hosiery Co. 0. Reiley..l2 Abb. N. C. 386.

284 Van Voorhis 0. Kelly 65 How. Pr. 800.

295 Gibbon 0. Freel 98 N. Y. 98

838 Neely 0. McGrandle 4 N. Y. Civ. Pro. 897.

872, subd. 4 Fogg 0. Fisk 65 How. Pr. 851.

885 People ex ret Byrne e. French 12 Abb. N. C. 156.

882, snbd. 1 Compton 0. Elliott 48 Super. Ct. 213.

382, subd. 5 Knauer 0. Globe Hat. Ins. Co. . .48 Super. Ct. 459.

883 Dickinson*. The Mayor 92 N. Y. 584.

888 Watson 0. F. B. 8. R. R. Co. 98 N. Y. 622.

888 Watson 0. F. 8. 8. R. R. Co 48 Super. 44.

888 Compton 0. Elliott 18 Super. Ct 213.

895 De Freest 0. Warner 80 Hun, 94.

401 Londriggan 0. N. Y. & N. H. R. R. Co. . . 12 Abb. N. C. 273.

402 Greene 0. N. Y. Central R. R. Co 48 Super. Ct. 383.

410 Drake 0. Wilkie 30 Hun, 587.

xxxiv STATUTES, ETC., CITED. n

410 Dickinson.. The Mayor 92 N. T. 684.

414 Drake*. Wilkie 80 Hud, 537.

414 Matter of Columbian las. Co 80 Hun, 842.

414 Watson*. F. 8. S. R. R. Co 48 Super. 44.

414 Watson «. P. S. S. R. R. Co 98 N. Y. 522.

414 Greene e. N. T. Central R. R. Co 48 Super. 888.

416 Gibbon v. Freel 98 X. Y. 93.

421, 422 Krause e. Averill 4 N. Y. Civ. Pro. 410.

424 Pryer e. Clapp 1 Dem. 887.

424 Catlin. e. Ricketts 91 N. Y. 668.

438, 489 Greeobaum e. Dwyer 4 N. Y. Civ. Pro. 276.

440 O'Neil 9. Bender 80 Hun, 204.

446 Danaher e. City of Brooklyn 4 N. Y. Civ. Pro. 286.

448 Smith «. Crissey 4 N. Y. Civ. Pro. 438.

450 Trebioge. Vetter 12 Abb. N. C. 802.

450 Muser*. Miller 12 Abb. N. C. 305.

451 Skoog v. Novelty Co 4 N. Y. Civ. Pro. 144.

451 TownofH. «. 1st Nat. Bank 98 N. Y. 82.

.452 Matter of Columbian Ins. Co 80 Hun, 842.

452 Matter of Dunn 1 Dem. 294.

458, 460 Irving e. Garrity 4 N. Y. Civ. Pro. 105.

481 Prickhardt v. Robertson 4 N. Y. Civ. Pro. 113.

481 Morrison «. Lewis 4 N. Y. Civ. Pro. 437.

481, subd. 8 Dusenbury e. Dusenbury 4 N. Y. Civ. Pro. 126.

484 Smith 9. Davis 4 N. Y. Civ. Pro. 158.

484 Danaher «. City of Brooklyn 4 N. Y. Civ. Pro. 286.

484 Pracht v. Ritter 48 Super. 509.

488 Smith 9. Davis 4 N. Y. Civ. Pro. 158.

488 Danaher *. City of Brooklyn 4 N. Y. Civ. Pro. 286.

488 et $eq. Beal e. Union Paper Box Co 4 N. Y. Civ. Pro. 18.

495 Bell 9. Lesbini. 4 N. Y. Civ. Pro. 867.

500 Sheldon 9. Sabin 4 N. Y. Civ. Pro. 4.

500 Clark e. Dillon 4 N. Y. Civ. Pro. 245.

500 Luce 9. Alexander 4 N. Y. Civ. Pro. 428.

501 Carpenter 9. M. S. Ins. Co 93 N. Y. 552.

501 Bell 9. Lesbini 4 N. Y. Civ. Pro. 367.

519 Prickhardt «. Robertson 4 N. Y. Civ. Pro. 112.

521 Ithaca Gas Light t. Treman 80 Hun, 212.

531 Stevens e. Webb 4 N. Y. Civ. Pro. 64.

581 Train*. Friedman 4 N. Y. Civ. Pro. 109.

631 Claflin e. Smith 4 N. Y. Civ. Pro. 240.

531 Mastcrson e. Muyor, &c. N. Y 4 N. Y. Civ. Pro. 317.

531 Townsend «. N. Y. Life Ins. Co 4 N. Y. Civ. Pro. 398.

532 Springsteene e. Gillette 30 Hun, 260.

536 Bradncr*. Faulkner 93 N. Y. 515.

STATUTES, ETC., CITED. xxxv

587 Beal *. Union Paper Box Co 4 N. Y. Civ. Pro. 18.

544 Tifft v. Bloomberg 4 N. Y. Civ. Pro. 840.

544 Dorrance e. Henderson WN.Y. 406.

545 Hagerty e. Andrews 4 N. Y. Civ. Pro. 828.

548 Tompkins e. Smith , 48 Super. 118.

549 United States e. Reid 4 N. Y. Cir. Pro. 1.

549 People v. Phillips 80 Hun, 558.

549 subd. 2 Tompkins e. Smith 48 Super. 118.

549 subd. 4 Rowe *. Patterson 48 Sapor. 249.

549 subd. 4 Ewart e. Schwartz 48 Super. 891.

549 subd. 4 Lawrence e. Foxwell 4 N. Y. Civ. Pro. 840, 851.

558 Muser «. Miller 12 Abb. N. C. 807.

559 Godfrey «. Pell 4 N. Y. Civ. Pro. 448.

580, 581 Lewis e. Stevens 4.N. Y. Cir. Pro. 224.

808 Stamm «. Bostwick 80 Hun, 70.

620 Pratt t>. Underwood. . . . ; 4 N. Y. Civ. Pro. 167.

629 Met. Ele. B. R. Co. «. Man. R. R. Co. . . .65 How. Pr. 277, 819.

629 Williams «. West. U. Tel. Co 65 How. Pr. 826.

636 Mershon e. Scott Pub. Co 4 N. Y. Civ. Pro. 819.

636 Smadbeck v. Sisson 4N.Y. Civ. Pro. 853.

636 Beilly *. Sisson 4 N. Y. Civ. Pro. 861.

636 Cribben t>. Schillinger 80 Hun, 248.

688 Catlin v. Bicketts 91 N. Y. 668.

638 Gibbon v. Free! 93 N. Y. 98.

640 Sheldon e. Sabin 4 N. Y. Civ. Pro. 4.

640 Bate v. McDowell 48 Super. 220.

641 Plimpton v. Bigelow 4N.Y. Civ. Pro. 189.

641 Neely*. McGrandle 4 N. Y. Civ. Pro. 887.

644 Plimpton e. Bigelow 4 N. Y. Civ. Pro. 189.

647 Plimpton v. Bigelow 4N.T. Civ. Pro. 189.

649 In re Fiandro w 92 N. Y. 256.

649 Plimpton v. Bigelow 4 N. Y. Civ. Pro. 189.

650 Ess «. Toplanyi 4 N. Y. Civ. Pro. 173

650 Almy «. Thurber 12 Abb. N. O. 459. :

651 Esse.Toplanyi 4 N. Y. Civ. Pro. 178.

682 Sheldon v. Sabin 4 N. Y. Civ. Pro. 4.

682 Parsons c. Sprague 80 Hun, 19.

682 Time. Smith 98 N. Y. 67.

683 Parsons e. Sprague 80 Hun, 19.

685, 686, 687 Simpson v. St. John 98 N. Y. 868.

707,708 Place*. Riley 4 N. Y. Civ. Pro. 898.

709 Hall v. U. S. Beflector Co 4 N. Y. Civ. Pro. 148.

709 Bowet>. U. S. Reflector Co 4N. Y. Civ. Pro. 154.

709 Hun e. Salter 92 N. Y. 651 .

713 Pratt c. Underwood 4 N. Y. Civ. Pro. 167.

xxxri STATUTES, ETC., CITED.

718, Mbd. 1 Dusenbury e. Dusenbury. .... . .4N. Y. Oir. Pro. US.

T15 Pratt v. Underwood 4N.T. Civ. Pro. 18?.

715 Titus «. FairchUd 4 N. Y. Civ. Pro. 418.

788 Skoeg «. Norelty Co 4 N. Y. Cir. Pro. 144.

728 Gibbon*. Preel 98N. Y.98.

788 GHUese. Kinder i Den. 849.

781 Moffiatt e. Henderson ,48 Super. 448.

787 Davies e. Mayor, Ac. N. Y 4 ST. Y.Oir. Pro. 888.

738 Moffatt*. Henderson 48 Super. 448.

740 Noonan *. Smith. ..18 Abb. N. C. 887*

785 Daltoae. SenoMand 4 N. Y. Cir. Pro. 78.

755-760 Holsmsn*. St John 48 Super. 807.

788 HcKamara e. Harris 4 N. Y. Cir. Pro. 78.

757 Dalton «. Sandland 4 N. Y. Civ. Pro. 78.

757 Wood e. Ply no 80 Hun, 444.

■778 2n re National Trust Co ...4N. Y. Cir. Pro. 908.

788 Gibbon *. Freel 88 N. Y. 88.

791 Angle «. Kaufman 4 2*. Y. Civ. Pro. 301.

TO1 Bank of A. ». M. N. Bank 01 K. Y. 888.

781 Bartlett e. Musliner 98 N. Y. 648.

'791 People ard. e. Kinney 98 N. Y. 647.

793 Angle •.Kaufman .4K. Y. Ovr. fto. 2W.

798 Bank of A. e. M. K. Bank 91 M. Y. 888.

793 Bartlett v. Musliner 92N. Y. 646.

783 People est rd. e. Kinney 92N. Y. 647.

803 et uq. Dickie e. Austin 4 N. Y. Cir. Pro. 118.

«2, 818 Trask*. Annett .1 Dem. 171.

614 Titus e.Faircbild 4 N. Y. Cnr.Pto.4fiB.

618 McKay*. Reed 12 Abb. K. C. 38.

888 Greisman c. Dreyfus 4N.Y. Civ. Pro. 88.

828 Matter of Praser ....08BT. Y. 889.

829 Steele*. Ward 80 Han, *5S.

iS29 Pease *. Baraett ^OHio, 525

889 Matter of Fraser 98 K. Y. 288.

*89 Bobbins*. Pulta* 48 Super. tUO.

889 Scherrer t. Kaufman • .1 Dem. 89.

829 Wbelpley *. Loder .1 Dem. -888.

880 Bradley e. Mlrrick 91tf. Y.298L

832 People a. MoGloin 12 Abb. N. C. 172.

882 People *. MeGlom 91 N. Y. 241.

664 Steele e. Ward 80 Hun, 555.

684 Whelpley e. Loder 1 Dem. 888.

«64 Grattan *. M. L. Ins. Oo 99K.Y. 274.

885 Wbelpley a. Loder 1 Dem. 868.

Ml Walkers . Dunlevey 4tf. Y. Cir. Pro. 38.

STATUTES, ETC., CITED. xxxviij

870 stsaf. GreUima v. Dreyf Hi 4 N. Y. Civ. Pro. SX !

810 4**$ Walker *. Dunlevey 4N. T. Civ. Pro. 88, :

870 **«•?. FoggevFiak 4 N. Y. Civ. Pro. 344.

870 Town of H. *. 1st Nat. Bank 98N.Y.82.

870 Akay *. Thurber 18Abb.N.C. 462.

870 Sharp* Hutchinson 48 Super. 101.

870 Brfgga e. Taylor 4 N, Y. Civ. Pro. 828s

870 Andrews t. Keen* *....4N. Y. Cie. Pro. 880.

870 Funk*. Tribune Ase'n 4N. Y. Civ. Pro. 40&

872 Fogg*. Fisk 80 Hun, 6L

872 Hardy*. Petere 80 Hon, 79.

872 Towu of H. e. lit Nat Bank 98 N. Y. 82.

872 Briggs*. Taylor 4N.Y. (St. Pro. 828.

875 Sharp*. Hutchinson 48 Super. 101.

877 Van Roy •. Harriott ....80 Hun, 77.

880 Grejanaue. Dreyfus 4N. Y. Civ. Pro. 82.

880 Walker*. Doalevey 4 N. Y. Civ, Pro. 8a

880 Funk*. TribuaeAae'n....... 4 N. Y. Civ. Pro. 408.

881 Fogg «. Flak 4 N. Y. Civ. Pro. $44.

888 Towu of H. c 1st Nat. Bank 98H.Y.82,

888 Fogge.Fisk 4 N. Y. CIt. Pro. 844.

885 Att'yGea'lff. Gout Life Ins, Oo 4N. Y. Civ. Pro. 2U.

888 Qowtaf e. Am, & S. Co. , 4 N. Y. Cir. Pro. $48>

894 Jones e.Hoyt 48 Super. Ct 118.

852 Browne. Landon 4N. Y. Qiv. Pro. 11*

982 Roche «. Marvin ,.....92K. Y. 898.

984 Lyon e. Lyoo . 80 Hun, 455.

092 Reeee «. Boeee 99 H. Y.882.

997 IngereoUe. Smith y 48 Super, 522.

999 Pollock e. Waaaamaker . .65 How. 508.

1000 Johnson e. N. Y. O, * W. R. R. Go. . ..80 Hub, 188.

1908 Post*. Masou 91K. Y.589.

1009 Kenney *. Apgar 98N, Y. 542.

1918 Hall*. Allen '. .4 N. Y. Civ. Pro. 8QQ.

1018 BUbbiua *, Oowles 4 N. Y. Civ. Pro. 802.

1018 O'Reilley *. City of Kingston 80 Hun, 508.

1018 Streat*. Rothechild 12 Abb. N. C. 888.

1018 Knapp e. Fowler 80 Hun, 512.

1021 Thompson «. Sohieffelin 4 N. Y. Civ. Pro. 270.

1041 People*. Petrea 80 Hun, 98.

1041 People e. Petrea. 92 N. Y. 128.

1041 People e. Duff 85 How. Pr. 885.

1204, 1905 Luoee. Alexander 4 ». Y. Civ. Pro. 428.

1207 Doesnbury *. Dueenbuxy 4N. Y. Civ. Pro. 12C

1207 Murtha *, Curiey 12 Abb. N. a 12.

xzxviii STATUTES, ETC., CITED.

1228, 1229 McCleary*. McCleary 90 Hon, 154.

1241 Hall *. U. a Reflector Co 4 N. T. Civ. Pro. 148.

1241, subds. 2 and 4 Schalte e. Anderson 48 Super. 138.

1266 Adams*. Bowe 12 Abb. N. C. 822.

1268 Seaman «. McReynolda 65 How. Pr. 521.

1268 Blamentbal e. Anderson 91 N. T. 171.

1278 Candee *. Smith 98 K. T. 849.

1279 People*. Albany Ins. Co 92 N. T. 45a

1281 People ». Mutual E. & Ac. Ass'n 92 N. Y. 62a

1294 Chase v. Chase 65 How. Pr. 806.

1294 Louden e. Louden 65 How. Pr. 41.

1306 Mclntyre e. Strong 48 Super. 299.

1810 Sudlow e. Pinckney 1 Dem. 158.

1310 Morey «. Tracey 92 N. Y. 582.

1815 Dow v. Darragh 92 N. Y. 587.

1815 Reese e.Boese 92 N. Y. 682.

1326 Mclntyre e. Strong 48 Super. 299.

1819 Estate of Bullard 4 N. Y. Civ. Pro. 284.

1827 Grow «. Snelt 4 N. Y. Cir. Pro. 884.

1881 Grow «. Snell 4N. Y. Civ. Pro. 88<

1886 Victory v. Blood 98 N. Y. 650,

1887 Hynes *. McDermott 91 N. Y. 45a

1847 In re Nat'l. Trust Co 4 N. Y. Chr. Pro. 208.

1849,1850 Victory *. Blood 98N.Y. 650.

1865 Cupfer v. Frank 4. N. Y. Chr. Pro. 5a

1865 Disosway e. Hayward 1 Dem. 175.

1869 Disosway e. Hayward 1 Dem. 175.

1370 Place e. Riley 4 N. T. Civ. Pro. 898.

1375 Cupfer v. Frank IK.T.Oiv. Pro. 58.

1881 Wadley v. Davis 80 Hun, 67a

1881, subd. 2 Gillies e. Kreuder 1 Dem. 849.

1891 Keiher *. Shipherd 4 N. Y. Ctv. Pro. 27a

1891 Russell «. Dean 80 Hun, 242.

1405 Steffin e. Steffin 4 N. Y. Civ. Pro. 179.

1487 United States e. Reid 4 N. Y. Cir. Pro. 1.

1601 Smith e. Long 19 Abb. K. 0. 113.

1501 Chamberlain e. Taylor 12 AM. N. C. 478.

92 N. Y. 84a

1504 Horton v. N. Y. C. R. R. Co 12 Abb. N. C. 8a

1510 Horton *. N. Y. C. R. R. Co 12 Abb. K. C. 80.

1581 Piersone. Safford 80 Hun, 021.

1588 Hughes v. Hughes 80 Hun, 849.

1588 Bcheu c. Lehning 4N.Y. Civ. Pro. 885.

1543 Hagerty e. Andrews. . . .4 N. Y. Cfr. Pro. 888.

1638 Stamm e. Bostwick 80 Hun, 7a

STATUTES, ETC., CITED. xxiix

1670 Braioerd e. White 12 Abb. N. C. 407.

48 Super. 899.

1694 €t$eq. Bank of Oswego «. Dun 4 N. Y. Chr. Pro. 878.

1780 vMorrieon e. Lewis 4 N. Y. Civ. Pro. 487.

1787 Bowee. U. S. Reflector Co 4 N. Y. Cir. Pro. 154.

1789 Bowe e. U. 8. Reflector Co 4N.Y. Civ. Pro. 154.

1766 Ramedeae. Ramsden 91N. Y. 881.

1769 Lee *. Lee % 4N.Y. Civ. Pro. 891.

1769 Chase c. Chase 65 How. Pr. 808.

1769 Louden e. Louden 65 How. Pr. 411.

1770 Spahae. Span* 12 Abb. N. C. 169.

1776 Bengteon v. Tbingvalla & 8. Co 4N.Y. CIt. Pro. 960.

1776 C.l*l Asa'n e. Read 98 N. Y. 474.

1778 HuUod e. Morriaaoia 8. Co 12 Abb. 278.

1781 Beecher e. Scbieffelin 4N.Y. Chr. Pro. 230.

1781 Paulsen e. Van Steenbergh 65 How. Pr. 842.

1782 Beecher e. Schieffelin 4 N. Y. CiT. Pro. 280.

1782 Paulsen e. Van Steenbergh 65 How. Pr. 842.

1807 Att'y GenTl t. N. A. L. Ins. Co 98 N. Y. 867.

1819 Drake e. Wilkie 80 Hun, 687.

1825 Hauselt *. Gano 1 Dem. 86.

1882, 1888, 1884 Thome v. Underbill 1 Dem. 806.

1888 HelUer e. Doll 91 K. Y. 865.

1861 Hatch e. Sigman 1 Dem. 519.

1885 Hatch e. Sigman 1 Dem. 519.

1902 Londriggau v. N. Y. & N. H. R. R. Co. 12 Abb. N. C. 278.

1913 Baldwin e. Roberts 80 Hun, 168.

1926 Bridges f. Board of Supervisors 92 N. Y. 570.

1987 Morey e. Tracey 92 N. Y. 581.

1953 People «s ttL Swinburne v. Nolan 80 Hun, 484.

2007 Matter of Leary 80 Hun, 894.

2070 People « rd, Sanderson e. Board of Can-

rasaers of Greene 12 Abb. N. C. 101.

2129 Matter of Leary..... 80 Hun, 894.

2140 People m rd. Drevet e. Fire Corns 80 Hun, 876.

2140 People e* rel Murphy e. French 92 N. Y. 806.

2282 Matter of White.. 12 Abb. N. C. 848.

2288 Lahrs f. Common 80 Hun, 468.

2260 Broadwell e. Holcombe 4 N. Y. Civ. Pro. 159.

2268 Broadwell e. Holcombe. . . . 4 N. Y. Cir. Pro. 159.

2265 Broadwell e. Holcombe. 4. N. Y. Cir. Pro. 159.

2265 Matter of White 12 Abb. K C. 848.

2865 Cutter e. Cutter 48 Super. 470.

9866 MoNulty e. Scolley ...4N. Y. Civ. Pro. 250.

2866 Cutter e. Cutter 48 Super. 470.

xl STATUTES, ETC., CITED.

2869 Cutter*. Cotter ! 48 8oper. 470.

2485 Cromwell*. Spoffard 4N. T. Civ. Pro. 278.

2486 Maokin v. Pape 85 How. Pr. 458.

2441 Dims*. Herrig 65 How. Pr. 290.

2448 Albright «. Kemptea 4N. Y. Civ. Pro. 14.

2451 Hancock t. Sears 4N.Y. C1t. Pro. 255.

2458 Davis*. Herrig 65 How. Pr. 290.

2480 Dosenbury *. Dusenbury . . 48 Super. 205.

2463 Hancock *. Beats 4 K. Y. Cir. Pro. 255.

2472 Brittin*. Phillipe 1 Dem. 57.

2472 Guion *. Underbill 1 Dem. 802.

2472, sttbd. 8 Thompson *. Mott 1 Dem. 82.

2473 Matter of Yerplanck 91 N. Y. 439.

2476 Matter of Langbetn 1 Dem. 448.

2476 Duffy *. Smith 1 Dem. 209.

2481 Matter of Yerplanck 91 N. Y. 489.

2481, sobds. 5, 11 Guion *. Underbill 1 Dem. 803.

2481, sobd. 6 Melcher *. Stevens 1 Dem. 123.

2481, subd. 6 Pryer *. Clapp 1 Dem. 887.

2485 Gillies *. Kreuder 1 Dem. 849.

2496 People *. Welent 80 Hun, 475.

2514, subd. 11 Stapler *. Hoffman . . . ! 1 Dem. 63.

2517 Pryer*. Clapp 1 Dem. 387.

2520 Boerum *. Betts 1 Dem. 471.

2527 Estate of Hewitt. ... 4 K. Y. Civ. Pro. 57.

2588 Gillies*. Kreuder 1 Dem. 849.

2545 Mills *. Hoffman 92 N. Y. 181 .

2546 Matter of Leffingwell 80 Hun, 528.

2552 Gillies *. Kreuder 1 Dem. 849.

2553, 2554 Disosway *. Hayward 1 Dem. 175.

2554, 2555 Matter of Disosway 91 N. Y. 235.

2555, subd. 4 Furguson *. Cummings 1 Dem. 488.

2556 Btokes*.Dale 1 Dem. 261.

2557 et $$q. Estate of Hewitt 4 K. Y. Civ. Pro. 57.

2557 et $eq. Matter of Sexton 1 Dem. 3.

2558 Forster *. Kane 1 Dem. 67.

2558, subd. 8 Bertine *. Hubbell 1 Dem. 885.

2558, subd. 8 Whelpley *. Loder 1 Dem. 868.

2561 Forster e. Kane 1 Dem. 67.

2561 Matter of Brown 65 How. Pr. 461*

2561 Gillies *. Kreuder 1 Dem. 849.

2561 Walton *. Howard 1 Dem. 108.

2561 Hall *. Campbell 1 Dem. 415.

2562 Matter of Brown 65 How. Pr. 461. t

2562 Walton «. Howard 1 Dem. 108.

STATUTES, ETC., CITED. xli

3562 Hall*. Campbell 1 Dem. 415.

2566 Estate of Hewitt 4N.Y. Our. Fro. 67.

2573 Matter of Dunn lDtn. 294.

2577 8udlow •. Pinckney 1 Dem. 158.

2577 a Mf. Du Bois «. Brown 1 Dem. 317.

2591 Brown t>. Landon 4N. Y. Chr. Pro. 11.

2002 Thompsons. Mott 1 Dem. 82.

9662 Guion c. Underhill ^... .1 Dem. 808.

2602 Harney e. Keller 1 Dem. 677.

2606 Le Count t>. Le Count 1 Dem. 29.

2607,2608 Soofield v. Adriance 1 Dem. 196.

9611 Estate of Bogert 4 N. Y. Chr. Pro. 441.

2617 Stapler e. Hoffman 1 Dem. 63.

2617 Carpenter v. Historical Society 1 Dem. 606.

9618 Estate of Bogext 4 N. Y. Citr. Pro. 441.

2621 Hatch t. Sigman 1 Dem. 519.

2623 Estate of Bogert 4 X. Y. Cif . Pro. 441.

2622 Hyatt e. Lnnnin 1 Dem. 14.

2624 Matter of Hagenmeyer'a Will 12 Abb. X. 0. 433.

2624 McClnre «. Woolley 1 Dem. 674.

2688 Hovey e. McLean 1 Dem. 896.

2638, subd. 1 Ballard «. Charlesworth 1 Dem. 501.

2648, aubd. 4 Fowler e. Walter. .., 1 Dem. 240.

2644 Batchelor v. Batchelor 1 Dem. 209.

2647 Pryere.Clapp . . . . 1 Dem. 887.

2650 Bray v. Smith 1 Dem. 168.

2667 Matter of Malloy 1 Dem. 42^

9668- Cornwell e. Cornwell IDem. 1.

2668 Tookerc. Bell 1 Dem. 62.

2672 Estate of Fricke 4 N. Y. Citr. Pro. 177.

2672 Stokes*. Dale 1 Dem. 260.

2685 Drezells. Berney 1 Dem. 168.

2685 Basse yw. Keller IDem. 577.

9695 Moyer c.Weil 1 Dem. 71.

2695,2696, 2697 Brown *. Landon 4 N. Y. Cir. Pro. It

2702 Brown*. Landon 4 N. Y. Cit. Pro. 11.

2706 Metropolitan Trust Co. e. Rogers 1 Dem. 365.

2710 Metropolitan Trust Co. .«. Bogera 1 Dem. 865.

2717 Estate of McKiernan 4 H. Y. Cur. Pro, 918.

2717 Mnmford e. Coddington . . /. 1 Dem. 27.

2717 Thompson v. Mott 1 Dem. 82.

2717 Smith *. Murray IDem. 84.

2717 Fiester «. Bhepard 92 N. Y. 251.

2718 Fiester «. Bhepard 98N. Y.25L.

2718 Estate of McKiernan 4 N. Y. Cir. Pro. 218.

xlii STATUTES, ETC., CITED.

2718 Thompson e. Mott „_ 1 Dam. 89.

2718 Smith©. Murray . 1 Dem. 84.

2718 Mumford *. Coddington 1 Dem. 27.

2710 Hoyt *. Jackson 1 Dem. 558.

2726 Edwards «. Edwards 1 Dem. 132.

2781 Greene v.Day 1 Dem. 45.

2784 Tickel t>. Quinn 1 Dem. 425.

2786 Estate of Sloeson 4 N. Y. CiT. Pro. 280.

2786 Hall e. Campbell 1 Dem. 415.

2737 Arthur c. Nelson 1 Dem. 387.

2739 Fraenznick v. Miller 1 Dem. 186.

2789 Snyder e. Snyder 4 N. Y. CiT. Pro. 87a

2739 Moyer e. Weil 1 Dem. 71.

2789 Bauer t>. Kastner... 1 Dem. 136.

2740 Snyder v. Snyder 4 N. Y. CiT. Pro. 870.

2741 Thome c Underbill 1 Dem. 806.

2743 Estate of Orser 4 N. Y. Civ. Pro. 129.

2743 Matter of Verplanck 91 N. Y. 489.

2748 Greene v. Day 1 Dem. 45.

2748 Giles «. De Talleyrand 1 Dem. 97.

2743 Fraenanick v. Miller 1 Dem. 186.

2748- Du Bois e. Brown 1 Dem. 817.

2752 Dennis ©. Jones 1 Dem. 80.

2752 Eammerrer c. Ziegler 1 Dem. 177.

2754, 2755 Eammerrer v. Ziegler 1 Dem. 177.

2756, 2757 Matter of Fox . . .92 N. Y. 93.

2759, 8ubd. 4 Dennis v. Jones 1 Dem. 80.

2811 Estate of Slosson 4 N. Y. CiT. Pro. 280.

2811 Hall «. Campbell 1 Dem. 415.

2823 Ledwith «. Led with I Dem. 154.

2826 Ledwith e. Ledwith 1 Dem. 154.

2880 Rieck t>. Fish 1 Dem. 75.

2851 Matter of Schroeder 65 How. Pr. 194.

2863, flubd. 4 Steele e. MacDonald 4 N. Y. CiT. Pro. 227.

2863, subd. 4 Bundick e. Hale 4 N. Y. CiT. Pro. 811.

2870 McNeary o. Chase 80 Hun, 491.

2892 Fowler «., Haynes 91 K. Y. 846.

2901, 2902 McNeary v. Chase 80 Hun, 491.

2951,2952 Matter of White 12 Abb. N. C. 848.

2957 Fox e. E. P. Co 93 N. Y. 54.

3017 Cunningham p. Eiseman 4 N. TJ. CiT. Pro. 220.

3017 Baldwin v. Roberts 80 Hun, 163.

8189 Mershon e. Scott Pub. Co 4 N. Y. CiT. Pro. 819.

8160 Stephenson v. Hanson 4 N. Y. CiT. Pro. 104.

STATUTES, ETC., CITED. xliii

8165 Gibbon 9. Freel 98 N. Y. 98.

8215 The Mayor 0. Decker 65 How. Pr. 472.

8228 Langdon 0. Guy 91 N. T. 661.

8228, subd. 8 Steele 0. MacDonald 4 N. Y. Civ. Pro. 227.

8228, subd. 8 Bundick 0. Hale 4 N. Y. Civ. Pro. 811.

8228, subd. 4 Newcomb 0. Hale 4 N. Y. Civ. Pro. 25.

Greene 0. Village Canandaigua 806 Hun, 806.

Martha 0. Curley 92 N. Y. 859.

8229 Smith 0. Cooper 80 Hun, 895.

8280 Newcomb 0. Hale 4 N. Y. Civ. Pro. 25.

8284 Cooper 0. Jojly 80 Hun, 224.

8288 Murtha 0. Curley 92 N. Y. 859

8240 People en rd. Bray 0. Supervisors of

Ulster 65 How. Pr. 827.

8246 Tolman 0. S. B. & N. Y. R. R. Co 92 N. Y. 858.

8251, subd. 5 Malcolm 0. Hamill 4 N. Y. Civ. Pro. 221.

8253 Weed 0. Paine 4 N. Y. Civ. Pro. 805.

8258 Paine 0. Genesee Valley Canal R. R. Co. .80 Hun, 565.

3258 Barclay 0. Culver 4N.Y. Civ. Pro. 865.

3253 Conaughty 0. S. C. Bank 92 N. Y. 401.

3254 Weed 0. Paine 4 N. Y. Civ. Pro. 805.

8256 Hall 0. U. S. Reflector Co 4 N. Y. Civ. Pro. 148.

8258 Matter of Leary 80 Hun, 894.

8258 Smith 0. Cooper 80 Hun, 895.

8268 McNamarae. Harris 4 N. Y. Civ. Pro. 76.

8268 Ryan 0. Potter 4 N. Y. Civ. Pro. 80.

8268 Stephenson 0. Hanson 4 N. Y. Civ. Pro. 104.

8268 Irving 0. Garrity 4 N. Y. Civ. Pro. 105.

8268 Hayes 0. Second Ave. R. R. Co 4 N. Y. Civ. Pro. 84.

8268, subd. 1 Bostwick 0. Fifield 4 N. Y. Civ. Pro. 79.

8209 Stephenson 0. Hfnson 4 N. Y. Civ. Pro. 104

8271 Tolman 0. S. B. & N. Y. R. R Co 92 N. Y. 853.

3271 Ryan 0. Potter 4 N. Y. Civ. Pro. 80.

3272 McCall 0. Frith 4 N. Y. Civ. Pro. 102.

3272 Hoffman c. Lowell 4 K. Y. Civ. Pro. 103.

3277 Hoffman 0. Ridley 4N.Y. Civ. Pro. 41.

3801 Dow 0. Darragh 92 N. Y. 537.

8807 Hail 0. U. S. Reflector Co 4N.Y. Civ. Pro. 148.

3307 Doyle 0. Doyle 4 N. Y. Civ. Pro. 265

3341 Dickinson 0. The Mayor 92 N. Y. 584.

8843, subd. 1 Bostwick 0. Fifield 4 N. Y. Civ. Pro. 79.

3847 Mills 0. Hoffman 92 N. Y. 181.

3347 People ex rd. Murphy 0. French . . 92 N. Y. 806.

8347 McKay 0 Reed 12 Abb. N. C. 58.

xliv STATUTES, ETC., CITED.

8847 Matter of Diatoavey 01 N. Y. 385.

8847 Matter of W«toa 81 N. Y. 508.

8847, rabd. 11 Matter of flexion 1 Dem. 8.

8858 Matter of flexion 1 Dem. 8.

8*06 Matter of Scbxoeder 65 Bow, Pr. 184,

Civil Procedure Reports.

UNITED STATES t>. JAMES REID.

U. S. Circuit Court, Southern- District of New
York, April, 1883

§§549, 1487.

Execution. — Properly issued out of U. 8. Circuit Court on judgment

recovered in U. 8. District Court, and affirmed, on writ of error, in

the Circuit Court — Value of goods forfeited for false entry,

when recovered, not a penalty. — Contract, in action on

which defendant may be arrested under section 549 of

the Code, must he between party and party, and

not that general contract between members

of society to support the. laws implied

from living under them.

Where a judgment recovered in the V. S. district court was affirmed
in the U. S. circuit court on a writ of error brought by the defend-
ant, Held, that an execution was properly issued out of the circuit
court for the damages and the costs of both courts, ['] that when the
judgment of the district court was affirmed in the circuit court, it
did not remain the judgment of the district court to be enforced by
its process, but it became the judgment of the circuit court [l]

Where the United States recovered a judgment fDr the value of
certain merchandise forfeited for entry by false and fraudulent
practices and appliances, pursuant to section 1, chapter 76, Act of
1863, Held, that the issuing of an execution to collect the judgment
was governed by the laws of this state ;[•] that an execution against
the body of the defendant could not issue on said judgment; that
the value of the goods forfeited, when recovered, was not a penalty,
Vol. IV. -1

CIVIL PROCEDURE REPORTS.

United State* t>. Reid.

the object of the government being not to prevent imports, but to
collect its revenue, and the statute which worked the forfeiture
being remedical to that end.[*] Also Held, that the action was not
on contract either express or implied. [*]

The contract in an action upon which section 549 of the Code of Civil
Procedure provides that the defendant may be arrested, is a
contract between party and party, and not that general compact
between members of society and all others, to support the laws,
implied from living under them.[*]

State v. Molter (10 Ben. U. £L Dut. CL 189), approved. [*]

[Decided August 2, 1883.]

Motion by defendant to correct judgment record,
and set aside execution against the person.

The facts are stated in the opinion.

Edwin B. Smith, for motion.

Elihu Rooty opposed.

Wheeler, J. — This was an action of debt for the
value of merchandise forfeited for entry by means of
false and fraudulent practice and appliances, under
section 1, of chapter 76, act of 1863 (12 U. S. Stat, at
L. 737 ; U. S. Rev. Stat § 2864).

The plaintiff recovered judgment in the district
court at March term, 1873. On writ of error brought
by the defendants, the judgment was affirmed in this
court at April term, 1879. An execution against the
bodies of the defendants has been issued out of this
court for the damages and costs of both courts. The
defendant has moved to have the judgment of this
court made to be for costs in this court only, and to
set aside the execution because it runs against the
bodies of the defendants.

The judgment of this court appears to have been

entirely correct. When the judgment of the dis-

[ ! ] trict court was affirmed in this court, the judgment

did not remain in the district court as the judg-

CIVIL PROCEDURE REPORTS,

United States*. Reid.

<c -

ment of that court to be enforced by its process, bat
because the judgment of this court (V. S. Rev. Stat. §
036). If this was not so, and the form of entering the
judgment was clerically wrong, proceedings to correct
the record should be taken before the justice who
decided the entry. This part of the motion must be

denied. Whether the execution could properly
[ ' ] issue in such a case is to be determined by the

laws of the State. U. 8. Rev. Stat. §§ 990, 991 ;
Low v. Durfee, 5 Fed. Rep. 266.

The law of the State directly applicable is found
in the Code of Civil Procedure, section 549. That sec-
tion allows process to issue against the body in actions :

' 1. To recover a fine or penalty

'4. In an action upon contract, express or implied,
other than a promise to marry ; where it is alleged in
the complaint that the defendant was guilty of a fraud
in contracting or incurring the liability," and in no
other cases claimed to be applicable.

The object of the government is not to prevent
imports, but to collect its revenue. The statutes

-which work this forfeiture are remedial to that
['] end. This is the mode of obtaining the duties

when the goods are so proceeded with as to
become forfeited. The value of the goods forfeited,
when recovered, is no more a penalty than the duties
would be if paid. Stockwell v. United States, 13 Wall.
(80 U. S.) 531 ; In re Vetterlein, 13 Blatch. ( U. S. Olr.
Ct.) 44. The execution cannot be upheld on the ground
that the recovery was a penalty.

As to the other ground, this can hardly be
[4] said to be an action upon contract, either express

or implied. Certainly there was no express con-
tract. By force of the law, the property ceased to be
the property of the defendants, and became the prop-
erty of the government, if the government should
choose to take it, and the government became entitled

CIVIL PROCEDURE REPORTS.

Sheldon v. Satria.

to the value of it in lieu of the property, and not by
virtue of any contract. The action of debt could be
maintained, because of the title or right created by
the law, and not by virtue of any obligation to pay
entered into by the defendants, or to be implied from
their acts beyond what rests upon everybody to obey
the law and to yield to all its requirements. The
liab.lity to be incurred within the meaning of this part

of the Code is a liability upon contract between
[•] party and party, and not the general compact

between each member of society, and all the
others to support the laws implied from living under
them. These views were well supported by the
reasoning of Choate, J., in United States v. Moller, 10
Ben. (U. 8. District Court) 180.

Motion to set aside execution granted.

SHELDON, as Receiver, etc., Respondeat, v.
SABIN, Impleaded, etc., Appellant.

N. Y. Coubt of Common Pleas, General Term,
January, 1883.

§§500, 640, 682.

Pleading, — Instance of an insufficient denial in an answer. — Where

attachment vacated in part only, the sureties, on the undertaking to

procure it, do not become liable for damages, and this, although ii

was sustained in part because a portion of the property at'

tacked had been sold under execution in the same action.

Where, in an action on an undertaking given upon the issuing of an
attachment, the answer admittted the making of the undertaking,
and stated that "as to all the other allegations this defendant denies
the same either upon his own knowledge, or as not hairing any
knowledge or information thereof sufficient to form a belief in

CIVIL PROCEDURE REPORTS.

Sheldon v. Sabin.

respect to the same." EM, that the answer was not within the
requirements of the rale that an answer must contain a general or
specific denial of each material allegation of the complaint contro-
verted by the defendant, or of any knowledge or information thereof
sufficient to form a belief;^] also Htldy where the answer was
verified, that it has been the policy of the law to prescribe a form
of verification which would prove the conscience of the party, and
in this case the denials may be placed either upon knowledge, a
want of knowledge, or information, as may suit the conscience of the
party making the oath, or provide a defense upon an indictment for
perjury. [' J

Where an action in the marine court was fully tried at trial term, and
the complaint dismissed after the jury had found a verdict for
plaintiff, and the case was considered upon the whole record by the
general term of that court, and the judgment of the trial term
reversed, and judgment ordered on the verdict for the plaintiff.
Held, that an appeal to the court of common pleas from the judg-
ment of said general term, should not be decided upon an exception
to the sufficiency of the answer, because affirming the judgment on
that single question would deprive the defendant of the right to ask
leave to amend, which he might have exercised, had not the
decision at the trial term been in his favor and upheld his answer. [']

Where an order denying a motion to vacate an attachment was not
reversed upon appeal, but was modified so as to deny the motion so
far as it related to the property actually sold under an execution
issued in the action in which the attachment was issued, and to
grant the motion and vacate the attachment as to property not sold
under execution. Held, in an action on the undertaking given on
obtaining such attachment, that to determine whether the attach-
ment was vacated the order alone should be examined ;[•] that the
fact that the attachment was upheld in part, and the motion to
vacate partially denied because an execution had rendered the
attachment functus officio, did not avoid the fact that the writ was
not, in terms, vacated ;[*] that the defendant, being a surety, his
liability should not be extended, bnt was strictimma juri$.[*]

{Decided March 15, 1888.)

Appeal from a judgment of the general term of the
N. T. marine court reversing a judgment entered at
trial term, by direction of the court, after verdict
dismissing the complaint, and directing judgment to
be entered in favor of the plaintiff upon the verdict.

CIVIL PROCEDURE REPORTS.

ftheldoft 9. flabia.

The action was brought by plaintiff, as receiver of
the firm of A. H. Mojarrietta & Co., to recover against
the defendants, as sureties on an undertaking given to
procure an attachment in a suit brought in the
supreme court, by Victor W. McFarlane against the
members of the firm of A. H. Mojarrieta & Co., on the
ground that they had disposed of their property with
intent to defraud their creditors. The undertaking
was in the usual form, conditioned " that if the defend-
ant recover judgment in this [the attachment] action,
or if the warrant of attachment is vacated, the plaint-
iff will pay,' ' eta

A warrant of attachment was thereupon issued in
that action, directing the sheriff to seize property
enough to satisfy the claim of McFarlane for $4934.60,
and it appears that the sheriff did levy upon sufficient
property to cover that amount. A portion of the prop-
erty so levied upon, to wit: office furniture worth
$250.00, was sold by the sheriff under an execution in
the same suit. Afterward, a motion was made to
vacate the attachment, on the papers on which it was
granted, which was denied. On appeal to the general
term it was ordered, " that the order denying the mo-
tion to vacate said warrant of attachment be modified
so as to deny the said motion so far as it relates to the
property actually sold on execution, and granting the
same, and vacating said warrant of attachment as to
property not sold on execution, without costs to either
party, of appeal or motion."

The opinion of the general term, (Davis, P. J.,
Brady and Ingalls, J J.), was as follows :

"Pbb Curiam.— We are of the opinion that the
assignment executed by the defendants in this case,
was not sufficient, per se, to establish the fraudulent
intent, and that the motion to vacate the attachment
should, therefore, have been granted. But inasmuch

CIVIL PROCEDURE REPORTS.

Sheldon * Sabin.

as some portion of the attached property has been sold
tinder execution, the attachment cannot be vacated
absolutely, but only so far as it relates to any property
remaining unsold.

"The order should be modified by denying the
motion, so far as it relates to the property sold under
execution, and granting the same as to the property
not sold, no costs to either party on appeal or motion.* •

In the case at bar, the answer after admitting the
making of the undertaking sued upon, continued,
"and as to all the other allegations in said complaint,
this defendant denies the same, either upon his own
knowledge, or as not having any knowledge or infor-
mation thereof sufficient to form a belief in respect to
the same." The plaintiff, at the opening of the case,
moved for judgment in favor of the plaintiff upon the
pleadings, on the grounds (1) "that the answer con-
tained no denial of any material allegation in the com-
plaint, or any denial upon knowledge or information
sufficient to form a belief as to any material allegation
stated in the complaint ; (2) that the answer sets up no
new affirmative defense ; (3) that it is disjunctive ; (4)
that the denial is not good, because it is too general in
its terms." This motion was denied, and the plaintiff
excepted.

The defendant moved at the close of plaintiffs' case,
and upon the whole case, to dismiss the complaint
The court reserved its decision, and a verdict was ren-
dered for the plaintiff, subject to the decision of said
motion. The motion was subsequently granted, and
the complaint dismissed, and judgment entered thereon
in favor of the defendants. On appeal, the general
term of the marine court reversed this judgment, and
directed judgment to be entered for the plaintiff upon
the verdict. From the judgment so entered, this
appeal was taken.

CIVIL PROCEDURE REPORTS.

Sheldon v. Babin.

Thomas Nelson and E. P. Johnson, for appellant.

Cited in support of contention that the attachment
was not vacated so as to make the defendant liable,
McCluskey v. Cromwell, 11 N. Y. 693 ; Drummond v.
Husson, 14 N. Y. 60 ; Cheesbrough v. Agate, 26 Barb.
603; Poppenhusen v. Seeley, 41 Id. 450; S. C. affd, 3
Keyes 150, 3 Abb. Ct. App. Dec. 615 ; Royal Ins. Co.
t>. Noble, 5 Abb. N. S. 58 ; Wood v. Fisk, 63 JV. Y.
245 ; Palmer v. Foley, 71 N. Y. 106.

The argument that where the result to the defend-
ant is substantially the same as if the terms of the
undertaking had been literally complied with, he is
entitled to a construction giving him the same remedy,
is unsound, and unsupported in the courts. John-
sou v. Elwood, 82 N. Y. 363 The order of the

court is what embodies its decision and alone settles
what is to be reviewed. . . . The opinion of the judge is
not only not proper evidence in the case, but should
be disregarded when in any way conflicting with the

order. Smith v. Rathbun, 88 JV. Y. 660 The

disposition of the case made at the trial, in taking the
verdict subject to the decision of the court upon the
motion to dismiss, was proper. Hall v. Hall, 81 N. Y.
131. The denials in the answer were sufficient, and the
plaintiffs motion for judgment on the pleadings was
properly denied The answer contained "a gen-
eral denial of each material allegation of the complaint
controverted." Code, § 500. That such denial is proper,
see Haines v. Herrick, 9 Abb. J\r. C. 379 ; Allis v. Leon-
ard, 22 Alb. L. J. 28; Jones v. Ludlum, 74 N. Y.

62 If the denial is inartistic, or not as formal as

it might be, or indefinite, the proper remedy was by
motion before trial. Dauchy v. Tyler, 15 How. Pr.
400 ; Youngs v. Kent, 46 N. Y. 672 ; Marie v. Garrison,
83 Id. 23. A fatal objection to the plaintiff's motion
existed in the fact that the plaintiff waived all objec-
tions to the mode of pleading, by noticing the cause

CIVIL PROCEDURE REPORTS.

Sheldon t>. Sabin.

for trial by which he accepted the issues as they stood.
Kellogg v. Baker, 15 Abb. Pr. 289.

James L. Bishop, for respondent.

The attachment was wholly vacated. ... A
warrant of attachment cannot be vacated in part.
Royal Ins. Co. v. Noble, 5 Abb. Pr. N. S. 64. . . . In
White v. Clay's Executors, 7 Leigh (Va.) 68, where
the undertaking was to pay "in case the injunction
should be dissolved," the court held the sureties
liable, although the injunction was dissolved only in
part. See also Page v. Johnson, 1 Cluvpman ( Vt.)
338. . . . Seacord v. Morgan, 4 Abb. Ct. App. Dec.
172. . . . Gilmore v. Crowell, 67 Barb. 62.

Beach, J.— An answer must contain "a general

or specific denial of each material allegation of the
[ ' ] complaint controverted by the defendant or of any

knowledge or information thereof sufficient to form
a belief." Code of Civil Procedure, § 500. The denial
in this answer is not within the requirement of this
rule. It is impossible to distinguish the allegations
denied upon knowledge from those denied from a
want of knowledge, or information sufficient to form a
belief. The plaintiff would be entitled to a relief if
the answer denied from want of knowledge or informa-
tion, facts stated in the complaint, necessarily within
the defendant's knowledge. This would be avoided if
this form of pleading was permitted.

Again, this is a verified answer, and the policy of

the law has been to prescribe a form of verifi-
[■] cation, which will prove the conscience of the

party. In this instance, the defendant swears
that the answer is true of his own knowledge, except
as to the matters therein stated to be alleged on informa-
tion and belief, and as to those matters he believes it to
be true. The denials may be placed either upon knowl-

10 CIVIL PROCEDURE REPORTS.

Sheldon «. Sabin.

edge, a want of knowledge or information, as may
suit the conscience of the party making the oath, or
provide a defense upon an indictment for perjury.

The action was fully tried at the trial term and the
case considered upon the whole record by the general

term of the marine court, making a like course
[•] here eminently proper. It would be impossible

to decide the appeal upon an exception to the
sufficiency of the answer, because affirming the judg-
ment on that single question would deprive the
defendant of the right to ask leave to amend, which
he might have exercised had not the decision at the
trial term been in his favor and upheld his answer.
The motion to vacate the attachment was denied at
special term. The apparent, but not needful pro*
vision, in the order of the general term of the supreme
court, gives rise to the contention whether or not the

attachment was there vacated. To answer the
[*] inquiry, the order must alone be examined, and

without enlarging its terms, because the defend-
ant here impleaded being a surety, his liability should
not be extended, but is (McCluskey v. Cromwell, 11
N. Y. 593) strictissimi juris.

The special term denied the motion to vacate the

writ. Upon an appeal, the order was not reversed,
[*] and the attachment vacated, but was modified

" to deny the said motion so far as it relates to
the property actually sold on the execution, and
granting the same and vacating said warrant of attach-
ment as to property not sold on execution." The
effect and action of the process was partially upheld
by this order, as was part of the special term order
denying the motion to vacate. Though this was
because an execution had rendered the attachment
useless, or functus officio^ it does not avoid the fact
of the writ not having been vacated in terms (Drum*
mond v. Huseon, 14 JV. Y. 60; Cheeebrough v.

CIVIL PROCEDURE REPORTS. 11

Brown v. Landon.

Agate, 26 Barb. 603; Poppenhusen v. Seeley, 41
Barb. 460 ; S. C, 3 Keyes, 150).

The judgment of the general term should be
reversed and a new trial ordered, with costs to appel-
lants to abide the event.

Daly, Ch. J., and Van Brunt, J., concurred.

BROWN, as Administrator etc., Respondent, v.
LANDON, Appellant.

Supreme Court, First Department; General
Term, Mat, 1883.

§§952, 2591, 2695, 2696, 2697, 2702.

Ancillary letter* of administration. — Proof required on issuing. — Such

letter* not void, nor to be disregarded in collateral proceeding, because

proof on which they were granted was defective or irregular, \f

surrogate acquired jurisdiction. — Power of attorney to

receive ancillary letters of administration properly

acknowledged before Vice- Consul of United States.

Where a petition for the issuing of ancillary letters of administration
was in proper form and included the statements required to sustain
the application, but the papers in support of it were irregular and
insufficiently authenticated, and the petition was granted upon this
irregular and deficient proof, — Held, that the surrogate's action
being upon a subject-matter confided to his jurisdiction, his
determination and decree upon it could not be disregarded col-
laterally because of these defects, [*] and that although it was clear
that upon appeal from his determination it would be reversed, it
did not follow from that circumstance that it was void;[*] that the
acceptance of the defective proof was an error which could not be
corrected otherwise than by an appeal from the surrogate's order or
decree.[T]

Where andllaiy letters of administration were issued upon proof

12 CIVIL PROCEDURE REPORTS. /

Brown v. Landon.

tending to establish the right to them, although it was defective
and irregular, they became conclusive in favor of the right of the
administrator therein named to maintain an action on a note
belonging to the deceased. [V]

In support of an application for the issuing of ancillary letters testa-
mentary, or of administration on a will proved in a foreign country,
the Code requires an exemplified copy of the will and of the letters
issued upon its probate, together with the judgment or decree
admitting it to probate. [*] Where a certificate of the register of a
foreign probate court was added to what was alleged to be a copy of
the will, and to a statement of the action taken upon the application
for its probate, and these were authenticated simply and solely by
the certificate of the Vice and Deputy Consul General of United
States in London, who also certified himself to be a notary public of
the United States,— IfcW, that this was not such an authentication
of the documents as the statute (Code of Civil Procedure, § 952)
directed should be made to authorize the papers themselves, to be
read in evidence. [*]

Where a power of attorney signed by an administrator appointed by
a foreign probate court, and a son of the deceased who had been
nominated to act as executor, authorizing a person to make applica-
tion for and receive letters of administration in this state, w&b
acknowledged before a vice-consul of the United States in such
foreign country, — Held, that the acknowledgment was properly
taken before such an officer, and could be legally received in evi-
dence in support of an application for ancillary letters of adminis-
tration. [B]

(Decided June 2, 1888.)

Appeal by defendant from a judgment entered
against him, on the verdict of a jury, and from an
order denying a motion for a new trial.

The opinion states the facts.

John E. Parsons {Gilbert <6 Cameron, attorneys),
for appellant.

Erwin I. Spink (Culver <fe Wright, attorneys), for
respondent.

Dani:;ls, J. — The recovery was for the amount due
upon three promissory notes made by the defendant,

CIVIL PROCEDURE REPORTS. . 13

Brown v. Landon.

and payable to the order of James Landon, the defend-
ant. No point has been made questioning the liability
of the defendant upon the notes, and as that fact
appears by the evidence to have been reasonably well
established on the trial, it will not be taken under
consideration in the disposition of the appeal.

Before the commencement of the action the plaint-
iff, upon his own petition, had been appointed by the
surrogate of the county of New York the administra-
tor of so much of the goods, chattels and credits of
the decedent as were left by him in this state at the
tifne of his decree. And it is the legality of that
appointment which has been drawn in question on the
argument of this appeal.

The decedent died in London, in England, where it
was alleged, in support of the application, he left a
will making a disposition of his estate. And the
application for the plaintiff's appointment resulting in
the order made by the surrogate, was made under the
authority of the provisions of the code which author-
ized the issuing of ancillary letters testamentary and
of administration (Code Civ. Pro. §§ 2695, 2696 and
2697).

The petition for the letters was in proper form and
included the statements required to sustain the appli-
cation. But the papers produced in support of it
were irregular and insufficiently authenticated. For
this purpose the law* required an exemplified copy of
the will and of the foreign letters issued upon its
['] probate, together with the judgment or decree
admitting it to probate, and by section 952 of the
Code of Civil Procedure, the manner in which these
documents were to be authenticated was prescribed by
the Legislature, but there was a failure to comply
with these provisions of the Code. A certificate of the
registrar of the probate court was added to what was

* Code Civ. Pro. § 2605.

14' CIVIL PROCEDURE REPORTS.

Brown «. London.

alleged to be a copy of the will and to hardly an
intelligible statement of the action taken upon the
application for its probate, and these certificates were
authenticated simply and solely by the certificates of
the vice and deputy consul general of the United
States in London, who also certified himself to be a

notary public of the United States. But that was
[• ] not such an authentication of the documents as the

statute upon this subject, in very plain language,
directed should be made to authorize the papers them-
selves to be read in evidence.

The surrogate, however, acted upon this proof,
irregular and deficient as it clearly was. But his
action was upon a subject matter confined to his jur-
isdiction, and his determination and decree upon
it cannot be disregarded collaterally because of these
defects in the proceedings. It is clear that upon an
appeal the determination would be reversed. But

it does not follow from that circumstance that it
[ " ] was void. The subject matter to which the proof

was directed was clearly within the jurisdic-
tion of the surrogate, and that was to grant ancillary
letters testamentary or of administration upon the
estate of the deceased party, and he did have evidence
before him tending to establish the facts upon which
his authority was by law required to be exercised,

and as he exercised his judgment upon that proof
[ 4 ] and made his determination directing the issue of

the letters, it cannot be disregarded in this action
simply because he erroneously allowed this defective
and irregular proof to be given. To avoid that result
it was sufficient that the proof had a legal tendency to
establish the facts required to be shown, and that it
should have been rejected because of the manner of its
authentication will not invalidate his decree to such
an extent as to allow it to be held void when brought
collaterally in controversy, as it was upon the trial of

CIVIL PROCEDURE REPORTS. 15

Brown v. Landon.

this action. This subject was very f ally considered in
Roderigas v. East River Savings Institution (63 N. T.
460), and in Roderigas v. Same (76 Id. 316), where it
was held that proof tending to establish the right of
the applicant to redress, although it may be sub-
stantially defective, is sufficient to sustain such letters
against the objection taken to them in this case.

The power of attorney from the administratrix
appointed in the foreign proceedings, and from the
son of the decedent who was nominated as one of
['] his executors, the others having probably
declined to act, was also produced in support of
the plaintiffs application. This was in like manner
proved by the certificate of the same vice consul, but
the acknowledgement of this document could prop-
erly be taken before such an officer (2 R. 8. 6th ed.
1142, § 11),* for while he acted he was entitled to
exercise the authority vested by law in the consul
himself {U. S. Rev. Stat. § 1674, sub. 3).

This instrument was accordingly in such a condi-
tion as allowed it to be legally received as evidence so
far as it extended in support of the application, and
by that the plaintiff was authorized to make the
application to the surrogate and to receive the letters
which were issued by him, and as these letters
[*] were issued upon proof tending to establish the
right to them, although it was defective and irreg-
ular, they became conclusive in favor of the plaintiff's
right to maintain this action (Parhan v. Moran, 4
Hun, 717).

And this is the effect which the Code has pre-
scribed that letters testamentary, letters of adminis-
tration and letters of guardianship shall have when
they may be granted by a court or officer having
jurisdiction to issue them (Code of Civil Procedure,

* 3 R S.7 ed. 2217, { 6 ; LawoflSU, chap. 68.

16 * CIVIL PROCEDURE REPORTS.

Albright v. Kempton.

§ 2691), and this provision is rendered applicable to
letters of this description by section 3702.

For these reasons the defendant cannot successfully
resist the right of the plaintiff to maintain this action
for the recovery of the amount due upon the notes.
The acceptance by the surrogate of the defective proof,
as long as it tended to establish the facts required
[T] to support the application, was an error only,
which could be no otherwise corrected than by an
appeal from his order or decree.

The law will not allow his erroneous action to be
set aside in this manner. The judgment should there-
fore be affirmed.

Davis, P. J., and Brady, J., concurred.

ALBRIGHT v. KEMPTON.

City Court of New York, Special Term, July,

1883.

§2446.

Supplementary proceeding*. — Money owing to the debtor, but not due and

payable at the time an order tn, wa* *erved% cannot be reached. —

Court hoe no power to make decree appropriating a debtor1*

future earning* to the payment of a judgment

Whore an order for the examination of a judgment debtor was
obtained July 5, and his salary became due and payable July 10,
and certain commission earned by him would not be duo and
payable until the end of the year, — Held, that this money not being ,
due and payable at the time the order was served, could not be
reached in such proceedings.

The court has no power to make an equitable decree appropriating
any part of the debtor's future earnings to the payment of a judg-

CIVIL PROCEDURE REPORTS. 17

Albright v. Kempton.

ment against him. Such earnings cannot be anticipated, and can be
reached, if at all, only after they are payable.
(Decided July 18, 1888.)

Motion that the Dudley Blind & Shutter Worker
& Burglar Alarm Company pay to the sheriff certain
salary due the defendant, to be applied on account of
the judgment against him.

The plaintiff recovered a judgment in this court
against the defendant, for $148.91, on which he issued
an execution to the sheriff of the city and county of
New York, which was returned wholly unsatisfied.
Subsequently, on July 5, 1883, an order was obtained
for the examination of the defendant, in proceedings
supplementary to execution. On his examination
thereunder, it appeared that the defendant was
employed as manager of the Dudley Blind & Shutter
Worker & Burglar Alarm Company, a domestic
corporation ; that he received for hid services as such
manager, a salary of $1,500 per annum, payable in
monthly installments of $125, about the 10th of each
month, and three per cent, commission on the proceeds
of all sales made by the company until the commission
amounted to $150; that his July salary had not yet
been paid, and the commission earned by him amounted
to about $30. On an affidavit setting forth these
facts, the plaintiff moved for an order that the Dudley
Blind & Shutter Worker & Burglar Alarm Company
pay the salary of defendant for July, and his commis-
sions to the sheriff to be applied in payment of the
judgment. On the motion, the defendant showed that
on July 10 intermediate his examination and the serv-
ice of the papers on which this motion was made, his
salary for July had been paid him, and that his com-
missions were not payable until the end of the year.

De Lancey Nicoll, tot motion.
Vol. IV.— 2

18 CIVIL PROCEDURE REPORTS.

Beal v. Union Paper Box Go.

William B. Tulluy opposed.

Mo A dam, J. — The order for examination was
obtained July 5, 1883, and the salary of the judgment
debtor was not due and payable until July 10, and the
commissions will not be due until the end of the year.
This money not being due and payable at the time the
order herein was served, cannot be reached in this pro-
ceeding (1 Weekly Dig. 260 ;* 12 Johns. 165f). Nor
has the court power to make an equitable decree
appropriating any part of the debtor's future earnings
to the payment of this judgment. Such earnings can-
not be anticipated, and can be reached, if at all, only
after they are payable. These views render it unnec-
essary to consider the question whether the earnings
of the debtor are, in this case, exempt by force of the
provisions of the Code.

Motion denied ; no costs.

BEAL v. THE UNION PAPER BOX COMPANY
OP NEW YORK.

N. Y. Superior Court, Special Term, August, 1883.
§§488 et seq., 537.

Frivolous pleading. — At least fine day*1 notice of motion for judgment

thereon must be given. — Court cannot shorten tuch time. — New

affidavit* cannot be used on euch a motion. — Instance of

demurrer which was not frivolous.

Full five days' notice must be given of a motion for judgment on a
demurrer as frivolous. An order to show cause returnable in less

* Merrinm v. Hill.

t McMillan v. Vanderlip.

CIVIL PROCEDURE REPORTS.1 10'

Beal d. Union Paper Box Co.

than that time is improper, even though cause for a shorter time is
shown in the moving papers.

The use of affidavits on a motion for judgment on a demurrer on the
ground that it is frivolous, tending to show that the demurrer is
interposed for delay, or tending to show that it is frivolous or in
had faith is not allowable. The only question on such a motion is
whether the demurrer on its face, when considered in connection
with the complaint alone, is in bad faith or frivolous.

The complaint set forth that a certain certificate of stock of defendant's
was issued to one who indorsed thereon a power of attorney signed
in blank; that subsequently, said certificate was sold at public
auction and purchased by one in his own name, but who was in
reality acting as the agent of plaintiff; that plaintiff thereafter made
demand upon defendant for a transfer on its books, and a new, or
other certificate to plaintiff, presenting the certificate in question .
with the power of attorney filled in with the name of D., and an
assignment of the stock from D. to plaintiff, and that defendant
refused to comply with any of these demands, ending with a
demand for judgment that defendant be required to make the
transfer and issue a new certificate to plaintiff Defendant demurred
on the ground that plaintiff had not the legal capacity to sue, in that
D., and not plaintiff, was the real party in intent, and the further
ground that the complaint did not state facts sufficient to institute a
cause of action, — Held, that the complaint was defective, and a
motion for judgment on the demurrer as frivolous., must be denied.

{Decided Awgmt 29, 1888.)

Motion for judgment on a demurrer to the com-
plaint on the ground that the demurrer was frivolous.

Plaintiff obtained on August 27, 1883, an order to
show cause, returnable in two days, why he should
not have judgment on the demurrer to the complaint,
as frivolous. The application was based on affidavits
tending to show that defendant had examined the
plaintiff before trial, and obtained numerous exten-
sions for the purpose of delay, and had declared its
intention to hinder and delay plaintiff so far as lay
within its power, and had interposed a demurrer for
that purpose, and for that reason asked an order to
show cause returnable in less than five days.

20 CIVIL PROCEDURE REPORTS.

Beal «. Union Paper Box Co.

The complaint was as follows :

"The plaintiff, William H. Beal, by Van Dnaer
and Taylor, his attorneys, complains of the above
defendant, Union Paper Box Co. of N. Tv and alleges :

" First. That said defendant is a domestic corpora-
tion, created by and under the laws of the state of
New York.

"Second. That said defendant, on or about the
17th day of October, 1881, duly issued a certificate of
stock under seal of said corporation ; that said certifi-
cate was numbered 23 (twenty-three) of the certificates
of said corporation, and was for 100 (one hundred)
shares of its capital stock of the par value of $100
(one hundred dollars) each, was dated tbe 17th day of
October, 1881, was issued for value and was delivered
to Charles Howard Williams, and that in and by the
terms of said certificate of stock, so issued as aforesaid,
it was and is provided that the said stock was and is
transferable on the books of said corporation, defend-
ant, upon the surrender of said certificate.

" Third. That heretofore and prior to the trans-
actions hereinafter mentioned, said Chartas Howard
Williams signed and sealed an assignment and power
of attorney, and indorsed the same upon said certifi '
cate of stock, in which assignment and power of attor-
ney the date and name of the assignee and attorney
were not inserted, but in which blank spaces were left
for snch date and name.

"Fourth. That upon the 28th day of July, 1882,
said shares of stock were offered for sale at public
auction in the city ol New York, and purchased at
such sale by James H. Dederick, for the sum of one
thousand dollars, he being the highest bidder therefor,
and that said certificate of stock was then and there
delivered to said James H. Dederick, who thereupon
wrote in his name as assignee and attorney in the

CIVIL PROCEDURE REPORTS. 21

Beal v. Union Paper Box Co.

blank therefor in said assignment indorsed on said
certificate.

" Fifth. That said James H. Dederick bid in and
purchased said stock as aforesaid in his own name, but
that in fact he acted as the agent of and made said
purchase for the benefit of this plaintiff, William H.
Beal, and upon the 26th day of April, 1883, signed,
sealed and delivered to this plaintiff an assignment of
said certificate, and of the shares of stock described
therein, and an acknowledgment of said agency,
and that this plaintiff has been, since the said pur-
chase of said stock by said Dederick, the owner and
holder of said certificate and of the several shares of
stock therein described.

" Sixth. That after said assignment by said Deder-
ick to this plaintiff, and prior to the commencement of
this action, and on the 30th day of April, 1883, this
plaintiff duly presented said certificate of stock,
together with the two transfers and assignments, and
said acknowledgment of the agency, before described,
to the defendant, at its proper place of business in
New York city, and to the proper offices of said
defendant, to wit : To the president, and to the secre-
tary and treasurer of said defendant corporation, and
then and there offered to surrender said certificate of
stock and assignment thereof to said corporation, and
demanded of said defendant and its officers the trans-
fers of said stock upon the books of said corporation
to this plaintiff, and also demanded that the defend-
ant should issue snch new or other certificate of the
capital stock of said corporation to this plaintiff in the
place and stead of the certificate of stock so offered
to be surrendered.

" Seventh. That the defendant, by its officers, upon
the demand before stated in the sixth subdivision of
this complaint, did absolutely defuse to transfer the
said stock to this plaintiff upon the books of the said

23 CIVIL PROCEDURE REPORTS.^

Bod *. Union Paper Box Co.

defendant, and did refuse to allow the same to be so
transferred upon said books, and did refuse to issue
to this plaintiff a new or other certificate of the capital
stock of the said corporation in the place and stead of
the said certificate of stock then held as aforesaid by
this plaintiff, and then and there offered to be sur-
rendered, and the said defendant did then and there
refuse to recognize this plaintiff as the owner and
holder of this stock.

44 Eighth. That the whole number of shares of the
capital stock of said corporation is 3,000 (three
thousand) of the par value of $100 (one hundred dol-
lars) each for each share. The entire capital of said
corporation being $300,000 (three hundred thousand
dollars), and that the par value of the stock so held by
this plaintiff is $10,000 (ten thousand dollars).

"Wherefore, plaintiff demands judgment.

" (1) That the defendant by the decree of this court
be directed upon the surrender of said certificate, and
the assignment thereof aud said acknowledgment of
agency, to transfer said stock upon the books of said
defendant to this plaintiff.

" (2) That the defendant also issue to this plaintiff
a new certificate of the like amount of shares of its
capital stock as is mentioned in the certificate now
held by said plaintiff.

"(3) That the plaintiff recover the costs of this
action, and have such further and other relief as to
the court may seem proper and just."

The grounds of demurrer were :

"I. That plaintiff has not the legal capacity to sue
in that James H. Dederick is the real party in interest.

" II. That it does not state facts sufficient to consti-
tute a cause of action."

TTuma* Fenton Taylor „ for the motion.

I. Section 780 of the Code prescribes that all notices

CIVIL PROCEDURE REPORTS. 28

Beal «. Union Paper Box Co.

of motion, where special provision is not otherwise
made by law, shall be at least eight days, unless the
court by order to show cause prescribes a shorter time.
The provision of section 537, requiring notice of five
days, is one of the cases intended by the phrase
u where special provision is not otherwise made by
law." The provision of section 780 allowing an order
to show cause where shorter time is necessary, there*
fore, applies alike to section 537 as to section 780.

II. The use of affidavits on the motion is proper,
and it is necessary to show the grounds for shorter
notice than five days.

III. The demurrer is interposed for delay, the real
intention doubtless being to amend by substituting an
answer, and by this means obtain twenty days1 farther
time. Defendant's attorney declared his intention to
give plaintiff's attorney all the trouble professionally
in this case that he could devise. There have been
numerous extensions and an examination of plaintiff,
all to what end? Even though the demurrer was
good as to plaintiffs not being the real party in inter-
est, it is bad as to the complaint's not stating suf-
ficient facts to constitute a cause of action, and it is
well settled that if it is bad in part, it must fall alto-
gether.

Frederick K. Clark (Charles Howard Williams,
attorney), opposed.

I. Section 537 of the Code requires that notice of
this motion shall be not less than five days, and where-
ever in the Code it is intended that a shorter notice
may be given, it is plainly stated in the same or subse-
quent section ; as for instance, § 780 requires that an
ordinary notice of motion shall be eight days, but a
clause immediately follows in the same section, provid-
ing that for cause shown, an order to show same may
issue returnable in less than eight days. Section 537

U CIVIL PROCEDURE REPORTS. -

Beal v. Union Paper Box Co.

contains no such qualification, and the express mention
of it in section 780 excludes it in all sections wherein
provision is not made.

II. The plaintiff has no right to use affidavits, nor
urge extrinsic matters on this motion. The sole ques-
tion before the court on this motion, is whether the
demurrer on its face is "so clearly and palpably
bad as to require an argument or illustration to show
its character, and which would be pronounced frivo-
lous, and indicative of bad faith in the pleader upou
bare inspection." Strong v. Sproul, 63 N. Y. 497.

III. On the merits, the complaint, in showing that
Dederick having purchased in his own name, and exe-
cuted only an assignment to plaintiff, and not a power
of attorney shows the title to be still in Dederick, and
therefore the plaintiff is not entitled to sue ; aud the
failure to show title from or through Williams is an
omission of a fact material to constitute a cause of
action.

Sedgwick, J.— [Orally.]— I think the objection
taken by Mr. Clark as to the length of noti •*, and use
of affidavits, well taken. The question before me U
solely whether the demurrer on its face is frivolous,*
and I cannot entertain any consideration of extraneous
matters. The complaint seems defective in not show-
ing the manner of plaintiff's obtaining title to the
stock. It merely alleges that he purchased itat public
auction. I shall therefore deny the motion with $10
costs, to abide event.

The order entered read as follows :

♦In Cook v. Warren, 88 N. Y. 37r it was huld that to justify an
order overruling a demurrer as frivolous, it must not only be without
adequate reason, but so clearly and plainly without foundation, that
the defect appears upou mere inspection, and indicates that it was
interposed in bad faith. Bee to same effect. Strong t>. Sproul, 53 2V.
Y. 497 ; Vilas Nat'l Bank c Moore, 14 Weekly Dig. 334.

CIVIL PBOCEDURE REPORTS. 25

Newcomb •. Halt.

11 Ordered, That said motion be denied with ten
dollars costs to abide event, on the ground that notice
of motion was less than five days, and on the merits."

NEWCOMB, as Receiver of thk Atlantic Mutual
Life Insurance Company v. HALE.

Supreme Court, Third Department, Albany
County Special Term, December, 1882.

§§8228, snbd. 4, 3230.

Costs. — When the court of appeals reversed a judgment "with costs to

abide the event" the party eventually successful recovers costs for all

si twin the action. — Where a judgmemt teas modified, and as

modified affirmed "with costs to the appellant," liwith

costs" meant oasts in the court of appeals only. — The

costs of an action for the foreclosure of a mortgage,

wherein judgment for deficiency is awarded

against a guarantor of the payment of

the mortgage, are in the discretion

of the court

It is wrll settled that when the court of appeals reverses a judgment
"with costs to abide the event," that the party who eventually
swceeds, recovers costs for all the different steps in the action. [•]

t*)v*re the court of appeals, on appeal from the general term o/ the
supreme court, ordered that the judgment in an action for the
foreclosure of a mortgage be reversed and modified by inserting a
provision adjudging the defendant liable for any deficiency, and as
so modified, affirmed with costs to the appellant,— Held, that u with
costs'1 meant costs in the court of appeals only ;[',*] that if the
judgment or order affirmed gave costs, the successful party would
obtain costs in the lower court by virtue of the original judgment or
order which was affirmed, but if the order or judgment appealed
from and sustained gave no costs, the party succeeding on the
appeal would not recover costs in the lower court [*]

Where, in an action to foreclose a mortgage on real property, it was

26 CIVIL PROCEDURE REPORTS/ . (

Newcomb •. Hale.

adjudged that the plaintiff have judgment for the deficiency, if any,
arising on the sale of the mortgaged premises, against one H., who
had guaranteed the payment of the mortgage, —Held, that the
plaintiff was not entitled to costs, of course Against the defendant,
II., under subdivision 4 of section 8228 of the Code of Civil Proced-
ure which provides that a "plaintiff is entitled to costs of course,
upon the rendering of a final judgment in his favor," in an action
4 'in which the complaint demands judgment for a sum of money
only;"[&] that while as against the defendant, H., the relief sought
might result in a judgment for money only, the relief demanded in
the complaint was not a judgment for a sum of money only;[*] that
the costs were in the discretion of the court as provided by section
8280 of the Code. [«j
Sisters of Charity t>. Kelly (68 JV. Y. 628), followed and explained. [*]

Motion under section 3265 of the Code of Civil Pro-
cedure for a new taxation of costs.

The facts are stated in the opinion.

De Witt Roosa, for the motion.

N. C. Moak, opposed.

Westbrook, J.— The defendant, Matthew Hale,
had assigned a mortgage to The Atlantic Mutual Life
Insurance Company, with a guarantee of payment.

The plaintiff, as the receiver of the insurance com-
pany, commenced an action to foreclose the mortgage,
making Hale a party defendant. Hale defended upon
the ground that his guarantee of payment was dis-
charged by the neglect of the company to foreclose, as
he requested it to do. His defense was sustained at
circuit and general term, but overruled in the court of
appeals, which court (to use the exact language of the
remittitur) "did order and adjudge that the judgment
of the general term of the supreme court appealed
from as relates to defendant Hale, be and the same
is hereby reversed and modified by inserting a pro-

CIVIL PROCEDURE REPORTS 27

Newcomb «. Hale.

['J vision adjudging the defendants liable for any
deficiency, and, as so modified, affirmed with costs
to the appellant."

After the decision of the court of appeals, the
plaintiff procured his costs to be taxed by the clerk of
the county of Albany, who against the objection of the
defendant Hale, allowed to the plaintiff costs and dis-
bursements in the supreme court, to the amount of
$158.15. The present motion presents the property of
that allowance.

It is well settled, that when the court of appeals
reverses a judgment "with costs to abide the
[■] event, " that the party who eventually succeeds,
recovers costs for all the different steps in the
cause (First National Bank of Meadville v. Fourth
National Bank of New York, 84 2V. Y. 469 ; Donovan
v. Yandemark, 22 Hun, 307 ; Sanders v. Townshend,
63 Haw. Pr. 343*).

The reason of this is apparent. The costs in tiie
court of appeals are J>y the order made to depend upon
the final event, and when the final judgment awards to
the prevailing party costs of the action, he recovers
those in the court of appeals by force of its order,
which gave to the lower tribunal express power to
award them ; and those for the proceedings had in such
lower tribunal, because its judgment giving them was
within its statutory authority over costs for steps
taken in an action whilst within its jurisdiction and
under its control.

The reasons, however, upon which the cases referred
to depend — that the lower tribunal can award costs for
proceedings in the court of appeals, whenever such
latter court authorizes it so to do, and that the former
has the original power to award costs in an action for
such proceedings therein, as were had before it — so far
from sustaining the allowance to the plaintiff of the

* S. C., 11 Abb. N. C. 217.

28 CIVIL PROCEDURE REPORTS.

Newcomb «. Hale.

costs in this action, while tt was pending in this
court, are opposed to such allowance. Certainly this
court has not, either at general or special term,
ordered judgment for the plaintiff against the defend-
ant Hale, with costs of the action, and if the taxation
of the clerk of Albany county is to be sustained, it
can only be upheld by showing that the judgment of
the court of appeals awards them. Has it is done
so ? Its order does not direct, as the counsel for the
plaintiff argued, the judgment of the general term to
be reversed and modified "by inserting a provision
adjudging the defendant Hale liable for any defi-
ciency," with costs of the action. If it did, then it
could be plausibly and perhaps successfully said, that
as the roll so amended provided for a judgment against
Mr. Hale, with costs, the plaintiff should recover costs
of the action. The amendment which the order directs
to be made to the judgment, does not, however, direct
that the judgment against the defendant shall be with
costs. On the contrary, the only amendment to be
made to the judgment of the general term is, that it
shall declare " Hale liable for any deficiency;" and
then the order further provides, that the judgment
"as so modified," to wit, a judgment against Hale for
any deficiency, without any declaration or provision as
to the costs, "is affirmed with costs to the appellant."

The question, therefore, which this case presents is,
when a judgment by the general term is modified so as
to provide for a recovery against the defendant in a
certain contingency, and no costs are adjudged against
the defendant as a part of such recovery, and such
judgment " as so modified," is "affirmed with costs to
appellant," what costs are recoverable}

In other words, suppose in an action in which costs
are in the discretion of the court (and that this is such
an action will presently be shown) a judgment is ren-
dered in the supreme court, without any provision for

CIVIL PROCEDURE REPORTS. 29

Newcomb «. Hale.

costs, and that on appeal to the court of appeals, such
judgment is affirmed with costs, what costs are recov-
erable ?

Such a question would seem to admit of only one
answer, and that is, an affirmance in the court of appeals

of a judgment or order, with costs, means costs in
[•] the court of appeals only. If the judgment or
order affirmed gave costs, the successful party
would obtain costs in the lower court by virtue of the
original judgment or order which was affirmed ; but if
the order or judgment appealed from and sustained,
gave no costs, the party succeeding on the appeal would
not recover costs in the lower courts. Precisely such a
case this motion presents. The judgment of the lower
court is modified so as to render a judgment in favor
of the plaintiff, but without costs, and, as so modified,
is affirmed with costs to the appellant.

This provision clearly gives only costs in the court
of appeals, and no other.

It is argued, however, that the judgment of the
court of appeals reversed the judgment of the lower
court, and that costs in the lower court follow.

That may be so in a case in which costs are a part
of the recovery as matter of right. This is not such a
case, as will presently be shown, but the right to
recover costs in the supreme court, as the supreme
court has not awarded any, depends entirely upon
the judgment of the court of appeals. The attempt
has been made by an analysis of the language
of the remittitur, to show that no costs in this
court have been given. It is useless, however, to
argue, as the court of appeals has construed the
meaning of language similar to that contained in the
order in this case. In Sisters of Charity v. Kelly,
[4] (68 N. T. 628), it was held, " When costs axe given
by the judgment of this court, it means costs in
this court to the successful party, as agaiust the unsuc-

30 CIVIL PROCEDURE REPORTS.

Newcomb v. Hale.

cessful party." The report of the case is not fall,
bat inquiry of coansel has developed the following
facts : A will offered for probate had been rejected
on the ground of defective execution. The supreme
court at general term reversed the decree of the
surrogate, and the decision of the court of appeato
was: " Judgment of the general term reversed,
and decree of surrogate affirmed with costs." In
holding, then, in Sisters of Charity v. Kelly, that an
order reversing the general term, and affirming a surro-
gate's decree "with costs" only gave costs in the
court of appeals, that tribunal has so construed
words similar to those used in this case, as to
render impossible the construction claimed for them
by the plaintiff in this action.* It was also urged on
the part of the plaintiff, that he is entitled to recover
costs in the supreme court by subdivision 4 of section

8228 of the Code of Civil Procedure, which entitles
[•] the plaintiff 4 ' to costs of course, upon the rendering

of a final judgment in his favor" in an action "in
which the complaint demands judgment for a sum of
money only." The present case was not one of that
character. As against the defendant Hale, the relief
sought, if any was given, might result in a judgment for
money only; but the relief demanded by the complaint
was not a "judgment for a sum of money only." On
the contrary, the action was for a foreclosure of a mort-
gage, and a sale of the mortgage premises, as the prim-
ary and principal relief; and as the secondary and

* In Martha v. Curley (3 If. T. Civ. Pro. 266, reversing Id. 86) the
court of appeals held, that where it reversed an order of the general
term, directing a new trial, and affirmed the judgment of the special
term with costs, " with costs " meant all the taxable costs subsequent
to the judgment affirmed consequent upon the appeals both to the'
general terra and to the court of appeals. See also, In re Protestant
Episcopal Si hool, 86 N. T. 397 ; Post v. Doremus, 60 Id. 372 ; Rust
v. Hauselt, 46 Super. (J. & 8.) 88.

CIVIL PROCEDURE REPORTS. 81

Newcomb t>. Hale.

final relief, the complaint asked for a personal judgment
against Hale for any deficiency arising upon the sale.

The same relief was asked against Hale, that is gen-
erally asked against the obligors of a bond which ordi-
narily accompanies a mortgage, and in the present
action, no more than in one brought to foreclose a
mortgage, to which the obligors executing the bonds
accompanying it are made parties for the purpose of
making them liable for any deficiency upon the sale,
can it be truly said, that the sole relief demanded by
the complaint is a money judgment.

The position of the plaintiff is not maintainable ; the
costs are recoverable by him in this case, as, of course,
under the section of the Code referred to. On the
contrary, as has been shown, that section does not
apply, and section 3230, which places costs in the
['] discretion of the court, does. It is true that if the
plaintiff had sued Mr. Hale directly upon his cove-
nant, he would have been entitled to his costs, as of
right. He did not, however, do so, but, on the con-
trary, he brought an action to foreclose a mortgage,
making him a party to it, and it has been expressly
decided (Lossee v. Ellis, 13 Hun> 635) that "in an
action to foreclose a mortgage, the costs are in the dis-
cretion of the court." See also Harrington v. Robert-
son, 71 N. T. 280, 284.

The conclusions from the foregoing reasoning are
clear. First, the plaintiff was not entitled to recover
costs in the supreme court, as of course. Second, the
supreme court, neither at general or special term, has
awarded them. Third, the court of appeals has
awarded costs only in that tribunal ; and, Fourth, as
costs have never been allowed for the proceedings in
this court, the allowance of them to the plaintiff by
the clerk was erroneous.

The motion of the defendant is therefore granted,

32 CIVIL PROCEDURE REPORTS.

Ghreismann v. Dreyfus.

but as the question is somewhat novel, and the plaint-
iff has succeeded in the action, no costs are allowed
thereon.

GREISMANN, as Administratrix, etc., t>.
DREYFUS, et al.

* City Court of Brooklyn, Special Term,
August, 1883.

§§828,870 et seq.y 880.

Examination of party before trial. — The fact that questions may be put

on such an examination which will tend to criminate the witness,

affords no justification for his refusing to be sworn. — Such

objection can only be urged against a specific question. —

Where the affidavit on which an order for such an

examination too* granted, stated that the party

wished to ascertain whether certain facts

existed or not, it clearly indicated what

he desired to prove.

Where, in an action by an administratrix to recover damages for the
death of her intestate, alleged to hare been caused by the defendant's
negligence, an order for the examination of a defendant as a party
before trial was granted, and the defendant objected to being
sworn and examined on the ground that negligence being now
punishable as a crime, he might be compelled to criminate himself!
— Held, that the fact that questions might be put, the answers to
which would tend to criminate the witness, afforded no justification
for his refusing to be sworn ;[']. that the objection was premature,
and involved as against an entire examination a personal privilege
which could only be urged as against a specific question. [']

Where the affidavit on which an order for the examination of a
defendant before trial, alleged that the plaintiff's attorney wished to
ascertain whether certain facts existed, — Held} that it clearly
enough indicated what he desired to prove. [•]

Corbett «. De Oomeau (4 Abb. JT. V. 262), fbllowed.[!]

{Decided August U, 1883.)

CIVIL PROCEDURE REPORTS. 38

Greismann e. Dreyf as.

Motion to vacate an order for the examination of
one of the defendants as a party before trial.

An order for the examination of Achilla Dreyfus,
one of the defendants, was granted upon an affidavit
made by plaintiff's attorney, which, after stating the
names and addresses of the parties, and the names
and office addresses of the attorneys by whom they
had appeared, continued as follows :

" That the nature of this action is as follows :
"Mary Greismann, the plaintiff, as administratrix
of the goods, chattels and credits of Edward Greis-
mann, deceased, sues for five thousand dollars dam-
ages, sustained by her, and the children and heirs of
said Edward Greismann, deceased, through the death
of said Edward Greismann, who died on the 4th day
of April, 1883, at the city of Brooklyn, in consequence
of and through injuries which he sustained on the 29th
day of March, 1883, at the said factory of the defend-
ants, in the city of Brooklyn, in the employment of
the defendants as one of their workingmen in said
factory, while in the discharge of duties as such work-
ingman, through the negligence and carelessness of
the defendants, through the unsafe and defective con-
struction and condition of the machinery used by the
defendants in and about the work performed by said
Edward Greismann, deceased, and by the failure and
wrongful omission of the defendants to eupply safe,
secure and well-constructed machinery for said work,
and without any fault or negligence on the part of said
deceased, said plaintiff having been appointed admin-
istratrix, as aforesaid, on the 26th day of May, 1883>
by the surrogate of Kings county, and having duly
qualified as such and entered upon the duties of her
said office. The substance of the judgment demanded
in the oomplaint herein is the sum of five thousand dol-
lars and the costs of this action. That the defendants
Vol. IV. —8

94 CIVIL PROCEDURE REPORTS.

Grei*m*na v. Dreyfu*.

have served an answer to the complaint herein, in
which they admit that they are copartners, as alleged
in the complaint, and that on the 29th day of March,
1883, said deceased was in the employ of said defend-
ants ; that they have no knowledge or information
sufficient to form a belief as to the allegation that
plaintiff was appointed administratrix, as above re-
cited, deny each and every allegation in said complaint
contained, not expressly admitted or referred to above
stated, and then, for a farther and separate defense,
allege: that the machinery, pipes and connections
about which said Edward Greismann was employed at
the time of the accident referred to in said complaint,
were in every respect securely and properly made and
constructed, and were in every respect safe, suitable
and proper for the purposes for which the same were
employed. That whatever harm or injury was suffered
by said Edward Greismann, in said employment, was
wholly caused by his own negligence in standing
directly in front of, instead of under or beside, as he
had been instructed to do, the closed end of a certain
horizontal pipe, used far the discharge of boiling water,
and while so standing, contrary to his instructions,
directly in front of the end or mouth of said pipe in
unscrewing and removing therefrom the cap that
closed the same, allowing of the discharge of said boil-
ing water; that said Greismann contributed to the
injury received by him by his further gross negligence
in not closing, before removing said cap, the valves
which cut off the connection between the boiler and
the mouth or end of said pipe near the end of said
pipe, as he had been instructed and was accustomed to
do ; that said Greismann further contributed to his
said injury by his failure to open, before removing said
cap, the valve into a certain escape pipe of the water
standing therein ; that valves and escape pipe were
designed and fully adequate to secure the safety of the

CIVIL PROCEDUBE REPORTS, 35

Qreiftflumn ». Dreyfus.

workmen in drawing off the boiling water into the vats,
and were a perfect protection against danger in so
doing, and were in perfect working order at the time
said Greismann was injured ; and that said Greismann
was perfectly acquainted with said valves, and with
their use and operation, and had used them daily with
safety for a long period of time prior to his injury ;
that whatever harm or injury was suffered by said
Edward Greismann, in said employment, was wholly
due to his own negligence and carelessness, and wholly
without any fault of the defendants, which answer is
verified by one of the defendants, Achille Dreyfus,
who, as deponent, is informed and verily believes,
superintends the workmen engaged by the defendants
in said factory, and is personally well acquainted with
the machinery, pipes and valves mentioned in the com-
plaint and answers herein, and with the work which
Edward Greismann, in his life-time, performed for the
defendants.

"That deponent desires to examine the defendant,
Achille Dreyfus, as a party or witness, before trial, on
behalf of the plaintiff herein. That the testimony of
said Achille Dreyf as is material and necessary for the
plaintiff herein, and that the plaintiff cannot safely
proceed to the trial of this action without such exam-
ination, for the following reasons, which contain also
some of the facts and matters in regard to which
deponent desires to examine said Achille Dreyfus, to
wit: The plaintiff and this deponent have but a very
vague idea of the construction of the machinery at
which said deceased was employed, and deponent
therefore desires to examine said Achille Dreyfus at
large, about the construction of said machinery, the
working and objects of said pipes, valves and connec-
tions, and the purposes for which the boiling water
and steam were used; also about the instructions

86 CIVIL PROCEDURE REPORTS.

Grewmann v. Dreyfus.

which, as defendants claim in their answer, said
deceased received, whether it was a usual thing for
the steam or hot water to be discharged from the
closed end of the horizontal pipe when a person stood
in front thereof, as claimed in defendant's answer,
while the cap that closed the said end was being '
unscrewed and removed therefrom, and thns such
instructions to stand under or beside the end of said
pipe became necessary ; whether any accident similar
to the one described in the complaint and answer hap-
pened to any other workmen of the defendants pre-
vious to the one in qnestion, whether the machinery
used by the defendants wonld not have been rendered
more secure and safe by additional precautions and
appliances thereto ; and whether, as a matter of fact,
the same was not repaired and rendered more secure
and safe immediately after the injury of said deceased,
by additional appliances and repairs to said machinery ;
whether the defendants had an authorized and licensed
engineer upon their said premises, and whether it was
not the exclusive right and privilege of such engineer
to shut off and open steam valves belonging to such
machinery ; whether such engineer had any instruc-
tions from the defendants to attend to the shutting
and opening of such steam valves, and whether said
engineer was in actual attendance in said factory at
the time of said accident.

"Deponent also desires to ascertain through said
examination, who was present at and witnessed the
injuring of said deceased, also, what were the duties
of the deceased in and about the work which he per-
formed in said factory for the defendants, and various
other matters touching the subject of this action and
the defense."

The defendants moved upon this affidavit to have
the order granted thereon vacated.

CIVIL PROCEDURE REPORTS. 37

Greismann «. Dreyf ue.

Stern <ft Thompson, for the motion.
Henry Fuehrer, opposed.

McCue, J. — The plaintiff seeks to examine the
defendant, Achilla Drey fas, as a witness before trial
nnder an order of the court granted in accordance with
the Code, upon an affidavit of the plaintiffs counsel
showing the need of such examination. The action is
brought to recover damages for negligence causing the
death of plaintiff's husband. The defendant by his
counsel objects to being sworn and examined, on the
ground that negligence being now punishable as a crime,
he may be compelled to criminate himself. That ques-
tions might be put, the answers to which would tend

to criminate the witness, affords no justification
[ * ] for refusing to be sworn, as was held in Corbett v.

DeComeau, 4 Abb. N. C. 253.* Now the Code

* S. C, 54 How. Pr. 506. In Yamato Trading Co. e. Brown (27
Hun, 248; S. C, 68 How. Pr. 988), it was held that an order for the
examination of a party before trial should not be granted where the
entire object of the examination sought is to show by the party that
he has procured property by means of fake and fraudulent represen-
tations. In Burbank t>. Reed (11 Weekly Dig. 756, opinion reported
in 1 if. Y. Civ. Pro. 42), it was held that an order for the examination
of a party before trial was improperly granted where the affidavit on
which it was granted showed that the examination was necessary only
for the purpose of showing facts which might subject the party
examined to a criminal prosecution.

In Russ v. Campbell (1 JV. F. Cio. Pro. 41), which was an action
by a judgment debtor to set aside a conveyance and chattel mortgage
on the ground of fraud, the general term of the supreme court, second
department, vacated an order for the examination of the defendant
before trial, on the authority of Burbank v. Reed (*upra)y but in
Tenney t>. Mautner (1 If. Y. €L\ Pro. 64), a judgment creditor's
action to set aajde a general assignment for the benefit of creditors as
fraudulent, the general term of the supreme court, first department,
sustained a similar order. The ruling in the following case accorda
with that in Yamato Trading Co. e. Brown (supra).

38 CIVIL PROCEDURE REPORTS.

Greisziann v. Dreyfus.

provides in substance, that a party may be examined as
a witness before trial as if upon trial. If called upon
he could not refuse in toto to testify, on the ground
that his testimony might criminate himself, but would
only have the privilege of refusing to answer questions

WALKER «. DUNLEVEY and Another.
N. Y. Marine Court, Special Term, Mat, 1883.
$§837, 870, eteeq., 880.
Examination of party be/ore triai. — Order for, should be denied where
it will necessarily compel party examined to invoke protection of
court. — Order for, should not be granted in action where the only
issue is the criminality of the witness sought to be examined.
Where it appears that an order for the examination of a party before
trial would, of necessity, compel him to invoke the protection of the
court, the order should be denied. [']
An order for the examination of a defendant before trial at the
instance of the plaintiff as to his solvency or insolvency, in an
action to recover the value of certain goods and merchandise alleged
to have been sold to defendant on the faith of representations that
he was financially responsible, when in fact he was wholly insolvent,
should not be granted. While insolvency is not itself a crime,
testimony as to it would be good only so far as it furnished a link
in the chain of proof that defendant had committed a crime, and
any one question which has that effect is as objectionable as any
other. [*]
The court is bound to take notice of the object of an examination of a
party before trial, and where the only issue in the case is a criminal
act of the defendant sought to be examined, an order therefor should
be denied. [4]
Phoenix v. Dupuy (2 Abb, 2V. O. 146), approved;]?] Corbett v. Do

Oomeau (54 How. 506), distinguished. [*]
{Decided May, 188a)

Motion to vacate an order for the examination of the defendant
Dunlevey before trial.

The complaint alleged that the plaintiff, relying on the defendant
Dunlevey's statement that he was solvent, and upon certain represen-
tations made by him as to his financial responsibility, sold and
delivered to him certain goods and merchandise, and upon the plaint-
iffs information and belief, that such statement and representations
were false and fraudulent, and the said defendant was, and knew that

CIVIL PROCEDURE REPORTS. 39

Greismann «. Dreyfus.

having that tendency. By analogy, I think the same
rale should apply to the examination before trial.
[ " ] The present objection is premature. It involves
as against an entire examination a personal privi-
lege which can only be urged as against a specific

he was at the time of the sale and delivery of such goods and
merchandise, wholly insolvent and unable to pay therefor.

An order for the examination of the defendant Dunlevey was
granted on an affidavit made by plaintiff stating that the object of the
examination was to ascertain " whether the defendant, at the time the
goods and merchandise mentioned in the complaint were sold and
delivered to him, was solvent, and able to pay his debts as represented
by him to deponent when said goods and merchandise were purchased. "
This motion was to vacate said order.

Samuel Keeler, for the motion,

Abram Kling, opposed.

Ha wes, J.— All parties substantially agree that a defendant can
decline to answer a question which will criminate him ; and I think

that if it appear, that such an examination before trial would, of
['] necessity, compel a party to invoke the protection of the court,

then the order should be denied. The ruling in Phoenix v.

Dupuy (2 Abb. N. C. 146), is clearly in accordance with the best
[*] practice. The examination in this case, on its face, is ordered

merely to determine the solvency or insolvency of the defendant,
and it may well be said that insolvency is not in itself criminal, and
the court would not interfere for the protection of the party from the
discovery of that fact. But such testimony would be subject to the
objection of immateriality, if not taken in view of the complaint which
charges fraud in the representation as to his solvency. In other words,
such evidence is good only so far as it furnishes a link in the chain of

proof that defendant has committed a crime ; and any one question
['] which has that effect is as objectionable as any other ; for, if the

principle is correct in any phase of the case, it is correct in all
phases. The proof as educed, would lead only in one direction. The
court is bound to take notice of the objects of the examination, and

the only issue in the case at bar is the criminal act of the defend-
[*] ant, and in view of what I deem the well-settled rule, this order,

which is discretionary in its character, should be denied. The
ease of Corbett «. De Comeau (54 Mow. 506), holds that the order
should be granted, and the court should pass upon the question of the
witness' privilege when he raised it, but this case rested upon the

40 CIVIL PROCEDURE REPORTS.1 ^

Greiamann v. Dreyfus.

question. To rale as defendant requests, would
exempt him from testifying and nullify the provisions
of the Code. The objection is also made in defendant's

brief, that it is not sufficient to allege that the
[•] party desires to prove certain facts, but that the

facts must be alleged to exist. The plaintiff's
counsel alleges that he wishes to ascertain whether
certain facts exist or not, and I think clearly enough
indicates what he desires to prove. The order for
examination is therefore to stand without costs.

view that the examination of a party before trial was a matter of right
and not of discretion. This construction is no longer held by any
court in the department, and the case cannot, therefore, be deemed
authority. The papers are insufficient in many other respects, and the
order must be dismissed, with costs.

In Canada Steamship Co. v. Sinclair (K Y. Super. 0. T. May,
1888, 8 K Y CU>. Pro. 284), it was held that the right of a witness to
refuse to answer a question which would tend to convict him of a
crime, is a personal privilege, and should be urged when he is asked
the questions having such a tendency; that an order for the examina-
tion of a party before trial should not be set aside, unless it appears
that the testimony sought to be obtained related exclusively to facta
which, if proven, would show that the witness was guilty of a crime.

See also the cases cited in note on examination before trial (1 N,
Y. Ow. Pro. 75).

CIVIL PROCEDURE REPORTS. 41

Hoffman v. Ridley.

HOFFMAN, AN INFANT, BY HOFFMAN, HER GUARDIAN
AD LITEM, V. RIDLEY, ET AL.

N. Y. Marine Court, Special Term, March, 1883.

§3277.

When court not divested of jurisdiction of motion by entry of judgment,

—Court has power to discontinue an action without costs; it rests in

sound discretion. — An infant plaintiff, unable to comply with

an order requiring her to give security for costs, should be

allowed to discontinue an action for personal injuries,

without costs.

Where a plaintiff procured an order to show cause why she should not
be permitted to discontinue an action without costs, and the
defendant, before the return day named in such order, entered
judgment under an order dismissing the action on account of plaint-
iffs failure to file security for costs, — Held, that no exception could
be taken to the regularity of the defendant's course in entering
judgment, but that the consideration of the question proposed by
the order to show cause, was virtually before the court at the time
judgment was entered, and the court was not thereby divested of
jurisdiction.

Where, in an action brought by an infant by her guardian ad litem, to
recover damages for personal injuries alleged to have been received
through the negligence of a servant of the defendant, the plaintiff
was required to pay into court the sum of $250, or file an under-
taking in that amount, and she was unable to do so, — Held, that the
court has the power to discontinue an action without costs, — it rests
in sound discretion, and that this case is eminently a proper one for
the exercise of such power.

(Decided March 22, 1883.)

Motion to vacate judgment and to discontinue
action without costs.

The defendants procured an order requiring plaint-
iff to pay into court the sum of $250, to be applied to
the payment of the costs, if any, awarded against her,

42 CIVIL PROCEDURE REPORTS.

Hoffman «. Ridley.

or at her election to file with the clerk an undertaking,
as provided in sections 3272 and 3273 of the Code of
Civil Procedure.

The plaintiff being nnable to comply with the order,
procured an order reqniring the defendants to show
canse why she should not be allowed to discontinue
the action without costs. Before the return day
named in the order, the defendants entered judgment
dismissing the action pursuant to an order they had
theretofore obtained, which dismissed the action for
plaintiff's failure to give security for costs. The
plaintiff thereupon made this motion.

G D. Rust, for the motion.

B. P. Wilder, opposed.

Hyatt, J.— No exception can be taken to the regu-
larity of the course of defendant's attorney, in entering
judgment of dismissal under the order herein of Mr.
Justice Hall. Prior to such action, however, the
plaintiff obtained an order to show cause why the
plaintiff should not be permitted to discontinue with-
out costs, by reason of inability to give the security
heretofore required by order of this court, and why the
said judgment should not be vacated.

I am of the opinion that the consideration of the
proposed question was virtually before the court at the
time of the said entry of judgment, and that the court
has not been divested of jurisdiction thereby.

This action is brought to recover damages alleged to
have beeh sustained by an infant, by being run over
by a horse and wagon driven by the alleged servant of
the defendant.

The defendant has obtained an order requiring
plaintiff to pay into court the sum of $260, or file an
undertaking in that amount.

CIVIL PROCEDURE REPORTS. 43

Hoffman «. Ridley.

The father of the plaintiff, who is her guardian ad
litem, has been unable to comply with the said order.

The plaintiff is thus debarred from any redress,
whatever may be the merits of her case, which is cer-
tainly a hardship sufficient to entitle her to discontinue
without costs. The defendant should be satisfied with
the exemption thus afforded him from defending the
action with its possible result.

The court has power to discontinue an action with-
out costs ; it rests in sound discretion (Barante 0.
Deyermand, 41 iV. Y. 355 ; Steiger v. Schultz, 3 Keyes%
616).

In my opinion, this case is eminently a proper one
for the exercise of this power. Motion to vacate judg-
ment, and to discontinue action without costs granted.
No costs of motion.

44 ~ CIVIL PROCEDURE REPORTS.

Albert Palmer Co. «. Van Orden.

THE ALBERT PALMER COMPANY v. VAN
ORDEN, Appellant.-
DILL and Another, Respondents.

N. Y. Superior Court, General Term, January,

1883.

Attorney' $ lien for costs.* — Attorney, where claim tea* settled after action

began, and before answer, without satisfying hie lien for costs, may, if

the defendant fails to answer, enter judgment. — Where, in such a

ease, judgment was entered for $87.50, interest and costs, and the

attorneys'' fees were to be all above $50 recovered in the action

and costs, and the action was settled for $50, the judgment

should be reduced to $50 and costs. — In such a case, a trial

should not be had at the expenses of both parties to

determine whether the recovery would he more than

$50. — Defendant moving to open default in failing

to answer, should serve with motion papers, a copy

of his proposed answer, but his failure to do so

is not fatal if there is an affidavit of merits,

and it appears what his defense will be.

A defendant moving to open a judgment taken against him by default,
is bound to show affirmatively what his defense is. Strictly, lie
should serve with his motion papers a copy of his proposed answer,
but his failure to do so is not a fatal objection when there is an
affidavit of merits in the usual form by the defendant, and an
affidavit by his attorney that he has a good and substantial defense
upon the merits, and the moving papers show what is the defense
intended. [*}

Where the parties to an action settled it for less than the amount
claimed in the complaint, without the concurrence of the plaintiffs
attorneys, and the costs of the action were not regarded by either
party, and the plaintiffs attorneys1 lien therefor was not satisfied, —

* See In re Wilson and Greig, 2 K Y. Civ. Pro. 843; Dimick*.
Cooley, 8 Id. 141, and cases cited in each opinion.

CIVIL PROCEDURE REPORTS. 4S

Albert Palmer Co. v. Van Orden.

Edd, that the plaintiffs attorneys were not bound to stay proceed" •
ings in the action or to discontinue without costs, [l] and were not
irregular in entering judgment for default of an answer ;[*] that the
settlement was not a bar to the action from the time of its beginning
but to the continuance of the action after the settlement, and
involved the defendant's paying the costs to the time of the settle-
ment at least, unless he alleged and proved that the compromise
included the costs. [V]

An action brought to recover $87.50 and interest, was settled by the
parties for $50. The plaintiffs attorneys, who had no part in the
settlement, upon learning of it, gave notice that they had a lien
upon the cause of action for their fees and costs. They had agreed
with the plaintiff that their fees should be all over $50 recovered in
the action and taxable costs, and upon the defendant's failure to
answer they entered judgment for $87.50 amount of claim, $11.19
interest, and $18.58 costs, and gave the defendant a certificate that
the judgment had been partially satisfied by the payment of $50 on
account, — Held, on a motion to open the defendant's default for the
purpose of allowing him to plead the settlement, that the attorneys*
lien was upon the actual cause of action, and not upon the alleged
cause of action ;[•] that there was no proof that the plaintiff had
other than a legal right to recover $50; ['J that neither the complaint
nor the defendant's default in answering, proved that the amount
claimed was owing in view of the settlement ;p] that the plaintiff's
attorney must show that the amount claimed was due,[*] and this
could not be done by proceeding with the action at the expense of
both parties ;[8] that the attorney had a lien for his taxable costs, [•]
and if the judgment had been only for $50, the amount of the
settlement and costs, and satisfied as to the amount of the $50, the
defendant would not have been entitled to any relief ;[*] that tho
judgment should be modified so as to reduce the recovery to $50
and taxable costs. [•]

{Decided February 19, 1883.)

Appeal by defendant from order denying motion to
open judgment entered for want of answer.

The action was to recover the sum of $87.56 upon
contract. Before the time to answer had expired, the
parties, without the intervention of the attorneys,
made a settlement, by which the defendant paid to the
plaintiff the sum of $50, in satisfaction of the claim

4C CIVIL PROCEDURE REPORTS.

Albert Palmer Co. 0. Van Orden.

made in the complaint. It did not appear, evidently,
flint the settlement included the costs of the action.
No answer was served, and for the want of answer
the plaintiff entered judgment for the sum of $87.50 ;
$11.19 interest thereon, and $18.58 costs, in all, for
$117.27. After entry of judgment, its satisfaction to
the extent of $50 was made by the plaintiff, as if the
$50 had been paid on account.

The defendant moved to set aside the judgment,
and for leave to serve answer on the ground of the set-
tlement.

The plaintiff's attorneys claimed that they and
plaintiff had agreed, before action began, that their
compensation was to be the taxable costs and the
amoutit of the recovery above $50, and they had a lien
upon the cause of action and the judgment in the
amount of the judgment after the application of the
$50, citing section 66, Code of Civil Procedure.
Further facts are stated in the opinion.

H. B. Whitbccki for appellant.

The parties had an absolute right to settle before
judgment, regardless of plaintiffs attorneys. The
good faith of the settlement is not impeached. God-
dard v. Trenbath, 24 Hwn, 182; Sullivan t>. O'Keefe,
53 How, Pr. 426. The plain tiffs attorneys had no right
to enter judgment after settlement. They were irregu-
lar ; they had no right to proceed with the action after
the settlement (of which they had knowledge) without
first obtaining leave from the court. Goddard v. Tren-
bath, supra.

James B. DM (Dill &- Chandler, attorneys), for
the respondents.

To entitle a party moving to open a default to relief,
he must serve with the moving papers a copy of the
pro(>osed answer, and must show the court specifically

CIVIL PROCEDURE REPORTS. 47

Albert Palmer Co. v. Van Orden.

in what his defense consists. Mere general allegations
will not answer. 3 Waits Practice, 665, 666; Ellis v.
Jones, 6 How. Pr. 296 ; Hunt v. Waliis, 6 Paige, 371 ;
Marquises v. Brigham, 12 How. Pr. 399 ; Catlin v. Law-

son, 13 Id. 611

The judgment is valid because of the attorney's
lien, and the notice thereof to the defendant. The
defendant is confined to the grounds and irregularities
set out in his order to show cause. Mon trait v. Hutch-
ins, 49 How. Pr. 105; Graham v. Pinckney, 7 Robt.
147 ; Lewis v. Graham, 16 Abb. Pr. 126 ; Selover v.
Forbes, 22 How. Pr. 477; Barker v. Cook, 40 Barb.
254. Questions of irregularity cannot be heard upon
appeal for the first time. Derham v. Lee, 47 JV. Y.
Super. 174.

The defendant and his attorney were notified of the
existence of ihe attorneys' lien before the bringing of
the motion.

The defendant is not in a position under his moving
papers to avail himself of any claim of irregularity in
the manner or the time of the service of this notice of
lien, inasmuch as the irregularity is not specified in
the moving papers. Therefore, under the decisions
rendered before the amendment to section 66 of the
Code in 1879, the lien of the plaintiffs attorneys is
valid, and the judgment cannot be satisfied to the
extinguishment, of this lien. Coaghlin v. N. Y. Cen-
tral & Hudson River R. R. Co., 71 N. Y. 443 ; McGre-
gor v. Comstock, 28 N. Y. 237; Wright v. Wright, 70
N. Y. 98.

The judgment is valid because of the attorneys'
lien.

No notice of lien is necessary under section 66 of
the Code of Civil Procedure, as amended in 1879. . . .

An attorney has a lien both under the common law
and under the Code. Ex parte Bush, 7 \inefs Abr.
(Edition of 1734), 74 ; Wilkins t>. Carmichael, 1 Doug-

48 CIVIL PROCEDURE REPORTS.

Albert Palmer Co «. Van Orden.

lass, 101 ; 2 Kent Comm. 641 ; In re Wilson and Greig,
2 N. Y. Civ. Pro. 343, and cases cited ; In re Knapp,
83 N. Y. 285 (204) ; Code Civ. Pro. § 66.

This lien is upheld on the theory that his services
and skill procured it. Coughlin v. N. Y. Central &
Hudson River R. R. Co., 71 N. Y. 443 ; Cowl v. Simp-
hoii. 16 Vasty % 279 ; Ex parte Yalden, L. it, 4 CJi.
Din. 129.

It extends to compensation and disbursements.

Before the Code of Procedure, the lien was limited
to the taxable costs, and after the enactment of the
Code of Procedure abolishing the fee bill (§ 303), the
lien was extended to any agreed or proper compensa-
tion, and the attorney was regarded as an equitable
assignee of the judgment to that extent, ltooney v.
Second Ave. R. R. Co., 18 N. Y. 368; Marshall v.
Meech, 51 N. Y. 140; Coughlin v. N. Y. Central &
Hudson River R. R. Co., 71 N. Y. 443 ; In re Knapp,
85 N. Y. 285. The Code of Civil Procedure, until
amended in 1879, made no changes on the law.

McBratney *. Rome R. R. Co., 17 Hun, 388

This amendment changes the former rule in two
respects. 1st. By making the lien attach to the
cause of action instead of the judgment and attach-
ing from the commencement of the action. 2d.
Whereas the rule formerly was, that a settlement
between the parties in good faith, without notice,
cut off the attorney's lien, the Code now declares that
this lien cannot be u affected by any settlement
between the parties before or after judgment." . . .

This amendment makes the lien absolute (Lansing
v. Ensign, 62 How. Pr. 363) and makes it statutory,
and there is no necessity of giving notice of a statute.

The practice of the plaintiff1 s attorney in entering
judgment was proper

The proper practice for an attorney claiming a lien
even after a discharge on the record, is to proceed with

CIVIL PROCEDURE REPORTS. 49

Albert Palmer Co. e. Van Orden.

the action to judgment and collection in the name of
his client. Foreman t>. Edwards, (Gen. Term, Fourth
Dep. April, 1882,) 14 Weekly Big. 409, citing 71 N. T.
443 ; McCabe v. Fogg, 2 Monthly L. Bull. 71 ; Wilbur
v. Baker, 24 Hwiy 26.

Sedgwick, J. — On the affidavits below the defend-
ant was not entitled to a finding that the settlement
made between the parties included the costs of the
action as well as the cause of action. The plaintiff
disputed that it did. And the affidavits seem to show
that the costs of the action were not regarded by either
party. I do not perceive that under the facts of the
case, especially the character of the settlement, the
[*] plaintiffs attorneys were bound to stay proceed-
ings in the action, or to discontinue without costs.
The defendant, in order to prevent the consequences of
not serving an answer, should have served one, setting
up such defense as might be made.

If he chose to rely upon the compromise and not
upon a denial of any indebtedness, such a defense
would involve the defendant being responsible for
[*] the costs of the action up to the time of settle-
ment, at least, unless he alleged and proved that
the compromise included the costs. t

The plaintiff not being irregular in entering judg-
ment, for default of answer on the motion to open
default and allow the defendant to plead, there were
at least two questions.

One was to what extent did the defendant show
that he had a defense to the action ; the other was, on
what terms should he be allowed to defend.

Under the first question the defendant was

[*] bound to show affirmatively what his defense was.

Strictly, he should have served with his motion

papers a copy of the proposed answer. He presented

an affidavit of merits in the usual form, and his attor-

Vol. IV.-4

50 CIVIL PROCEDURE REPORTS.

Albert Palmer Co. a. Van Orden.

ney also made an affidavit as to a good and substan-
tial defense upon the merits. As matter of practice,
this, by itself, would not have been sufficiently specific,
and if nothing more had been shown as to a* defense, it
would have required a denial of the motion. The papers
in other parts show, however, what was the defense
intended, and the order to show cause stated, as
ground for the relief asked, " that the claim upon
which the action was founded had been paid and set-
tled in full prior to the entry of said judgment." It
has been already said, that this defense, properly
pleaded, would not have been a bar to the action from

the time of its beginning, but to the continuance
[4] of the action after the settlement, and would

involve the 'defendant's paying the costs to the
time of settlement. If thereupon, the judgment had

been only for $50, the amount of the settlement,
['] and the costs of the action, with a satisfaction as

to the amount of the $50, the defendant would not
have been entitled to relief, and the motion would have
been properly denied with $10 costs.

In that event it would not have been necessary to
determine what terms should be imposed upon the
defendant as. a condition of opening a judgment that
had been legally taken. The papers for plaintiff show
that they did compromise the claim made in the com-
plaint for the $50, which the defendant paid, and that
their attorney knew that a settlement had been made
so far as the claim was concerned. The plaintiff's
attorneys wrote a letter to defendant's attorney, say-
ing, that they understood that some money had been
paid without their knowledge. "We shall not ratify
the settlement unless our costs are paid and our liens
discharged.7' A letter of this defendant admits simply
the settlement of the claims, but asserted that in
making it nothing was said about the suit, and ended,
44 we prefer that you enforce your lien for the costs

CIVIL PROCEDURE REPORTS. 51

Albert Palmer Co. v. Van Orden.

and services in the case against the subject-matter of
the action." An affidavit of one of the attorneys for
plaintiff, says : " that plaintiff9 s attorneys have a lien
upon the judgment entered in the abtion for $67.27,
being the amount of their servioes, which were to be
and are whatever amount was recovered over $50 and
the taxable costs ; that the said lien is wholly unpaid
and wholly unsatisfied, and the plaintiff refuses to pay
the same, and the validity thereof depends upon the
judgment entered herein, which stands of record to the
amount of lien only." This seems to be hardly more
than a statement of certain admissions of the affidavits,
and not to contain a statement of facts as to any agree-
ment between the parties as to the compensation of
the attorneys.

The judge below, would have been justified in hold-
ing that the plaintiffs attorneys did not show that
there had been an express agreement as to compensa-
tion. If, however, it be taken that there is enough to
show that there was an agreement that the attorney
should have as compensation the taxable costs and
whatever amount beyond $60 might be recovered, the
practical result, in my judgment, should be the same.

Under the notion that the attorneys had, under
section 66 of the Code of Civil Procedure, a lien for
the amount of their compensation of the kind indi-
cated, upon the cause of action, which attached to the
judgment when entered, they proceeded to enter judg-
ment for the whole amount claimed in the complaint
of $87.60, and as interest, $11.19, and $18.58 as costs
and disbursements.

They afterward satisfied this to the extent of $50,
calling it in the satisfaction piece " part payment" of
the judgment.* It has been noticed that the plaintiff's

♦This satisfaction piece was executed by the plaintiff's attorneys,
the respondents herein, and delivered to and retained by the defend-
ant's attorney. — [Ed.]

52 CIVIL PROCEDURE REPORTS.

Albert Palmer Co. v. Van Ordeo.

attorneys do not deny that ad between the parties to
the action, the cause of action has been definitely set-
tled. The only fanlt to the contrary is that the attor-
neys chose to apply the $50 to the judgment as if it
were a payment on account. They had no authority
to make this use of the amount. This error will not
affect the result. The attorneys claim, that although
there was this sufficient and valid compromise, never-
theless, as they had a lien, they can prosecute the
action on its original merits disregarding the com-
promise.

It will not be necessary to give a full construction
of section 66, for in my judgment it is not necessary
to go further than to say, that the lien is upon the

actual cause of action, and not upon the alleged
[ * ] cause of action. A cause of action is as it is, and

has its validity without its being stated in the
pleading. What proof is there here that the cause of
action which the plaintiff had is other than a legal right
to recover $50 ? I do not see anything to show that
plaintiff was entitled to recover more than this amount.
This has to be shown as against the defendant.

Against him the complaint does not prove it.
[ T ] Nor does his default of an answer prove it, in view

of the facts shown which include the settlement.
The plaintiff's attorneys claim the power to proceed
with the action irrespective of the other manifest right
of the plaintiff to agree to a compromise, and this
power is claimed because the attorneys assert a lien.
Assume that the parties had no right to agree that the
amount due was less than in fact it was, the attorneys
must show that the amount was due. There is no

|)roof of this. In truth, the attorneys claim the
[•] right to proceed with the action for the purpose

of showing that more than $50 was due. At least,
such is the nature of the claim, and is its essential
character, as would be shown if an answer had been

CIVIL PROCEDURE REPORTS. 53

Cupfer «. Frank.

served. Parties, however, do not always succeed in
proving what they assert. The plaintiff might be
unsuccessful, and it would then appear that the attor-
neys had no lien, beyond the taxable costs. The
experiment that the theory of the respondent proposes
should not be made at the expense of both the parties.
What has been said does not refer to the tax-
[ * ] able costs. It would appear that the attorneys had
a lien for them. The motion should have been
denied as to them. The judgment as to the amount of
recovery should have been reduced to $50. It was cor-
rect to provide that the motion costs be paid by the
defendant.

Although the result requires a modification of tho
order made below, it seems to me to be in accordance
with McCabe v. Fogg, 2 Monthly L. Bull. 7.

Order modified as indicated above, without costs to
either party.

Truax and O' Gorman, J J., concurred.

CUPPER, Respondent, v. PRANK, Impleaded,
etc., Appellant.

Supreme Court, First Department, General
Term, January, 1883.

§§1365, 1375.

Execution. — May be issued of course within floe yean after right to

issue has fully accrued. — Instance of an injunction order which

should not be moated.

By sections 1365 and, 1375 of tho Code of Civil Procedure, it was
intended to limit the time within which executions may issue of
course upon any judgment to the period of five years after the right

54 CIVIL PROCEDURE REPORTS.

Cnpfer «. Frank.

to issue the same had fully accrued. ['j Accordingly, Held, where
judgment of foreclosure and sale, in an action to foreclose a mort-
gage, was rendered September 5, 1876, and the referee's report of
aale was made and dated October 25, 1876, and showed a deficiency
for which judgment was docketed January 22, 1878, that the right
to issue execution did not accrue until the judgment was duly
docketed, and that an execution issued on said judgment, December
13, 1882, was issued within five years. [l J

Where, in an action in the nature of a creditor's bdl to secure the
application upon a judgment on which execution has been issued
and returned nulla bona, of a certain policy of insurance or claim
against an insurance company in favor of a judgment debtor, the
judgment debtor appealed from an order enjoining her from assigning
such policy or claim, on the ground that she, being a married
woman, could not assign her interest in it Held, that, inasmuch as
if it be true that the judgment debtor has no power to make any
assignment of the policy or claim, she will not be harmed by having
the injunction remain, while on the other hand, if she has such
power, the plaintiff in the action might lose his remedy if she were
not restrained, the injunction should not be vacated. [■]

{Decided May 11, 1883.)

Appeal by the defendant, Mary Frank, from an
order restraining her from assigning a certain policy of
insurance, or claim against an insurance company in
her favor.

The opinion states the facts.

Townsend, Dyett & Einstein, for appellant.

Ezra A. Tvitle, for respondent.

Davis, P. J.— This is an action in the natnre of a
creditor's bill, founded upon a judgment and an exe-
cution issued and returned nulla bona, and it seeks
assets of the appellant to be applied upon such judg-
ment. The assets consist of a claim against the Mutual
life Insurance Company, arising upon a policy of
insurance, in the name of the appellant, on the life of

OIVIL PROCEDURE REPORTS. 55

Cupfer v. Prank.

her husband. The only question that seems to have
been presented at special term was whether the com-
plaint shows an execution duly issued within five years
from the time the judgment was rendered. The alle-
gations of the complaint are sufficient upon that ques-
tion to show the issuing of an execution within that
time; but it is shown by affidavit that the judgment
was for deficiency arising upon the sale of mortgaged
premises in an action of foreclosure, and it is also
shown that the judgment of foreclosure and sale was
rendered on September 5, 1876, and that on October 25,
1876, the referee's report of sale was made in the action
bearing date on that day, which shows a deficiency, for
which the judgment was docketed on January 23, 1878.
If such docketing was the entry of the judgment within
the meaning of the Code, then the issuing of the exe-
cution on December 13, 1882, was within five years.
The Code provides (§ 1375) that executions may issue
of course at any time within five years after the entry
of the judgment, and by section 1365, that an execution
against^ property can be issued only to the sheriff of
the county, in the clerk's office of which the judgment
is docketed.

We are inclined to think that the court below was
correct in construing these sections as authorizing the
issuing of execution in this case. On the filing of the
referee's report of deficiency, the judgment declaring
the liability of the defendants for such deficiency was
not brought to a condition in which execution could
issue ; therefore something more was necessary to be
done, and we are of opinion that the sections referred

to of the Code, are intended to limit tbe time within
['] which, executions may issue of course upon any

judgment to the period of five years after the
right to issue the same has fully accrued. In this case
the right did not accrue until the judgment was duly
docketed, and that not having been done until the time

56 CIVIL PROCEDURE REPORTS.

Cupfer 0. Frank.

above named, the execution is shown upon the facts to
have been issued within five years.

Another point is now urged, which is in substance
that the interest of the appellant in the policy of insur-
ance or claim against the insurance company was not
assignable, and therefore cannot be reached by execu-
tion. The circumstances of the case are peculiar, and
the decisions referred to on the subject of the non-
assignability of a married woman's interest in a policy
are not in all respects analogous to those of this case.
It may very well be held on the trial of this action,
that those cases control that question ; but it would
seem from what appears in the papers before us, that
restraining the assignment of the policy or claim can
be of no special injury, provided the action is brought
to trial with proper diligence, inasmuch as, if it be true
that Mrs. Frank has no power to make any assignment
of the policy or claim, she will not be harmed by hav-
ing the injunction remain, while on the other
['] hand, if she has such power, the plaintiff in the
action might lose his remedy, if she were not
restrained.

We are of opinion therefore, on the whole, that
the injunction should not, on that ground, be vacated,
but be allowed to remain until the trial of the action,
in which this question of the assignability of the pol-
icy or claim can be finally determined.

Daniels and Brady, J J., concurred.

CIVIL PROCEDURE REPORTS. 57

Estate of Hewitt.

Estate of EDWARD HEWITT, Deceased.

Surrogate's Court, New York County, May, 1883.

§§ 2627, 2557—2660, 2666.

Costs of appeal from surrogate' $ decree. — Surrogate ha* no power to

award or order payment of, except as directed by the appellate court. —

Where appellate court hoe awarded costs, but ha$ made no direction

as how they shall be paid, Vie surrogate may exercise his discretion

in particular in which the appellate court hoe failed to exercise

it. — Functions of special guardian cease with entry of

surrogate's decree. — If special guardian, recognized as

guardian ad litem in appellate court on appeal from

surrogate's decree, although not regularly appointed as

such, he is entitled to compensation for his service*.

The functions of a special guardian of minor children appointed by the
surrogate on an application for the probate of an alleged last will
and testament, cease with the entry of the surrogate's decree in such
proceeding, and he is neither required nor empowered by virtue of
his office to represent the infants thereafter. [!] If the interests of
an infant need protection in proceedings upon appeal from the
surrogate's decree, it is the province of the appellate court to
appoint for that purpose a guardian ad litem.]*]

If, on appeal from a decree of a surrogate, the appellate court,
although it has made no formal selection of a guardian ad litem of
infants interested in the proceeding, has practically recognized as
such a special guardian appointed by the surrogate, the person
so recognized may thereby become entitled to compensation for
services rendered in the appellate court ;[*] but, however meritorious
his claim for compensation, it cannot be enforced in the surrogate's
court [4] He must resort for relief to the appellate tribunals wherein
he rendered the services, and in the absence of directions from those
tribunals, the surrogate has no authority to make any provision for
his compensation. [*, 5, • J

A surrogate cannot, under any circumstances, order payment of appeal
costs save in obedience to the direction of an appellate court!8,8,1]

By sections 2558 and 2560 of the Code of Civil Procedure, it was
not intended to give the surrogate a right to award costs on appeal,

68 CIVIL PROCEDURE REPORTS.

Estate of Hewitt.

but only to provide for their insertion in a decree in cases where
they may be lawfully awarded. [V] The surrogate cannot adjudge
that appeal costs be paid, where the court above has refused to award
them or given no direction whatever, but if an appellate court has
awarded costs, but has not given any direction whether the same shall
be paid out of estate or fund, or by the successful party, the surro-
gatemay exercise his discretion in the particulars wherein the appel-
late court has failed to exercise its own.[',*J
(Decided March 8, 1883.)

Motion by a special guardian for an order awarding
compensation to him for services rendered on appeal
from a decree of the surrogate.

The facts are stated in the opinion.
John Delahunty, for the motion.

Rollins, S.— An instrument purporting to be the
last will of Edward Hewitt was, in the year 1881, offered
for probate in this court. A contest thereupon arose,
which resulted adversely to the proponents. While
that contest was pending, the applicant in the present
proceeding was appointed special guardian of decedent's
minor children. He represented them in the probate
controversy, and by the surrogate's decree was allowed
as compensation therefor the sum of $25, which he has
since received.

From this decree, which denied probate to the paper
propounded as a will, an appeal was taken to the
supreme court. A judgment of affirmance was there
pronounced, which was itself subsequently affirmed by
the court of appeals.

The special guardian alleges that during the pend-
ency of these appellate proceedings he rendered serv-
ices which are worthy of compensation, and he now
asks that such compensation be awarded him out of
the assets of the estate. In opposition to this
['] claim, it is urged that the functions of the appli-

CIVIL PROCEDURE REPORTS. 59

Estate of Hewitt.

cant as special guardian ceased with the entry of the
surrogate's decree, and that he was neither required
nor empowered by virtue of his office to represent the
infants thereafter. This view, as it seems to me, is
correct. If the interests of an infant need protec-
ts tion in proceedings upon appeal from the surro-
gate, it is the province of the appellate court to
appoint for that purpose a guardian ad litem (Kellin-
■ger v. Roe, 7 Paige, 363; Underhill v. Dennis, 9 Paige,
202; Chaffee v. Baptist Miss. Soc, 10 Paige, 85;
Moody v. Gleason, 7 Coioen, 482 ; Pish v. Ferris, 3 E.
D. Smith, 567).

It is doubtless true that, if an appellate court,
though it has made no formal selection of a gnard-
[•] ian ad litem, has nevertheless practically recog-
nized as such, one who has acted as special guard-
ian before the surrogate, the person so recognized
may become thereby entitled to compensation.

In the case at bar, for example, the moving party,
for aught that is disclosed by the papers before me,
may have been treated by the appellate courts as one
entitled to represent the infants, whose interests in the
surrogate's court, he had, as special guardian, been
bound to protect. Accordingly, his claim to be com-
pensated for services rendered in the proceedings upon
appeal may have quite as good a foundation as if he
had received an express appointment as guardian ad
litem. But, however meritorious his claim may
[4] be, it cannot be enforced here. He must resort for
relief to the appellate tribunals wherein he ren-
dered the services. In the absence of directions from
those tribunals, the surrogate has no authority to
make any provision for his compensation.

Before the enactment of the Code of Civil Proced-
ure, the statutes were silent both as to the amount which
special guardians should receive in payment for their
services, and as to the mode of procedure whereby

60 CIVIL PROCEDURE REPORTS. ^/"

Estate of Hewitt.

payment for sach services could be obtained. But it
was in practice assumed that the right of the surro-
gate to appoint those officers involved the right to
direct the payment to them of reasonable compen-
sation. Any question as to the authority to give such
direction seems to be now set at rest by the provisions
of the Code.

Sections 2568-2565. inclusive, have to do with costs
and allowances to executors, administrators, free-
holders, appraisers, &c. Then follows section 2566,
which declares that'4 each other officer, including a
referee, and each witness is entitled to the same fees
for his services . . . . as he is allowed for like services
in the supreme court."

While there is here no express mention of special
guardians, the language is broad enough to cover such
officers, and was intended, I think, to include them.

Now, if their right to be awarded compensation by
the surrogate depends solely upon the authority
[•] which this section confers, such award can only
be made for services rendered in this court.

Aside from the section which has just been quoted,
the only Code provisions which have any important
bearing upon the matter under discussion are sections
2557, 2658, 2560 and 2589, which relate to costs award-
able to parties in proceedings before the surrogate, and
on appeal from that court. If, therefore, a special
guardian's right to compensation is not to be tested by
section 2566 alone, it is because the several sections
above cited enlarge the authority of the surrogate, and
permit him to grant an application like the present,
even though no direction has been given by the
supreme court or the court of appeals.

It is true that those sections contain expressions
which fairly suggest the liberal interpretation here
claimed for them— especially when considered by them-
selves, apart from other Code provisions in pari

CIVIL PROCEDURE REPORTS. 61

Estate of Hewitt.

materia, and without reference to the state of the law
upon this subject prior to September 1, 1880.

But if due heed be paid to the entire scheme of
appellate procedure established by the Code, and to
the general policy of the statutes before its enact-
[•] ment, it will be found that the claim here set up
cannot be nnccessfnlly maintained, and that under
no circumstances can the surrogate order payment of
appeal costs, save in obedience to the directions of an
appellate court.

That he was confined within those limits just before
the Code went into operation is too well settled to
require discussion (Morgan v. Morgan, 1 Abb. Pr. N.
S. 40; Seguine v. Seguine, 3 Abb. Pr. N. S. 442;
Dupuy 7). Wurtz, 47 How. Pr. 225 ; Savage v. Gould, 60
How. Pr. 255).

What change, if any, has since been effected ? The
Code declares, by its 25571 h section, that "except
where special provision is otherwise made by law, costs
awarded by a decree may be made payable by the
party personally, or out of the estate or fund as justice
requires."

Manifestly no authority is here given or intended
to be given for the award of costs, either upon the
appeal or otherwise. The sole purpose of the section
is to declare what person or fund is to be made charge-
able with costs in cases where such costs are awarded.
" Whenever you lawfully direct that costs be paid,"
it says to the surrogate, "you are at liberty, unless
prevented by some positive statutory restriction, to
exercise your discretion as justice may require, in
directing that such costs be paid either by some party
or parties to the proceeding, or out of the estate or
fund." Section 2558 provides that the award of costs
in a decree, is in the discretion of the surrogate, except
in one of the following cases :

Then follow the exceptions :

62 CIVIL PROCEDURE REPORTS.

Estate of Hewitt.

1. Where special directions respecting the award
of costs are contained in a judgment or order made (a)
upon an appeal from the surrogate's determination, or
(b) upon a motion for new trial of questions of fact
tried by a jury (in which cases costs must be awarded
according to those directions).

2. When a question of fact has been tried by a
jury. In such a case, unless an appellate court has
given special directions, costs must be allowed to the
successful party.

3. When there is a controversy over the probate of
a will. The surrogate is prohibited in such a case,
from granting costs to unsuccessful contestants, save
for certain specified exceptions.

Section 2660 declares that the costs of an appeal,
where they are awared by the surrogate, shall be the
same as if they were awarded in the supreme court.

These two sections (2558 and 2560) when compared
with section 2589, which will be presently quoted,
[T] and when the policy of the law as it was clearly
settled before the enactment of the Code is taken
into consideration, will be found to demand a narrower
interpretation than that which the present applicant
seeks to put upon them. While they provide, among
other things, for the adjustment in surrogate's decrees
of costs in appeal proceedings, it is not their intention,
as it seems to me, to give to the surrogate any power
to dward such costs, in the strict sense of that term ;
in other words, they do not aim to enlarge the scope of
hie authority so as to enable him to adjudge that costs
be paid when the court above has refused to award
them or given no direction whatever — they are simply
designed to establish the mode whereby the surrogate
is enabled to exercise in respect to costs on appeal
such limited authority as is conferred upon him by
other provisions of law.

The two sections which are the immediate subject

CIVIL PROCEDURE REPORTS.

Estate of Hewitt

of discussion, form a part of article 3 of title 2 of chap-
ter 18 of the Code. The chapter treats of "surrogate's
courts and proceedings therein." The title is devoted
to " provisions relating generally to the proceedings in
surrogate's courts, and to appeals from those courts."
The article is entitled, " Decrees and orders and the
enforcement thereof. Costs and fees." The article
which immediately follows treats solely of " appeals"
This arrangement of topics is in thorough harmony
with the view I have suggested, that sections 2558 and
2560 in the third article are intended to affect in no
manner the question of the surrogate's right to
["] award costs on appeal, but only to provide for
their insertion in a decree in cases where they
may be lawfully awarded.

The correctness of this view becomes very apparent
upon reference to section 2589, one of the sections of
article 4, which, as has been stated already, is devoted
solely to "appeals."

That section provides that the appellate court may
award to the successful party the costs of an appeal,
or may direct that costs shall abide the event of a new
trial, or of subsequent proceedings in the surrogate's
court. The section further declares that in either
case, the costs may be made payable out of the estate
or fund, or personally by the unsuccessful party, as
<Mrected by the appellate court, or, if such a direc-
tion is not given, as directed by the surrogate.

•This means, I take it, not that if an appellate court
fails to award appeal costs, the surrogate is at liberty
to award them, but that if an appellate court does
award costs, and gives no direction whether the
[ ] same shall be paid out of the estate or fund, or by
the unsuccessful party, the surrogate may exercise
his discretion in the particulars wherein the appellate
court has failed to exercise its own.

This construction of section 2589 is in strict liar-

64 CIVIL PROCEDURE REPORTS.

Stevens «. Webb.

mony with the interpretation I hare put upon section
2558, and both sections are thus made accordant with the
statures in force before the Code was enacted, and with
what must certainly be regarded as the most sensible
procedure for regulating the award of costs on appeal.
Application denied.

STEVENS, kt al., Respondents, v. WEBB,
Appellant.

N. Y. Court of Common Pleas, General Term,
January, 1883.

§531.

Bill of particular*. — Object of. — Not ordered wJtere party applying for,

know* tchat his adversary means to rely on. — Not ordered for the

purpose of disclosing evidence. — Instance of an action of eject-

ment in which one should not be ordered.

The object of a bill of particulars, whether required of the plaintiff or
of the defendant, is that the other party should not be taken by
surprise from the generality of the pleadings. ['] The effect of the
bill, therefore, is to restrict the proof and limit the recovery or
defense to what is stated in it unless the variance between it an^
the proof offered could not have misled the other. [*,*]

If a party fully knows what his adversary means to rely on for hia
cause of action or defense, he is not entitled to a bill of par-
ticulars. [»,•]

A bill of particulars is neither given or required for the purpose of
disclosing to an adverse party the case relied upon, nor the proof to
substantiate the same.[7,*l Its entire scope and nature is to furnish
information to an opponent and to the court, of the specific proposi-
tion for which the party contends. [9J

Where, in an action of ejectment, a bill of particulars was ordered of a
paragraph of the answer wherein the defendant alleged that more
than forty years prior to the commencement of the action, the

CIVIL PROCEDURE REPORTS. 65

Stevens *. Webb.

boundary or division lines between the lands of the plaintiffs'
ancestors and predecessors in title, and the land of the defendant's
remote grantors were by all the parties in interest practically located
and adjusted, and that for more than twenty years thereafter all
parties interested therein or affected thereby acquiesced in such
practical location, and it appeared from the affidavits on which the
order was granted that, in a former litigation in which a similar
defense was interposed in respect to property in the vicinity of that
involved in the present action, proof was offered by counsel for the
defendant in this suit of the existence of four distinct boundary
lines of the plaintiffs1 land, which it was contended had all been
practically located, and that the plaintiffs' counsel was of counsel
for the plaintiffs in such former litigation, — Held, on appeal from
the order requiring the bill of particulars, that, while there was no
doubt of the power of the court to order such a bill of particulars,
the plaintiffs' attorney, having knowledge of the particulars desired,
it should not have been ordered ;[',4] that the particulars sought are
matters of evidence, [*] and the order appealed from should bo
reversed. [10]

Higenlx>tham e. Green (25 Hun, 216), followed. [* J

{Decided March 15, 1888.)

Appeal from an order of the special term requiring
the defendant to furnish " a bill of particulars of the
matters averred in the sixth paragraph of his answer."

The action is ejectment, to recover possession of
certain real estate, situate at the south-westerly corner
of Fourth avenue and Seventy-eighth street in the city
of Ne%w York.

The complaint alleges that the plaintiffs are the
legal owners, and the defendant is wrongfully in pos-
session thereof.
* The answer admits the possession of the defendant,
but denies the plaintiffs9 title. It then avers as a third
affirmative defense (in the sixth paragraph): "That,
as he (the defendant) is informed and believes to be
true, more than twenty years, and more than forty
years , prior to the commencement of this action, the
boundary or division lines, between the lands of the
Yol. IV.— 5 —

66 CIVIL PROCEDURE REPORTS.

Stevens «. Webb.

plaintiffs' ancestors and predecessors in title, and the
lands of this defendant's remote grantors, the mayor,
aldermen, and commonalty of the city of New York,
were by all the parties in interest practically located
and adjusted, so as to exclude from the lands of the
ancestors and predecessors of the plaintiffs, and to
include within the lands of the mayor, aldermen, and
commonalty of the city of New York, all of the prem-
ises, which this action is brought to recover, and for
more than twenty years thereafter, all parties inter-
ested therein or affected thereby acquiesced in such
practical location, which has been never disturbed."

Further facts are stated in the opinion.

Franklin A. Paddock, and Francis L. Stetson
(Paddock & Cannon, attorneys), for appellant.

Though the court undoubtedly has power to order
a bill of particulars in such a case as the present, it is
a power which should be exercised only in its wise dis-
cretion, and rarely in such a case as this. Orvis t.
Dana, 1 Abb. N. C. 268 .... If the information is
in the possession of the party asking it, then it will be
plain that the application is stimulated by some motive
other than a desire for specific details. Wigand v.
Dejonge, 18 Hun, 405. . . . The office of a bill of par-
ticulars is to limit the generalty of the claim or defense,
and is not to furnish evidence for the opposite party.
Gee v. Chase Mfg. Co., 12 Hun, 630. Neither is it to
disclose to the opposite party the evidence upon which
the party from whom it is demanded expects to rely.
Strong v. Strong, 1 Abb. Pr. N. S. 238 ; Orvis v. Dana,
1 Abb. iV. C. 268-286. ... It rests in discretion, how-
ever, and in this case its exercise was not in the line of
wisdom. Higeabotham v. Green, 25 Hun, 214. The
power to order a bill of particulars should be prudently
employed, with the view to enable parties to prepare

CIVIL PROCEDURE REPORTS. 67]

Stevens «. Webb.

their pleadings or evidence for the trial of the real issues
involved in an action, and not to impose unnecessary
labor upon any party. Butler v. Mann, 4 Abb. N. C. 49,

Morris A. Tyng (T. M. Tyng> attorney), for res-
pondents.

The court at special term had undoubted power to
make the order appealed from. Code of Civil Pro. %
531. The court may in all cases order a bill of partic-
ulars of the claim of either party to be delivered to the
adverse party. Tilton v. Beecher, 59 if. T. 176. The
word claim in this section includes, in case of a defend-
ant, whatever is set up by him based upon facts alleged
as the reason why judgment should not go against him.
Dwight v. Germania Life Ins. Co., 84 IV. T. 493;
Orvis v. Dana, 1 Abb. N. C 268. . . .

The special term having discertion to make or refuse
to make the order appealed from, the only question
left on this appeal is, whether that discretion has been
so abused as to require the order to be reversed by the
general term. The question is not whether, as an orig-
inal application, this court would, in the exercise of
its discretion, grant the same order. Bryan v. Durrie,
6 Abb. N. C. 135, 139, citing with approval, 1 WaWs
Pr. 465.

The court does not encourage appeals upon mere
matters of discretion, and it will only interfere when
the discretion seems to have been abused, or in a plain
case of its unwise exercise. Morrison v. Agate, 20 Hun,
23,25. . . . Appeals from such orders " were designed
to redress wrongs arising from an erroneous, arbitrary,
or otherwise improper exercise of discretion." Matter
of Duff, 10 -AW. Pr.N. S. 416. . . . Inactions of eject-
ment it has always been the practice in this state to
give a bill of particulars at any time before trial. Vis-
cher v. Conant, 4 Cow. 396, [approved] Tilton v. Beech-
er, 59 JV. Y. 184.

'68 CIVIL PROCEDURE REPORTS.

Stevens «. Webb.

Daly, Ch. J. — There is no doubt as to the power of

the judge at special term to make such an order as
['] the one appealed from. (Dwight v. Germania life

Ins. Co., 84 N. Y. 493 ; Orvis v. Dana, 1 Abb. N.
C. 268 ; Til ton v. Beecher, 59 N. T. 176.) In fact, it
has been specifically held in an action of ejectment,
that a bill of particulars of the claim of the plaintiff or
of the defendant, in respect to the land, may be
ordered (Doe ex dem. Webb v. Hull, and Doe ex dem.
Saunders v. Duke of Newcastle, 7 T. M. 332, Note A).

The only question, therefore, on the appeal, is
whether, upon the facts disclosed by the affidavit, the
order should have been granted.

The object of the bill of particulars, whether

required of the plaintiff or of the defendant, is that
[■] the other party should not be taken by surprise

from the general ty of the pleadings, and come to
the trial unprepared as to the nature of the claim made
by the plaintiff, or the nature of the defense set up to
it; and the effect of the bill, therefore, is to restrict the
proof, and limit the recovery or defense to what is
stated in it, unless the variance between it and the
proof offered, could not have misled the other party
(Mc Nair v. Gilbert, 3 Wend. 346 ; Brown v. Williams, 7
Cow. 316 ; Bowman v. Earl, 3 Duer 691 ; Hurst v. Wat-
kins, 1 Campb. [Eng. N. P. i?.] 69 ; Graham's Practice
[Edition of 1836], 514-518). But if a party fully knows

what his adversary means to rely on for his cause
[*] of action or defense, he is not entitled to a bill of

particulars of it (Willis v. Wiley, 19 Johns. 268 ;
Wigand v. Dejonge, 18 Hun> 405), and this was the case
here. The affidavit upon which th^ order to show cause
was granted, was made by the plaintiff's attorney, in
which he stated that ip a former litigation, in which a
similar defense was, interposed in respect to the prop-
erty in the vicinity of that involved in this suit, proof
was offered by the counsel for the defendant in the

CIVIL PROCEDURE REPORTS. 69

Stevens «. Webb.

present suit, of the existence of four distinct existing
boundary lines of the plaintiffs' land ; that it was then
contended that they had all been practically located ;
that three of the plaintiffs' predecessors, at intervals of
many years, had located and adjusted them ; and that
the present counsel for the plaintiff in this action was
fully informed of the matters of defense for which he
now applies for the particulars, appears more fully in
the affidavits in opposition to the motion, in which it
is stated that in three previous trials, the questions and
facts presented by the defense in this action, had been
the subject of direct investigation ; that the plaintiffs'
attorney was counsel in those actions, and that it is
the belief of the defendant's counsel that thnre is not
and cannot be any evidence introduced on the trial of
the present action, other than that embraced in the
former actions, and of which he believes the defend-
ant's counsel is as fully informed as any living person.

The plaintiffs' attorney, upon this appeal, calls our
attention to the fact that this does not charge that the
plaintiffs know anything, but refers only to the knowl-
edge possessed by the plaintiff's attorney, a distinction
which, upon a motion of this nature, made by the
plaintiffs' attorney and upon his affidavit, we do not
appreciate.

The object of the motion is not to obtain information
in respect to what lines the defendant refers to in the
sixth paragraph of his answer, as having been prac-
tically located and adjusted as the boundary lines
between the lands of the plaintiffs' ancestors or pred-
ecessors and the lands of the corporation of the city of
New York, but as expressed in the moving affidavit,
to confine the defendant upon the trial to some one or
the other of these four lines, and compel him to declare
by whom he will claim on the ktrial that such a line
was located.

I see no reason why the defendant should be com-

TO CIVIL PROCEDURE REPORTS.

Stevens v. Webb.

pelled as expressed in the order to show cause, to
[4] state what lines and upon what position upon the

soil they are, or by what ancestor or predecessor he
expects to prove that such lines were so located or
adjusted, and at what time he claims or expects to
prove that they were so located and adjusted.

The plaintiff is fully apprised, through the knowl-
edge which he already has of the exact nature of the
defense which the defendant means to set up to this
action, it being the same as set up by him in former
actions, and I see no reason why he should be limited
to any one of the particular lines assumed by him to
have been adjusted and located.

The reason why the party is restricted in his proof

by being limited in his recovery or defense to what
[•] is stated in the bill of particulars, is because he has

the right to assume that his adeversary has set out
fully what he means to rely on for his cause of action
or defense, and he should not be allowed to mislead or
deceive the other party by setting up one thing and
proving another, or by giving a particular account of
the nature of this claim or defense and then proving
something different. Although the complaint or
answer contains all that is required in a pleading,, it
may be deficient in the neccessary information for the
other party's guidance, which information he is not
presumed to know ; but if he does know, why should

the other party be required to furnish him with
n particulars of which he is already fully apprised 1

While full information should be furnished of the
nature of the cause of action or of the nature of the
defense that is set up to it, the court must not, in the
case of a defendant, overlook what has been frequently
reiterated on applications of this kind for bills of par-
ticulars, that he is not bound to disclose the evidence

upon which he relies to establish his defense ; that
[*] it is sufficient if it clearly appears what the nature

' CIVIL PROCEDURE REPORTS. 71

Stevens*. Webb.

of his defense is, and if upon the statement made of it,
his adversary and the court can see, upon the trial, what
evidence is or is not relevant to prove it, it is enough.

As was said in the case of Higenbotham v. Green
(2o £Tuny 216), a bill of particulars " is neither
[•] given nor required for the purpose of disclosing to
an adverse party the case relied upon, nor the
proof to substantiate the same. Its entire scope and
nature, is to furnish information to an opponent and
to the court of the specific proposition for which tho
party contends."

The defense set up by the sixth paragraph of the
answer, is that more than forty years before the com-
mencement of the suit, the boundary or division lines
between the plaintiffs' ancestors and the corporation of
the City of New York, were by all the parties in inter-
est practically located and adjusted so as to exclude
from the lands of the said corporation the premises
which are described by metes and bounds in the twelfth
paragraph of the complaint, and are premises which
the defendant holds under claim of title from the said
corporation, and to recover which from the defendant,
the plaintiffs have brought this action of ejectment.
How the boundary or division lines were so located
as- to exclude the lands of the plaintiffs' ancestors
and include in the lands of the corporation of the
city of New York, the premises which the defendant
and his grantor have had possession of for more than
forty years under a claim of a title, is matter of
['] evidence. The defendant is not required to declare
to his adversary the evidence by which he expects
to prove the fact upon which he relies as his defense,
in addition to which, the plaintiff's attorney knows
fully what that evidence is ; and the reason which he
gives in his affidavit why the defendant should be
restricted, through the instrumentality of a bill of par-
ticulars, to some one or other of the four lines of which

72 CIVIL PROCEDURE REPORTS.

Stevens «. Webb.

the defendant gave proof in the preceding actions, is
that if the defendant is not so confined, it will require
an extensive preparation on the part of the plaintiffs
of a large amount of irrelevant testimony.

The inconvenience or trouble to which the plaintiff
may be put in proving his case, is no reason why the
defendant should be limited in his defense to proof of
the locating or adjusting of one line. For all that the
court can know, it may be very material upon a
question of boundaries, for the defendant, in establish-
ing his defense, to show the location of four lines.
The respondents suggest, that the order does not limit
the defendant to the proof of one line, or impose any
limitation ; that it is simply in general terms, that a
bill of particulars be furnished, of the matters averred
in the sixth paragraph.

Where an order, made upon a motion of this kind
is simply in general terms, that a bill of particulars be
furnished, it naturally will be interpreted in connection
with what was asked for in the order to show cause ; and
the party furnishing it would be expected to set forth
the specific information that has been applied for ; and
the defendant, upon complying with the order, would
be restricted to the particulars set forth by him in the
bill. But if such is not its effect — if it would not, as
the plaintiff expected and desired — limit the defendant
to one or other of the four lines, then there was no
object in granting it, as the plaintiff is already pos-
sessed of all the information that would be contained
iuit.

For these reasons, the order, in my opinion
['•] should be reversed, with costs to abide the event

Van Brunt and J. F. Tialy, JJ., concurred.

CIVIL PROCEDURE REPORTS 73

Dalton 0. Sandland.

DALTON, Appellant, v. SANDLAND.

DAVENPORT, as Exeoutoe, etc., Respondent.

City Court of Beookltn, General Term,
Mat, 1883.

§§755,757.

Continuing action. — When action did not abate by the death of the

defendant, both parties have an absolute right to a continuance. —

The presenting of a claim to an executor and agreeing to refer it,

without naming a referee, does not bar the continuance

against such executor of an action on said claim begun

against his decedent before his death.

Where the defendant, in an action to recover $1,000 on two promissory
notes made by him, died, and the plaintiff in the action thereafter
presented his claim on such notes to his executor and signed a
consent to refer it, in which no referee was named, and which was
not approved by the surrogate, — Held, on a motion by plaintiff to
continue the action against the executor, that the action did not
abate by the death of the executor, and both parties had an absolute
right to a continuance; that the presentation of the claim and
consent to refer did not amount to the commencement of another
action; that it was necessary that the parties agree on a referee to be
approved by the surrogate ; that if no suit had been pending at the
time of the death of the defendant would have had a right to bring
an action against the executor for the claim, notwithstanding the
presentation of the claim and agreement to refer, no referee having
been agreed upon, and that such presentation of the claim and
agreement to refer would not bar the continuance of an action
which has not abated.

(Decided September 9, 1888.)

Appeal from order of special term denying motion
to revive and continue action against the executor of
the defendant, deceased.

This action was brought by the 'plaintiff to recover
$1000 due on two promissory notes, made by the

74 CIVIL PROCEDURE REPORTS.

Dalton «. Saodland.

defendant and indorsed to the plaintiff. The summons
and complaint were served on April 26, 1882, and the
defendant having failed to appear or answer, judgment
was entered against her on May 23, 1862, for the
amount claimed, with interest and costs. After the
service of the summons and complaint, and before the
entry of judgment, the defendant died. She left a will
whereby she nominated John S. Davenport executor.
The will was thereafter, and in October 1882, admitted
to probate by the surrogate of Kings county, and let-
ters testamentary were issued thereon. In view of
those facts a motion was made at special term, on
behalf of the plaintiff, for an order vacating the judg-
ment so taken by default, and for leave to revive or
continue the action against the executor of the deceased
defendant.

On the motion, the executor's counsel proved by
affidavits, that the plaintiff and the executor had signed
a written consent to refer the claims which were the
subject of the action to a referee, under the statute.
It appeared, however, that no referee had been agreed
upon by them, or approved by the surrogate. The
executor's counsel claimed, that the plaintiff, by con-
senting to the reference under the statute, had waived
his right to have the action revived and continued
against the defendant's executor. The special term
(Reynolds, J.) took that view, and made an order
vacating the judgment above referred to, discontinuing
the action, and denying plaintiff's motion to revive and
continue.

This appeal was taken from so much of that order
as discontinued the action and denied the motion to
revive.

Morris A Pearsctfl, for the appellant.

The plaintiff was and is entitled as a matter of abso-
lute right, on the death of defendant, on the motion
made, to an order reviving and continuing this action

CIVIL PROCEDURE REPORTS. 75

Dalton v. Sand land.

against defendant's executor. Code Civ. Pro. § 757 ;
Coit v. Campbell, 82 N. T. 509. . . . The plaintiff
could not be divested of that right to revive and con-
tinue the action, by presenting his claim to the execu-
tor of defendant, and consenting to refer under the
statute. Code Civ. Pro. § 755. . . . The presentment
of the claim to the defendant's executor, and the con-
sent to refer . . . could not even amount to a defease,
for, in the first place, proceedings under the statute
were not thereby instituted (Comstock v. Olmstead, 6
How. Pr. 77), and in the second place, if such proceed-
ings had been instituted by order of reference, it could
not affect this action, as the defense of another action
pending can only be set up as to the pendency of prior
actions or proceedings. Hadden v. St. Louis, &c. R. R.
Co., 57 Bow. Pr. 390 ; Porter v. Kingsbury, 77 N. Y.
164 ; Burlingame v. Parce, 12 Hun, 149.

Felix Jellenikj for respondent.

Clement, J. — This action did not abate by the death
of the defendant,* and both parties had an absolute
right to a continuance. (Code Civ. Pro. §§ 755, 757.)
The presentation of the claim, and the consent to refer,
did not amount to the commencement of another
action. It was necessary that the parties agree on a
referee t to be approved by the surrogate.^ If no suit

♦See Concord Granite Co. t>. French, 8 N. T. Cin. Pro. 56, 445.

1 2 R. 8. 89, S 30, as amended by Laws <?/1859, Ch. 216 8; R. 8.
(Banks' 7 ed.) 2299, § 86. See also Gorman e. Ripley, 16 How. Pr.
814 ; Estate of Jackson, N. T. Daily Beg., April 20, 1888.

\ The agreement to refer mast be approved by the surrogate and
filed with his approval in the office of the clerk of the supreme court,
in the county where either of the parties reside, and an order referring
the claim to the parties agreed upon, entered by such clerk. 2 R. 8.
89, § 86, as amended by Laws of 1859, ch. 261 ; 8 R. 8. (Banks' 7 ed.)
2299, f 86 ; Comstock t>. Olmstead, 6 Roto. Pr. 77 ; Robert e. Ditman,
7 Wend. 522.

76 CIVIL PROCEDURE REPORTS.

McNarmara v. Harris.

had been pending at the time of the death of the
defendant, plaintiff would have a right to bring an
action against the executor for the claim, notwith-
standing the presentation of the claim and an agree-
ment to refer, no referee having been agreed upon.
If a new action would lie, certainly the acts claimed to
have been a waiver, would not bar the continuance of
an action which had not abated.

The order appealed from should be reversed with
ten dollars costs and disbursments, and the motion
granted without costs. '

MoCue, J., concurred.

MoNAMARA v. HARRIS.

City Court of New York, Special Term,
August, 1883.

§§ 756, 3268.

Continuing action. — In case of transfer of interest, an action may be

continued by the original party. — The granting of an order

substituting the person to whom the interest was transferred in

place of the original party ; is in the discretion of the court.

— Such an order should not be granted where the

practical effect would be to defeat the legal

consequences of an order requiring security

for costs to be given.

In case of a transfer of interest, after the commencement of an action,
the original party may continue the action unless the court directs
that the person to whom the interest is transferred be substituted in
the action. An order directing such substitution is usually granted,
but it is discretionary, and the court may withhold it if there are any
reasons why it should not be made.'

Where a non-resident plaintiff sold and transferred a note upon which .

CIVIL PROCEDURE REPORTS.

McNamara v. Harris.

the action was brought to one who was a resident, after a potion
that he be required to give security for costs was noticed,
and three days before it was granted, — Hdd, that a motion to
substitute the transferee in the place of the original plaintiff should
be denied ; that the assignment was subject to the then pending
application for security for costs, and the order requiring it could
not be defeated nor impaired by such transfer;111 that the practical
effect of granting the application to substitute the transferee as
plaintiff, would be to defeat the legal consequences of the order for
security for costs, and that could not be done.
[Decided Augvst 8, 1883.]

Motion by one Mitchell, to whom plaintiff had
transferred his cause of action, to be substituted in his
place.

The action was brought to recover upon a promis-
sory note. The defendant noticed a motion for an order
that the plaintiff be required to give security for costs
on the ground that he was a non-resident of the city
and county of New York. Subsequently and three
days before the order requiring the plaintiff to give
securities for costs was granted, he sold and transferred
the note in suit to one Mitchell, a resident of the city,
who thereafter made this motion.

Norris & Beach, for the motion.

F. 0. Swain, opposed.

McAdam, J.— The Code (§ 756) provides that,
" In case of a transfer of interest .... the action may
be continued by ... . the original party ; unless the
court directs the person to whom the interest is trans-
ferred .... to be substituted in the action." The
order is a discretionary one usually granted, but which
the court may withhold if there are any reasons why it

* See Note on Security for Costs, post, p. 82.

78 CIVIL PROCEDURE REPORTS.

McNamara «. Harris.

should not be made. When Mitchell purchased the
note it was in suit. An application was pending to
require security for costs from the plaintiff in the action.
The application for security was granted three days
after the transfer was made. The assignment was
therefore subject to the then pending application, which
was subsequently granted, and the order made requir-
ing security for costs cannot be defeated nor impaired
by such a transfer. The practical effect of granting
the present application, would be to defeat the legal
consequences of that order, and this cannot be done.
It follows that the application to substitute Mitchell in
the place of the non-resident plaintiff must be denied.
Mitchell may prosecute the present action by giving the
security already required to be filed, or he may discon-
tinue the action upon payment of the costs already
incurred, and commence a new action in his own name.
This course will not disturb any of the proceedings
already had, and secures to the several parties their
respective rights under the various provisions of the
Code.

CIVIL PROCEDURE REPORTS. 79

Bostwick «. Fifleld.

BOSTWICK v. FIFIEJJ).

N. Y. Court of Common Pleas, Special Term,
May, 1882.

§§3268, subd. 1, 3343, subd. 1.

Security for costs. — The New York court of common pleas belongs to the

close denominated "superior city courts." —It is a county court for

certain purposes, but not within the meaning of section 8208

of the Code of Civil Procedure. — A plaintiff* cannot

be required to give security for costs in the New

York court of common pleas, because he is a

non-resident of the county.

The county court referred to in section 8268 of the Code of Civil
Procedure, which provides for the giving of security for costs, does
not mean the court of common pleas for the city and county of
New York which belongs, under the Code, to the class denominated
" superior city courts," and is a county court for certain purposes.
The county court meant in section 8268 is the " county court in each
county, except New York."

The plaintiff, in an action in the New York court of common pleas
who resides without the county of New York but within the state,
cannot be required to file security for costs under the first subdi-
vision of section 8268 of the Code of Civil Procedure.

Motion by defendant for an order requiring the
plaintiff to give security for costs.

The plaintiff at the time of the commencement of
the action, and at the time of the making of the motion,
resided in Brooklyn, Kings county. The defendant
claimed that the plaintiff, not being a resident of the
county of New York, should give security for costs,
under subdivision one of section 3268 of the Code of
Civil Procedure.

CIVIL PROCEDURE REPORTS.

Ryan t>. Potter.

William H. Tillon, for the motion.
Ilarman B. Whitbeck^ opposed.

Daly, Ch. J. — This motion is to compel the plaint-
iff, who resides in Brooklyn, to file a security for costs,
under section 3268 of the Code. It must be denied.

The county court referred to in that section does
not mean this court, which belongs, under the Code, to
the class denominated "superior city courts" (§ 3343
subd. 1), and the county court meant in section 3268
is, in the language of the Code, the "county court in
each county except New York.' (§ 2, subds. 6 and 13.)

This court is a county court for certain purposes,
but is not the county court referred to in section 3268.

RYAN, as Administrator, etc., v. POTTER.

N. Y. Superior Court, Special Term, June, 1882.

§§3268, 3271.

Security for costs. — In a ease within section 8268 of the Code, defendant's

right to, is absolute, unless lost by laches. — Under section 827 1 the

court may, in its discretion, require plaintiff to give security

for costs. — Not required in action by administrator, simply

because the only asset of the estate is the claim in suit.

A defendant has an absolute right to require the plaintiff to give
security for costs, in a case within section 8268 of the Code of Civil
Procedure, unless he has lost such right by his own laches. Under
section 8271 of the .Code of Civil Procedure the court may, in its
discretion, require the plaintiff to give security for costs.

CIVIL PROCEDURE REPORTS. 81

Ryan 9. Potter.

Motion by defendant that the plaintiff be required
to give security for costs.

The plaintiff brought this action as administrator of
one Ryan to recover $6,000 damages for the alleged neg-
ligence of the defendant in and about the construction,
care and management of a certain building in the city
of New York owned by him, whereby it took fir$ and
was destroyed, by which fire the plaintiff's intestate's
death was caused.

It appeared that the deceased left no property of any
kind, and that the only asset of the estate was the
claim in suit. There was, however, nothing to show
bad faith on the part of the plaintiff in bringing or
prosecuting the action.

Tavmsendj Dyett, & Einstein, for the motion.

Charles A. Hess, opposed.

Truax, J.— In a case within section 8268 of the
Code of Civil Procedure, the defendant has an absolute
right to require the plaintiff to give security for costs,
unless such right has been lost by the defendant'*
laches ; but under section 8271, the court may, in its
discretion, require the plaintiff to give such security.
If an action is brought and prosecuted in good faith by
an administrator, the court should not require him to
file security for costs, simply because he is the admin*
istrator of an estate that has no funds except the
claim in litigation. See Healy 0. Twenty-third Street
R. R. Co., 1 N. T. Civ. Pro. 15 ; and cases there
cited.

Motion denied with $10 costs to abide the
event.

Tol. iv.-o

CIVIL PROCEDURE REPORTS.

Note on Security for Costs.

NOTE ON SECURITY FOR COSTS.

When right to require security absolute. — Laches. — Who must give. —
The application and order. — The security.— Excepting to and justi-
fication of sureties.— Additional security. — Effect of failure
to give security when ordered. — Liability of attorney.

The provisions of the Code of Civil Procedure (§{ 8268,
this subject are founded upon the Revised Statutes (2 R. S. 620, 621) ;
section 817 of the Code of Procedure, and chapter 805 of the Laws of
1875, and, therefore, many of the decisions under the former statutes
are applicable to the Code. Where the provisions of the present Code
and those of the statutes it takes the place of, are similar, decisions
under both are cited. Where they differ substantially, those cases
only which were decided under the Code are referred to.

When right to require, absolute: when discretionary: laches.
In the cases mentioned in sections 3268 and 8269 of the Code of
Civil Procedure, the defendant may require security for costs as a
matter of absolute right. K Y. Com. Pleas, 8. T.Feb. 1881, Healy
•. Twenty-third St. Ry. Co., 1 K Y. Civ. Pro. 15; K Y. Mar. S. T.,
May, 1882, Kleinpcter v. Enell, 2 Id. 21; Sup. (2 Dept.) Q. T., Jan,
1883, Buckley v. Gutta Percha & Rubber Mfg. Co., 3 Id. 428; Ni F.
Super. 8. T., June, 1882; Ryan v. Potter, ante, p. 80.

When, in one of those cases, the defendant requires security for
costs, the court has no discretion, but it or a judge thereof must make
an order requiring the plaintiff to give security. Code, § 3272 ; K Y.
Super. S. T., Jan. 1881, Meredith c. Forty-second St. and Grand St
R. R. Co., IKY. Civ. Pro. 15, note; Sup. (2 Dept.) G. T., Jan.
1888, Buckley v. Gutta Percha & Rubber Mfg. Co., 3 Id. 428. But
whenever the application therefor has been unusually delayed the
granting of it rests in the sound discretion of the judge or court Fearn
.*. Gelpcke, 13 Abb. Pr. 478; Boucher «. Pia, 14 Id. 1.

The defendant's right to require security for costs may be lost by
laches. If. Y. Com. Pleas, 8. T. Feb. 1881, Healy v. Twenty-third
flt Ry. Co., 1 K Y. Civ. Pro. 15; K Y. Super. S. T., Feb. 1888,
Boylan e. Mathews, 3 Id. 88; Webber e. Moog, 12 Abb. K C. 108 ;
Bhuttleworth v Dunlop, 25 Alb. L. J. 8.

The provisions of section 8268 of the Code, are intended solely for
the benefit of the defendant, and his neglect to promptly avail himself
of such benefit would be construed as a waiver. Sup. (2 Dept) O. T.,
Jan. 1883, Buckley e. Gutta Percha & Rubber Mfg. Co., 3 K Y. Civ.
Pro. 428; Wicet>. Commercial Fire Ins. Co., 2 Abb. 2f. C. 825 ; and

CIVIL PROCEDURE REPORTS.

Note od Security for Costs.

see as to waiver of benefit not conferred for common good of parties,
cases cited in note, 1 If. Y. Civ. Pro. 17.

The defendant has been held to have lost his right to require secur-
ity for costs where, before moving therefor he had answered (May «.
Power, 2 Edw. 294; Webber e. Moog, 12 Abb. K C. 108); appeared and
obtained an extension of his time to answer, stipulated to accept short
notice of trial, and answered (Buckley c. Gutta Percha & Rubber
Mfg. Co., supra) \ where he had examined the plaintiff before trial,
and the case had been called on the calendar and marked ready for
trial (Boy Ian v. Mathews, supra) ; where he did not demand it, until
seven months after issue joined on the day fixed for trial (Robinson e.
Sinclair, 1 Denio, 628) ; where he waited two years with knowledge of
plaintiffs non-residence (Weil v. Freund, 2 Law fiul. 48) ; where the
cause had been several times noticed for trial (Swan v. Mathews, 8 Duorf
618) ; where he had waited with knowledge of plain tuTs non-residence, for
nearly a year, and the cause had been noticed for trial (Lewis v. Farrel, 46
Super. [14 /. AS.] 858); where it had been referred, and noticed for
hearing (Florence v. Buckley, 1 Duer, 705; S. C, 12 K Y. Leg. Obs.
28) ; where he did not move until after a verdict had been rendered in
his favor (Jackson u. Bushnell, 18 Johns. 880) ; where an interlocu-
tory judgment had been entered (10 How. Pr. 813) ; where judgment
had been rendered against him (Gardner «. Kelly, 2 Sand/. 682;
Merchants' Bank *. Mills, 8 R D. Smith, 210; Wice v. Com. Ins. Co.,
7 Daly, 258) ; where there had been unreasonable delay in moving, and
the plaintiff's attorney was unable to communicate with the plaintiff by
reason of an insurrection (Fearn «. Gelpcke, 18 Abb. Pr. 478).

In Burgess v. Gregory (1 Edw. 449); Abbott e. Smith (8 How. Pr.
468) ; Butler v. Wood (10 Id. 813), it was held that security for costs
might be required, at any time before judgment ; and in Gedney «.
Purdy (47 If. Y. 676), that it might be required at any time during
the pendency of the action, either before trial or pending an appeal.
In Steam Navigation Co. t>. Weed (8 How. Pr. 49); Renney e.
Stringer (4 Bosw. 668); Northrop t>. Wright (1 How. Pr. 146), it was
held that security for costs might be ordered after the decision of an
appeal, on which a new trial was ordered. In People v. Oneida Com-
mon Pleas (18 Wend. 652), it was held that delay in taking steps on
the part of the defendant, with knowledge, was not in this State any
reason for refusing to require the plaintiff or relator, who removes from
the State to give security for costs, but in Goodrich c. Pendelton (8
Johns. Ch. 520), it was held that where the non-residence of the plain-
tiff appears on the bill, if the defendant takes any step in the cause he
waives security for costs; and in Long*. Majestic (1 Johns. Oh. 202),
it was held that if the fact does not appear, the defendant must then

84 CIVIL PROCEDURE REPORTS.

Note on Security for Costs.

apply as soon as the fact comes to his knowledge, in any stage of the
suit.

Where the defendant ascertained at the trial of the cause, that the
plaintiff was a non-resident, and he moved for security for costs on the
third day thereafter, Held, that laches could not be imputed to him.
Boucher «. Pia, 14 Abb. Pr. 1.

Appearing in the suit, opposing the appointment of a receiver, and
demurring to the bill, were held in Mic^lethwait «. Rhodes (4 Sandf.
Ch. 484), not to preclude a defendant from applying for security fox
posts.

Although a defendant has waived his right to require security for
costs, the court still has the power to require it. Hayes e. Second
Ave. R R. Co., here reported.

HAYES, an Infant, bt Hates, his guardian ad litem, e. THE

SECOND AVENUE RAILROAD COMPANY.

N. Y. Superior Court, Special Term, Chambers, October, 1888.

S 8268.
Security for eoete—When absolute right to, forfeited by laches court
may $Ull require.
Where a defendant has forfeited his right to require security for costs
under section 8268 of the Code of Civil Procedure, the court in its
discretion still has the power to order the plaintiff to give it
(Decided October 10, 1883.)

Motion by defendant for an order that the plaintiff, an infant suing
by his guardian ad litem, give security for costs.

The action was commenced June 19, 1888, and issue joined
August 18, 1888. The notice of motion was dated August 25, 1888,
but was not served until September 24, 1883. From affidavits used
en the motion it appeared that one of the defendant's attorneys who
had special charge of the defense was absent from the city on his vaca-
tion from shortly after the action was commenced until August 21.
Further facts are stated in the opinion.
Eutchine & Piatt, for the motion.
Hugh Coleman, opposed.

0* Gorman, J. — There are circumstances in this case which go far
to excuse the defendant's delay in moving for security for costs, viz., the
absence of the attorney having special charge of the defense on vacation ;
the pendency of a negotiation for settlement of the action, with the under-
standing—claimed by the defendant's attorneys to exist — that during
said negotiation no steps to obtain security should be made. Even if
the strict right to security under section 8268 ef the Code has been

CIVIL PROCEDURE REPORTS. 85

Note on Security for Costs.

forfeited by laches, the court in its discretion has still the power to
require security.

Motion granted, without costs.

Under section 3271 of the Code of Civil Procedure, the court may
in discretion, require the plaintiff to give security for costs in an action
by or against an executor or administrator in his representative capac-
ity, or the trustee of an express trust, or a person expressly authorised
by statute to sue or be sued, or by an official assignee, the assignee of a
receiver, or the committee of a person judicially declared to be inconv*
petent to manage his affairs.

The exercise of this power is in the discretion of the court.
Healy e. Twenty-third St. Ry. Co., IKY. Cit>. Pro. 15; Ryan e.
Potter, ante, 81. The power is discretionary in the fullest sense of
the term. Darby v. Condit, 1 Duer, 599 ; Shepherd e. Burt, 8 Id. 645.

Who must give, tad when. Security for cost can be required
only in courts of record. Code Civ. Pro. §§ 8268, 8269; Southworth
«. Straight, 4 N. Y. Leg. Ob*. 19; Westervelte. Gregg, 1 Barb. Gh. 469 ;
Mellen v. Hutchins, 58 How. Pr. 849. A justice of the peace has no
authority to order it. lb.

The provisions of the Code relating to security for costs "apply to a
special proceeding instituted in a court of record in like manner as to
an action ; for which purpose the prosecuting party other than the
people, or, where the special proceeding is instituted in the name of
the people upon the relation of a private corporation or individual, the
relator, is deemed a plaintiff, and the adverse party a defendant'9
Code, § 8279. Security for costs cannot be required in summary pro-
ceedings to recover real property. They are brought before an officer,
and are not in a court of record. Hasler e. Johnston, 59 Ho*. Pr. 482.
Security may be required in an action for tort as well as in an action on
contract Keller v. Townsend, 2 Abb. K C. 482.

Before the Code of Civil Procedure it was held that' where it
appears that the defendant cannot have costs in the action, a motion
for security for costs should be denied. Abbott «. Smith, 8 How. Pr»
468 ; Butler e. Wood, 10 Id. 818.

It is not necessary to make a case within the words of the statute,
for the power to require security for costs is inherent in the court.
Swift v. Collins, 1 Denio, 659 ; People v. Oneida Common Pleas, 18
Wend. 652 ; Dyer v. Dunevan, 8 How. Pr. 185.

The giving of the undertaking required on replevying a chattel
(Code, { 1699) in an action to recover a chattel is not sufficient security
for costs in a case in which the defendant is entitled to it, and the
plaintiff may, notwithstanding, be required to give security for costs.
Rogers v. Hitchcock, 9 Wend. 462; Gelch e. Barnaby, 1 Bono. 657;

86 CIVIL PROCEDURE REPORTS.

Note on Security for Costs.

8. C, 7 Abb. Pr. 19 ; Boucher «. Pis, 14 Id. 1. See also Hodges
e. Porter, 19 How. Pr. 244. Contra, Wisconsin Marine k Fire Ins.
Co. 9. Hobbs, 22 How. Pr. 494 ; Dopy t. Brown, 1 £**. Pr. 245.

The undertaking given on procuring an injunction does not affect
defendant's right to security for costs. McCall v. Frith, 2 H. Y. Civ.
Pro. 9.

Security should not be required where the plaintiff has already
filed an undertaking to pay all costs which may be awarded to the
defendant in case he recovers judgment H. T. Com.- Plea* Sp. T.%
1671, Woodward v. Stearns, 11 Abb. Pr. N. S. 445.

After being ordered to file security for costs a plaintiff will not be
permitted to prosecute in forma pauperis Florence v. Bulkley, 1 Duer,
706 ; Brown e. Story, 1 Paige, 588 ; Kleinpeter v. Enell, 2 K Y. Civ.
Pro. 21 ; Christian v. Gouge, 3 H. Y. Law Bui. 42 ; S. C, 10 Abb. K
O. 82 ; Anonymous, Id. 80.

Where the practical effect of an order continuing an action in the
name of a transferee of the original plaintiff will be to defeat an order
requiring security for costs, it should not be granted. McNamara v.
Harris, 4 N. Y. Civ. Pro. 76.

Undeb sections 3268, 3269. In a case specified in either of these
sections, "if there are two or more plaintiffs, the defendant cannot
require security for costs to be given, unless he is entitled to require it
of all the plaintiffs.1' Code, f 3270.

Sections 3268 and 3269 of the Code do not apply to marine causes
brought as prescribed in sections 3177 to 8187, inclusive, of the Code of
Civil Procedure, in the City Court of New York, nor to actions in said
court, wherein the time named in the summons within which the
defendant must answer the complaint has been shortened on proof by
affidavit u that either the plaintiff or the defendant resides without the
city of New York ;" or where there are two or more plaintiffs or two or
more defendants, that all the "plaintiffs or all the defendants resides
without that city," and an undertaking has been given "that the plaint-
iff will pay any judgment which may be rendered against him in the
action not exceeding a sum specified in the undertaking, which must
be at least two hundred dollars.'* Code Civ. Pro. §§ 8160, 3195.

Non-reiidenti. A plaintiff who, at the time the action was com-
menced, resided without the State, or if the action is brought in a
county court or in the city court of New York formerly known as the
marine court of the city of New York, the city court of Yonkers, or the
justice court of the city of Albany, residing without the city or county,
as the case may be, wherein the court is located (Code, f 8298, subd. 1),
also a plaintiff who after the action is commenced ceases to be a resident
of the 8tate, or, if the action is brought in one of the local courts men-

CIVIL PROCEDURE REPORTS.. 87

Note on Security for Costs.

tinned, who ceases to be a resident of the city or county as the case may
be, wherein the court is located (Code, §3268, subd. 1) maybe required
by the defendant to give security for costs.

Residence has been defined as a place of abode or dwelling-place at
distinguished from a mere temporary locality of existence. Roosevelt
e. Kellogg, 20 Johns. 208 ; and see Frost e. Brisbin, 19 Wend. 11 ; Matter
of Wrigley, 8 Id. 134. A man's legal residence is his place of fixed
habitation, where his political rights are exercised and where he is liable
to taxation. Crawford e. Wilson, 4 Barb. 506; Houghton v. Ault, 16
How. Pr. 77 ; and see Frost e. Brisbin, 19 Wend. 11 ; Matter of Hall, 2
F. Y. Leg. Ob*. 139. Ordinarily one's residence and domicil are the same
(Chainc t>. Wilson, 1 Bone. 675); but domicil means something more
than residence; it includes residence with an intention to remain in a
particular place. Isham e. Gibbons, 1 Bradf. 69 ; Haggart v. Morgan,
5 K Y. 422; Matter of Thompson, 1 Wend. 48; Frost v. Brisbin, 19 Id.
11 ; Hegeman v. Fox, 31 Barb. 475. See also Chaine v. Wilson 8 Abb.
Pr. 78; S. C, 1 Bosw. 675 ; Matter of Roberts, 8 Paige, 519.

No man can have two places of domicil for one and the same pur-
pose at the same time (Abington t. North Bridgewater, 23 Pick. 170 ;
McDaniel t>. King, 5 Cu$h. 469) ; but his domicil may be in one State and
his actual residence in another. Frost v. Brisbin, 19 Wend. 11. And
see Pooler v. Maples, 1 Id. 65; Bartlett v. City of N. Y., 5 Sandy. 44.
The actual residence is not always the legal residence or inhabitancy of
a man. Crawford v. Wilson, 4 Barb. 504. And see Douglas e.
Mayor, 2 Buer, 110.

Where one has his home, as that term is ordinarily used and under-
stood among men, and he habitually resorts to that place for comfort
and rest, relaxation from the cares of business and restoration to health,
and there abides in the intervals when business does not call ; that is
his residence, both in the common and legal meaning of the term.
Chaine v. Wilson, 1 Bom. 675 ; S. C, 8 Abb. Pr. 78 ; 16 How. Pr. 652.

A man's residence is that place where his family dwells, or which
he makes the chief seat of hia affairs and interests. J¥. Y. C. P. 8p.
T. 1866, Matter of Hawley, 1 Daly, 581.

One does not become a resident of a place by coming thither from
his home daily and there conducting business. Burroughs e. Bloomer,
5 Denio, 532 ; Barry v. Bockover, 6 Abb. Pr. 874; Greaton v. Morgan, 8
Id. 64 ; Houghton v. Ault, 16 How. Pr. 77 ; Bache v. Lawrence, 17
Id. 554 ; Lee v. Stanley, 9 Id. 272 ; Chaine v. Wilson, supra. Contra,
see Touncr v. Church, 2 Abb. Pr. 299. But it has been held that long
continued absence from the State on business made a person a non-
resident Haggart e. Morgan, 4 Sandf. 198 ; affirmed, 5 N. Y. 422;

CIVIL PROCEDURE REPORTS.

Note <»n Security for Costa.

(Jrawf ord «. Wilson 4 Barb. 504 ; Wright •. Black, 9 Wend. 958 ;
Barrill «. Jewett, 3 RobL 701; Matter of Thompson, 1 Wend. 43.

There is no fixed rule as to what length of absence on business will
constitute one a non-resident (see cases last above cited); it must be
in a measure permanent {In re Thompson, 1 Wend, 43; Frost v. Bris-
bin, 19 Id. 11; Burrill v. Jewett, supra), and its permanence does not
depend solely upon past duration but the probability of a future con-
tinuance growing out of the object of the absence. Burrill e. Jewett,
eupra. One piece of business does not seem to be sufficient (Matter of
Fitzgerald, 9 Cat. 818; Bosrdman «. House, 18 Wend. 519 ; Crawford
e. Wilson, 4 Barb. 504; Hurlbut t. Seeley, 11 Sao. Pr. 507; 8. C., 9
Abb. Pr. 138; Burrill ▼. Jewett, eupra), unless it is long continued.
Haggart v. Morgan, tupra, Burrill e. Jewett, eupra.

In Crawford e. Wilson (4 Barb. 504), it was held that a person
leaving his place of fixed habitation and remaining in another place for
a certain definite period and for a particular purpose, — e. a., under an
engagement to teach school for four months,— does not lose his legal
residence in such place of abode.

Where one C. came to New York city to reside, October 18, and
did not subsequently leave it, and had previously hired a house and paid
rent in advance for it, and his family moved 4o the city on October 95,
it was Held, that he was a resident of this State on October 91. Matter
of Crawford, 3 K Y. Leg. Ob*. 76.

In Roberti e. Methodist Book Concern (N. Y. Com. Pleas, 1859, 1
Daly, 8), a plaintiff, who had been absent from the State for more than
two years on business, but whose wife and minor child continued to
reside here, was not a non-resident in such sense that the court would
compel him to file security for costs.

In Frost t>. Brisbin (19 Wend. 11) a citizen of this State abandoned
his residence here and commenced an actual and permanent residence
in another State. Subsequently, he resolved to break up his business
there as soon as he conveniently could, and meanwhile he returned
temporarily to his former place of residence in this State. Held, that
he was not a resident of the State within the act to abolish imprison-
ment for debt.

Where one formerly a resident of this State has abandoned his res-
idence in another State and returned with his family to this State, but
has not determined whether he will take up his residence here or else-
where, he is not a resident of this State. He cannot be said to have
any residence. Burrows v. Miller, 4 How. Pr. 849. See also, Matter of
Fitzgerald, 9 Cai. 818.

An immigrant who has left forever his native land and lives her*

CIVIL PROCEDURE REPORTS. 89

Note on Security for Costs.

without determination to reside elsewhere was held in Heidelbach e.
Schland (10 Bow. Pr. 477), to be a resident

The tact that one was impelled to remove from one place to another
by reason of his health requiring another climate does not preclude the
removal from amounting to a change of domicil. If he left his former
home with the intent of residing elsewhere it matters not what his
inducements were. Hegeman x>. Fox, 1 Bedf. 298; affirmed, 14 Barb.
475. But see Isham v. Gibbons, Id. 69.

Where a plaintiff's business was of a somewhat transient nature, con*
sisting of the introduction into ships, hospitals, Ac., of a patent autom-
atic ventilator, and for two years he had no abiding-place in this State,
and did not have any property interests or place of business here, and
his wife had traveled with him, and they had lived in Baltimore, Md.,
and Washington, D. <?•> and Chelsea, Mass., — Held, that he was a non-
resident of the State within meaning of the statute requiring security
for costs; that his mere assertion of his continued residence in the city
of New York, and of an intention to retain such residence, did not
continue his residence; that his intention must be gathered from his
acts considered with reference to his habits and occupations. Norton
e. Bennett, 23 Hun, 604.

Where a plaintiff actually resident here was carried involuntarily to
another State from which he was a fugitive, it was held that his removal
changed his residence, and he might be required to give security for
costs. K T. Super. GL 1841, Long «. Hall, 8 Sandf. 729; S. C, 1 Cods
B. N. 8. 114.

In the case of a mariner the question of residence is one of intention
to be gathered from his acts and declarations. Matter of Hale, 2 K
T. Leg. Obe. 189. See also Sherwood v. Judd, 8 Brady. 267 ; Matter of
Scott, 1 Daly, 584.

Enlistment and absence from the State in the volunteer army of the
United States does not render one a non-resident Tibbitts «. Town-
send, 15 Abb. Pr. 221.

It is not enough, to effect a change of residence, that one intends to
change and believes he has done what in law amounts to a change. The
intent and fact must concur. Chaine v. Wilson, 8 Abb. Pr. 78. See
also Frost e. Brisbin, 19 Wend. 11.

The fact that a non-resident plaintiff does not intend to continue
permanently a non-resident does not relieve him from giving security
for costs, Gelch e. Barnaby, 1 Bono. 657; 8. C, 7 Abb. Pr. 19. And
see Gilbert v. Gilbert, 2 Paige, 608.

After an order overruling the demurrer with leave to answer on pay-
meat of costs, the defendant while m default of the payment is not
entitled to security for costs from the plaintiff; if the plaintiff becomes

90 CIVIL PROCEDURE REPORTS.

Note on Security for Costs.

a non-resident Supreme 01, Sp. T. 1864, Butler v. Wood, 10 How. Pr.
818.

When the plaintiff pending an appeal by defendant from a judg-
ment recovered against him removes from the State he cannot while the
judgment stands unreversed be compelled to file security for costs.
Flint v. Van Deusen, 24 Hun, 440. See also Kanouse*. Martin, 8 Bern.
Pr. 24; Johnson *. Yeomans, 8 Id. 140 ; Frary e. Dakin, 8 John*. 858.

After suit brought a resident cannot be compelled to give security
for costs until after an actual removal from the State; a contemplated
removal is not enough. Morten v. Domestic Tel. Co., 1 Abb. N. C. 270.

A plaintiff who is a non-resident at the time of commencing his
action, is not excused from filing security for costs, by the fact that he
afterwards became a resident Supreme Ct., Sp. T. 1850, Ambler v.
Ambler, 8 Abb. Pr. 840.

Alien residents are not required to give security for costs unless
such residence is shown to be merely temporary. Norton v. Mackie, 8
Sun, 520.

A non-resident plaintiff cannot be required to give security for costs
where there are also resident plaintiffs, although such resident plaintiffs
are insolvent. Ten Broeck v. Reynolds, 18 How. Pr. 462. And see
Gillespie v. Pflster, Col. & Cat. Co**, 121; S. C, 8 Johns. Oat. 470;
Code Civ. Pro. § 8270.

Where it appeared that the plaintiff of record, a resident, was pro-
secuting an action for the benefit of a non-resident, on a judgment
recovered against the defendant in another State, and which had been
assigned to the plaintiff of record by an assignment absolute on its face,
it was held that the plaintiff of record could not be compelled to give
security for costs. Horton v. Shepherd, 1 H. Y. Gvo. Pro. 26.

Where the plaintiff on the record was a non-resident the defendant
is entitled to security for costs, although the cause of action was
assigned before the commencement of the action to a third person who
was a resident of the State and for whose benefit the action was prose-
cuted. Phenix v. Townshend, 2 Code R. 840.

In Charles v. Waterman (Supm. Ct. 1846, 2 How. Pr. 122), where the
real party in interest was a non-resident, the plaintiff on the record,
though a resident, was required to file security for costs; and in a simi-
lar case (Allen v. Collins, 1 How. Pr. 251), where the plaintiff of record
was insolvent, security for costs was required. See also Swift e. Collins,
1 Denio, 659; Jones v. Savage, 10 Wend. 621 ; 6 Id. 660; 2 Cow. 460.

Where a non-resident plaintiff sold and transferred a note upon
which the action was brought, to one who was a resident, after a motion
that he be required to give security for costs was 'noticed, and three
days before it was granted,— Held, that a motion to substitute the

CIVIL PROCEDURE REPORTS. 91

Note on Security for Costs.

transferee in the place of the original plaintiff should be denied ; that
the assignment was subject to the then pending application for security
for costs, and the order requiring it could not be defeated nor impaired
by such transfer; that the practical effect of granting the application
to substitute the transferee as plaintiff, would be to defeat the legal
consequences of the order for security for costs, and that could not be
done. McNamara t. Harris, 4 tf. Y. CU>. Pro. 76.

After the commencement of an action by a non-resident plaintiff he
cannot divest himself of his liability for costs, by assigning his interest
in the claim in suit to a resident The defendant notwithstanding
such assignment would be entitled to his security. Phenix t>. Towns-
hend, 2 Code R 2; S. C, 2 Saruff. 684

The court will not permit a non-resident plaintiff to evade the
giving of security for costs by allowing him to sue in forma pauperis,
Christian v. Gourge, 3 K Y. Law Bui. 42; S. C, 10 Abb. N. C. 82 ;
Anonymous, Id. 80. A non-resident plaintiff suing in a representative
capacity, must give security for costs. Murphy v. Darlington, 1 Code
JL 85 ; Ramsey v. Stringer, 4 Boew. 663. Contra, Goodrich v. Pendleton,
8 Johns. Ch. 620 ; More v. Durr, 4 Super. 154; Hall v. Waterbury, 5
Abb. N. C. 856; Wilbur *. White, 56 How. Pr. 821.

Where there is a fund in court and there are several defendants who
are claimants to it, and the result may be that the claimants will be
paid out of the fund, no security will be required from the defendants
who are claimants, although they are non-residents. They cannot be
regarded as non-resident plaintiffs. Coates e. Morris, 1 iV. Y. Law
BuU.29.

Where a county court had ordered a plaintiff residing in another
county of the State to give security for costs, and the cause was
thereafter removed to the supreme court, the latter court refused, in
its discretion, to vacate the order. Dyer v. Dunivan, 8 Bow. Pr. 185.

In Hasler e. Johnson, Mar. Ct. Sp. T. Sept. 1880, 59 How. Pr. 432,
it was held that a non-resident landlord, owning property in the city of
New York, could not be required to give security for costs in summary
proceedings to dispossess a tenant of such property.

In Northrop v. Wright, 1 How. Pr. 146, it was held that in an
action of ejectment a non-resident plaintiff should be required to file
security for costs.

Under the revised statutes it was held that a county court could not
require security for costs from a non-resident plaintiff on appeal for a
new trial from a municipal or justice's court. Mellen v. Hutchins, 8
Abb. N. d 228.

In an action in the court of common pleas for the city and county
of New York, a plaintiff who resides without the county of New York,
bat within the State cannot be required to give security for costs as

flft CIVIL PROCEDURE REPORTS.

Note on Security for Costs.

a non-resident Robb v. MacDonaid, 12 Abb. Pr. 213 ; Bostwick e.
Fifield, 4 N. Y. Civ. Pro. 79. The court of common pleas for
the city and county of New York is not a county court within the
meaning of subdivision 1 of section 8268 of the Code of Civil Pro-
cedure. Bostwick e. Fifield, supra.

In the superior court of Buffalo a resident of the State cannot be
required to give security for costs as a non-resident Montgomery e.
Courter, Clinton K Y. Dig. 748.

In an action brought in the superior court of the city of New York
since September 1, 1880, the defendant cannot require a plaintiff who
resides in the State to give security for costs because he is a non-resident
of the city and county of New York. Lewis v. Farrell, 46 Super.
(14 J. 4 S.) 858 ; Wiley t. Arnoux, 60 How. Pr. 187.

In the city court of New York, formerly known as the marine court
of the city of New York, a plaintiff " who has an office for the regular
transaction of business in person within the city of New York is
deemed a resident of that city within the meaning of sections 8268,
and 8269" of the Code (Cod* Civ. Pro. $ 3160), and cannot be required
to give security for costs as a non-resident Before he can be required
to give security for costs, it must appear affirmatively that he has not
such an office. Stephenson v. Hauser, post, p.

A foreign corporation. When plaintiff in an action brought in a
court of record a foreign corporation must give security for costs. Coa\
| 8268, subd. 2.

The Code (§ 8348, subd. 18,) defines a "domestic corporation " as
14 a corporation created by or under the laws of the State or located in
the State and created by or under the laws of the United States or by or
pursuant to the laws in force the colony of New York, before the 19th
day of April, in the year 1775. Every other corporation is a * foreign
corporation.' "

A foreign government suing in a court of this State, may be required,
like any other non-resident plaintiff, to file security for costs. N. 71
Superior Ci. Sp. T. 1856, Republic of Mexico v. Arrangois, 8 Abb.
Pr. 470.

A person imprisoned under execution for a crime, '<£& The
defendant in an action brought in a court of record may require a
plaintiff who at the time of the commencement of the action was
imprisoned under execution for a crime, or who after the commencement
of the action is sentenced to the State prision for a term less than
life, to give security for costs. Code Civ. Pro. §§ 8268, 8269.

Assignees. The official assignee of a person imprisoned under
execution for a crime, the official assignee or official trustee of a
debtor, or an assignee in bankruptcy, when plaintiff at the time of
its commencement in an action brought in a court of record upon a

CIVIL PROCEDURE REPORTS. 93

—

Note on Security for Costs.

cause of action arising before the assignment, the appointment of the
trustee, or the adjudication in bankruptcy, may be required by the
defendant to give security for costs. Code Civ. Pro. § 8258.

Where an insolvent had assigned over all his estate for the benefit
of his creditors, and a judgment was recovered in his name, in the
court of common picas, on which a writ of error was brought, the
assignees, for whose benefit the suit was prosecuted, were ordered to
give security for the costs. Supreme Ct. 1800, Eetcham v. Clark, 4
Johns, 484 Contra, Ferris v. American Ins. Co., 22 Wend. 586.

Bankrupt*, insolvent and discharged debtor*. Where the plaintiff
in an action in the court of record is, after the commencement
of the action, adjudicated a bankruptcy, or discharged from his
debts or exonerated from imprisonment, pursuant to a law of the State
or of the United States, he must, if the defendant require it, give
security for costs. Code Civ. Pro. % 8269.

Under the revised statutes it was held that when security was
claimed on the ground that the plaintiff was exonerated from imprison-
ment, that if he was so exonerated from imprisonment several years
before tbe commencement of the suit, there would be a presumption
that, having had time to acquire property, he had again become re-
sponsible for his debts, and that therefore ho would not be required to
file security for costs ; but if such exoneration was very recent no such
presumption would arise. Gomez v. Garr, 18 Wend 577. It was also
held that a bankrupt in an action for tort brought for his own benefit
could not be required to give security for costs. Supreme Ct., 1848,
Coryell v. Davis, 5 HOI, 559.

In/ante. An infant whose guardian ad litem has not given security
for costs must do so. Code Civ. Pro. § 8268.

In Steinberg *. Manhattan By. Co, (46 K Y. Super. [14 J. Jb S.]
216), it was held that a guardian ad litem could not be required to
give security for costs; but in Colden v. Haskins (8 Edw. Ch. 811)
and McDonald v. Brass Goods Mfg. Co. (2 Abb. K C. 484), it was held
that security could be required from him.

An infant must give it, if promptly demanded (Code, § 8268; Klein-
peter v. Enell, 2 N. Y. Civ. Pro. 21; In re Daly, Id. 22; Healy v.
Twenty-third st. By. Co., 1 Id. 15 ; Meredith^ v. Forty-second St. and
Grand st. B R Co., Id.) ; unless there are other parties plaintiff who
cannot be required to give security for costs. Hulbert v. Newell, 4
How. Pr. 93 ; Code, 8270. Where a husband and wife joined in an
action, the wife being an infant, it was held that security for costs
could not be required on account of the wife's infancy. Hulbert v.
Newell, supra; Cook v. Bowdon, 6 How. Pr. 238; Thomas v. Thomas,
18 Barb. 149.

In Kleinpeter v. Enell (2 If. Y. Civ. Pro. 21), it was held that

CIVIL PROCEDURE REPORTS.

Note on Security for Costs.

where an infant sues by guardian ad litem security for costs to defend-
ant was a statutory right which the court had no power to destroy by
allowing the guardian to sue as a poor person.

In re Daly (1 if. Y. Civ. Prx 21), the mother of an infant asked to
be appointed his guardian ad litem for the purpose of bringing an action
to recover damages for personal injuries received by him, and also for
an order permitting her to sue in forma pauperis. The court denied the
application, holding that it had no power grant it; that it could neither
permit the guardian ad litem to sue in forma pauperis nor permit the
child to sue in forma pauperis and appoint the guardian afterwards so
as to have the order enure to his benefit

In Nichols v. Cam man n (2 2T. Y. Civ. Pro. 875), where an order
had been granted upon an ex parte application appointing a guardian
ad litem of an infant and permitting him to sue as a poor person, a
motion to set aside such order and that the guardian ad litem give
security for costs, was denied.

In Irving v. Garrity, post, p. 105, a motion to vacate an order
requiring an infant suing by his guardian ad litem to give security for
costs, and that he be permitted to sue in forma pauperis, was gtanted.

Motions that plaintiff file security for costs and that he be permitted
to sue as a poor person cannot both be granted. Florence v. Buckley,
1 IMter, 705.

UNDER SECTION 8271 OP THE CODE.

Executors; Administrators; Trustees; etc. "In an action brought*
by or against an executor or administrator, in representative capacity,
or the trustee of an express trust, or a person expressly authorized by
statute to sue or be sued; or by an official assignee, the assignee
of a receiver or the committee of a person judicially declared to be
incompetent to manage his affairs; the court may in its discretion,
require the plaintiff to give security for costs." Code Civ. Pro. § 8271.

Security for costs cannot be required of an executor, administrator,
trustee, etc., in a case in which he would not be liable for costs on a
judgment. K Y. Superior Ct.% 1852, Darby e. Condit, 1 Duer% 599;
S. C., 11 K Y. Leg. Obs 154.

44 In an action broughl by or against an executor or administrator,
in his representative capacity or the trustee of an express trust or a
person expressly authorized by statute to sue or to be sued, costs must
be awarded, as in an action by or against a person prosecuting or
defending in his own right except as otherwise prescribed in sections
1885 and 1836," of the Code; "but they are exclusively chargeable
upon and collectible from the estate, fund, or person represented,
unless the court directs them to be paid personally, for mismanagement
or bad faith in the prosecution or defence of the action." Code Civ.
Pro. S 8246. Sections 1885 and 1836 of the Code, provide that " where

CIVIL PROCEDURE REPORTS. 95

Note on Security for Costs.

a judgment for a sum of money only is rendered againut an executor
or administrator in an action brought against him in his representative

capacity costs shall not be awarded against him except where it

appears. . . .that the plaintiffs demand was presented within the time
limited by a notice published as prescribed by law, [2 R. 8. 88 ; 8 R.
& Banks' 7 ed. 2299, §§ 84, 35], requiring creditors to present their
claims; and that the payment thereof was unreasonably resisted or
neglected, or that the defendant refused to refer the claim as prescribed
by law; [2 R. 8. 89; 8 R S. Banks' 7 ed. 2299, f 86], the court may
award costs against the executor or administrator, to be collected,
either out of his individual property or out of the property of the
decedent as the court directs, having reference to the facts which
appeared upon the trial."

In Shepherd v. Burt (8 Luer, 645), it was held that the power of the
court to order security for costs under section 817 of t* e Code of Pro-
cedure (for which sections 8246 and 8271 of the Code of Civil Procedure
are substitutes) was purely discretionary and ought not to be exercised
unless the imputation of bad faith is rendered at least highly probable.
But in Fish e. Wing (1 K Y. Civ. Pro. 281); and Carney, v. Bernheimer
(Id. 233 note) it was held that proof of bad faith or mismanagement is no
longer required. Security will rarely be required of an administrator,
etc., suing as such, unless there is gross negligence or bad faith on his
part, and the evidence of such mismanagement must be positive and
^tirect, and relate to the commencement and proceedings in the action
in question and not to the conduct of the plaintiff in the general manage
ment of the trust Darby v. Condit, 1 Duer, 599 ; Shepherd v. Burt, 8
Id. 645 ; Kiroberly v. Stewart, 22 How. Pr. 281 ; Kimberly v. Black-
ford, 22 Id. 443 ; Kimberly v. Goodrich, 22 Id. 424; Bolles v. Duff,
17 Abb. Pr. 448 ; McEntree v. McEntree, 4 K Y. Law Bui 20.

An administrator appointed in this State and resident within the
jurisdiction of the court in which he sues will not ordinarily be required
to give security for costs in the absence of bad faith or mismanagement
Norris e. Breed, 1 Sheld. 271 ; S. C, 12 Abb. Pr. 2f. S. 185. See also
Gedney v. Purdy, 47 K Y. 676.

The court should not require an administrator who has brought and
is prosecuting an action in good faith, to give security for costs therein,
simply because he is the administrator of an estate that has no funds
except the claim in suit Ryan v. Potter, 4 N. Y. Civ. Pro. 80 ;
Darby v. Condit, 1 fitter, 599. But where an administrator is a non-
resident he should be required to give security for costs. Murphy e.
Darlington, 1 Code R. 85. Contra, Goodrich v. Pendleton, 8 John*.
Ch. 500 ; Carney v. Bernheimer, 1 JV. Y. Civ. Pro. 238, note.

In Murphy v. Travers (60 Hov. Pr. 801) it was held that the court

96 CIVIL PROCEDURE REPORTS.

Note on Security for Costa.

would direct security for costs to be given by a plaintiff suing an exec-
utor upon proof that he is pecuniarily irresponsible.

Section 3271 applies only to an action originally brought by or
against an executor or administrator, and not to an action originally
brought by or against the deceased and revived by his personal repre-
sentative. Sullivan v. Remington Man'fg Co., 2 N. Y. Civ. Pre. 6&

On a motion to compel a receiver to give security for costs on the
ground that he has no funds in his hands it was held under the revised
statutes that it must be shown that the action was brought in bad faith
or heedlessly (Jenkins v. Stow, 2 N. Y. Law Bui 67), and that when
bad faith was shown he should be required to give security for costs.
Kimbcrly t>. Goodrich, 22 How. Pr. 424. Under the same statute it
was also held that an order of court made ex parte, giving a receiver
leave to sue was not a bar to a motion by the defendants to require
such receiver to file security for costs. Supreme Ct. 1864, Bolles t.
Duff, 17 Abb. Pr. 448.

Whether a receiver of an insolvent corporation should give security
is in the discretion of the court at special term, and its order is not
appealable to the general term or court of appeals. Briggs v. Vander-
burgh, 12 2\T. Y. 467

In Commissioners, &c. v. Casiatir (K T. Mar. Ct. 8p. T.y 1881,
62 How. Pr. 113), where an action for a penalty was brought by a
private person under the provisions of a statute authorizing such
an action, if the commissioners of charities and -correction neglect or
refuse to sue, it was held, that the plaintiff should be required to give
security for costs. Set also Commissioners of Excise «. Purdyy 1% Abb.
Pr. 434; 8. C, 36 Barb. 266; 22 How. Pr. 606.

Where a private person brought an action for the violation of the
excise law, under the provisions of the statute authorizing such action
if the board of excise neglected to sue for ten days after a complaint was
made with reasonable proof, — Quare, whether the court could under
section 3271 of the Code, require security for costs, — and Held, that if
it had the power it ought not in its discretion to require it Comm'rs
of Excise v. McGrath, 27 Hun, 425.

An assignee in bankruptcy is the trustee of an express trust within
the meaning of section 317 of the Code of Procedure; for which sec-
tion 3271 of the New Code is a substitute. Reade v. Waterhouse, 6%
N. Y. 587.

A plaintiff suing as a trustee of an express trust will be required to
give security for costs when one of the beneficiaries is a non-resident
of the state and another is an infant whose guardian ad litem, has not
filed security for costs. Fish «. Wing, 1 K Y. Civ. Pro. 231.

Where a national bank, pending an action brought by it, was

CIVIL PROCEDURE RBPORT& M

Note on Security for Costs.

reorganized and became a State bank and thereafter discontinued its
business and took proceedings to close its affairs, held, under the former
statute, that it must give security for costs. Nat'l Exchange Bank v.
Silliman, 4 Abb. K C. 224.

The Application and Order. Application for security for costs
cannot be made until the defendant has appeared in the action (Thomas
c. Wilson, 6 Hill, 257), nor while costs awarded against him are unpaid.
Butlor v. Wood, 10 How. Pr. 813.

The motion should be made so as not to delay plaintiff; otherwise,
whether granted or denied, defendant will be charged with costs.
Carpenter v. Downing, 6 Hill, 234.

When proceedings to obtain security are resorted to for delay or
any improper purpose, the motion will be denied. Supreme Ct., 1845,
Robinson v. Sinclair, 1 Den. 628.

The application, in a case within section 8271 of the Code, must be
made to the court in which the action is pending, and in a case provided
for in section 8268 or 3269 of the Code, either to the ccurt in which
the action is pending or to a judge thereof. Code Civ. Pro. § 8272.

The order should require "the plaintiff within a time specified,
either pay into court the sum of $250 to be applied to the payment of
the costs, if any, awarded against him, or, at his election, to file with
the clerk an undertaking, and to serve a written notice of the payment
or of the filing upon defendant's attorney" and stay "all other pro-
ceedings, on the part of the plaintiff except to review or vacate the
order, until the payment or filing and notice thereof, and also, if an
undertaking is given, the allowance of the same." Code Civ. Fro.
J 3272.

The Code (§ 3272) restricts the power of the court as to the form of
the order. It gives to a plaintiff who has been required to give security
for costs, an election to either pay into court the sum of $250 or give
an undertaking. Buckley v. Gutta Percha k Rubber Mfg. Co., 2 IT.
T. Civ. Pro. 429 ; and see Robertson v. Baraum, 29 Hun, 657. In
Robertson v. Barnum (supra), it was held that the court could not in
the first instance, require more than $250 security.

An order that plaintiff give security for costs should, if made ex
parte, by the settled practice be in the alternative requiring security to
be given within a specified time usually twenty days, or that plaintiff
show cause why it should not be required, and staying plaintiffs pro-
ceedings ad interim. Bronson v. Freeman, 8 How. Pr. 492 ; Cad well
9. Manning, 15 Abb Pr. 271 ; Colt v. Wheeler, 12 Id. 888. On the
return day of the order to show cause if security has not been given,
or good cause shown why it should not be required, an absolute order
requiring it will be granted. Id. jft

Vol. IV.— 7

98 CIVIL PROCEDURE REPORTS.

Note od Security for Costs.

It seems that an absolute order, in the first instance, would be
irregular. Bronson 9. Freeman, supra. .See also Moore «. Merritt, 9
Wend. 482 ; Washburn t>. Langley, 16 Abb. Pr. 259.

Where the application is made upon notice the usual eight days
notice of motion must be given. Champlin v. Pierce, 8 Wend. 445 ;
Blanchard v. Nessle, 6 Mill, 256. To put the plaintiff in default a copy
of the order must be served on his attorney. Anderson v. Osborn, 1
Bbw. Pr. 79.

The stay contained in the order requiring security for costs will not
per se extend the defendant's time to answer (McGown v. Leven worth,
2 K D. 8milh} 24 ; Piatt e. Townsend, 8 Abb. Pr. 9 ; S. C, 5 Duer, 668 \
White e. Smith, 16 Abb. Pr. 109, note), but the court or judge may
make an order extending defendant's time to answer, a certain number
of days, after the plaintiff files security for costs, and the sureties, if
excepted to, shall justify. Supreme Court, Sp. T. 1858, Bronson 9.
Freeman, 8 How. Pr. 492.

The defendant may waive the stay by noticing the cause for trial.
Boyce v. Bates, 8 How. Pr. 495. If, after procuring an order that plaint-
iff give security for costs the defendant takes any step in the action not
directly connected with his order he will be deemed to havo waived his
right to security. Id.; Hay v. Powers, 2 Edw. Ch. 494.

The security. The Code requires a deposit of $250 or an under-
taking. Code, § 8272.

44 The undertaking .... must be executed to the defendant by
one or more sureties and must be to the effect that they will pay, upon
demand, to the defendant, all costs which may be awarded to him in
the action not exceding a sum specified in the undertaking, which
must be at least $250." Code Civ. Pro. § 8273

This provision is substantially the same as that of the revised statutes
(2 R S. 620, $ 4), the principal difference being that now an undertak-
ing is required, whereas the revised statutes required a bond.

One surety is enough (Code, §§811, 8273 ; Micklethwait t>. Rhodes,
4 Sandy. Ch. 484) ; and the plaintiff need not himself join in the' exe-
cution of it (Code, § 311 ; Michlethwait v. Rhodes, supra; Wagner v.
Adams, 1 How. Pr. 191. If executed by two or more persons it must
be joint and several and 44 must be accompanied with the affidavit of each
surety, subjoined thereto, to the effect that he is a resident of and
householder or freeholder within the State and is worth .... twice
the sum specified in the undertaking over all the debts and liabilities,
which he owes or has incurred, and exclusive of property exempt by
law from levy and sale under an execution71 (Code, § 812) ; it " must be
acknowledged or proved and certified in like manner as a deed to be

CIVIL PROCEDURE REPORTS. 99

Note on Security for Costs.

recorded.'1 Code, \ 810. An attorney At law cannot be a surety.
Supm. Ct. Rule* 5.

The undertaking for security for costs need not follow the precise
words of the statute, but it will be sufficient as against defendant1*
objection, if equally favorable to the defendant -Y. Y. Superior Ct
1849, Smith e. Norval, 2 Code R 14.

Each of two or more defendants cannot require a separate bond
(Leftwick v. Clinton, 26 How. Pr. 26) ; but the undertaking should
be executed in favor of all the defendants as obligees (Id. ; Montague «.
Bassett, 18 Abb. Pr. IS); and should be to pay " on demand." Demand
from the plaintiff should not be required. Id. ; Tallmadge v. Wallia, 1
How. Pr. 100.

Enforcing the Undertaking. Leave of court to sue the security
for costs, is not necessary. Supreme Ct, 1882, Highley e. Robinson, T
Wend. Am.

If the defendant has waived strict compliance with the statute the
sureties in an action against them cannot object that the bond [or
undertaking] was not in due form. Warner e. Ross, 9 Abb. 2T. C. 885.

Where a non-resident plaintiff was required to give security for
costs and pay ten dollars costs of the motion within ten days, and he
filed a bond as security for costs but did not pay the costs and the
defendant procured a dismissal of the action on account of the failure
to pay the motion costs, it was held in an action against the sureties to
the bond to recover the costs of the action that the defendant by pro-
curing a dismissal of the complaint, in legal effect refused to accept the
bond and that the same never went into, effect or became operative.
Sup. Ct., let Dept. June, 1880, Remmington t>. Westermann, 21 Hun,
440.

Where a party gives security for costs on commencing the action,
and on bringing an appeal, the costs are not payable and cannot be
collected, until the appeal is decided. And the defendant should not
be allowed to sue on a bond given as security for costs, to recover,
moneys which he is not allowed to collect directly, by execution.
Supreme Ct, 1862, Van Vleck v. Clark, 88 Barb. 816; S. C, Van
Vleck t. Clark, 24 Bow. Pr. 190.

In McCall v. Frith (post, p. 102), it was held that where a party
who made a deposit as security for costs was unsuccessful, and costs
were awarded against him, and he took an appeal without securing a
stay, the deposit should be applied to the payment of such costs, and
in Hoffman t>. Lowell (pott, p. 108), it was held that where the party
making a deposit was successful it should be returned to him, although
his opponent had taken an appeal r

Excepting to and justification of sureties. ^ Within ten daya/

100 CIVIL PROCEDURE REPORTi

Note on Security for Costs.

•iter the sendee of the notice of filing the undertaking the defendant
may serve upon the plaintiff's attorney a notice that he excepts to the
sureties therein. Within ten days after service of such a notice, the
plaintiff must serve, upon the defendant's attorney, a notice of the jus-
tification of the same or new sureties before a judge of the court or a
county judge at a specified time and place ; the time to be not less than
five nor more than ten days thereafter, and the place to be within the
county where the action is triable.11 Code Ch. Pro. § 8274.

Notice that defendants u do not accept the bail put in," &a, is not
sufficient notice of exception. K 7. Com. PL, 1867, Hartford Quarry
Co. e. Pendleton, 4 Abb. Pr. 460.

If defendant excepts to the surety, he must justify, notwithstanding
an affidavit of jurisdiction was made and a copy of it served, with the
undertaking. Supreme Ct.% Sp. T.9 1858, Bronson e. Freeman, 8 How.
Pr. 492. And see Washburn v. Langley, 15 Abb. Pr. 259 ; Faulkner's
ease, 4 Hill, 80.

Where under an order requiring the plaintiff to file security for
costs, an undertaking executed by two sureties is filed, the jurisdiction
Of one of the sureties upon exceptions is sufficient. N. 7. Superior
Ot., Sp. T. 1858, Riggins e. Williams, 2 Duer, 678.

The surety or sureties must justify in twice the amount of the
undertaking. Mount v. Mount, 11 Paige, 888.

" For the purpose of justification each of the sureties must attend
before the judge at the time and place mentioned in the notice and be

examined on oath touching his sufficiency, in such manner as the

judge in his discretion thinks proper. The judge may, in his discre-
tion, adjourn the examination from day to day until it is completed,
but such an adjournment must always be to the next judicial day unless
by consent of the parties. If required by the plaintiffs attorney the
examination must be reduced to writing and subscribed by the sureties."
Code Civ. Pro. {{ 8275, 680.

Where the judge finds the sureties sufficient he must annex the
written examination, if any, to the undertaking, indorse his allowance
thereon, and cause them to be filed with the clerk. Where the defend-
ant fails duly to except to the sureties the undertaking is deemed
allowed and must be indorsed and filed in like manner. Code Cw. Pro.
% 8275.

Additional security. " At any time after the allowance of an
undertaking, given pursuant to an order" requiring a plaintiff to give
security for costs or by an attorney to relieve himself from his liability
for costs as prescribed in section 8278 of the Code of Civil I'rocedure,
11 the court or a judge thereof upon satisfactory proof by affidavit that
the sum specified in the undertaking is insufficient ; or that or more of

CIVIL PROCEDURE REPORTS, 10X

Note on Security for Costa.

the sureties have died or become insolvent or that his or their circum-
stances have become so precarious that there is reason to apprehend
that the undertaking is insufficient for the security of the defendant ;
must make an order requiring the plaintiff to give an additional under-
taking." Code Civ. Pro. § 3276.

It was held under the corresponding provision former statute
(Law* 1875, ch. 805), that this provision should be liberally construed
and additional security required at any stage of the action if the former
surety is insufficient Fogg v. Edwards, 57 Bow. Pr. 290.

Effect of Failure to give. " Where the plaintiff fails to comply
with an order " requiring security for costs "or to procure the allow-
ance of an undertaking given pursuant to such an order the defendant
is entitled to a judgment dismissing the complaint and in his favor for
costs. The defendant may apply therefor, as upon a motion." Cods
Civ. Pro. { 8277.

See, on this subject, under the revised statutes, Freeman v. Tomey,
8 Eobt 666; Champlin v. Petrie, 4 Wend. 209; Glover v. Cumings, 13
Id. 294; Hinds v. Woodbury, 29 How. Pr. 879.

Liability of Attorney. " Where a defendant is entitled to require
security for costs, as prescribed in section 8268" of the Code, "the
plaintiff's attorney is liable for the defendant's costs to an amount not
exceeding $100, until security is- given as prescribed " in the Code.
" The plaintiff's attorney may relieve himself from that liability although
the defendant has not required security to be given, by filing and procur-
ing the allowance of an undertaking as if an order" requiring security
for costs had been made. Code Civ. Pro. § 8278.

The attorney is chargeable with costs only where the defendant
could have required security. Hulburt v. Newell, 4 Horn. Pr. 98.

The attorney is liable if the real plaintiff is a non-resident, although
the nominal plaintiff is a resident Waring v. Baret, 2 Cou.9 460; Su-
preme Ct, 1834, Jones v. Savage, 10 Wend. 621.

The liability continues where a suit begun by a non-resident of the
county in a county court was removed to the supreme court. Baley
v. Warden, 8 Cow. 118.

Where a plaintiff is a resident at the commencement of the suit, his
subsequent removal will not make his attorney liable for costs, although
he proceeded in the suit. Supreme Ct., 1846, Alexander v. Carpenter,
3 Dm. 266; K Y. Superior Ct., 1851, Long v. Hall 8 Sandf. 729;
Moir v. Brown, 9 How. Pr. 270. But see Gillespie v. Stanless, 1 How.
Pr. 101.

The attorney's liability exists whether seourity has been required of
the defendant or not Boyce v. Bates, 8 Htm. Pr. 495; Ai re Levy, %
Ni Y. Civ. Pro. 108.

103 CIVIL PROCEDURE REPORTS.

McCall v. Frith.

If an attorney commences an action in which the defendant might
require security for costs under section 8268 of the Code such attor-
ney becomes liable for such costs to the extent of $100 until security
is filed. In re Levy, supra. The fact that a motion to compel the
plaintiff to file security for costs was denied on the ground of laches in
making the motion, does not release the attorney from such liability.
lb.

The only way in which the liability of an attorney for costs under
section 3278 of the Code can be properly adjudicated upon is on a
motion for an order requiring the attorney to pay the costs. In re
Levy, supra. An order, granted on such a motion, should not be
enforced by an attachment against the person as for a contempt, but
by execution against the property. lb.; Boyce v. Bates, 8 How. iV.
496.

McCALL v. FRITH, et al.

N. Y. Superior Court, Special Tjbbit, January,

1883

Deposit as security for costs. — When to be paid to successful party.

Where a plaintiff has made a deposit as security for costs, and costs of the
action were awarded against him, and he took an appeal, but there
was no stay of procedings, — Held, that the sum deposited should be
applied to the payment of the costs ; that it was not necessary
that legal relief should be first exhausted.

(Decided January 9, 1888.)

Motion that the sum of $260 deposited by plaintiff
be applied to the payment of the costs of the action
awarded to the defendant.

The plaintiff, being a non-resident of this State, was
required to give security for costs (see McCall v. Frith,
2 JST. Y. Civ. Pro. 9) ; and accordingly deposited $250
as security for costs. Costs of the action were awarded

CIVIL PROCEDURE REPORTS. 103

Hoffman v. Lowell.

against the plaintiff, and he took an appeal, but did not
secure a stay of proceedings, and the defendant there-
after made this motion.

Btickney & Bhepard, for the motion.

O. 8. P. Stillman, opposed.

Inoraham, J.— Section 3272 contains the only pro-
vision in regard to the deposit by a non-resident as
security for costs. It is there provided that the court
shall require plaintiff to pay into court the sum of $250
to be applied to the payment of the costs if any awarded
against him, &c. As the costs in this action have been
awarded against plaintiff and there is no stay of proceed-
ings, I think the sum deposited should be applied to
their payment. There is no provision that requires that
legal relief should be first exhausted.

Motion granted.

HOFFMAN v. LOWELL and Another.

City Court of New York, Special Term, October,

1883.

§3272.

Sum deposited a$ security for eoeU to be returned to plaintiff upon rendi-
tion of judgment in hie favor.

When a plaintiff had mado a deposit as security for costs and judgment
was rendered in his favor, — Held, that the deposit should be returned
to plaintiff ; that the plaintiff having obtained judgment there is no
ground upon which it can be held that he will ever be liable for costs,
and that tho fact that an appeal from the judgment was pending
would not alter this, for tho presumption is that the judgment will be
sustained and not reversed.

{Decided October 23, 1888.)

104 CIVIL PROCEDURE REPORTS.

Surplietuon •. Hanson.

Motion by plaintiff that the sum of $250 paid into
court as security for costs be returned to him.

The plaintiff, pursuant to an order of the court,
deposited $250 as security for costs. He subsequently
recovered judgment in the action against the defendant
and thereupon made this motion. The defendant op-
posed the motion, stating that he intended to appeal,
and claiming that the deposit should remain as security
for his costs in case he ultimately recovered judgment.

E. P. Wilder^ for motion.

Jacob Fromme^ opposed.

Hawks, J. — The plaintiff having obtained a judg-
ment there is no gronnd upon which it can beheld that
the plaintiff will ever be liable for any costs. An
appeal may be taken, as is claimed by defendant ; but
even if it were now pending, it would be no defense to
this motion, for the presumption is that the judgment
will be sustained and not reversed. The cause having
been tried the liability for costs is at an end, and the
money deposited in lieu of the bond will be returned
to plaintiff.

STEPHENSON v. HANSON.

Citt Court of New York, Special Term, Septem-
ber, 1883.

§§ 3160, 3268, 3269.

What mu$t be shown on motion for security for costs on the ground of
non-residence, in the City Court of New York.

In the city court of New York it must Affirmatively appear, on a motion
for security for costs on the ground of plaintiffs non-residence, that

CIVIL PROCEDURE REPORTS. 105

Irving t. Garrity.

he has not an office or place fox the regular transaction of business
in the city of New York.
(Doddod September 21, 1883.)

Motion for security for costs on the ground that the
plaintiff is a non-resident of the city of New York.

W. B. Tullis, for motion,

J. D. McCullan, opposed.

Hall, J. — Motion for security for costs denied, as it
does not appear affirmatively that the plaintiff lias no
office or place for the regular transaction of business in
the city of New York. See Code Civ. Pro. § 3160.

Leave is granted to renew upon further affidavits.
Plaintiff may have $10 costs of opposing motion, to
abide the event.

irving, an infant, by irving her guardian m
ad litem, v. garrity, et al.

Supreme Court, Second Department, Kings
County Special Term, August, 1883.

§§ 458, 480, 8268 .

An infant map tue in forma pauperis — The Code provide* for any poor

penon*

The Code of Civil Procedure is broad enough to permit an infant to sue
in forma pauperis It provides for any poor person, and the spirit
of the law would necessarily include minors. The object of the pro-
vision was to enable all conditions to obtain justice, and infants are
generally favored in this respect.

Where an infant suing by his guardian ad litem after the granting of
an order requiring him to give security for costs, moved to vacate

106 CIVIL PROCEDURE REPORrS.

Irving ». Garrity.

Bach order and for an order authorizing him to sue tit forma pau-
peris, and there was proof that the infant and his guardian ad litem
were poor persons and unable to procure security for costs, — Held,
that the motion should be granted.
(Decided September 27, 1883.)

Motion to vacate and set aside order directing plaint-
iff to give security for costs, and for an order authoriz-
ing the plaintiff to continue the action in forma pau-
peris.

This was an action for damages for injuries sustained
by the plaintiff through the falling of a heavy stone
slab, alleged to have been negligently placed on the
public sidewalk by the defendants. Ou the applica-
tion of the defendants an order was made at special
term on July 14, 1883, directing i>laintiff to make a
deposit or file security for costs. Plaintiff's guardian
ad litem thereupon applied upon a verified petition,
at special term, to vacate the order requiring security
and for authority to plaintiff to continue the action as
a poor person.

The petition alleged that the plaintiff had a good
and substantial cause of action, stating the nature
thereof ; that the plaintiff and the guardian were poor
and not worth $100 ; that the guardian was the father
of the plaintiff, an infant eleven years of age ; that he
was a car conductor by occupation, with a large family
to support; that after the making of the order for
security for costs, he had applied to his friends and
used his best endeavors to obtain sureties to go on an
undertaking for costs, but failed ; and that, unless the
conrt would authorize the plaintiff to continue the
action as a poor person, her right to redress would be
virtually defeated, and injustice done. Annexed to
the petition was the affidavit of one of her attorneys
certifying that the plaintiff had a good and substantial
cause of action.

CIVIL PROCEDURE REPORTS. 107

r. ;

Irving v. Garrity.

Morris & Pearsall, for the motion :

The Code provides, in section 468, that "When an
infant has a right of action, he is entitled to maintain
an action thereon." He must sue, of course, through
a guardian ad litem (§469). The Code also provides
(§ 458) that " A poor person, not being of ability to
sue, who alleges that he has a cause of action against
another person, may apply for leave to sue as a poor
person.' J If the court is satisfied of the truth of the
facts alleged, it may authorize the plaintiff to prosecute
as a poor person; in which case no costs shall be
awarded against him (§§ 460, 461).

By the aforementioned provisions the Legislature has
given to infants the same rights in our courts to pros*
ecute their claims and redress their wrongs, as is given
to adults. Where an infant is too poor to prosecute
a good cause of action, he falls clearly within the
provisions of sections 458 and 460, and the court has
the power to grant to him the relief therein provided.

It is true that the Code also provides, in section
3268, that the defendant may require security for costs
where the plaintiff "is an infant whose guardian ad
litem has not given such security." All the provisions
referred are parts and parcels of the same general law.
They should, therefore, to carry out the intention of
the legislature and further justice be construed together.
The legislature manifestly intended that the doors of
justice should not closed against any person because of
his infancy or poverty.

The application, therefore, of section 3268 of the
Code is limited by, and should be construed with,
sections 458, 460, 468, and 469. Otherwise the bene-
ficent provisions of section 468 will be in a large meas-
ure defeated.

It will be observed that the language used in section
458 is as positive as that of section 3268. It applies not

108 CIVIL PROCEDURE REPORTS.

Irving t. Garrity.

only to adult litigants bat to any man, woman or child.
Such was manifestly the intention of the legislature.
It may be argued that security for costs having
already been ordered, it is now too late to apply for
leave to sue in forma pauperis. It will be seen, how
ever, that the Code mentions no particular time within
which the application shall be made. The Code says
it shall be made to the court " in which the action is
pending.' ' The plea of poverty could not be set up in
opposition to defendant's motion for security for costs.
The remedy can be obtained only by direct application
under section 458 of the Code.

James J. Rogers, opposed.

Barnard, J. — The Code is broad enough to permit
an infant to sue in forma pauperis. In a word, it pro-
vides for any poor person. The spirit of the law
would necessarily include minors, for why leave them
out 1 The object was to enable all conditions to obtain
justice. Infants are generally favored in this respect.
The guardian himself is poor and unable to pay attor-
neys. The case seems to be one where the order
should be granted.

CIVIL PROCEDURE REPORTS. 100

Train t. Friedman.

TRAIN, Jb., Appellant, v. FRIEDMAN and
Another, Respondents.

Supreme Coukt, First Department, General
Term, May, 1883.

§531.

BUI of particulars.— Will not be ordered where it appears that the

defendant teho seeke it hue more knowledge of the particular*

sought than the plaintiff.*

Where, in an action for money had and receired by the defendant to
the use of the plaintiff, it appeared, on a motion for a bill Of
particulars, that the plaintiff was unable to recollect or state the
precise dates or amounts of the payments to the defendant, and that
the defendant kept books of accounts containing such dates and
other particulars, — Held, that as the defendant was possessed of
moTe information on the subject than the plaintiff, a bill of partic-
ulars of plaintiff's claim should not be ordered.

{Decided June 1, 1883.)

Appeal from an order of this court made at special
term, requiring plaintiff to deliver to defendant's
attorney a bill of particulars of the claim alleged in
the complaint.

This action was brought to recover $34,000, money
alleged to have been had and received by defendants
to the use of plaintiff under the following circum-
stances, viz. : plaintiff deposited with the defendants
from time to time between December 1, 1881, and
December 1, 1882, one per cent, of the par value of a
certain number of shares of stock upon the wager,
either that the price of said stock taken at one-fourth of
one per cent, above the quotation of the price thereof,

* See note on Bill of Particulars, 2 K T. Ow. Pro. 240.

110 CIVIL PROCEDURE REPORTS.

Train v. Friedman.

at the New York Stock Exchange, at the time of said
deposit, would not decline one per cent, from said price
before it would advance, or that the price of said stock,
taken, as aforesaid, at the time of snch deposit, would
not advance one per cent, from said price before it
would decline, whereby an action accrued to the
plaintiff according to the provisions of the statute
against betting and gaming. The complaint does not
state when the alleged different transactions were had,
nor the amount deposited with defendants at any single
time, nor what stock was bought or sold. A demand
for a bill of particulars was made, and not being com-
plied with, defendants, upon the complaint and upon
the affidavit of the defendant, Max Friedman, stating
that the complaint was so vague defendants cojuld not
answer it, and that they were ignorant of the particu-
lars of plaintiffs claim, moved for a bill of particulars.
Plaintiff opposed the motion with his affidavit show-
ing that, he kept no account or memorandum of the
dates and amounts of money had and received by
defendants to the use of plaintiff, and had no books of
account, memorandum, vouchers or papers, showing
such dates and amounts ; that the money was deposited
in cash with the defendants, from time to time, in vari-
ous sums, between December 1, 1881, and December 1,
1882, and that plaintiff was unable to state or recollect
the precise dates or amounts of such deposits; that
defendants, at said times, were engaged in the business
of making wagers or bets upon the price of stocks, and
kept at No. 60 Broad street a place of business for that
purpose, commonly known as a " bucket shop ;" that at
said times, defendants kept books of account showing
the original entries of all wagers or bets made with
them, containing the date of such deposits with them,
the names of the persons making deposits on such
wagers, the name of the stock, the amount of such
deposits, and the terms upon which such deposits were

CIVIL PROCEDURE REPORTS 111

Train «. Friedman.

made, and who won ; and that plaintiff was unable to
furnish a bill of particulars of his claim.

The motion was granted, and from the order there*
upon entered this appeal was taken.

Hitter, Peckham & Dixon, for appellant.

Robert N. Wait, for respondents.

Per Curiam (Davis, P. J., Brady and Daniels,
JJ.) — It appears from the affidavit of the plaintiff that
he is unable to recollect or state the precise dates or
the amount of the disbnrsments that he made in his
transactions with the defendants. They were made
out, though in small amounts, aggregating five thou-
sand dollars up to June 1881, and after that date and
up to December, 1883, in larger amount, aggregating
about twenty-nine thousand dollars.

And it appears from information given the plaint-
iff by two persons named in his affidavit, and which
statement is not controverted, that the defendant kept
books of account containing the dates of such deposits,
the names of the persons, the purchasing and sales of
stock, and the terms upon which the deposits were
made and with whom. From these circumstances, the
inference may fairly be drawn that the defendants are
possessed of more information on the subject than the
plaintiff. And for this reason, we think the order
made was an improper one, and should be reversed
with costs to abide the event.

112 CIVIL FROCEDURE REPORT&

Prickhardt t. Robertson.

■ ' ■■■■ill . . ■■■ . . ■ ■ 1 »,B^ ,

PRICKHARDT v. ROBERTSON.

MUSER v. THE SAME.

And thirteen other oases.

U. S. Circuit Court, Southern District of New
York, July, 1883.

§§481, 619.

Pleading*. — In an action in the U. 8. Circuit court to recover excess of
duties illegally exacted and paid, the sufficiency of the pleadings are to
be determined by the 2V. T. Code of Civil Procedure.— Instance of
complaints in such actions held sufficient. — The ultimate facts only
are to be stated in a complaint. — A statement in a pleading is
not to be considered any the less a statement of fact because
its ascertainment may depend upon some principles of law
applicable to various other facts and circumstances. —
Under the Code, the common count in indebitatus as-
sumpsit for goods sold and delivered, or money had
and received, is sufficient now as formerly.

In an action in the U. S. circuit court in this state, to recover back
duties paid under protest and alleged to have been unlawfully
exacted, the sufficiency of the pleadings is to be determined by the
N. Y. Code of Civil Procedure. [*]

The Code of Civil Procedure requires that a complaint contain a
" plain and concise statement of the facts constituting a cause of
action.'^1] The rule of pleading at common law was the same, via. :
that facts, not mere conclusions of law, were to be stated. [' J The
facts essential to be pleaded are the ultimate facts constituting the
cause of action, not those other subsidiary matters of fact or law
which go to make out the ultimate facts, and are evidences of the
latter. [*]

Where the complaint, in an action to recover back duties paid under
protest and claimed to have been illegally exacted, alleged that " by
law the true duty " on the goods imported was $2,488.25, and that
the collector of customs exacted as duties $8,049, which plaintiff
was compelled to pay to get his goods, — Held, that the statement
that "by law the true duty on said goods was $2,488.25," was not

CIVIL PROCEDURE REPORTS. 113

Prickhardt v. Robertson.

a statement of a conclusion of law merely, bqt was a statement of
one of the ultimate facts in the case as distinguished from mere
evidence of such facts ;[*,V] that if the " true amount of duty "is
not an ultimate fact to be ascertained, then every circumstance
about the goods which may affect the rate of duty, and upon which
the determination of the duty depends, must be deemed the ultimate
facts to be pleaded, and that no such pleading has ever, heretofore,
been required or practiced, f4]

At common law, and under the statutes of this country, it has been
held that an ordinary count, in indebitatus assumpsit for money had
and received, is aa appropriate mode of declaration to recover back
an excess of duties exacted on the importation of goods, ['] and the
N. Y. court of appeals has repeatedly held that, under the Code, the
common count in indebitatus assumpsit for goods sold and delivered
or for money had and received, is sufficient now as formerly. [*]

A statement in a pleading is not, in general, to be deemed any the
less a statement of fact because its ascertainment may depend upon
come principles of law applicable to various other facts and circum
stances. |*j

Where, in an action to recover an alleged excess of duties paid to a
collector of customs to obtain possession of merchandise imported
for the plaintiff, the complaint alleged that the payment was made
"under protest," and a bill of particulars was served showing that
the protest required by section 3011 of the U. S. Revised Statutes
as a condition precedent to the bringing of such an action, had been
made in writing and duly filed, —Held, that, under section 519 of
the Code of Civil Procedure, which provides that pleadings shall be
" liberally construed with a view to substantial justice," that the
complaint and bill of particulars taken together were sufficient. [10]

Where, in a similar case, the allegation was that due and timely
protests, etc., in writing were filed, — Held, that this was clearly a
sufficient pica of such precedent condition. ["]

(Decided July 6, 1883.)

Demurrers, in each case, to the complaint on th*
ground that it does not state facts sufficient to con-
stituted a cause of action.

The opinion states the facts.

Elihu Hoot, U. S. District Attorney, and Samuel 2?,
Clarky U. S. Assistant District Attorney, for demurrer
in each case.

Vol. IV.— 8

114 CIVIL PROCEDURE REPORTS.

Prickhardt 0. Robertson.

Stephen G. Clarke, John E. Hartley, C. Bainbridge
Smith, and others, opposed.

Brown, J. — That part of the complaint in these
cases which sets forth the illegal exaction of duties is
in general terms, stating the amount exacted, the
amount which was the legal duty, and the payment to
the defendant of the excess by compulsion, in order to
obtain the goods. A bill of particulars is annexed to
the complaint, stating the classification of the goods on
each importation, and all the other particulars required
in such cases by section 3012.* The complaint does
not, however, state the rate of duty claimed by the
plaintiff to be applicable, nor the rate exacted by the
collector, nor the classification of the goods by the col-
lector. The precise point of the controversy does not,
therefore, appear from the complaint. The demurrer
in this case, and in numerous others of a similar char-
acter, has been interposed on the ground that the com-
plaint does not state facts sufficient to constitute a
cause of action, with the object of obtaining in future,
if the court sustains the demurrer, a more intelligible

* Section 3012 of the U. S. Revised Statutes is as follows:
"No suit shall be maintained in any oourt for the recovery of
duties alleged to have been erroneously or illegally exacted by collectors
of customs, unless the plaintiff, within thirty days after due notice
of the appearance of the defendant either in person or by attorney,
serves on the defendant or his attorney a bill of particulars of the
plaintiff's demand, giving the name of the imported or importers, the
description of the merchandise and place from which imported; the
name of the vessel or means of importation, the date of the invoice,
the date of the entry at the custom-house, the precise amount of duty
claimed to have been exacted in excess, the date of payment of said
duties, the day and year on which protest was filed against the
exaction thereof, the date of appeal thereon to the secretary of the
treasury, and date of decision, if any, on such appeal, and if a bill of
particulars containing all the above mentioned items be not served as
aforesaid, a judgment of non pro*, shall be rendered against the plaint-
iff or plaintiffs in said action."

CIVIL PROCEDURE REPORTS. 115

Prickhardt 0. Robertson.

statement in the complaint of the precise point in con-
troversy. It is urged that this is necessary, because,
in the long time which often elapses before trial and the
accumulation of thousands of such cases, it often hap-
pens that there is no record or paper in the district
attorney's office showing the points in controversy, and
no person, there or at the customhouse, able to give
needed information to prepare for trial.

The protest and appeal which, by sections 2931,
8011,* must precede snits of this character, are required
to give precisely the information, as to the points in
dispute, which the learned district attorney now seeks
to obtain. If the contents of the protests were embod-
ied in the complaint, nothing more could be asked for.
The complaint states that the plaintiff "filed with said
defendant due and timely protests in writing upon
each entry of said goods against his (the defendant's)
decision exacting such duty, setting forth distinctly
and specifically the grounds of objection thereto."
By demurrer, the defendant admits that such protests
were filed. As these protests are the basis of the
secretary's examination and decision upon the appeal
to him before suit, and designed to enable him to

* Section 2981 of the U. S. Revised Statutes provides for the pro-
testing against the illegal exaction of duties on goods, etc., imported,
and appealing from the decision of the collector of customs thereon to
the secretary of the treasury. Section 8011 is as follows :

" Any person who shall have made payment under protest, and in
order to obtain possession of merchandise imported for him to any
collector or person acting as collector, of any money as duties, when
such amount of duties was not, or was not wholly authorized by law,
may maintain an action in the nature of an action at law, which shall
be triable by jury to ascertain the validity of such demand and
payment of duties, and to recover back any excess so paid. But no
recovery shall be allowed in such action unless a protest in writing and
signed by the claimant or his agent was made and delivered at or
before the payment setting forth distinctly and specifically the grounds
of objection to the amount claimed."

116 CIVIL PROCEDURE REPORTS.

Prickhardt 0. Robertson.

correct any error without suit, the courts are very strict
in exacting a careful compliance by the importer with
the requirements of section 2931, 3011, that the protest
shall " state specifically and distinctly the grounds of
objection" to the duties exacted ; and no suit can be
maintained without such a previous protest, and no
claim can be heard that is not distinctly set forth in it.
(Thomson a. Maxwell, 2 BlaJtchf. [U. S. Circ. Ct] 385,
391 ; Durand v. Lawerence, Id. 396 ; Pierson v. Law-
rence, Id. 495, 499.) This protest, moreover, must be
served on the collector at or before payment of the
duties, and within 10 days after liquidation thereof,
and appeal must be taken within 30 days therefrom,
and suit must be brought, if at all, within 90 days after
the secretary's decision ; so that not only has the de-
fendant precise information of the points in controversy
in the written protest filed with him, but it must have
been filed within so recent a period before suit as to be
readily accessible to him, and while the controversy
itself is presumably fresh in the memory of all the
officers whose decision is brought in question by the
suit. The bill of particulars, moreover, in all these
cases, states the date of filing these protests, as well as
the date of the appeal to the secretary. The defendant
has full information, therefore, of the precise points in
controversy, and, so far as he is concerned, no practical
good would be accomplished by a repetition in the
complaint of the details stated in the protests. If the
office of the district attorney is not possessed of this
information in these or in prior suits, it is because the
defendant did not communicate to his attorney the
information which he possessed, as he might easily
have done, and as is ordinarily practiced between at-
torney and client. The present regulation of the secre-
tary of the treasury, requiring such communication at
the time issue is joined, will, if observed, supply the
district attorney with such information in future.

CIVIL PROCEDURE REPORTS- 117

Prickhardt «. Robertson.

The only question, then, is whether the complaints,
all of which are in substance as above stated, contain

what is technically a sufficient statement of a cause
[*] of action. The sufficiency of the pleadings is to be

determined by the New York Code of Civil Pro-
cedure. This requires a " plain and concise statement
of the facts constituting a cause of action." Section
481. But the rule of pleading at common law was the
same, viz., that facts, not mere conclusions of law,
were to be stated. 1 Chit. PL 214 ; Allen v. Patterson,
IN. Y. 478.*

The facts essential to be pleaded are, however, the

ultimate facts constituting the cause of action, not
[*] those other subsidiary matters of fact or law which

go to make up the ultimate facts, and are evidences
of the latter. There is often considerable doubt
whether certain facts shall be taken to be essential parts
of £he very cause of action itself, or only evidence of it.
To resolve this doubt, recourse is often had to the
former rules of pleading, which by their approved forms,

* The term " facts," in the Code, means exactly what it did under
the common law when applied to pleadings : Dows v. Hotchkiss, 10
K T. Leg. Obs. 281; Carter v. Koezley, 14 Abb. Pr. 147; and see
Howard v. Tiffiny, 8 Sandf. 695; Boyce t>. Brown, 7 Barb. 80.

The words " facts constituting a cause of action," mean the facts
which the evidence upon the trial will prove, and not the evidence
which will be required to prove the facts : Wooden e. Strew, 10 How.
Pr. 48 ; Boyce v. Brown, 7 Bar b. 80. Neither the evidence of facts
nor the legal conclusions to be derived therefrom can properly be
pleaded (Russell v. Olapp, 7 Barb. 482 ; Glenny v. Hitchins, 4 How.
Pr. 98; Lawrence v. Wright, 2 Duer, 673; Pattison v. Taylor, 8 Barb.
250 ; Boyce t. Brown, supra ; Badeau v. Niles, 9 Abb. N. 0. 48) ; nor
need the complaint set forth all the details of the facts. Kelly «.
Brencing, 33 Barb. 128.

The facts on which the cause of action or defense rests, and not
the circumstances which tend to prove them, should be alleged. Shaw
v. Jayne, 4 How. Pr. 119; Floyd v. Dearborn, 2 Code R. t7; Knowlea
9. Gee, 4 How. Pr. 817; S. 0., 8 Barb. 850; William v. Hayes, 5
H010. Pr. 470.

118 CIVIL PROCEDURE REPORTS.

Prick hard t c. Robertson.

show what are regarded as the ultimate facts constitut-
ing the cause of action. On this demurrer it was claimed
that the complaint does not state facts, but only con-
clusions of law. This clearly is not accurate. The com-
plaint in the Muser case, which is a sample of most of
the fifteen complaints, states that the true duty by law
on the goods imported was $2,483.25 ; that the collector
exacted as duties $3,049, which the plaintiff was com-
pelled to pay to get his goods, being $565.75 in excess
of the legal duties, which excess he now -seeks to
recover. The statement of the amount exacted and paid
is certainly a statement of pure fact ; the only question
that can be made is whether the statement that u by
law the true duty on said goods was $2, 482.25,' ' is a

statement of a conclusion of law merely, or a state-
[*] ment of fact. In my opinion it should be considered

as a statement of one of the ultimate facts in the
case, as distinguished from the mere evidence of such
fact. What the true duty is depends on a great variety
of circumstances. There is no dispute about the letter
of the law, but upon the application of different sections
of the law ; and this may depend upon many circumstan-
ces to be given in evidence, such as the kind of goods,
their quality, fineness, weight, mode of manufacture,
component material, the relative proportions or value of
different component materials, their commercial desig-
nation, and numerous other circumstances which may
be involved in the determination of the true duty. If
the " true amount of duty" is not an ultimate fact to
be ascertained, then every circumstance about the
goods, which may affect the rate of duty and upon
which the determination of the duty depends, must
be deemed the ultimate facts necessary to be pleaded ;
and the result would be a requirement to plead a

minute description of the goods in all par-
p] ticulars which might affect the rate of duty.

No such pleading has ever heretofore been

CIVIL PROCEDURE REPORTS. 119

Prickbardt v. Robertson.

required or practiced. To require that would be to
require, as it seems to me, mere evidence of the one
ultimate fact which constitutes the cause of action.

On the rule contended for, it would not be sufficient
to designate the goods even by their statutory classifi-
cation, or to allege that they were dutiable at a certain
rate, since this classification, or rate, is often the only
subject of controversy, and depends on various other
circumstances of fact and principles of law. In the
Muser case the goods are designated as "thread
laces," — a statutory classification ; but suppose they
are in fact black silk laces, and, except in color and
material, are precisely the same as white linen thread
laces, and are dealt in by the name of thread laces, or
black thread lace, while the statute imposes a higher
duty on silk laces, or other manufactures of silk. The
question of the proper classification would then involve
the law of commercial designation and statutory con-
struction, as well, probably, as numerous controverted
matters of fact. See Smith v. Field, 105 IT. S. 52.
But no one would, I think, contend that all these
details should be pleaded, or that a simple statement,
as one of the ultimate facts in the case, that the goods
were " thread laces," was not a statement of fact, but
a conclusion of law. So, when the rate of duty is
affected by the number of threads to the square inch,
or the weight, surely these need not be pleaded.

In general, I think, it may be said that a statement
is not to be deemed any the less a statement of
['J fact, because its ascertainment may depend upon
some principles of law applicable to various other
facts and circumstances. Thus a plea of payment is a
plea of fact of the simplest form ; yet it may involve
very nice questions of law and fact, arising from the
legal rules concerning the application of payments
upon the particular circumstances of fact that may be
proved in the case. So, a statement that A. sold and

120 CIVIL PROCEDURE REPORTS.

Prickhurdt c. HoU-rUon.

delivered goods to B. is plainly a statement of fact for
the purposes of pleading, although on the trial the
issue turns out to be one of law, whether, under the
particular facts proved, the transaction was a sale, or
a mortgage, or a bailment, or a loan. Norton v Wood-
ruff, 2 N. Y. 153 ; 4 N. Y. 76.*

The chief ultimate facts which in this class of
cases constitute the cause of action are that the true,
or legal, or lawful duty — it is immaterial in which form
stated — was a certain sum, and that the collector
exacted a certain larger sum ; or, in a single phrase,
that the collector on a certain importation exacted a
certain sum of money in excess of the legal duty.
How that legal duty is arrived at, i. e., the methods
[•] and rules of law and various circumstances of fact
by which that legal duty is ascertained and deter-
mined, are all subordinate questions, and are only evi-
dence leading to the one ultimate fact of the illegal
exaction of a given sum of money.

This view is sustained by the form of action sanc-
tioned by long usage in such cases. At common
[T] law, and under the statutes of this country, it has
been held that an ordinary count indebitatus
assumpsit for money had and received, is an appropri-
ate mode of declaration lo recover back an excess of
duties exacted on the importation of goods. City of
Philadelphia v. Collector, 5 Wall. [72 U. S.] 720,726,
731 ; State Tonnage Tax Cases, 12 Wall. [79 U. 8.] 204,
209 ; Elliott u Swartvvout, 10 Pet. 137 ; 2 Grcenl. Eo. %
121. The exaction of money beyond the legal rate,
whether for duties, tolls, or taxes, is the one ultimate
fact which in law constitutes the receipt of the
[•] money to the use of the person illegally compelled
to pay it. All the other facts and circumstances
of the case, and any principles of law applicable to

* Mailorj v. Willis.

CIVIL PROCEDURE REPORrS. 121

Prick hard t v. Robertson.

them, and determining their effect or construction,
are only subsidiary, and evidences of the one ultimate
fact to be proved, viz , the unauthorized exaction of a
certain sum of money.

Under the Code, the court of appeals has repeatedly

held that the common count in indebitatus
[•] assumpsit for goods sold and delivered, or for

money had and received, is sufficient now as for-
merly. Allen v. Patterson, 7 N. Y 476; Moffet v.
Sackett, 18 N. Y. 622, 625 ; Hosley v Black, 28 N. Y.
438, 443 ; Parron v. Sherwood, 17 N. Y. 227; Hurst v.
Litchfield, 39 N. Y 377, 380 ; Adams v. Holley, 12 Bow.
Pr. 326, 327, 329 ; Cudlipp v. Whipple, 4 Duer, 610.
In the case of Piatt v. Stout, 14 Abb. Pr. 178, the gen-
eral term of the supreme court in this district, in a suit
to recover fees illegally detained by the defendant as
pretended chamberlain, held, upon demurrer to the
complaint, which was in form substantially identical
with the present in stating that the defendant wrong-
fully and unlawfully usurped the functions of the
office of chamberlain and received the fees thereof,
that those were statements of fact, and that the com-
plaint was sufficient. To the same effect, see People v.
Ryder, 12 If Y. 433 ; People v. Carpenter, 24 N.
Y. 86.

Where a statement of fact, though in form allow-
able, is so general as not to afford sufficient knowledge
of the particular question to be tried, the complaint
may be required to be made more definite and certain,
(Code, § 646,) and that would seem to be the proper
remedy where the defendant is really without means
of information of the real points in controversy. But
congress has by law already so carefully provided for
full information to the collector on all points in dis-
pute as to the payment of duties, through the require-
ment of protest and appeal before suit, and a bill of
particulars to be served afterwards (section 3012), that

123 CIVIL PROCEDURE REPORTS.

Prtckhardt ». Robertaoo.

occasions mast be rare in which fall information is not
already in the defendant's possession before answer.

In the case of Prickhardt, the complaint in regard
to the protests merely states that the plaintiff paid
" nnder protest." This alone is clearly not equivalent
to a statement of having made a protest in writing, nor
of having filed it within 10 days after liquidation. At
first, the complaint in that case seemed to me defective
in this respect ; bat section 3011 says : " Any person
who shall have made payment under protest, etc., may
maintain his action," etc. This complaint states
exactly these words, and exactly conforms, therefore,
to this clause of the statute, and it is doubtful whether
that is not sufficient pleading under this section, leav-
ing it to be shown by proof that the terms and time of
the protest were such as to entitle the plaintiff to a
recovery ; and the bill of particulars served with the

complaint does show that the protests must have
['•] been in writing and duly filed. Under section 519

of the Code, providing that pleadings are to be
"liberally construed, with a view to substantial jus-
tice," I think the complaint and bill of particulars
should together be held sufficient.

In the other cases, the statement that due and

timely protests, etc., in writing, were filed, is
["] clearly a sufficient plea of such precedent condi-
tions (Code, § 533), and is sustained by analogous
decisions. People v. Walker, 23 Barb. 305; Wood-
bury v. Sackrider, 2 Abb. Pr. 402 ; Farmer's Bank v.
Empire, etc. Co., 5 Bosw. 275 ; French v. Willett, 10
Abb. Pr. 102. The demurrers must, therefore, be
overruled, with liberty to withdraw them, and answer,
if desired, within 20 days ; the orders to be settled on
notice.

CIVIL PROCEDURE REPORTS. 123

Dickie «. Austin.

DICKIE v. AUSTIN, w al.

Crrr Cotjbt of New York, Special Tbbk,
August, 1883.

§§803, el seq.

Discovery of book*.— Petition for , must state what information is wanted^

and that the books contain it. — Instance of a case in which it

should not be granted.

On an application for an inspection of books, the petition must state
what information is wanted, and that the books, an inspection of
which is sought, contain such information. It is not enough to
show that they probably will furnish the desired information.

Plaintiff claimed that he was to receive one-third of the gross profits
on certain sales made by him for the defendants ; that settlements
were had from time to time on statements furnished by the
defendants, and that the defendants unlawfully deducted from the
plaintiff's share of the profits " certain sums," amounting in the
aggregate to $2000, which he claims he should have received, and
to recover which he brings this action,— Held, that an application by
plaintiff for an inspection of the defendants' sales-books and ledger,
wherein the accounts of such sales were kept, should be denied;
Also heldy where the plaintiff stated in his petition for an inspection,
that he was " unable to name specifically all the books which would
be necessary," and the inspection sought was intended to cover any
book which the defendants had relating to the transactions in which
plaintiff was interested, that the application should be denied; that
the discovery sought was unusually broad and sweeping, and not
such as courts are in the habit of granting in aid of common-law
action for the recovery of a specific sum of money, and that such
applications were, as a rule, referred to courts of equity.

{Decided August 26, 1883.)

Motion by plaintiff for an inspection of books of
the defendants.

The facts are stated in the opinion.

134 CIVIL PROCEDURE REPORTS.

Dickie v. Austin.

Morrison & Kennedy \ for the motion.
E. H. Benn, opposed.

McAdam, J. — The plaintiff claims that he was to
receive one-third of the gross profits on certain sales
made by him for the defendants. These sales are said
to aggregate $264,343.68. It appears that settlements
were had from time to time on statements furnished by
the defendants. But the plaintiff now insists that in
these accounts the defendants unlawfully deducted
from his share of the profits ''certain sums" which,
he claims, he should have received, but did not. This
action was brought to recover those sums, which the
plaintiff supposes aggregate about $2, OCX). The pres-
ent application is for an inspection of the sales-books
used by the defendants between May 1, 1880, and May
1, 1883, as well as the ledgers used during that period,
wherein the plaintiff's account was kept and in which
the merchandise and sales account were entered. •

The object of the inspection is to enable the plaint-
iff to prepare for the trial of the action. The peti-
tioner says that "he is unable to name specifically all
the books which will be necessary/' and the inspec-
tion is intended to cover any books which the defend-
ants have relating to the transactions in which the
plaintiff was interested. I need not say that such a
discovery is usually broad and sweeping and not such
as courts are in the haHt of granting in aid of common-
law actions for the recovery of a specific sum of money.
Such applications are, as a rule, referred to courts of
equity (1 Sand/. 700).* The character of the applica-
tion and the general manner in which the alleged in-
debtedness is expressed, as "certain sums " amounting
to "about" $2,000 indicate, in a mild way, that the

* Sheldon e Allerlon.

CIVIL PROCEDURE REPORTS. 126

Dickie v. Austin.

plaintiff does not really know whether he has a cause
of action or not, and that a discovery before the trial
is therefore material to enable the plaintiff to deter-
mine how to prove his cause of action, if it can be
proved at all. In this view the application is a pru-
dent one for the plaintiff to make; but it does not
follow, from this circumstance, that it onght, in the
exercise of a wise discretion, to be granted.

There are certain general rules which regulate ap-
plications like the present, one of which is that the*
petition must state what information is wanted, and
that the books referred to contain such entries (19 Abb.
Pr. Ill ;* S. C, 44 Barb. 39). It is not enough to show
that they probably will furnish the desired informa-
tion (38 Hoxo. Pr. 177), and an application for the dis-
covery of documents was denied, where the petition
did not point to the places where the information
sought for existed, nor describe the enteries except by
stating their supposed effect (55 How. Pr. 351).f In
Cutter c. Pool (3 Abb. N. C. 130), a case somewhat
like the present, the court denied the application, leav-
ing the plaintiff to procure whatever books he required
upon the trial by the ordinary process of subpoena
duces tecum. In 12 Leg. Obs. 137,$ it was said: "If
the discovery is plainly attainable by competent and
available testimony, a production of books should not
be allowed without special circumstances."

The only special circumstances which appear in this
case, are those before mentioned, and these do not
bring the case within any rule which justifies me in
granting the relief applied for. It follows that the ap-
plication must be denied, with $10 costs to abide the
event.

* Walker t>. Granite Bank.

t New England Iron Co. «. N. Y. Loan k Imp. Co.

X Terry v. Rubel

126 CIVIL PROCEDURE REPORTS.

Dtiscnbury v. Dusenbury.

DUSENBURY and Another, Respondents, v.

DUSENBURY, as Administrator, etc.,

Appellant.

N. Y. Court of Common Pleas, General Term,
March, 1882.

§§ 481, subd. 3, 713, subd. 1, 1207.

Receiver. — Order appointing, should not be made on concurrent demands

in answer and reply, where motion-paper* do not bring the cam

within the provisions of the Code, authorizing court to make

such an order, — A party to an action may demand any

relief \ bttt is not precluded by his demand from

refusing to take it or asking additional relief —

Court tchen controlled by relief demanded

in awarding judgment.

Where a defendant in his answer prayed for the appointment of a
receiver pending the action, and the plaintiff in his reply demanded
the same relief, and a receiver was appointed before final judgment
on the application of the plaintiff, on papers which did not bring
the case within the provisions of the Code authorizing the court to
grant such an order, —Held, on appeal from the order appointing the
receiver, that the appointment of the receiver could not be sustained
on such concurrent demands, and the order should be reversed.

A party should ask any relief to which he supposes himself entitled,
but his doing so does not preclude him from declining to take any
part thereof, nor from demanding aught additional supported by the
facts.

The demand for relief in a pleading is given controlling effect but in
one instance, namely, when there is no answer. The judgment
must then be restricted to what is asked for in the complaint, but
if an answer in interposed, the court grants any relief within the
case shown by the complaint, and embraced in the issues.

(Decided June 5, 1882.)

Appeal from an order of the Special Term, made on
application of the plaintiff, appointing a receiver pen-
dente lite. The plaintiffs, claiming to be the surviving

CIVIL PROCEDURE REPORTS. 127

Dusenbury v. Duaenbury.

partners of the firm of Thomas Dusenbury & Sons,
brought this action against the defendant as adminis-
trator of said Thomas Dusenbury, who, in his lifetime
was a member of said firm to recover possession of the
assets of said firm, or for the value thereof in case a
• delivery could not be had. The defendant in his an-
swer admitted that he had possession of the property
sought to be recovered ; denied that the plaintiff and
said Thomas Dusenbury were co-partners, and set up
a counter-claim. In his prayer for relief he asked for
an accounting, and that pending the action a receiver
of the property in question, be appointed. The ap-
pointment of a receiver, as demanded in the answer,
was also prayed for in the plaintiffs' reply. The plaint-
iffs moved for the appointment of a receiver, as asked
in the answer and reply, and their motion was granted.
In their moving-papers no ground for the appointment
of a receiver other than the concurrent demands there-
for in the answer and reply was shown, and the ap-
pointment was made on the demands alone.

Ira D. Warren, for appellant.

Hall <ft Blandly for respondents.

Per Curiam. (Bkach, J.)— The learned counsel for
the respondents admits that the order cannot be sus-
tained, save upon the concurrent demands in the an-
swer and reply. The motion-papers do not bring the
case within the provisions of the Code, authorizing the
court to grant such an order (Code of Civil Pro. § 713,
subd. 1). I am of opinion the learned court below
gave an effect to the defendant's demand for relief
much greater than is warranted by its nature or force.
A party should ask for any relief to which he sup-
poses himself entitled ; but his so doing does not pre-
clude him from declining to take any part thereof, nor
from demanding aught additional supported by the

128 CIVIL PROCEDURE REPORTS.

Duscnbnry v. Dnaenbury.

facts. Neither is the court limited in awarding judg-
ment, that is given in accord with the facts, and n?t
the requests of the suitor. A different principle would
make the action of the court subordinate to the wish
of parties instead of the rules of law or practice. This
portion of a pleading is given controlling effect but in
one instance. It is when there is no answer the judg-
ment must be restricted to what is asked for in the
complaint. If an answer is interposed, the court
grants any relief within the case shown by the com-
plaint, and embraced in the issue.* The order should
be reversed with costs.

J. F. Daly and Van Hoesen, JJ., concurred.

■ » fr - ■ ' ■ ■ i ■ ... ,

* Code of Civil Procedure, §§481, subd. 1; 1207. See on this
subject, Jones t>. Butler, 20 How. Pr. 189; S. C, 30 Barb. 641; N. Y.
Ice Co. v. North Western Ins. Co., 28 K Y. 857; Armitage v. Pulver,
87 y. Y. 494; See v. Partridge, 2 IMier, 463; Smith ». Howard, 20
How. Pr. HI; Cowenhoven r. City of Brooklyn, 88 Barb. 9; Bradley
v. Aldrich, 40 K Y. 504; Arnold v. Angel, 62 Id. 506; Stevens v.f
Mayor, 84 Id. 296; Durand v. Hankerson, 39 Id. 287; Marquart e.
Marquart, 12 Id. 336; Rome Exc. Bank v. Eames, 1 Keye*, 588; Towle
v. Jones, 1 Jtobt. 87; Ryder v. Jenny, 2 Id. 56; Wright «. Wright, 54
K Y. 437; Mills t>. Bliss, 55 Id. 139; Hale v. Omaha Nat'l Bank, 49
Id. 626.

If the defendant answers, the demand for relief becomes immaterial.
Marquart v. Marquart, 12 IT. Y. 836; Emery v. Pease, 20 Id. 62;
Redfield v. Frear, 9 Abb. K S. 449; Hopkins v. Lane, 2 Hun, 88;
Caswell «. West, % T. <t C. (if. Y. Sup.) 883.

CIVIL PROCEDURE REPORTS. W

Estate of Orser.

Estate of DEBORAH ORSER, Deceased.
Surrogate's Court, Westchester County, 1883.

§2743.

Surrogate have potter to hear and determine controversies in regard to

the title to or any other question concerning a legacy or distributive

share.* — Construction of statutes. — Subscribing witness cannot

take under will any greater share in estate than he would

liave taken by descent, if no will had been made.

The Code of Civil Procedure does not forbid surrogates from deciding
a controversy in regard to the title to or any other question concern-
ing a legacy or a distributive share, and the practice of hearing and
determining such controversies, which has prevailed in surrogates'
courts for more than half a century, still continues. [b]

The words "distributive share" in section 2743 of the Code, which
provides that, " where the validity of a debt, claim or distributive
share is not disputed or has been established," the surrogate may, in
his decree, determine to whom it is payable, etc., were evidently,
inadvertently inserted. [l] The sentence quoted implies the existence
of such share, and if the share exists, it is because it is fixed by
statute, and if it is disputed it is disputing the statute, [*]

The provision of section 2743 of the Code, that, where the validity of
a debt, claim or distributive share is not disputed or has been
established, the decree must determine to whom it is payable, the
sum to be paid by reason thereof, and all other questions concerning
the same, means that the surrogate must determine all questions
other than that of the validity of the debt, etc., and to do that, he
must try it. [*]

A mere change of phraseology made in a revision of a statute should
not be deemed or construed as a change in the law, unless it
evidently appears that such was the intention of the legislature. [*]

A long and uninterrupted practice under a statute is regarded as good
evidence of its construction.™]

A subscribing witness to a will, who is one of the two witnesses
residing in the state and competent to testify, without whose

* See In re Brown, 8 2K T. Ow. Pro. 39.
Vol. IV.— 9

130 CIVIL PROCEDURE REPORTS.

Estate of Orser.

testimony the will could not have been proved, is precluded from
taking any more than his distributive share of the personalty, or the
share of the realty which would have descended to him in case the
will had not been established.^]
Where the residue of an estate, after the payment of certain legacies,
was devised to one M. M.? and one I. F. B., and directed to be
divided equally between them, and said I. F. B. was a subscribing
witness to the will, whose testimony was necessary to secure its*
probate, — Held, that the devise to J. F. B. was void, except that he
might take the/ share in the estate to which he would have been
entitled had the decedent died intestate ;['] but that fact did not, in
any manner, affect the bequest to II. M. ;[*] that the will was to be
regarded as if one-half of the residuum had been given to M. M., and
the other half left undisposed of.[°]

Objections to the accounts of Isaac F. Brown,
executor.

In 1864, one William Orser died, leaving three
brothers and three sisters who were his only next of
kin and heirs-at-law, and leaving a will by which,
after disposing of a portion of his property, he
directed that the residue, which subsequently was
found to be $3,856.23, be converted into money, and
such money invested in good securities for the benefit
of his three sisters, Deborah, Sarah and Matilda,
during their natural life each to receive an equal share
in the interest accruing thereon. He did not make
any disposition of the remainder.

Sarah, one of these three devisees, subsequently
died leaving a will wherein Isaac F. Brown, who was
the executor of William Orser' s will, was named as
executor and residuary legatee. He charged himself
in his accounts as executor of her .will, with one- third
of the $3,856.23 as having received it.

Deborah, another of the said devisees, died in 1879,
leaving a last will and testament dated September 10,
1877, which, after bequeathing various legacies, gave
the remainder of her estate to Isaac F. Brown and

CIVIL PROCEDURE REPORTS. 131

Estate of Oner.

Margaret Miller, and directed that it be divided
equally between them. Brown was a subscribing
witness to the will, and it was admitted to probate in
March, 1880, on his testimony and that of another
subscribing witness. He was also its executor. On
his accounting as executor, objection was made to his
taking the half of the residue of the estate devised to
him because he was a subscribing witness to the will.
Deborah Orser did not leave her, surviving, any
husband or descendants, and her only next of kin were
a sister and several nieces and nephews, children of
deceased brothers and a deceased sister.
Other facts are stated in the opinion.

Francis LarTcin and N. H. Bdker^ for the ex-
ecutor.

John Q. Miller^ for Margaret Miller.

Charles M. Hall> for next of kin.

Coffin, S. — As the next of kin claim that the
provision of the will in favor of the executor is void
by statute, and that, they as such are entitled to their
several distributive shares of the amount of the be-
quest attempted to be made to him, and as this claim
is disputed by the executor, it becomes necessary to
determine whether this court has, under the provisions
of the Code of Civil Procedure, any jurisdiction in the
premises. I do not perceive anything in the third
sentence of section 2743 preventing me from passing

upon the question. It strikes me that the words
["] "distributive share " have been inadvertently

inserted, as it is impossible to conceive how the
validity of a distributive share can, or cannot be
disputed. The sentence implies the existence of such
share. If the share exist, it is because it is fixed by

132 CIVIL PROCEDURE REPORTS.

Estate of Oreer.

statute, and if it be disputed it is disputing the stat-
ute. There seems to be no provision prohibiting the
surrogate from determining a controversy as to
whether a person claiming to be the owner of and
entitled to a distributive share is so entitled. I think
we have no right to interpolate words which would
have the effect of depriving him of a power heretofore
exercised. Strike out those words, and he is simply
deprived of the jurisdiction, as he has been hitherto of
trying the validity of a debt or claim which is
disputed.

Section 71 of the R. S. [2 R. 8. 93] and section 2743
of the Code, so far as this question is concerned, do not
differ very materially. The former provided that the
surrogate in his decree should settle and determine all
questions concerning any debt, claim, legacy, bequest
or distributive share, to whom it should be payable,
and the sum to be paid. The latter, that where the
validity of a debt, claim, or distributive share is not
disputed, or has been established, the decree must
determine to whom it is payable, the sum to be
[*] paid by reason thereof, and all other questions
concerning the same. This, of course, means that
the surrogate must determine all questions other than
that of the validity of the debt, etc., and he is directed
by his decree to determine to whom the same is
payable and the sum to be paid. If there arise a
question on either subject, surely his decree cannot
determine it unless be try to decide it. How, there-
fore, when there is a dispute as to a right to a
distributive share, or as to the amount of any such
share, can he escape or evade the duty of trying and
deciding it? See Riggs v. Cragg (89 IT. Y. 491),
reported since this opinion was prepared.

The long controversy in the courts as to the power
of a surrogate to try a disputed debt or claim, was
finally put at rest by the court of appeals, in Tucker

CIVIL PROCEDURE REPORTS. 133

Estate of Oner.

t. Tucker (4 Keyes, 136), denying such power. That
decision was based upon the reasoning of Harris, J.,
in Magee v. Vedder (6 Barb. 352). That able jurist
viewed all the statutory provisions relating to the
mode of recovering debts against deceased persons,
the notice to creditors, the presentation of debts or
claims to the executors, and the provisions for refer-
ence in cose of dispute, etc., and he pronounced the
scheme of the revisers in that regard admirable. It
will be readily seen that there was, and is, no scheme
as to legacies or distributive shares, no provision for
publication, for presentation or for reference in case
of dispute as to person or amount.

I am not aware that the power of a surrogate to
determine a controversy as to the person of a legatee or
distributee, or the amount to which either was entitled,
has ever been questioned ; but the books are full of
cases where it has been done and sanctioned by the
appellate courts. Even in Magee v. Vedder (supra) the
learned judge quoted, with strong expressions of ap-
probation, the language of Surrogate Ogden in regard
to the power of a surrogate to try a disputed debt. He
said : " When, therefore, the 71st section declares that
the decree of the surrogate shall settle and determine
all questions concerning any debt, &c, it does not
mean that he is to determine the validity of the debts,
but their priority, the amount due upon them, and to
whom they belong, whether to the original creditor or
to his assignee or his executor, &c."

Among other cases, showing a recognition by the
higher courts of the power of the surrogate to try and
determine the question of a right to a distributive share,
I may mention the case of the will of Isaac M. Singer,
where the sole question tried before me, and where
some $15,000,000 was involved, was whether Mrs. Poster
was his widow and entitled to a distributive share of
his estate as such. Able and distinguished counsel,

134 CIVIL PROCEDURE REPORTS.

Estate of Oraer.

among whom was a former judge of the court of
appeals, resisted her claim upon the merits, and never
questioned the power of the surrogate to try it. The
same case on appeal may be found nnder the title of
Poster v. Hawley (reported in 8 Bun, 68). Again, in
the matter of the estate of John A. Merritt, who died
intestate, leaving assets amounting to over $1,250,000,
the only question presented for determination was who
were entitled to distribute shares, it being decided by
this court which of the numerous claimants were, and
which were not entitled to such shares. The power of
the surrogate to determine was not questioned by any
of the astute counsel engaged, nor was such an objec-
tion raised in the appellate courts, the case being
reported in 14 Hun, 651 under the title of Adee v.
Campbell, and also in 79 N. T. 52. In Hurtin v. Proal (3
Brad/. 414) the right of the uncle to a distributive
share was disputed and was determined by the surro-
gate. Like jurisdiction was exercised by him in the
case of Ferrie v. Public Administrator (3 lb. 151, 249 ;
S. C, 4 lb. 28 ; affirmed by court of appeals, 23 N. T.
90). The same may be said of the cases of Hallett v.
Hare (5 Paige, 315, 1835), and Rose v. Clark (8 lb. 674,
1841).

It is, perhaps, unnecessary to mention other cases
in order to show that it was the uniform and un-
challenged practice of surrogates under section 71,
sanctioned by the superior courts, to hear and determine
such questions. Now, as I understand the rule as to
construction of statutes, it is that where the law is
settled by adjudications giving it a certain construction

or effect, a mere change of phraseology made in a
[•] revision of it should not be deemed or construed

as a change in the law, unless it evidently appears
that such was the intention of the legislature (Taylor
v. Delancy, 2 Cat. Cos. 743 ; Goodell v. Jackson, 20
Johns. 697, 722 ; Matter of Brown, 21 Wend. 316).

CIVfL PROCEDURE REPORTS. 135

Estate of Orser.

It will be observed, in this connection, that the com-
missioner's notes to sections 2742,3 relate exclusively
to the power of a surrogate to try a disputed claim
against the deceased. No other meaning to the word
"claim" is suggested, there or in the decisions.

Another rule as to construction is, that a long
[• and uninterrupted practice under a statute is re-
garded as good evidence of its construction (Fort
v. Burch, 6 Barb. 60, 73, based upon 6 Cranch, 22).

It is quite apparent from the notes of the commis-
sioner that the legislative intention was simply to
conform the statute to the decision in the case of Tucker
v. Tucker (supra), ifcgarding a disputed debt. At
most, there is nothing in the Code to forbid surrogates
from deciding a controversy in regard to the title to,
or any other question concerning a legacy or a dis-
tributive share, any more than there was in the Revised
Statutes. It having, therefore, been the unbroken and
unquestioned practice of the surrogates' courts for
[*] upwards of half a century to hear and determine
such controversies, and the sections of the Code
referred to having in no way circumscribed the power,
its exercise by this court will be continued until it
shall be otherwise instructed by an appellate tribunal.
Hence I pass to the consideration of the other ques-
tions involved in this case.

The executor claims that he is a residuary devisee
and legatee by virtue of the sixth clause of the will,
which is as follows : " I give and bequeath to Isaac P.
Brown and Margaret Miller the remainder of my estate,
to be equally divided between them, of both real and
personal," and that by virtue of this clause he is en-
titled, on this accounting, to one-half of the remainder
of the fund, amounting to about $6,000, after the pay-
ment of the debts and general legacies. This claim is
resisted upon the ground that as he was one of the two
witnesses to the will, residing in this State and com-

136 CIVIL PROCEDURE REPOttTa

Eatase of Orser.

petent to testify, without whose testimony the will
could not have been proved, he is precluded from
[*] taking any more than his distributive share of the
personalty, or the share of the realty which would
have descended to him in case the will had not been
established (2 R. 8. 65, sections 50, 51). These sections
declare such a witness to be competent, and that he may
be compelled to testify, so that other intended bene-
ficiaries might not be deprived of what was sought to
be given to them. I think the object of the law is two-
fold; first, to render the subscribing witness competent
who would not have been so otherwise ; and second, to
guard against fraud in the preparation and execution
of wills. The first is now perhaps obviated by recent
statutes, but the latter remains. As the law now
stands he is generally, as a party, a competent witness,
but the effect as declared by section 51 is still the
same, that section remaining unrepealed, and one of
the reasons for its enactment still existing. Before the
Revised Statutes were adopted, a devise to a subscribing
witness to a will was wholly void (Sharpsteen v. Tillon,
3 Cow. 651), and such subscribing witness could not
testify on the probate. The cases cited by the learned
counsel for the executor do not seem to me to be in
point.

It is, however, objected that this court cannot pass
upon the question because it involves a construction of
the will. Were the objection taken applicable, I
should feel constrained to disregard it, for the reason
that in most cases the court is compelled to construe
wills in order that it may obey the directions of the
statute to distribute the surplus remaining "to and
among the creditors, legatees," &c, "according to
their respective rights, and to determine to whom it is
payable, and the sum to be paid by reason thereof,"
&c. Bnt I do not deem this a case of construction at
all. We are not here groping after the meaning of the

CIVIL PROCEDURE REPORTS. 137

Estate of Orser.

testator, who has used language that is obscure. The
court is simply asked to apply a plain provision of the
statute, in order to determine to whom one-half of the
residue of the personal estate of the deceased is to be
paid. Applying this provision, it is determined that it
must be paid to the next of kin of the testatrix, as
prescribed by law for the distribution of intestates'
estates, except that in such distribution the executor
must be excluded, as he will already have received his
full distributive share of the estate, as if she had died
wholly intestate.

The executor's counsel insist that the will could
have been properly proven without the testimony of
Mr. Brown. In this I think they are mistaken. The
law upon the subject will be found concisely stated in
Redfield's second edition of the " Law and Practice of
Surrogates' Courts," 202, et seq., and cases cited.

One William Orser died in 1864, leaving him surviv-
ing, as his only heirs-at-law and next of kin, six
brothers and sisters, and leaving a will, in and by
which, among other things, he directed the residue of
his real and personal estate to be converted into money,
and such money to be invested in good securities, for
the benefit of his sisters, Deborah, Sarah, and Matilda,
during their natural lives, each to receive an equal
share of the interest accruing thereon; and failed to
make any disposition of the remainder. On the ac-
counting of this same Isaac P. Brown, the executor of
that will, it was ascertained and decreed that the fund
so created amounted to $3,856.23, and the decree
ordered the executor to invest it and divide the interest
between the three sisters equally. Subsequently
Sarah, one of the three, died, leaving a will, of which
said Brown was also executor. On his accounting in
her estate he charges himself with one-third of the
$3,856.23, as having received it, and the decree directed
the balance of $4,088.99, found to be in his hands, after

138 CIVIL PROCEDURE REPORTS.

Estate of Oraer.

the payment of all claims to be paid to him as her
residuary legatee. That is presumed to have been
done.

The question as to whether the provision for the
three sisters, in William Orser's will, was in conflict
with the statute against perpetuities, was not raised ;
no appeal was taken from either decree, and their pro-
visions must therefore, in this proceeding, be regarded
as binding upon the parties.

As by the decree in the William Orser estate the
fund was to be invested and the income to be equally
divided among the three sisters as provided by the
will, they became tenants in common of the income,
and the survivor or survivors could not take the share
of the income of any one who might die, but each sur-
vivor could receive only her one-third (Strong v. Strong,
4 Red/. 376), and as by the decree in the Sarah
Orser estate, the principal of the fund producing her
income was directed to be paid to her residuary legatee,
and as Matilda Orser, the only survivor of the three, is
still entitled to the income of one-third, all that we
have to deal with in this proceeding in this respect is
the principal of the fund which produced the income
of Deborah Orser. Her interest in it passed under her
will, as it vested in remainder at once on his death in
the next of kin of William, of whom she was one, and
lie, as to it, died intestate. Hence, it follows, that as
Deborah left assets sufficient to pay all her general
legacies, her claim on the fund as next of kin of Wil-
liam, with accrued interest, became a part of the resid-
uum attempted to be given by her will to Isaac F.
[T] Brown and Margaret Miller, which bequest as to
Brown being, as we have shown, void, except that
he may take the share of her estate to which he would
have been entitled had she died intestate (2 B. S. 65.
§ 51 and Code Oio. Pro. § 1868). The residue, including
interest from Deborah's death, fnust be equally divided

CIVIL PROCEDURE REPORTS. 130

Estate of Oner.

among the other next of kin of the testatrix as provided
by the statute of distributions. This fond came into
the hands of the executor of William Orser, and as it,
on Deborah's death, became a claim in his hands, as
her executor, against the estate of William, he must be
regarded as having collected it and as now holding it
as her executor.

I think the executor is chargeable with interest on
the moneys drawn out of the savings' banks and de-
posited with his own funds at the Sing Sing National
Bank, except on the sums paid out as legacies. He
supposed himself entitled to one-half of the residuum,
and acted innocently in the matter, but that will not
excuse him from liability for interest to those having
a legal right to it ; but I think it should be reckoned
now at the rate of four per cent. only.

The executor, not being very accurate in the use of
words, seems to have called legacy "dower" in the
vouchers he took when he paid legacies. I am, there-
fore, inclined to receive them as sufficient ; and, also,
to allow the payment made to the guardian of the
Finch children. If there is anything still due on ac-
count of the remainder of the dower interest of Rubama
Brown, deceased, the executor is still liable for it to
him.

I do not regard the fact of the statute rendering
P] the bequest to Brown void, by reason of his being a
witness to the will, as in any manner affecting the
bequest to Margaret Miller. The will is to be regarded
as if the one half of the residuum were given to her
and the other half left undisposed of. Such seems to
me to be the effect of the statute. There can be no
difficulty in making the separation.

Thus the chief questions arising in the case are dis-
posed of. Any others that may have been overlooked
will, on attention being called to them, be disposed of

140 CIVIL PROCEDURE REPORTS.

Id re Bailey.

on the settlement of the decree, of which at least four
days' notice should be given.

Costs of all parties to be paid out of the f and.

In re BAILEY, Receiver, etc., of tiie Pelham &
portchester railroad company.

Supreme Court, First Department, New York
County, Special Term, October, 1883.

§66.

Attorney' $ lien for cost** — When attorney'* right to costs absolute and
not to be defeated by payment to judgment creditor.

Where a railroad company was declared insolvent and a receiver thereof
was appointed pending an action against it in which judgment was
thereafter recovered in favor of the company for costs and disburse*
ments, and one Pool, who as attorney for the company recovered said
judgment, gave notice to the plaintiffs attorneys in the action in
which the judgment was recovered, that he had a lien upou said
judgment for his costs therein, and that the amount of the judgment
be paid to him, and the plaintiff notwithstanding said notice paid the
amount of the judgment to the receiver, — Held, on a motion by the
receiver to be allowed to withhold the sum so paid from said Pool
and that the sheriff be directed to return an execution issued by said
Pool upon said judgment, as satisfied, upon his fees being paid, that
said Pool had a lien for his costs against the railroad company, and
the company, if not dissolved, could not deprive him of them or
receive them of the other party to the action who was adjudged to pay
them, after notice of the attorney's lien, to the deprivation of the
attorney who recovered them ; P] that no notice or other step was
necessary upon the part of the attorney to create his lien ; and his
right to the costs was substantial and absolute after notice; ['] that

♦See fare Wilson k Greig, 2 K Y. Civ. Pro. 843; Diinick v.
Cooley, 8 Id. 141 ; Moloughney v. Kavanaugh, 8 Id. 258 ; Albert Palmer
Co* v. Van Orden, ante. p. 44.

CIVIL PROCEDURE REPORTS. 141

In re Bailey.

the receiver bad not any title, either legal or equitable, to the coats ; [•]
that he took the same title the corporation had in its lifetime, and
took that by transfer, and could have no better right than the cor-
poration would have if alive. [4] Also Held, that it was competent
and proper for the court to order the receiver to pay the costs he had
received, with the interest thereon from the time he received them, to
the attorney for the railroad company [•] and also to allow the sheriff
to proceed under the execution issued to him by said attorney and
collect bis fees upon the amount of the judgment, and interest [•]
(Decided October 24, 1888.)

Motion by petitioner, tbat an execution on a judg-
ment in favor of a railroad company of which he was
receiver be returned as satisfied upon payment of the
sheriffs fees thereon and that he be allowed to retain
the money paid him in satisfaction of said judgment.

The opinion states the facts.
William E. WalJcley, for petitioner.
Harwood H. Pool, in person, opposed.

Potter, J. — This is a motion, upon petition, that
Joseph Pool show cause why the sheriff should not
return an execution issued to him by said Pool, as
attorney for the above railroad company, as satisfied,
when the sheriffs fees thereon are paid, and why the
petitioner should not be allowed to retain the sums that
he has received upon the judgment (being the full
amount thereof) on which said execution was issued.

Prom the papers presented by the petition of the
receiver, and the affidavits, it appears that one Gilder-
sleeve brought an action against the Pelham and Port-
Chester Railroad Company, and Mr. Pool was employed
by the defendant to defend said action, and did so suc-
cessfully ; the result being that said company recovered
a judgment against the plaintiff in the action for the
costs for the services which Mr. Pool rendered in the

142 CIVIL PROCEDURE REPORTS.

In re Bailey.

action, and his disbursements, in behalf of the com-
pany.

During the pendency of the action and before the
trial thereof, or tbe recovery of said judgment, the
company was declared insolvent, and the petitioner
was appointed its receiver.

The judgment for costs and disbursements was
entered up by Mr. Pool on June 9, 1883, and upon
June 14 following said Pool gave notice in writing
to the plaintiff's attorney, in the action in which the
judgment was recovered, that he had a lien upon said
judgment for hi* costs therein, and that the amount of
said judgment be paid to him, and on June 26 issued
an execution upon said judgment to the sheriff to col-
lect the same. Nevertheless, the plaintiff in said action
paid the amount of said judgment to said receiver,
who now asks the court hy said petition to be allowed
to withhold the same from said Pool, and that the
sheriff be directed to return said execution upon being
paid his fees.

The receiver takes the position that he has a right
to said costs by virtue of his appointment as receiver,
superior even to the right of the attorney who rendered
the services and advanced the money for which the
judgment for costs was rendered. The receiver, in
order to make his right to said costs appear more
unqualified and absolute, sets forth in his petition that
he had no contract or understanding with said Pool
during the pendency of said action, or at any other
time. By this, I suppose, is meant that he did not, as
receiver, recognize said action, or Mr. Pool as his attor-
ney in conducting the same, and so Mr. Pool can have
no claim, legal or equitable, against the receiver for his
services. If that is so, it can only go to intensify the
absence of any equity in the claim that the receiver now
makes, to have said costs at the expense of the person
who earned them. There are some other notable feat-

CIVIL PROCEDURE REPORTS. 143

In re Bailey.

ures in the transactions of the receiver and other parties
in this matter, but, as they are of no importance in the
view I entertain of the question presented, I refrain
from alluding to them particularly.

The attorney of the railroad company had a lien for

his costs against the company, and the company,

[*] if not dissolved, could not deprive the attorney of

them or receive them of the other party to the

action who was adjudged to pay them after notice of

the attorney's lien to the deprivation of the attorney

who recovered them. No notice or other step was

["] necessary upon the part of the attorney to create

his lien. His right to those costs was substantial

and absolute, after notice. The courts always have

protected the attorney's lien for costs in a judgment

upon motion to set off reciprocal judgments between

the parties to the action in which such judgments were

recovered, whether for costs and damages or either.

I have failed to perceive any title to the costs in
["] question, legal or equitable, that the receiver can

maintain. We have seen the railroad company itself,
if still in existence, could not, as against its attorney,
hold these costs. Certainly the receiver of a dead cor-
poration can have no better right than the corporation

would have, if alive. The receiver takes the same
[4] title the corporation had in its lifetime, and takes

by transfer. When the corporation ceased to be,
there was no judgment In its favor against Gildersleeve,
who brought his action against it ; no right to any costs
had been established or adjudged in favor of the cor-
poration when it ceased, or made a transfer of its assets
to the receiver. This was never an asset of the cor-
poration. It was the judgment that was rendered after
its dissolution that created these costs. Where and
how did the receiver become the owner of this judgment
for costs, or become entitled to receive these costs,
especially as against Mr. Pool, the attorney 1

U4 CIVIL PROCEDURE REPORTS.

8koog v. N. Y. Novelty Co.

This motion must be denied, with ten dollars costs,
to be paid by the receiver ; and as he is before the
court by petition, asking to have his right to the costs
he has received established, I think it proper and com-
petent for the court, in disposing of this matter, to
['] order the receiver to pay the costs he has received,
with the interest thereon from the time he received
the same, to Joseph Pool, Esq., the attorney of the
railroad company, npon service upon the receiver of a
copy of the order to be entered herein ; and further
[•] that the stay of the sheriff from collecting the said
execution be vacated and the sheriff be allowed to
proceed thereunder and collect his fees upon the
amount of the judgment and interest.

SKOOG v. NEW YORK NOVELTY COMPANY.

City Court op New York, Special Term, October,

1883.

§§451, 728.

Amending summon*. — When summons may be amended by inserting real
names of defendants in place of name under which they did business.

Where certain persons were doing business under the name of "The
New York Novelty Company,' * and service of the summons, in an
action in which "The New York Novelty Company" was named as
defendant, was made on such persons, — Held, that a motion to amend
the summons by inserting the names of such persons as defendants*
in place of The New York Novelty Company should be granted; that
although it was alleged in the complaint that the defendant was a
corporation, and was sued as such, it must be held that they were
sued in that name ; that if there were a corporation doing business
under the name of The New York Novelty Company, the motion
could not be granted; also Held, that while it is true that the

CIVIL PROCEDURE REPORTS. 145

Skoog v. N. Y. Novelty Co.

name of one person cannot be stricken oat and that of another
inserted, the case at bar presents no such question.
(Decided October 28, 1868.)

Motion to amend the summons in this action by in-
serting the names of Gabriel Schwab and others as de-
fendants in place of The New York Novelty Company.

Gabriel Schwab and others were doing business in
the city of New York as copartners under the firm
name of The New York Novelty Company. The plaint-
iff brought this action, naming The New York Novelty
Company as defendants and serving the summons on
said Schwab and his copartners.

The contract upon which this action was based was
made by the plaintiff with The New York Novelty
Company; and from the terms of the contract the plaint-
iff supposed that the defendants were a corporation,
and sued them as such, and alleged in his complaint
that it was a corporation. The defendants interposed
an answer wherein they alleged that they were not and
never had been a corporation, but that the name, The
New York Novelty Company, was the name under
which certain persons composing the firm of Gabriel
Schwab & Brothers transacted their business. There-
upon the plaintiff made this motion.

/. Edward Swanstrom^ for motion.

David Tim, opposed.

Ha wes, J. — The motion to amend by inserting the
names of Gabriel Schwab and others in place of The
New York Novelty Company should be granted. It is
true that the defendant is alleged to be a corporation,
and is sued as such, but service was made upon Gabriel
Schwab and others, whose names plaintiff desires to
insert. It appears that these persons are doing busi-
Vol. IV.— 10

146 CIVIL PROCEDURE REPORTS.

WVrckumii «. Wercknmn.

ness under the name of The New York Novelty Com-
pany, and it must be held that in that name they were
sued. If there was a corporation doing business under
the name of The New York Novelty Company then I
do not think that the court could allow the amendment,
as the cane would fall within the ruling of the case of
New York State Monitor Milk Pan Ass'n v. Reming-
ton Agricultural Works (83 N. Y. 2i\ The suit,
however, is brought against the real parties under their
partnership name, for in truth there is no The New
York Novelty Company except as it represents the real
defendants ; and section 723 of the Code allows in terms
the correction of a mistake in the name of a party.
(See, also, Newton v. Milleville Manufacturing Co., 17
Abb. Pr. 318; Bank of Havana v. Magee, 20 N. Y. 355.)
It is very true that the name of one person cannot be
stricken out and that of another inserted, but the case
at bar presents no such question.
Motion granted.

WERCKMAN v. WERCKMAN.

Supremk Court, Fourth Department, Oneida
County Special Term, August, 1883.

§§ 131, 132.

Sentence to State prison for a term leu than life does not deprive the
jirieoner of the right to defend an action brought against him.

Although a sentence to imprisonment in States Prison for a term lees
than life suspends the right of the prisoner to sue, it does not protect
him from being sued ; and express provision is made, by section 132
of the Code of Civil Procedure, for the service of process upon him.
This liability to be sued necessarily implies the right to defend ; and
if it is a civil right, within the provisions of the Itc vised Statutes

CIVIL PROCEDURE REPORTS. lit

* ■ ■ i i ■ i. i i j

Werckman u. Werckman.

[2 R S. 701, § 19,] that such sentence suspends all the civil rights
of the prisoner, it must be deemed to have been excepted by the
Code from their operation.
{Decided September 8, 1888.)

Motion for judgment against the defendant.

The facts are stated in the opinion/

JR. 0. Jones , for the motion.

Vaitnt, J.— Motion for judgment against the defend-
ant, without notice to his attorneys, on the ground that
by his sentence to imprisonment in a state's prison for
a term less than life, all his civil rights are supended,
including the right to farther defend this action until
such term shall have expired. Motion denied. Held,
that although, under the Revised Statutes (3 B. 8.
2588, § 19*), such a sentence suspends the right of a
prisoner to sue, it does not protect him from being
sued ; that by the Code express provision is made for
the service ox process upon him (Code Civ. Pro. § 132) ;
that the liability to be sued, of necessity, implies the
right to defend, and that if the right to defend is a oivil
right within the meaning of said provisions of the
Revised Statutes, it must be deemed to have been
excepted by the Code from their operation.

* Banks' 7 ed. ; same statute, 2 B. & 701, % Ifc

U8 CIVIL PROCEDURE REPORTS.

Hall •. United States Reflector Co.

HALL bt al. v. THE UNITED STATES RE-
FLECTOR COMPANY.

Supreme Court, First Department, New York
County Special Term, October, 1883.

§§ 14, 15, 709, 1241, 8256, 3307.

7%e practice a* to the payment of sheriffs feet and charge* upon an

attachment and the reimbursement of the party paying them, stated.—

When motion to compel sheriff to deliver to defendant attached

property upon vacation of attachment will be denied. — When

motion to punish party for failing to pay costs, etc., cf

attachment, as required by order of court, will be

denied. — Whether court has power to fix

amount of sheriff** fee* on attachment •

or determine who shall pay them,

guare.

The fees and charges of the sheriff for executing a warrant of attach-
ment are to be included in the judgment in favor of the party to
whom costs in the action are awarded, and collected as part of the
costs of the action. [l] If the attachment remains in force through-
out the action, the sheriff will sell the property, either under the
attachment or execution, and retain his fees and charges out of the
proceeds of the sale. ['] If the warrant of attachment vacated, cr
annulled, or discharged, the sheriff is required to deliver the property
to the defendant, or the person entitled thereto, upon reasonable
demand, and the payment of all costs and charges and expenses
legally chargeable by him. The fees, eta, thus paid by the defend-
ant will be included in a judgment for costs in the action, if the
defendant be awarded them, and collected from the plaintiff by exe-
cution, or by an action upon the undertaking given upon the issuing
of the attachment ; and likewise out of the undertaking if the
defendant pays the sheriff's fees, etc., but is not awarded costs of the
action. [*]

Where a defendant moved for an order requiring the sheriff to return
attached property to him upon the vacation of the attachment, with-
out payment of his fees, etc., and it appeared that the defendant's

CIVIL PROCEDURE REPORTS. 14t

Hall v. United States Reflector Co.

assignee had theretofore brought an action for conversion by the
sheriff of the same property, founded on his refusal to deliver it,
Held, that the motion should be denied. [•]

Where a plaintiff, upon the vacation of an attachment, was ordered to
pay the fees, etc, of the sheriff for executing the attachment, and he
failed to do so, — Held, that a motion to punish him as for a contempt
in failing to do so should be denied [4] ; that the question of the right
to issue a precept against the body in such case was too uncertain to
warrant or justify such process. [4] Also, — Held, that the fact that
an action had been brought by the sheriff against the plaintiff, the
defendant, and the defendant's vendee, to procure a judgment adjudg-
ing that the attached property be sold to pay his fees and charges
and against the plaintiff in the attachment suit for any deficiency
arising on such sale, was another and sufficient reason for denying
the motion. [•]

It is competent for the judge issuing an attachment to allow the fees
and charges of the sheriffs thereon, but quart whether the court
has the power to fix those fees and charges, or determine who shall
pay them, upon motion or by order.

(Decided October 20, 1883.)

Motion by defendant (1) that the sheriff be required
to deliver to it property seized under an attachment,
now vacated, without payment of his fees, etc., and (2)
for a precept against the persons of the plaintiffs, to
punish them as for a contempt in failing to pay such
fees, etc., as directed by the order of the court vacating
the attachment.

At the commencement of this action the plaintiffs
procured the issuing of a warrant of attachment under
which the sheriff of the city and county of New York
attached certain machinery, gas fixtures, and other
property. The attachment was subsequently vacated
by an order of the oourt, which also fixed and deter*
mined the amount of the sheriff's fees and charges, and
directed that the plaintiff pay the same. This the
plaintiff failed to do, and the sheriff refused to deliver
the attached property, either to the defendant or to a

150 CIVIL PROCEDURE REPORTS.

Hall 0. United States Reflector Co.

person to whom the defendant had assigned it, until his
fees, etc., were paid.

The defendant's vendee thereupon brought an action
against the sheriff to recover damages for a conversion
of the property in failing to deliver it upon demand.
The sheriff, also, brought an action against the plaint-
iffs, the defendant, and the defendant's vendee, to pro-
cure a judgment decreeing a sale of the property to sat-
isfy and pay his said fees and charges and against the
plaintiff herein for any deficiency arising on such sale.

These motions were made thereafter, and during the
pendency of said actions.

Edward P. Wilder^ for the defendant and motion.

Chamberlain, Carter & Horriblower, for plaintiffs,
opposed.

Charles F. MacLean, for the sheriff, opposed.

Potter, J. — There are two motions made by the
defendant in this action ; one to punish plaintiffs for
contempt by arrest and imprisonment, under an attach-
ment, for failure to pay the fees and charges of the
sheriff, as fixed and allowed by the order of this court,
June 1, 1883, upon an attachment issued in this action ;
and the other to direct the sheriff to surrender and
deliver the property of the defendant taken by the
sheriff under said attachment.

I have come to the conclusion that both motions
should be denied. The law gives the sheriff certain
specified fees for serving an attachment, and also pro-
vides that the judge issuing the attachment shall allow
the sheriff additional compensation for his services and
trouble in taking possession of and preserving the
property. The fees and charges are to be included
['] in the judgment in favor of the party to whom

CIVIL PROCEDURE REPORTS. 151

Hall «. United States Reflector Co.

costs in the action are awarded (§ 3256, Code Civ.
Pro.), and collected as part of the costs in the action.
If the attachment remains in force throughout the
action, the sheriff will sell the property, either under
the attachment or execution, and retain his fees and
charges out of the proceeds of the sale.

If the warrant of attachment is vacated or annulled,
or discharged, the sheriff is required to deliver the
[*] property to the defendant, or the person entitled
thereto, upon reasonable demand, and upon pay-
ment of all costs and charges and expenses legally
chargeable by the sheriff {Code Civ. Pro. § 709). The
fees and charges thus paid by the defendant will be
included in a judgment for costs in the action, if he be
awarded costs of the actipn, and be collected of the
plaintiffs upon the execution against the plaintiffs, or
by an action upon the undertaking given by plaintiffs
upon issuing the attachment ; and likewise out of the
undertaking if the defendant pay the sheriff's fees,
under section 709, in case the defendant is not awarded
costs of the action.

It seems to me that this is the scheme provided by
the Code for the payment of the sheriff's fees and
charges upon an attachment, and for the reimbursement
of the party paying them. This scheme protects the
sheriff in any event of the action, or of the warrant of
attachment, and is the only one that will suffice for that
purpose, and is an amendment and improvement of the
former statutes for that reason. But if this view is not
correct, I should not be disposed to grant an order
directing the sheriff to deliver the property attached to
the defendant or his vendee, for the reason that an
action has been commenced by him, and is still pending,
to recover the value of this property of the sheriff, as
for a conversion of it by the latter, in refusing to de-
liver it until his fees and charges were paid.

152 CIVIL PROCEDURE REPORTS.

Hall v. United States Reflector Co.

The defendant or bis vendee has elected that mode
of testing the right of the sheriff to retain the prop-
['] erty until his fees and charges are paid, and I
think it was the best and wisest way of determining
that question, and am not disposed to interfere with the
mode selected by him. This motion should therefore
be denied, with costs.

In regard to the motion to punish the plaintiffs for
contempt in not paying the costs ordered to fce paid by
plaintiffs to the defendant, under the order of June 1,
1883, 1 think there is too much doubt in relation to the
law to warrant or justify me in signing an order to
arrest and imprison the plaintiffs. It is a harsh and
severe remedy and should not be resorted to or applied
except in a clear case. Sections 14, subd. 3 and 15,
and 1241 of the Code of Civil Procedure, upon the
subject of contempts and arrests for the non-
[4] payment of money, leave the question of the

right to issue a precept against the body in this
case too uncertain to warrant or justify such pro-

But there is another source of doubt in this case.
I am not satisfied that the court has the power to make
the order for non-compliance with which the party is
sought to be put in contempt. It was competent for
the judge issuing the attachment to fix and allow the
fees and charges of the sheriff upon the attachment,
under section 3307.* I am not satisfied that the court

has the power to fix those fees and charges, or
['] that the court has the power to determine who

shall pay those fees and charges, upon motion or

* An order fixing the- compensation of a sheriff for his trouble in
taking possession of and preserving property attached is in the discre-
tion of the judge granting the attachment, and cannot be reviewed in
the court of appeals. German American Bank v. The Morris Run Coal
Co., 74 jy: Y. 53.

CIVIL PROCEDURE REPORTS. 153

Hall «. United States Reflector Co.

by an order, or otherwise than as prescribed by the
scheme of the Code as above outlined.

Bat another and sufficient reason for denying this
motion is to be found in the fact that the sheriff has
commenced an action, which is now pending, against
the plaintiffs and defendant and the defendant's vendee,
to determine the questions involved in both motions as
to the liability of the parties or either of them to pay
his fees and charges, and in what proportion and

to what extent, and whether he has a right to
[*] retain the attached property until such fees and

charges are paid. These questions can be much
more satisfactorily determined by an action than by
these motions. In an action, all parties can be heard
and all questions presented at the same time, and one
judgment rendered, embracing all the questions in dis-
pute between the various parties. I therefore deny the
motion to punish for contempt, but without costs, as
the action of the defendant was based upon an order
of the court.

154 CIVIL PROCEDURE REPORTS.

Bowe «. United States Reflector Go.

BOWE v. THE UNITED STATES REFLECTOR
COMPANY bt al.

Supreme Court, First Department, Special Term,
October, 1883.

§§ 703, 1737, 1739.

Sheriff has lien upon attached property for his fees, etc., after vacation of

attachment, and is not obliged to deliver it to defendant until they

are paid. May bring action to procure a sale of the attached

property in satisfaction of such lien.

The sheriff has a right to his costs and fees for executing an attachment,
notwithstanding it has been set aside ; and until they arc paid he is
not obliged to deliver the property to the defendant This amounts
to a lien in his favor upon the goods attached for the amount of his
fees, and an action to enforce such lien by a sale of the property is ,
proper.

Where a warrant of attachment was vacated and the plaintiff was
directed by an order of the court to pay the sheriff's fees, etc, but
failed to do so, and the sheriff, claiming a lien upon the attached
property for his fees, charges, etc., refused to deliver it to the defend-
ant or his assignee until they were paid, and brought an action
against the plaintiffs and defendant in the attachment, and the per-
son to whom the defendant assigned the property ; and in his com-
plaint therein set forth these facts, and asked judgment directing a
sale of tne attached property in satisfaction of his lien for fees,
etc., and the expenses of keeping the property after the taxation
of his fees, and for the deficiency, if any, against the plaintiffs in the
attachment suit, and the complaint was demurred to on the grounds
that it did not state facts sufficient to constitute a cause of action,
and that there was a misjoinder of parties defendant, and that there
was an improper joinder of cause of action : Held, that plaintiff,
should have judgment on the demurrer.

{Decided October 30, 1888.)

Demurrer to the complaint by the defendant, the
United States Reflector Company ; and another by the
defendant, William Corbit.

CIVIL PROCEDURE REPORTS. 156

Bowe «. United States Reflector Co.

The plaintiff brought this action as late sheriff of
the city and county of New York to procure a judg-
ment decreeing that certain personal property attached
by him under a warrant of attachment which had
before the commencement of this action been vacated,
be sold, and that out of the proceeds he be paid the
sum of $5429.38, balance due on account of his fees, etc.,
for executing said warrant of attachment and interest
thereon, and the expense of keeping the attached prop-
erty since his fees, etc., were taxed, and that he have
judgment against the defendants, Hall, Nicoll and Gran-
bery, who were plaintiffs in the attachment suit, for any
deficiency that may remain after application of the
proceeds of said sale in payment of said amount and
for the costs of this action.

The complaint shows that the plaintiff was from
January 1, 1880, to December 31, 1882, sheriff of the
city and county of New York, duly elected, qualified
and acting as such ; that the defendant, the United
States Reflector Company, is a corporation created,
organized and doing business under the laws of the
state of Connecticut ; that on or about the fourth day
of May, 1881, in a certain action then pending and
undetermined in the supreme court, wherein the defend-
ants, Hall, Nicoll and Granbery, were plaintiffs, and the
defendant, the United States Reflector Company, was
defendant, brought to recover $25,736.67 for alleged
breach of contract, a warrant of attachment against the
property of the defendant, the United States Reflector
Company, was duly granted and issued to this plaintiff
as sheriff ; that in pursuance thereof the plaintiff levied
upon and attached certain property of the defendant
enumerated in a schedule annexed to the complaint,
and continued to keep it under the attachment ; that
on May 3, 1883, the plaintiffs in the attachment served
a notice releasing the attachment as to certain of the
property, except for the purpose of satisfying plaintiff's

156 CIVIL PROCEDURE REPORTS.

Bo we v. United States Reflector Co.

lien for charges and expenses ; that by an order of the
court entered May 5, 1883, the attachment was vacated
conditionally upon Hall, Nicoll and Granbery's, within
five days after service of the order, refusing to give
further security ; that they failed to give the security,
and on June 1, 1883, another order was made taxing the
sheriffs fee? and directing the delivery to the defend-
ant of the attached property upon payment to him of
said fees; that he had in the execution of the writ
incurred heavy expenses, principally for rent of the
places in which the attached property was kept, under
an agreement with the parties and at their request ; that
about November 15, 1883, these fees and expenses were
taxed at $7224.58, less the sum of $3632.50; theretofore
paid, leaving the sum of $3592.08 then due, and after
the failure of the plaintiffs in the attachment to give
additional security, they were again taxed at the sum of
$6609.78, less $180, theretofore paid by plain tiff, leaving
then due $5429.78, which included the balance due upon
the former taxation ; that by agreement of the parties
the property was to remain at No. 4 Great Jones street,
in this city, until finally disposed of, and the rent was
and is to be treated as an expense of the sheriff; that
the property still remains at that place ; that the plain-
tiff has and claims a lien upon the property for his
expenses ; that pending the attachment the defendant,
Corbit, acquired or claims to have acquired some inter-
est in the property which is subject to the plaintiffs
lien, and that plaintiff has demanded the amount of his
fees and expenses from the defendants, but they have
each of them refused to pay the same or any part
thereof.

The defendants, The United States Reflector Com-
pany, demurred to the complaint on the grounds, (1)
that it does not state facts sufficient to constitute a
cause of action ; (2) that there was a misjoinder of par-

CIVIL PROCEDURE REPORTS. 157

Bowe v. United States Reflector Co.

ties defendant, and (3) that there was an improper
joinder of causes of action.

The defendant, Corbitt, demurred on the first
ground alone, and the defendants Hall, Nicoll &
Ghranbery, answered.

Edward P. Wilder, for demnrrer of the defendant,
The United States Reflector Company.

William Arrowsmith> for demurrer of the defend*
ant, William P. Corbitt.

Charles F. MacLean and Malcolm Chraham
{Charles F. MacLean, attorney), for the plaintiff,
opposed.

Van Vokst, J. — There must be judgment for the
plaintiff on the demurrer. Section 709 of the Code of
Civil Procedure recognizes the sheriff's right to his
costs and fees, notwithstanding the attachment has
been set aside ; and until paid, he is not obliged to de-
liver the property to the defendant. This amounts to
a lien in his favor upon the goods attached for the
amount of his fees.

The action is therefore proper to enforce his lien by
a sale of the property, for otherwise the expense of de-
taining it, together with his fees, would exceed the
value of the property.

Judge Potteu has had the subject lately under
consideration in a controversy between these parties,
and by his opinion, a copy of which has been handed
up, he expresses the views substantially above men-
tioned.*

There must be judgment for the plaintiff on the
demurrer with liberty to defendants to answer on pay-
ment of costs.

* The opinion here referred to wae written in the case of Hall v.
The U. 8. Reflector Company, and is reported ante, p. 148.

158 CIVIL PROCEDURE REPORTS.

8mith 9. Davie.

SMITH v. DAVIS, IMPLEADED, wro.

Supreme Court, Fourth Department, Oneida
County Special Term, August, 1883.

§§ 484, 488.

Foreclosure of mortgage— Prior mortgagee properly made defendant i*
action for, to determine amount due on hie mortgage. ,

In an action for the foreclosure of a mortgage a prior mortgagee,
although not a necessary, is a proper party defendant for the pur-
pose of ascertaining the amount due on his mortgage.

{Decided September 8, 1888.)

Demurrer to complaint by defendant Fannie E.
Davis on the ground that it does not state facts suffici-
ent to constitute a cause of action against her.

The facts are stated in the opinion.

H. 0. Jones, for demurrer.

Jf. Y. B. McOraWy for plaintiff, opposed.

Vann, J.— Demurrer to a complaint for the foreclos-
ure of a mortgage upon the ground that no cause of
action is alleged against Fannie E. Davis, a prior mort-
gagee, who, according to the complaint, was made a
defendant for the purpose of ascertaining the amount
due her, and in order that she could be first paid from
the proceeds of the sale.

Demurrer overruled with costs, but with leave to
answer upon the usual terms.

Held, that Fannie E. Davis although not a necessary
was a proper party for the purpose of ascertaining th*

CIVIL PROCEDURE REPORTS. 159

Broadwell •. Holcombe.

amount due on her prior incumbrance.* With that
fact settled by a decree binding all of the parties, pur-
chases, could bid more intelligently, and the premises
would be more likely to sell for their real value*

BROADWELL v. HOLCOMBE.

Superior Court of the City of New York, Special
Term, September, 1883.

§§ 2260, 2263, 2265.

Summary proceeding* — When execution of warrant in, will not be

enjoined, except in com where proceeding* on judgment in action of

ejectment would be. — Giving of collateral eecurity doee not

necesearily prevent enforcement of original undertaking.

The granting of an injunction in an action brought against a landlord
to stay the execution of a warrant in summary proceedings, after
final judgment, is confined to the cases and conditions in which an

* In Brown v. Volkening (64 iV. Y. 76) it was held that one assert-
ing a right under a mortgage prior to a mortgage which an action was
brought to foreclose, was a proper party to the action, and the question
of priority was a proper one to be determined in it. See also Hancock
f>. Hancock, 22 K Y. 568 ; Western Ins. Co. v. Eagle Fire Ins. Co., 1
Paige, 284 ; Holcomb v. Holcomb, 2 Barb. 20 ; Bank of Orleans v.
Fl*g?« * Barb. Oh. 816; Vanderkemp v. Shelton, 11 Paige, 28; but see
McReynolds t>. Munn, 2 Keye*\ 214. In Emigrant Industrial Savings
Bank c. Goldman (75 K Y. 127) ; it was held that in an action for tho
foreclosure of a mortgage the plaintiff may make prior incumbrancers
parties for the purpose of having the amount ascertained, and paid out
of the proceeds ; but that so far as mere legal rights are concerned the
only proper parties to such an action are the mortgagee, the mortgagor
and those who have acquired rights under them subsequent to the
mortgage; and that these parties only are affected by the judgment*
See Eagle Fire Ins. Co. v. Lent, 6 Paige, 635 ; Frost v. Koon, 80 JV. Y.
428 ; Lewis v. Smith, 9 Id. 502 ; Corning v. Smith, 0 Id, 82 ; Bank of
Orleans v. Flagg, eupra; Bache «. Doscher, 67 2T. Y. 429.

160 CIVIL PROCEDURE REPORTS.

Broad well e. Holconibe.

injunction might be granted to stay the execution of a judgment in
an action of ejectment, f1]

The proceedings of a landlord in summary proceedings to recover the
possession of real property will not be enjoined in an action brought
against him, after judgment in the summary proceedings in his favor,
when the questions involved can be determined at law ['] or when
the grounds relied upon for an injunction would be equally available
if urged as a defense to the summary proceedings ; [*] but when the
landlord is making an oppresive use of the judgment, [*] or his title
to the premises has terminated ; [4] or the tenant has, subsequent
thereto, acquired some interest or equity in the subject-matter
which should be protected ; [*] or when the judgment was procured
by fraud or collusion ; [4J or if the justice goes beyond his jurisdiction
either in taking cognizance of the proceeding or while he is acting in
it the court may doubtless restrain him. [•] 80 also, it acem*, that
it might do so, if it appeared that the tenant had equities which the
justice could not protect. [ft]

Where in an action to procure an in junction restraining the execution of
a warrant issued in summary proceedings brought by the defendant as
landlord against the plaintiff as tenant, the defendant asserted that
in April, 1883, he rented the premises in question to the plaintiff for
the term of one year under a verbal contract, which provided, among
other things, that the rent was to be paid monthly in advance, and
for the givingjof security therefor ; and it appeared that subsequently
one Robert Bruce, who, plaintiff claims was her agent, assigned a
certain pool receipt for stock to defendant, and he gave a receipt in
which he agreed to hold it " as collateral security " for the rent, and
that no sale or disposition of the pool receipt should be made until the
first day of May, 1884,— //<?&f, that such security was in pursuance of
the previous agreement, and was not the original but a collateral under-
taking and obligation ; [•] that by it the landlord did not waive either
the payment of the rent in advance or his right to invoke his remedies
under the statute in case of a failure to pay the rent when due. [fJ
Also Held, that in any event, the questions before the justice were
legal, and as such were within the jurisdiction of the justice to decide, [*]
and that the N. Y. superior court had no supervisory power over
his judgment, or to review it, or supersede its execution in such suit [*]

If there is any error in summary proceedings to recover possession of
real property before a justice, who has jurisdiction of them, or in
his decision, it can be corrected only on appeal [■• J and if his decision
should be ultimately reversed, the tenant's remedy under the Code
is by an action for damages. [*]

A collateral security does not necessarily suspend legal efforts end

CIVIL PROCEDURE REPORTS. 161

Broad well t. Holcombe.

remedies to enforce the principal undertaking, according to its terms,
until it is fully satisfied; and when that is accomplished the security
should be given up. [']

Chadwick v. Spargur (1 i\T. Y. Civ. Fro. 422) ; [*,»] Knox «. McDon-
ald (25 Hun> 268), [4J approved and followed.

{Decided September 26, 1883.)

Motion by plaintiff to continue a temporary injunc-
tion restraining the issuing of a warrant in summary
proceedings.

This action was brought, among other things, to
enjoin the execution of a warrant issued in summary
proceedings to recover the possession of real property,
brought by the defendant against the plaintiff. The
plaintiff asserts that one Robert Bruce was her agent
in and about the renting of a certain premises known
as No. 54 East Twenty-fifth Street, in the city of New
York ; that on May 1, 1883, she rented said premises,
by an instrument of which the following is a copy.

" P. O. Box 1491, New York, May 1, 1883.
" Received of Robert Bruce a pool receipt of Wells,
Fargo & Co., calling for twenty shares of United Globe
Electric Light Company stock of the par value of $2000
upon the first day of May, 1884, which I agree hereby
to hold as collateral security for the payment of 81200
rent from Mrs. A. A. Broad well, of and for the premises
No. 54 East Twenty-fifth St.; and I hereby agree to
deliver said receipt to said Robert Bruce upon the
expiration of one year from to-day, provided said rent
is fully paid by Mrs. Broadwell to me on the first day
of May, 1884, and in case of default in said payment,
then this stock shall be used to defray the difference,
of said rent due by Mrs. Broadwell, and any excess
shall be paid to said Robert Bruce or order ; but no
Vol. IV.— 11

162 CIVIL PROCEDURE REPORTS.

Bn>ad* ell c. ilolcimibe.

sale or disposition shall be made of this pool receipt
until the first day of May, 1884.

" Wm, Fred. Holcombe.
" Witness : Robert Bruce."

The plaintiff claims that the understanding at the
time this receipt was given was that she should pay the
rent as she was able, and that this security was given so
that she should, in any event, have possession of the
premises until May 1, 1834.

The defendant denies that Robert Bruce was plaint-
iff's agent, and alleges that he was a guarantor or surety
only. He also states that on May 17, 1882, he rented
the premises in question, of which he was then and is
now the owner, to plaintiff, under a written lease, for
eleven months from June 1, 1882, at a rental of $225
per month, payable monthly in advance ; that she
agreed to board him and his family, and he agreed to
credit her therefor with $125 per month on account of
the rent; that on or about April 14, 1883, the defend-
ant requested him to rent her said premises for one
year from May 1, 1883, for board of himself and family
and $100 per month, and he agreed to do so if she
would pay rent for three months in advance, viz., for
May, June, and July, 1883, and give good security for
the payment of the rent, which was to be paid in
advance ; that she promised to do so, and give him $100
in cash for I he May rent, and a due-bill, of which the
following is a copy :

" Due Dr. W. P. Holcombe on May 1, 1883 ($200.00)
two hundred dollars for rent of house No. 54 East
Twenty-fifth St., for the months of June and July 18S3>
as per agreement between us."

IC New York, April 14, 1883. Robert Bruce."

He also alleges that said due-bill was not paid ;

CIVIL PROCEDURE REPORTS. 163

Broadwell v. Holoombe.

that the rent for June, July, and August, has not
been paid, although duly demanded; and that he
therefor brought summary proceedings to dispossess
her for such non-payment of rent in the Sixth District
Court in the city of New York, in which a trial was had
in August, 1883, and a judgment rendered in his favor
August 28, 1883.

The plaintiff, in affidavits used on this motion,
denies the making of the agreement alleged by defend-
ant to have been made on May 14, 1883, and asserts
that the $100 was paid and the due-bill given as an
accommodation to the defendant.

Pierre O. Talman, for the motion.

John F. Baker, opposed.

Van Vorst, J. — The Code of Civil Prooedure gives
an ample remedy for the review of the proceedings
upon a summary application by a landlord for the
removal of his tenant for non-payment of rent; for-
merly by certiorari, it is now by appeal (section 22(50).

And section 2261 declares that the issuing of the
warrant cannot be stayed by such appeal or the giving
of an undertaking thereunder otherwise than is pro-
vided for in section 2262. In the county of New York,
however, the execution of the warrant will not be
stayed by the appeal or the proceedings thereunder
(section 2262).

Section 2263 gives to the person dispossessed a
remedy by action for the recovery of the damages which
he may have sustained by the dispossession, if the
final order is reversed upon the appeal.

Section 2265 provides that, if the final order awards
delivery of the possession, the issuing or execution of
the warrant therefor cannot be stayed or suspended

164 CIVIL PROCEDURE REPORTS,

BroadweU v. Holoombe.

by any court or judge except in one of the following
methods :

1. By an order made, or an undertaking filed, upon
an appeal in a case, and in the manner specially pro-
vided for that purpose.

2. By an injunction order granted in an action
against the petitioner (L *., the landlord) ..." after
the final judgment, except in a case where an injunction
would be granted to stay the execution of the final
judgment " in an action of ejectment, and upon like
terms.

We have here a full scheme, with specific regula-
tions, controlling these summary proceedings, and which
gives the only method of a review of the same, and it
limits the cases and conditions upon which an order
of injunction may be granted to stay the execution of

the warrant after final judgment. This latter
['] remedy is confined to cases and conditions in

which an injunction might be granted to stay the
execution of a judgment in an action of ejectment. In
order, thererefore, to determine the plaintiffs right to
a remedy by injunction, we must consider in what
cases, and for what reasons, it might be invoked to stay
the execution of a judgment in ejectment.

In Chadwick v. Spargur (I N. T. Civ. Pro. 422), we

have it stated — "The proceedings of the plaintiff
[*] in an action of ejectment will not be enjoined when

the questions involved can be determined at law,
or when the the ground relied upon for an injunction
would be equally available if urged as a defense to the

action. If the questions raised by the answer in
[■] the proceeding are within the jurisdiction of the

Justice to decide, the question of the correctness
of his ruling must be raised by appeal " (Jessurun v.
Mackie, 24 Hun, 624 627).

In Knox v. McDonald (25 Hun, 268), Hardin, J.,
in an opinion at General Term, says, in substance,

CIVIL PROCEDURE REPORTS. 165

Broad well «. Holcombe.

{*] that injunctions are granted after final judgment
in ejectment when the plaintiff is making an
oppressive nse of it, citing Jackson v. Styles (3 Wend.
49), or when the plaintiff's title to the premises has
terminated, or where the defendant has, subsequent
thereto, acquired some interest or equity in the sub-
ject-matter which should be protected, or when the
judgment was procured by fraud or collusion (see, also,
Armstrong v. Cummings, 20 Hun, 313 ; Brown 3.
Met. Gas. L. Co., 38 Eow. Pr. 133).

In Chad wick v. Spargur {supra) it was said, " that

if the justice goes beyond his jurisdiction, either

[*] in taking cognizance of the proceeding or while he

is acting in it, this court might doubtless restrain ;

so it might, I think, if it appeared that the tenant had

equities which the justice could not protect."

These cases, I think, sufficiently indicate the cases in
which this court can, under its equity powers, restrain
the execution of the warrant ; and I cannot conceive it
to be necessary to add anything to the exposition of
the law thus made. They indicate the rule which
should apply to and would be likely to be decisive of
any given case.

The question arises, does the plaintiff make out a
case which would authorize the court to interfere with
the execution of the warrant which has been ordered to
be issued by the justice before whom the proceedings
were had %

It was urged on the argument of this motion on the
plaintiffs behalf, that the relation of landlord and
tenant was created by the writing of May 1, 1883,
which forms a part of the papers in the case, and by
which the payment of the rent was attempted to be
secured. But I do not so understand the transaction.
The agreement for the letting of the premises, and for
the amount of rent to be paid therefor, and when to be
paid, was fixed before that day, and about the middle of

166 CTVTL PROCEDURE REPORTS.

Broad well 0. Holcombe.

April, 1883, plaintiff agreeing to give security for the
payment of the rent. The security given on the first

day of May was in pursuance of such previous
[•] agreement, and was not the original, but a colla-
teral, undertaking and obligation. The rent was
to be paid monthly in advance.

I do not find in the writing of May 1, 1883, any
waiver on the part of the landlord, either of the pay-
ment of the rent monthly in advance or of his right
to invoke his remedies under the statute, in case of a
failure to pay the rent when due. And a collateral

security has this quality, that it does not neces-
f] sarily suspend legal efforts and remedies to enforce

the principal undertaking, according to its terms,
until it be fully satisfied ; and when that is accom-
plished the security should be given up. In any event

the questions raised before the justice were legal,
[•] and involved the determination of the time and

terms of the letting of the premises ; and as to rent
being in arrear, and the effect of the agreement provid-
ing for collateral security, such were within the juris-
diction of the justice to decide, and this court has no
supervisory power over his judgment, to review it,
or supersede its execution, in a suit of the character of
the one now under consideration.

If there is any error in the proceedings before the

justice or in his decision, it can be corrected only
[•] on appeal ; and if his decision should be ultimately

reversed, the plaintiff's remedy under the Code is
by an action for damages. It is thus seen that the
plaintiff has a remedy at law, and in such case equity
cannot interfere.

The motion for a continuance of the injunction
must therefore be denied, and the temporary injunction
must be dissolved, with ten dollars costs.

CIVIL PROCEDURE REPORTS. 167

Pratt 0. Underwood.

PRATT, Respondent, v. UNDERWOOD, Ap-
pellant.

Supreme Court, First Department ; General
Term, March, 1883.

§§ 620, 713, 715.

Action for dissolution of partnership. — Instance of such action in which
receiver was properly appointed. — Instance of injunction order that
court had not power to make. — Order restraining defendant
from interfering with or disposing of partnership prop-
erty cannot be made in such action pendente lite unless
the plaintiff gives the undertaking required by
section 620 of the Code of Civil Procedure.

Where, in an action to dissolve a partnership and procure a settlement
of the partnership business, began in January, 1883, it appeared that
the partnership had been entered into May 14, 1882, for the purpose
of publishing and issuing a paper called Underwood's Counterfeit
Detector, and was to continue for three years from May 1, 1882, and
that during that year the parties became involved in such dissensions
and disagreements as rendered the further continuance of the part-

• nersbip business by them impracticable, and that the defendant had
in December, 1882, commenced a suit in equity in supreme court of
the District of Columbia to obtain a discovery of the subscriptions
received for the said Detector, after May 4, 1882, and had on
December 30, 1882, amended his bill therein by adding a prayer for
the dissolution of the partnership, and the plaintiff had in January,
1883, filed a cross bill in said court for the settlement of the affairs of
the partnership, and that a receiver was appointed in those suits to
take charge of its' assets, —Held, that a receiver of the partnership
effects and assets could very properly be appointed, ['] and that an
order appointing as such receiver the person who had been appointed
receiver in the actions in the District of Columbia, and which required
from him ample security for the discharge of the duties of his office,
was eminently just and proper. [*]

Where, in such case, the order appointing the receiver also prohibited
the defendant from editing, publishing, and issuing the said Detector,

168 CIVIL PROCEDURE REPORTS.

Pratt «. Underwood.

and it appeared that the Detector was the individual property of
the defendant, — Held, that as the further prosecution of the part-
nership business had become impracticable, and the Detector,
could not be published in the course of it, as it had been brought
to an end by the disagreement of the parties, the defendant, as the
owner of the Detector, could not legally be restrained from continu-
ing its publication himself and upon his own account, [*] and that
that part of the order containing such prohibition should be unquali-
fiedly reversed. [*]

In an action to dissolve a partnership and secure a settlement of its
affairs, an order restraining the defendant from disposing of the assets
of the firm is in fact an injunction, [s] and cannot be grunted pendente
lite unless the undertaking required by section G20 of the Code of
Civil Procedure is given. [4] Such order is no less an injunction
because it was made a part of an order appointing a receiver
than it would have been if it was separate and independent, [s] and the
security given by the receiver for the performance of his duties
will not take the place of the required undertaking which is designed
to protect the defendant against the loss or injury which might
be produced to him by preventing his interference with the part-
nership assets. [*]

Dayton c. Wilkes, 17 J3iw. iV. 510, followed. [T]

(Decided May 11, 1883.)

Appeal from an order appointing a receiver of the
effects and assets of a partnership existing between the
plaintiff and defendant, and restraining and enjoining
the defendant from disposing of any of the partnership
property, and from editing, publishing, issuing, and
distributing a paper called Underwood's Counterfeit
Detector, or any like or rival publications.

The opinion sufficiently states the facts.

Robert N. Wait, for appellant.

The court or judge has no power to grant an injunc-
tion order without security until after final decision. . . .
The appeal herein involves a jurisdictional question,
viz., that the court had no power to grant an injunction
order without security ; but if it were a discretionary
order, there exists a right of appeal to the general term.

CIVIL PROCEDURE REPORTS. 169

Pratt «. Underwood.

The court cannot, because of the comity existing be-
tween courts of different 8 fates, support an injunction
which the law of the state where the application for the
injunction order is made does not allow. The statute
is express that the party applying for an injunction
order must give security before the order is granted.
Code, § 620. The court here is called upon to decide
the case as presented on all the facts, and not to follow
the decision between the same parties in a suit in an-
other state.

Birdseye, Clayd <& Bayliss, for respondent.

The order appealed from was rightly made, ....
and should be allowed to stand, in all respects, as en-
tered. It was discretionary, and will not be reviewed
on appeal. Code Civ. Pro. §§ 713, 714 ; Sheldon v.
Weeks, 2 Barb. 532 ; Fellows v. Heermans, 13 Abb. Pr. .
N. S. 1 ; People v. Schoonmaker, 50 N. Y. 499 ;
Ludvigh v. Dusseldorf, 8 N. Y. Weekly Dig. 420;
Young v. Campbell, 75 N. Y. 525. It should be sus-
tained by reason of the comity existing between courts
of different states of the United States The re-
straining part of the order is only part of a general
order appointing a receiver, and is not within the pro-
visions of section 620 of the Code of Civil Procedure
requiring an undertaking on an application for an in-
junction order. Defendant's counsel had notice of the
settlement of the order, and was present on such set-
tlement, and if he had any objection to raise should
have raised it then. . . . Even if security was required
upon a restraining order of this kind, defendant's
proper course would have been to apply to the justice
making the order for a re-settlement, and to have ap-
pealed from the order denying such motion. The
omission, if any, is one that may be supplied, and is
not ground for vacating or modifying the order unless
plaintiff refuses to give security, if required, by the

170 CIVIL PROCEDURE REPORTS.

Pratt*. Underwood.

court. N. Y. Attrition Pulverizing Co. v. Van Tuyl,
2 Bun, 373 ; Palmer v. Fofey, 71 N. T. 106.

Daniels, J. — The parties were engaged in business as
partners under an agreement made on May 4, 1882, for
the publication and issuing of Underwood's Counter-
feit Detector. The partnership, it was agreed, should
be continued for the period of three years from May 1,
1882. But during that year the parties became involved
in such dissensions and disagreements as rendered the
further continuance of the partnership business by
them impracticable, and in the month of December,
1882, the defendant in this suit commenced an action
in equity against the plaintiff in the supreme court of
the District of Columbia to obtain a discovery of the
subscriptions received for the Detector after May 4,
#1882. The bill was amended on December 30, 1882, by
adding a prayer for the dissolution of the partnership,
and in January, 1883, the defendant in that action tiled a
cross-bill for the settlement of the affairs of the co-part-
nership, and a receiver was appointed to take charge of
its assets and property.* During the same month of
January this action was commenced in this court for
dissolution of the partnership and the settlement of the
partnership business.

It is very clear from this litigation that the parties
disagreed in such a manner as to render the further
[*] prosecution of their partnership business a practi-
cal imposibility, and for that reason a receiver

* The order appointing such receiver restrained both parties from
disposing of any of the assets or effects of the partnership, " and from
in any manner obstructing, hindering, or in any way from interfering
with the said receiver in the management of said partnership until the
further order of the court, and also from publishing, editing, issuing,
distributing, and mailing to subscribers of said paper any paper or
publication of a similar character pending the settlement of said
partnership affairs." The order appointing a receiver in this action
contained a clause restraining the defendant in almost the same terms.

CIVIL PROCEDURE REPORTS. 171

Pratt v. Underwood.

conld very well be appointed to take charge of the
effects and assets of the firm. By the order from which
the appeal has been taken the same person was ap-
pointed receiver as had been appointed to that office in
the actions in the Snpreme Court of the District of

Columbia, and ample security was required from
[*] him for the discharge of the duties of his office. To

that extent the order seems to have been eminently
just and proper; and, as the case was made to appear,
so much of the order as restrained the defendant from

disposing of the assets of the firm was also well
[*] sustained ; but this part of the order was in fact an

injunction. It was no less so because it was made
a part of the order appointing the receiver than it
would have been if a separate and independent order
had been entered containing this clause. For that

reason, under the Code of Civil Procedure, the
[4] plaintiff was bound also to give security to entitle

himself to this order (Code, § 620). The design of
that security was to protect the defendant against the

loss or injury which might be produced to him by
[*] preventing his interference with the partnership

assets ; and the bond required to be given on the
appointment of the receiver contained no stipulation of
that nature. So much of the order as contained the
injunction was therefore made without any security
whatever.

This was not authorized by the provision of the
Code, and on account of that omision so much of the
order as contains the injunction should be dissolved,
unless within twenty days after notice of this decision
the plaintiff, with one or more sufficient sureties, shall
enter into and file an undertaking in the form pre-
scribed by the provision of the Code relating to that
subject.

It is not probable, as the case is made to appear,
that any serious injury can be produced to the defend-

172 CIVIL PROCEDURE REPORTS.

Pratt v. Underwood.

ant by the restraining clause of the order, and for that
reason an undertaking in the sum of $250 will probably
be sufficient.

The additional restraint imposed by the order pro-
hibiting the editing, publishing, and issuing of
[•] Underwood? 8 Counterfeit Detector was not author-
ized by the circumstances ; for the Detector^
according to the terms of the co-partnership agreement
and the affidavits in the case, appears to have been the
individual property of the defendant. And as the
further prosecution of the partnership business had
become impracticable, and it could not be published in
the course of it, as it had been brought to an end by
the disagreement of the parties, the defendant, as its
owner, could not legally be restrained from continuing
its publication himself and upon his own account.
The fact that the partnership business could no longer
be prosecuted necessarily left him in a situation where
he was at liberty to carry on business for himself by
the publication of this Detector.

As it could not be published for and on account of
the partnership, his individual title to it permitted him
to make the publication on his own acconnt.

A point similar to this was presented in Dayton
v. Wilkes, 17 How. Pr. 510. The case was carefully
[T] considered, and the conclusion which has been
intimated was there adopted. That seems to be
reasonable and proper under the circumstances now
made to appear, and the same course may with pro-
priety be here adopted. So much of the order as
[•] restrained the defendant in the future publication
of the Detector should therefore be unqualifiedly
reversed, and that part of the order which provided for
the appointment of the receiver should be affirmed.
And so should that part of the order prohibiting inter-
ference with the partnership assets in case the under-
taking directed shall be given and filed ; and as neither

CIVIL PROCEDURE REPORTS. 173

Ess t>. Toplanyi.

party can wholly succeed in the appeal the disposition
already indicated should be made of it without costs to
either party.

Davis, P. J., and Brady, J., concurred.

ESS v. TOPLANYI.

City Coubt of New York, Chambers, November,

1883.

§§ 650, 651.

Examination of person having property of the defendant in an

attachment in his possession, — Extent of such examination

where it is based on tJie witness's refusal to give a

certificate as to the amount of the property.

Where, on the examination of a person having in his possession prop-
' erty belonging to the defendant in an attachment, based on his
refusal to give a certificate as to the amount of the property, the
witness claimed title to the property under, an assignment made in
consideration of a prior indebtedness and of advances made by him
to the debtor, — Held, that the witness could not be examined as to
dealings between him and the debtor; ['] Also, — Held, that the
invalidity of his claim must be shown in other proceedings, where the
whole issue between the parties can be tried and properly deter-
mined; [4] that, while this is so, the witness is bound to show the
character of his title to the property in question, although he will not
be compelled to establish its validity ; [B | that, while he cannot be
called upon in such an informal and ex parte manner to have his
rights determined or be subject to a searching cross-examination as
to his rights, the plaintiff is entitled to know what his claim is in
specific terms, and the authority under which he holds; [•] and that
the assignment to the witness should be produced, and the circum-
tances and conditions under which it was given shown, and a specific
statement of his claim upon the property given. [']
Baxter v. Missouri, Kansas and Texas Railway Co. (67 Baro. 288) [*] and

1T4 CIVIL PROCEDURE REPORTS.

E» «. Toplanyi.

Glen Cove Starch Co. «. Gotthold (1 tf. Y. Ok. Ft*. 366), [>] approved
and followed.
(Decided November 6, 1888.)

Examination of witness as to property in his pos-
session belonging to the defendant in an attachment,
upon his refusal to furnish a certificate.

The action was brought to recover the sum of
$329.60 for board and lodging furnished and money
expended for the defendant by the plaintiff. An
attachment was granted in the action on the ground
that the defendant had made an assignment of certain
moneys received by him from the United States as
pension, amounting to about $3280, to one William S.
Andrews, his attorney, for the alleged purpose of cheat-
ing and defrauding his creditors.

A copy of the attachment was served on said
Andrews, who was subsequently required to appear
and submit to an examination as to the property of the
defendant in his possession, pursuant to section 651 of
the Code of Civil Procedure. Upon such examination
it appeared that he claimed title to the moneys under
such assignment, and upon questions being put to him
concerning his dealings with the defendant he objected
and the matter came before the court on such objec-
tion. Further facts are stated in the opinion.

Theodore Von Bremseny for plaintiff.
William S. Andrews, in person.

Hawes, J. — The plaintiff herein obtained an attach-
ment against the property of defendant, and served the
same upon the witness Andrews, now under examin-
ation. An order of examination was obtained requir-
ing the witness to appear to be examined, upon the
ground that he had refused to make the required

CUVJL PROCEDURE REPORTS. 176

Ess 8. Toplanyi.

certificate. Upon the return day of the order, he
appeared and stated that he was not unwilling to
make a certificate, but that there was some misunder-
standing as to the time when it was to be served ; that
he had since filed such a certificate, bnt was willing to
be examined also, if so desired. The examination,
accordingly, proceeded, and the question now presented
is as to the extent which such examination should be
allowed. For all the purposes of the motion, I think
that I may hold that it is based upon a refusal to file a
certificate, although I should have held that the wit-
ness was relieved from it if he had elected to avail
himself of his rights in that regard. Section 651 of the
Code of Civil Procedure is based upon section 236 of
the Old Code, and that in turn upon the statute of 1848
(2 Ji. S. 99). Section 13 of article 8, title 1, chapter 5,
part 2, of the Revised Statutes is very wide reaching in
the power conferred in such an examination, giving
the plaintiff power to examine as to all matters touch-
ing the concealment of the debtor's property, and
touching all matters relative to the dealings of the
debtor with the witness ; but this is based upon the
assumption that the court has good reason to believe
that the party has concealed or embezzled the debtor's
estate. In the case at bar the witness claims title to
all the money in his possession by reason of a prior
indebtedness, and of advances made by him to the
debtor. The plain tiff claims the right to examine as
['] to the dealings between the witness and the debtor.
An examination of the authorities inclines me to
think that he cannot do so upon this motion, under the
facts submitted.

It is claimed by plaintiff that upon his testimony
taken herein the witness is entitled to only a portion
of the money. This is controverted by the testimony
submitted by the witness. In the case of Baxter v.
Missouri, Kansas and Texas Railway Co. (67 Barb.

176 CIVIL PROCEDURE REPORTS.

Baa a. ToplanyL

[*] 283), the court held that the party could state the

character in which he held the money in his hands,
and the manner it was obtained and the object, in
gathering it. Bat the plaintiff could go no further,
and the validity of such trust was the subject of inves-
tigation in another mode. In the case of Glen Cove
[»] Starch Co. v. Gotthold (1 N. T. Civ. Pro. 366),

Mr. Justice Lawrence, referring to the above case,
very aptly says that the object of the examination is
not to try the title of the witness, but to ascertain the
character and extent of that title. So far as appears
upon the face of the papers, the indebtedness of the
debtor to the witness is a valid claim, but its invalidity

can be shown by the plaintiff ; but it must be done
[4] in other proceedings where the whole issue between

the parties can be tried and properly determined.
While, however, this is true I think that the witness

is bound to show the character of his title to
[5] the property in question, although he will not

be compelled to establish its validity. This dis-
tinction may seem a refined one, but I think that the
decisions tend to establish it, and it is based on sound

reasons. A party cannot be called upon in this
[•] informal and ex parte manner to have his rights

determined, neither can he be subject to a searching
cross-examination as to his rights. The law gives
him the right of jury, and of a proper power for the
determination of the validity of his claim. On the
other hand, the plaintiff is entitled to know what his
claim is in specific terms, and the authority under
which he holds. The distinction is, it seems to me, a
very clear one, and is based upon sound reason. It
appears that there exists an assignment of the money

in question to the witness. The assignment must
[T] be produced and the circumstances and condition

under which it was given must be shown. I think
that the witness should also give a specific statement

CIVIL PROCEDURE REPORTS. 177

Estate of Fricke.

of his claim upon the money (Ratter v. Boyd, 3 Abb.
If. C. 6). The examination, tinder this phase of the
case, is clearly within the scope of the decision. The
examination, under the suggestion shown, will proceed
on Monday, the 5th inst., at eleven a. m.

ESTATE OP WILLIAM D. PRICKE, Deceased.

Subrogate' 8 Cotjbt, New York County, Ootobeb,

1883.

§2672.

Eatent of eurrogate't power to direct the application of money in the
handi of a temporary administrator.

The authority of a surrogate's court to direct the application of any
money in the hands of a temporary administrator is limited to the
occasions for which provision is made in section 2672 of the Code
of Civil, Procedure, viz., "to pay funeral expenses or any expense
of the administration of his trust''

Where the proponents of a will, pending a contest concerning its pro-
bate, applied for an order directing the temporary administrator of
the estate involved to pay such sums as might be deemed proper to
enable them to procure the attendance of expert witnesses to testify
upon the question of the insanity of the decedent, — Held, that the
order asked for is one which the court has not power to grant, and
the motion must be denied.

{Decided October 29, 1888.)

Petition for an order directing a temporary adminis-
trator to pay to petitioners such sums as may be
deemed proper to procure the attendance of witnesses
on the probate of a will.

The petitioners were the proponents of a will made
by the decedent, the probate of which was contested.
Vol. IV.-18

178 CIVIL PROCEDURE REPORTS.

Etfito of Fricko.

Pending such contest, they made this application for
the purpose of obtaining the attendance before the
Surrogate, in such proceedings, of expert witnesses to
testify upon the question of the insanity of decedent.

M. C. Gross, for the motion.

Frank Keck, opposed. m

Rollins, S.— Section 2672 of the Code of Civil
Procedure declares the Surrogate "may, by order,
authorize'7 a temporary administrator " to pay funeral
expenses, or any expenses of the administration of his
trust." The authority of the court to direct the ap-
plication of any moneys in the hands of the temporary
administrator is limited to the occasions for which
provision is made in that section of the statute which
is above quoted.

Clearly the petitioner in this proceeding asks for a
direction which the court is powerless to give.
' Motion denied.

CIVIL PROCEDURE REPORTS. 1HM

Baffin «. Steffin.

STEFFIN, Respondent, v. STEFPIN bt al., Im--
pleaded, etc., appellants.

Supreme Court, Fourth Department; General
Term, April, 1883.

§§ 102, 1406.

The plaintiff in an extortion cannot maintain an action to precent% or
recover for, the taking away and contortion of property letted
upon by the eheriff under ouch execution, — May maintain
action to remove obstruction to the orderly enforcement
of the execution, and in aid of it.— Effect ofetay of
plaintiff* proceeding* after judgment, execu-
tion and lecy thereunder and mode of
obtaining relief therefrom. — Righto
and UaMUtieo of oheriff.

A sheriff who has levied upon personal property under an execution
has a right to the possession of the property levied upon, and the
right to maintain any needful actions at law to recover the same, or
for the conversion of the property after his levy; [*] and the fact
that property so levied upon has been taken from the possession of
the sheriff, or that the defendant in the execution has conspired
with others to take away such property, does not support, in the
plaintiff in the execution, a right to maintain an equitable action
either to prevent the removal of the property or to recover because
the same was secretly or otherwise removed or converted. [']

If a sheriff does not do his duty after levying upon personal property,
under an execution issued to him ; if he does not keep the property,
and take legal remedies to obtain the same, so that it may be sold
to apply on the execution, he is liable to the plaiatiff in the execu-
tion. [*]

Whether a sheriff would be obliged to, or warranted in turning over
property levied upon by him under an execution to a receiver
appointed in an action other than that in which the execution was
issued, and to which he was not a party; whether, if he did turn it
over to such receiver, he would thus avoid his liability to the plaint-
iff in the execution for its value, qumre.[*]

Where a sheriff has made a levy under an execution issued to him, a

fl80 CIVIL PROCEDURE REPORTS.

i •

Steffin «. Steffin.

stay of proceedings granted in the action in which the execution
was issued does not lessen his right to hold possession of the
property. [4]
If a stay of plaintiffs proceedings in an action after judgment, execu-
tion and levy are prejudicial to him, his appropriate remedy is an
application to the court which granted the stay for an order vacat-
ing, or modifying the same, so that the injury may be prevented or
avoided. [*] It furnishes no ground for the interference of the
court upon the equity side.[*]
Where a sheriff has lawfully entered upon real property for the pur-
pose of levying upon personal property thereon under an execu-
tion, he has a right to remain upon the premises a sufficient length

* of time to m&ke a levy ; and where the defendant in the execution
permits him to leave the property upon the premises, he, as against
such defendant, may enter with bidders and sell the property ;[TJ
and where the property so levied upon consisted of crops and farm-

1 ing implements, the surrender of his lease of the premises by the
defendant, made after the levy, will not carry with it the property
levied upon by the sheriff, the title to which was in the execution
debtor at the time of the levy, and a .purchaser of the crops will
succeed to all the rights of the debtor therein. [•]

After a levy on personal property by the sheriff, under execution, a
debtor cannot transfer any title to it, even to a bona fide purchaser,
for value and without notice; but before levy, even after delivery of
execution to the sheriff, a boom fide purchaser may acquire a good
title, [f]

The objection that the plaintiff in an equitable action has a remedy
at law does not come too late when it is taken on appeal from an
order overruling a demurrer to the complaint. ["]

Where the defendant in an execution held a lease of a farm by which
he agreed to deliver to the lessor one half of all the products of
said farm, and that she should have a lien upon all the personal
property which was or should threafter be put upon said farm as
security for his doing so, — Held, that the lease not having been
filed as a chattel mortgage when levies under the execution weie
made on such personal property, it was not valid as to the plaintiff
in the execution. ["]

Where, in such a case, the plaintiff in the execution brought an
action in equity, and alleged in his complaint facts which lead up
to the conclusion that as to him the security clause was inoperative
and was being used as a fraudulent obstruction to the lien of his
execution and the enforcement thereof out of the property covered

L by the lease,— Held, that such allegations support the right of the

CIVIL PROCEDURE REPORTS. 181*

Steffin v. Steffin.

plaintiff to invoke the aid of a court of equity to remove the
obstruction in aid of the execution, and that in such cases it was not
necessary to have an execution returned nulla bona, as a precedent
condition of the right of a court of equity to take jurisdiction. [14J
Gillett t>. Staples (16 Hun, 588), distinguished. [» J
(Decided June, 1888.)

Appeal from an order and interlocatary judgment
of Monroe county Special Term, overruling a demurrer,
by George Steffin, and a joint demurrer of Mary A. and
William H. Lockwood, to the amended complaint, upon
the ground that the same does not state facts sufficient
to constitute a cause of action.

E. A. Nash, for Mary A. and William H. Lock-
wood, appellants.

George E. Warner \ for appellant, George Steffin.

Horace L. Bennett, for respondent.

The facts are fully stated in the opinion.

Hardin, J.— September 24, 1880, upon a verdict in
the county court of Munroe county, the plaintiff recov-
ered a judgment against George Steffin for $1,000.13,
and issued an execution on that day to the sheriff of
Munroe county, who at 5:25 p. m. of that day levied
upon certain property of George Steffin. On the 7th
day of October, 1880, an execution on said judgment
was also issued to the sheriff of Livingston county, who
made a levy upon certain property described in the
complaint, and other property unknown to the plaintiff.

George Steffin held a lease of the Benjamin farm
from Mary A. Lockwood, the owner thereof, and in the
lease was an agreement to yield and deliver " one half
of all the products of said farm to Mary A. Lock-
wood."

182 CIVIL PROCEDURE REPORTS.'

: : n

Steffin •. Steffin.

The lease also stipulated, "that the said party
of the first part shall have a lien as security for the
payment of the debt aforesaid, npon all the goods,
wares, chattels, implements, fixtures, tools, and other
personal property, which are or may be pat on the said
demised premises." The complaint avers " that George
Steffin works all, or a part, of Mary A. Lock wood's farm
in Livingston county, as aforesaid, upon halves." Also,
" that the county court granted a stay of plaintiff's
proceedings on said judgment for sixty days after
judgment, execution, and levy ; and that the stay is
still in force ; and that George Steffin does not intend
to take any farther proceedings in that action." Also,
4 'that the defendants conspired and confederated
together to divest and defeat said levy, and to prevent
said sheriff from making any further levy upon the
property of said George Steffin, and to prevent the
plaintiff from collecting or securing his said judgment ;
that, in pursuance of such plan, confederation, and con-
spiracy, said Mary A. Lockwood, or said William H.
Lockwood acting as her agent, caused notices to be
posted in said town, advertising a public sale, under
the lease, of certain described property upon the Benja-
min farm ; sale to be October 5, 1880. Notice was dated
September 28, 1880, and signed by William H. Lofek-
wood, mortgagee's agent."

The complaint also averred " said le&se has never
been filed in the office of the clerk of the town of Men-
don. That, at the time and place of the sale, W. H.
Lockwood, claiming to act as the agent of said Mary
A. Lockwood, with an auctioneer and attorney, was
present, and claimed a right to sell said property under
said lease, and in pursuance of said notice ; and said
Mary A. Lockwood was also present in person."
That the sale was postponed to October 15, 1880,
and written notice thereof posted, but no sale was had ;
and plaintiff avers " that it is the intention of said

CIVIL PROCEDURE REPORTS. 185

Steffin •. Steffin.

defendants to make such sale in some secret manner,
so that the same may not be forbidden by plaintiffs,
and then claim that said property had been purchased
by divers persons, insolvent purchasers, and then to
have such persons either take said property by force,
or commence a large number of actions against the
sheriff, or this plaintiff, to recover the same."

Plaintiff avers " that since said levy was made the
defendants have attempted to rescue said property
from the sheriff and have actually succeeded in getting
into said granary and carrying away a quantity of
said wheat, and have sold and drawn away in the night
and on Sunday all of the barley levied on by said Liv-
ingston county sheriff since said execution was put
into his hands and a levy made thereon, and they have
secreted said new lumber wagon, and they have come
upon said Benjamin farm with many men, and have
threatened the men in charge of said property for the
sheriff with violence," . . . "and have in many other
ways tried to intimidate the men in charge of said
property for sheriff, and have actually frightened some
away, so that it is now very difficult to get men to go
there to watch said property, as well as very expen-
sive."

Plaintiff also avers " that defendants now claim that
since said levy was made George Steffin has surrendered
his lease to Mary A. Lockwood, and that she is now in
possession of said farm, and that they have forbid said
officers to come upon said farm; but plaintiff is
informed, and believes, that said surrender of said lease
is all a sham and fraud, and is done to prevent the pur-
chaser of said straw from feeding the same upon said
premises, as required by said lease, and to prevent the
sheriff from keeping the cattle qnd horses thereon, and
to otherwise complicate matters so as to better cheat
and defraud the plaintiffs."

Plaintiff avers " that Steffin does not intend to

184 CIVIL PROCEDURE REPORTS.

Steffin «. Steffin.

appeal said action in the county court, but merely
keeps the stay on said plaintiffs proceedings therein
so that he cannot sell said property," thinking that the
sheriff had no right to harvest said crops, and that the
omission of said George Steffin to harvest said crops
constitutes such a breach of the conditions of said lease
as that said Lockwood may take said property, or
gain some other undue advantage thereby."

Plaintiff then avers " that George Steffin refuses to
harvest said crops, and that he and said Lockwood
refuse to consent that said sheriff may harvest them."

Plaintiff next avers " that since said execution was
issued, a large quantity of wheat, to wit, about 1200
bushels, and about 500 bushels of oats, have been
fraudulently converted and disposed of by said de-
fendants, one half of which belonged to George Stef-
fin, and upon which said judgment was a lien, besides
the barley sold as aforesaid." Plaintiff then avers
44 that the barley belonging to George Steffin there dis-
posed of by defendants, or some one of them, is worth
$200 ; that the value of the oats is $100 ; that the value
of the wheat is $400 ; all of which plaintiff would have
been able to sell and apply upon the said judgment
except for the fraud and misconduct of the defend-
ants."

Plaintiff next avers " that said Lockwood and said
Frederick Steffin and Charles Steffin now claim to own
a large part of the property levied on, although at the
time of the levy the defendants admitted that it all
belonged to said George Steffin."

Plaintiff avers *4 that the defendant George Steffin
had no real estate and no personal property except that
levied on as aforesaid." That defendants William H.
Lockwood, Charles Steffin and Frederick Steffin "are
wholly insolvent and irresponsible ; . . . that Mary
A. Lockwood claims to own said two farms ; . . and
that whilst she recognizes said William EL Lockwood

CIVIL PROCEDURE REPORTS. 186

Steffln «. Steffin.

as her agent in most matters connected with said farm,
she will attempt to repudiate any act of bis in connec-
tion with the matters aforesaid whereby she may
become liable to plaintiff, and has already threatened
to do so; and that unless an injunction be issued
restraining said defendant from interfering with said
property, and a receiver be appointed to take charge of
it, the plaintiff must lose the benefit of his levies and
his said judgment, and will be subjected to numerous
actions and great costs and expenses."

It is to be observed in the outset of our considera-
tion of the complaint that the sheriffs who have the
executions issued in county court are not made parties
to this action, and that they are under the direction
and control of that court in respect to the property
levied upon. By their levies they have the right to

the possession of the property levied upon, and the
['] right to maintain any needful actions at law to

recover the same, or for any conversion of the

property after their levies.
[*] If the sheriffs do not do their duty after levy ;

if they do not keep the property and take legal
remedies to obtain the same, so that it may be sold
to apply on their executions, they are liable to the
plaintiffs. Ansonia Brass & Copper Co. v. Pratt, 74

IT. Y. 400.
[■] It may well be doubted whether the sheriffs

would be obliged to or warranted in turning over
the property levied upon to a receiver appointed in
another action ; or, if they did turn it over to such
receiver, whether they would thus avoid their liability
for its value to the plaintiff in the executions.
Ansonia Brass & Copper Co. v. Pratt, supra. The

stay of proceedings upon the judgment did not
['] lessen the sheriff's right to hold possession of

the property levied upon. Rhoads v. Woods, 41

Barb. 471. The sheriffs were the parties who had

180 CIVIL PROCEDURE REPORTS.

Steffin •. Bteffin.

[*] the right to maintain an action for taking away
the property from their possession, and the allega-
tions in the complaint do not support any any right in
the plaintiff to have and maintain an equitable action,
either to prevent the removal of the property from the
sheriff's possession or to recover because the same was
secretly or otherwise removed and converted. Ansonia
Brass & Copper Co. v. Pratt, 10 Hun, 443 ; Baker v.
Mathews, 1 Denio, 385 ; Skinner v. Stuart, 39 Barb.
206 ; Marsh v. White, 3 Barb. 518 ; Scott v. Myers, 10

IT. Y. Weekly Dig. 531.
[*] If the stay of the proceedings was prejudicial
to the plaintiff, his appropriate remedy was an
application to the county court for an order vacating
or modifying the same, so that the injury might be
prevented or avoided. It furnishes no ground for the
interference of this court upon the equity side. The
sheriff had a right to remain upon the premises a
[*] sufficient length of time to make a levy {Crocker
on Sheriffs, § 437) ; and when the defendant in the
execution permitted him to leave the property upon
the premises, the, sheriff, as against such defendant,
might enter with bidders and sell the property. Peo-
ple v. Hopson, 1 Denio, 575-580. And the surrender
[•] of the lease made after the levy would not carry
with it the property levied upon by the sheriffs the
title to which was in the execution debtor at the time
of the levy, and a purchaser of the crops would succeed
to all the rights of the debtor therein. Whipple v.
Foot, 2 Johns. 418 ; Hartwell v. Bissel, 17 Johns. 128.
We see no force in the theory that the defendant,
the execution debtor, should be restrained from selling
or incumbering the personal property, as, after a levy
on it by the sheriffs, the debtor could transfer no
[*] title to it, even to a bona fide purchaser for value
received, without notice. Butler v. Maynard, 11 Wend.
548. But before levy, even after delivery of execution

CIVIL PROCEDURE REPORTS. 18?

Bteffin 9. Steffi*.

to the sheriff, a bona fide purchaser may acquire a
good title. lb.; Stewart t>. Beale, 7 Bun, 415.*
As to the other defendants, the title which they had
before levy is valid, and ought not to be interfered with,
either by sheriffs, receiver, or the court. The leading
facts of this case show that the plaintiff has an ade-
quate remedy at law, which he began to pursue in the
usual mode, and no good reason is found, in the excep-
tional features of the case, for saying that a bill in
equity should be sustained, or a receiver appointed, as
to property not embraced in the lease or surety clause
thereof. Parker v. Moore, 3 Edw. Oh. 234.

In the case just cited the Vice Chancellor said there
seemed to be no obstacle in the way of the party's
remedy at law, and that all that he had to do was to
rely upon the execution, and therefore a motion for

the appointment of a receiver was denied. The
["] objection that the plaintiff has a remedy at law

does not come too late, according to well estab-
lished precedents. Le Roy v. Piatt, 4 Paige, 77 ;

Trasoott «. King, 6 N. T. 147. The case of Gil-
["] lett v. Staples (16 Hun, 588) is not in point, as it

was a creditor's bill filed after the return of an
execution nulla bona, and it was said that the defend-
ant, the judgment debtor, before the bill was filed,
claimed all the property belonged to others than him-
self."
["] But the lease, with the security clause therein,

had not been filed as a chattel mortgage when the
levies were made, and therefore the same was not valid
as to the plaintiff, having a judgment and executions
upon which levies had already been made before such
filing. Stewart v. Beale, 7 Hun, 406.* The lease

stood as an obstruction to the orderly enforcement
["] of the executions, and, though void as to the

* Affirmed, 68 N. 7. 620.

188 CIVIL PROCEDURE REPORTO.

Steffiov. Steffin.

security clause as against the plaintiffs judgment, it
was valid between the parties thereto.

Plaintiff has alleged the facts which lead up to
["] the conclusion that as to him the security clause is
inoperative, and is being used as a fraudulent
obstruction to the lien of his executions and the
enforcement thereof out of the property covered by the
lease. Such allegations support the right of the plaint-
iff to invoke the aid of a court of equity to remove the
obstruction in aid of the executions ; and in such cases
it is not necessary to have an execution returned nulla
bona as a precedent condition of the right of a court
of equity to take jurisdiction. Clarkson v. Be Pey-
ster, 3 Paige, 320; Stowell v. Haslett, 5 Lans. 382;
Stewart v. Beale, supra; McCaffrey v. Hickey, 66
Barb. 491.

It follows, therefore, that the court had jurisdiction ;
that the complaint stated facts sufficient to constitute
a cause of action as against George Steffin, the jadg-
ment debtor, who executed the lease, and as against
Mary A. Lockwood, the lessee, who was attempting to
use the security clause in the lease to defeat the
enforcement of the executions and the liens thereof
acquired by the plaintiff. But in that aspect of the
case we see no need for the presence, as a party, of
William H. Lockwood, the agent and husband of Mary
A. Lockwood. It is not averred that he was a party to
the lease, or that he bad any interest in it. Its removal
and cancellation could be made perfect without his
presence as a party. It follows, therefore, that as to
him the complaint does not state facts sufficient to con-
stitute a cause of action.

Judgment and order affirmed, with costs, as to
George Steffin and Mary A. Lockwood; and judg-
ment and order reversed as to William H. Lockwood,
with costs ; and demurrer sustained, with costs, with

CIVIL PROCEDURE REPORTS. 180

Plimpton c. Bigelow.

leave to the plaintiff to amend his oomplaint upon
payment of the costs of appeal and costs of the
lenmrrer.

Smith, P. J., and Haight, J., concurred.

PLIMPTON, Appellant, v. BIGELOW,
Respondent.

I Court of Appeals, 1883.

§§ 641, 644, 647, 649.

Attachment. — Share* of stock in a foreign corporation cannot be attached. —
Only property within the jurisdiction of the court issuing an attach-
ment eon be attached. — The residence and domicU of a corporation
are alone within tiie bounds of the sovereignty which created if,
and it cannot pass beyond that jurisdiction. — A corporation
may sue and be sued in this State, not because it is within
the State, but because it must act by agents, and may,
through its agents, subject itself to tip jurisdiction of
a foreign tribunal. — Nature of the right and interest
of a stockholder in a corporation by reason of
his ownership of shares of its stock. — Levy
. under attachment upon property without
the jurisdiction of the court sliould
be vacated and set aside.

The general principle that attachment proceedings can be effectual
only against property within the jurisdiction of the court issuing
the attachment is clearly recognized in the provisions of the Code
regulating proceedings by attachment, [V] and those provisions are
to be construed with reference to that principle. ['] In the case of
tangible property capable of manucaption, it must have an actual
situs within the jurisdiction. [l] To debt*, chosea in action, rights
by contract, the shares of the defendant in a corporation and other
intangible property, which the Code makes subject to attachment,
[V] the same principle applies, viz., that the res, that is, the intan-

1W CIVIL PROCEDURE REPORTS.

Plimpton v. Bigelow.

giblc right or interest, to be subject to attachment, must be within
the jurisdiction ;[■,'] but it must be a constructive or statutory pres-
ence only, founded upon some characteristic fact which determines
its locality.!1]

It is too well settled by the repeated adjudications of the Federal and
State courts to admit of further controversy, that a corporation has
its domicil and residence alone within the bounds of the sover-
eignty which created it, and that it is incapable of passing beyond
that jurisdiction. [4] It is equally true that a foreign corporation is
permitted to sue in the courts of this State, and that suits in per-
sonam may be brought against it by a service of a process upon its
officers or agents within the jurisdiction ;[*] but such suits are not
maintained on the theory that the corporation litigant is here in
person, or that the corporation entity attends its officers in their
migration from one state to another, or that it is itself present
wherever its property may be or its busines may be transacted. [*]
The jurisdiction rests upon the ground that, as a corporation must
set by agents, it may, through its agents, subject itself to the juris-
diction of a foreign tribunal. [•]

The right which a shareholder in a corporation has by reason of his
ownership of shares is a right to participate, according to the
amount of his stock, in the surplus profits of the corporation, and
ultimately, on its dissolution, in the assets remaining after paying
its debts. ['] It is this right and interest which is made liable
to attachment under section 047 of the Code of Civil Procedure.^]
The right of the shareholders is enforceable by judicial proceedings
in the local courts, and local courts alone can be resorted to to wind
up its affairs and distribute its assets. [']

The stock of a foreign corporation is not here because it has property
here, or is conducting its business in this State. [*] It seems impos-
sible to regard the stock of a corporation as being present for the
purpose of judicial proceedings except at one of two places, viz.,
the place of residence of the owner, or the place of residence of the
corporation. [*] The shares for the purpose of attachment proceed-
ings may be deemed to be in the possession of the corporation
which issued them, but only at the place where the corporation by
intendment of law always remains, to wit, in the state or county of
its creation. [,fJ

The individual members of a corporation are not the owners of its
property, or of any part of it.['] The abstract entity, the corpora-
tion, is the owner, and the only owner of the property. [•]

' The fundamental condition of attachment proceediugs— that the tet
must be within the jurisdiction of the court, in order to an effectual

CIVIL PROCEDURE REPORTS. 191

Plimpton 0. Bigelow.

seizure — is not answered in respect to shares in a foreign corpora-
tion by the presence here of its officers, or by the fact that it has
property and is transacting its business here; and therefore section
647 of the Code, which provides for the attachment of shares of the
stock of a corporation owned by the defendant, mast be construed
as applying to domestic corporations only.[n]

Where an attachment has been granted and an effort made to levy
thereunder upon stock in a corporation which was not within the
jurisdiction of the court, and therefore not subject to attachment,
by the service of a notice upon an officer of the corporation, the
defendant is entitled to have tbe levy set aside and vacated, thereby
relieving his stock from the cloud and embarrassment created by
the proceedings. [lf]

Lafayette Ins. Co. e. French (18 Soto. U. 8. 404), approved; [•]
Plimpton e. Bigelow (3 if. T. Civ. Pro. 182), reversed. ["]

(Decided November, 1883.)

Appeal from order of the Supreme Court, General
Term, First Department, reversing an order of tbe
Special Term vacating an attachment.

The opinion states the facts.

Simon Sterne (Sterne <fe Thompson, attorneys), for
appellant.

Section 647 of the Code does not authorize any
attachment of a stockholder's interest in a foreign
corporation. The rights and shares in a foreign cor-
poration are not within the state, even in the case
where the certificate is within the state. Christmas v.
Biddle, 13 Penn. 223 ; Moore v. Gennet, 2 Tenn. Ch. 375.
. . . These statutes should all be strictly, and not
liberally, construed, because they are a departure from
the common law, even as to subjecting stock in domes-
tic corporations to levy and sale; as at common
law stock in a corporation was not the subject-matter
of levy and sale. Denton v. Livingston, 9 Johns. 96.
. . . And a shareholder in a corporation has no legal
title in its property or profits until a division is made.
Hyatt v. Allen, 56 N. Y. 553. Although a corporate
body may carry on business beyond the territorial

192 CIVIL PROCEDURE REPORTS.

Plimpton 9. Bigelow.

limits of the state which created it, it has no corporate
existence beyond those limits. Day v. Newark India
Rubber Co., 1 Blotch/. ( U. & Circ. Ct.) 628 ; Bank of
Augusta v. Earle, 13 Pet. (38 U. S.) 688 ; Ohio &
Mississippi R. R. Co. v. Wheeler, 1 Black (66 U. 8.)
286.

JSdward D. Beltens (Bettens & Liiienthal, attor-
neys), for respondent.

Where a corporation, created by the laws of one
state, comes by its officers within the jurisdiction of
another state, and there engages in business, or under-
takes to act, it becomes amenable to the laws of the
latter state and the process of its courts, upon the
same principles and to the same extent that natural
persons or companies incorporated by such latter state
would be. 1 Potter on Corp. p. 371, note 9 ; Martine v.
International Life Ins. Soc., 53 N. T. 346-8 ; Morawetz
on Corp. §505 ; People v. Central R. R. Co., 48 Barb. 608 ;
Attorney-General v. Bay State Co., 1 Cray (Mass.), 148 ;
National Bank v. Huntington, 128 Mass. 444 ; Barr v.
King, 96 Penn. St. 485. ... A corporation of another
state may exercise its franchises and transact business
here, upon such conditions as the laws of this state
(New York) may impose. The presumption that a cor-
poration cannot be found out of the state which created
it is no more cogent than that an individual is not to
be found out of the state of which he is an inhabitant.
Robinson v. National Stock Yard Co., 12 Fed. Hep.
361; Mohr v. Insurance Co., 12 Id. 474; Mohr t>.
Lamar Co., 12 Id. 476-7; Merchants9 Co. t>. Grand
Trunk Co., 13 Id. 368. .. . No state need allow
the corporations of other states to do business with-
in its jurisdiction unless it chooses, with perhaps
the exception of commercial corporations ; but if it
does, without limitation, express or implied, the cor-
poration comes in as it has been created. Every cor-

CIVIL PROCEDURE REPORTS. 198

Plimpton «. Bigelow.

poration necessarily carries its charter wherever it goes,
for that is the law of its existence. Reefe v. Rundle,
103 U. 8. (13 Otto) 222. This case is followed by the
Court of Appeals of Virginia, November, 1882, in Bock-
over v. Life Association, 12 las. Law J. 117.

While the citizenship of the corporation would
depend upon the law of the place of its creation, its
residence might, manifestly, upon the principle above
stated, be in any state where it was by comity per-
mitted to exercise its franchise. Bank of North
America v. Chicago R. R., 32 III. 493.

Andrews, J.— This action is brought by the plaint-
iffs, residents of Massachusetts, against the defendant,
a resident of Pennsylvania, upon several promissory
notes of the defendant made and delivered in Massa-
chusetts, and payable generally. The plaintiff pro-
cured an order for the service of the summons upon
the defendant by publication, and% also a warrant of
attachment against his property. The sheriff of the
city and county of New York, to whom the warrant was
directed, undertook to execute it by levying upon four
hundred and thirty-nine shares of the stock of the Hat
Sweat Manufacturing Company, a Pennsylvania cor-
poration incorporated under the laws of. that state,
owned by the defendant, and for which he held and
then had, in the state of Pennsylvania, stock certifi-
cates issued and delivered to him at the office of the
company in Philadelphia, in February, 1882, at which
place the stock and transfer books of the company
then were and still are kept. The sheriff, for the pur-
pose of making the levy, left with the secretary of the
company, in the city of New York, a certified copy of
the warrant of attachment, together with the notice
prescribed by section 649 of the Code of Civil Procedure.
The formal proceedings were taken to complete the
levy, and the shares were subjected to the attachment,
Vou IV.— 13

194 CIVIL PROCEDURE REPORTS.

Plimpton v. Bigelow.

provided they were liable to attachment under section
647 of the Code. That section declares that the
(i rights or shares which the defendant has in the stock
of an association or corporation, together with the
interest and profits thereon, may be levied upon ; and
the sheriffs certificate of the sale thereof entitles the
purchaser to the same right, and privileges with respect
thereto, which the defendant had when they were
attached."

The question here is whether this section applies to
shares of stock of a foreign corporation. It is to be

observed that the section is one of the provisions
[■] of asystem of proceedings by attachment, and is

to be construed in view of the fundamental princi-
ple upon which attachment proceedings rest, that the
res must be actually or constructively within the juris-
diction of the court issuing the attachment, in order to
effect any valid or effectual seizure under the process.
In the case of tangible property capable of actual man-
ucaption it must have an actual situs within the juris*
diction. But credits, choses in action, and other
intangible interests are made by statute susceptible of
seizure by attachment. The same principle, however,
applies in this case as in the other, viz., the res; that is,
the intangible right or interest, to be subject to the
attachment, must be within the jurisdiction. But it is
manifest from the nature of this species of property
that it must be a constructive or statutory presence
only, founded upon some characteristic fact, which
determines its locality. Where the defendant who
owns a credit is within the jurisdiction there is no diffi-
culty, through proceedings in personam, in reaching
and applying it in discharge of his debt to the plaintiff.
But where he is out of the jurisdiction, and the debt
or duty owing to him, or the right he possesses, exists
against some person within the jurisdiction, attach-
ment laws fasten upon that circumstance, and by notice

CIVIL PROCEDURE REPORTS. 195

Plimpton v. Bigelow.

to the debtor or person owing the duty or representing
the right, impound the debt, duty, or right, to answer
the obligation which the attachment proceeding is
instituted to enforce. In the case supposed, the debt,
duty, or right, for the purpose of attachment proceed-
ings, is deemed to have its situs or locality in the
jurisdiction.

The general principle that attachment proceedings

can be effectual only against property within the
['] jurisdiction is clearly recognized in the provisions

of the Code regulating proceedings by attachment.
They authorize the attachment 6f debts, choses in
action, rights by contract and, by section 647, shares of
the defendant in a corporation, subject, however, to the
limitation that the property attached must be within
the jurisdiction. Section 641 prescribes that the war-
rant shall require the sheriff to attach the property of
the defendant within his county, and by section 644 it is
made the duty of the sheriff to execute the warrant by
levying upon the property of the defendant within the
county.

These provisions leave no doubt of the intention of
the legislature to confine the process of attachment

within its legitimate limits. They recognize the
[*] principle found in the Codes of all enlightened

nations— that jurisdiction, to be rightfully exer-
cised, must be founded upon the presence of the per-
son or thing in respect to which the jurisdiction is
exerted within the territory {Story's Con. of Laws,
§§ 532, 592 a ; Gibbs v. Queen Ins. Co., 63 N. T. 114 ;
Street v. Smith, 7 Watts <fe S. [Penn.] 447).

We now come more directly to the inquiry upon
which the case now under review depends, viz., whether
the shares of anon-resident defendant in the stock of
a foreign corporation can be deemed to be within this
state by reason of the fact that the president or other
officers of the corporation are here engaged in carrying

196 CIVIL PROCEDURE REPORTS.

Plimpton* Bigelow.

on the corporate business. We do not overlook the
fact that we are construing a section of the Code the
language of which is sufficiently general to include
foreign corporations; but they are not expressly named ;
and, for the purpose of determining whether foreign
corporations were intended to be included, it is a rele-
vant inquiry whether, upon general principles, the right
which a stockholder in a corporation has by reason of
his ownership of shares is a debt or duty of the corpo-
ration existing in a foreign jurisdiction, wherever the
officers of the corporation may be found engaged in the
prosecution of the dbrporate business. If the corpora-
tion by having its officers and by transacting business in
a state other than its domicil of origin is deemed to be
itself present as an entity in such foreign state, to the
same extent and in the same sense as it is present in the
state which created it, it may be conceded that its
shares might be properly attached in such foreign ju-
risdiction. But we regard the principle to be too firmly

settled by repeated .adjudication of. the Federal
[4J and state courts to admit of further controversy,

that a corporation has its domicil and residence
alone within the bounds of the sovereignty which
created it, and that it is incapable of passing personally
beyond that jurisdiction (Bank of Augusta v. Earle, 13
Pet. [38 U. S.] 519 ; Lafayette Ins. Co. v. French, 18
Bow. [59 U. &] 404 ; Merrick v. Van Santvoord, 34 2\T.
T. 208 ; Stevens v. Phoenix Ins. Co., 41 Id. 150).

But it is equally true that a foreign corporation is
permitted to sue in the courts of this state, and that

suits in personam may be brought against it by
[•] service of a process on its officers or agents

within the jurisdiction (Code, §§432, 1780; Gibbs
3. Queen Ins. Co., supra). But suits by or against
foreign corporations are not maintained on the theory
that the corporation litigant is here in person, or that
the corporation entity attends its officers in their migra-

CIVIL PROCEDURE REPORTS. 197

Plimpton 0. Bigelow.

tion from one state to another, or that it is itself pres-
ent wherever its property may be or its business may
be transacted. The jurisdiction, as I understand, rests
upon the ground that as a corporation must act by
agents, it may, through its agents, subject itself to the
" jurisdiction of a foreign tribunal. This principle
[•] was clearly recognized by Curtis, J., in Lafayette
Ins. Co. v. French (supra), which was an action
on a judgment obtained in the state of Ohio against
an Indiana corporation by service of process on an agent
of the corporation in the former state, and the point
was taken that no jurisdiction was thereby acquired to
render a judgment against the defendant. The court
overruled the point, and Judge Curtis, after stating
that the corporation in that case, existing duly by virtue
of the law of Indiana, cannot be deemed to pass person-
ally beyond the limits of that state, and that the actual
presence in a state of a defendant is not in all cases
essential to a judgment against him, said : " The inquiry
is not whether the defendant was personally within the
state, but whether he, or anyone authorized to act for
him in reference to the suit, have notice and appeared;
or, if he did not appear, whether he was bound to
appear, or suffer judgment by default."

Where a foreign corporation sends its agent into
another state, or transacts its business there, availing I
itself of the protection of the laws of such state, there *
is no just reason why it should not be deemed to have
subjected itself, through its agents, to the jurisdiction of
the courts of that state, and be held to respond to an
action brought against it therein, upon process served
upon its representatives. This seems sufficiently plain.
But it does not determine the present question. The
proceeding authorized by section 647 of the Code is
not an action against a foreign corporation, or to enforce
any contract or liability of the corporation, but a pro-
ceeding in an action against a defendant owning shares

198 CIVIL PROCEDURE REPORTS,

Plimpton v. Bigelow.

therein, and where the jurisdiction depends upon the
shares which are attached being within the state. The
right which a shareholder in a corporation has by
['] reason of his ownership of shares is a right to par-
ticipate, according to the amount of his stock, in
the surplus profits of the corporation, and ultimately,
on its dissolution, in the assets remaining afterpayment
of its debts (Burrall v. Bush wick R. R. Co., 75 If. T.
211). It is this right and interest which is made liable
to attachment under the section referred to. The right
of the shareholders is derived from the corporation,
under its charter of the laws of the state which created
it. It is enforceable by judicial proceedings in the local
courts ; and in case of dissolution of the corporation,
the local courts alone can be resorted to to wind up its
affairs and distribute its assets. It seems impos-
['] sible to regard the stock of a corporation as being
present for the purpose of judicial proceedings ex-
cept at one of two places, viz., the place of residence of
the owner, or the place of residence of the corporation.
Section 647 has an appropriate application to shares
in domestic corporations. Such corporations are com-
pletely subject to the jurisdiction of our courts, and
may be compelled to recognize the title to corporate
shares derived under proceedings by attachment. In
respect to foreign corporations such power does not
exist, and it could scarcely be expected that the courts
of another state would recognize a title to corporate
stock in one of its own corporations founded upon a
sale under an attachment issued by our courts against
a non-resident, when the only semblance of jurisdiction
over the property was the service of notice in the
attachment proceedings upon an officer or agent of
the corporation here. The foreign corporation is not
here because its agents are here, nor because it has
P] property here ; nor is the stock here because the
corporation has property or is conducting its busi-

CIVIL PROCEDURE REPORTS. 190

Plimpton v. B/gelow.

ness in this state. The individual members of a cor-
poration are not the owners of the property of the
corporation, or of any part of it. The abstract entity,
the corporation, is the owner and the only owner of the
property. We do not doubt that shares, for the pur-
pose of attachment proceedings, may be deemed to
["] be in the possession of the corporation which
issued them, but only at the place where the cor-
poration by intendment of law always remains — to wit :
in the state or country of its creation. In all other
places itjs an alien. It may send its agents abroad, or
tnmsKEftlBWRra, as any other inhabitant may do, with-
out passmg personally into the foreign jurisdiction or
changing its legal residence. But such agents are not
the corporation, and do not represent the corporation
in respect to rights, as between the corporation and its
shareholders, incident to the ownership of shares.

It is not necessary in this case to define the limits of
the legislative powers in subjecting intangible property
to attachment by notice served upon such person or
corporation as may be designated by the legislature.
/Afanifestly the res cannot be within the jurisdiction as
a mere consequence of the legislative declaration, when
the actual locality is undeniably elsewhere; but in
respect to intangible interests, as we have said, there
can be no actual seizure of the things, and it can be
bound only by notice to some one who represents the
thing. In case of a debt, notice to the debtor residing
within the jurisdiction is* the ordinary proceeding to
attach the debt ; and if the debtor is a corporation, and
the corporation is a domestic one, there is no difficulty.
But in some of the states foreign corporations having
an agent or a place of business within the state may
be charged under what is called the trustee process or
garnishment (Barr v. King, 96 Pa. St. 485 ; National
Bank v. Huntington, 129 Mass. 444). In these proceed-
ings, the trustee or garnishee is joined with the principal

200 CIVIL PROCEDURE REPORTS.

Plimpton 0. Bigelow.

defendant as a party to the action, and the debt owing
by the trustee or garnishee is ascertained, and the
liability of the trustee and garnishee is adjudged in
the action. There may be no difficulty upon principle
in compelling a corporation which has an agent and
officer in another state, and is transacting business
there, to respond in garnishment proceedings for the
debt, although the creditor, the principal defendant, is
a non-resident, and is bound to respond ; it is certainly
just that the judgment which compels the corporation
to pay the debt to the plaintiff should protect it in
making such payment against a subsequent claim by
its creditor. We do not enter into the question here ;
but whatever view may be taken as to tbe right to
attach a debt owing by a foreign corporation to a non-
resident by service of notice on an agent of the corpora-
tion within the jurisdiction, we think, in respect to
corporate stock, which is not a debt of the corporation
in any proper sense, it would be contrary to principle
to hold that it can be reached by such a notice.

We are therefore of opinion that the fundamental
condition of attachment proceedings — that the res must

be within the jurisdiction of the court in order to
["] an effectual seizure— is not answered in respect to

shares in a foreign corporation by the presence
here of its officers, or by tbe fact that the corporation
has property and is transacting business here, and that
section 6±7 must be construed as applying to domestic
corporations only (see Moore v. Genett, 2 Tenn. Ch.
375 ; Christmas v. Biddle, 13 Pa. 223 ; Childs v. Digby,
24 Id. 20 ; Drake on Attachment, sec. 244, 471, 478).
This is decisive of the present case. The right to
attach corporate shares depends upon the statute, The
Hat Sweat Manufacturing Company was a foreign, and
not a domestic corporation. Section 647 is the only
authority for the attachment of shares of a defendant
in a corporation ; and as that section does not apply to

CIVIL PROCEDURE REPORTS. 201

- Angle e. Kaufman.

foreign corporations, it i? immaterial to what extent the
Hat Sweat Manufacturing Company may have brought

its property or business into this State. We are
["] also of opinion that the defendant was entitled to

have the levy set aside and vacated, thereby reliev-
ing his stock from the cloud and embarrassment created
by the proceedings (see Dunlop v. Patterson Fire Ins.

Co., 74 IT. T. 147 ; Blossom v. Estes, 84 Id. 617).
["] These reasons lead to reversal of the order of

the General Term, and an affirmance of the Special
Term.

ANGLE t>. KAUFMAN.

City Court of New York ; Special Term, Octo-
ber, 1883.

§§ 791, 793.

Preferred causes. — Preferences under the general ride of practice are

governed by section 798 of the Code. — When the right

to preference does not appear in the pleadings

it is waioed by noticing the

cause for trial.

Section 793 of the Code of Civil Procedure, — which provides that
where the right to have a cause preferred on the calendar does not
appear in the pleadings, the party desiring a preference must pro-
cure an order therefor, upon notice to the adverse party, and that a
copy of the order must be served with or before the notice of trial,
— governs preferences under the rules of practice as well as those
under the statutes. Accordingly, Held, where a cause was clearly
entitled to preference under rule 80, that having been noticed for
trial by both parties, the plaintiff bad undoubtedly waived his"
right to a preference.

While the court undoubtedly has power in general to control its calen-
dar, its own rules are always absolute and controlling.

{Decided November 1, 1883.)

202 CIVIL PROCEDURE REPORTS.

Angle v. Kaufman.

Motion by the plaintiff to have the cause advanced
on the calendar as a preferred cause.

The motion was made on the ground that property
of the defendant was held under an attachment issued
in the action, and that therefore, under rule 36 of the
general rules of practice, the cause was entitled to a
preference. The action was at issue, and had been
noticed for trial by both parties.

W. L. Flagg, for the motion.

Abram Kling, opposed.

Hawe8, J.— I have no doubt about the power of the
court in general terms to control its calendar, but its own
rules are always absolute and controlling. The plaintiff
herein has obtained an attachment, and he moves, on
notice, to advance the cause as one preferred under the
rules of the court, and the moving papers clearly show
that it is such within the provisions of rule 36.* It
appeared, however, that the cause is at issue, and has
been noticed for trial by both parties. Section 793 of
the Code, provides that where thS right to a preference
does not appear in the pleadings the party desiring a
preference must procure an order therefor, upon notice
to the adverse party, and that a copy of the order must
be served with or before the notice of trial. This pro-
vision governs preferences under rules as well as those
under the statute, as appears by subd. 10 of section
791. The cause having been noticed for trial, there
can be no doubt that the party has waived his rights,
as the statute is imperative in regard to the time of
such service, f Motion denied with costs of motion to
defendant to abide event.

* General rules of practice.

t Where an order is not obtained or served until after service of
notice of trial or of argument, it is unavailable. Robertson «. Schell-
haas, 02 How. Pr. 489 ; City NV1. Bank t>. National Park Bank.
Id. 495.

CIVIL PROCEDURE REPORTS. 203

In re National Trust Co.

In bb NATIONAL TRUST COMPANY.

THE PEOPLE OP THE STATE OP NEW YORK,
Appellants, v. THE NATIONAL TRUST COM-
PANY ; BEST Respondent.

Supreme Court, First Department ; General
Term, Mat, 1883.

§§ 772, 1347.

When an application to vacate, modify or re$ettle an order ehotdd not be
entertained by a justice other than the one who made or directed it.

Where the justice by whom certain orders passing the accounts of
the receiver of a corporation, and allowing him commissions for his
services as such were made, had jurisdiction to entertain the pro-
ceedings before him, and make the allowance for commissions, but
the sums allowed by him as commissions were erroneous, —Held,
that a motion, made before another justice, to vacate and set aside
or resettle the orders was properly denied ; ['J that an application
should have been made to the justico who mnde the order to resettle
or vacate them, or an appeal taken for the purpose of reviewing the
propriety of the orders made, f ' ]

TV hen the court has power to hear and determine an application made
to it, if the order made by it is erroneously made, the remedy pro-
Tided for its correction is that of an appeal to the general term ;[8]
but while that is the general course of proceeding for reviewing
orders affecting substantial lights, it is not to be regarded as exclu-
sive; for the party entitled to complain of the order may still move
to vacate or obtain its reconsideration. [•]

With the exception of orders made by a justice of the court without
notice and those known as provisional remedies, no authority has
been expressly or by clear implication given by the Code of Civil
Procedure to one justice presiding in court to vacate or reconsider
an order made by another [T, 8], and the omission to provide such
authority is a circumstance indicating it to have been the ititention
of the legialaure that it should not be exercised. [•]

In its theory, the policy of the Code has been to prevent one judge

301 CIVIL PROCEDURE REPORTS.

In re National Trust Go.

from reconsidering and reviewing the orders which may have
been made upon motions heard and decided in a court held by
another. [M] This policy has been ordinarily observed and carried
into effect by the determinations of the courts themselves, [n, "]
and the rule has been, where the order has not been obtained by
collusion, or there is not an absence of jurisdiction in the tribunal
directing it, in either of which cases it- msy be disregarded, to
require the application of its reconsideration, when that is not to
be made by direct appeal from it, to be made in a court held by
the justice originally directing the order; [10J the only exceptions
to this rule being to provide for cases where the justice giving the
direction may himself have died or censed to be a member of the
court, ["] and where orders were taken by default. [", "J

Kamp v. Kamp (59 N. 71 212), [*, u, "] Attorney- General e. North
American Life Ins. Co. (82 JV. Y. 24) ; [4J Fisher e. Hepburn (48
JV. r. 41; [»] approved.

(Decided October 26, 1883.)

Appeal from order denying motion to vacate and
set aside or resettle orders, allowing commissions to
the respondent, for his services as receiver.

The facts are fully stated in the opinion.

John C. Keeler, Deputy Attorney-General for appel-
lant.

Francis H. Bangs, for respondent.

Brady, J.— The National Trust Company of the City
of New York was a moneyed corporation, organized
under chapter 460 of the laws of 1867. On December
14, 1877, an order was made under the provisions of
the Revised Statutes* relating to the subject, upon the
petition of certain stockholders of the corporation,
enjoining it from transacting any further business, and
appointing William J. Best, receiver, for the purpose

* 2 R A 464, repealed by Laws of 1880, chap. 245.

CIVIL PROCEDURE REPORTS. 201

In re National Trust Co.

of winding up its affairs. The receiver qualified at
once and entered upon his trust, and converted into
cash the assets, which consisted chiefly of marketable
securities. Within a period of about six months after
thus qualifying, these securities had been reduced to
cash, and the depositing creditors paid their accounts
in full. The corporation had hot been dissolved, how-
ever, under these proceedings, and, consequently, in
March, 1879, the Attorney-General began an action
against the corporation to accomplish that result. In
April following, judgment was rendered to that effect,
and Best was appointed receiver and directed to trans-
fer to himself, as such, the property which he held as
receiver in the former proceeding. This he did.

In August, 1878, an order was made in the first
proceeding passing the accounts of the receiver from
the time of his appointment until June 29, 1878 ; and it
appeared that during that period be had collected,
from all sources, $1,734,642.44, and had disbursed
$1,548,400.98. Upon the coming in of the report he
was allowed, as a commission, three per cent, on the
sum first named, or $52,039.27 ; and an allowance of
$10,000 was also made to his counsel for services.
This order was made at Special Term, and is dated
August 7, 1878, and is predicated on the report of
the referee who was appointed to take proof of all the
facts and circumstances stated in the report of the
receiver and to examine and pass upon his accounts
and to report thereon to this court. * On August 7,
1879, a further order was made in the first proceeding,
at the Special Term, in which it was recited that the
receiver, having given notice to all persons in anywise
interested in the National Trust Company of the City
of New York, as required by law, of his intention to
present and render to this court, at a Special Term
thereof, to be held in the County Court House in the
City of New York, on June 9, 1879, at ten o'clock in

206 CIVIL PROCEDURE REPORTS.

In re National Trust Co.

the forenoon of that day, a full and accurate account,
under oath, of all his proceedings as receiver ; and hav-
ing Tendered to the court, pursuant to the statute in
such case made and provided, and of such notice, a
full and accurate account, under oath, of all his pro-
ceedings, and the same having been filed with the clerk
of the county on June 12, 1879, an order was there-
upon on that day made and entered, pursuant to the
provisions of the statute,* referring the account so
filed to John S. Lawrence and William A. Boyd, of the
city of New York, counsellors at law, who were by the
order appointed referees to examine the account and
to hear and examine the proofs, vouchers and docu-
ments offered for and against it, and to report thereon
to this court, and to take proof of the claims presented
to the receiver for costs and counsel fees mentioned in
the schedule of the account, and to report to this court
as to whether the same were proper and reasonable
charges against the funds in the hands of the receiver ;
and that the said John S. Lawrence and William A.
Boyd having made their report to the court, dated
July 30, 1879, and which was filed with the clerk of
the county, and by which it appeared, amongst other
things, that the referees had examined the account of
receiver so filed, and the proofs, vouchers and docu-
ments offered for and against the same, and that the
receiver, as such, had in his hands the sum of $186,-
241.46. The receiver was by this order allowed two per
cent, upon the sum of $1,734,642.44, and five per cent,
upon the sum of $41,478.69, which had been received
in addition to the sum heretofore stated, and which
commissions aggregated in all the sum of $89,506.65.

It appears further that in July, 1882, an accounting
of the affairs of the receivership was begun by the
present attorney-general On the accounting the

♦Code Civ. Pro. §827.

CIVIL PROCEDURE REPORTS. 207

Io re National Trust Co.

receiver asked to be credited with $36,766.73, paid to
himself for commissions under the order of August 7,

1879. The attorney-general, believing that the
receiver was entitled for receiving and disbursing the
sum received by him to no greater amounts than those
allowed bylaw to executors and administrators,* and
that such commission was the only sum with which
the receiver could ask to be credited, made a motion
at the Special Term on the first Monday of August,
1882, to resettle the orders of August 7, 1879, so that
the fees adjudged to the receiver should not be more
than those allowed by law to executors and admin-
istrators. It appears that this motion was never
decided, and in December, 1882, the attorney-general
withdrew it, having ascertained in the mean time that
by an order made August 7, 1875, the sum of $52,039.27
had been allowed to the receiver for commissions. It
also appears that the accounting set in motion by the
attorney-general had not been closed, and that the
referee bad not made his report at that time, where-
upon a motion was immediately made by the attorney-
general for leave to intervene in a stockholders' pro-
ceeding, and to set aside and vacate or resettle the
orders of August 7, 1878, and August 7, 1879, and for
an order fixing the receiver's fees at the same amount
as those allowed by law to executors and administrators.
The motion was returnable on the first Tuesday of
January, 1883, and was not heard until the 23d of that
month. Before the motion was heard the referee had
made his report, but it had not been confirmed. The
motion was denied for the reason that the justice pre-
siding could not review, as he stated, the action of
another justice of this court. Upon this last order the
appeal is taken to this court by the attorney- general.

* 2 R. S. 93, as amended by Laws of 1803, chap. 362, and Laws of

1880, chap. 245 (3 R. S. Banks' 7 Ed. 2803); Code of Civil Pro-
cedure, ft 2786-2739.

808 CIVIL PROCEDURE REPORTS.

In ro National Trust Co.

1 ■ - ■ ■ i i i f i

As the object was to reduce the amount of commis-
sions which had been allowed, the application was one
to resettle a judgment ; and it was not made until nearly
three years had elapsed from the time of its entry.
No fraud or irregularity in obtaining the judgment
was alleged.

There can be no doubt of the jurisdiction of the
learned justice who presided when the orders were
made to entertain the proceeding before him, and
['] to make the allowance for commissions; and
assuming the sum allowed to be erroneous, as it
may be, for the purposes of this appeal, the applica-
tion should have been made to him to resettle or vacate
the order, or an appeal taken for the purpose of review-
ing the propriety of the order made. The learned
justice at the special term, therefore, very properly
determined that an application to vacate or resettle
[*] the order or judgment in reference to the com-
missions should have been made to the learned
justice presiding at the time the orders or judgments
were made, if that course were the one which the attor-
ney-general thought best under the circumstances, to
adopt.

To entertain applications of this character would
lead to inextricable confusion, and would in effect be
asking one judge presiding at the Special Term to
review the decisions of another, a practice which for a
time prevailed to some extent, it may be, in the history
of the jurisprudence of the state, but which was at-
tended with serious, if not disastrous, consequences.

It is not necessary to consider whether the attorney-
general has any remedy by way of appeal from the
order confirming the report of the referee on the last
accounting, nor is it necessary to determine whether he
has any interest in the proceeding. It must be
assumed that the learned justice who presided when
the orders and judgments were made of which the

CIVIL PROCEDURE REPORTS. 209

In re National Trust Co.

complaint is predicated, would, on his attention being
called to the propositions, make such changes as are
demanded by the application of the proper rules of
law. And as there seems to have been some error in
the amount of the commissions awarded, the better
disposition of this matter is to remit it to the Special
Term, to be brought on before the learned justice pre-
siding when the orders of August 7, 1878, and August
7, 1879, were directed, for him to make such disposition
of the application as, under the circumstances, he shall
deem best. The proceedings herein have been set out
in detail, so that the necessity of observing and enforc-
ing the rule which prohibits one justice from reversing
the order of one of his brethren made in the same
tribunal, may be made apparent. The application of
the attorney-general before any judge to accom-
[*] plish the object designed is not warranted upon
the decision in the case of Kamp t>. Kamp (59
N. Y. 212), in which the court said : " The application
in the case before us is not to reverse the judgment
and decision of the court making the orders, or
to reconsider the merits of the controversy, but to
arrest the proceedings for enforcing a void judgment."
The complaint made in that case was that the order
which was the subject of consideration was made with-
out any jurisdiction, and the court sustained the objec-
tion. Nor is the application warranted by anything
[4] decided in the case of the Attorney-General v.
North American Life Ins. Co. (89 N. Y. 94).
For these reasons the order suggested should be
made.

Daniels, J. (Concurring). — It may be assumed, in
the decision of this appeal, that the orders which it was
the object of the motion to reconsider were erroneously
or inadrertently made; for the allowances made by
them to the receiver exceeded the rate prescribed by the
Vol. IV.— 14

210 CIVIL PROCEDURE REPORTS.

In re National Trust Co.

statute for his commissions. But the orders by which
the commissions were allowed were not directed by the
justice who presided in the court at the lime when the
motion resulting in the present order was made. These
orders were made at another term of the court, held by
another justice, and upon what was then deemed to be
a full consideration of the merits of the respective ap-
plications.

The court as it was then consituted had jurisdiction

to hear and decide the applications ; and if the
[*] orders were erroneously made, the remedy provided

for their correction has been that of an appeal to
the General Term, by section 1347 of the Code of Civil
Procedure.

But while that is the general course of proceeding
prescribed for reviewing orders affecting substantial

rights, it is not to be regarded as exclusive ; for, in
[•] addition to the appeal so provided for, the party

entitled to complain of the order may still move to
vacate or obtain its reconsideration (People v. Bergen,
63 JV. Y. 405, 410).

But an application of that nature, made before a
court presided over by another justice than the one
directing the orders, is practically an appeal from one
co-ordinate court to another, and that has not been
provided for in the system of practice now prevailing
in and governing the courts of this State. The only

class of cases in which, by the Code, one justice of
['] the court is authorized to vacate or modify the

orders made by another, is that provided in section
772 of the Code of Civil Procedure and those relating
to provisional remedies. Under that section an order,
not being a provisional remedy, but made by a justice
of the court without notice, may be vacated by the
court, although the justice presiding may be another
and different person from the one making the order.

With this exception, and those included as orders

CIVIL PROCEDURE REPORTS. 211

la re National Trast Co.

[*] known as provisional remedies, no authority has
been expressly or by any clear implication given to
one justice presiding in court to vacate or reconsider
the orders made by another, and the omission to pro-
vide such authority is a circumstance indicating it to
have been the intention of the legislature that it
should not be exercised. And pursuant to that general
policy, the power which previously existed of allowing
one justice at Special Term to review trials had before
another at the circuit, has been so far qualified that a
motion for a new trial must now be heard before the
justice presiding at the trial, if he is living and his
term of office has not expired, unless he specially
directs it to be heard before another judge of the same
court (Code of Civ. Pro. sec. 1002).

In its theory, the policy of the Code has been to pre-
vent one judge from reconsidering and reviewing the
orders which may have been made upon motions
["] heard and decided in a court held by another ; and
that policy has been ordinarily observed and carried
into effect by the determinations of the courts them-
selves, before the enactment even of the present Code ;
and the rule has been very generally adopted and
observed, where the order complained of has not been
obtained by collusion, or there is not an absence of
jurisdiction in the tribunal directing it, in either of
which cases it may be disregarded, to require the
application for its reconsideration, when that is not to
be made by a direct appeal from it, to be made in a
court held by the same justice originally directing the
order ; and the only exceptions made to this rule
["] has been to provide for cases where the justice
giving the direction may himself have died, or
ceased to be a member of the court, and ordecs taken
by default. In those two events, as the observance of
the rule would be impracticable for the purpose of
securing what may be just and right, the application

212 CIVIL PROCEDURE REPORTS.

In re National Trust Co.

for a reconsideration of the order may then be made

before a court held by another judge. This rule
["] has been very uniformly adhered to to avoid the

unseemly conflict which would otherwise neces-
sarily arise between courts possessing co-ordinate
authority, and a departure from its observance has
only been sanctioned in the exceptional cases which
have already been referred to (Wilson v. Barney, 5 Hun,
267; Dinkelspeil v. Levy, 12 Id. ISO). Upon this sub-
ject it has been justly said that " it would be a very un-
wise administration of justice, and lead to much vex-
atious litigation, if a judge holding one Special Term

could, upon mere motion, set aside the decision
["] and judgment of another, upon allegations that the

latter had erred as to any of the questions sub-
mitted for his determination" (Fisher v. Hepburn,
48 N. T. 41, 53). This is without doubt a concise and
accurate statement of the rule prevailing in the courts
upon this subject, and the application which has now

been brought up by appeal was clearly within the
["] principle of this determination. It was further

sanctioned in Kamp v. Kamp (59 N. T. 212), where
it was said, in the course of the opinion, that the case
just referred to "gives the true reason why it is not
fit that one judge should sit in review of the decisions
and judgments of another judge of the same court ; and
that reason rests not so much in a want of power to
correct what has been mistakenly done as the confusions
and vexatious litigation that would be likely to arise
from so unwise a course in the administration of
justice" (Id. 217).

It will be seen that these observations are very just

and discreet when the effect of a different practice
["] is considered. For, if one judge, at a term of court

held by him, may reconsider the orders or judgments
directed by a preceding judge at another court, his own
orders or judgments would be liable to re-examination

CIVIL PROCEDURE REPORTS. 213

Id re National Trust Co.

by 8 till another judge ; and the investigation could not
often be limited to the intervention of a third tribunal ;
for it might with the same propriety be continued,
from time to time, as long as any other differently con-
stituted tribunal could be found that would be willing
to take up and examine the case.

The principle or practice which would allow that
course of proceeding would necessarily bring the courts,
as well as their authority into disrepute, and deservedly
deprive them of the confidence and respect of the
public. Where the preceding order may have resulted
from a default, without any actual decision of the court
directing it, the principle, of course, would not be appli-
cable (Thompson v. Erie Railway Co., 9 Abb. N. 8. 233).
But the application which was made in this case
["] was not dependent upon such an order ; neither
was either of the contingencies or qualifications
already considered applicable to the case ; for the jus-
tice under wh6se authority the orders were made is still
presiding in the same court, and no obstacle whatever
stands in the way of an application to him to reconsider
the orders because of this erroneous excess of authority
included within their direction. And no doubt at all
can be entertained, when the subject shall be brought
to his attention, that the proper correction in the allow-
ance of the receiver's commissions will at once be made.
But if any error or mistake should by any possibility
then intervene, the remedy has been clearly prescribed
by the provisions of the Code, and that is by way of an
appeal from the order.

The order in this case should be affirmed, but with-
out costs, and with liberty to the attorney-general to
renew his application at a court held by the justice
under whose authority the orders to be considered were
made.

214 CIVIL PROCEDURE REPORTS.

Attocney-General v. Continental Life Ins. Co.

hx be ATTORNEY-GENERAL v. THE CONTI-
NENTAL LIFE INSURANCE COMPANY.

Supreme Court, First Department ; Special Term,
November, 1883.

§885.

Deposition* to be used on motion. — Court cannot grant order for taking,
on the application of an f one not a partf to the action.

An order for the examination of a person as a witness, under section
885 of the Code of Civil Procedure, for the purpose of procuring
his deposition for use on a motion, cannot be granted on the appli-
cation of a person not a party to the action in which the motion is
to be made. The person applying for the order must be a party to
the action, and the person to be examined under the order must not
be. V)

Neither the stockholders of an insurance corporation nor the holders
of policies therein, nor creditors thereof, are parties to an action
because the corporation is.f*, *]

Where, in an action brought by the attorney-general to dissolve an
insurance corporation, a policy holder, who was not a party to the
action, moved to set aside, for the alleged fraud of one F., an order
directing the receiver of the defendant to compromise and discon-
tinue two actions brought by him against said F., and procured an
order to take the deposition of said F., to be used on such
motion, — Held, that the order to take said F.'s deposition was
improperly granted, and should be vacated and set aside. [«]

{Decided, November 6, 1888.)

Motion to vacate and set aside an order for the
examination of one Lather W. Frost, not a party to
the action, to obtain his deposition, to be used on a
motion in the action*

The facts are sufficiently stated in the opinion.

C. E. Hushmore, for motion.
Horatio F. AveriU, opposed.

CIVIL PROCEDURE REPORTS. 215

Attorney-General v. Continental Life Ins. Co.

Potter, J. — This is a motion to vacate an order for
the examination of Lnther W. Frost as a witness, and
to obtain his deposition, to be nsed on a motion nnder
section 885, Code of Civil Procedure.

The gronnds of the motion are that the person pro-
curing such order, and in whose behalf the deposition
is to be nsed, is not a party to the action in which the
order is granted or, if he is, then, by the same reason-
ing, the person to be examined is a party to the action.
Said section provides, that, " where a party intends to
make or oppose a motion in a court of record . . .
and it is necessary for him to have the affidavit or
deposition of a person not a party to use upon the
motion . . . the court or judge authorized to make
an order in the cause may, in its or his discretion, make
an order appointing a referee to take the deposition of
that person." The residue of the section consists of
the essentials of the affidavit to obtain such order, or of
the practice under it.

The object of the motion, as appears from the
petition upon which the order to take the deposition
was obtained, is to set aside an order made in the above
entitled action directing the receiver of the defendant
therein to compromise and discontinue two actions
brought by him as receiver against said Frost, in this
court, to recover of him certain moneys alleged to belong
to the defendant therein, and to set aside certain con-
veyances of premises alleged to have been purchased
by said Frost with the moneys of the defendant, and
the incumbrances upon said premises. The application
for this order to compromise and discontinue was made,
and the order granting permission to do so was entitled
in and entered in this, the above entitled action. It
does not appear from any of the papers before me
upon this motion that either said application for the
order to compromise and discontinue, or that the order
granting leave to do so, was either entitled or entered

216 CIVIL PROCEDURE REPORTS.

Attorney-Genentl v. Continental Life In*. Co.

in the action brought by the receiver against said
Frost.

The petitioner shows that he was the holder of a
policy of insurance in his own right issued by the
defendant, and that his object is to set aside the com-
promise for the fraud of said Frost. Assuming the
facts to be as stated in his petition, and that the dep-
osition of said Frost, if obtained, would establish
those facts, it would be manifest justice to the public
generally and to the holders of policies in the de-
fendant's company that the order to compromise and
the compromise under it should be set aside. But that
is not the question upon this motion, at least in the
first instance.

The first question here is, whether the means which
have been taken for that end are regular or legal. I
think it is plain, too plain to admit of discussion, that
the word party, as used in section 885, Code of Civil
Procedure, means a party to the action, and means
the same when used to designate the person on whose
behalf the examination is to be had as when used to
designate the person to be examined. The order is to
be granted by a judge or court competent to make an
order in the cause. The person applying for the order
to examine must be a party to that cause, and the
person to be examined under the order must not
'■■' be. If the person to be examined is a party to the
cause, his deposition can be obtained under other pro-
visions of the Code ; and if the person desiring the
deposition is not a party to the cause, either by the
requirements of the Code or by leave of the court, he
is not presumed to have any standing in the court or
any rights to be affected by the action. The name of
the petitioner nowhere appears in the action, and he
was not a necessary or proper party to the action. The
action was instituted by the Attorney-General to dis-

CIVIL PROCEDURE REPORTS. 217

Attorney-General v. Continental Life Ins. Co.

solve the corporation named the Continental life
Insurance Company.

I think it quite, if not entirely, fundamental that a

stockholder in a corporation is not a party to an
L -* action because the corporation is a party. Hence
the necessity and frequent occasion of stockholders to
apply to the court in which an action is pending between
a corporation of which they are stockholders, and other
parties, for leave to intervene and become parties to
the action. If stockholders in a corporation are not
parties by reason of the corporation being a party, then,

clearly, holders of policies in and creditors of the
L -! corporation which is a party to an action are not
parties to an action because the corporation is. Stock-
holders, policy-holders, and creditors, as a general rule,
are represented by the corporation, and, after its dis-
solution, by its receiver (Greaves u. Gouge, 69 iV. Y.
154 ; Brewster t. Hatch, 10 Abb. 2T. C. 400).

I see, by the application and the order granting leave
to compromise, that there were several policy-holders
who had intervened, and were represented by counsel
respectively on that application. But the petitioner
had not intervened, and was not therefore in that sense

a party to this action in any way. The motion to
L -I vacate the order must therefore be granted, with
$10 costs of motion.

218 CIVIL PROCEDURE REPORTS*

Estate of McKieroan.

ESTATE OF JANE McKIERNAN, Deceased.

Surrogate's Court, Kings County. October, 1883.

§§ 2717, 2718.

Administrator disputing claim should file written answer on application

for order decreeing its payment. — When he fails to do so,

surrogate should order it to be paid.

Where, on petition for a decree compelling an administratrix to pay a
claim against the estate of her intestate, she verbally, in open court,
disputed the claim and rejected it, but did not file a written
answer, Held, that a written answer was expressly required in such
a case by section 2718 of the Code of Civil Procedure; and that none
being filed, and the petitioners Alleging assets, the surrogate should
grant a decree for the payment of the claim.

{Decided October 28, 1883.)

Petition for an order compelling an administratrix
to pay a claim against the estate of her intestate.

The petitioners asked for a decree compelling the
payment of a claim against the estate of James
McKiernan. The administratrix verbally, in open
court, disputed the claim, and rejected it in toto. The
petitioners contend that a decree in their favor should
be entered because of a failure on the part of the
administratrix to file a written answer.

James J. Rogers, for the petitioners.

Robert E. Connelly^ for the administratrix.

Sections 2717 and 2718 do not warrant the entry of
a decree because of a failure to file a written answer.
Section 2718 reads that the surrogate must dismiss
the petition if a written answer is filed. Written
pleadings are not absolutely necessary except, where
the surrogate orders that a written answer be filed, a

CIVIL PROCEDURE REPORTS, 219

Estate of McKiernao.

pleading may be oral. Code, § 2533. In this case no
such requirement was made.

The surrogate has no jurisdiction to try a disputed
claim. Stillwell v. Carpenter, 2 Abb. N. C. 238 ; Dis-
osway v. Bank of Washington, 24 Barb. 60 ; Wilcox
v. Smith, 26 Barb. 316; Bank of Poughkeepsie v.
Hasbrouck, 6 N. T. 216 ; Magee v. Vedder, 6 Barb.
362 ; Wilson v. Baptist Ed. Society, 10 Id. 308 ; Curtis
v. Stillwell, 32 Id. 354 ; Andrews v. Wellege, 17 Bow.
Pr. 263 ; Tucker v. Tucker, 4 Abb. Ct. App. 428.

The provisions of the statute for a reference of dis-
puted claims show that the legislature did not intend to
place the trial of them under the control of the surro-
gate, for in such case the statute requires the agree-
ment to refer to be filed in a law court, and the pro-
ceedings therein to proceed to judgment in that court
before the surrogate can act in directing its payment.
Andrews v. Wellege, supra ; 3 R. S. (6th Ed.) 96 and
97, § 47.

If a claim is disputed, and no agreement is made to
refer, it must be sued in a court of competent juris-
diction. 3 B. & (6 Ed.) 97.

Bergen, Surrogate. — It is conceded that a surro-
gate's court has no jurisdiction to try a disputed claim.
On the return day of the citation the administratrix
asked for an adjournment, and on the adjourned day
failed to file a written answer, as expressly provided by
the Code, § 2718. In this case, the petitioners alleging
assets, and no written answer being filed, as required
by said section, I am compelled to grant a decree for
the payment of their claim.

WO CIVIL PROCEDURE REPORTS.

Cunningham v. Eiseman.

CUNNINGHAM v. EISEMAN.

N. Y. Court of Common Pleas ; Special Term,
November, 1883.

§3017.

District Court in the City of New York. — Judgment debtor in judgment

recovered therein cannot file transcript thereof with county clerk.

— Transcript issued to party in whose favor judgment

woe rendered is the only one to be so filed.

A judgment debtor has no right to file a transcript of a judgment
recovered against him in a district court in the city of New York
with the county clerk, so as to make the judgment a judgment of
the New York Court of Common Pleas, iu order to give that court
jurisdiction to entertain an application he wishes to make to have
such judgment set off against another in his favor. The Code
provides that the clerk of a district court in the city of New
York shall issue a transcript of a judgment to the party in whose
favor the judgment was rendered; the transcript so issued, and
none other, is the only one to be filed with the county clerk.

(Decided, November 1, 1883.)

Motion to set aside a docket of the judgment made
herein by the county clerk on the filing of a transcript
thereof by defendant.

The defendant, judgment having been recovered
against him herein in the District Court of the city of
New York, for the Seventh Judicial District, procured a
transcript thereof from the clerk of that court, and tiled
it with the clerk of New York county, who thereupon
docketed the judgment. This he did to make the
judgment a judgment of the New York Court of Com-
mon Pleas, so that it might, on motion, be set off
against a judgment in his favor against the plaintiff.

Samuel J. Goldsmith {John J. Adams, attorney),
for the motion.

David M. Neuberger, opposed.

CIVIL PROCEDURE REPORTS. 221

Malcolm v. Ham ill.

J. P. Daly, J. — The judgment debtor has no right
to file a transcript of the judgment of the District
Court with the county clerk, so as to make the judg-
ment against himself a judgment of the Court of Com-
mon Pleas, in order to give the latter jurisdiction to
entertain an application he wishes to make to have
such judgment set off against another in his favor.
The Code, section 3017, provides that the clerk is to
issue the transcript to the party in whose favor the
judgment was rendered ; that transcript, so issued, is
the one to be filed with the county clerk, and no
other.

Motion granted ; no costs.

MALCOLM, Respondent, v. HAMILL, Appellant.

New York Superior Court, Special Term,
August, 1883.

f § 3251, subd. 5.

Argument in Court of Appeals for which costs are allowed may be either
oral or printed.

The word "argument" in subdivision' 5 of section 3251 of the Code
of Civil Procedure, which provides for the award of costs before
and for argument in the Court of Appeals, does not mean oral argu-
ment alone, but includes the submission of the reasoning on which
counsel relies in a printed form.

(Decided August 8, 1883.)

Motion for a retaxation of respondent's costs.

The clerk of the taxation of costs on appeal to the
Court of Appeals herein, allowed $60 for argument, to
which item the appellant objected, on the ground that

t%2 CIVIL PROCEDURE REPORTS.

Malcolm v. Hamiii.

there had been no argument in the conrt of appeals, the
case having been submitted, by consent, without oral
argument.

John 2£ Cole, for the plaintiff.

Stem & Meyers^ opposed.

0' Gorman, J. — The motion papers do not state that
printed points were delivered to the court ; but from my
recollection of the argument of counsel on this motion
I assume that such was the case. The question, there-
fore, is whether the word " argument," as used in
section 8251, subd. 6, of the Cede, must be understood
to mean oral argument alone. The language of some
of the rules of the Court of Appeals now in force, give
some color to that view.

Rule 21. " When a case is called on the calendar,
it must be either argued or submitted. If the appellant
appears, he may either argue or submit the case."

The rules of the court of appeals formerly in force,
however, refer to printed arguments :

Rule 14. " Cases not exchanged may be submitted
on printed arguments," &c. 1 Bliss' N. Y. Code [1877],
p. 845.

I see no reason to believe that the difference in
phraseology in the more recently adopted rules is other
than accidental. Counsel have not been able to furnish
me with any authorities bearing on the question, and
it must be decided according to the reason of the thing
and the general understanding and practice in the pro-
fession. The intention of the Code, section 3251, is, no
doubt, to provide for the compensation of the attorney
for services rendered in the progress of the action, and
for the labor devoted by him therein. The careful
preparation of the printed points for submission to an
appellate court involves anxious consideration and the
laborious research which forms the basis of every argu-

CIVIL PROCEDURE REPORTS 228

Malcolm t . H&mill.

ment. On these printed points counsel often mainly
relies as the means of keeping fresh in the memory of
the court the reasoning on which he hopes to succeed.
If, by the consent of counsel on both sides, the case is
submitted on these printed points alone, it is with the
intention that they may stand in place of oral argu-
ment, as being sufficient without it. If the court con-
sent to receive the case and examine it with the aid of
these printed points alone, and decide it, it can scarcely
be said that it has decided without argument.

The growth of any practice in the profession which
would deprive the court of the great benefit of lucid
presentation of the case by viva voce argument of
counsel, would be, I think, injurious both to the
bench and the bar ; and such practice should not be
encouraged.

On the other hand, I cannot say that the submission
of a case on printed points alone may not be often a
convenient and effective mode of argument, and entitled
to as much compensation as if the argument had been
spoken and heard, instead of being printed and read.

In my opinion the word "argument,"in the section
of the Code referred to, comprises within its meaning a
submission of the reasoning on which counsel relies in
a printed form as well as by spoken address.

The motion to retax must therefore be denied, with
$10 costs.

IM CIVIL PROCEDURE REPORTS.

Lewis*. Stevens.

LEWIS, Respondent, v. STEVENS, Appellant.

Coubt of Appeals, May, 1883.

§§ 680, 681.

When bail ha$ once been duly allowed, the allowance cannot be vacated. —

The court hoe no power to renew the eheriffU liability ae bail

after he hat once been regularly discharged from liability.

Where the defendant in an action was arrested under an order of
arrest granted therein, and gave bail, which was excepted to by
plaintiff, and notice of their justification given, and the bail was
allowed upon plain tifTs default in appearing at the time and place
set for the justification, and the bail piece was approved and filed,
Held, that a motion, by plaintiff, to open such default was properly
denied ;[4] that the sheriff occupied the position of a surety, and his
rights are Urictimmi jarie; being once discharged from his lia-
bility, it cannot be revived against his objection. [*]

Where the allowance of bail by a justice was made upon regular
notice, and all the proceedings relating thereto were regularly
taken in conformity with the Code, — Held, that the contingency
had occurred upon which the statute declares the sheriff discharged
from liability, and the court has not any power to renew his lia-
bility;^] that having been legally discharged from his liability, the
sheriff cannot be reinstated as a surety except by express statutory
authority, and that none such exists. [*]

Lewis e. Stevens (48 K 7. Super. 559) reversed. [*]

{Decided June 15, 1883.)

Appeal from order of General Term of New York
Superior Court reversing an order denying plaintiffs
motion that bis default in failing to attend at justifi-
cation of bail given by defendant on his arrest in the
action be opened.

Reported below 48 iT. T. Super. 669.

The defendant was arrested by the sheriff of the
city and county of New York, under an order of
arrest granted in the action, and gave bail. The

CIVIL PROCEDURE REPORTS. 225

Lewis v. Stevens.

plaintiff served notice that he did not accept the bail
given by the defendant, who thereupon gave notice of
its justification. The plaintiff did not attend at time
and place at which notice was given that the bail would
justify, and the bail was therefore allowed upon plaint-
iffs default, and tlie bail-piece duly approved and
filed. The plaintiff thereafter moved to vacate the
allowance of the bail and open his said default, on the
ground that on the day the bail was to justify he was
absent from the city, being unexpectedly detained
therefrom, and his clerks negligently failed to attend
to the matter. This motion was denied at Special
Term ; but the General Term, on appeal, reversed the
order of the Special Term. Prom the order thereupon
entered by the General Term this appeal was taken.

Malcolm Gra7iam, for the sheriff, appellant.

A. J. Diltenharfer, for the defendant, appellant.

Henry D. Hotchkiss^ for the respondent.

Ruger, Ch. J.— This is an appeal from an order of
the General Term reversing an order of the Special
Term denying a motion to open a default taken upon
a hearing for the justification of bail upon an arrest in
the action.

The defendant and sheriff each had notice of the
motion ; each appeared in opposition thereto, and each
appeals from the decision of the General Term.

It is provided by section 580 of the Code of Civil
Procedure that for the purpose of justification each
of the bail must attend before the judge at the time
and place mentioned in the notice, and be examined on
oath touching his sufficiency. It is further provided
that the judge may adjourn the examination from day
to day, in his discretion, till it is completed ; but such
Vol. IV.— 15

226 CIVIL PROCEDURE REPORTS.

Lewis «. Stereo*

adjournment is required to be to the next judicial day,
unless, by consent, another day is agreed upon.

Section 681 provides : " If the judge finds the bail
sufficient, he must annex the examination to the under-
taking, endorse his allowance thereon, and cause them
to be filed with the clerk,* The sheriff is thereupon
exonerated from liability.'9

The allowance of bail by the judge in this case was
made upon regular notice, and all of the proceedings
relating thereto were regularly taken in conformity
with the Code.

The contingency bad occurred upon which the

statute declares the sheriff discharged from lia-
['] bility. We do not think that any power exists in

the court to renew his liability. Ballard v. Ballard,
18 JV. T. 491 ; Butler's Bail, 1 Chit. 83 ; Petersdorffon
Bail, 318 ; Trumbull v. Healy, 21 Wend. 670 ; Cornell
v. Reynolds, 1 Cow. 241.

The question involved is one of power, and the
Court have no right to speculate as to the effect of the
order.

The sheriff has once been legally discharged from

his liability, and he cannot be reinstated as a surety
[f] except by express statutory authority. We

believe that none such exists.
When the court have power to relieve a party from
the consequences of a default, it is a question of dis-
cretion in the courts below as to whether they will do
so or not. The circumstances existing in this case
would very well justify the action of the court were
this a proper case for the exercise of such power. The

sheriff occupies the position of a surety, and his
[■] rights are strictissimi Juris; being once discharged

* Until this is done the justification is not complete. O'Neil ».
Durkee, 2 Abb. Pr. 383, S. C, 13 How. Pr. 94; McKenzie v. Smith, 48
N. 7. 148.

CIVIL PROCEDURE REPORTS. 227

Steele f. Macdonald.

from his liability it cannot be revived against his
objection.

We think the order of the General Term
[*] should be reversed, and that of the Special Term
affirmed.

All concur.

STEELE v. MACDONALD.

City Court of New York, Special Term,
November, 1883.

§§ 2863, subd. 4 ; 3228, subd. 3.

Oo$U.— Plaintiff not entitled to, in an action in a court of record wherein

he recover* leu than $50, on the ground that the action involved a

matter of account and the total of the accounts exceeded $400,

when the account*, exclusive of payment*, admitted in

the pleading* to have heen made did not exceed $400.

Where the plaintiff set out in his complaint a demand for labor and
materials valued at $100, on which $89 had been paid, and another
' similar demand for $90.25 on which $2 had been paid, and asked
judgment for $108.25, and interest from June 1, 1882, and the
defendant set up counter-claims aggregating $192.82, with interest
from September 1, 1882, arising out of a claim for $715 for money
loaned, less $694 which had been repaid, and another claim of
$172.60 for commissions, and the jury rendered a verdict in favor
of plaintiff for $38.05. Held, that the defendant was entitled to
costs of the action ; that the accounts of both parties did not exceed
$400, within the meaning of subdivision 4 of section 2868 of the
Code of Civil Procedure, which provides that a justice of the peace
has not jurisdiction of a civil action " where, in a matter of account,
the sum total of the accounts of both parties . . . exceeds $400;"
that the payments are in no sense to be considered debts, demands,
or accounts, within the meaning of the statute.
To oust a justice of the peace of jurisdiction of a civil action in a

228 CIVIL PROCEDURE REPORTS.

Steele t>. Macdonald.

matter of account on the ground that the accounts of both parties
exceed $400, the items of account must have arisen in a course of
mutual dealings which themselves constitute an affirmative claim in
the defendant's favor, and which have not been specifically appro*
priated as payments in reduction of plaintiffs claim.
{Decided November 20, 1883.)

Motion for a new taxation of costs.
The facts are stated in the opinion.
T. P. FitzsimmmS) for the motion.
T. O. Evans, opposed.

Nehrbas, J. — Plaintiff sued on two demands; one
for labor and materials, valued at $109, on which $89
was paid on account, leaving a balance due of $20 ; and
the other for $90.25, on which $2 was paid on account,
leaving due $88.25, claiming in the aggregate $108.25,
with interest from June 1st, 1882. The defendant set up
a counter-claim for money loaned for $715, on which $694
had been repaid, leaving $20.24 unpaid, besides $172,60
for commissions due defendant, aggregation $192.84,
with interest from September 1, 1882. Upon the trial
the jury found a verdict in favor of plaintiff for $38.05.
The clerk taxed costs for the defendant. Plaintiff asks
for a direction to tax his bill of costs, and claims that
the defendant is not entitled to costs. On this motion
the pleadings only have been submitted, with the
admitted result arrived at by the jury. The Code,
section 3228, subd. 3, provides, in effect, that the plaint-
iff is entitled to costs, of course, rjpon the rendering of
a final judgment in his favor in an action specified in
subd. 4th of section 2863 ; that is, in cases where a
justice of the peace has no jurisdiction. The section
last referred to provides that a justice of the peace has
no jurisdiction in a matter of accounts where the sum

CIVIL PROCEDURE REPORTS. 229

Steele v. Macdonald.

total of the accounts of both parties, proved to the
satisfaction of the justice, exceeds $400. Iq other
words, if a plaintiff had brought suit in a justice's
court, and the sum total of the accounts of both parties
had exceeded $400, necessitating a discontinuance
before the justice (Ex parte Mills, 10 Wend. 657), he
could sue in a court of record, and, notwithstanding
a verdict in his favor of less than $50, recover costs.
Boston Mills v. Eull, 6 Abb. N. 8. 319 ; S. C., 37 How.
299. The question therefore arises, does the case at
bar fall within this provision ? The plaintiff claims
$108.25. The defendant asks a set-off of $20.25, a bal-
ance on money loaned, and $172 commissions. These
sums do not aggregate $400. It is claimed that because
defendant set out the amount of the loans to plaintiff
$715, and the payments on account $694.76, that there-
fore the case is within the rule. But it has been held
in such a case that a justice of the peace must render
judgment for the balance found due (Abernathy v.
Abernathy, 2 Cow. 413 ; Ward v. Ingraham. 1 E. D.
Smith, 638), for the simple reason that payments are in
no sense to be considered debts, demands, or accounts,
within the meaning of the statute. Ex parte Mills,
supra. To oust the justice of jurisdiction, the items
of account must have arisen in a course of mutual
dealing, which themselves constitute an affirmative
claim in defendant's favor, and which have not been
specifically appropriated as payments in reduction of
plaintiff's claim. Ward v. Ingraham, supra. Tested
by the rules as thus laid down, 1 am of opinion that
the taxation of defendant's costs by the clerk was right,
and plaintiff's motion to tax his costs must be denied:

S80 CIVIL PROCEDURE REPORTS.

Beecher •. SebMhlin.

BEECHER, as Manages, no., v. 8CHIEFFELLN, n al.

Supreme Court, First Department; Special Term,
October, 1883.

§§ 1781, 1782.

Action to set aside alienation of the property of a corporation by its officer*

and trueteee may be maintained by one employed on a salary to

manage its affairs. — A trustee, not personally connected with

the transfer , is not a necessary party defendant in such an

action. — Instance of a complaint in such an action

which was held sufficient.

Where one who, by a contract with a corporation, was to have the
" management of the affaire of" the corporation for one year for a
salary, before the end of the year brought an action to set aside an
alleged unlawful alienation of the property of the corporation,
made by its trustees and officers, — Held, that he was authorized to
maintain such action by sections 1781 and 1782 of the Code of Civil
Procedure, which provide that such an action may be brought by a
creditor of the corporation or by a trustee, director, manager, or
other officer of the corporation having a general superin tendency of
its affairs.

In an action to set aside an unlawful alienation of the pi operty of a
corporation made by its officers and trustees, a trustee who was act
in any way personally connected with the transfer is not a necessary
party defendant.

Where, in an action against certain trustees and officers of a corpora-
tion, individually, and in their official capacity, to set aside an
alienation of property of the corporation made by them, the com-
plaint set out the incorporation of the company; the election of
the defeodant B. 8. as president and a trustee of the corporation;
of the defendant V. D. and one M. B. as trustees, and of the
defendant L. C. S. as secretary and treasurer; the number of shares
of stock of the corporation; the names of the holders thereof, and
the number of shares held by each; that the corporation, which
was made a party defendant, had in December, 1882, entered into
an agreement with the plaintiff, whereby it employed plaiotiff as
manager of its affairs from January 1, 1883 to January 1, 1884; the

CIVIL PROCEDURE REPORTS. 281

Beechere. Bchieffelin.

nature of the business conducted by the corporation — principally
that of publishing a weekly newspaper; that a notice of a meeting
of stockholders for the purpose of increasing the capital stock of
the corporation was published July 9, 16, and 23, 1883; that the
meeting was adjourned from time to time, and on an adjourned day
it was resolved not to increase the capital stock, and that the
defendants, as such officers of said company, in spite of plaintiff's
protest, passed a resolution whereby they attempted to assign and
transfer all the assets and property of the corporation to the
defendant B. S. in satisfaction of a pretended indebtedness to him;
that of such lost adjournment no notice was published, and M. B.,
a trustee and stockholder, did not have notice thereof; that such
attempted alienation and assignment was a violation of the duties
of the defendants, and a breach of the trust reposed in them, and
was in pursuance of a scheme to transfer the property of the com-
pany to 8 ft id B. S. to enable him to appropriate it to his own use,
and to render valueless the stock of the company to effect a dis-
solution thereof without due process of law; to oust plaintiff from
his office of manager of the said company, and for the purpose of
cheating and defrauding its creditors; that the said B. S. has taken
possession of the property and assets of the corporation, and
removed a part thereof from the state; that he bos not paid any of
the indebtedness of the company, and has failed for two weeks to
issue the regular weekly edition of the paper theretofore published
by the company, and that unless restrained by the court, the
defendant will render the said corporation insolvent, and for-
feit its rights, privileges, and franchises, — Held, on demurrer to
the complaint, that Che plaintiff, as manager, was authorized to
bring the action; that there was but one cause of action sot up in
the complaint, and therefore no misjoinder of causes of action;
that said M. B. wus not a necessary party defendant, being in no
way personally connected with the wrongs complained of, and that
the complaint set up a cause of action.
{Decided tfovemher, 1883.)

Demurrer to complaint.

The complaint in this action was as follows :

New York Supreme Court,
City and County of New York.

Herbert W. Beecher, as manager of the Metropolitan
Publishing Company v. Bradhuret Schieffelin, indi-

232 CIVIL PROCEDURE REPORTS.

Bcecher v. Scliieffelin.

vidually, and as president and one of the trustees of
the Metropolitan Publishing Company ; Lncy C. Schief-
felin, otherwise known as Lncy C. Hewitt, individually,
and as secretary of the Metropolitan Publishing Com-
pany; Victor Dessart, individually, and as one of the
trustees of the Metropolitan Publishing Company ; and
the said Metropolitan Publishing Company.

"The plaintiff, Herbert \V. Beecher, complaining
as manager of the Metropolitan Publishing Company,
alleges as follows :

14 1. That said defendant, The Metropolitan Publish-
ing Company, was, at the times hereinafter mentioned,
and now is, a domestic corporation, organized December
9, 1880, pursuant to and in accordance with the provis-
ions of an act of the legislature of the state of New
York, entitled 'An act to authorize the formation of
Corporations for Manufacturing, Mining and Mechani-
cal or Chemical purposes,' passed February 17, 1848, and
of the several acts extending and amending said act.

44 That a copy of the certificate of the incorporation
of said company is hereto annexed, marked schedule
4 A,' and made a part of this complaint.

44 II. That on or about the 16th day of December,
18S2, said defendant, Bradhurst Schieffelin, was elected
to fill the office of president and one of the trustees of
said company, and said defendant, Victor Dessart, and
one M. Buchanan, were also elected to fill the office of
trustees of said company for the period of one year
from the said date ; and that on or about the 20th day
of June, 1883, said defendant, Lucy C. Scliieifeliii,
otherwise known as Lucy C. Hewitt, was elected to fill
the office of secretary and treasurer of said company
until the next annual election, on or about December
15, 1883.

44 That on or about the 29th day of December, 18S2,
said plaintiff and said defendant, The Metropolitan
Publishing Company, entered into an agreement in

CTVIL PROCEDURE REPORTS. 233

Beecher t. Schieffelin.

writing, marked schedule * B,' and made a part of this
complaint, wherein and whereby said plaintiff was
engaged as the manager of the affairs of said company
from the 1st day of January, 1883, until the 1st day of
January, 1884.

"III. That the principal business of said company
consisted, until the 27th day of August, 1883, of the
publication, at the city of New York, of a weekly
newspaper, known as ' House and Home,' which news-
paper had a large number of subscribers, aggregating
at least 14,000, and was until said date in receipt of
a large amount of money from, advertisements, aggre-
gating for the preceding year at least $6,000.

"IV. Upon information and belief, said plaintiff
further alleges that the capital stock of said company
was divided among the following persons, viz. : said
defendant, Bradhurst Schieffelin 75 shares ; said plaint-
iff, 15 shares ; said defendant, Lucy C. Schieffelin, other-
wise Hewit, 8 shares ; and said M. Buchanan and Victor
Dessart, each, one share.

"V. Upon information and belief, said plaintiff
further alleges that on or about the 9th, 16th and
23d days of July, 1883, a notice of which the following
is a copy was published in said newspaper :

" Metropolitan Publishing Company. Notice. A
meeting of the stockholders of the Metropolitan Pub-
lishing Company will be held on the 28th day of July,
1883, at the office, 252 Broadway, New York, at 12
o'clock, noon, for the purpose of increasing the capital
stock to one hundred thousand dollars.

B. Schieffelin,

M. Buchanan, Trustees.

" That on said 28th day of July, 1883, the requisite
number of stockholders failed to attend said meeting,
whereupon the same was adjourned until the 10th day
of August, 1883; that on said adjourned day said

234 CIVIL PROCEDURE REPORTS.

Reecher*. 8chieffelin.

meeting was farther adjourned until the 11th day of
August, 1883 ; that on said adjourned day said meeting
was further adjourned until the 14th day of August,
1883, but no notice of said adjournment was published ;
that on said adjourned day a resolution was passed not
to increase the capital stock of said company, as speci-
fied in said notice ; and that thereupon, without any
previous notice to said plaintiff, and in spite of his
protest, said defendants, as such officers of said com-
pany, without notice being given to said Buchanan of
said meeting, and in his absence, passed a resolution
whereby they attempted to assign and transfer all the
property and assets pertaining to said newspaper, the
( House and Home,' together with the income and
receipts of the same due, and to become due to said
defendant, Bradhurst Schieffelin, in satisfaction of a
pretended indebtedness to said Bradhurst Schieffelin
from said company.

"VI. Said plaintiff further alleges that said
attempted alienation and assignment was a violation of
the duties of said defendants, and a breach of the trust
reposed in them, and was without warrant or authority
in law, and said plaintiff alleges that the same was
made in pursuance of a scheme to turn over to said
Bradhurst Schieffelin the property and assets of said
company, and enable bim to possess himself thereof
and appropriate the same to his own use, and in this
manner to render valueless the stock of said company
and to effectuate a dissolution thereof without due
process of law and to oust said plaintiff from his said
office of manager of said company and to deprive him
of the same and to violate the aforesaid agreement
between said plaintiff and said company and to enable
said defendants, or some of them, to organize another
company and publish said newspaper under another
name, for the purpose of cheating and defrauding the
creditors of said company.

CIVIL PROCEDURE REPORTS. 236

Beeeher •. Schieffelin.

" VII. Said plaintiff farther alleges that on or about
the 14th day of August, 1883, said Bradhurst Schieffelin,
in pursuance of the aforesaid scheme, fraudulently and
unlawfully took possession of the property pertaining
to said newspaper, the * House and Home,' and unlaw-
fully diverted and appropriated the same to his own
use, and also took possession of and appropriated to his
own use the receipts and income of said company from
advertisers and subscribers, which have amounted, as
deponent is informed and believes, to at least fifty
dollars ($50) per diem, since said 14th day of August,
1883, until the commencement of this action, and said
Bradhurst Sohiffelin has also removed the books ond
accounts of said defendant, The Metropolitan Publish-
ing Company, from the office of said company, in the
city of New York to the state of New Jersey.

" VIII. Said plaintiff further alleges upon informa-
tion and belief, that said Bradhurst Schieffelin has not
paid any part of the indebtedness of said company,
since said 4th day of August, 1883, to the creditors of
said company, and which indebtedness, said plaintiff
alleges, amounts to a large sum of money, but not as
large as the value of the assets of said company, so as
aforesaid unlawfully appropriated by him, and has not
issued the edition of said newspaper, the * House and
Home ' for the weeks ending August 27 and Septem-
ber 3, 1883, and that unless restrained by the judgment
of this court said individual defendants will render
said company insolvent and forfeit its rights, privileges
and franchises.

" Wherefore said plaintiff asks judgment against
said defendants, and each Of them, as follows :

44 1. That said individual defendants may be com-
pelled to account for their official conduct in the man-
agement and disposition of the funds and property
committed to their charge.

"II. That said individual defendants may be com*

236 CIVIL PROCEDURE REPORTS.

Beecher v. Schieffelio.

pelted to pay to tbe said defendant, The Metropolitan
Publishing Company, which they represent, or to its
creditors, any money, and the value of any property,
which they have acquired to themselves, or transferred
to others, or lost or wasted by a violation of their
duties.

" III. Tbat the aforesaid alienation and assignment
of the property of said defendant, the Metropolitan
Publishing Company, to said Bradhurst Schieffelin may
be set aside.

44 IV. That said defendants may be enjoined and
restrained from collecting or receiving any debt or
demand, or from paying out, or in any way transferring
or delivering, to any person any money, property or
effects of said defendant, The Metropolitan Publishing
Company, during the pendency of this action.

44 V. That a receiver of the property of said defend-
ants, The Metropolitan Publishing Company, be ap-
pointed by this court, with the usual powers of receivers
in like cases.

44 VI. For such other or further relief in the prem-
ises as to the court shall seem just, together with the
costs of this action."

This complaint was signed by the plaintiff's attor-
ney, and duly verified. Annexed to it was a copy of
the certificate of incorporation of The Metropolitan
Publishing Company, marked " Schedule A," and a
copy of the agreement of said company with the plaint-
iff referred to in the complaint, marked " Schedule B."
By this agreement the plaintiff agrees " to continue
the management of the affairs of The Metropolitan
Publishing Company," and the company agreed to pay
him u for the services to be performed by him a com-
pensation or salary of $35 per week . . . in the
manner following, viz., the sum of $20 per week in cash,
payable at the end of each week, and the balance in
the capital stock of said company, to be taken by said

CIVIL PROCEDURE REPORTS. 287

• i ■ i i iii —

Beecher*. Schieffelin.

Beecher at the par value thereof, and transferred to
him by said company, as same shall be earned by him
as aforesaid, and he shall demand the same."

To this complaint the defendants demurred on
" the grounds that it appears upon the face thereof :
First. That the plaintiff has not the legal capacity to
sue. Second. That there is a defect of parties defend-
ant in the omission of M. Buchanan, a trustee of the
said Metropolitan Publishing Company. Third. That
the complaint does not state facts sufficient to con-
stitute a cause of action. Fourth. That the plaintiff
has improperly united an alleged personal cause of
action with one appertaining, as alleged in the com-
plaint, to the said Metropolitan Publishing Company."

E. JR. Meade, for the demurrer.

Russell Benedict, opposed.

The first objection cannot be sustained unless it
appears on the face of the complaint that plaintiff has
not capacity to sue. If the complaint merely fails to
show the facts which confer the capacity to sue, the
objection must be taken by answer, not by demurrer.
Barclay v. Quicksilver Mining Co., 6 Lane. 25 ; citing
Phoenix Bank v. Donnell, 40 iV. T. 412; see, also
Irving National Bank v. Corbett, 10 Abb. N. C. 85 .
The second objection is taken under subd. 6 of § 488
of the Code of Civil Procedure. Buchanan was not a
necessary party defendant, because § 1781 of the Code,
under which the present action is brought, distinctly
provides that "an action may be maintained against one
or mdre trustees, directors, managers or other officers of
a corporation, to procure a judgment," &c, &c. Even
without this provision he would not be a necessary
party to this action ; for even though others, alleged to
have been engaged in the scheme are not joined, there
is no defect of parties defendant, because these parties

3» CIVIL PROCEDURE REPORTS.

were joint tort feasors with defendant, and severally
as well as jointly liable to plaintiff, and it is therefore,
at his option to sue any one or alL Pierson, Rec'r v.
McCurdy, 61 How. Pr. 134 ; Smith v. Rathborn, 22
How. Pr. 130. The presence of Buchanan is not
essential to the protection of the defendants herein ; the
controversy can be completely determined without it ;
and the role that if the coort can determine the con*
troversy withont prejudice to the rights of others then
a demurrer for a non-joinder of parties is not well
taken, applies to this case. Hillman v. Hillman, 14
How. Pr. 466 ; Newbonld v. Warren, 14 Abb. Pr. 80.
And to sustain the demurrer on this ground it must
appear on the face of the complaint that the party not
joined is jointly liable with the one sued. Stockwell
v. Wager, 30 How. Pr. 271 ; Wooster v. Chamberlain,
28 Barb. 602. It is only the parties to an alleged fraud-
ulent scheme who can properly be joined as defend-
ants, and there is no pretense in the complaint that
Buchanan was guilty of any illegal acts ; unless, there-
fore, this does appear affirmatively, he would be an im-
proper party. Alexanders. Katte, 10 Abb. N. C. 449. . . .
The plaintiff sues "as manager ;" a reference to the ad-
judications upon this term may be appropriate. Whar-
ton's Law Lexicon, 7th Ed. (1883), defines "manager"
as a " superintendent, a conductor or director."
A "managing agent" of a corporation, within the
meaning of the statute in reference to service of
process on the corporation, is "one who is engaged in
the management of the corporation in distinction from
the management of a particular branch or department
thereof. Brewster t>. Mich. Centr. R. R., 5 How. Pr.
183. Managing agent as used in the said statute has
been defined to mean " one who is invested with
general powers involving the exercise of judgment and
discretion, a» opposed to an ordinary agent who acts
in an inferior capacity and under the direction and

CIVIL PROCEDURE REPORTS. 239

Beecber v. Schieffelin.

control of superior authority both in regard to the
extent of his work and the manner of executing it."
Reddington v. Mariposa L. and M. Co., 19 Hun, 405.
It is, however, not a question of law which can be
determined upon demurrer ; the objection if valid,
should have been taken by answer, raising an issue to
be tried by a jury. It was said in Swaizy v. Union
Man'f g Co. (42 Conn. 666), the term "general business
manager" of a corporation was not one to which the
law fixed any definite measure of authority, or of the
incidents of which the court would take judicial notice,
but that the question should have been submitted to
the jury as one of fact upon all the evidence."

Van Vor8T, J. — I cannot find upon consideration,
that either of the grounds of the demurrer are well
taken.

The plaintiff, as manager, is authorized to maintain
the action. Code, §§ 1781, 1782.

There is really but one cause of action set up in the
complaint, and there can be no misjoinder.

Bnchanan is not a necessary party defendant.
There is nothing in the complaint which connects him
personally with the wrong complained of.

The complaint sets up a cause of action. It seeks
to get rid of an alienation of property in substance
alleged to bq fraudulent and beyond the power of the
trustees to make. The trustees had no power to do
what was done under the allegations of the complaint
which the demurrer admits.

There should be judgment for the plaintiff on the
demurrer, with liberty to defendant to answer on pay*
ment of costs.

240 CIVIL PROCEDURE REPORTS.

CUflin ». Smith.

CLAPL1N et al. v. SMITH w al.

Supreme Court, First Department; Gbotbrai.
Term, December, 1883.

§531.

Sill of particular*. — Instance of an action to set adds an assignment for
the benefit of creditor* a* fraudulent, in which a bill of particu-
lar* of the grounds on which plaintiff claim* the assign*
ment ton* made to hinder, delay or defraud the
creditors of the assignor sfwuld be required.

Where, in an action brought to set aside a general assignment for the
benefit of creditors, the complaint alleged in general terms that
the assignment was made and delivered with intent to hinder,
delay and defraud the creditors of the assignor and certain judg-
ment creditors of the assignor, who had been allowed to intervene
as defendants— and were interested in sustaining the assignment,
moved for a bill of particulars of the grounds on which the plaintiff
will claim upon the trial that the assignment in question was made
with iutent to hinder, delay or defraud the creditors of the assignor,
and it appeared that such defendants were greatly interested in
the proper defense of the action; that the indebtedness to them,
which was very largo, was for merchandise sold by them to the
assignor ; thut the assignee is thought to be disaffected to the
assignment; that such defendant had been informed and believed
that the plaintiffs gave out that the assignor, shortly prior to his
insolvency, transferred his estate or some part thereof so as not to
have it passed by the deed of assignment, and that they thus
intend to prove the fraudulent intent alleged, but that said defend-
ants have no other or further knowledge of such assertions than
that communicated by rumor, and that they do not know what
witnesses will bo necessary or what facts will be probative under
the vague and general allegations of the complaint, — Held, that
such defendants are entitled to know precisely on what grounds
said assignment is claimed to be fraudulent, and their motion for a
bill of particulars should be granted.

(Decided December 17, 1688.)

Motion for a bill of particulars.

CIVIL PROCEDURE REPORTS. 241

Cloflin t>. Smith.

The opinion states the facts.

Lawrence, J. — The defendants who make this
motion are judgment creditors of Clinton H. Smith,
and this action is brought by the plaintiff to set aside
a general assignment made by him to the defendant,
John CJ. Smith, for the benefit of creditors. It appears
that execntioDs have been issued on the judgments
recovered by the moving defendants against Clinton
H. Smith, and that said executions have been returned
wholly unsatisfied. By an order granted by Mr. Justice
Potter, the moving defendants were allowed to inter
vene and be made parties defendant in this action, and
they now ask that as the assignment in question is
alleged in the complaint, in general terms, to have been
made, executed, and delivered, with intent to hinder,
delay, and defraud the creditors of said Clinton H.
Smith, the plaintiffs may be ordered to deliver to them
a statement in writing of the times and places at which
the plaintiffs intend to prove any acts or things which
serve to show that the assignment named in the com-
plaint was done with fraudulent intent, as charged in
the complaint, and particularly to what person, and at
what times and places, the plaintiffs will claim or offer
to prove that the assignor, Clinton H. Smith, made
secret or other assignments of his estate. In other words,
they ask for the particulars of the ground upon which
the plaintiff will claim, upon the trial, that the assign-
ment in question was made with intent to hinder, delay,
or defraud the creditors of the assignor.

In the case of Dwight v. Germania Life Ins. Co. (84
N. Y. 493) the court of appeals held that the power of
the supreme court to order bills of particulars extends to
all descriptions of actions, and that it may be exercised
as well in behalf of the plaintiff as of the defendant.*

* See Note on Bill of Particulars, 2 If. T. Civ. Pro. 241. See
also Shaffer v. Holm, 8 Id. 81.
Vox.. IV.— 16

842 CIVIL PROCEDURE REPORTS.

Claflin «. Smith.

See, also, Tilton v. Beecher (59 N. T. 156). In this case
there is nothing in the complaint which apprises the
defendants of the grounds on which the plaintiffs will
claim that the assignment was executed with the intent
to hinder, defraud, and delay the creditors of the
assignor. The defendants show that they, as well as
the plaintiffs, are creditors of the assignor ; that they
are greatly interested in the proper defense of the
action, and that the indebtedness to them, which is
very large, was for merchandise sold by them to the
assignor ; that the assignee is thought by the creditors
to be disaffected to the said assignment ; that they
are informed, and believe, that the plaintiffs give out
that the assignor, shortly prior to his insolvency, trans-
ferred his estate, or some part thereof, so as not to have
it passed by the deed of assignment ; and that they
thus intend to prove the fraudulent intent alleged ; bat
that the defendants, impleaded, have no other or
further knowledge of such assertion than that com-
municated by rumor, etc.y etc. They also allege that
they do not know what witnesses will be necessary, or
what facts will be probative, under the vague and
general allegations of the complaint, and that unless
they are furnished with a bill of particulars of the
times and places at which the assignor is said to have
transferred his estate, with a view to substract it from
the assignor, they may be entrapped into a trial
without due legal and complete notice of the matters
and things affecting their rights under the deed
of assignment referred to in the complaint. My
examination of the complaint leads me to the con-
clusion that the motion should be granted. The moving
defendants, as has been before observed, are judgment
creditors of Clinton H. Smith, the assignor, and the
assignment is alleged to be a preferential assignment.
It is not before me, but I infer, from what was said on
the argument, that this controversy has in some measure

CIVIL PROCEDURE REPORTS, 249

Gusstaf v. American Steamship Co.

arisen from these preferences. The moving defendants
are interested as much in sustaining the assignment as
the plaintiffs are in attacking it ; and they are entitled,'
I think, to know precisely upon what ground it is
Claimed to be fraudulent. See, particularly, the remarks
of Polger, C. J., in D wight v. Germania Life Ins. Co.*
before cited (84 N. T. at p. 605) ; also, McGreight v.
Stevens, \H.&E. 454 ; Pitts v. Chambers, XF.&F.
884 ; West v. West, 4 S. A T. 22 ; Jones v. Bervicke,
L. B. BO. P. 32; Kinder v. Macy, 7 Cat. 206 ; Meeker
v. Harris, 19 Id. 289.

Let an order be entered in conformity with these
views.

GUSSTAF, Appellant, a. AMERICAN STEAMSHIP
COMPANY, Respondent.

supbemb cotjbt, second department ; general
Term, September, 1883;

§ 886.

Examination of party before trial. — Where party resides in the state he

cannot be examined in any county other than that in which he reticles,

or where he has an office for the transaction of business.

When a party to be examined before trial resides within the state, he
cannot be required to attend in any county other than that in which
he resides, or where he has an office for the regular transaction of
business in person. There is no exception in favor of the county
designated as the place of trial.

(Decided December 1888.)

Appeal by plaintiff from an order of the Sings
County Special Term, denying a motion to vacate and
set aside an order for his examination before trial.

244 CIVIL PROCEDURE REPORTS.

GnasUf •. A"""-4*—" Steamship Co.

An order for the examination of the plaintiff before
trial was granted on defendant's application, upon an
affidavit which recited that the plaintiff's "place of
residence is at No. 15 St Mark's place, in the city of
New York-" It did not appear whether or where the
plaintiff had a place of business.

The order required the plaintiff to appear for
examination "in the court-house, in the city of
Brooklyn." On its return day the plaintiff made the
motion which resulted in the order appealed from.

The place designated as the place of trial was Kings
county.

J. Edward Swanstrom, for appellant.

The plaintiff being a resident of the city and county
of New York, could not be required to journey into
another county for the purpose of being examined.
Code of Civ. Pro. § 886. This section is peremptory,
and will be enforced. Marsh v. Woolsey, 14 Hun,
1 .... To the same effect, Shelton v. Smith,
1 Law Bull. 35.

E. 8. IZubbe, for respondent.

Barnard, P. J.— By section 886, Code of Civil
Procedure, when a person to be examined before trial
resides in the state, he should not be required to attend
in any county other than that in which he resides, or
where he has an office for the regular transaction of
business in person. The plaintiff resides in the city
and county of New York, and has no office in Kings
county. The order requires him to appear in Kings
county to be examined.

The fact that the place of trial of the action is
designated to be Kings county does not enlarge the
power to require a party to go out of the county of
his residence. The section makes no exception in favor

CIVIL PROCEDURE REPORTS. 245

Clark «. Dillon.

of counties in which the place of trial is placed. An
examination before trial rests upon article 1 of title 3
of the Code, and that article restricts the place of
examination to the county in which a person resides
in all cases.

The order should be reversed, with costs and dis-
bursements.

Dykman, J., concurs.

CLARK, Respondent, v. DILLON, et al.,
Appellants.

N. T. Court of Common Pleas, General Term,
May, 1882.

§ 500.

Instance of a denial in an answer which was held insufficient. — If a

material allegation is not directly denied the court is warranted

in assuming that no issue is made on it.

An answer mast contain a general or specific denial of each material
allegation of the complaint controverted by the defendant.* A
denial in it of each and every allegation in the "complaint con-
tained not hereinbefore specially admitted, qualified or denied," is
a mode of denial which has been heretofore condemned, and is so
loose and unsatisfactory as to warrant tho court in wholly dis-
regarding it. If a positive averment of a material fact is not
worthy of a direct denial, the court is warranted in assuming that
no issue is made on it.

* See on this subject Miller v. McCloskey, 1 JV. T. Civ. Pro. 252,
and note ; Wooley v. Newcombe, 9 Daly, 77 ; Leary v. Boggs, 8 N. T.
do. Pro. 227; Sheldon t>. Sabin, 4 Id. 4; McEncroe t>. Decker, 58
IIow. Pr. 250; Haines*. Hcrrick, 9 Abb. N. C. 879; Calhoun v.
Hallen, 25 Hun, 155; Smith t>. Gratz, 59 How. Pr. 274 ; McGuinness
«. The Mayor, 18 ff. T. W. Dig. 522.

S46 CIVIL PROCEDURE REPORTS.

Clark •. Dillon.

Where in ad action to recover damages for loss of services resulting
from personal injuries received by plaintiff's wife through the
failure of the defendant to properly surround with barriers and
give notice of an excavation in the public streets, alleged to have
been made by them, the answer alleged that the plaintiffs wife
caused and contributed to the injuries received by her; that the
plaintiff had " agreed to waive" his claim against the defendant;
admitted the defendant's copartnership, and denied "each and
every allegation in said complaint contained not hereinbefore
specifically admitted, qualified or denied.71 Held, that this denial
was problematical, leaving for opinion what should not be matter
of doubt* and the court was warranted in disregarding its claimed
effect ; that neither the court nor the opposing counsel should be
called upon to speculate upon what allegations of a complaint have
been specifically admitted or denied, and what may or may not be
qualified, is a proposition whereon there may be great divergence
of opinion.

Where, in such case, the defendant's counsel asked the trial court to
charge the jury that before the plaintiff could recover, they must
determine that the defendant made the excavation as a matter of
fact, no direct evidence having been given of that fact, and the
court refused so to charge, holding that there was no denial of the
allegation upon the subject in the complaint, — HeldL, no error, and
that a judgment in favor of the plaintiff should be affirmed.

{Decided June 5, 1882.)

Appeal by defendants from a judgment against
them entered upon the verdict of a jury.

The plaintiff being the husband of one Letitia A.
Clark, brought this action to recover damages for
the loss of her services resulting from personal
injuries received by her through the negligence of
the defendants.

The defendants, who were copartners, while sinking
the road-bed of the New York and Harlem Railroad,
had made a large excavation in Fourth avenue, near
Sixty-third street, and had, on the night the plaintiff
was injured, carelessly and negligently failed to sur-
round such excavation with barriers, and had left it
uncovered and unprotected, and had not provided any

CIVIL PROCEDURE REPORTS. 247

Clark v. Dillon.

lights, signals, or other devices, to notify or warn per-
sons passing along said street or avenue of its existence.
The plaintiffs wife while lawfully passing along Sixty-
third street, fell into said excavation, and was severely
injured.

The answer set forth: "that the alleged injuries
charged in said complaint as having resulted to Letetia
A. Clark therein named were brought about, caused
and contributed to by said Letetia A. Clark ;" that in
a prior action brought by said Letitia A. Clark, to
recover damages growing out of the same accident,
the husband had promised and agreed to waive any
claim on his part, if the defendants would settle the
action prosecuted by his wife, and ' that such settle-
ment had been made, and that the defendants " admit
the copartnership, . . . and deny each and every
other allegation in said complaint contained, not here-
inbefore specially admitted, qualified or denied."

On the trial the fact that the pain tiff's wife was
injured in the manner alleged in the complaint was
proved and evidence given to show what damage the
plaintiff suffered thereby, but there was nothing to
show that the defendants made the excavation and on
that ground a motion was made by defendants to dis-
miss the plaintiff's complaint. The court denied the
motion, and the defendants excepted.

The portion of the judge's charge which affects
this appeal is as follows : " In this case, the plaintiff
states in his complaint, that the defendants made the
excavation in which Mrs. Clark fell, and at night time
failed to guard it, and that their failure to guard it as
it should have been guarded was an act of negligence
on their part. The defendants in their answer, do not
anywhere deny that they made the excavation, but
they do say, that the accident would not have occurred
if the wife of the plaintiff had not contributed to it by
a want of care on her part. I do not regard that as a

248 CIVIL PROCEDURE REPORTS.

Clark t>. Dillon.

denial of the allegation of the complaint that the
defendants did make the excavation, and they left it
unguarded. I construe it to be a qualification of the
complaint — a qualification to the extent of saying that
it was the fault of Mrs. Clark that she fell in ; and it
being her fault, and she having contributed to the
injury as well as the defendants, that the husband is
not entitled to recover in this case. Therefore, I say,
the question for you to decide is, not whether the
defendants made this excavation, — for that, I think,
is. practically not denied, but the question is whether
Mrs. Clark was guilty of a want of care on her part
that occasioned the injury for which the husband
sues."

Upon the defendants' request that the judge charge
the jury, " That, before the plaintiff can recover, the
jury must determine, as a matter of fact, that the
defendants made, or caused to be made, the excava-
tion into which the plaintiff's wife fell," the court
said to the jury, " I say that is a question which I do
not think is practically before you. As I construe the
pleadings, it is fairly before you, that they did make
that excavation," and the defendants excepted.

The verdict of the jury was for the plaintiff.

Alexander Thain, for appellants.

T. C. Cronin, for respondent.

Per Curiam.— Beach, J. — The defendants' counsel
asked the trial court to charge the jury that before the
plaintiff could recover, they must determine that defend-
ants made the excavation as a matter of fact. No
direct evidence was given of the fact. The learned judge
held there was no denial of the allegation upon the
subject in the complaint. The sufficiency of the plead-
ing to raise such an issue, is the question presented by
this appeal. An answer must contain a general or

CIVIL PROCEDURE REPORTS. 249

Clark v. Dillou.

specific denial of each material allegation of the com-
plaint controverted by the defendant (Code of Civil
Procedure, § 500, subd. 1). This is a plain rule by
which the pleading must be judged, and commends
itself by simplicity, directness and the clearness result-
ing from adherence by the pleader. Under the text of
the answer the denial is problematical, leaving for
opinion what should not be matter of doubt. Neither
court nor opposing counsel should be called upon to
speculate upon what allegations of a complaint have
been specifically admitted or denied, and what may or
may not be qualified, is a proposition, whereon there
may be great divergence of opinion. This mode of
denial has been heretofore condemned and is so 16ose
and unsatisfactory, as to warrant the court, as was done
here, in wholly disregarding its claimed effect. Its use
by the pleaders is for a drag net, to include what
may possibly have been otherwise omitted. If a posi-
tive averment of a material fact is not worthy of a
direct denial, the court is warranted in assuming that
no issue is made upon it (Miller v. McCloskey, 1 iV.
Y. Civ. Pro. 252; Hammond c. Earle, 5 466. N. G.
105).

The judgment should be affirmed, with costs.

Daly, Ch. J., and Van Brunt, J., concurred.

*50 CIVIL PROCEDURE REPORTS.

McNulty *. Scollej.

McNULTY, Appellant, v. SCOLLEY, Respondent.

Supreme Court, First Department ; General
Term, October, 1883.

§2366.

Agreement to arbitrate discontinues action. — Such agreement hat this effect,
although not acknowledged, and arbitrator does not content to act

The mere submission of a cause to arbitration operates as a discon-
tinuance of an action for the same cause then pending; and that*
although the arbitrators never acted. [*, *, •]

Where the parties to an action agreed, in writing, to leave their
differences to three certain persons, as arbitrators whose decision
should be final, and the agreement was signed by three witnesses,
but was not acknowledged, and one of the arbitrators refused to
&cty—Hdd} that an order declaring the action discontinued, wss
properly granted ; ['J that the agreement discontinued the action,
and the fact that the agreement was not acknowledged as required
by the Code (section 2366), or that an arbitrator refused to act, will
not prevent this, f1, \ f]

Larkin t>. Bobbins (2 Wend. 005), followed. [«]

{Decided December 22, 1883.)

Appeal from an order declaring and ordering the
action discontinued.

The opinion states the facts.

James M. Smith, for the appellant.

Albert Cardozo {Richard 8. Newcorribe, attorney),
for respondent.

The submission was a general one, and had the
effect of discontinuing the action. Wilson v. Williams,
66 Barb. 209 ; Ressequie v. Brownson, 4 Barb. 541 ;
Keep v. Keep, 17 Hun, 153 ; Jordan v. Hyatt, 3 Barb.
275 ; Larkin v. Bobbins, 2 Wend. 505.

CIVIL PROCEDURE REPORTS. 251

McNulty v. Scolley.

And this is so, though the arbitrators never take
or consent to take upon themselves the burden of
the arbitration. See Larkin v. Bobbins, supra, per
Marcy, J.

The practice pursued by the defendant of moving
for an order of discontinuance was the right course.
Smith v. Barse, 2 Bill, 399 ; Lorillard v. Phtla. & N. Y.
Nav. Steam Co., 1 iV. T. Law Bulletin, 12.

Brady, J. — This is an action of slander, and appears
to have been once tried and once partially tried. The
complaint was once dismissed, and upon the sub-
sequent investigation, and before it was concluded, a
juror was permitted to be withdrawn on account of the
illness of the counsel for the plaintiff. Subsequently
the parties signed a paper as follows :

"We the undersigned, hereby agree to leave our
differences to the above named parties, Shether, Con-
nett and Silverman, as arbitrators, whose decision shall
be final.

(Signed) Jas. McNulty.

John B. Scolley."
" The within document was signed in our presence.
(Signed) J. D. P. Hersey.

* N. B. Day.

Frank A. Ellis."

In May, 1883, the plaintiff was directed to show
cause why an order should not be made declaring the
action discontinued, and why such other or further
order or relief should not be made in the premises as
might be just.

The facts already stated as characterizing the
litigation are set out in the affidavit of the plaintiff.
It was admitted by him'that on the 27th of April, 1883,
he and the defendant met for the peaceful settlement
of certain differences, at which meeting the witnesses
whose names are subscribed to the agreement of

852 CIVIL PROCEDURE REPORTS.

McNulty 9. Scolley.

arbitration were present, and formed themselves into
a committee. It was then suggested and advised that
the paper already mentioned should be signed. The
plaintiff averred that since the signing of the paper no
action whatever had been taken by either of the per-
sons named in the paper, they having been selected
without their knowledge or previous consent, and that
one of them, Mr. Shether, declared he would not act ;
and he further alleged that he was ready and willing
to comply with the terms of the agreement. And the
plaintiff also presented for the consideration of the
court an affidavit showing that a person called upon
the defendant asking him to name a time when be
would meet the committee, and substantially that he
had failed to do so. This was denied by the defendant,
who said that what he did say was that he would not
attend upon the days named because of his business,
but further that if he could attend on one of the days
named he would send word.

The submission to arbitration was therefore admit-
ted. It is supposed by the appellant that the willing-
ness of all the parties to act is an implied condition to
the taking effect of the agreement, and that the refusal
of the arbitrators to act leaves the parties in statu qvo;
and, further, that the agreement is defective as a
binding agreement, because it was not acknowledged
as required by the Code.* Both of these propositions
are valueless. Whatever may be the effect of the
refusal of the arbitrators to act in an arbitration where

there is no pending action at law, and whatever
['] may be the effects of the provisions of the Code

upon an arbitration made with reference to them,
these effects do not control the question presented by
this appeal.

* As to effect of failure to acknowledge, see Lorenzo e. Deery,
26 Eun, 447.

CIVIL PROCEDURE REPORTS. 253

McNulty v. Scolley.

The provisions of the Code, however (see section
2366), evidently contemplate a submission to arbitra-
tion of any controversy existing between persons at
the time of the submission which might be the subject
of an action. The cases bearing upon the question of
the effect of a submission to arbitration of differ-
[■] ences when an action is pending have not declared
that any peculiar form of acknowledgment is indis-
pensable. It is enough that the parties have in writ^
ing agreed to a submission to arbitrators * In this
case such an agreement is admitted to have been
made. The effect of such an instrument has been
declared in a number of adjudicated cases. It is
[•] to discontinue the action. And this seems to be
the effect even if the submission was void (Keep
v. Keep, 17 Huny 152, where the cases are collated ;
see also Barrett v. Western, 66 Barb. 205).

Justice Makcy, in Larkin v. Bobbins (2 Wend.
505), said that the general position is, that a sub-
[*] mission of a cause pending in court is a discontin-
uance of the suit, that the reason the submission
operates as a discontinuance is, not because the subject
of the suit is otherwise disposed of than by the decis-
ion of the court in which it was presented, but because
the parties have selected another tribunal for the trial of
it.f And again : " The distinction that the plaintiff in

* See Wilson v. Lano (15 Wend. 99), as to effect of oral submis-
sion to arbitration on the subject-matter of a pending suit. See also
Resequie t>. Brownson, 4 Barb. 541 ; West v. Stanley, 1 Hilly 69.

t An agreement to discontinue is implied in all cases from the
selection of another mode of adjustment of the liquidation, Grosvenor
t>. Hunt, 11 How. Pr. 355. Where, in the agreement to arbitrate, it was
provided that "all suits now pending" should be suspended until
the award of the arbitrators was made when the same shall be dis-
missed: Held, that an intent that the submission should not operate
as an absolute discontinuance of the several actions then pending was
indicated thereby; that the actions were suspended until the award
was made, when the actions should be dismissed and that pending

*54 CIVIL PROCEDURE REPORTS.

McNulty «. Scolley.

error makes, between a submission never acted on by
the arbitrators and one which has been followed by an
award or hearing by the arbitrators, does not appear to
have been recognized by the court, nor do I see any
good reason for making such distinction. . . . It is
the agreement which withdraws the cause from the
court, and affects the discontinuance of the action."

And it was also said by the learned justice that
[*] the point evidently for the consideration of the

court was whether the mere submission of a case
to arbitration, the arbitrators never taking or consent-
ing to take upon themselves the burden of tbe sub-
mission, operated as a discontinuance of the suit pend-
ing in court.

As justly observed by the counsel for the respond-
ent, the refusal or omission of either party to attend
before the arbitrators would not alter the consent,
inasmuch as upon proper notice the arbitrators conid
proceed in the absence of the defaulting party.*
It thus appears that upon the cases bearing upon

the subject, the mere submission to arbitration
['] operates as a discontinuance of the action, and the

order appealed from could not be reversed without
in effect reversing these decisions.

It follows that the order should be affirmed.

Davis, P. J., concurred.

the arbitration they could be moved by neither party. Ensign o. St
Louis Ry. Co.f 62 How. Pr. 123.

* See Code of Civil Procedure, § 2868.

CIVIL PROCEDURE REPORTS. 255

Hancock «. Sears.

HANCOCK, Respondent, v. SEARS, Appellant.

Court op Appeals, 1883.

§§2451,2463.

Supplementary proceedings-judgment debtor who expends hie personal
earnings, due be/ore the commencement of the proceedings and
received thereafter, .for the support of his wife and
family, is not guilty of contempt.

Where the earnings of a judgment debtor for his personal services
rendered within sixty days next before the institution of proceed-
ings supplementary to execution, are necessary for the use of a
family, wholly or partly supported by his labor, and which are
therefore exempt from seizure, he need not bring the facts consti-
tuting exemption to the attention of the judge or court before
applying his earnings to relieve the necessities of his'family. The
intent of the statute is answered by putting upon the debtor the
burden of justifying its use when called upon to transfer the money
to a sheriff or receiver. [!, *]

Where a judgment debtor was forbidden by an order in proceedings
supplementary to execution served, August 81, " from making or
suffering any transfer or other disposition of or interference with
his property, not exempt from levy and sale by virtue of an execu-
tion until further order in the premises," and it appeared upon his
examination, that he had since the service of the order received
and expended $41.68, wages earned by him as a telegraph operator
in the month of August, and upon being required to show cause why
he should not be adjudged guilty of contempt in that he had inter-
fered with his property, he showed by affidavit that he had a wife
and two children dependent upon him and his labor ; that the whole
of his wages were not more than adequate for their bupport, that he
paid $20 of the money for rent "to prevent the expulsion of his
family " from the house they occupied, and the balance in purchas-
ing provisions and supplies needed for their subsistence. Held,
that an order adjudging him guilty of contempt in receiving aud
using the money in question and fining him therefor was unwar-
ranted ['] and should be reversed. [4]

Newell t>. Cutler (19-ffwn, 74) overruled; [f] Hancock v. Bears (29 Td\
06), reversed. [4]

(Decided June 26, 1888.)

250 CIVIL PROCEDURE REPORTS.

Hancock v. Sears.

Appeal from an order of the supreme court, fourth
department, affirming order in proceedings supplement-
ary to execution made on September 12, 1882, by the
county judge of Erie county, fining the appellant as for
a contempt of court, in paying out earnings, received
pending his examination, for personal services rendered
within sixty days before the institution of such pro-
ceedings. Reported below, 29 Hun, 96.

The judgment in favor of plaintiff was for $25 dam-
ages and $2.90 costs and recovered in justice's court.
A transcript thereof was filed in the county clerk' a
office, and execution issued to the sheriff, who returned
the same wholly unsatisfied. The order in supple-
mentary proceedings was served on August 31, and
contained the usual injunction prohibiting the dispo-
sition of any money or property until the further
order of the judge. It directed the appearance of the
debtor for examination before a referee on September
7. The referee's report showed that the debtor was
examined on September 7, and testified that he was
paid on September 4, $41.68, for wages due September
1, all of which except $2.30 was compensation for ser-
vices rendered before service of the order. The hear-
ing was then adjourned to September 21, but on the day
of the examination, September 7, the referee reported
the testimony taken, and the plaintiff's attorney pro-
cured an order to show cause why the debtor should
not be adjudged guilty of contempt of court in that he
had interfered with his property and received and
expended $39.38 in violation of the injunction order.
Upon the return of the order, the debtor appeared
without counsel, having employed none so far, and
asked an adjournment to the next, day, when having
retained an attorney, he showed for cause, that he was
a telegraph operator, earning $70 per month and occa-
sionally more, when he was able to do overwork j that

CIVIL PROCEDURE REPORTS. 257

Hancock v. Bean.

at the time of service of the order, he had not to exceed
50 cents in hand, but there was a balance due him for
work done within ten days prior to the institution of
these proceedings, including extra work done before
that time, which with earnings subsequent to the ser-
vice of the order, amounted to $41.68. That he owed
$20 house rent ; that his family needed provisions and
supplies for subsistence which he could only obtain
for cash ; that the order required his appearance for
examination one week after the service, and the neces-
sities of his family would not permit him to await the
examination and final appearance before the judge
which the referee and plaintiff's attorney could pro-
tract at pleasure under the terms of the order ; that in
these circumstances he used the moneys so received in
payment of rent to prevent the expulsion of his family
from their home and for their subsistence, using no
part of it in any other way ; that it required all his earn-
ings to support his family, consisting of a wife and two
children — actual experience having shown that his
wife's health will not permit her to do the housework
and take care of the children also. Upon this, the
county judge fined him $35, the fine to be in satisfac-
tion of the judgment and costs of these proceedings. An
appeal was taken to the general term of the supreme
court, where the order was affirmed, whereupon this
appeal was taken.

Joseph P. Carr, for appellant.

Oeorge W. Wheeler, for respondent

Danforth, J. — The plaintiff, a judgment and exe-
cution creditor of the defendant to the extent of twenty-
seven dollars and ninety cents, for the purpose of com-
pelling his examination, instituted supplementary pro-
ceedings before the Erie county judge, on August 31,
Vol. IV.-17

258 CIVIL PROCEDURE REPORTS.

Hancock «. Sean.

1882, and by his order then served the defendant was
" forbidden from making or suffering any transfer or
other disposition of, or interference with, his property
not exempt from levy and sale by virtue of an execu-
tion, until farther direction in the premises." Upon his
examination before a referee, it appeared that he bad
no money, although he received on the 4th of Septem-
ber, 1882, $41.68, for wages earned by him as a tele-
graph operator in the month of August. These facts
being reported, the judge required the debtor to show
cause why he should not be adjudged guilty of con-
tempt in that he had interfered with his property and
received and expended the money referred to. On the
return of this order, the debtor showed by affidavit that
he had a wife and two children dependent upon him and
his labor, that the whole of his wages were not more
than adequate for their support, that he paid $20 of the
money for rent, " to prevent the expulsion of his
family " from the house they occupied and the balanoe
in purchasing provisions and supplies needed for their
subsistence. The debtor was nevertheless adjudged
guilty of contempt in receiving and using the money
in question, and fined the sum of $35, which he was
directed to pay to the plaintiffs attorney, who, upon
such payment, was required to satisfy the judgment on
which the proceedings hung.

We think the order was unwarranted. The
[*] proceedings were under title 12, chapter 17,
article 1 of the Code of Civil Procedure, entitled
"Proceedings supplementary to an execution against
property." This statute declares that the article
referred to does not authorize the seizure of, or other
interference with the "earnings of the judgment
debtor for his personal services rendered within sixty
days next before the institution of the proceedings,"
where it is made to appear by his oath or otherwise,
that these earnings are necessary for the use of a

CIVIL PROCEDURE REPORTS. 059

Hancock v. Sears.

family wholly or partly supported by his labor
[•] (§ 2463). Such was the case here. Nor was it

necessary for the debtor to bring the facts consti-
tuting exemption to the attention of the judge or court
before applying his earnings to relieve the necessities
of his family. Such a course would cause delay, per-
haps suffering to his family, and we think the intent
of the statute is answered by putting upon the debtor
the burden of justifying its use when called upon to
transfer the money to a sheriff (§ 2447), or a receiver
(Id.). Here no receiver had been appointed ; nor could
one be until, upon the examination of the debtor,
or otherwise, property applicable to payment of the
judgment was discovered. Failing in that, the creditor
might be required to pay costs to the debtor (§ 2456).
But if he succeeded, the creditor could have neither
debt nor costs, save from such property as might come
to the hands of the sheriff or receiver (§ 2455.) More-
over, before a receiver could be appointed, the debtor
must be given at least two days' notice of the applica-
tion, and it would be sufficient if upon the hearing he
showed cause why his earnings should not be seized or
interfered with.

In the case before us the creditor by a short cut has
evaded the liability and the conditions of these provi-
sions, without discovering property applicable to the
payment of the judgment, or being entitled to a re-
ceiver. He not only avoids payment of costs to the
debtor, but has secured his debt by the imposition of
a fine and the possible imprisonment of the person of
his debtor, thus not only defeating the humane policy
of the law which permits the application of the
debtor's earnings to the support of his family, but
depriving him during the discretion of the judge of the
opportunity of earning more. We are referred by the

respondent to Newell v. Cutler (19 Hun^ 74), as: a
['] case supporting the order appealed from. It is

260 CIVIL PROCEDURE REPORTS.

Bengtson 9. Thingralla Steamship Co.

properly cited to that end, but it goes upon the
theory that the debtor should have left his wages
uncollected until the injunction was dissolved, or sup-
plementary proceedings closed. That does not seem
to be the policy of the law. and we think the debtor
should not be required to waste the fruits of his labor
in litigation over the order, or leave in the hands of his
employer money to which the creditor could not be
entitled, and the use of which the support of his family
requires.

The order of the supreme court and county
[*] judge should be reversed and the motion to punish
the debtor for contempt be denied, with costs, and
costs of this appeal.

All concur, except Andrews, J., absent.

BENGTSON, Respondent, v. THINGVALLA
STEAMSHIP COMPANY, Appellant.

Supreme Court, Second Department; General
Term, September, 1883.

§1776.

To raise an issue at to the incorporation of a defendant, there must be

an affirmative allegation that it is not a corporation.— A denial

which merely puts in issue Us nationality is insufficient.

Where it was alleged in the complaint that the defendant was a
foreign corporation incorporated under the laws of the kingdom of
Denmark, and was a common carrier of passengers, and the defend-
ant appearing in its own name, which is apparently a corporate
name, admits that it is a common carrier of passengers, but denies
on its information and belief that it is a foreign corporation at

CIVIL PROCEDURE REPORTS. 861

Bengtson v. Thingvalla Steamship Co.

alleged in the complaint, — Held, that there was no issue made,
which required the plaintiff to prove the corporate existence of the
defendant; that the only issue made is one of the nationality of
the corporation, which is immaterial, while the Code requires an
affirmative denial of the fact that the defendant is a corporation.

Bengtson v. Thingvalla Steamship Co. (3 N. T Civ. Pro. 268),
affirmed.

{Decided December 10, 1888.)

Appeal from judgment entered upon the verdict of
a jury and from an order denying a motion upon the
minutes for a new trial. Reported below, 3 N. Y. Civ.
Pro. 263.

This action was brought to recover $82.50, the value
of a certain trunk and contents delivered by the plaint-
iff to the defendant, at Malmo, Sweden, for the pur-
pose of being conveyed for her to the city of New
York, but which through the carelessness and negli-
gence of the defendant was wholly lost to plaintiff.
The complaint alleges that the defendant was "a
foreign corporation created by and under the laws of
the government of Denmark, and having an office in
the city of New York, and . . . was ... a com-
mon carrier of passengers and their baggage, for hire."

The answer, omitting the formal parts, was as fol-
lows :

4 'First. The defendant denies on its information and
belief that at the time mentioned in the complaint, or
at any other time, the defendant was a foreign cor-
poration, as is alleged in the complaint, and defendant
denies that it has an office in the city of New York.

" And further answering, the defendant admits that
it is a common carrier of passengers.

"And further answering, the defendant denies
each and every allegation in the complaint contained,
not hereinbefore expressly admitted, answered or
denied.

" Second. For a second and separate defense, the

262 CIVIL PROCEDURE REPORTS.

BengUon e. Thiogralla Steamship Co.

defendant alleges on information and belief that it is
not and never was a corporation.

"Third. For a third and separate defense this
defendant alleges, on its information and belief, that
the said plaintiff never delivered to the defendant the
baggage mentioned and described in the complaint,
and defendant never received the same.

" Fourth. For a fourth and separate defense, this
defendant alleges, on information and belief, that the
loss of the baggage referred to in the complaint, if any
such loss occurred, was not occasioned by any negli-
gence, carelessness or improper conduct on the part of
the defendant, its agents, servants or employees, and
the defendant denies any knowledge or information
sufficient to enable it to form a belief as to whether
said baggage was ever lost to the plaintiff."

On the trial there was no direct evidence of the
incorporation of the defendant, and at the close of
plaintiff's case the defendant's counsel moved to dis-
miss the complaint, on the ground, among others, that
the incorporation of the defendant was not shown, and
that there was no competent evidence on that subject,
which motion was denied and an exception duly taken.

The court submitted the case to the jury and
charged them that they " must find, in the first place,
on the testimony produced here whether this is a cor-
poration and holding itself out to the world" to be
such.

The verdict of the jury was in favor of the plaintiff
for $82.50.

The defendant's counsel thereupon moved for a
new trial upon the minutes of the court, on the ground
that the verdict was against the evidence, and also on
the exceptions taken during the trial.

After argument and consideration the court denied
the motion, writing an opinion which is reported, 3 N.
Y. Civ. Pro. 263.

CIVIL PROCEDURE REPORTS. 263

Beugtson 0. Thing valla Steamship Co.

This appeal is from the judgment and order deny-
ing motion for a new trial thereupon entered.

Joseph A. Shoudy (Jos. K. Hill, Wing & Shoudy,
attorneys), for appellant.

The learned judge at circuit placed his decision
denying the motion for a new trial upon the ground
that the plaintiff was not bound to prove the incorpo-
ration of the defendant, for the reason that the non-
existence of the incorporation was alleged on informa-
tion and belief, and 'not positively . . . It is simply
impossible, under the ruling of the learned judge, that
the fact of the existence of a foreign corporation shall
ever be litigated, or put in issue, unless, indeed, the
extraordinary expedient should be resorted to of hav-
ing the answer verified in a foreign country. That is
obviously impracticable in any case, and often impos-
sible.

It is simply impossible that an agent, residing here,
of a steamship owned abroad, should be able to answer
truthfully and positively, of his own knowledge, that
his principal is not a foreign corporation. All that he
can do, honestly, is to allege, on his information and
belief, the non-existence of such corporation.

J. Edward Swanslrom, for respondent.

The plaintiff was not required to prove the incorpo-
ration of the defendant, unless the answer contained
an affirmative allegation that the defendant was not a
corporation. Code of Civ. Pro. §1776 . . . The defend-
ant is bound to know whether it is or is not a corpo-
ration, and if it is not, it should plead that fact
expressly and not on information and belief » . * East
River Bank v. Rogers, 7 Bosw. 497, and cases cited.

Barnard, P. J. — There was no issue made by the
answer, which required the plaintiff U> prove the cor-

264 CIVIL PROCEDURE REPORTS.

BcDgtson 9. Thingvalla Steamship Co.

porate existence of the defendant. The complaint
averred that the defendant was a foreign corporation
incorporated under the laws of the kingdom of Den-
mark and was a common carrier of passengers. The
defendant appears in its own name, which apparently
is a corporate name, and admits that "it is a common
carrier of passengers," but " denies on its information
and belief that at the time mentioned in the complaint
or at any other time, the defendant was a foreign cor-
poration as is alleged in the complaint" The denial,
snch as it is, is not absolute, bnt upon information and
belief, and especially fails to meet the real allegation.
Was it a corporation under the laws of Denmark or of
any other state? If Swedish the allegation in the
complaint that it was Denmark would be of no rele-
vancy. The denial is so framed that the defendant
can be either a foreign or a domestic corporation
formed in any country except Denmark. The only
issue made is one of nationality of the corporation.
The Code, section 1776, requires an affirmative denial
of the fact that the defendant is a corporation.

The judgment is therefore right, and should be
affirmed, with costs.

Dykman and Pratt, JJ., concur.

CIVIL PROCEDURE REPORTS. 265

Doyle v. Doyle.

DOYLE v. DOYLE.

Supreme Court, Third Department, Delaware
Countt, Special Term, December, 1883.

§§ 8 et seq., 14, 110 et seq., 3307.

Sheriffs fee*— -plaintiff must pay fees for executing warrant of commit-
ment in proceedings to punish defendant for civil contempt —
Otherwise where the offense is a criminal contempt, in
which ease such fees are a county charge — Sections 110
et seq. of the Code do not apply to pro-
ceedings to punish for civil contempt.

Where, in an action for divorce, the plaintiff recovered a judgment by

., default by which the defendant was directed to pay her a certain
amount of costs, which he was ordered, a/ter notice, to pay but
refused to do, and he was adjudged guilty of a contempt of
court and he was arrested and committed to jail, and after having
been confined a few days, paid to the sheriff the Amount he was
required by the warrant to pay; — Eeldy that the contempt of which
the defendant was guilty was a civil and not a criminal con-
tempt; [', s] that the sheriffs fee for serving the warrant was not
a county charge [*] but was a proper and just charge against the
plaintiff in the action by whom he was employed to execute the
mandate and for whose benefit he performed the service; [4, '] and
she was clearly liable to him therefor. [•] In such a case the law
assumes that the expenses of the plaintiff have been covered by the
fine.n

Where an order is made in a civil action requiring the defendant to
pay costs awarded by a final judgment and he refuses to do so and
a warrant for his commitment is issued, under section 14 of the
Code of Civil Procedure the warrant is no part of a special pro-
ceeding, but is a proceeding in the action, conducted by the plaint-
iff and for his benefit ,[',*] and he is liable to the sheriff for his fees
for executing it.['] Sections 110 et seq. of the Code, which relate to
the execution by the sheriff of a mandate against the person, have
no application to such proceeding. [•]

It seems^ thst the sheriff's fees for the service of any process or man-
date in the enforcement of those provisions of the Code of Civil
Procedure which provide for the punishment of a criminal con-

26G CIVIL PROCEDURE REPORTS.

Doyle v. Doyle.

tempt would be a charge against the county as other services in
criminal matters and would not be a charge against the individuals
concerned therein. [!]
Decided December 28, 1883.)

Motion by plaintiff that the sheriff of Delaware
county be directed to pay her the costs of this action
received by him from the defendant while the latter
was under arrest for failing to pay the same.

The opinion states the facts.

Stephen C. Johnson, for plaintiff. "-

W. II Douglass, sheriff, in person.

Murray, J. — This was an action for a divorce on
the ground of adultery. The defendant did not answer
or demur. The plaintiff obtained a judgment. The
linal judgment directed the defendant to pay the
plaintiff a certain amount of costs. On the return of an
order to show cause, the defendant was ordered to pay
them, and he refused to do so.

A warrant of commitment was then issued and
delivered to the sheriff of Delaware county. The
sheriff arrested the defendant and brought him to jail,
and confined him a few days, and he paid the amount
required to be paid by the warrant, to the sheriff.

The sheriff deducted about the sum of ten dollars,
being the amount of his fees for serving the warrant,
and tendered the balance to the plaintiff's attorney.
He refused to receive it, and demanded the whole
amount, and denied the plaintiff's liability to the sheriff
for his fees, and claimed the sheriff must look to the
county alone for them.

That presents the only question on this motion,
whether the plaintiff or the county is required to pay
the sheriff his fees on that warrant, and for receiving

CIVIL PROCEDURE REPORTS. 267

Doyle v. Doyle,

the defendant into the jail. The warrant was issued
against the defendant, for the reason he had been
adjudged guilty of a contempt of court in refusing to
pay that money.

There are two classes of contempts. One is con-
tempts in the progress of an action or special proceed-
ing ; the other is, criminal contempts of court.* The
first is defined by section 14 of the Code of Civil Pro-
cedure, and clearly covers the proceedings in this
action out of which this question arose.

The mode of enforcing the provisions of said sec-
tion, and also section 8, is provided for by section
2260 of the Code of Civil Procedure, and the sections
following thereto.

The second class above referred to is defined in sec-
tion 8 of the Code of Civil Procedure, and the sections
following thereto, and provides for the punishment of
criminal contempts, which may also be punished by
indictment and conviction. That constitutes an entirely
different class of contempts from those provided for in
section 14, and all are misdemeanors.

They involve matters affecting the public welfare,
and the peace and good order of society, and the
dignity and respect due to our courts of justice, and the
public have an interest in the enforcement thereof.

I am, therefore, clearly of the opinion, that the
[*] sheriff's fees for the service of any process, or
mandate in the enforcement of those provisons of
section 8, &c, would be a charge against the county,
as other services in criminal matters, and would not be
a charge against the individual concerned therein.
That none of these provisions cover the proceed-
[•] ings in this case. Section 14 provides as follows,

* The distinction between a civil and a criminal contempt is con-
sidered at length in People ex rel. Negus v. Dwyer, 2 N. T. Civ. Pro.
879, and in People v. Aiken, 19 Huny 837.

JC8 CIVIL PROCEDURE REPORTS.

Doyle v. Doyle.

viz.: "A court of record has power to punish, by fine
and imprisonment, or either, a neglect or violation
of duty or other misconduct by which a right or
remedy of a party to a civil action or special proceed-
ing pending in the court may be defeated, impaired,
impeded or prejudiced in either of the following cases."
Among other things, subdivision 3 provides for a
case like the present, when a party to an action refuses
to pay money when ordered and adjudged so to do by
a competent court.

None of the provisions in this section are crimi-
[\| nal contempts. The offender could not be indicted

and tried for a crime as he could be under the pro-
visions of section 8.

Section 14 clearly provides for the enforcement of
a private remedy for the sole benefit of a private indi-
vidual. The public have no interest in the enforce-
ment thereof. To illustrate : take this case, the whole
proceeding is under the control of the plaintiff ; through
her counsel she conducts them. The money he refused
to pay is adjudged to belong to her, and is for her costs
in the action. It is directed to be paid to her. She is
to have the entire benefit of the entire proceeding. She

employs the sheriff to execute a mandate for her
[*] benefit, and he performs the services under her em-
ployment. That being so, the sheriffs fee for serv-
[•] ing the warrant of commitment is not a county

charge, but is a proper and just charge against the
plaintiff in the action.

This warrant served by the sheriff was no part of
a special proceeding, but was a proceeding in the action.

It being a part of the proceedings in an action con-
[*] ducted by the plaintiff for her benefit, it is clear she

is liable to the sheriff for his services. Section 3307
provides for the fees for sheriffs in civil actions or special
proceedings. Subdivision 7 of that section provides for
his fees on an execution, a warrant of attachment, or an

CIVIL PROCEDURE REPORTS. 26»

Doyle t. Doyle.

attachment for the payment of money in an action or
special proceeding. Subdivision 14 provides that for
each person committed to prison or discharged from
prison in an action or special proceeding, he shall
receive one dollar, to be paid by the person at whose
instance he is imprisoned.

In the case like the present, the law assumes that
the expenses of the plaintiff have been covered by
n fine. I think this is fair to be inferred from sec-
tions 2266, 2267, 2268, 2269, 2281, 2283, 2284, of the
Code of Civil Procedure.

The warrant of attachment clearly shows that

[*] it was a proceeding in the action, and that there

was no adjudication that the refusal to pay the

money was willful. That section 110 of the Code

[*] and those following, as amended by chapter 405,

Laws 1883, has no reference to a proceeding like

the present, and is not applicable thereto.

There should be an order entered in this case requir-
ing W. H. Douglass, sheriff, Delaware county, to pay
to the plaintiff's attorney the amount of money received
by him from the defendant in this action, less his fees
for serving warrant of commitment, and for receiving
the defendant into the jail.

The plaintiff s counsel likens the sheriffs fees for serv-
ing this warrant to his charges for boarding the defend-
ant while in jail. The two charges are not analogous.
The county has furnished a jail in which to confine,
board and care for all persons that are required by law
4o be imprisoned therein. The county supplies and
sustains that institution, which is for the common bene-
fit of the people of the county, and is supported by tax-
ation upon the taxable property of the inhabitants of
the county, and no individual is liable to the sheriff for
boarding a prisoner that he causes to be confined in jail,
unless there is a statute to that effect. There is no
statute requiring the plaintiff to pay for the board of

•70 CIVIL PROCEDURE REPORTS.

• --- ■ ■ i

Thompson t. Schieffelin.

the defendant while he was in jail. It is entirely different
from sheriff's fees for services performed by him in serv-
ing and enforcing the mandates of the court.

He is the executive officer of the county. He has
no salary, his only compensation is for services per-
formed by him, and the statute provides a compensa-
tion for each service done by him as sheriff.

The amonnt of his compensation is fixed by law in
each case, and when he performs services at the request
and for the benefit of private individuals, they are
required to pay him unless it is otherwise provided by
statute.

THOMPSON, Respondent, v. SCHIEFFELIN,
Appellant.

City Court of New York, General Term,
December, 1883.

§ 1021.

. Order overruling demurrer a* fr ho1 out not appealable. y

An appeal does not lie from an order overruling a demurrer tot com-
plaint as frivolous, and granting judgment, 'with the privilege to
the defendant to plead anew ; the remedy is by an appeal from tbe
judgment, final or interlocutory, entered upon the demurrer.

The unsuccessful party to an action may, if the successful party
neglects to enter the proper judgment, enter it himself in order to
appeal therefrom.

Cambridge Valley National Bank v. Lynch (76 N. T. 514), followed.

(Decided December 20, 1883.)

Appeal from an order made at Special Term, over-
ruling a demurrer to the complaint herein as frivolous,
and granting judgment to plaintiff, unless the defend-
ant within five days serve an answer to the complaint,
and pay the plaintiff's costs to date.

CIVIL PROCEDURE REPORTS. 271

Thompson v. Bcbieffelin.

After the order appealed from was entered, the costs
of the plaintiff were taxed by the clerk, upon notice
to defendant's attorney, at $68.11. The defendant did
not pay costs and answer, and judgment has not been
entered.

On the last day of the time allowed defendant to
answer under the order, he obtained an order staying
plaintiff from entering judgment in accordance with
the order overruling the demurrer, pending this appeal.

Edwm R. Meade, for appellant.

James M. Hunt, for respondent.

An order overruling a demurrer is neither such as
section 1347 of the Code describes as appealable to the
General Term, nor an interlocutory judgment within
section 1349 of the Code. An appeal can only be taken
from the judgment entered in accordance with the
order. Cambridge Valley National Bank v. Lynch,
76 N. Y. 514; Adams v. Fox, 27iV\ Y. 640; Garner
v. Harmony Mills, 6 Abb. N. C. 212; Miller v.
Sheldon, 15 Hun, 220 ; Lacustrine. &c. Co. v. Lake
Guano Co., 16 Hun, 484 ; Liegeois v. McCracken, 22
Hun, 69 ; Cameron v. Equitable Life Ass. Soc, 9 N. Y.
Weekly Dig. 26 ; Joannes v. Day, 3 Robt. 650 ; Whit-
man v. Nicholl, 16 Abb. Pr. N. 8. 329.

The order overruling the demurrer and giving
defendant leave to answer within five days on payment
of costs cannot be appealed from.

The practice is to enter judgment on default of
answer or payment, and then appeal from the judgment.
Trust and Deposit Co. of Quandaga v. Pratt, 25 Hun,
23 : Smith v. Rathbun, 88 N. Y. 660 ; Cook v. Warren,
88 N. Y. 37 ; Garner v. Harmony Mills, 6 Abb. N. C.
212 224; Malcolm v. N. Y. Cotton Ex., 47 N. Y. Supr.
(J. & S.) 558 ; Cambridge Val. Nat. Bk. v. Lynch,
supra.

CIVIL PROCEDURE REPORTS.

Thompson v. Schieffelin.

Had the order given judgment absolute without
leave to amend by serving an answer, the case would
have been otherwise. Elwood v. Rdof, 82 iV. T. 428.

Hyatt, J. — This is an appeal from an order made
at Special Term, overruling a demurrer to the com-
plaint as frivolous, and granting judgment, with the
privilege to the defendant to plead anew, which by this
appeal he declines to accept. An appeal does not lie
from this order.

The decision was, as urged by the appellant, under
section 1021, Code of Civil Procedure, under which the
rule was settled by the court of appeals in the case of
Cambridge Valley National Bank v. Lynch, 76 N. Y.
514, wherein the court held that under this Code, as
under the former Code, the decision of the court over-
ruling or sustaining a demurrer was an order and not
an interlocutory judgment, and that this Code did not
provide for any appeal therefrom ; the remedy is there-
fore by appeal from the judgment, final or inter-
locutory, entered upon the demurrer.

The unsuccessful party may, if the successful party
neglects to enter the proper judgment, enter it himself
in order to appeal therefrom. Wilson v. Simpson, 84
N. F. 674.

In this case the defendant not only declines to plead
anew, but also either to enter the judgment as directed,
or permit the plaintiff to do so, having stayed all
action on his part in the premises.

If the order is not appealable, it is unnecessary to
consider whether or not the demurrer is frivolous.

The appeal must be dismissed with costs.

Hall, J., concurred. .

CIVIL PROCEDURE REPORTS. 273

Cromwell v. Spofford.

CROMWELL v. SPOFFORD.

City Court of New York, Chambers, November,

1883.

§2435.

Proceedings supplementary to execution. — Judgment debtor cannot be ex-
amined iny token an order for his examination in proceedings brought on
another judgment between the same parties is outstanding^ and
it does not appear that he has subsequently acquired property.

Where a judgment creditor seeks to examine his judgment debtor in
proceedings supplementary to execution, and an order for the
examination of said debtor in proceedings based upon a prior
judgment between the same parties was outstanding, and no
reference was made in such second proceedings to the existence of
the previous order, and there was no allegation of subsequently
acquired property, — Held, that he was not entitled to the examina-
tion sought.

(Decided November 3, 1883.)

Motion to vacate and set aside an order for the
examination of the defendant in proceedings supple-
mentary to execution.

The facts are sufficiently stated in the opinion.

EoarUy Southmayd & Ckoate, for the motion.

Conlan & McCrea, opposed.

Hawes, J. — An order of examination is now out-
standing, based upon a prior judgment between the
same parties. No reference whatever is made herein
to the existence of this order, and there is no allegation
of subsequently acquired property. Under such cir-
cumstances I do not think that the plaintiff is entitled
toL. IV.— 18

.274 CIVIL PROCEDURE REPORTS.

Keiliert). Shipberd.

to the examination now sought (see Canavan t>.
McAndrew, 20 Hun, 46 ; Grocers' Bank of N. Y. v.
Bayaud, 21 Id. 203).

KEIHER v. SHIPHERD.

City Court of New York; Chambers, December,

1883.

§ 1391.

Supplementary proceeding*. — Share in 2?. T. Law Institute owned by
practicing lawyer, when exempt from judgment creditor.

Where in proceedings supplementary to execution, it appeared that the
judgment debtor was the owner of one of the shares in the "New
York Law Institute" of the value of $150; that he was a lawyer in
active practice, and such share, and the privileges it confers, con-
stituted his necessary working tools and library as a member of the
legal profession, Held, that such share was exempt from judgment
creditors, and a motion for a receiver of the property of such
judgment debtor founded on the ownership of such share should
be denied.

(Decided December 10, 1888.)

Motion by plaintiff for the appointment of a receiver
of the property of the defendant in proceedings sup-
plementary to execution.

The plaintiff having recovered a judgment against
the defendant, and an execution issued thereon to the
sheriff of the proper county, having been returned
wholly unsatisfied, procured an order in proceedings
supplementary to execution for the examination of an
officer of the New York Law Institute, a corporation,
pursuant to section 2441 of the Code of Civil Procedure
on the ground that said corporation had property of

CIVIL PROCEDURE REPORTS. 275

Eeiber v. Shipherd.

the judgment debtor exceeding in value $10. On the
examination under such order it appeared that the
defendant was the owner of one of the original shares
of the New York Law Institute, the market value of
which was $150.

The plaintiff thereupon made this motion.

Further facts are stated in the opinion.
PecJcham & Tyler, for the motion.
Jacob H. Shipherd, opposed.

Mo Ad am, J. — The examination of the assistant
librarian proves that the judgment debtor has standing
in his name, one of the original shares of the "New
York Law Institute," of the value of $150. The plain-
tifE on this discovery applies for the appointment of a
receiver. The defendant opposes the motion, and
proves that he has a family for which he provides ;
that he is a lawyer in' active practice, and that such
share and the privileges it confers constitute his neces-
sary working tools and library as a member of the legal
profession. Under such circumstances the aforesaid
share is exempt from judgment creditors (Code, § 1391 ;
Robinson's Case, 3 Abb. Pr. 466). The statute in
question is a remedial one, and must be liberally con-
strued in favor of the debtor on grounds of public
policy, as every state has an interest in the welfare of
its citizens (see Shaw v. Davis, 55 Barb. 389 ; Becker v.
Becker ; 47 Id. 497 ; Smith v. Slade, 57 Id. 637 ; Wil-
cox v. Hawley, 31 N. T. 648 ; Stewart v. Brown, 37
Id. 350; Frost v. Mott, 34 Id. 253 ; Cantrell v. Conner,
51 Bow. Pr. 45.

The property being exempt, the application for the
appointment of a receiver must be denied. No costs.

276 CIVIL PROCEDURE REPORTS.

Greenbaum «. Dwyer.

GREENBAUM et al. v. DWYER et al.

Supreme Court, First Department; Special
Term, December, 1883.

§§ 438, 439.

Service by publication. — Letters or papers referred to in affidavit to
obtain order for, should be annexed. — Instance of an affidavit
which was held insufficient to show that the defendants could
not by due diligence be served within the state.

Where the affidavit on which an order for the service of a sum-
mons by publication was granted, recited ((that as deponent is
informed and believes, the defendants .... are not residents
of this state, but reside in the city of Laredo, state of Texas, as
deponent is informed by the defendants themselves in letters
received from them at said place;" also "that deponent has caused
a summons and complaint to be issued in this action against the
said defendants to the sheriff of the city and county of New York,
but that said defendants cannot be found after due diligence
within this state, and that deponent is informed, and believes that
said defendants are now in the city of Laredo, state of Texas," and
the complaint stated that " the defendants are, and at all the times
hereinafter mentioned were, copartners doing business in the city
of Laredo, state of Texas, under the firm named, or style of Thomas
Dwyer & Co.,'1 and these were all the allegations in the papers on
which the order was granted showing the inability of the plaintiffs,
with due diligence to make personal service upon the defendant*.

•' of the summons within the state, Held, that the motion should be
granted ; that inasmuch as the letters referred to or copies thereof
were not annexed to the affidavits, the plaintiff's case was not
strengthened upon the question of due diligence by a simple
reference to them [', *] ; that the affidavit, that the summons and
complaint had been issued to the sheriff, and that the defendants
cannot be found after due diligence within this state, when it did
not state that the sheriff has so informed the deponent, and in the
absence of any certificate by the sheriff, showing that he has made
any efforts to serve them, was insufficient. [*]

Letters or documents relied upon in procuring a provisional remedy,
or copies thereof, shoul 1 be annexed to the moving papers, and in

CIVIL PROCEDURE REPORTS. 277

Greenbanm v. Dwyer.

their absence a reference to them in the moving affidavit does not

strengthen the plaintiff's caae.[V]
De Meerth v. Peldner (16 AM. Ft. 295); f1] Carleton v. Carleton (85

N. Y. 813);[»] foUowed; Smith «. Mahon (2 If. T. Oh. P>». 55),

distinguished.^]
(Decided December 10, 1888.)

Motion to vacate an order directing that the sum-
mons herein be served by publication.

The facts are stated in the opinion.

Forbes <fc Sage for the motion.

Gilbert H. Hawes opposed.

Lawrence, J. — The application in this case is to
vacate an order directing the service of the summons by
publication, on the ground that the affidavit on which
the same was obtained was insufficient to justify the
granting of the order. The affidavit recites, " that as
deponent is informed and believed the defendants,
Thomas Dwyer and Joseph W. Bell, are not residents
of this state, but reside in the city of Laredo, State of
Texas, as deponent is informed by said defendants
themselves in letters from them at said place." Also,
" that deponent has caused a summons and complaint
to be issued in this action against defendants to the
sheriff of the city and county of New York, but that
said defendants cannot be found after due diligence,
within this State, and that deponent is informed and
believes that said defendants are now in the city of
Laredo, State of Texas.' ' The complaint in the action
states that the " defendants are and at all times herein-
after mentioned were copartners doing business in the
city of Laredo, State of Texas, under the firm name or
style of Thomas Dwyer & Co." These are all the alle-
gations in the papers on which the order of publication
was granted, showing the inability of the plaintiff
with due diligence to make personal service upon the

278 CIVIL PROCEDURE REPORTS.

Greenbaum v. Dwyer.

defendants of the summons within this State. Under
the old Code of Procedure the affidavit would have
been plainly insufficient (see Wortman v. Wortman,
17 Abb. Pr. 66, and cases cited in the opinion of
Sutherland, P. J. ; Peck v. Cook, 41 Barb. 549 ; Brady
v. Smith, 3 ffurij 60, opinion of Davis, P. J). I was
inclined on the argument to the opinion that under
section 439 of the Code of Civil Procedure, the affidavit
in this case might be deemed to be sufficient, inasmuch
as it referred to the letters received from the defend-
ants themselves at the city of Laredo. Subsequent
reflection and an examination of the section in question
lead me to the conclusion that this impression was
erroneous. The letters relied on to establish that the
defendants were non-residents at the time the order was
made, are not attached to the affidavit, nor are even
their dates given. The reference to them, therefore,
in the affidavit furnishes no proof that they establish
that the defendants could not with due diligence be
personally served with the summons in this State. In
['] De Meerth v. Feldner (16 Abb. Pr. 295) the general
term of the common pleas held that where documents
are relied upon in an affidavit presented for the pur-
pose of obtaining a provisional remedy, the documents
themselves or copies thereof must be furnished to the
court. In the absence of such letters or copies thereof,
[*] the plaintiff's case was not strengthened upon the
question of due diligence by a simple reference to them
in the affidavit. The plaintiff's affidavit, as we have
before seen, shows that the summons and complaint
have been issued to the sheriff of the county, and alleges
that the defendant cannot be found after due dili-
gence in this State, and the deponent is informed and
believes that said defendants are now in the city of
Laredo, State of Texas. It does not state that the
sheriff has so informed the deponent, nor does the
sheriff make any affidavit showing that he has made

CIVIL PROCEDURE REPORTS. 279,

Grcenbaum e. Dwyer.

any effort to serve the summons and complaint upon
the defendants within this State. I cannot, therefore,
distinguish this case from that of Carleton v. Carleton
(85 iV. Y. 315). In that case the cases of Belmont v. Cor-
nen (82 Id. 256), and Howe Machine Co. v. Pettebone
(74 Id. 68), which are relied upon by the plaintiff's
counsel, are commented upon and distinguished, and
["] the decision in the former case was supported on the
ground that the affidavit therein, contained allegations
intending to show that an effort had been made to find
the defendant within the State and he was not there,
and hence it conferred jurisdiction upon the court or
judge to pass upon the question of the sufficiency of
the proof ; and in the latter case it appears that there
was a certificate of the sheriff that he had used due
diligence to find the defendant, for the purpose of
serving the summons upon him, and from the best
information that he could obtain he learned that he
had left the State. No such feature exists in the case
now under consideration, nor, as I view it, is any fuller
information imparted by the affidavits than was pre-
sented in the case of Carleton v. Carleton (supra), where
the affidavit stated that the defendant " has not resided
within the State of New York since March, 1877, and
deponent is informed and believes that the defendant
is now a resident of San Francisco, California.'^ The
plaintiff relies upon the case of Smith v. Mahon (2 N. Y.
Civ. Pro. 55), decided by the general term of this
department. In that case, however, the motion was
[*] made by a non-resident and a junior attaching cred-
itor, and a qucere was expressed as to whether the affi-
davit could have been sustained if the motion had been
made by the debtor himself (see opinion Davis, P. J., on
concurring in the opinion of Brady, J. ; Davis, P. J.,
and Brady, J., only being present). I do not regard
that case, therefore, as being in point, and shall follow

280 CIVIL PROCEDURE REPORTS.

Estate of Slosson.

the decision of the court of appeals in Carleton v. Carle*
ton, already referred to.

Motion granted, with $10 costs to abide event.

ESTATE OF JOSEPHINE SLOSSON, Deceased.

Surrogate's Court, New York Couxty, October,

1883.

§§ 2736, 2811.

Commissions of testamentary trustees. — When allowed. — Amount of.

when fund originally leu than $100,000 woe increased to more

than that sum by income. — Such commissions the same as

those allowed to executors.

Where a testator's will made express provision for the setting apart
of a fund, the income of which was to be paid to a certain bene-
ficiary for life, and it appeared on the settlement of the accounts of
the trustees of such fund, who were also executors of the will, that
the decree on an accounting as such executors previously had,
showed that the separation had, in fact, been made, — Held, that
the accounting parties were entitled to commissions as such trustee*,
although they hud aUo received commissions as executors. ['J

Where the principal of a fund, when delivered to certain testamentary
trustees, was less than $100,000, but at the time of their accounting
it amounted with the income thereon to more than that sum, —
Held, that the trustees were entitled to receive such commissions
only as would have been gran table to one of their number in case
he had been sole trustee. [s]

The rate at which the commissions of a testamentary trustee should
be computed are the same as that which is applicable to executors
in like cases, and this as regards both income and principal. ,'*]
For the purpose of fixing the rate for computation of such com-
missions upon income, such income must be regarded as an
addition to the principal, and if the commissions have been
awarded upon the principal on a basis of five, two and a-half, and
one per cent., no greater compensation than at the rate of one pec
cent, can be allowed upon the income received and paid out. [•]

CIVIL PROCEDURE REPORTS. 281

Estate of Slosson.

/* t6 Leggett (2 R*df. 149) ; [•] Cram v. Cram (2 Id. 244) ; [f] Ward

«. Ford, 4 Id. 84), [*] distinguished.
(Decided October 20, 1883.)

Settlement of the accounts of testamentary trustees.

The opinion states sufficient facts.

Evarts, Soulhmayd & Choate, and Thomas T.
Sherman, for the trustees.

Stephen A. Walker, for the cestui que trust

Rollins, S. — The trustees of a certain fund, the
income of which was given by decedent's will to a
beneficiary for life, have filed their account, and a
decree settling the same is about to be entered.

Upon this settlement the following questions are
presented for determination :

1st. Are the accounting parties, who have already,
in their capacity as executors, received commissions
from this fund, entitled upon the present accounting
to be awarded commissions as trustees ?

2. If so entitled, should each of them be allowed
the commissions which he could justly have claimed,
had he been sole trustee, for receiving the principal
which is still held in trust, and for receiving and pay-
ing out the income i

3. If such commissions cannot be allowed, then at
what rate per cent, should commissions be granted
upon the income about to be distributed ?

First I hold that the parties accounting are now
entitled to commissions upon the principal of the trust

fund as well as upon the income. The testator's will
['] made express provision for the setting apart of the

fund in question, and directed that after its separa-
tion from the body of the estate it should be held in trust
by the executors as trustees for the beneficiary. The
accounts previously filed herein, and the decree settling
the same, show that the separation directed by the will
was in fact effected, and that after such separation the

282 CIVIL PROCEDURE REPORTS.

Estate of Slosson.

executors continued to hold and manage the fnnd as
trustees.

Second. The amount of the principal of this fund is
less than $100,000, but it is claimed that as the prin-
cipal and income, taken together, are in excess of that
sura, each trustee is entitled, under sections 2811 and
2736 of the Code of Civil Procedure to one-half com-
missions for receiving the principal and to full commis-
sions for receiving and disbursing the income. This
claim does not seem to me well founded (see Savage v.
Sherman, 24 Hun, 307). The decision in 4 Redf. 149

{In re Leggett) seems to support the view here
[*], contended for by the trustees. That decision was

made, however, with reference to a state of facts
very different from the present. The rents of certain
real estate which the executors, as such, had no
authority to receive, were in fact collected by them and
accounted for with the consent of the parties in interest.
Such rents, added to the corpus of the personalty,
amounted to more than $100,000, and upon this fund
full commissions were allowed by the surrogate to each
of the executors. It does not appear upon the state-
ment of the facts that the rents so received were
regarded strictly as income in the computation of com-
missions. Their collection being unauthorized, and
the will containing, so far as appears, no provision for
the collection or disposition of income, the rents in
question might very properly have been treated as sub-
stantially an accession to the personalty, and as form-
ing, therefore, a part of the principal of the estate
rather than of income collected. In any other view
than this, the decision seems opposed to that of the
supreme court, general term, of this department in

Savage v. Sherman (supra). Upon the whole, I
[*] hold that the trustees are entitled to receive such

commissions only as would have been gran table to
one of their number in case he had been sole trustee.

CIVIL PROCEDURE REPORTS. 883

Estate of Sloeson.

Third. The rate at which commissions should be
computed is the same as that which is applicable to
executors in like cases, and this as regards both
[*] income and principal. Whatever may have been
the rule on this subject when chapter 115 of the
Laws of 1866 was in force, that act having been repealed
by the general repealing act of May 10, 1880,* the
trustees now stand, with reference to commissions,
upon the same footing as executors. Cram v.
['] Cram (2 Redf. 224), and Ward v. Ford (4 Redf.
34), are cases which seem to countenance the claim
of the trustees to a higher rate ; but the decision in the
former case, which is approvingly referred to in the
latter, was based upon the provision of the act of 1866,
which, as already noted, has been since repealed. For
the purpose of fixing the rate for computation of
executors9 commissions upon income, such income must
be regarded as an addition to the principal, and if
[•] commissions have been awarded upon the prin-
cipal on a basis of five, two and a-half, and one per
cent., no greater compensation than at the rate of one
per cent, can be allowed upon the income received and
paid out (Lansing v. Lansing, 45 Barb. 182 ; Drake v.
Price, 5 N. T. 430 ; Betts v. Betts, 4 Abb. N. C. 317,
442 ; Meeker v. Crawford, 5 Redf. 463).

* Laws of 1880, chap. 245.

284 CIVIL PROCEDURE REPORTS.

Estate of Bullard.

ESTATE OF JOHN BULLARD, Deceased.

Surrogate's Court, Kings County, November,

1883.

§ 1319.

When appeal from a decree of the surrogate fixing the sum to the income

on which a legatee was entitled does not stay the execution of

the decree, so far as it directed the payment of the

income for the first year.

Where a surrogate made a decree adjudging that one J. E. B. was
entitled to the income, on a certain sum conceded to be in the
hands of executors in trust for her benefit during her life, and she
claiming to be entitled to the income on a much larger sum appealed
from the decree, but in her notice of appeal expressly excepted
therefrom "so much and such parts of said judgment or decree
as adjudges and decrees that said J. E. B. is entitled to in-
terest on her life legacy from the death of said J. B., and at the
rate of six per cent, per annum for the first year," — Held, that the
appeal did not stay the execution of the judgment so far as it
related to the payment of the interest to J. E. B., and the executors
should pay the interest on her trust fund as fixed by the decree.

(Decided November 27, 1888.)

Application by executors for the instruction and
direction of the court as to the effect of an appeal.

The facts are stated in the opinion.
Charles J. Lowry, for Mrs. Jane E. Bullard.

Bergen, Surrogate. — This is an application of the
executors for instruction and direction of this court as
to the effect of the appeal taken by the said Jane E.
Bullard from the decree in the above entitled matter

CIVIL PROCEDURE REPCttTa 28ft .

Estate of Bui lard.

in this respect, viz. : Whether the said executors
should forthwith pay to the said Jane E. Bullard the
interest on her trust fund for the first year after testa*
tor's death, as fixed by said decree, or whether that
portion of said decree which provides for and author-
izes such payment is stayed pending such appeal 1 It
is conceded that the executors have in their hands the
sum of $147,009.95, which they hold in trust for the
benefit of Jane E. Bullard during her life, and that a
decree of this court 'has been made establishing that
sum to be the amount she is entitled to have invested
for her benefit.

Mrs. Bullard claims that she is entitled to the
income of a much larger amount by reason of several
lapsed legacies, and appeals to the general term of the
supreme court from the decree or judgment of the
surrogate, but in her notice of appeal, she excepts
therefrom as follows : " Except from so much and such
parts of said judgment or decree as adjudges and
decrees that said Jane E. Bullard is entitled to interest
on her life legacy, from the death of said John Bul-
lard, and at the rate of six per cent, per annum for the
first year."

In any event she will be entitled to receive the
income of an amount equal to or greater than the
amount already decreed for her benefit, and her notice
of appeal having expressly excepted that portion of
the decree directing the payment to her of the interest
for the first year from the testator's death upon the
above sum brings it within the exception embraced in
section 1310* of the Code of Civil Procedure, which
does not stay the execution of the judgment so far as
it relates to the payment of the interest to Mrs.
Bullard.

* The provisions of this section are rendered applicable to appeals
from a judgment or decree of the surrogate's court by section 2584 of
the Code of Civil Procedure.

*86 CIVIL PROCEDURE REPORTS.

Danaher v. City of Brooklyn.

I am, therefore, of the opinion that the executors
should further pay to Mrs. Ballard the interest on her
trust fund as fixed by the decree.

DANAHER, as Administrator, &c, v. THE CITY
OF BROOKLYN.

Supreme Court, Second Department, Kings
County, Special Term, December, 1883.

§§ 446, 484, 488.

Action for tawing death. — Two causes of action for damages for causing
death cannot be united in the same complaint.

Where one J. D. brought an action as administrator of one C. M. D.,
deceased, and as administrator of one T. J. D., deceased, to recover
on two causes of action, one for damages for causing of the death
of C. M. D. and the other for damages for causing the death of T. J.
D., and in each case the complaint alleged that the death resulted
from the same act of negligence on the part of the defendant, and
that the deceased was a minor son of the plaintiff and the plaintiff
was his only heir and next of kin, — Held, that the two causes of
action could not be united, and that, not because of the character

* of the causes of action, but because J. D. as administrator of C. M.
D., deceased, and J. D. as administrator of T. J. D., deceased, were
in law different persons.

(Decided December, 1883.)

Demurrer to complaint.

The plaintiff, John Danaher, sued as administrator,
&c. of Charles M. Danaher, deceased, and also as ad-
ministrator, &c, of Thomas P. Danaher, deceased, and
set out two causes of action in his compaint.

For a first cause of action the complaint alleged :
"That the defendant is a municipal corporation,
duly organized and existing under and by virtue of the
laws of the State of New York,

CSVIL PROCEDURE REPORTS. 287

Danaber v. City of Brooklyn.

" That among other things, said defendant is
charged by law and its charter, with the duty of the
care, custody, digging, constructing and repairing
public wells and pumps withiu its corporate Unfits ; to
prohibit nuisances therein, and to do all things neces-
sary and proper for good government and for the
preservation of public health within its said limits ;
that it accepted said charter imposing said duty and
undertook the performance thereof prior to 1873.

"That a certain street in the city of Brooklyn,
defendant, known as De Kalb avenue, is a public high-
way in said city, and is much used and traveled by
the citizens thereof and others, on the south side of
which said street or avenue, between Tompkins avenue
and Throop avenues in said city, and in front of premises
now or lately known as street number 870 De Kalb
avenue, there was and stood a public well, or pump,
whereby water for the use, benefit and consumption
of the citizens of said city of Brooklyn and others was
furnished by said city, defendant, and which said
public well and pump was placed there by said city of
Brooklyn, defendant, for drinking and other uses and
purposes, of its waters by its said citizens and others,
and had so remained and was used as a public well and
pump as aforesaid for many years last past.

44 That in and during the year 1882, and prior to the
first day of September thereof, the said city of Brook-
lyn, defendant, unmindful of its duty in the premises,
negligently and wrongfully allowed the water in said
public well or pump hereinbefore mentioned and des-A
cribed, to become and be stagnant, impure, poisonous,
unclean and dangerous to human life and health, of
all of which said city of Brooklyn, defendant, had due
and timely notice and knowledge, and after such notice
and knowledge, willfully and wrongfully neglected and
refused to clean and repair said well or pump, or have

?88 CIVIL PROCEDURE REPORTS.

Danaher 9. City of Brooklyn.

it abated as a nuisance or give public notice of its
condition.

"That in and during tbe months of July and
August, 1882, one Charles M. Danaher, a citizen and
inhabitant of Brooklyn, defendant, without knowledge
on his part of the dangerous, impure and unhealthy
condition of the water of said pump, hereinbefore
mentioned and described, and, without notice and
without negligence on his part, lawfully drank of the
same, by reason whereof the said Charles M. Danaher
became sick, and on the 26th day of August, 1£89, al
the city of Brooklyn, died.

"That said Charles M. Danaher left him surviving
no widow and no child or descendant, and that his
only next of kin is the plaintiff herein, who is the father
of said Charles M. Danaher, and who has been deprived
of the assistance and services of the said Charles M,
Danaher, by his said death, and has been otherwise
injured by his sickness and d*ath as aforesaid, to his
damage five thousand dollars.'3

It also averred the appointmeet of the plaintiff as
administrator of the goods, chattels and credits of said
Charles M. Danaher, and that he had before the com*
mencement of this action presented his claim upon
which this action is founded to the chief fiscal officer
of the defendant, who had wholly neglected and refused
to pay the same.

The second cause of action was to recover $5,0C0
damages for the death of the plaintiff's son Thomas P.
Danaher, caused in the same manner as that of Charles
M. Danaher. The allegations setting it forth are substan-
tially the same as those which set out the first cause of
action. As in the case of Charles M. Danaher, the plaintiff
was the only heir and next of kin of Thomas P. Danaher.

The defendant demurred to the complaint on the
grounds that:

(1.) That there is a misjoinder of parties plaintiff in

CtVIL PROCEDURE REPORTS. 289

Danahei «. City of Brooklyn.

that John Danaher sues in the capacity of administra-
tor, &c., of the estate of Charles M. Danaher, deceased,
and also in the capacity of administrator, &c, of the
estate of Thomas P. Danaher, deceased. (2) That two
causes of action~have been improperly united in that a
cause of action founded upon the alleged negligence of
the defendant, to recover damages resulting from the
death of Charles M. Danaher has been joined with a
cause of action founded upon the alleged negligence of
the defendant, to recover damages resulting from the
death of Thomas P. Danaher." And (3) "That the
complaint does not state facts sufficient to constitute a
cause of action.

John A. Taylor, corporation counsel, for the de-
murrer.

F. M. Danaher, opposed.

Cullen, J. — I don't think these two causes of action
can be united, and in my opinion the difficulty is not
with the character of the cause of action but with the
plaintiff. — I think Danaher, administrator of Charles
M. Danaher, deceased, and Danaher, as administra-
tor of Thomas J. Danaher, deceased, are in law different
persons. A judgment in an action in which the plaintiff
in one capacity is a party would not be conclusive in an
action for or against him in the other capacity. The
case of a surviving partner is not in point. By the
death of his copartner, the survivor does not take title
in any new or representative character. On the con-
trary, his personal obligations may be set off against
the partnership demand. But the reverse is the rule
with personal representatives.

Farther as to the question here involved, authori-
ties are against the plaintiff. Sucar v. N. Y. Central R.
R. Co., 21 Barb. 245.
Vol. IV.— 19

290 CIVIL PROCEDURE REPORTS.

Davies v. Mayor, Ac. of N. Y.

Judgment for defendant on demurrer, with leave to
plaintiff to serve an amended complaint on payment of
costs.

DAVIES, Appellant v. THE MAYOR, &c. OF THE
CITY OP NEW YORK.

Court of Appeals, June, 1883.

§738.

Municipal corporation — When hound by unauthorized acts of private indi-
vidual or officer — Offer of judgment — When accepted is bar to new
action for claim or part of claim set out in complaint.

Where the supervisors of New York county hired certain premise*
under a written lease for the term of one year from May 1, 1872,
for the use of the recorder and he entered into possession and con-
tinued to occupy them without further lease or agreement until
about July 1, 1877, when he removed therefrom, but the key of the
premises was not delivered to the landlord, and he did not resume
possession until after May 1, 1878, and the common council of the city
and county of New York which succeeded to the powers of the super-
visors, in December, 1876 passed a resolution setting apart certain
rooms in the city building for the use of the recorder, and direct-
ing that notice be given and provision be made accordingly, but the
rooms were not ready for occupancy until about August 1, 1877, —
Held, in an action brought against the city by the owner of the
premises so occupied by the recorder to recover for their use and
occupation for the year, commencing May 1, 1877, ht the rate
stipulated in the lease, that it was the duty of the city, if it desired to
terminate the lease, to surrender possession [\ 4] ; that the plaintiff
bad a right to assume in the absence of notice that the recorder's
remaining in possession after May 1, 1877, was by the authority or
acquiescence of the defendant and to treat it as a renewal of the
lease for another year. [9]

The general rule that a municipal corporation is not bound by the
unauthorized acts of an individual, whether an officer of the corpo-
ration or a mere private person, is unquestionable, but the corpora-
tion may so deal with third persons as to justify them in assuming

CIVIL PROCEDURE REPORTS. 291

Davies v. Mayor, Ac. of N. Y.

the existence of an authority in another which in fact has never
been given. [*J

Where a" general offer of judgment was made in an action and
accepted and judgment entered thereon, the party accepting it is
thereby concluded from bringing a new action for any part of the
claim enbraced in the complaint and which might have been liti-
gated in the action. [B]

(Decided October 2, 1883.)

Appeal from judgment of the general term of the
New York superior court affirming judgment of special
term dismissing the complaint.

On the 13th day of May, 1872, the board of super*
visors of the county of New York, by resolution,
authorized the hiring of rooms in premises belonging
to plaintiff for the use of the recorder as his chambers
for the term of one year from May 1, 1872, at the
yearly rent of $2,000, payable in quarterly install-
ments of $500 each, on the first days of August, Novem-
ber, February and May. The recorder entered into
possession and continued actually to occupy the prem-
ises, without further authority, until July, 1877.

The city and county of New York having been united
in 1374 and the board of aldermen invested with the
power of supervisors (Laws of 1874, chap. 304), it on
December 28, 1876 assigned rooms in a city building to
the recorder to be used as his chambers, but as the
rooms were not then ready for occupation, he did not
remove thereto until July, 1877.

The rent of the plaintiff's premises was paid at the
rate named in 1872, on the usual quarter days to and
including November 1, 1876.

In December, 1877, the plaintiff brought an action
against the defendant herein, to recover quarterly
installments of $500 each due on the first days of Feb-
ruary, May, August and November, 1877. On the
trial of that action the complaint was dismissed, but
upon appeal the court of appeals determined that the
city was liable, as a tenant holding over, for the rental

292 CIVIL PROCEDURE REPORTS.

Davies «. Major, Ac. of N. T.

of .the year ending May 1, 1877, and a new trial was
directed. The defendant thereafter served an offer " to
allow judgment to be entered against them for the prin-
cipal sum of $1,000 with interest on $500 thereof from
February 1, 1877, and interest on $500 from May 1,
1877, besides the costs and disbursements accrued and
incurred in this action to the date" thereof. This
offer the plaintiff accepted and entered judgment ac-
cordingly.

Thereafter, in March, 1881, the plaintiff brought
this action to recover four quarterly installments of
said rent of $500 each, claimed to have become pay-
able on the first days of August and November, 1877,
and February and May, 1878, respectively.

On a trial at special term the court found for the
defendant, and dismissed the complaint. The general
term affirmed that judgment and this appeal was there-
upon taken.

Edmund Coffin, Jr., for appellant.

If the prior adjudication is not a bar to the plain-
tiff's claim for the six months, between May 1 and
November 1, 1877, the plaintiff is entitled to recover as
claimed in his complaint. . . . Guest v. City of
Brooklyn, 79 N. Z 624 ; Ackley v. Westervelt, 86 Id.
448. . . . Resolutions of the common council are not
public notice of which all are bound to know. Porter v.
Waring, 69 N. Y. 250. A tenant after the expiration of
his lease can be relieved from a continuing liability for
the conventional rent only by a new agreement or the
surrender of the premises. The affirmative duty is on
the tenant to quit and vacate. No duty is on the
landlord to see that he gets a good and sufficient
lease. ... All he was obliged to do after that was
to look at the physical condition of his premises and
await the tenant's surrender. The corporation cannot
refuse or neglect to surrender to the landlord and then

CIVIL PROCEDURE REPORTS. 203

Davies v. Mayor, &c. of N. T.

fall back upon any charter or corporation immunity
from liability. The obligation to pay does not depend
on contract bat arises from the trespass. Schuyler v.
Smith, 54 N. Y 309 ; Witt v. Mayor, 5 Robt. 248 ; S. C.,
6 Id. 441.

David J. Dean {George P. Andrews, corporation
counsel), for the respondent.

The act of the recorder in continuing in possession
after the passage of the resolution assigning to him the
rooms in a building belonging to the city is not suffi-
cient to create a liability against the city. The reten-
tion of the premises was then unauthorized by the
assent or acquiescence of the city and their dissent from
such occupation is evinced by their resolution. That
the corporation cannot thus be bound by the un-
authorized act of a public official is substantially held
by the court of appeals in the former discussion (Davies
v. Mayor, 83 N. Y 207), and the doctrine is well estab-
lished in the following cases : McDonald v. Mayor, 68
N. Y. 23; affirming S. C, 4 IT. Y. S. C. (T. & O.) 177;
1 Hun, 719 ; Brady v. Mayor, 2 Bosw. 183; S. C, 20 N.
Y 312 ; Donovan v. Mayor, 33 Id. 291 ; Hodges v. Buf-
falo, 2 Denio, 112 ; Bonesteel v. Mayor, 22 Id. 162 ;
I>illon on Municipal Corporations, §§ 272-381 ; Super-
visors v. Ellis, 59 N. Y. 620.

Akdbkws, J. — The tenancy of the premises for the
rent of which this action is brought was initiated
under a written lease from the plaintiff to the board of
supervisors for the term of one year, from May 1, 1872.
They were hired for the use of the recorder as his
chambers, and he entered into possession and continued
to occupy them until about July 1, 1877, when he
removed to a city building in Chambers street. The
key, however, of the plaintiff's premises was not
delivered to him, nor did the plaintiff resume posses-

294 CIVIL PROCEDURE REPORTS.

Davies t. Mayor, Ac. of N. Y.

sion until after May 1, 1878. By the written lease th*
stipulated rent was $2,000 a year, payable quarterly.
This action is brought to recover rent at the rate stipu-
lated in the lease for the year commencing May 1,
1877.

It is urged as a complete defense that the holding
over by the recorder after May 1, 1877, was without
the authority of the city, and did not operate as a
renewal of the lease. We think this defense cannot be
sustained. That the tenancy originated under a law-
ful hiring, and that the lease was renewed from year
to year by the holding over of the recorder until May
1, 1877, was determined in the prior action between
these parties (83 N. T. 207). It is claimed that the
holding over by the recorder after that time was un-
authorized by reason of the resolution of the com-
mon council of December 26, 1876 assigning rooms in
the city building for his use. But the resolution of
December 26, 1876, did not contemplate an immediate
occupation of the new chambers by the recorder. They
were not ready for occupancy and were not so ready
until about August 1, 1877. The resolution, setting
apart certain rooms in the city building for the use of
the recorder, directs the commissioner of public works
"to give notice and make provision accordingly."
There was nothing in the action of the common council
to indicate that it designed to terminate the occupancy
of the plaintiffs premises before the new chambers
were ready. It was the duty of the city, if it desired

to terminate the lease, to surrender possession.
['] This it did not do. It (or its predecessor in

interest) put the recorder in possession. It con-
tinued him in possession for several years after the

expiration of the original lease. The plaintiff had
[*] a right to assume in the absence of notice, that his

remaining in possession after May 1, 1877, was a
renewal of the lease for another year.

CIVIL PROCEDURE REPORTS. 285

Davies t>. Mayor, Ac. .of N. Y.

The general rale is unquestionable that a municipal
corporation is not bound by the unauthorized act of

an individual, whether an officer of the corporation
[*] or a mere private person. But the corporation

may so deal with third persons as to justify them
in assuming the existence of an authority in another
which, in fact, has never been given. The city in this
case, as has been said, put the recorder in possession,
allowed him to continue in possession for years, using
the plaintiff's premises as a court room, and this pos-
session continued after May 1, 1877, in the same way
as for the years before. Under such circumstances an

affirmative duty rested on the city to surrender
[4] the possession, or at least to notify the plaintiff

before a new year was entered upon, that the
tenancy would not continue in order to terminate the
lease.

But we are of the opinion that the judgment in the
former action entered upon the offer of the defendant,
is a bar to the recovery of rent for the two quarters
embraced in the complaint in that action. This con-
clusion does not rest upon the ground that the question
of the right to recover rent for the two quarters ending
November 1, 1876, was adjudicated adversely to the
plaintiff in that action. It clearly was not ; but it rests
upon the ground that a general offer of judgment

accepted, upon which judgment has been entered,
['] concludes the party accepting it from bringing a

new action for any part of the claim embraced in
the complaint, and which might have been litigated in
the action.* The offer under the Code is made to save

* The general term of the superior court, in making the deter-
mination from which this appeal was taken, took the same view of this
question, and ki its opinion (per Kussell, J., Sedgwick, Ch. J., and
Frkkdman, J., concurring), tiled April 3, 1882, considers it at length.
The portion of the opinion treating of this subject is as follows :

44 But theieisone logical result of the conclusion to which we

296 CIVIL PROCEDURE REPORTS.

Davies e. Mayor, «&c. of N. Y.

litigation. The party to whom it is made may accept
or reject it. If he accepts it, and may afterwards bring
a new action, and sustain it by proof that the whole

have come, with reference to the effect of the judgment, entered upon
the offer, which makes conclusively against a part of the claim
included iu the plaintiff's present action ; which is, that the claim for
rent falling due August 1, and November 1, 1877, having been made
a, part of the plaintiff's cause of action in the former suit, com-
promised by the offer, became merged in the judgment entered
therein, so that the plaintiff's action in this case, so far as that portion
of his claim is concerned, is barred by the judgment.

" The defendants made a general offer to compromise the claim sued
on. There was no proof, nor any stipulation between the parties by
which it was agreed that any part of the cause or causes of action
should be held to be withdrawn from the contemplation of the parties
in making the compromise, and therefore the case does not come
within those authorities cited by the counsel for the appellant in
which a party was permitted to bring a new action for a severable
cause of action sued on, or alleged byway of counterclaim in a former
action, upon its being made to appear in court, cither by parol
evidence or by stipulations, that such cause of action was withdrawn,
and not litigated in the trial of the former acliou (Kcrby v. Duly, 63
N. F. 659; Knox v. Hexter, 71 Id. 401).

" There can be little doubt, and these authorities concede, that in
the absence of proof of such withdrawal, a general verdict or judg-
ment would be a bar to a further suit on any cause of action or
counterclaim pleaded in the action in which judgment was had
(6 Wait Actions and D/fencea, 776, title * Former Adjudication;'
Hopf v. Myers, 42 Barb. 270; Pinney v. Barnes, 17 Conn. 420;
Dodds v. Blackstock, 1 PitUburgh {Pa.) 40; Bagot v. Williams, S
Barn. & Cre$. 235).

14 If in the former action between the parties here, a trial had been
had upon the pleadings as they stood, a general verdict had been
rendered, and judgment entered thereupon, such a verdict would
have been a bar to any action for a claim included in the complaint in
that action. The plaintiff's only remedy in case the verdict had been
for the sum offered in compromise here, would have been to move to
set aside the verdict for inadequacy, and to appeal (Philips r. Beriek,
Id Johns. 136). Spekckk, J.—' Where, for instance, a demand of a
party is submitted to a jury, and they see fit to disallow it, either for
want of sufficient proof or for any other cause, a verdict and judg-
ment thereon is conclusive, aud the same demand, is barred for ever.'

CIVIL PROCEDURE REPORTS. 297

Davies v. Mayor, &c. of N. Y.

claim originally made was recoverable, or that tlie
amount offered was due on one of several causes of
action embraced in the original action, it would or

" So long as the judgment stood of record it would have been res
adjudicata. A judgment entered upon an offer of compromise cer-
tainly cannot put a plaintiff in better position than he would have
been with a verdict for the same amount, in the absence of any proof
that a portion of the claim embraced in the complaint was withdrawn
and not litigated (see Smith v. Jones, 15 Johns. 229; Farrington v.
Smith, Id. 432; Miller®. Covert, 1 Wend. 487; Guernsey t>. Carver, 8
Id. 492; Stevens «. Lockwood, 18 Id. 645).

" In Dodds v. Blackstock (1 Pittsburgh [Pa.], 46), it was held, that,
' when a defendant offers to confess judgment for part of the plaint-
iff's claim, and the plaintiff enters judgment for the amount so
tendered, and proceeds to execution, he cannot recover the balance
of the claim.' In that case the plaintiff filed a bill of particulars
and an affidavit of claim for the sum of $315. The defendants offered
to confess a judgment for $206.12, which he admitted to be due, and
filed an affidavit of defense as to the residue. Judgment was entered
for the sum of $206.12, * without prejudice to a recovery for the
balance.' The case went to trial on a special plea setting forth the
above facts. A verdict was rendered for the plaintiff under the
direction of the court, who reserved the question whether the facts
appearing of record constituted a bar to the recovery of the balance
of the plaintiff's claim. It was held that it did, and the decision
was affirmed in the supreme court, but unreported.

* * In Brazier «. Banning, & Harris, 345, an action of covenant for the
recovery of ground rent, and an affidavit of defense was made to
part of the claim; judgment was taken for the part not disputed, and
payment was voluntarily made. It was held that the plaintiff was pre-
cluded from recovering more; that the judgment taken was a bar to
any further proceeding for the cause of action.

"But for section 511 of Code, which permits the entry of an inter-
locutory judgment for an amount admitted to be due, our practise
would be the same.

u In Bagot v. Williams (8 Barn. <£ Ores. 235), the head note cor-
rectly states the case : Assumpsit for money had and received.
Plea, a judgment recovered for want of a plea, £4,000. In an inferior
court, in Wales, for the same cause of action. Replication, that the
causes of action were not the same, and issue joined thereon. At the
trial it appeared that the defendant had received, on account of the
plaintiff, and as his steward, different sums of money at different

398 CIVIL PROCEDURE REPORTS.

Davies 0. Mayor, &c. of N. Y.

might destroy the only consideration upon which the
other party acted in making the offer. Non constat
that the offer would have been made except upon the

times, and that on the investigation of the accounts the plaintiff
fonnd that there was due to him a much larger sum than that for
which he had declared in the inferior court, but that he had pro-
ceeded for the smaller sum under the belief that the defendant had
no available property beyond that -amount. Defendant in that action
suffered judgment by default, and plaintiff verified for £3,400. IfcW,
that all the sums which the plaintiff knew the defendant had received
at the time when he commenced the action in the inferior court were
to be considered as causes of action in respect of which he had
declared and recovered judgment.

"Bailey, J., in the course of his opinion, says : 'In this case,
Lord Bagot, at the time the first action was commenced, had a
demand upon the defendant, not for one specific sum of money,
but for different sums of money received by the defendant, on his
account, from different persons, and at different times. His agent
knew he had claims in respect of all the sums now claimed, except
forty-six pound*, and having that knowledge, he formed an opinion
that three thousand four hundred pounds was the whole sum which
Lord Bagot ought to claim, and if he acted upon that opinion, it is
much the same thing as if a plaintiff in a cause at nisi prius, having
a claim of sixty pounds, consisting of three sums of twenty pounds
which became due to him at different times, consented to take a
verdict for forty pounds. If the jury in such case, at the suggestion
of the plaintiff, reduced the verdict to forty pounds, he would be
bound by it, and could not afterwards bring an action for the other
twenty pounds. It Beems to me that he is equally bound by his own
act in this case as he would have been by the verdict of a jury
in the other, and that, having chosen to abandon this case once, he
has done it for ever.'

• "In Pinney 0. Baines (1 Conn, 420), a Buit had been brought npon
a removed executor's bond for malfeasance, and a recovery had.
Among the breaches alleged in that suit were, that the defendant had
neglected, and refused upon demand made therefor, to pay over to
his successor the moneys in his hand belonging to the estate. On
scire facias afterwards brought on this judgment to recover moneys
which were in the hands of such executor to pay certain legacies, it
was held that the former suit was a bar.

" The authorities from which I have quoted go much further than
it is necessary to go in this case, except those in Pennsylvania, which

] CIVIL PROCEDURE REPORTS. 299

Davies x>. Mayor, Ac. of N. Y.

view that its acceptance would extinguish the entire
claim. The offer in question was to permit judgment
to be taken for $1,000, with interest on $500 from
February 1, 1877, and on $500 from May 1, 1877. We
can very easily see that the defendant intended to
permit judgment for the two quarters rent prior to
May 1, 1877, and not for the rent of the two quarters
commencing May 1, 1877, which was also embraced in
the action. The plaintiff was at liberty to reject the
offer. The acceptance and judgment merged the whole
claim. Upon the evidence as now presented, we think
the plaintiff is entitled to recover rent for the six
months ending April 30, 1878. *

The judgment should be reversed, and a new trial
ordered.

All concur.

are the only ones exactly in point that have come within niy
observation.

"The law as to payment, accord and satisfaction, and releases, by
analogy throw some light upon the same question; and there can be
no doubt that if the plaintiff, making a claim such as he made in the
former action, which was disputed by the defendant, bad received
the sum for which he entered judgment on the pffer of compromise,
either in payment or as an accord and satisfaction, or certainly for a
release of such claim, he could not again assert a right of recovery
upon it (Cooper v. Parker, 14 Common Bench Rep. 1 18 ; Same case on
appeal, 15 Com. Bench Hep. 822).

"I am therefore of opiuion that the plaintiff's claim in this action
to recover for the rent which, according to his theory, fell due
August 1 and November 1, 1877, was barred by the judgment
entered on the offer of compromise in the former action."

300 CIVIL PROCEDURE REPORTS.

Hull o. Allen.

HULL v. ALLEN.

N. Y. Court of Common Pleas, Special Term,
December, 1883.

§ 1013.

When reference not ordered in action by attorney for professional

services.

Where in an action by on attorney to recover for professional services,
the answer admitted the services, averred that the charges were
exorbitant, that they had been rendered to defendant solely as
executor, that the surrogate had made an award therefor, and that
the plaintiff when employed had agreed to perform the services for
the amount of such award as should be made, — Held, that the ques-
tion concerning the agreement between the parties materially
affected the right of recovery, and should be submitted to a jury,
unless the items of the plaintiff's account are so numerous aud of
such a character as to render it unlikely that a jury could carrj
them in mind with the accuracy required for intelligent considera-
tion and a just conclusion.

Where, in such action, the labors of the attorney were germain
to one subject of litigation and rendered under one retainer, and
although the several acts of service were numerous, but one sum
was affixed to all the items in a bill of particulars served by the
plaintiff, and there seemed to be no issue made upon the rendition
of the services but only upon their value, being the amount
in gross demanded by the plaintiff, — Hdd, that the trial would not
require the examination of a long account, so as to call for a
compulsory reference.

(Decided December, 1883.)

Motion for a reference in an action "by an attorney
for professional services on the ground that the trial
would require the examination of a long account.

This plaintiff, who is a member of the New York
bar, brought this action to recover $13,214:.87, balance
claimed to be due for services rendered by him for the

CIVIL PROCEDURE- REPORTS. 301

Hull «. Allen.

defendant during the nine years prior to the spring of
1883, in the matter of the probate of the last will and
testament of John Hancock, deceased, of which the
defendant was executor.

The answer admitted the performance of the servi-
ces, but alleged that the charges therefor were exor-
bitant, and set up that the plaintiff had agreed, at the
time he was employed by defendant, to accept such
amount as might be awarded, by the surrogate in pay-
ment for his services ; that the surrogate had made
an award. The plaintiff served a bill of particulars
of his claim, setting forth the several acts of service
performed by him, which took up twenty-eight pages
of legal cap.

Thereafter he made this motion.

Amos O. Bull (Childs <fe Hull, attorneys), for the
motion.

Andrew Lemon & Joseph Fettrich, opposed.

Beach, J.— There is a question concerning the
agreement between the parties for the plaintiff's pro-
fessional services materially affecting the right of
recovery. This should be submitted to a jury unless
the items of plaintiff's account are so numerous and of
such a character as to render it unlikely that a jury
could carry them in mind with the accuracy required
for intelligent consideration and a just conclusion.

The labors of the attorney were germain to one sub-
ject of litigation and rendered under one retainer.
Although his specific acts daring a persistent and
lengthy contention were numerous, still it by no means
follows that each and every one must be shown with its
value. This is not indicated by the bill of particulars,
where but one sum is fixed to all the items. There
seems to be no issue made upon the rendition of the

302 CIVIL PROCEDURE REPORTS.

Stebbins v. Cowles.

services, but only npon their value being the amount in
gross demanded by the plaintiff.

The trial in my opinion will not require the exami-
nation of a long account so as to call for a compulsory
reference. Dittenhoefer v. Lewis, 5 Daly, 72 ; Felt v.
Tiffany, 11 Hun, 62, and cases cited.

Motion denied.

STEBBINS, Respondent, v. COWLES, Appellant.

Supreme Court, Fourth Department ; General Term,
October, 1883.

§ 1013.

Action by attorney for professional services, token referable. — Supreme
court no power to review discretionary orders of county court.

An action by an attorney and counselor at law for services as such,
which involves the examination of a long account, is referable.
No case has gone so far as to deny the power to refer in such an
action ; all those in which a reference was refused rest upon circum-
stances of discretion, or upon the ground that the action did not
involve a long account.

Where in an action by an attorney to recover for professional services,
the plaintiff moved for a reference on the ground that the action
involved a long account, and the defendant on such motion
admitted that the items in a bill of particulars served by plaintiff,
which were numerous, were correctly stated as to their number,
date, and character, but not as to their value, and the motion was
therefore decided, and on the trial it appeared that the items of
the account were not so fully and distinctly admitted as to preclude
the necessity of giving evidence of their nature as well as of their
value, and the trial judge took the case from the jury, and ordered
a reference, — Held, no error; that the facts warranted the con-
clusion of the court that the trial involved the examination of *
long account.

CIVIL PROCEDURE REPORTS. 308

Stebbins t>. Cowles.

A discretionary order of a county court cannot be reviewed by the
general term of the supreme court upon appeal. The decision
of one tribunal resting in discretion cannot be reviewed by
another.

Martin v. Windsor Hotel Co. (10 Hun, 804); 'Felt «. Tiffany (11 Id.
62), distinguished.

Appeal from an order made at a trial term of the
Munroe county court, referring the issues in this action
for hearing and determination.

The opinion states the facts.

W. Henry Davis, for appellant, cited in support of
contention that action should not have been referred :
Martin v. Windsor Hotel Co., 10 Bun, 304; Felt
t>. Tiffany, 11 Id. 62 ; Bathgate v. Haskin, 39 N. T.
533 ; Brink v. Republic Fire Ins. Co., 2 N. T. S. O.
(T. & C.) 550 ; Thomas v. Neat, 6 Wend. 503 ; Dickin-
son v. Mitchell, 10 Abb. Pr. 286 ; Dittenhoefer v. Lewis,
5 Daly, 72 ; Warning v. Chamberlain, 14 N. Y. Weekly
Dig. 564.

John W. Stebbins, respondent in person.

Smith, P. J.— The action is brought to recover for
services as an attorney and counselor at law. The
complaint contains a single count alleging such services
generally, and the bill of particulars furnished by the
plaintiff specifies numerous items extending through
a period of four years, including services rendered in
four separate suits. The answer admitted generally
that the plaintiff performed services for the defendant,
44 during the time, and as stated in the complaint,"
but with that exception, denied the complaint and
alleged payment, and that the services were performed
negligently.

The plaintiff having moved for a reference, the

804 CIVIL PROCEDURE REPORTS.

Stebbins v. Cowles.

defendant admitted that the items of plaintiff's bill of
particulars were correctly stated as to their number
and date and character of services, but not as to their
value, and therefore the motion was denied. Sub-
sequently the cause came on for trial before the county
court, and the plaintiff having proceeded in part with
his proof and offered evidence as to value, which was
objected to by the defendant, the court decided that
all the items of the accortnt, their nature and value,
must be proved, and ordered a reference. From that
order this appeal is taken. We think that the appeal
cannot be maintained. The action was one which tho
county court had power to refer in its discretion. The
numerous items of the account were not so fully and
distinctly admitted as to preclude the necessity of
giving evidence of their nature as well as their value,
as seems to have been demonstrated by the partial trial
of the cause. The facts warranted the conclusion of
the court below, that the trial involved the examination
of a long account. The order being discretionary, we
cannot review it. The decisions of one tribunal resting
in discretion are not reviewable by another (Ward t>.
Wiles, 24 JV. Y. 635 ; Tanner v. Marsh, 63 Barb. 438).
That rule does not apply to a review by the general
term of this court, of the decision of the special term,
they being parts of the same court. But the county
court being an independent tribunal, this court caunot
interfere with the exercise of its discretionary powers.
The learned counsel for the appellant cites cases in
which a reference of an attorney's account has been
refused. No case has gone so far as to deny the power
to refer in such a case ; they all rest upon circum-
stances of discretion (Martin v. Windsor Hotel
Co., 10 Hun, 304), or upon the ground that the
action did not involve a long account* (Felt a. Tiffany,
11 Id. 62).

* Bee Hall v. Allen, ante, p. 800.

CIVIL PROCEDURE REPORTS. 305

Weed v. Paine.

The appeal should be dismissed, with ten dollars
costs, and disbursements.

Hardin and Barker, JJ., concurred.

WEED et al. v. PAINE et al.

Supreme Court, First Department, General Term,
October, 1883.

§§3253,3254.

Additional allowances — Not limited to $3,000 in the aggregate, but to

$2,000 to each aide token both parties are successful in an action

specified in section 8253 of the Code. — Compensation of

guardian ad litem.

The compensation made to a guardian ad litem in an equitable action,
is not dependent upon the provisions of the Code, providing for
extra allowance, or any other similar provision. ['] The court has
inherent and well established authority to award to the guardian
such a compensation as appears to be reasonable for the services he
in fact performed, to be paid out of the subject matter of the
action. ['J The compensation to a guardian ad litem should be con-
sidered as independent of and forming no part of the amount men-
tioned in the Code as the sum which may be awarded as additional
allowances. [']

While the additional allowances in an action provided for in section
8253 of the Code cannot ordinarily exceed $2,000, where parties
who may be adversely related to the action are each successful and
for that reason become entitled to costs, this restraint has no appli-
cation further than that the allowances should not exceed $2,000 to
the parties on each side of the action. p, 4]

In an action for partition, it seems, that where there is a sale of the
property each side is entitled to costs, but where there is actual
partition the right of both sides to costs is a subject of serious
doubt. [*]

(Decided October 26, 1883.)
Vol. IV.— 20 '

306 CIVIL PROCEDURE REPORTS.

Weed 0. Paine.

Appeal by all the parties from an order granting
additional allowances of costs.

This was an action for the partition of real estate,
in which an actual partition was made. The property
consisted of sixteen* houses and lots in the City of New
York, and three in Monroe county, and was. appraised
by the commissioners appointed to make partition at
the sum of $252,100. An application for an additional
allowance was made by each of the attorneys who rep-
resented parties to the action, and an order was made
and entered, which, omitting the title, etc., was as
follows :

"A motion for allowance in addition to costs on final
decree in the above-entitled action coming on for hear-
ing on the affidavit of John S. Davenport, Elial P.
Hall, Ovide Dupre, Almet P. Jenks and Dwight A.
Jones, after hearing JohnS. Davenport, Esq., of coun-
sel for plaintiffs and their guardian ad litem, Elial F.
Hall, Esq., of counsel for defendants Ann Amanda
Swift, Priscilla C. Drinker and James Drinker, also for
the guardian ad litem, of the infant defendants Annie
F. Swift and Naomi C. Swift, and also for the guardian
ad litem of the infant Phoebe N. Drinker, and also
after hearing Almet F. Jenks, Esq., of counsel for the
defendants Hanford Smith and Margie V. Smith, his
wife, and also Dwight A. Jones, Esq., guardian ad
litem of the infant defendant Hanford Edsel Smith
and Ovide Dupre, of counsel for Naomi C. Paine and
Naomi C. Paine as guardian ad litem, and the court
being of the opinion that it has no power under the
Code of Civil Procedure to allow more than $2,000, in
addition to costs, in the aggregate, to all the parties,
and the court being further of the opinion that it has
no power to grant allowances by way of compensation
to the guardians ad litem in this case additional to or

CIVIL PROCEDURE REPORTS. 307

Weed t>. Paine.

apart from said sum of $2,000, and upon the ground of
such lack of power as aforesaid, it is

" Ordered, that the aggregate of the allowances to all
parties in this action be limited to $2,000, which said
sum, and no more, on the ground aforesaid, is allowed
to all parties ; and it is

" Ordered, that the same be apportioned among the
said parties as follows : To the plaintiffs and their
guardians ad litem $800, to the defendants Ann
Amanda Swift individually and as guardian ad litem,
Priscilla C. Drinker and John M. Drinker, guardian
ad litem, or to their attorney, Elial F. Hall, Esq., $500 ;
to the defendant Naomi C. Paine, individually, and as
trustee under the will of Hanford Smith, deceased, and
as guardian ad litem, $400 ; to the defendant Hanford
Smith the sum of $200 ; and to Dwight A. Jones, Esq.,
guardian ad litem, $100."

John 8. Davenport {Davenport & Leeds, attor-
neys), for plaintiffs, and their guardian ad litem.

Elial F. HaU, for defendants, Ann Amanda Swift
and others,and their guardians ad litem.

Cited in support of contention that the court had
power to award allowances exceeding in the aggregate
$2,000 : Code of Civil Procedure, §§ 3253, 3254 ; Throop's
Annotated Code, note to section 3254 ; Laws of 1876,
cbap. 431 ; Noyes v. Children's Aid Soc, 3 Abb. N. C.
36 ; Bockes v. Hathorn, 17 Uun, 87 ; Betts v. Betts,
4 Abb. N. C. 433 ; that the court had power to grant
allowances outside of, and independently of, the
limitation of $2,000 in section 3254 of the Code:
McCae v. O'Hara, 5 Redf. 336 ; General Rules of
Practice, 50, 61 ; Rules of Court of Chancery (1822,
1837, 1844) 143, 147 ; that the court has inherent power
to make such allowances: Downing v. Marshall, 37
JH. T. 380 ; Story's Equity Jurisprudence, § 1352 ;

308 CIVIL PROCEDURE REPORTS.

Weed v. Paine.

Wetmore v. Parker, 52 N. Y. 450 ; Clark v. Bininger,
75 Id. 344 ; In re Attorney-Gtenl. t>. North Am. Life
Ins. Co., 91 Id. 61 ; Ward v. James, 10 Bun, 526 ; that
the order appealed from was appealable : Hanover Ins.
Co. v. Tomlinson, 58 N. Y. 215 ; Tilton v. Beecher, 59
Id. 176.

Almet F. JenJcs {Ward & JenJcs, attorneys), for
defendants, Hanford and Magie V. Smith.

Dwight A. Jones, guardian ad litem in person.

Ovide Dupre, for defendant, Naomi C. Paine and
others.

Daniels, J. — The action was for the partition of real
estate owned by Hanford Smith in his lifetime, and
upon its final determination an additional allowance of
costs to the extent of $2,000 was made and distributed
between the parties to the action, including the
compensation to the guardian ad litem. The court
declined to increase the aggregate amount of the
allowance, upon the supposition that it could in no
event exceed the sum of $2,000, and that the guar-
dians' compensation should be included within that
sum.

The compensation made to a guardian ad litem in
equitable actions was not, however, dependent upon
this,* or any similar provision of the Code. For
['] before its enactment it was the practice of the
court of chancery to compensate the guardian for
the services performed by him in the protection of the
infant's interests, by allowing him to recover costs not
exceeding the taxable items prescribed for the services
performed. Union Ins. Co. «. Van Rensselaer, 4 Paige,
85, 87 ; Gott v. Cook, 7 Id. 523, 544.

And under this inherent and well established

♦ Sections 3253, 3254.

CIVIL PROCEDURE REPORTS. 309

Weed e. Paine.

authority of the court, the rule has been prescribed

and followed, of awarding to the guardian, to be
['] paid out of the subject matter of the action, such

a compensation as appears to be reasonable for the
services he in fact performed. And rule 60 of the
present rules of all the courts of record of the State in
express language embodies the continued application
of the same principle. The authority has not been
derived from, and is not included within the provisions
of the Code relating to additional allowances, and for
that reason the compensation to the guardian ad litem
should be considered as independent of, and forming
no part of the amount mentioned in the Code.

By the language of section 3253 of the Code, the
most general authority is given to the courts to make
additional allowances by way of costs in actions for
the partition of real property. And this general
language is subjected to no other restriction than that
contained in the succeeding section, and that restriction
is that all the sums awarded to the plaintiff or to a
party, or two or more parties, on the same side, cannot
exceed in the aggregate $2,000. The ordinary effect

of this section would be to limit allowances in an
[*] action to this sum of $2,000. For the cases are not

common in which each of the adverse parties to the
action may become entitled to costs, and when they are
not, the allowance must necessarily be confined to the
successful party. But when parties who may be
adversely related to the action are each successful, and
for that reason become entitled to costs, there this
restraint can have no application. For it has been
expressly confined to the party or parties on the same
side in the action, and by that phraseology it must have
been intended to include only the party or parties sus-
taining the same relation to the controversy either as
plaintiffs or defendants. The language cannot con-
sistently be construed so as to give it any greater legal

310 CIVIL PROCEDURE REPORTS.

Weed 0. Paine.

significance. When therefore the parties on each side
of the action may prove to be successful, and on that
account each entitled to recover costs separately, this
provision does not stand in the way of the court in the
exercise of the preceding general authority in its power

over this subject of allowances, further than they
[*] shall not exceed $2,000 to the parties on each

side of the action. It does not, in other words, pre-
vent the court from exercising the same authority in
behalf of the parties on each side of the litigation, so
that an allowance may now be made in a proper case
to the plaintiff or plaintiffs in an action, and also to
the defendant or defendants, provided that they shall
not exceed $2,000 on a side, or $4,000 in the aggregate.
In determining this point it becomes unnecessary
to recur to the provisions contained in the preceding
Code. For the language which has been now employed
to express the legislative intention is reasonably plain
and free from ambiguity, and it supports this and no
other fair construction.

Whether an action for the partition of real estate
may be included within this authority to the extent of
permitting an allowance to the parties on each side is

not a matter now requiring to be determined. If
['] actual partition of the property is made, that may

be the subject of serious doubt (Code, § 1559).
While if the sale of the property is made, then the
right would seem to be reasonably free from doubt
(Code, § 1579).

But as the right to the allowances was not con-
sidered when the order was made, but only the extent
of the authority of the court over the subject, this
doubt is not required to be solved on this occasion.
All that can now be determined is that the provisions
relating to allowances do not limit them to the sum of
$2,000 when they may be made to one or more

CIVIL PROCEDURE REPORTS. 311

Bundick v. Hale.

plaintiffs, and also one or more defendants in the
action.

The order should be reversed, but without costs.

Davis, P. J., and Brady, J., concurred.

bundick and another, respondents, v. hale,
Appellant.

Supreme Court, Third Department; General J
Term, July, 1883.

§§ 2863, subd. 4, 3228, subd. 3.

Costs — When plaintiff not entitled in action in court of record in which

he did not recover $50 — Payments on account of a debt are

in extinguishment of it.

Where in an action in the supreme court it appeared that the plaint-
iff's claim was for goods sold and cash advanced (473.08, and that
$393.00 had been paid on account, and the plaintiff recovered a
judgment for less than $50, — Held, that the action was one of
-which a justice of the peace would have had jurisdiction, [', 8] and
therefore the defendant was entitled to costs; that the payments
operated in extinguishment of plaintiff's demand pro tan to and that
only the balance of the accounts between the partieB could be taken
into consideration in determining the jurisdiction of a justice. [8, •]*
Payments go in extinguishment of an account. [']

Where in such a case, the referee, before whom the cause was tried,
awarded costs to the plaintiff, — Held, that he was in error; that he
had no right to pass upon the right to costs it being declare4 by
statute and absolute upon the facts found. [10]

* Bee Steele v. MacDonald, ante, p. 327.

312 CIVIL PROCEDURE REPORTS.

Bumlick v. Hale.

Crim «. Cronkhite (15 How. Pr. 250); [»] Matteson «. Bloomfleld (10
Wend. 555); [*] Mills v. N. Y. C. P. (10 Id. 557 note); [«] Lamoure
«. Caryl, (4 Denio, 870); [8, «] Fuller t>. Conde (46 JV. Y. 89).[«J
followed.

Appeal from an order of the special term denying
a motion made by defendant for a new taxation of

costs.

The plaintiffs, who were copartners, brought this
action to recover $65, a balance claimed to be due on
an account for merchandise sold and delivered to the
defendant, and cash loaned him. The defense was
payment, and a counter-claim of $11.40, an alleged over-
payment.

A referee to hear and determine was appointed
who found as matter of fact : "That during the time
that the said firm (plain tiffs) were doing business . . .
beginning about February 10, 1874, and continuing to
December 19, 1877, the said firm and defendant had
mutual dealings and accounts, which upon the part of
said firm consisted of goods, wares and merchandise,
sold and delivered to or for defendant, and for cash
advanced to him ; and upon the part of defendant
consists of lumber, hides and produce sold by him
to said firm, and cash paid to said firm to apply on
said account they had against him, which amounted at
the last mentioned date in the aggregate to the sum of
$742.41." Here the finding set out the items of the
account which are stated in the opinion, after which it
continued, " that the money loaned and advanced by
said firm to the defendant was treated by said firm as
a matter of book account and being entered in said
account from time to time as the various loans oc-
curred."

The referee, as a conclusion of law, found that the
plaintiff was entitled to judgment for $10.2o, and
interest, " amounting in all to $12.02, with costs."

CIVIL PROCEDURE REPORTS. 313

Bud dick v. Hale.

The plaintiffs and defendant each presented a bill of
costs to the clerk for taxation, and each objected to
the adjustment of his opponent's bill of costs. The
clerk taxed the plaintiffs' bill and disallowed the one
presented by the defendant, whereupon the defendant
moved at special term for a new taxation, that the costs
allowed plaintiffs be stricken from the judgment and
defendant's costs inserted in place thereof, and that
the clerk be required to enter judgment against the
plaintiffs for the amount of defendant's costs less
$12.02, the sum found by the referee to be due them.
This motion was denied, and this appeal taken* from the
order thereupon entered.

George Scramling, for appellant.

L. J&. Bowe^ for respondent.

Bockes, J. — I am of the opinion that this case was
within the jurisdiction of a justice's court. The ques-
tion is whether the sum total of the accounts
['] between the parties exceed $400 ; that is, as we
shall hereafter see, whether the balance of accounts
between the parties, after an application of all pay-
ments made by them, exceeded $400. This question is
to be determined by the findings of the referee (Fuller
v. Conde, 47 If. T. 89), which in this case state
specifically the claims of the respective parties, the
nature of the claims, and the payments made. It must
be held in mind that payments go in extinguishment
of the accounts, and that it is the balance unpaid after
an application of the payments which settles the ques-
tion of jurisdiction. In Crim v. Cronkhite (15 How. Pr.
260) the referee found that the plaintiff's claims
[•] as proved amounted to $260.90 ; that the defend-
ant's payments and counter-claim, as established
by the proof, amounted to $232.28 ; and that the pay-

314 CIVIL PROCEDURE REPORTS.

Bundick «. Hale.

merits included in the latter sum amounted to $95.86.
The recovery by the plaintiff being less than $50, it
was held that the defendant was entitled to costs. In

Matteson v. Bloomfield (10 Wend. 555), the sum
[f] total of the plaintiffs demands, as proved, was

$550.36. Payments were proved to have been
made reducing the balance remaining due to less than
$50. Costs to the plaintiff were refiised. In Mills v.
N. Y. C. P. (10 Wend. 557, note) the plaintiff's demands

were in the aggregate $521.60 ; the defendant's set-
[4] off, as claimed, was $143, and his payments $374.68.

The referee certified that the demand of the plaint-
iff, "as established at the trial, exceeded $400, which
was diminished more than $300 by divers payments."
The recovery was less than $50. Costs to the plaintiff
were refused. In this case Judge Nelson said, " The
debts, demands, and accounts of both parties in dispute,
between them did exceed $400. The accounts, as
exhibited, exceeded that sum, but payments were
shown on each side ; and as far forth as payments were
made, the account or demand of each of the parties
was extinguished." The learned judge added, in con-
clusion, "The payments mutually made cannot be
considered as debts, demands, or accounts within the
meaning of this statute ; and deducting them from the
accounts, the whole amount in controversy was less
than $100.' ' So in Lamonre v. Caryl (4 Denio, 370, 372)

it is said that when payments have been made,
[§J the balance only would constitute a claim, demand,

or account within the statute. The same rule of
construction is recognized in Puller v. Conde (47 N. Y.

89), and was there given application by the court.
[•] So it was held in this case (Fuller v. Conde), that

although the claims in suit exceeded $400, yet as
there was an extinguishment of them by payment to
an extent that left the balance less than $400 on the

CIVIL PROCEDURE REPORTS. 318

Bundick v. Hale.

plaintiffs recovery being $50, the defendant, and not
the plaintiffs, was entitled to costs.

Now let us apply the law so settled by repeated
decisions to the case in hand. The question is, did the

balance of the accounts between the parties, after
['] an allowance of the payments, exceed $400. Most

certainly it did not. This is clearly shown by
tabulating the items of the claims of the respective
parties, setting down in the table the items of payment
allowed by the referee. The case thus stands on the
facts as follows :

Deft, in account with pi' tfs firm. Cr. Dr.

Goods, etc. . . . $308.28

Cash advanced .... 166.70

473.98

By lumber, hides, etc.

$69.83

" Cash paid on account .

198.90

" Payt. July 19, 1878 .

175.00

" Payt. Dec. 13, 1878 .

20.00

Judgment for bal.

10.25

$473.98 $473.98
Now certainly here are three items of payments, to
wit, $198.90, $175.00, $20.00, aggregating $393.90. To
this extent, according to the cases cited, the plaintiff's
account, demand or claim was extinguished, and to
adopt the language of the court in Lamoure v. Caryl
(supra), "the balance only constituted the claim, de-
mand or account within the statute," to be consider-
[•] ed in determining the question of jurisdiction. The
balance in this case under this construction of the
law, was but $141.91 ; hence, it was a case within the
jurisdiction of a justice's court. It really makes no
difference whether the defendant's payments be applied
in extinguish nofent of the money advancements, or in
extinguishment of the items for goods, etc., sold and
delivered. If applied upon the demand, for money ad-

316 CIVIL PROCEDURE REPORTS.

Bundick v. Hale.

vanced, the payment extinguished that demand, and
left a balance of $228.20 to apply on the item for
goods, etc. If applied upon the demand for goods, etc.,
the payment extinguished that demand and left $85.62
to apply on the money advances. It comes to this, that
the payments by the defendants operated in extin-
f •] guishment of the plaintiff's pro tanto, and only the
balance of the accounts between the parties can be
taken into consideration in determining the question
of jurisdiction here presented. Make the extinguish-
ment by an application of the payment, and the bal-
ance of those accounts falls far short of $400. The case
was therefore within the jurisdiction of a justice's court.
I need not comment on the distinction which exists
and is to be observed, in cases like the present, between
payment and set-off. The fquestion here is as to the
effect of payments.

The referee awarded costs to the plaintiff. In this

he was in error ; indeed, he had no right to pass

["] upon that question (Puller v. Conde, 47 JV. Y. 89).

The right to costs is declared by statute, and is

absolute on the facts found to exist.

I am of the opinion, therefore, that the order ap-
pealed from should be reversed ; and that the motion
made by the defendant should be granted. This will,
in effect, also reverse that part of the judgment ap-
pealed from. The defendant should have $10 costs of
appeal and disbursements for printing ; and also $10
costs of motion at special term.

CIVIL PROCEDURE REPORTS. 31?

Masterson t>. Mayor, Ac. of N. Y.

MASTERSON v. THE MAYOR, ALDERMEN AND
COMMONALTY OP THE CITY OF NEW YORK.

Supreme Court, First Department, Special Term,
January, 1884.

§ 531.

BUI of particulars — When right to, last by laches.

When a motion for a bill of particulars of plaintiffs claim in an
action against a municipal corporation to recover damages resulting
from a breach of contract was made after the case was on the day
calendar of the court, and it appeared that the defendant had the
deposition of plaintiff's foreman taken before its comptroller prior
to the commencement of the action, to which was annexed a
schedule setting forth the particulars sought, — Held, that the
motion should be denied ; that the defendant ought not to be per-
mitted on the eve of the trial to embarrass the plaintiff by such a
motion.

(Decided January 12, 1884.)

Motion by defendants for a bill of particulars of
plaintiff's claim.

This action was brought to recover damages for the
alleged breach of a contract made between the plaintiff
and the defendants for the construction of a certain
sewer in Tenth avenue between eighty-third and ninety-
second streets in the city of New York.

The complaint alleges that one of the conditions of
the agreement was that no other contracts should be
entered into by the defendant with any other parties
upon the line of this work which should increase the
amount of labor contracted to be rendered, or which

818 CIVIL PROCEDURE REPORTS.

Masteroon 0. Mayor, &c. of N. T.

should interfere with or obstruct the plaintiff in the
prosecution and completion of his contract with the
defendant within the time limited and agreed ; that
during the pendency of his contract the defendant by
its commissioner of public works executed and deliv-
ered a second contract for work in the same part of the
city to one James Baird ; that the said Baird under his
said contract so executed his work as to impede and
interfere with the work of the plaintiff under his said
contract with the defendant ; that, in consequence of
this second contract to said Baird, the plaintiff was put
to great expense in excess of any expense comtemplat-
ed in his said contract for necessary bailing and pump-
ing of water out of his excavations, for drilling and
blasting rock under water, and by reason of the break-
ing down of the banks of the excavations made by said
plaintiff; that by reason thereof the plaintiff was com-
pelled to pay and did pay for the completion of the
work specified in his contract and for the obstructions,
as aforesaid, other than in the way of its completion,
sums to the amount of $15,000, for which sum he
demands judgment.

Issue was joined ; the case noticed for trial and
placed upon the general calendar, and on December
10, 1883, it was reached in its order on the calendar ;
and was adjourned to December 11, and on that day
again adjourned. December 25, 1883, defendant de-
manded a bill of particulars, and on January 4,
1884, and before the cause was again reached for trial,
procured an order that the plaintiff show cause why he
shpuld not serve a bill of particulars and staying his
proceedings in the meantime, on which this motion
arises.

On the motion it appeared by affidavit that prior
to the commencement of the action the comptroller of
the city of New York had examined plaintiff's foreman,
to whose deposition there was attached a statement

CIVIL PROCEDURE REPORTS. 31*

Mershon v. Leonard Scott Publishing Co.

showing the amounts paid oat on said contract for
material and labor on each day during the prosecution
thereof, and also that during the prosecution of the
work it was inspected by surveyors and inspectors in
the employ of the defendants.

George P. Andrews, counsel to the corporation, for
the motion.

Horace Barnard, opposed.

Barrett, J. — Considering that the defendants have
the plaintiffs deposition taken before the comptroller,
with the schedule among the papers, and considering
that they rested on the information thus obtained and
stfffered the case to proceed without asking a bill of
particulars, they ought not to be permitted, upon the
eve of the trial, to embarrass the plaintiff by a motion
of this kind.

Motion denied, $10 costs to abide the event.

MERSHON et al. t>. LEONARD SCOTT PUBLISH-
ING COMPANY.

City Court of New York, Special Term, Decem-
ber, 1883.

§§ 636, 3169.

Attachment—when cannot be Ueued out of city court of New York against
domestic corporation.

An attachment cannot bo issued out of the city court of New York
against a domestic corporation, on the ground that it has removed
ox disposed of its property with intent to cheat and defraud its
creditors.

{Decided December 18, 1883.)

320 CIVIL PROCEDURE REPORTS.

Mention v. Leonard Scott Publishing Go.

Motion by defendant to vacate an attachment issned
against its property.

An attachment was issned against the property of
the defendant, which is a domestic corporation, on the
ground that it had disposed of its property with intent
to cheat and defrand its creditors. ,

William P. S. Melvin, for motion.

Henry F. Anderson, opposed.

McAdam, J. — The question presented for decision
is whether an attachment can lawfully issue out of
this court against a domestic corporation having its
principal place of business within the city of Nfew
York, on the ground that the corporation has removed
or disposed of its property with intent to cheat and
defraud its creditors. The language of section 636 of
the Code, applicable to the superior courts of record,
clearly comprehends such a case. But that section, in
its application to this court, is so limited by section
3169 as to exclude from this court jurisdiction in a
case like the present. If this be not so, there is
neither force nor meaning in the limitation which sec*
tion 3160 imposes. The language of section 636 is
clear, and if it was intended to give the city court
similar power to that embraced therein, it may well be
asked what section 3169 was intended for. That section
either excludes this case from the jurisdiction of this
court, or the legislative intent has been so obscured by
inapt language that effect cannot be given to it without
assuming jurisdiction of a doubtful character. It fol-
lows that the attachment must be vacated, but with-
out costs.

CIVIL PROCEDURE REPORTS. V ^ 331

I v v

Lee v. Lee.

LEE v. LEE.

Superior Court of the City of New York,
Special Term, December 1883.

§ 1769.

Alimony — Court may grant w\fe, in action by kueband to annul marriage.

In an action by a husband to annul his marriage on the ground that it
was induced by fraud and duress, the court may grant the wife
alimony and counsel fee.*

The allowance of alimony in an action for divorce, separation, or to
annul a marriage, does not depend wholly upon the statute, but
upon the practice of the court as it existed prior to the enactment
of the Revised Statutes.

North *. North (1 Barb. Chan. 241), Brinkley e. Brinkley (50 N. Y.
190), followed.

{Decided December 81, 1883).

Motion by defendant for alimony and counsel fee
in action to annul marriage.

The plaintiff, Henry Lee, brought this action to
have his marriage with the defendant annulled, on the
ground that he was induced to marry her by fraud
and duress, and while under arrest upon a charge that
he had seduced the defendant under promise to marry.
He alleges that he married her to procure his release
from imprisonment, and that they have never lived
together as husband and wife.

* See Ramsden v. Bamsden, 2 27. T. Civ, Pro. 416; Collins v.
Collins, 80 N. T. 1; 8. C, 71 N. T. 280; Kinzey v. Kinzey, 7 Daly,
460; Allen v. Allen, 50 Sow. Pr. 27; S. C, 8 Abb. N. C. 175; Blood-
good t>. Bloodgood, 59 How. Pr. 42. .
Vol. IV.— 21 .

82* CIVIL PROCEDURE "REPORTS.

Lee*. Lee.
•7. C. J. Langbein, for the motion.
Rvfu* F. Andrews j opposed.

Truax, J.— Title one of chapter 15 of the Code of
Civil Procedure is substantially the same as articles
1, 2, 3, 4, and 5 of title one, chapter 8, part 2 of the
Revised Statutes.* Alimony and counsel fee were
allowed the wife in an action to annul a marriage
where the action was brought by the husband while
these portions of the Revised Statutes were in force.

In North t>. North (1 Barb. Chan. 241), the Chan-
cellor said: "The provision of the Revised Statutes
on the subject of allowance to the wife to enable her to
carry on the suit, is confined to suits brought for a
divorce or a separation, and does not in terms extend
to the allowance of ad interim alimony even in these
cases. But the allowance does not depend wholly
upon the statute, but upon the practice of the court
as it existed prior to the enactment of the Revised
Statutes." This case was cited with approval by the
court of appeals in Griffin v. Griffin (47 H. Y. 131), and
Brinkley v. Brinkley (50 N. T. 190).

In the last case the principle upon which alimony
and counsel fee wert allowed was stated as follows :
" When an actual marital relation has been admitted
or shown, and its existence is sought to be avoided by
some fact set up by the husband, and it devolves upon
him to show that fact, alimony will be granted until
that fact is shown."

Alimony at $5 a week, and a counsel fee of $25 is
allowed.

'♦2 R 8. 142, et $eq.

CIVIL PROCEDURE REPORTS, 323

c :

Hagerty v. Andrews.

HAGERTY and another, Appellants, t>.
ANDREWS bt al., Respondents.

Coubt op Appeals, November, 1888.

§§ 546, 1643.

PartUion.—When defendant mutt litigate title in action for. —Irrelevant
and redundant matter, — Propriety of making moving patty *
defendant cannot be determined on motion to strike out allega-
tion* in complaint referring to him.— What it irrelevant
and redundant matter in pleading.

In an action for partition, it seem* that defendants claiming an
interest in or lien upon the premises sought to be partitioned will
be obliged to litigate the validity thereof with a co-defendant who,
under section 1548 of the Code of Civil Procedure, controverts their
interest or lien, notwithstanding all the allegations in the com-
plaint relating to their interest in the premises has been struck on6
by order of the court [l]

Where a pleading contains the semblance of a cause of action or
defense, its sufficiency cannot be determined upon a motion to
strike it out as irrelevant or redundant. [*] The question as to the
sofficHmcy of a pleading in stating a cause of action or defense
against a party, or as to his liability upon a given state of facts,
cam properly be raised only by a demurrer to such pleading. [•, *]

On a motion to strike out the allegations of a complaint referring to.
the interest of a defendant, as irrelevant and redundant, the ques-
tion whether he was property made a party defendant cannot be
raised or determined. [■]

The power of the court to expunge matter from a pleading, upon
motion, for irrelevancy refers to such matter as is irrelevant to the
cause of action or defense attempted to be stated in the pleading
against the party moving to expunge, and does not enable a party
to strike out allegations relating to himself because they are irrel-
evant to an alleged cause of action against some other party.

(Decided December 4, 1883.)

Appeal from an order of the general term of the
city court of Brooklyn, affirming an order of the
special term of said court, striking out part of the
complaint, &c, as irrelevant and redundant

324 CIVIL PROCEDURE REPORTS.

Hagerty ». Andrews.

The action is brought to obtain partition of certain
lands in the city of Brooklyn* It is alleged in the com*
plaint that the defendants, Benjamin Andrews and
William A. Husted, respectively, claim to have cer-
tain liens upon the said premises by virtue of owning
and holding certain certificates of sale thereof, which
were made for the non-payment of certain taxes and
water rates, and are described therein, that the plaint-
iffs are ignorant o'f the validity of said claim, because
of the want of sufficient record evidence, that the said
sales and the proceedings thereon were regular accord-
ing to law in such cases made and provided. The
judgment demands that the right, share, interest or
lien of the plaintiffs, and each of the defendants, to
the said premises be ascertained, declared and deter-
mined, and for partition and division, etc. The
defendants, George M. Nichols and wife, answered,
alleging that the liens of Andrews and Hasted are
each null and void, a copy of which answer was served
on the attorney for said defendants. A motion was
made by the defendants, Andrews and Hosted, upon
notice to strike out all the allegations of the complaint
relating to the certificates of sale, held by the defend-
ants, Andrews and Husted, and also striking out all
the allegations of Nichols and wife, relating to the
same, upon the grounds that all said allegations were
irrelevant, the said certificates not being liens upon,
or constituting an interest in the land, and the validity
thereof not triable in an action of partition. The
special term granted the motion. The plaintiff appealed
to the general term, which, being divided, the order of

the special term was affirmed.

< John T. Barnard, for appellants.
John Andrews, for respondents, j

CIVIL PROCEDURE REPORTS. 325

Hagerty «. Andrews.

Ruger, Ch. J. — The question attempted to be raised
by the respondents in this proceeding was, whether
upon the facts stated in the complaint, they were
properly made parties defendant in this action.

The objection went to the entire cause of action, as
stated against them, and the necessary effect of a
decision in their favor, was to leave them in as parties
to the action, but with nothing in the pleadings to
indicate their connection with the subject matter,
except the allegations in the answer of their co-defend-
ants, George M. Nichols and Mary Jane, his wife,
alleging the invalidity of their liens.

It may well be doubted, even if the order appealed
from should be allowed to stand, whether the respond-
ents have secured any exemption from their
['] responsibility as defendants in the action. It is
quite clear that under section 1543 of the Code of
Civil Procedure, they would still be obliged to litigate
with their co-defendants, the Nichols, the validity of
their liens upon the premises sought to be partitioned,
notwithstanding all the allegations in the complaint
relating to their interest in the premises had been
struck out by order of the court. But it is quite
evident that the question as to whether a person
[■] has been properly made a party defendant in an
action cannot be raised upon a motion to strike out
the allegations in the complaint referring to his
interest in such action. The Code authorizes the party
aggrieved thereby to move to strike out irrelevant,
redundant or scandalous matter contained in a plead-
ing ; but it is a new application of the privileges con-
ferred by this provision to move to strike out a plead-
ing because it does not state a good cause of action
against the moving party. Questions as to the sufficiency
of a pleading in stating a cause of action or defense
against a party, or as to his liability upon a given state
of facts, can properly be raised only by a demurrer to

886 CIVIL PROCEDURE REPORTS.

Hagerty 9. Aadrtwi.

such pleadings. When the pleading contains the
[•] semblance of a cause of action or defense, its

sufficiency cannot be determined upon a motion to
strike it out as irrelevant or redundant (Walter v.
Fowler, 86 N. T. 621).

It cannot be claimed that the portions of the com-
plaint which were struck out by the order appealed
from, were either scandalous or redundant, and it
follows that if they are struck out at all, it must be
upon the ground that they are irrelevant It would
be confounding the remedies provided by the several
sections of the Code to hold that the motion to strike

out matter from a pleading was applicable to a
[*] case where there was an absence of allegations of

fact sufficient to constitute a cause of action or
defense.

The power given to a court to expunge matter from

a pleading upon motion for irrelevancy, refers to
[*] such matter as is irrelevant to the cause of action

or defense attempted to be stated in the pleading
against the party moving to expunge ; and does not
enable a party to strike out allegations relating to
himself, because they are irrelevant to an alleged cause
of action against some other party. We are therefore
of the opinion that this appeal does not bring up the
question attempted to be raised, and which was argued
before us ; and that we cannot properly pass upon that
point.

The orders of the general and special terms must
therefore be reversed, with costs in both courts to the
appellants.

► All oonour. /

CIVIL PROCEDURE REPORTS. 837

Neery «, UcGnadle.

NEELY bt ai,. v. MoGRANDLE and and.

City Coukt of New York, Special Teem, Decem-
ber, 1883.

§§ 338, 641.

Attachment— Cannot be timed out of city court of NeSo York to sheriff of
any county other than Now York.

The city court of New York has no power to issue an attachment to

the sheriff of any county other than New York.
(Decided December 18, 1888.)

Ex parte application by plaintiffs for an attachment
against the property of the defendants directed to the
sheriff of Kings county.

The action was brought to recover a balance alleged
to be due the plaintiffs for merchandise sold and de-
livered by them to the defendants. It appeared by
affidavit that the defendants were copartners doing
business as such in the city of Brooklyn, and that one
of them was a non-resident of the state residing in Jer-
sey City, N. J.

William G. Davidson, for plaintiffs.

Mo Adam, J. — This court has no power to issue an
attachment to the sheriff of another county. The pro-
visions of section 641 of the Code are limited in their
application to this court by the language of section 338,
which enumerates the writs issuing out of the city
oourt which may be executed in other counties. So
limited, there is no power in this court to grant the
attachment applied for. Application denied.

388 CIVIL PROCEDURE REPORTS

Brigga v. Taylor.

BRIGGS v. TAYLOR.

N. Y. Court of Common Pleas, Special Term,
January, 1884.

§§870,872.

Examination of party before trial— Where party may be examined at his
own instance before trial.

The deposition of a party may be taken at his own instance at any
time before trial as prescribed in Chapter 9, Title 3, Article 1 of the
Code of Civil Procedure.

Where a plaintiff applied for his own1 examination, before trial on affi-
davits setting forth the particulars required by subdivisions 1, 2, 3
and 4 of section 872 of the Code, and facts showing that his testi-
mony would be material and necessary on the trial of the action and
alleging that he was about to depart from the state on business and
would probably be absent at the time the case would be called for
trial ; Held, that his motion should be granted, notwithstanding
that subdivision 5 of section 872 of the Code, excepts parties to the
action from examination before trial when the sole ground for such
examination is that such party is about to leave the state or is so
sick or infirm as to render it probable that he will not be able to
attend the trial.

(Decided January 28, 1884.)

Motion that an order for the examination of a party
before trial, at his own instance, be vacated.

An order for the examination of the plaintiff was
granted January 21, 1884, on affiavits which showed
that the action was pending, and had not been tried;
the names of the parties with their residences ; that
they had all appeared ; the names and office addresses
of the attorneys by whom they appeared, the nature
of the action and the substance of the judgment de-
manded ; that the defendant had answered and the
nature of his defense ; the name and residence of the

CIVIL PROCEDURE REPORTS. 829

Briggs v. Taylor.

person to be examined ; that his testimony was mate-
rial and necessary to plaintiff and the facts intended
to be established by the testimony of the plaintiff from
which it was evident that the testimony was material
and necessary.

It was also alleged in said affidavits that the
"plaintiff is about to depart from the state for the
purpose of going to Billings in the territory of Mon-
tana, where said plaintiff is engaged in business which
will require his attendance until November or Decern*
ber, 1884, and said plaintiff intends leaving the state of
New York on or before the 28th day of January inst.,
and this action is now upon the day calendar of Part
II. of this court and as deponent is informed and
believes cannot be tried before the departure of said
plaintiff."

B. F. Tracy {Joseph W. Carroll, attorney), for de-
fendant and motion, cited: Preston v. Hencken, 9
Abb. N. C. 68.

Has sell Benedict, for plaintiff, opposed.

J. P. Daly, J.— Section 872, subdivision 5, of the
Code excepts parties to the action from examination
before trial when the sole ground for such examination
is that such party is about to leave the state or is so
sick or infirm as to render it probable that he will not
be able to attend the trial. The Code was amended in
1878, however (section 870), by enacting generally, that
the deposition of a party might be taken at his own
instance at any time before the trial as prescribed in
the article, of which 870 and 872 form a part. This
amendment was rendered necessary by the discovery
that under the new Code, there was no provision for
perpetuating a party's testimony (Montague v. Wors-
tell, 55 How. Pr. 406, see also note, Id. 525).

Motion granted for examination.

830 CIVIL PROCEDURE REPORTS.

Andrews*. Keeae.

ANDREWS, Appellant, v. KEENE, Impleaded,
etc., Respondent.

Supreme Court, First Department, General
Term, October, 1888.

§ 870.

ExaminatUm of party before trial not aUotoed in actum* on tort.

An order for the examination of a party before trial, in an action on
tort, where the object of the examination ia to procure evidence to
establish charges of fraud, deceit and fraudulent conspiracy upon
which the action rests, will be vacated, f1]

Yamato Trading Co. e. Brown (25 Hun, 248), followed; [»] Canada
Steamship Co. v. Sinclair (3 if. T. Civ. Pro. 285), distinguished. [*]

{Bedded December 21, 1888.)

Appeal from an order vacating an order for the
examination of the defendant Keene before trial.

The affidavit on which the order was granted, and
the complaint show that the action is for the recovery
of a sum of money alleged to have been obtained from
the plaintiff as the price of certain mining stocks, on
the ground that the defendants conspired together to
defraud purchasers by means of false representations of
matters of fact affecting the value of the property of the
companies and their financial condition. The affidavit
makes the following statement as to the necessity and
materiality of the testimony sought to be obtained from
the defendant : " The plaintiff cannot safely proceed
to trial until he has examined the defendant Keene, as
to his part in said transactions, and as to his relations
to the other defendants, and his knowledge of what
the representations made by the other defendants were^
and his knowledge of the truth thereof, and as to what
share or portion of the moneys paid by plaintiff he
received. The testimony of said defendant Keens is

CIVIL * PROCEDURE REPORTS. 881

Andrews t>. Keene.

material and necessary to the plaintiff herein for the
purpose of prosecuting this action, and for the purpose
of proving and establishing the allegations of the com-
plaint upon the trial of this action. The books, papers
and vouchers and receipts of said defendant Keene,
containing the record of his dealings and transactions
in relation to the matters in suit above set forth, and
showing the amounts received by him from the other
defendants on account of subscriptions to the capital
stock of said company are necessary upon said examina-
tion to show the said transactions in detail, and for a
complete examination of said defendant Keene."

Harry Wilder, for appellant

When this action is tried, if the defendant Keene
is called, he can assert his privilege as a witness. So
he could in any other action, whether in tort or on con
tract If sued on a note, he might deem that an
answer would subject him to indictment for perjury or
forgery, or fraud. Having asserted his privilege, it
would be for the oourt to sustain it or disallow it
(Abbott's Trial Evidence, 620 ; Fellows t>. Wilson, 81
Barb. 162 ; People t>. Mather, 4 Wend. 229) ....
The question may be put, and must be answered, unless
the court, after it is put, finds that it may criminate
(Abbott Tr. JSv. 620 ; Fellows t>. Wilson, ewpra). In this
case we have a right to have the ruling after the ques-
tion is asked ; the court cannot in advance tell what
the question will be.

In Yamato Trading Co. v. Brown (27 Hun, 250),
and also in the oases there cited, the decision was put
upon the ground that fraud personal to the witness
was the gist and entire substance of the action (see
also Kenney v. Roberts, 26 Him, 169).

WHliam O. Choate (Shipman, Barlow, Larocque
A Choate, attorneys), for respondent

832 CIVIL PROCEDURE REPORTS.

Andrews 9. Keene.

Where it clearly appears upon the papers that the
purpose of the proposed examination is to elicit tes-
timony to be nsed in proof of a criminal offense, the
order for the examination should be vacated on the
ground that such testimony is not material and neces-
sary within the meaning of the statute, inasmuch as it
cannot, if taken, be used against the defendant's objec-
tion that it would tend to criminate him (Yamato
Trading Co. t>. Brown, 27 Hun^ 248; Corbett v.
De Comeau, 5 Abb. N. C. 169 ; Kenney v. Roberts, 26
Hun, 166 ; Burbank v. Reed, 11 N. Y. Weekly Dig. 576>

Brady, J. — This action is one which, under the old
system, would be embraced within those designated as
actions on tort, and rests upon charges of fraud and
deceit for the purpose of obtaining money. The first
allegation in the complaint is that the defendants and
others unknown to the plaintiff, for the purpose of
obtaining money by fraud and deceit, on or about a
certain day, procured the organization of two com-
panies ; and it is further charged, that in pursuance
of such fraudulent and deceitful purpose the defend-
ants did certain things particularly set out; and
further, that the money received from the plaintiff was
received in pursuance of the purpose for which the
company was organized and the representations made
The action is, therefore, one which rests entirely upon
oharges of fraud, deceit and fraudulent conspiracy.
It seems to be well settled that in such an action an
order for the examination of the party will be
['] vacated when the object of it is to procure tes-
timony to establish the fraud charged. This
doctrine rests upon the provisions of the constitution
of this state, which declares that no person shall be
compelled, in any criminal case, to be a witness against
himself.

Yamato Trading Co. v. Brown (decided in this

CIVIL PROCEDURE REPORTS. 333

~.l l i ill ■ .1 ■ i i i ... i. — ■■ ll i w

Andrews v. Keene.

department and reported in 25 Hun, 248) is in point
upon the question involved upon this appeal, in
[f] which it was decided that when the object of the
examination, as already suggested, is to show by
the testimony of the party that he procured property
from the plaintiff by means of false and fraudulent
representations the order for his examination should
be vacated (see also Kenney v. Roberts, 26 Hun, 166 ;
Corbett v. J)e Comeau, 5 Abb. N. C. 169 ; Burbank v.
Reed, 11 N. T. Weekly Dig. 576).

The case of the Canada Steamship Co. v. Sinclair
(reported in 3 N. Y. Civ. Pro. 285), is not in con-
['] flict with the cases referred to. But if it were, it
would not be regarded as overruling (being a special
term case) the decision of the general term of this
department. That case, however, is distinguishable
from this, in that it was commenced to recover pro-
perty or its value, and the object of the examination
was to show how much of the property which was stolen
from the plaintiffs came into the possession of the
defendant.

The court held that the possession of the goods is
not of itself a crime. It was necessary if they were
bought by the defendants to show that they were pur-
chased with a knowledge of their being stolen. If the
proposition was recognized as it should have been, that
if it appeared that the testimony which the party
sought related exclusively to frauds which amounted
to a crime, the order could not be maintained.

For these reasons the order appealed from was
properly made, and should be sustained.

The judgment of the court is therefore, that the
order appealed be affirmed, with $10 costs and
disbursements.

Davis, P. J., and Daniels, J., concurred.

•34 CIVIL PROCEDURE REPORTS.

Grow 9. SnelL

GROW, Respondent v. SNELL, Impleaded, etc.,
Appellant.

Supreme Court, Fourth Department, General
Term, January, 1883.

§§ 1327, 1331.

Court cannot decide abstract question of law disconnected from granting
of relief— What undertaking* will stay the execution of
a judgment of foreclosure and tale in an action to
foreclose a mortgage pending appeal therefrom.

It is not the province of courts to decide abstract questions of law
disconnected from the granting of actual relief. [•] Such decisions
would bind no one. [']

Where, in an action to foreclose a mortgage, the defendant upon
appeal to the general term, from a judgment of foreclosure and sale,
gave an undertaking, uoder the first sentence of section 1381 of
the Code of Civil Procedure, to provide against waste, and for the
payment of the value of the use and occupation of the premises, and
on appeal to the cour^ of appeals did not give another such under-
taking, but did give an undertaking, as required by section 1326 of
the Code to perfect the%ppeal, which also provided that if the judg-
ment or any part tbereW was affirmed or the appeal dismissed the
appellants would pay the\ sum directed to be paid by the judgment
or the part thereof affirmdjL and the appellant applied to the special
term to declare the proceedings of the plaintiff stayed until the
determination of the appeal $y the undertakings already given or to
declare them stayed upon the execution of an undertaking as *
required by the first sentence of section 1331 of tog Code, and also to
declare that the giving of an undertaking under that part of said
section was sufficient to stay proceedings and an order was entered
in terms denying the motions but directing that the plaintiff1!
proceedings be stayed during the pendency of the appeal upon the
giving of an undertaking as required by the latter part of section
1331 of the Code. Held, that the case was not one resting in the
discretion of the court; [!, *] that the statute prescribes what shall
effect a stay, and if the undertakings given by the appellants were
such as the statute required to be given for that purpose the appel-

\ CIVIL PROCEDURE REPORTS. SSB

I : "

Grow *. 8f»U. .

lant seeded no order and if they were not, no order assuming to stay
proceedings could aid them; ['] Also Bdd, that it nmu that the
giving of an undertaking under the second sentence of section 1881
of the Oode was not necessary to a stay in this case, [4] and that the
appellant had an election either to give an undertaking to pay
any deficiency or to give one conditioned against waste and to pay
for use and occupation. [4]

It mom* that an undertaking given on appeal from a judgment of
foreclosure and sale in form as prescribed by section 1827 of the
Code of Civil Procedure, providing that if the judgment appealed
from is affirmed the appellant will pay the sum recovered or
directed by it to be paid, will not cover any deficiency arising on
the sale of mortgaged premises ; [*] that section applies only to
decrees, absolutely requiring the payment of a sum fixed, or that
might be ascertained by computation. [•]

(Ikcided April, im.)

i Appeal from an order of the Jefferson county
special term.

The facts are stated in the opinion.
Wayland F. Fordy tor appellant.

P. C. Williams, for respondent.

Smith, P. J. — The order appealed from was made
upon an application of a somewhat nnnsnal character.
The defendants, Snell and Horace Garlock appealed to
the court of appeals from a judgment of this court
affirming a judgment of the special term which '*
directed a foreclosure and sale of mortgaged real
estate, and required the payment of any deficiency
that there might be and costs. They gave an under-
taking as required by section 1826 of the code to per-
fect the appeal. The undertaking also provided, pur-
suant to seotion 1327, that if the judgment or any part
thereof should be affirmed, or the appeal dismissed,
the appellants would pay the sum directed to be paid
by the judgment or the part thereof affirmed. On the

Z39 CIVIL PROCEDURE REPORTS.,

Grow 0. SnelL

appeal to the general term, they had given an under-
taking providing against waste, and for the payment
of the valae of the use and occupation of the premises
as required by the first sentence of section 1331, but no
undertaking to that effect was given on the appeal to
the court of appeals. Upon this state of facts the
appellants applied to the 'special term to declare the
proceedings of the plaintiff stayed until the determi-
nation of the appeal, by the undertakings given, or to
declare them stayed upon the execution of an under-
taking as required by the first part of section 1331, and
also to declare that the giving of an undertaking under
the first part of that section is sufficient to stay pro-
ceedings. In other words, the appellants did not ask
the special term to direct, permit or prohibit the
doing or undoing of any act, but merely to say whether
the undertakings given had worked a stay, or whether
that result would follow in case a certain other under-
taking were given.

The case is not one resting on the discretion of
['] the court. The statute prescribes what shall effect

a stay. If the undertakings given by the appel-
lants were such as the statute required to be given
for that purpose the appellants needed no order ; if
they were not, no order assuming to stay proceedings
could aid them.

Cases are numerous in which the court or a judge
thereof may grant a stay on terms, or otherwise, as

matter of discretion, but this is not such a case.
[*] And the appellants did not apply for that relief.

They did not ask that the court direct a stay, but
they asked that the court declare that what the appel-
lants had done, or what they suggested they might do,
was, or would be, sufficient to effect a stay. They did
not even state their readiness or ability to give the
undertaking suggested by them ; but as has been said,
their so-called motion was merely a request that the

CIVIL PROCEDURE REPORTS. ?37

Grow o. Snell.

court would inform them upon an abstract question of
practice. There are two ways in which the questions
argued by counsel might have been presented for
adjudication. If, after the undertakings already filed
were put in, the respondent had proceeded to enforce
his judgment, the appellants might have moved to set
aside such proceedings as irregular ; or, if the appel-
lants had omitted to file the requisite undertaking,
they might have applied for leave to file the same, on
terms, on excusing their default. It is not the pro-

•vince of courts to decide abstract questions of law

f] disconnected from the granting of actual relief

(People ex rel. Geer v. Common Council of City of

Troy, 82 N. Y. 575). Such decisions would bind no one.

The order of the special term purported to deny the
motion, except that it directed the plaintiffs proceed-
ings stayed during the pendency of the appeal on the
appellants giving an undertaking as required by the
latter part of section 1331 of the Code. The first part
of the order was equivalent to an expression of the
opinion that the giving of the particular undertaking
therein described was necessary to effect a stay, and
inasmuch as, if the opinion was correct, the giving of
such undertaking would have worked a stay, proprio
vigore, the remainder of the order was superfluous and
of no effect. Upon this ground the entire order might
properly be reversed.

But as the parties may be saved a repetition of
motions by an expression of our views upon the ques-
tions which they have argued upon this appeal, we pro-
ceed to consider them.

We do not concur in the opinion of the learned
judge at special term, that the giving of an undertaking
a under the second sentence of section 1331 is neces-
[4J sary to a stay in this case. That part of the sec-
tion (which was adopted as an amendment in 1879)
had the effect, as we understand it, to give to an appel-

Vol. IV.— 22

338 CIVIL PROCEDURE REPORTS.

Grow v. Snell.

lant from a judgment directing a sale of mortgaged
premises, his election to give the undertaking therein
prescribed, the condition of which is to pay any
deficiency, or to give one under the first clause of the
section, conditioned against waste, and to pay for use
and occupation. Prior to the amendment of 1879, he
was required to do both, and from that burden he is
now relieved. The amendment evidently was adopted
upon the idea that if the plaintiff is secured against
any deficiency, there is no occasion for indemnifying
him against waste or loss of the value of the use ; and
on the other hand, if the consequences of waste, and
the value of the use, are made up to the plaintiff, the
appellant shall not be required to make good any
deficiency. It is true that in this view of the statute
an appellant may stay the plaintiff's proceedings with-
out providing against a deficiency arising from accumu-
lation of interest, depreciation in the market value of
the mortgaged premises, or damage or destruction of
buildings by fire ; but if there is an omission in this
respect, it can only be remedied by the legislature.

We do not concur in the opinion of the judge at
special term, that section 1331, as amended, contem-
plates two distinct classes of cases, and provides a
separate undertaking for each. It is clear that prior
to the amendment of 1879 the section related to but one
class of cases, to wit, an appeal from a judgment
" entitling the respondent to the immediate possession
of real property, or from a judgment or order, directing
the sale or the delivery of possession of real property."
It was a substitute for section 338 of the old Code,
which was limited to an appeal from a judgment
" directing the sale or delivery of possession of real
property." Of that class is a judgment for the sale of
mortgaged premises, and it was so treated in the old
section and the new. The present section, as amended,
does not treat it otherwise ; it simply makes it an

CIVIL PROCEDURE REPORTS. 339

Grow «. Snell.

exception to the class by providing that instead of the
undertaking specified in the first part of the section
which is still applicable to the entire class, including
judgments for the sale of mortgaged premises, it shall
be sufficient to give an undertaking prescribed by the
amendment. It is not made obligatory to do so.

The suggestion that an undertaking in the form pre-
scribed by section 1827 would cover any deficiency
arising on the sale of the mortgaged premises is
[*] unfounded. That section is substantially like sec-
tion 82 (2 R. S. 606) respecting appeals from orders
or decrees of the court of chancery, directing the pay-
ment of money. The construction given to that section
in several reported cases, is adverse to the view
[*] suggested. It is to the effect that the section
applied only to decrees absolutely requiring the
payment of a sum fixed, or that might be ascertained
by computation (see The City Bank v. Bangs, 4 Paige,
285 ; Quackenbush v. Leonard, 10 Id. 131 ; Wright v.
Miller, 3 Barb. Ch. 382 ; see also Curtis v. Blatchford,
10 How. Pr. 481), in which the cases above mentioned
are relied upon in giving a similar construction to sec-
tion 836 of the Old Code.

Order reversed without costs to either party.

Hardin and Bookbs, JJ., concurred.

340 CIVIL PROCEDURE REPORTS.

Lawrence t. Pox well.

BENJAMIN LAWRENCE, et al., Appellants, v.
CHARLES FOXWELL, Respondent.

Superior Court of New York; General Term,
May, 1883.

§ 549.

Pleading. — Action to enforce liability fraudulently contracted. —
| 549, $ub. 4.

It is not the intention of the Code to permit judgment for fraud io
an action under sub-division 4 of section 549, upon the general
allegation that there was fraud; and where the complaint, after
duly setting forth a cause of action on contract, states <( that the
defendant was guilty of a fraud in contracting and incurring
liability, in that," etc., and there are no averments of facts which
constitute fraud, such complaint may be dismissed on the trial,
upon the ground that it does not state facts sufficient to constitute
a cause of action.

A complaint which states that at the time of the purchase of the
goods by defendant, and to induce plaiatiffs to sell them to him on
credit, he stated that he had sold the same to another, etc. ; that,
relying upon this, plaintiffs made the sale; and that said goods had
not been so sold by defendant, etc., does not state a good cause o$
action for fraud, there being no allegation that the representations
were fraudulently made, or with knowledge that they were not
true, or with intent to defraud.

(Decided June 2, 1883.)

Appeal, by plain tiff from judgment entered upon
direction of judge at trial term that the complaint be
dismissed, upon the ground that it did not state facts
sufficient to constitute a cause of action.

The complaint, after duly stating a cause of action on
contract, proceeded: "That tbe defendant was guilty
of a fraud in contracting and incurring the liability, in
that, on or about the 26th day of October, 1881, he called
upon the plaintiffs, at their place of business in the city
of New York, and applied to the plaintiffs to purchase

CIVIL PROCEDURE REPORTS. 341

Lawrence t>. Foxwell.

from them twenty-five cases of paper ; and, to induce
said plaintiffs to sell him said goods on credit, stated
to said plaintiffs that he had sold the said paper, and
that he would pay for the same early in November, but
that the goods should be billed to him on thirty days'
credit, to enable him to collect from the party to whom
he had sold the same, and that the said goods should
be shipped by the New England Transportation Com-
pany to Boston, addressed to George C. Goodwin & Co.
• . . That plaintiffs relied solely upon the repre-
sentations of defendant, that he had sold the said paper
to George C. Goodwin & Co., and shipped the goods
as requested by the defendant, and billed the same at
the agreed price of nine dollars per case, payable in
thirty days. . . . That said goods were not in fact
sold to George C. Goodwin & Co., or any other person
or persons at the time said defendant so represented
and stated, but that subsequently the said defendant
sold thirteen of the said 25 cases to George C. Good-
win & Co., at eight dollars per case, and received the
money therefor on or about the 28th October, 1881.' "

Ellis S. Yates, for appellant.

The Code substituted for the averments requisite
under the common law practice, in complaints of
fraudulent representations under this section (549),
a mere bare allegation of fraud ; the section refers
not to the sufficiency of the pleading, but solely
to the maintaining of the order of arrest. The
remedy, if the complaint had not stated that the
defendant was guilty of a fraud in contracting or
incurring the liability, was not the dismissal of the
complaint, but simply the vacating the order of arrest.
The whole intent of adding subdivision 4 to section
549, by the amendment of 1879, was to have the allega-
tion of fraud made in the complaint instead of in an
affidavit, and tried as an issue in the action by the jury

342 CIVIL PROCEDURE REPORTS.

Lawrence v. Foxwell.

instead of by the court, and thus to change the method
of enforcing a remedy, not to take it away (Hecht t>.
Levy, 20 Huny 54). The cause of action for fraud was
sufficiently pleaded.

IT. F. Averill & W. T. B. Milliken, for respondent.

The action is in the nature of an action on the case,
with the contract as only one of its facts, and the
sufficiency of its pleading is to be determined by
demurrer or motion (Rowe v. Patterson, 48 Super. CL
219 ; Hecht v. Levy, 20 Hun, 64). Snbdivision 4 of
section 549 of the Code requires the plaintiff to bring
his action on the fraud, if he wishes an order of arrest,
and procuring an order of arrest concludes him as to
the nature of the action. In order to sustain his action
he must allege and prove the fraud as well as the con-
tract {Code Civil Procedure, §§ 549, 550). The complaint
should allege facts sufficient to constitute a cause of
action for deceit, or, in this case, for fraud in incurring
the liability sought to be enforced (Rowe v. Patterson,
48 Super. CL 249). This the complaint fails to do. The
allegation of the complaint is " that the defendant was
guilty of a fraud in contracting and incurring the
liability, in that," etc., limiting the general statement —
so that it is equivalent not even to a positive general
statement, but only to the averment that the facts
alleged constitute a fraud, etc.

Sedgwick, Ch. J. — The complaint began by suffi-
ciently stating a cause of action for goods sold and
delivered. It then proceeded, that the defendant was
guilty of a fraud in contracting and incurring the
liability, in that, in the bargaining for the sale, he did
and said certain things. It was not alleged that any
of his acts were fraudulently done. It alleged that
certain things he represented to exist did not exist,
but it was not alleged that any of his representations
were fraudulently made, or with knowledge that they

CIVIL PROCEDURE REPORTS. 343

i— ■ ■

Lawrence «. Fozwell.

were not true, or with intent to defraud the plaintiff.
The answer admitted the sale for the prioe alleged in
the complaint, bnt denied all the other allegations of
the complaint.

On the trial, before testimony given, the defendant
moved to dismiss the complaint ; and the ground was,
as I understand, that although the complaint averred
that the defendant was guilty of fraud in contracting
the indebtedness, no averments were made that facts
existed which constituted the fraud, and that in such
a case the plaintiff was not entitled to recover upon the
sufficient allegations as to the sale and delivery.

I do not think that it is necessary to argue that it
was not the intention of the Code to permit judgment
in such a case for fraud, upon the general allegation
that there was fraud. And it was clear that the com-
plaint did not make sufficient averments as to fraud.
The question that remains is, should the judge have
refused to dismiss the complaint, or should he have
retained it and given judgment for the breach of
contract?

It is evident that the plaintiff did not wish a mere
money judgment. The admissions of the answer
sufficed to give him that ; but when he brought the
case on for trial, his demand was not only for a judg-
ment of indebtedness on the part of the defendant, but
of guilty of the fraud.

The claim is not one consisting of two separable
parts, contract and fraud ; it is an entire claim, com-
prehending both. If fraud be sufficiently alleged, but
not proven, the plaintiff cannot fall back upon the
cause of action on contract ; he must go to another
action. Where is the substantial difference between
the case of untruly stating facts, the non-proving of a
part of which prevents judgment for plaintiff, and the
case of truly stating all that can be proved, but which,
as matter of law, does not constitute fraud? If, in a

344 CIVIL PROCEDITOE REPORTS.

Fogg «. Fkk.

case like this, a judge should hold that there were
sufficient allegations of fraud, there might be judgment
for plaintiff under subdivision 4 of section 549 which
would entitle the plaintiff to issue execution against
defendant's person under section 1487. If this were
held to be error, could the plaintiff retain the judgment
on the ground that it was sustained by sufficient allega-
tion of indebtedness that had been admitted by answer t
It is right to hold the party, who begins an action, on
the position that it is not one where he can obtain
judgment only on contract, to that position, until it is
ended, although, in one sense, the allegations as to the
contract are sufficient ; nevertheless, until, by a trial,
to the expense and trouble of which he put the defend-
ant, he was forced to abandon the claim so far as the
fraud was concerned, he never asserted that the action
was on contract pure and simple.

I therefore think that the judgment should be
affirmed, with costs.

Truax and 0' Gorman, JJ., concurred.

FOGG v. PISK.

U. S. Ciecitit Court, Southern District of Nxir
York, January, 1884.

§§ 870 et seq.9 881, 883.

EaaminaUon of party before trial. — Party cannot be escamined at instance

of advene party before trial in action in tf. 8. Circuit Court. Such

examination if begun in etate court prior to the removal of the

action to the U. 8. Circuit Court may be continued.—

Teetimony to obtained, tohen and how ueed\

It ia well settled in the second judicial circuit of the United States
that the provisions of the U. 8. Revised Statutes (| 914) for con-
forming the practice of the Federal courts in suits at common law

CIVIL PROCEDURE REPORTS. 346

Fogg 9. Fisk.

to that of the State courts, does not apply to the taking of testi-
mony, because the statutes of Congress cover the whole subject, f1]
These statutes not only do not provide for the examination of a
party as a witness for the adverse party before the trial, in actions at
law, but do not permit evidence thus obtained to be used upon the
trial as a substitute for the oral examination of the witness. [l]

"While a party cannot be examined as a witness before trial at the
instance of an adverse party in an action at common law, originally
brought in the U. S. Circuit Court, [f ] if such an examination had
been ordered, and was pending at the time of the removal of au
action from a State court to the U. S. circuit court under the Local
Prejudice Act (18 U. S. Stat, at Large, 470), which saves to both
parties the benefit of all proceedings taken in the action prior to its
removal, the examination should be proceeded with, unless for some
substantial reason the revisory power of the circuit court should
be exercised, p] Although the testimony so obtained cannot be
used on the trial of the action, in the circuit court, as a substitute
for the oral examination of the party, it can be as the declaration of
a party, [4] and it can also be used in other suits in tho courts of
this State between the same parties or their privies. [4]

(Decided January 25, 1884.)

Motion that the examination of the defendant as a
witness before trial began before the removal of the
action to the U. S. circuit court be continued.

This action was originally begun in the supreme
court of this State, and an order for the examination
of the defendant before trial was granted at the
instance of the plaintiff. A motion to vacate the order
was made at special term by the defendant, and it
being denied, he appealed to the general term. The
general term affirmed the order of the special term,
and the defendant took an appeal from the order there-
upon entered to the court of appeals, which dismissed
it (93 N. Y. 652). Thereafter, and before the examina-
tion of the defendant was completed, the cause was
removed to the U. S. circuit court upon the petition of
the defendant.

346 CIVIL PROCEDURE REPORTS.

Fogg v. Fisk.
John R. Dos PassoSj for the motion.
Wheeler H. Peckham, opposed.

Wallace, J. — At the time this suit was removed
froip the State court by the defendant, his examination
as a witness was pending under an order of that court
directing him to appear and be examined before the
trial, as a witness, at the instance of the plaintiff. By
the Code of Civil Procedure of this State, a deposition
thus taken may be read in evidence by either party at
the trial of the action, and also in any other action
brought between the same parties, or between parties
claiming under them or either of them (§ 881), and has
the same effect as though the party were orally
examined as a witness upon the trial (§ 883).

The plaintiff now moves for leave to proceed with
the examination of the defendant pursuant to that
order, and the defendant resists the application upon
the ground that the examination of a party before the
trial as a witness for the adverse party is not permitted
by the practice of this court.

It is well settled in this circuit* that section 914,
U. S. Rev. Statutes, for conforming the practice of the
Federal courts in suits at common law as near as may
be to that of the State courts, does not apply to
['] the taking of testimony, because the statutes of
Congress cover the whole subject, and these
statutes not only do not provide for the examination
of a party as a witness for the adverse party before the
trial in actions at law, but do not permit evidence thus
obtained to be used upon the trial as a substitute for
the oral examination of the witness (U. S. Rev. Slat.
§ 861; Beardsley v. Littell, 14 Blotch. 102; United
States v. Pings, 4 Fed. Rep. 714).

* The second judicial circuit of the United States, including the
districts of Vermont, Connecticut, and New York.

CIVIL PROCEDURE REPORTS. 347

Fogg v. Fisk.

If, therefore, this were an action originally brought
in this court, the plaintiff should not be permitted to

proceed with the examination of the defendant.
[■] But the removal act of 1875 * carefully saves to

both parties the benefit of all proceedings taken

in the action prior to its removal from the State court.

Section 4 f declares that when any suit is removed

from a State court to a circuit court of the United

States, all injunction orders and other proceedings
[*] had in such suit prior to its removal shall remain

in full force and effect until dissolved or modified
by the court to which such suit shall be removed. By
force of this provision the plaintiff is entitled to pro-
ceed with the defendant's examination, unless for some
substantial reason the revisory power of this court
should be exercised to deprive him of the benefit of
the order he has obtained and the proceeding he has
instituted. It lies with the defendant therefore to
present some controlling reason to the judicial dis-
cretion for denying to the plaintiff the right which he
had secured, and of which he could not be deprived
except by a removal of the suit.

That both parties have deemed this proceeding an
important one is obvious from the tenacity with which

* Act of Congress passed March 3, 1875, ch. 137; 18 U. 8. Stat.,
at Large, 470.

f This section is as follows : " When any suit shall be removed
from a State court to a circuit court of the United States, any attach-
ment or sequestration of the goods or estate of the defendant had
in such suit in the State court shall hold the goods or estate so
attached or sequestered to answer the final judgment or decree in the
same manner, as by law they would have been held to answer final
judgment or decree, had it been rendered by the court in which suit
was commenced ; and all bonds, undertakings, or security given by
either party in such suit prior to its removal, shall remnin valid and
effectual, notwithstanding said removal; and all injunctions, orders,
and other proceedings, had in such suit prior to its removal, shall
remain in full force and effect until dissolved or modified by the court
to which suit shall be removed."

848 CIVIL PROCEDURE REPORTS.

Fogg t>. Fiftk.

the right to pursue it has been contested. It appears
by the record and moving papers that the defendant
has been defeated in efforts to vacate the order for his
examination by the supreme court at special term and
at general term, and by the conrt of appeals, and that
although for a period of eighteen months he was
willing to submit his rights to the State courts, he
invoked the jurisdiction of this court when there were
no other resources left by which he could escape an
examination. Certainly there are no equities which
should induce this court to deprive the plaintiff of the
fruits of his long struggle. If the examination of the
defendant could subserve no useful purpose to the
plaintiff, undoubtedly the defendant should not be
subjected to it, or be put to the annoyance or incon-
venience which it might entail upon him. But although
the defendant's testimony, when obtained, may not be
of service to the plaintiff to the full extent it would

be in the State courts, it may, nevertheless, be of
[4] some value. If it cannot be used on the trial of

this action as a substitute for the oral examination
of the defendant, it can be as the declaration of a party ;
and it can also be used in other suits in the courts of
this State between the same parties or their privies,
pursuant to section 881 of the Code.

There seems to be no reason, therefore, for dissolv-
ing or modifying the order of the State court, or for
denying to the plaintiff the benefit of the proceeding
which was pending when the defendant removed the
suit.

The motion is granted.

CIVIL PROCEDURE REPORTS. 349

Tifft t>. Bloomberg.

TIPPT, bt al., Respondents, v. BLOOMBERG,
Appellant.

Superior Court op New York ; General Term,
November, 1883.

§544.

Supplemental anewcr.-r-When allowed.

Where the sufficiency of a proposed supplemental answer setting up
newly discovered facts, is a matter of doubt, the court will not
prejudge the validity of the defense on a motion, but will permit
the defense to be set up if defendant be free from laches.

(Decided November 0, 1883.)

Appeal from order of special term denying defend-
ant's motion for leave to serve supplemental answer.

This is an action of alleged false representation by
defendant of the credit of third parties, viz., the firm of
D. W. Bloomberg & Co., through which plain tiff sus-
tained damage. After issue joined, defendant, at
special term, moved for leave to interpose a supple-
mental answer, setting out facts, which he claimed
transpired after the filing of the original answer, and
constituted a defense to the action. The motion was
denied on the ground that the new matter did not con-
stitute a defense.

Further facts appear in the opinion.

Hall & JenkSy for appellant. •

Adolph Ascher & John J. Adams, for respondents.

Per Curiam.— Ingrah am, J.— The supplemental
answer sought to be interposed in this action, sets up
the fact, that since the filing of the original answer, the

350 CIVIL PROCEDURE REPORT!

TiJf t •. Bloomberg.

assignees of D. W. Bloomberg & Co., mentioned in the
complaint, have paid to the plaintiff $634.34 on account
of plaintiffs demand, and that plaintiff consented to
the assignment, and agreed to accept their proportion
of the estate of their debtor, and would relieve and dis-
charge him from their claim. The affidavit on which
the application was made disclosed that on March 1,
1883, the defendant first heard of the facts sought to
be set up in the supplemental answer. On March 22,
1883, the order to show cause was obtained, and it doe
not appear that' there was any laches in making the
application.

Without passing on the validity of the defense set
up in the proposed supplemental answer, we think
that defendant should have been allowed to present on
the trial the facts, and that the validity of the defense
should not be disposed of on a motion. It was held
by the general term of this court in the case of Lyon
v. Isen (42 How. Pr. 166), that "If the sufficiency of the
proposed answer is a matter of doubt, the court will
not prejudge the matter on such a motion, bnt permit
the defense to be made."

Without expressing an opinion on the validity of
the defense sought to be interposed, we think sub-
stantial justice will be better obtained if defendant is
allowed to present his defense on the trial, and have it
passed on at that time.

Order appealed from reversed, and motion for leave
to serve supplemental answer granted. Ten dollars
costs, and disbursements of this appeal, to abide the
event of the action. :

Sedgwick, Ch. J., concurs.

CIVIL PROCEDURE REPORTS. 351

Lawrence t. Foxwcll.

LAWRENCE, et al., Respondents, v. POX WELL,
Appellant.

Superior Court ; General Term, May, 1883.

§549.

Order of arrest under $ub. 4, § 540, Code Civ. Pro., when must be

vacated.

In case the affidavit on which an order of arrest is granted shows that
the action is on cou tract where the defendant has been guilty of a
fraud in contracting (Code, § 549, sub. 4), and it does not appear
therein that plaintiff has waived the contract, and elected to pro-
ceed for the fraud alone, in the absence of any allegation therein,
showing that the complaint alleged that the defendant was guilty
of a fraud in incurring the liability, no complaint having been pre-
sented upon the motion, the order of arrest must be vacated.

(Decided June 8, 1883.)

Appeal by defendant from order denying defend-
ant's motion to vacate order of arrest.
The facts appear in the opinion.

H. F. Aver ill and W. T. B. Milliken, for appellant.

Ellis 8. Yates, for respondent.

Sedgwick, Ch. J.— The motion below was made
upon the papers on which the order of arrest was
granted. I am of opinion that the motion should have
been granted.

The affidavit on which the order of arrest was made
averred that a summons had been issued for service ;
that a sufficient cause of action existed, u arising out
of the following facts ;" that defendant bought certain
goods for a certain price, and made certain statements
in the course of the purchase ; " and that by reason of

962 CIVIL PROCEDURE REPORTS.

Lawrence •. Foxwell.

the foregoing fact this deponent alleges that the
defendant has been guilty of a fraud in contracting
the debt hereinbefore set forth ; and that at the time
he purchased said merchandize from deponent he did
not intend to pay for the same, but intended to, and
did, convert the same into money for his own use."
The inference from these allegations is, that the action
was upon contract, where the defendant had been
guilty of fraud in contracting. There was in no part
of the affidavit any allegation that the plaintiff elected
to rescind the contract, and bring the action solely for
damages from the fraud.

The right to the order depended, then, upon its
being valid under the terms of subdivision 4 of section
649 of the Code of Civil Procedure. Th^t subdivision
gives as a condition of a right to arrest in an action on
contract " that it is alleged in the complaint that the
defendant was guilty of a fraud in contracting the
liability." There was no complaint presented with
the motion for the arrest, nor did the affidavit aver
what the allegations of the complaint were. The pro-
vision of section 558, that implies that in certain cases
the complaint need not accompany the order of arrest,
does not apply to such a case as this, because the sec*
tion is made subject to the provisions of section 557,
which clearly directs that the affidavit must show that
the conditions of subdivision 4 of section 549 exist.

The order appealed from should be reversed, with
$10 costs, and an order entered vacating the order of
arrest, without costs.

O'Goeman and Inge ah am, JJ., concur.

CIVIL PROCEDURE REPORTS. 353

Smadbeck «. Sisson.

SMADBECK, Appellant, v. SISSON and another,
Respondents.

Supreme Court, First Department, Special Term,
December, 1883 ; General Term, January, 1884.

§636.

Attachment* — Where action teas begun eimultaneoudy with the completion

of the work to recover payment for which it woe brought, there i$

no breach of contract, and an attachment granted therein

should be vacated.

Where an attachment was granted upon an affidavit which stated
that the defendant was indebted to the plaintiff in the sum of
$20,000 over and above all counter-claims for work labor and servi-
ces performed intermediate, September 1, 1882 and the time of tho
commencement of the action and there was no proof of a demand
or refusal to pay and no evidence from which the court could infer
that the right of action was complete when the action was com-
menced: Held, that the defendant was entitled to the whole of the
day on which the services were completed to pay therefor, [10j
and the action was therefore prematurely brought ;[10] that there
was no evidence of any breach of contract, [', *, '] and the attach-
ment was properly vacated. [•, ,0]

Where an action was commenced simultaneously with the perform-
ance of the services for which it was brought and the only evidence
of a breach of the contract to pay therefor was the plaintiff's own
assertion of it : Held, that an attachment against the property of the
defendant granted therein should be vacated. [*]

A mere recital of facts without a statement of their existence is not
sufficient in an affidavit on which a warrant of attachment is applied
for.f, »]

Smith v. Davis, (3 N. T. do. Pro. 74) followed ;[*] Kiefer v. Webster
(6 Hun. 526), distinguished. [•]

{Decided at Special Term, December 27, 1883, at General Term, January,
1884.)

* See Reilly «. Sisson, pott, p. 361.
Vol. IV.— 23

854 CIVIL PROCEDURE REPORTO.

Smadbeck «. Susod.

Motion at special term, by defendants, that an at-

acthment issued against their property be vacated.

The opinion states the facts.

Stern & Myers, for the motion.

Morris Ooodhart {Charles Spiro, attorney), op-
posed.

Lawrence, J. — The Code of Civil Procedure author-
izes the granting of a warrant of attachment against the
property of a defendant where the action is for the
breach of a contract express or implied, other than a
contract to marry, and the facts required by section
636 of the Code are shown to the satisfaction of the
judge granting the same by affidavit (see Code, §§635,
636). It is objected in this case that the warrant was
improperly issued, because no breach of contract is
shown by the affidavit on which the warrant was grant-
ed. That affidavit states that u The defendants above
named are justly and truly indebted unto this plain-
tiff in the sum of twenty thousand dollars lawful
money of the United States, over and above all counter-
claims known to this plaintiff, for damages for the
breach of a contract express or implied, other than a
contract to marry, founded upon the following facts, to
wit : for work, labor and services done and performed,
and caused to be done and performed by the plaintiff
to and for said defendants, and at the special instance
and request of the defendants, in consideration that
the defendants had agreed and undertaken to pay to
plaintiff therefor whatever said work, labor and ser-
vices were reasonably worth, and which work, labor
and services consisted in the examination, location and
reporting on mines and mining property, located in
Arizona! and in which the defendants claim to have an

;CIVTL PROCEDURE REPORTS. 855

Smadbeck •. Sitton.

interest, and in obtaining for the defendants' lands,
vesting in them a lawful title and interest in certain
mines and' mining property in Arizona, and in work
for them in his (plaintiffs) profession as a mining
engineer ; that said work, labor and services were rea-
sonably worth the sum of $20,000 ; that no part there-
of has been paid, but that said sum of $20,000 is justly
due and owing from the defendants to the plaintiff
over and above all counter claims known to him. Said
work, labor and services were performed during a
period from September 1st, 1882, in Arizona, to the
time of the commencement of this action." The affi-
davit then sets out that the defendant Sisson resides in
the State of California, and the defendant Shapely in
Indiana. On the plaintiff's affidavit there is no fact
Stated showing that there has been a breach of the
alleged contract between the plaintiff and the defend-
ants. The defendants, according to the plaintiff, were
to pay him for his services such sum as the same were
reasonably worth, and while it is alleged by him that
the same were reasonably worth the sum of $20,000,
that such sum has not been paid, and that it is due to
the plaintiff over and above all counter-claims ; it also
appears from the affidavit that the work, labor and ser-
vices were performed during a period from September
1, 1882, to the time of the commencement of this action.
This does not seem to me to show that there was a

breach of their contract on the part of the defend-
['] ants. No demand is alleged to have been made

upon the defendants, nor any refusal to pay after
such demand. No fact is stated from which the court
can see that there has been a breach of the contract.
The affidavit literally read means that the suit was
commenced simultaneously with the performance of

the work, &c. The only evidence of the alleged
[•] breach is the plaintiff's own assertion of it. Be-

356 CIVIL PROCEDURE REPORTS.

Smadbeck v. Snson.

sides, the defendants, where no time is specified as
to the performance of a contract, are entitled to a rea-
sonable time within which to perform. If the affidavit
of the plaintiff is trne there was not an instant of time
between the completion of the work and the commence-
ment of the action. It has often been held that a
mere recital of facts without a statement of their exist-
ence will not be sufficient in an affidavit on which
[*] a warrant of attachment is applied for (see Man ton
t>. Poole, 4 Hun, 638 ; Pomeroy t>. Ricketta, 87
Hun, 245; Smith v. Davis, 3 N. F. Civ. Pro. 74). h
the last case, Justice Daniels, in delivering the
p] opinion of the court, uses this language in speak-
ing of the requisites of an affidavit upon whick
the issuing of an attachment is sought : "A plain case
must be made out, and where it is not then it neces-
sarily follows that the attachment must be set aside
This rule imposes no hardship upon the applicant for
an attachment, for he is allowed to make oat his case
upon his own unsupported oath, and where the facts
are such as will warrant him in making the statements
required for this purpose, he should be obliged care-
fully and intelligently to embody them in the affidavit"
Tested by these principles the affidavit of tbe plaintiff
appears to be insufficient, and I am therefore of
[*] the opinion that the motion to vacate the attach-
ment should be granted. On the affidavits read npoa
the motion, I think that the weight of evidence is to
the effect that Shapely is a resident of this state, bat
the result at which I have arrived on the other branch
of the motion renders it unnecessary to definitely decide
that question.

Motion granted, with costs.

From the order entered upon this decision an appeal
was taken to the general term, which affirmed it, writing
the opinions reported below.

; CIVIL PROCEDURE REPORTS. 357

r -

Smadbeck «. Bisson.

P.. J. Joaehimsen A Morris Goodhart (Charles
Spiro, attorney), for appellant.

A perfect contract to perform work, labor and ser-
vices, and to pay for the same what they are reasonably
worth is stated, unless there be interpolated into it a
condition as to time, place or demand of payment.
This breach is the relevant point of substantial non-
compliance, and not in the irrelevant point of a formal
difference. An indebtedness being established, the
non-payment is the breach. It is the duty of the
debtor to seek his creditor and make payment. This
duty attaches as soon as the indebtedness is incurred.
It does not appear that the work was done upon time
or credit. If by the contract itself there is not any
modification (of which there is no pretense in this case)
then the duty of the defendant to pay attaches, and,
being unperformed, the cause of action is perfect, and
the right to begin action thereon is immediate, and not
subject to limitation or delay for the convenience of
the debtor. See Wheeler v. Warner, 47 N. Y. 519 ....
The judge admitted in his opinion the allegations of a
breach, but complains that only plaintiff made it. This
is unreasonable — surely no third party could allege the
breach as well as the plaintiff could. His own allega-
tion of a breach was sufficient, for it may be that he
alone is cognizant of that fact. None of the allega-
tions in plaintiffs affidavits are denied, and they must,
therefore, be taken as true, for the purposes of the
motion. Being true, the plaintiff had sufficiently
shown a breach of a contract. The allegation of a
breach of contract is in the exact words laid down by
Mr. Chitty in his work on Pleadings (see 2 Chitty PL
88,77).

Stern A Myers, for respondents.
To confer jurisdiction upon the court, the affidavit
must clearly disclose a cause of action in favor of the

358 CIVIL PROCEDURE REPORTS.

Smadbeck v. Stoon.

plaintiff for a breach of contract {Code Civ. Pro.
§ 636, subd. 1.)

This provision of the Code is imperative. The right
of action must appear to a certainty (Pomeroy v.
Ricketts, 27 Bun, 242 ; affirmed 91 N. T. 668 ; Smith
v. Davis, 3 N. T. Civ. Pro. 74 ; Campbell v. Pro-
prietors, &c., 18 Sow. Pr. 412 ; Skiff v. Stewart, 39
How. Pr. 385 ; Jacobs v. Hogan, 85 N. Y. 243.)

A mere allegation that a canse of action exists in
favor of the plaintiff, following the words of the Code,
is not sufficient. Snch an allegation is simply a con-
elusion of law. The affidavit must show a cause of
action by stating facts. Code Civ. Proc. % 636 ; Skiff v.
Stewart {supra) ; Manton v. Poole, 4 Bun, 638. The
law permits the plaintiff upon his ex parte statement
of a cause of action to impound the property of the
non-resident until judgment. It is, therefore, but just
that the plaintiff should be required to show his right
of action clearly and unequivocally (Pomeroy v.
Ricketts, supra).

To constitute a breach of the defendants' contract
in this case, there must be, 1st, actual or presumptive
notice to defendants of the completion of plaintiff's
services, with his claim for compensation ; and, 2d,
the lapse of a reasonable time for payment, or the
adjustment of the "reasonable value" of the services
(2 Story Cont. § 970 ; 2 Parsons Cont. 660). What is
" a reasonable time" is a question of law (2 WaiVs Ac-
tions and Dtf. 403, and cases cited).

Brady, J. — The learned judge in the court below
vacated the attachment granted in this case upon the
ground that a cause of action was not clearly made out
by the affidavit of which the attachment was predicate.
The statement in the affidavit of the plaintiff is that
the defendants were indebted to him in a sum of money
mentioned over and above all counter-claims, and upon

CIVIL PROCEDURE REPORT& 369

Smadbeck «. Sisson.

facts which he recited, namely, for work, labor and
services done and performed and caused to be done
and performed by and for the defendants at their
special instance and request, in consideration that they
undertook to pay what the services were reasonably
worth, and then stated of what the services consisted.
He further alleged that the work and services thus
indicated were reasonably worth the sum of $20,000 ;
that no part of it had been paid, and that the sum
which they were reasonably worth was still due and
owing from the defendants to the plaintiff over and
above all counter-claims. Then follows a statement
that the said work, labor and services were performed
during a period from September 1, 1882, to the time of
the commencement of this action, so that the action
was commenced at the time the services were complete.
It would appear from this statement that on the
very day that the services were completed, and all the
obligations on the part of the plaintiff performed, the
action was commenced. There is no statement of any

notification to the defendants that the services
[•] were completed ; no evidence of any demand

having been made ; no proof of any refusal to pay,
and no statement of any fact from which the court
could draw the inference that in this regard the right
of action was complete on the day when the action was
commenced.

This element of the case was one of great import-
ance in the consideration of the propriety of granting
the attachment. It is discussed in an elaborate opinion

by the justice in the court below, who arrived at
['] the conclusion that there was no evidence of any

breach of the contract, that there was no demand,
and that there was no refusal to pay ; therefore, that
there was no fact stated from which the court could
say there was a breach of the contract ; that the affidavit,
literally read, meant that the suit was commenced

MO CIVIL PROCEDURE REPORTS.

Smadbeck ». Binon.

simultaneously with the performance of the work, and
that the only evidence of the breach was the plaintiffs
own assertion. And the judge farther remarked that
if the affidavit of the plaintiff was true, there was not
an instant of time between the completion of the work
and the commencement of the action.

The case of Kiefer v. Webster (6 Bun, 526) is not

in conflict with these views, because the allegation

[•] in that case was that the defendants were indebted

to the plaintiffs in a sum named, for goods sold

and delivered, for which they had promised to pay, bat

failed to do.

We think the disposition of the application
[•] was a proper one, and that the attachment should
have been vacated as it was.
The order appealed from is therefore affirmed, with
$10 costs and the disbursements of the appeal.

Daniels, J. — [Concurring.]— The defendents were
entitled to the whole of the day in which the ser-
["] vices were completed to pay for their perform-
anoe. The action was therefore prematurely com-
menced, and the attachment was properly set aside.

CIVIL PROCEDURE REPORTS. 361

Reilly *. Bistqn.

REILLT, Appellant, v. 8ISSON, Respondent.

Supreme Coubt, First Department, General Term,
January, 1884.

§636.

Attachment.* — Where the affidavit on which an attachment woe granted

alleged that the money which the action was brought to recover,

woe loaned between a date named and the time of the

commencement of the action, and there woe no

allegation of demand therefor, held that

the attachment should be vacated.

Whore the affidavit on which an attachment was granted alleged that
the defendant was indebted to the plaintiff in the sum of $6,000
over and above all counterclaims for damages for a breach of a con-
tract express or implied, other than a contract to marry, and that
such indebtedness arose as follows : viz., that at sundry times
since April 1, 1883, up to and including the day upon which the
action was commenced, the plaintiff at the special instance and
request of the defendant loaned and advanced to him sums of
money amounting in all to $6,000, which he promised and agreed
to repay but no part of which has been paid, and it did not
appear when the money was to be repaid or that there had been any
demand for it. Held, on appeal from an order vacating the attach-
ment, that a breach of contract was not shown [!, 4] and thoattach-
•ment was properly vacated. [•]

Pomeroy v. Ricketts (27 Hun, 242) ;[*] Smith v. Davis (8 if. Y. Civ.
Pro, 74) ; followed. [8] Kiefer «. Webster (6 Hun, 526) distin-
guished.^]

(Decided January, 1884.)

Appeal from order vacating attachment, issued
against the property of the defendant.

The attachment was granted npon an affidavit the
substance of which is stated in the opinion. The de-
fendant moved to vacate it upon the ground that the

* Bee Smadbeck v. Sisson, ante, p. 868.

302 CIVIL PROCEDURE REPORTS.

Beilly *. Siseou.

affidavit on which it was granted was insufficient
The motion was granted and this appeal taken from
the order thereupon entered.

In granting the motion the special term judge wrote
the following opinion.

Lawrenoe, J. — The affidavit on which this attach,
ment was issued seems to me to be subject to the criti-
cisms which was made by the general term of this
department, in Smith v. Davis, 3 iVr. Y. Civ. Pro. 74 ;
see also Pomeroy v. Ricketts, 27 Han% 242. Again
if the affidavit is true, a portion of the loan was
made on the day the attachment was issued ; therefore
I do not think that a breach of the alleged contract
was shown.

See my opinion in Smadbeck v. Sisson,* filed this
day. See also, generally as to the particularity re-
quired in stating the plaintiff's claim on an applica-
tion for an attachment. Skiff v. Stewart, 39 How. Pr.
385 ; Ruppert v. Haug, 1 N. Y. Civ. Pro. 411.

The motion to vacate the attachment will be granted
with $10 costs.

P. J. Joachimsen and Morris QoodharU for ap-
pellant.

Stem & Myers, for respondent.

Brady, J. — The plaintiff in this case, in the affida-
vit on which the attachment was granted, alleges that
the defendant was indebted to him in the just and full
sum of $6,000 over and above all counter-claims for
damages for a breach of a contract, express or implied,
other than a contract to marry, and that such indebted-
ness arises upon the facts stated. And the facts are
these : That at sundry times sinpe April 1, 1883, up to

♦ See anU, p. 803.

CIVIL PROCEDURE REPORTS. 363

Reilly v. Sieaoti.

and including this date — namely, the fifth day of No-
vember, 1883, upon which day the attachment was
granted— the plaintiff at the special instance and re-
quest of the defendant, loaned and advanced to him
sums of money amounting in all to the sum of $6,000,
which he promised and agreed to repay, but no part of
which has been repaid.

It will appear, therefore, from the affidavit that
on the very day when some portion of the money was
loaned to him, namely, November 5, 1883, when the
affidavit was made, he had loaned and advanced money
to him. As to what arrangement was made with re-
gard to the repayment of the money, whether it was to
be repaid instantly or at some time in the future agreed
upon by the parties, whether any notification to repay
the money so alleged to be advanced to the defendant
was given him, and whether he had any information
at all on the subject, is not alleged. Nor is it stated
that any demand was made upon him on the date that
the suit was commenced for the money which is assert-
ed to have been loaned and advanced. There is, in

other words, nothing to show that, as to the money
[l] at least that was advanced upon the day that the

attachment was granted, there was any breach of the
contract to pay. It is not reasonable to suppose that
the money advanced upon November 6, was to be paid
on November 5, in the absence of any allegation to the
contrary. The learned judge, in the court below, there-
fore, regarded the affidavit as one which was subject to
the criticism made upon the affidavit in the case of
Smith v. Davis (3 N. T. Civ. Pro. 74), and Pomeroy v.
Ricketts (27 Hun, 242), and this was a correct view of
the subject.

In the case of Pomeroy v. Ricketts (supra) the
[*] court said that it was indispensable to show that a

cause of action existed before the right to an attach-
ment could be made to appear, and that no hardship

3<$4 CIVIL PROCEDURE REPORTS,

Reillyv. Sisaon.

was imposed upon the plaintiff, who was allowed to
prove this fact by his own affidavit, in requiring that
it should be made out with a reasonable degree of clear-
ness, and that the plaintiff must certainly be required
to show that he has a demand, upon which the defend-
ant has become legally liable for the recovery of judg-
ment against him, before a cause of action could be made

to appear. And in the case of Smith v. Davis {su-
[*] pra\ the court said : " To entitle the party to make

such a seizure under an attachment before his right
to appropriate the defendant's property has been
established by evidence, reasonable and satisfactory
proof is required. A plain case must be made out,
and where it is not, then it necessarily follows that
the attachment must be set aside." And the learned
judge in the court below said that if the affidavit was
true upon which the attachment was granted, a por-
tion of the loan was made on the day the attachment
was issued. He might have added that not only was

the loan made upon that day, but the money ad-
[4] vanced, because as we have seen, the language of

the affidavit is that at sundry times from April 1,
1883, up to and including November S, which was the
date of the affidavit, the plaintiff loaned and advanced
to the defendant cash. And the learned justice also
said : " Therefore I do not think that a breach of the
alleged contract was shown."

The case of Kiefer v. Webster (6 Hun^ 526)
[*] seems to be, but is not, in conflict with these views,

because the allegation in that case was that the
defendants were indebted to the plaintiffs in a sum
named for goods sold and delivered, for which they
had promised to pay but failed to do so. The time of
the delivery is not stated, and it maybe assumed
that the promise was made after the delivery on de-
mand. In reference to that case it must also be said
the rule adopted was very liberal and should not be

CIVIL PROCEDURE REPORTO. 365

Barclay v. Culver.

extended, particularly since the subsequent cases, to
which reference has been made have weakened its
authority. It must be confined to cases, if it be held
yet to be controlling, of a precisely similar char-
acter.

For these reasons it is thought that the judge in
[*] the court below was right in the disposition he
made of the application to vacate the attachment,
that the attachment should not be held, and that on
the contrary it should have been vacated as it was.
The order appealed from is therefore affirmed, with
$10 costs and the disbursements of the appeal.

Daniels, J., concurred.

BARCLAY v. CULVER.

Supreme Court, First Department, Special Term,
February, 1884.

§3253.

Extra allowance, — Computed on amount invoked in the action.

Where an action was brought to recover $2,500 and interest, and the
defendant interposed as a defense a set off amounting to $7,090, and
the plaintiff recovered the full amount claimed by her, and the court
granted her an extra allowance of five per cent., — Held, that plaint-
iffs allowance should be computed upon both her claim and the set
off; that the amount of the alleged set off was directly involved in
the case.

(Decided February 11, 1884.)

Motion for a new taxation of costs.

This action was brought by plaintiff, to whom the
claim in suit had been assigned, to recover of defendant

366 CIVIL PROCEDURE REPORTS.

Barclay v. Culver.

the sum of $2,500 and interest. Defendant interposed
as a defense and by way of set-off two notes which with
interest yrere of the aggregate value of $7,996. Upon
the trial, judgment was rendered for plaintiff upon all
the issues involved, and for the full amount claimed by
her with interest. The court granted an allowance of
five per cent. Plaintiff upon the taxation of costs by
the clerk claimed that the percentage allowed should
be calculated upon the plaintiffs recovery and upon
the amounts pleaded as set off by defendant as these
constituted " the value of the subject matter involved."
The clerk refused to tax an allowance on the set-offs
and taxed it only on plaintiff's claim. This motion is to
review such taxation.

William King BaU (Hall <fe Blandy, attorneys),
for plaintiff cited : Woonsocket Rubber Co. v. Rubber
Clothing Co., 1 N. Y. Civ. Pro. 350, citing cases ; Wil-
liams v. Western Union Telegraph Co., 61 Bow. Pr.
305 ; Conaughty v. Saratoga County Bank, 92 IV. T. 401.

Henry L. Belts, (Culver & Bells, attorneys), for de-
fendant, cited: People v. N. Y. and Staten Island
Perry Co., 68 N. T. 71-S3 ; Ogdensburg and Lake
Champlain R. R. Co. v. Vermont and Canada R. R. Co.,
73 N. T. 176.

Lawrence, J. — I think that the plaintiff is entitled
to the full allowance which she claimed on the taxa-
tion. The amount of the alleged set-off was, I think,
directly involved in the case. Woonsocket Rubber
Co. v. Rubber Clothing Co., 1 N. T. Civ. Pro. 350;
Vilmar v. Schall, 61 N. T. 564.

CIVIL PROCEDURE REPORTS. 867

Bell «. Lesbini.

BELL t>. LESBINI.

Crrr Court op New York, Special Term, Janu-
ary, 1884.

§§495, 501.

Counter-claim. — In action on contract, a counter-claim founded in tort
and not arising out of the facte stated in the com-
plaint cannot be est up.

Where an action was to recover a balance for board and -lodging
famished by the plaintiff to the defendant from June 23, to October
28, 1888, and the defendant set up a counter-claim in his answer for
damages for the conversion of certain personal property belonging
to him, alleging that October 23, 1883, the plaintiff ejected him from
the room in her bouse occupied by him, and took therefrom the said
personal property, and converted it to her own use,— Held, that aa
the action was founded ex contractu, and the counter-claim ex
delicto, and as the couuter-claim did not arise out of the transaction
mentioned in the complaint, a demurrer to the counter-claim on the
ground that it was not of the character specified in section 501 of
the Code of Civil Procedure, should be sustained, that the counter-
claim waa not of such nature as to permit the defendant to waive
the tort and recover as upon an implied contract.

In an action on the contract, a cause of action founded in tort, and
not arising out of the transaction mentioned in the complaint can-
not be set up as a counter-claim.

Coit v. Stewart (12 Abb. N. 8. 216), distinguished.

(Decided January 81, 1884.)

Demurrer to counter-claim.

The facts are stated in the opinion.

George L. Sterling, for demurrer.

Sidney H. Stuart^ opposed.

Browne, J. — Section 501 allows a counter-claim
arising out of the contract or transaction set forth in the

368 CIVIL PROCEDURE REPORTS.

Be 1 1>. Lesbini.

complaint as the foundation of the plaintiffs claim or
connected with the subject of the action. The contract
set forth in the complaint is alleged to have been made
between plaintiff and defendant, whereby plaintiff
agreed to famish defendant with board and lodging
at her house at the rate of $30 per week. The com-
plaint alleges that he agreed to pay that sum there-
for; that she furnished said board and lodging to
the defendant from June 23, 1883, to October 23,
1883 ; that under the agreement in question there
became due to her $525.75 ; that the defendant paid
on account thereof $262, leaving a balance due of
$263.75, to recover which the action is brought. The alle-
gation of the answer demurred to, and which is set up
as a separate defense and as a counter-claim to the cause
of action, is that on October 23, 1883, the defendant
was the owner and possessed of certain personal
property of the value of $1,000. That on said day
plaintiff forcibly ejected defendant from the room men-
tioned in the complaint; took possession of said per-
sonal property and converted the same to her own use;
and that by reason of said acts he has been damaged
in the said sum of $1,000. Thus the action is founded
ex contractu, while the counter-claim is founded ex
delicto. The demurrer is taken under the 4th subdi-
vision of section 495 of the Code of Civil Procedure,
on the ground that the counter-claim is not of the cha-
racter specified in 501 of the Code.

I think the demurrer is well taken. The subject
matter of the counter-claim is the tortious act of the
plaintiff in wrongfully taking and converting to her
own use the property of the defendant of the value of
$1,000. While the plaintiff, on the other hand, sets
forth an express contract, upon which a fixed and cer-
tain sum was due to her, and which she was entitled to
receive on the 23d day of October, 1883, the pleadings
do not suggest anything connected with that particu-

CIVIL PROCEDURE REPORTS. 369

Bell «. LesbinL

lar transaction which was open, undetermined or to
be done before the plaintiff was entitled to receive the
money claimed to be due from the defendant. There
is no claim or suggestion anywhere that defendant
was entitled to remain longer in the premises nor that
plaintiff had not the right to the possession of her
rooms upon that day, nor the right to refuse to con-
tinue furnishing defendant with board and lodging.

I have been unable to find a single case in which a
clear case of tort, not arising out of the transaction
mentioned in the complaint, has been allowed to stand
in opposition to a recovery upon a contract. * That it can-
not be so set up has been decided in several cases (see
Piser v. Stearns, 1 Hilt. 86; Chambers v. Lewis, 11 Abbm
Pr. 210). There are some fcases in which the doctrine
might be said to be allowed to prevail to the extent of
permitting a party to waive the tort and recover upon
an implied contract. An examination of those cases
will disclose the fact that there existed a conventional
relation between the parties : e. g.f as an agent who
collects money for his principal and refuses to pay
over (Coit v. Stewart, 12 Abb. iV. S. 216). That the
counter-claim is purely to recover for the value of the
property converted, is not open to dispute. It cannot
have relation to the rooms and board, and no part of
the sum is claimed to be for damages for the ejectment
from the rooms. As before stated, he does not claim
he had a right to the possession thereof upon or beyond
the day mentioned.

The suip claimed being simply for the value of the
property converted, the demurrer is sustained.
Vol. IV.— 34

3T0 CIVIL PROCEDURE REPORTS.

Snyder «. Snyder.

SNYDER, Appellant v. SNYDER and another, as
Executors, etc., Respondents.

Supreme Court, Third Department, General Term,
May, 1883.

§§2739,2740.

Executor— Claim in favor of against hi* intestate's estate can be paid only

upon allowance by surrogate. — Assignee of executor cannot

maintain action on such claim.

Where in an action by oneE. 8., the wife of P. R. S.f to recover from
•aid P. R. S. and one S. S. as the executors of their father W. 8.
for services rendered in boarding and nursing said W. S. subse-
quent to August 4, 1874, it appeared that the defendant P. R. S.
prior to August 4, 1874, furnished the board, &c, of W. S. and was
paid therefor; that in January, 1874, W. S. agreed in writing, to
pay P. R. S. for the services of himself and family (which included
plaintiff) in taking care of him; that thereafter and until bis death
he continued to live in the house occupied by P. R. 8., the same as
before, P. R. S. and his family, including the plaintiff, continu-
ing to care for him in the same manner, giving hira, of course,
increased attention as he became more infirm ; that the house and
farm occupied by P. R. S. during all this time, belonged to W. 8.
who was paid no rent therefor; that P. R. 6. supplied the provis-
ions and necessaries of life for the family and the labor of his two
sons and daughter in the care of W. 8., and that he had assigned
all his claim against the estate of W. 8., to the plaintiff, and the
only evidence tending to show that plaintiffs services were separate
and distinct from those rendered by P. R. 8., was the testimony of
P. R. 8., his two sons and daughter, that he had beard W. S. say
that he would pay plaintiff at a certain rate, which was the same as
that mentioned in his agreement with P. R. 8.: Held, that the
referee before whom the cause was tried erred in his findings of
fact, so far as they implied that there was' any contract between the
deceased and plaintiff ; [<] and the findings should be reversed so that
it shall be found that the services were not rendered by the plain-
tiff on her own account, but on account of P. R. 8., and that the
indebtedness did not accrue to her:[!] also Held\ that plaintiff

CIVIL PROCEDURE REPORTS. 871

Snyder*. Snyder.

could not maintain an action on the claim assigned to her by P. R.
S., he being one of the executors.

An executor having a claim against the estate of his testator for board
and attendance famished him, cannot assign that claim to a third
person, and thus authorize such third person to sue the executor
or the executors. [10]

& claim of an executor against his intestates estate can only become
effective upon allowance by the surrogate, [■, l0] and his assignee
does not stand in any better position. [*, *]

Decker v. Decker (2 Paige, 149) ;[*] Smith v. Lawrence [11 Paige,
207);[»] Sanford e. Sanford (45 N. Y 723); [T] Warts *. Jenkins (11
Barb. 546) ; [»] McGregor e. McGregor (35 2V. Y. 218), [•] dis-
tinguished.

(Decided July, 1888.)

Appeal by plaintiff from judgment entered on report
of referee.

The plaintiff, Elizabeth Snyder, is the wife of Philip
B. Snyder, one of the defendants. She brings this
action against Philip and Sylvester Snyder, as execu-
tors, etc., of William Snyder, deceased, who was their
father, to recover for services rendered William Sny-
der during his lifetime.

On the trial of the action, the plaintiff called as a
witness the defendant, Philip Snyder, who, under the
objection of the defendant Sylvester Snyder, proved
the care which his wife and daughter took of his
father. He also testified under cross-examination that
he took the care of his father nine-tenths of the time,
that sometimes his sons helped, sometimes his wife and
daughter, and that they all lived together.

He further testified that he assigned his claim to
his wife after his father's death. The plaintiff testified,
under objection, that William Snyder was sick in 1874,
1875, 1876, 1878, and put in evidence a written assign-
ment, dated February 19, 1879, assigning to George
Barber an agreement made by William Snyder, Janu-
ary 17, 1874, agreeing to pay for services of Philip

373 CIVIL PROCEDURE REPORTS.

Snyder «. Snyder.

Snyder and his family, in taking care of him ; and all
moneys on the agreement and all claims and demands
against William or his estate dne for board, care and
services rendered by Philip Snyder and his family in
taking care of him.

Also an assignment of the same date from Barber to
plaintiff, of all the said agreement made by William,
dated Jannary 17, 1874, and all claims and demands
which were assigned to Barber by Philip Snyder.

Defendant then moved to strike out the evidence
of Philip Snyder, as it then appeared that he was
assignor to plaintiff. This was granted as to per-
sonal transactions and communications with de-
ceased.

The claim of the plaintiff was for services from
August 7, 1874, to the death of testator, December 4,
1878.

The referee found that during all this time Philip
Snyder provided for the family and for the boarding
of the deceased and the plaintiff and his two sons and
daughter, and supported the house, and that plaintiff
performed and discharged the duties of wife, mother
and housekeeper ; that the extraordinary care required
by the deceased in his sickness was rendered by Philip
Snyder, the plaintiff, his two sons and his daughter,
the most arduous part by the plaintiff.

The referee found that prior to this action the de-
fendant, Philip Snyder assigned to plaintiff (through
Barber) the agreement aforesaid and all his claims for
compensation and services of himself and family. That
several times since 1874, and prior to his last sickness,
the deceased promised to pay plaintiff, for his board,
when in usual health $4 per week, and from $1 to $7
per day when sick, according to the services required ;
that plaintiff had no separate estate and carried on
no separate business.

He also found that from 1864 to August, 1874, the

CIVIL PROCEDURE REPORTS. 373

Snyder v. Snyder.

deceased boarded with Philip Snyder, and Philip
Snyder famished board, washing and lodging to him
at $4 per week, for which the deceased settled with
him August 4, 1874.

/. L. Baker j for appellant.
Merritt King> Tfor respondent.

Learned, J. — We think that there is no sufficient
evidence that there was any contract made with the
plaintiff by William Snyder. The facts are against
any such theory. In the first place, down to August 4,
1874, it is undisputed that the board, etc., were furnished
by Philip Snyder, and he was paid therefor. Next
the written contract of January 17, 1874, is an agree-
ment to pay Philip for the services of himself and
family (which included the plaintiff), in taking care
of William. Again, there is no reason for any change
in this respect after August 4, 1874. William con-
tinued to live in Philip's house, that is, in the house
which Philip occupied, the same as before. Philip
and his family, including the plaintiff, continued to
care for him in the same manner, although, of course,
giving him increased attention, as he became more in-
firm. Philip, all this time, had the use of the farm,
that is from 1864 down to the time of trial, without
paying any rent. Or, as Philip says : " I have not paid
him a dollar for the use of the land, but have in services,
in taking care of him." This was a farm of 75 acres
after Philip had bought 23 acres from William. And
Philip says his father gave him a deed of one-fifth of
the 75 acres and of 12 acres for taking care of him, and
gave him also the stock and sheep. As a matter of
fact, too, during all this time, Philip supplied the pro-
visions and necessaries of life, and without dispute the

374 CIVIL PROCEDURE REPORTS.

Snyder e. Snyder*

labor of his two sons and daughter in the care of his
father.

It is not credible that there was a bargain by which
the labor of the plaintiff was to be separated out, and
performed on her own account. Nor is there any
evidence to justify a finding that the plaintiff was to
be paid for the provisions which Philip furnished, and
for the labor and services of Philip and of his sons and
daughter. Tet if one construction urged by the plaint-
iff, is to be followed, she was to be compensated, not
for her own labor alone, but for that of her husband,
his sons and his daughter, and for the provisions and
necessaries he furnished ; because the alleged promise
to plaintiff was to pay $4 per week and extra when
sick. And it is not pretended that this amount does
not cover all that William received from Philip and
his whole family.

There is no need of any such unreasonable construc-
tion. The testimony given, that the testator promised
to pay plaintiff so much, is easily understood. It was
a statement of the amount to be paid, not of the person
to whom the amount was to be paid. The husband
and wife were living together, both taking care, as was
right, of the infirm father. There was no special intent
to pay the wife. And this is very evident from the
circumstance that by giving the husband the use of the
farm the father was all the time paying him for these
very services ; or at least paying him in part. No one
can fail to see that the use of the form was, to the ex-
tent of its value, to pay for the care the old man needed.
And that use was all the time going to Philip.

Furthermore, the assignment by Philip to Barber,
and through him to the plaintiff, is additional evidence,
if any were needed, that neither the plaintiff nor Philip
considered that the claim for these services washers in
any other way than by assignment from him.

Against all these circumstances, we have merely

CIVIL PROCEDURE REPORTS. 375

Snyder «. Snyder.

the testimony of Philip, of his two sons and his daugh-
ter, that they heard the old man say he would give the
plaintiff $4 per week and extras as above stated. Tes-
timony to such conversations are of little weight, un-
der such circumstances, against the undisputed facts.
The daughter even testifies on cross-examination, "he
told my father and mother he would give them so
much for taking care of him."

The referee finds that Philip assented to the arrange-
ment made by the plaintiff. But he seems to rest that
finding upon the assignment by Philip to the plaintiff,
through Barber. And this assignment is on the con-
trary a repudiation of any such arrangement. For if
the debt was contracted with plaintiff, Philip had noth-
ing to assign.

We are of opinion therefore that the referee
['] erred in his findings of fact, so far as they imply
that there was any contract with the plaintiff.

Another very important question arises, upon which
unfortunately this court disagreed when the case was
here before;* and that respects plaintiff's claim as
assignee of Phili p. The question is whether an executor,
having a simple claim against the estate on contract,
can assign that claim to a third person and thus author-
ize such third person to sue the executor or the exec-
utors. The defendant insists that any claim of an
executor can be collected only by its being allowed by
the Surrogate. Laws 1837, ch. 460, §§38, 37 ; Code,
§§ 2739, 2740.

As is well known, the executor could formerly re-
tain property in satisfaction of his claim. Roger
P] v. Hosach, IS Wend. 319. Now that right has been
taken away, and the debt must be allowed by the
surrogate.

It would hardly be claimed that, if there were a sole

* This decision has not been reported. .'

376 CIVIL PROCEDURE REPORTS. ^

Snyder t>. Sd jder.

executor, he could assign a claim which he had against
the testator, and permit himself to be sued thereon, or
at least that suit would protect him on his accounting.
If there are two.executors and one has the assets in
his hands and claims a debt to be due to him he cannot
retain it, and an action against the other would be use-
less. If one had the assets and the other had none,
and if the latter claimed a debt to be due to him, the
former cannot pay, because the money paid would still
be assets, which the latter could not retain until his
debt was proved before the surrogate. The delivery
of assets by one executor to the other does not even
discharge the former. Mesick v. Mesick, 7 Barb. 120.
The claim of the executor can only become effective
upon allowance by the surrogate (Kearney t>. McKeon,
86 N. T. 136). And it is difficult to see why the assignee
of an executor should stand in any better position
than the executor himself. These are evident
['] reasons why it would be dangerous to permit an
executor to give, by assignment, a right of action
at law upon a claim held by him against the estate.
The provisions of the Revised Statutes on this subject
were intended to compel an executor to prove his
[4] claim before the surrogate on notice to the persons
interested. Suppose he assigns his claim,allows him-
self to be sued and a judgment to be recovered against
him, what would be the effect 3 If the judgment is to
be of any use at all, then it can no longer be necessary
to prove the debt before the surrogate, and those inter-
ested are deprived of the opportunity given by statute.
It is claimed by the plaintiff that the court of
chancery bad (and therefore that this court has), juris-
diction of controversies between executors in regard to
claims of the estate. And some cases are cited in sup-
port of this view. Decker v. Decker (2 Paige, 149)
£*] was the case of a bill filed by two'executors against
a co-executor, to compel the payment of a bond

CIVIL PROCEDURE REPORTS. 877

Snyder e. Snyder.

given by them to tbe testator. The defendant claimed
the right to retain in preference to other bond credit-
ors. That was before the Revised Statutes. Smith v.
Lawrence (11 Paige, 207), was an appeal from a
[•] surrogate's order and not a case of original juris-
diction. Sanford v. San ford (45 N. T. 723), was an
action at common law on a note. The plaintiff claimed
to be the owner in her own right and the defendant
[T] insisted she was not. Warts v. Jenkins (11 Barb.
646), held that an action may be maintained by
["] executors against their co-executors to compel
him to pay a debt which he owed the estate, ne-
cessary to pay a sum decided to be due them for
moneys paid on account of the estate. McGregor v.
McGregor (36 N. Y. 218), was the revival of a fore-
['] closure action by one executor against the mort-
gagor co-executor.
Thus not one of these cases shows that an executor,
having a claim against the estate, may bring an action
therefor against his co-executor. It is undoubtedly
unsafe to lay down an absolute rule that this court has
no jurisdiction of this class of actions. Peculiar cir-
cumstances may arise when jurisdiction should be
taken.

But take this simple case, and I think Philip
["] should not be allowed to maintain an action against
Sylvester, or against Sylvester and himself jointly.
If Sylvester had voluntarily paid this claim to Philip,
would not Philip have been obliged to account for the
money so paid, as assets f That is, before he could
retain that money, he must have proved his claim before
the surrogate. And if this be true of a voluntary pay-
ment, it is necessarily true of a payment under a judg-
ment, to which only the two executors are parties.

The character of the fund, whether in the hands of
one executor or of the other, cannot be changed until
a decree of the surrogate is had.

878 CIVIL PROCEDURE REPORTS.

Bank of Oewego «. Dun.

The finding of fact then mast be reversed so that it
shall be found that the services were not rendered
["] by the plaintiff on her own account, bot on ac-
count of Philip, and the indebtedness did not ac-
crue to her. And the judgment must be affirmed
with costs without prejudice to the presentation of
any claim by Philip on his accounting.

Boardman and Bockes, JJ., concurred.

FIRST NATIONAL BANK OP OSWEGO, Res-
pondent, v. DUN and Another.

SECOND NATIONAL BANK OP OSWEGO, Ap-
pellant, v. DUN.

Supreme Court, Fourth Department; General
Term, January, 1883.

§§ 1694, et seq.

Replevin.* — When property replevied is not in the custody of the lam $o
a% to prevent levy therein under an execution. — Undertaking
given on replevying personal proper. y does not ta
any manner secure or protect judgment
debtor of defendant in re-
plevin action.

Where one D. being insolvent, made a general assignment to one J.D.
Jr. of all his property including a malt house containing from
eighteen thousand to twenty thousand bushels of malt in bulk, and
the First National Bank, claiming to own teii thousand bushels of
the malt, brought an action against D. and J.D., Jr., to recover the
same, and issued replevin process to the sheriff who took posses
•ion of the malt, held it the time required by law, and then went

* See Second National Bank of Oswego e. Dun, 2 if. 71 tin.
Pro. 250.

CIVIL PROCEDURE REPORTS. 87»

> T

Bank of Oswego «• Dun.

to the president of the First National Bank and told him that he
came to deliver the malt and did deliver it, and the president ac-
cepted the delivery, but requested the sheriff to separate ten
thousand bushels and deliver it at a designated place, which he
agreed to do, and thereafter and before said malt had been so
separated and delivered, the Second National Bank issued an
execution to the sheriff on a judgment recovered by it against D.
and directed him to levy upon the malt which, being indemnified
by it, be did, — HetiL, that an order, made on the application of the
First National Bank, vacating the levy and enjoining the sheriff
from proceeding thereunder, was improperly granted and should
be reversed [•] ; that the Second National Bank being a stranger to
the replevin proceedings, the property was not in legal custody
as to it so that it could not be reached by levy under the execu-
tion. [■]

The undertaking given in a replevin action providing for the return
of the property to the defendant in that action if its return should
be adjudged, does not run to a judgment creditor of the defendant,
nor in any manner secure or protect his rights or interest in the
property. [l]

Hayne v. Lucas (10 Peter U. 8, 400) ; [»] Seymore e. Newton (17 Bun,
32); [«] Gilbert v. Moody (17 Wend. 856); [4] Morris «. White (5
Wend. 71), ['] distinguished.

{Decided April, 1883.)

Appeal from an order staying proceedings upon an
execution issued by the Second National Bank against
the property of John Dun, and setting aside a levy
made by the sheriff of Oswego county in virtue of such
execution.

On the 7th day of January, 1882, John Dun made a
general assignment for the benefit of his creditors, to
John Dorsey, Jr., his book-keeper and clerk, who took
possession of the assigned property, consisting among
other things of a malt house, in which were from
eighteen thousand to twenty thousand bushels of malt
in bulk. Two days later, viz., January 9, 1882, the
First National Bank brought replevin for ten thousand
bushels of said malt against Dun and Dorsey, and
upon the mandate in that action the sheriff of Oswego

880 CIVIL PROCEDURE REPORTS.

^"^ — - — - — . ■ i m

Bank of Oswego «. Dun.

seized the ten thousand bushels of malt and kept pos-
session of it until the 13th of January, 1882, when (as
no bond had been given by the defendants and time
therefore had expired), the sheriff went to the president
of the First National Bank, at his banking rooms, and
told him he had come to deliver the malt named in the
replevin papers, and that he did then and there deliver
it, though it had not been seperated or removed from
the other portions of the eighteen thousand to twenty
thousand bushels in the malt house.

The president accepted it, and requested the sheriff
to separate the ten thousand bushels, and to deliver it
to a designated place, and the sheriff undertook to
comply with that request, apparently as the agent of
the First National Bank.

On the 13th of January, 1882, the Second National
Bank duly recovered a judgment against John Dun,
upon a debt held by it, for $15,415.23, besides costs, and
forthwith issued an execution to the coroner, which
was afterwards withdrawn, and one was issued on said
judgment, and delivered to the sheriff of Oswego
county who upon request of the plaintiff therein at
once levied on the malt in question, and other property
of the assignor and judgment debtor. On the 17th of
January, 1882, the First National Bank indemnified
the sheriff against the claim of the Second National
Bank.

8. O. Huntington, for appellants.

Charles Rhodes {Rhodes A Richardson, attorneys),
for respondents.

Hardin, J. — Both banks claim title to, or an inter-
est in ten thousand bushels of malt, through Dun, who
on the 7th January, 1882, was in possession thereof.
Upon the title or interest of the plaintiff the First Na-

CIVIL PROCEDURE REPORTS. 381

Bank of Oswego «. Dun.

tional Bank on the 9th of January, two days after the
execution of a general assignment, for the benefit of
creditors, by Dun to Dorsey, it commenced an action
of replevin, and claimed the delivery of the malt. It is
insisted in the argument of the appellant that the First
National Bank cannot maintain any interest in or title
to the malt, as against the judgment and execution of
the Second National Bank, because the warehouse re-
ceipts held by the First National Bank were executed by
Dun, the owner, and that by the principle laid down in
Farmers & Merchants9 Bank of Buffalo v. Lang (87 N.
Y. 214), the same are ineffectual except by way of a
mortgage on the part of Dun, and that not having been
filed, they cannot operate to prevent a judgment cred-
itor from levying upon and selling the malt. We need
not pass upon that question at this time, and indeed
we cannot properly, as the facts upon which the ques-
tion will ultimately turn, are not now fully before us.
Suffice it to say, that we see sufficient in the posi-
tion taken in behalf of the Second National Bank, to
induce us to suppose that its levy upon the malt was
made for the purpose of attempting in diligence and
vigilant use of remedies, to prosecute a supposed legal
right. It may also be observed in passing, that the
affidavits before us suggest proper grounds upon which
the Second National Bank seeks to avoid the assign-
ment to Dorsey, and that the questions relating to such
an attack, were proper for the more solemn mode of
investigation found in a trial, rather than in the (sum-
mary modes, which attend the ordinary Special Term
motions. Enapp v. Fowler, 26 Hun^ 202.

If therefore the assignment was invalid, and the
interest of the First National Bank in the malt de-
pended upon the warehouse receipts for its validity,
the Second National Bank with its judgment and
execution was in a situation to seize the malt as the
property of Dun, and to make its execution out of the

88» CIVIL PROCEDURE REPORTS.

Bank of Oswego t>. Dun.

same, unless some technical rule of law prevented
tbe sheriff holding the execution from following the
command of the execution and the directions of the
judgment creditor in respect thereto.

Appellants' contention is that the '• property taken
under replevin either before or after surrender to the
plaintiff in the replevin action, cannot be taken from
such plaintiff or the sheriff on execution against one of
the defendants in the replevin snit." In considering
that question we must, upon the facts presented to us,
take notice of the fact that more than three days had
elapsed from the service of the replevin papers before
the execntion was levied. The right of the defendants
in the replevin action to give an undertaking, and have
the property returned to them, had expired. The
sheriff was not therefore obliged to retain the property
in his possession, in virtue of the requisition papers of
the replevin. It had already become his duty to make
a manual physical delivery of the malt to the plaintiff,
in the replevin action. (Code of Civil Procedure, §§
1702 and 1703.)

He had recognised that duty, and in obedience to
it, he had called upon the proper officer of the plain-
tiff in that action, and proposed a delivery of the prop-
erty, and the affidavits used upon the motion con-
tained a statement that the officer had accepted such
delivery as was proffered by the sheriff. However, it
appears that the malt remained in the store-house of
the debtor until after the sheriff received the execution
— that there was, in fact, a loss upon the malt, is
shown by the affidavits. But it said that the sheriff
had received the usual undertaking from the plaintiff
in the replevin action, providing for the return of the
property to the defendant in that action if its return

should be adjudged. But it must be borne in
["] mind, that such an undertaking did not run to

the Second National Bank, nor in any manner

CIVIL PROCEDURE REPORTS. 383

Bank of Oswego c. Dun.

secure or protect its rights or interests in the prop-
erty. Nor was the position of the Second National
Bank in subordination to or in harmony with the
interest or title asserted by the First National Bank.

It was in hostility to the interest or title sought to
be established throngh the proceedings in replevin,
asserting that Bun had never, as against a judgment
creditor, parted with the possession and title to the
property, and that the same was therefore liable to levy
and sale upon an execution against him, as the First
National Bank had only such an interest as might be
enforced against Bun or his general assignee.

Under such circumstances we are of the opinion
that the property was liable to levy and that the exe-
cution required the sheriff (upon being properly indem-
nified as he was) to levy and hold the property under
his levy to the end that a sale might be made of the
property. The Second National Bank was a stranger
to the replevin proceedings, and as to it the prop-
er erty was not in legal custody. So that the same
could not be reached by levy upon its execution.
(Burkle v. Luce, 1 Corns. 164, affirming S. C, 6 Hill, 558 ;
Manning v. Keenan, 73 i\T. T. 45 ; Shipman v. Clark, 4
DeniOy 446 ; Foster v. Pettibone, 20 Barb. 350.)

The case before us differs from Hague v. Lucas,
[■] (10 Peters U. 8. 400) ; and from Seymour v. New-
ton (1? Hun, 32), as in those cases there was an
attempt to seize property upon process emanating from
a different jurisdiction from the one under which it
was held. In the last case cited Bookes, J., says, " To
constitute a valid levy, the officer must bring the
property under his dominion and control. This he
cannot do while it is in the hands of another officer
under levy, for he could not lawfully obtain any do-
minion over it, — while thus in custody of the law."

Nor, is the respondent aided by Gilbert v. Moody
(17 Wend. 357), which was a case of sale of house-

384 CIVIL PROCEDURE REPORTS.

Bank of Oswego «. Dan.

[4] hold furniture by a sheriff, and the purchaser left

the goods upon the premises, and they were dis-
trained, and the purchaser brought an action, and in-
sisted the goods were in custodia leg is, but the court
held otherwise, as they had been sold by the sheriff
and delivered, and his possession had ceased.

Nor does Morris v. De Witt (6 Wend. 71) reach the

question here presented, as in that case the second
[*] writ of replevin was by the defendant in the first

writ, and the second was set aside on motion as
the defendant in the first had an opportunity to try
his title and rights to the bog or iron ore in the first
action. We have not been able to discover how the
Second National Bank could have tried and had deter-
mined its interest in the malt, if its execution and levy
are set aside in the replevin suit, as it is not a party
to that action, and therefore has no right to defend
against First National Bank's claim of title set up in
the replevin action.

It is insisted that Dun had no leviable interest in
the malt, as he was a mortgagor without any right of
possession, and therefore the sheriff could not levy in
virtue of the Second National Bank's execution. The
affidavits do not set out the warehouse receipt, or
mortgage held by the First National Bank, and we can-
not therefore determine the point made in the argu-
ment. Of course a mortgagor who has possession, and
by the terms of the mortgage has a right of posses-
sion, has a leviable interest. (Hull v. Carnley, 11
N. T, 501 ; Hall v. Samson, 19 Bow. 481 ; Manning
v. Monaghan, 28 iT. F. 585.) But the position of
the Second National Bank is that the mortgage or
u warehouse receipt," is void as it was executed by
Dun (Bank v. Lang, supra) and not filed or recorded
in the clerk's office, so as to give it any validity as
against a judgment creditor of Dun. On the other
hand the First National Bank claims that the " ware-

CIVIL PROCEDURE REPORTS. 385

Scheu «. Biehn.

hoase receipt/' operated as a pledge, and that the sub-
sequent delivery of the malt gives it validity and relies
upon Parshall v. Eggert, 54 N. T. 18.

As the paper is not set oat, and the facts are not
fully before us which affect the question, we do not
pass upon the questions suggested, in regard to the in-
terest-or title of the First National Bank in the malt.
From the views already stated, we think the Special

Tefm fell into an error in setting aside the levy, and
[*] in granting an order in the nature of an injunction

Upon the sheriff, and that its order so far as it is
brought up by the appeal, should be reversed with $10
costs and disbursements.

Smith, P. J., and Bookes, J. r concurred.

SCHEU, Appellant v. LEHNINGr, et al.
BIEHN, Respondent.

Supreme Court, First Department, General Term,
October, 1883.

§1583.

Partition. — Action for cannot bo maintained "between remaindermen token

actual partition cannot be had without great prejudice to owner*. —

Purchaeer of partition tale when not compelled to take title.

It is now well settled that a purchaser at a judicial sale will not be
compelled by the court to take title unless the same is free from
reasonable doubt. [']

In an action for partition brought by one of two or more joint tenants
or tenants in common of a vested remainder or reversion, where it
clearly appears that an actual partition cannot be made without
great prejudice to the owners, the court has no jurisdiction except
to dismiss the complaint. [*] Such an action cannot be maintained
Vol. IV.— 25

386 CIVIL PROCEDURE REPORTS.

Scheu ». Bieha.

except only where actual partition of the property itself can prop-
erly be made.[*]

"Where one L. by his last will and testament devised and bequeathed to
his widow F. L., the income of his property, both real and personal
for her life, provided she should remain a widow, and directed that
in case of her death or remarriage the remainder should be divided
among his children, reserving to F. L. in case of her remarriage her
dower in his estate, and one of the remaindermen brought an action
for partition of the real property in which it was determined that
actual partition could not be had without prejudice to the owners,
and said F. L. agreed to accept a sum in gross in lieu of her interest
in the estate " to be computed according to the principles applic-
able to life annuities pursuant to the Portsmouth or Northampton
tables and the 71st rule of this court :" Held, that the value of her
estate could not be determined by the tables mentioned, [4J that the
court had not power to direct a sale in such an action [*, *] and
where a sale was ordered and had, the purchaser waa not bound to
proceed and complete his purchase. [']

(Decided November 21, 1883.)

Appeal from order of special term denying motion
to compel purchaser to take title.

The facts are stated in the opinion.

Qeorge Hoffman (Henry Krvpf> attorney), for
plaintiff, appellant.

The purchaser objects to the jurisdiction of the
court in the case at bar, because under Sullivan v. Sul-
livan (66 N. T. 38), a co-remainderman had no right
to institute partition, and that therefore the court has
no jurisdiction to entertain it. The non-sequitur of
the above proposition is at once apparent. The rights
of the plaintiff are not the test of the jurisdiction of the
court to pass upon them as to the subject matter affec-
ted, and the above objection is clearly not a jurisdic-
tional one, which it must be, as will be shown here-
after, to be tenable at the instance of a purchaser. . . .

The principle that a purchaser can raise successfully
only objections affecting the jurisdiction of the court is

CIVIL PROCEDURE REPORTS. 88T

Scbeu i>. Biehn.

emphatically laid down in De Forest v. Farley, 62 N.
Y. 628 ; Howell v. Mills, 56 N. Y. 226 ; Jenkins v. Fa-
hey, 73 N. Y. 355 ; reversing S. C., 11 Hun, 351 ; Al-
vord v. Beach, 5 Abb. Pr. 461 ; Cochrane v. Van Sur-
lay, 20 Wend. 365 ; Mead v. Mitchell, 5 Abb. Pr. 92 ;
S. C. affirmed, 17 N. Y. 210.

As regards purchasers, the only question is, whether
all proper parties are before the court, not how the
court has adjudged their rights, or has distributed the
proceeds of the aale. If all the parties in whom an in-
terest exists which could at all disturb his title are par-
ties to the suit, and a sale is decreed, the purchaser
need look no further. His protection is perfect. Hol-
den v. Sackett, 12 Abb. Pr. 473. All the persons inter-
ested being parties, no one but themselves can raise
any question as to their respective interests as between
themselves, or object to the judgment of the court.
An outsider cannot. Blakeley ». Calder, 15 N. Y. 617 ;
Brevoort v. Brevoort, 70 Nm Y. 136. In the case of
Jackson v. Edwards (22 Wend. 518), Senator Verplank
says : " But the validity of the sale does not necessa-
rily depend upon the just application and apportion-
ment of the fund raised by it. The latter, though an
important part of the duty of the court, may be care-
lessly or erroneously performed, or its performance
may be waived by the negligence or the acquiescence
of the parties, but in neither case ought the sale, and
the conveyances under it, be disturbed."

The rule is well settled that a judgment rendered
by a court having competent authority to deal with the
subject matter involved in the action, and jurisdiction
of the parties, although against the facts, or without
the facts, to sustain it, is not void as rendered without
jurisdiction, and cannot be questioned collaterally
Hunt v. Hunt, 72 N. Y. 218 ; Jenkins v. Fahey, 73 N. Y.
355. See also Jordan v. Van EppSj 85 iV. Y. 427 ;
affirming S. C, 19 Hun, 526.

388 CIVIL PROCEDURE REPORTS.

Scheu «. Biehn.

The judgment is final and conclusive between the
parties, not only as to the matters actually determined,
but as to every other matter which the parties might
have litigated, and have decided as incident to or es-
sentially connected with the subject matter of the liti-
gation within the purview of the original action, either
as matter of claim or defense. Clemens v. Clemens, 37
N. T. 74 ; Bloomer v. Sturges, 58 If. T. 176; Jordan
v. Van Epps {supra).

Under the statutes of this state, when all of the par-
ties in being having any estate or interest, present or
future, vested or contingent, in the lands, are made
parties to an action for partition, a purchaser at a sale
under a judgment therein acquires a perfect title.
Brevoort v. Brevoort, 70 If. T. 136.

Wyatt & Trimble^ for purchaser, respondent.
The court had no jurisdiction to entertain this action
at the suit of one of several holders of a vested remain-
der ; any sale thereunder must therefore be void-
Prior to the enactment of section 1533 of the Code
of Civil Procedure, holders of a vested remainder
could not maintain an action of partition at ail. The
court of appeals settles this. Sullivan v. Sullivan,
66 N. T. 37 ; Morse v. Morse, 85 N. T. 57 ; Stewart v.
Monroe, 56 How. Pr. 194.

That a purchaser at a sole made in an aotion to main-
tain which the plaintiff had no legal right, will be re-
leased, was held in a very similar case. Harris v. liar-
kins, 22 27tm, 448. The fact that the life-tenant, after
the entry of an interlocutory judgment, consented to
take a gross sum in lieu of her estate, cannot affect the
question, her life estate is still extant, it has not fallen
in ; moreover her estate was for life or widowhood, and
there is no provision for such consent. Section 1569
only allows it for a life estate in an undivided share of
the property sold. . . . Allowing that this action

CIVIL PROCEDURE REPORTS. 389

Bcheu v. Biehn.

for partition could be maintained, the court had no
power to order a sale. Code of Civil Procedure,
§1533. . . .

This clearly forbids just such a sale as this, and
manifestly it was the intention of the Legislature that
if it did allow remaindermen to institute partition, it
should be for partition only, and such a sale should
not be had. Hughes v. Hughes, 2 2T. T. Civ. Pro. 139.
For the court to order a sale in the face of this stat-
ute, would in the words of Mr. Justice Daniels, " in-
volve the exercise of an authority which the Legisla-
ture have declared no court shall possess." Muller v.
Struppman, 6 Abb. N. C. 343.

•7". Van Vechten Olcolt, for adult defendants, appel-
lants.

Robert A. Livingston, for infant defendants.

Davis, P. J. — Peter J. Lehning died in 1867, seized
of the premises sought to be partitioned by this action,
leaving him surviving Frederica Lehning, his widow; the
plaintiff, his daughter by a former wife, and Julia Van
Cott, William George Lehning and Carolina Louisa
Predrica Lehning his children by the defendant Fred-
erica Lehning, all of whom are still surviving and of
full age, except Caroline Louise Frederica Lehning
who is an infant.

By his last will and testament he gave, devised and
bequeathed to his widow the rents, issues and profits
of his estate, as well real as personal during her
natural life, provided she should remain his widow.
By the third clause of his will he gave, devised and
bequeathed to his children upon the death or remar-
riage of his widow, whichever should first occur, all
the rest, residue and remainder of his estate, as well
real as personal, to be divided among them equally,

390 CIVIL PROCEDURE REPORT&

Schou f». Lefatnog.

share and share alike ; reserving, however, to his
widow in case of her marriage, her dower in his estate.
By other provisions he appointed his widow guardian
of the person and estate of his children, daring mi-
nority and nominated her sole executrix of his will.
This will was duly admitted to probate. This action
is brought by Charlotte L. Schea, one of the devisees
of the estate in remainder for the purpose, among
other things, of having a partition and division of the
premises described in the complaint, according to the
respective rights and interests of the parties, or, if
such partition could not be made, that the same be
sold under the direction of the court, and the proceeds
divided among the parties according to their respec-
tive rights and interests. The defendants appear, in
the action, the infant defendant by her guardian,
the other defendants by attorney. On a reference
to ascertain whether actual partition could be made,
the referee reported for good reasons, that the property
was not capable of equal partition, and that the only
mode of division was by a sale. The widow filed in
due form a consent that the property be sold, and an
agreement to accept in lieu of her life or other interests
in the premises and in satisfaction thereof a sum in gross
out of the proceeds of the sale according to her rights
to be ascertained by the reports of the referee therein,
" such sum to be computed according to the principles
applicable to life annuities, pursuant to the Ports-
mouth or Northampton tables and the 71st rule of this
court.' '

Upon the coming in of the referee's report, the in-
fant defendant, by her guardian, filed exceptions to
the report, substantially insisting that, upon the facts,
no sale of the premises could be lawfully made. The
court overruled the exceptions and gave judgment
directing a gale and division of the proceeds. The
premises were thereupon sold by the referee appointed

CIVIL PROCEDURE REPORTS. 891

Scben «. Lehning.

for that purpose, and at the sale were struck off to the
respondent John Biehn, who paid ten per cent, of the
purchase money and executed the ordinary memoran-
dum of the sale. At the time fixed for the delivery of
the deed, he appeared by his counsel and refused to
proceed on the ground in substance that a good title
could not be made under the judgment and sale. A
motion was then made at special term, to compel the
purchaser to take title, which motion was denied, and
the plaintiff and the widow appealed from the order of
denial.

It is now well settled that a purchaser at a judi-
['] cial sale will not be compelled by the court, to take

title unless the same be free from reasonable doubt
(Schriver v. Schriver, WIT. T. 580; Jordan v. Poillon,
77 N. T. 618).

This action, so far as relates to the partition of the
property, is brought under section 1533 of the Code,
which is in these words: " Where two or more per-
sons hold as joint tenants or as tenants in common, a
vested remainder or reversion, any one or more of them
may maintain an action for a partition of the real
property to which it attaches according to their respec-
tive shares therein, snbject to the interest of the per-
son holding the particular estate therein, but in such
an action the property can be sold, and if it appears
at any stage thereof that partition cannot be made
without great prejudice to the owners the complaint
must be dismissed, such a dismissal does not affect the
right of any party to bring any action after the deter-
mination of the particular estate."

This section is distinctly applicable to and control-
ling of the question before us. Under it the court had
jurisdiction to entertain an action for the purpose, if that

were practicable, of making an actual partition. But
17] when it appeared, as it clearly does in this case

that such partition could not be made without great

392 CIVIL PROCEDURE REPORTS.

I Scheu v. Lehuing.

prejudice to the owners, it had no jurisdiction except
to pronounce the judgment dismissing the complaint,
so far as it related to that relief. Whatever may have
been the law prior to the enactment of this provision,
relative to the right to maintain actions of partition in
such cases, the code by the section cited, has taken
possession of the whole subject matter and subjected it
to the conditions prescribed by the sections itself. So we

think an action of partition cannot be maintained,
['] except where only actual partition of the property

itself can be properly made. It is supposed, how-
ever, that the consent of the widow that the property be
sold and the value of her particular estate be ascer-
tained and paid to her, enabled the court to proceed
and pronounce the judgment of sale. In the first place,
it may be suggested that the course of proceeding was
not applicable to the case, because her estate was one
the value of which could not with certainty be ascer-
tained under any rule or practice of the court. The es-
tate given to her was for her life if she remained the
widow of the testator. Upon remarriage the estate un-
der the devise was wholly to terminate, and she.be re-
manded to her dower interest alone. The value of

such an estate cannot be determined by the tables
[*] mentioned in the stipulation. If it be treated as

an absolute life estate, gross injustice may be done
by paying over to her the value of such an estate di-
vested of the condition which the testator imposed.

The condition was a legal one, and the courts are
bound to regard, however much they disapprove it.
Of course, if the rights of an infant did not intervene,
and the parties were all of lawf ul_ age, they might
make such a mutual agreement for the disposition of
the property and division of the proceeds, as should
suit their interests, but they would not require the in-
tervention of any action or partition, nor the judgment
of any court. When, however, a suit is brought for

CIVIL PROCEDURE REPORTS. » 393
Place «. Riley.

partition in a case of this character, especially where
the rights of an infant can be affected, the conrt is
bound to see to it that its judgment must not exceed
the powers conferred by the statute.

In this cace the purchaser could not under the cir-
cumstances receive a title by the referee's deed,
[*] free from reasonable question or doubt. He was not
bound, therefore, to proceed and complete the
purchase.

The order of the court below must be affirmed with
$10 costs, besides disbursements.

Brady and Daniels, JJ., concurred.

PLACE, Respondent v. RILEY, Appellant,
WHITTAKER and WILLIS, Respondents.

Supreme Court, Second Department, General
Term, December, 1883.

§§ 707, 708, 1370.

Execution— form of, where summons served by publication. — Must direct
$ati*f action of judgment out of personal property not attached,
when publication founded on defendant's conceal-
ment within the state.

Where the summons in an action was served by publication and the
defendant has not appeared, if the publication was against a non-
resident the execution roust go only against property which has
been attached ; and if the publication was made as provided for in
cases of residence and concealment in the state the execution must
go against, (1) the attached personal property, (2) other personal
property, (3) attached real estate, and (4) other real estate. The
principle established is that non-residents should only answer by the
attached property, and residents shall answer generally, but in the
order stated.

394 , CIVIL PROCEDURE REPORTS.
Place*. Riley.

Where judgment was taken by default in an action in which the 1
moos was served by publication, on the ground that the defendant
being a resident of the state concealed himself and evaded service
of the summons, and an execution issued on said judgment directed
the sheriff to satisfy it, " out of the personal property attached by
you in this action, and if that is insufficient out of the real property
heretofore attached by you in this action in your county belonging
to such judgment-debtor. " Held, that the execution and a sale there-
under, of real property belonging to the judgment-debtor should be
set aside; that the omission of a direction to satisfy the judgment
out of the personal property of the debtor not attached was not a
mere irregularity, but a fatal defect.

(Decided February 11, 1884).

Appeal from an order denying a motion to set aside
a sale of real property under execution.

This action was begun on May 7, 1876, by the service
of a summons on the defendant by publication, and
was brought to recover the sum of $131, a balance
alleged to be due from the defendant to plaintiff for
goods sold and delivered.

The defendant, at the time of the commencement
of the action was a resident of this state, and was pro-
ceeded against in this action as "being a resident of
this state, but that he had departed therefrom, with
intent to cheat and defraud his creditors, or that he
kept himself concealed therein with like intent.'9
A warrant of attachment was issued August 5tb, 1878,
on the same ground as above set forth, under which
defendant's real estate was attached. The defendant
was not personally served with process, did not appear
therein, and judgment was taken agaiust him by default
August 30th, 1878, for $226.37. On the same day an
execution was issued to the sheriff of Queens county,
which after reciting the recovery of the judgment ;
that it had been duly docketed in Queens county and
that $226.37 was actually due thereon, continued as
follows : " Therefore we command you that you satisfy
the said judgment out of the personal property at-

CIVIL PROCEDURE REPORTS. 395

Place *. Riley.

tached by yon in this action and if that is insufficient
out of the real property heretofore attached by you in
this action in your county belonging to such judgment
debtor and return this execution within sixty days
after its receipt by you, to the clerk of the county of
Queens.*'

Under this execution certain real property of the
defendant situate in the village and town of Hemp-
stead in the county of Queens, which had theretofore
been attached under the warrant of attachment, above
mentioned, was levied upon and sold under said execu-
tion by said sheriff, in the latter part of October in the
year 1878, and bid off on the day of sale by Owen Riley,
for $600, and after the time to redeem had expired, was
conveyed by said Owen Riley to Wittaker and Wil-
lis,

About October 1, 1880, the defendant returned to
this state and immediately proceeded to have the judg-
ment taken against him by default opened, and de-
fended the action. In April, 1882, the cause was tried
and a verdict rendered in his favor.

He thereafter moved to set aside the sale under exe-
cution and the deeds to Owen Riley and from him to
Whittaker and Willis.

The motion was denied and this appeal taken from
the order thereupon entered.

George A. Molt, for appellant, cited in support of
contention that the defendant being a resident of the
state the judgment was in personam. Pope v. Terre
Haute CarMan'f. Co., 87 N. T. 137; Gibbs v. Queen
Ins. Co., 63 Id. 124 ; Hunt t>. Hunt, 72 Id. 237; Has-
well v. Lincks, 87 Id. 637 ; that the judgment was
against the defendant's property generally, and should
first have been satisfied out of his personal property
Freeman on Executions, pp. 469, 460 ; Code of Civil
Procedure, § 1370.

396 CIVIL PROCEDURE REPORTS.

Place «. Riley.

B. W. Downing {A. J¥. Wetter, attorney), for
respondents Whittaker and Willis.

The execution could only issue to seU the property
attached, for the judgment was not a personal judg-
ment but a judgment in rem, condemning the property
levied upon by the attachment, Force v. Grower, 23
How. Pr. 294 ; Warren v. Tiffany, 9 Abb. Pr. 66 ; S. C,
17 How. Pr. 106 ; Thatcher v. Bancroft, 15 Abb. Pr.
243; Phelps v. Baker, 60 Barb. 107; Piske v. Ander-
son, 33 id. 71 ; S. C, 12 Abb. Pr. 8 ; Hulbert v. Hope
Mut. Ins. Co., 4 How. Pr. 275 . . . see also McKin-
ney v. Collins, 88 N.Y. 216 .. . But at most the
execution was merely irregular, and will not be set
aside unless the defendant has been prejudiced by the
irregularity. Hill v. Haynes, 54 N. T. 156 ; Hutchinson
v. Brand, 6 How. Pr. 77 ; Douglas v. Haberstro, 2 ilT.
T. Civ. Pro. 186 ; People ex rel. Brown v. Van Hoesen,
62 How. Pr. 77 ; Park v. Church, 5 Id. 383. The
irregularity in the process of the court can be amended
at any time. Williams v. Hogeboom, 22 Wend. 648 ;
Benedict & Burnham Manf. Co. v. Thayer, 20 Hun,
547 ; Boyce v. Vanderkemp, 1 Barb. Ch. 273 ; see
Ovoronhe c. Terry, 17 iV. T. Weekly Dig. 503 ; Code of
Civ. Pro. § 723. The title of a bona fide purchaser
will not be affected by mere irregularities in the execu-
tion. Jackson v. Cad well, 1 Cow. 622 ; Averill v. Wil-
son, 4 Barb. 180 ; Chautauque Co. Bank v. Risley, 4
DeniOy 480.

Foster & Stephens , for respondent, Place.

Barnaed, P. J. — This is a hard case. The plain-
tiff procured an attachment against the defendant as
an absconding debtor. There was proof tending to
show very strongly that the defendant left the state
of New York under such circumstances as would justify
the inference that he intended to cheat creditors.

CIVIL PROCEDURE REPORTS. 397

Place v. Riley.

The summons was served by publication. The papers
do not show the affidavits on which the order to pub-
lish was issued, and it must be assumed tbat they made
oat a case under section 438 of the Code. A general
execution was issued, and under it the sheriff of Queens
county sold the defendant's real estate. The property
brought probably less than half its value. The time to
redeem ran out and the purchaser at the sheriff's sale
conveyed the land toWhittaker & Willis, who now occu-
py the same. After the time for redemption expired the
defendant returned to this state. He applied to open
the case and answer. He obtained such leave, answer-
ed, tried the case before a jury and succeeded in his
defense. Thus the defendant has been sold out for a
debt which did not exist. This fact does not determine
the case. The judgment was regular and in full force
when the sale was made. The purchaser bought on
the faith of the judgment and his grantees have
bought on the faith of the judgment and his grantees
have bought on the faith of this title, and have made
large repairs on the premises. The execution was not
regular. I assume from the papers that the attach-
ment was against a resident who had fled with evil
intent. It is also to be inferred that the order of pub-
lication was based upon the same allegation. Only
two executions were proper. If the publication was
against a non-resident, then the execution could only
go against the property attached. If the publication
was made as provided for in cases of residence and con-
cealment in the state the execution must have gone
against, 1st, the attached property ; 2d, other personal
property ; 3d, attached real estate ; 4th, other real
estate (Code, 1370). The principle established is that
non-residents shall only answer by the attached prop-
erty, and residents shall answer generally, but in cer-
tain prescribed order of sale. This execution violated
this section. It left out from the levy personal property

398 CIVIL PROCEDURE REPORTS.

Townsend v. N. T. Life Ids. Co.

of the alleged debtor not actually attached. The sale
of the real estate was therefore irregular and void.
There is proof tending to show other personal property
than that attached, but in the absence of such proof
the execution must follow the statute so that actual
search by the sheriff should determine the fact. The
omission was not a mere irregularity and thus amend-
able. The case is as if an execution should direct
the sale of the debtor's lands in the first instance. The
order should be reversed and the execution and sale
under it set aside without costs.

Dykman, J., concurred.

TOWNSEND, Respondent, v. THE NEW YOBK

LIFE INSURANCE COMPANY, as

Administrator, etc., Appellant.

Court of Appeals, January, 1884.

§ 631.

BUI <rf particular*. — Rule a* to pleading account and failure to serve doe*
not apply to reference of claim against administrator. — Adminis-
trator may require voucliers, affidavit of creditor and
itemi of claim to be presented to him. — When
general agent cannot delegate author-
ity or appoint another
general agent

An administrator to whom a claim against his intestate's estate is pre-
sented is entitled both to vouchers and the affidavit of the creditor
thereto, and also has power at its presentation and l>efore rejecting it
or consenting to a reference to require that the claim be made more
definite and certain. [lJ

Where an administrator upon the presentation of a claim against his
intestate's estate demanded a bill of items, but without any being
furnished united in an agreement with the creditor to refer j ursaanC

CIVIL PROCEDURE REPORTS. 3M

Townsend «. N. Y. Life Ins. Co.

to the provisions of tbe revised statutes (9 R 8. 88, } 84) by which
issues were formed. Held, that the case was not within the provi-
sions of the code (§ 531) which prescribe how an account shall be
pleaded and the penalty for omitting to serve a bill of items ;[*]
that the referee did not err in refusing to find as a matter of law
that the plaintiff, having furnished no bill of particulars, was pre-
cluded from giving evidence of, or from recovering for, if proved,
the items fairly within his statement of his claim ;[*] that the referee
could not vary or enlarge the matters referred nor could he reject
evidence of any item fairly within the scope of plaintiff's claim. ['J

Where a claim for u services in aiding in the care and protection " of
an estate was presented to an administrator and by consent referred,
pursuant to the revised statutes (2 R. S. 88, } 84) : Held, that the
referee exceeded his discretion in allowing for services rendered
as an attorney ;[*, T] that such matters were not referred to him ;[7] and
tbe judgment should be reduced by the amount so allowed ;['] that
services rendered by reason of a special relation would naturally
be the subject of a distinct and specific statement. [•]

Where one T. presented a claim to the administrator of the estate of
B. for *' services in aiding in the care and protection of " said estate,
and the claim was duly referred, and on the trial T. proved hia
" actual and continued employment by one Smith," and it appeared
that "B." had given said Smith and one P. a power of attorney
whereby she appointed them her "true and lawful joint attorneys
and general agents ... to attend to the business of and
manage all and singular " her business affairs and concerns : Held,
that while the authority of Smith as general agent would no doubt
include power to employ necessary means to render his agency
effectual the written power does not in terms or by implication
authorize him to delegate his authority or put another agent in his
place, [8] and that such allegation of agency by Smith, or such gen-
eral employment as is claimed, if it existed, would have been
unauthorized and "B." not bound. [•]

{IhcicUd, February 8, 1884.)

Appeal from a judgment of the general term of the
supreme court, first department, affirming judgment
entered on the report of a referee.

July 18, 1872, Mrs. Charlotte Brinckerhoff died and
thereafter the defendant was appointed her adminis-
trator. The plaintiff subsequently presented a claim
against her estate which was as follows :

«* CIVIL PROCEDURE REPORTS.

T»«— itS. Y, Life Im. Co.

•• Tee X- Y. I*fe Insurance and Trust Co.

liu^ ire of Mrs. Charlotte Brinckerhoff,

7v J^m? J. To wy send, 2>r.

Jlj*L« £1. Far mj set-rices in aiding in the
care and protection of the estate
if Mrs. Brinckerhoff, from Nov.
L l>f& to data, and for advice
in transactions relating thereto $6,000

Mar L G&sh paid counsel for consultation

asi advice 260

laiesrsst on last item to May 1, 1873 70

$6,320"

A dtwand for kill of items of this account was
sirred on the plaintiff, bat no bill of particulars was
ever made or »rved.

The claim was thereupon duly referred under a
wri;;en agreement between the parties.

On the trial it appeared that Mrs. Brinckerhoff and
her sister. Miss Louisa Troup, inherited a large estate
from their father, which was never divided but was
held in common by them ; that Frederick Bronson, up
to Nov. 1, 1S6S* when he died, had charge of their
entire estate as their agent, and had in his employ for
many years one Elias I* Smith, who thus became
familiar with all the business connected with the estate
of these ladies, that said Bronson died on the 1st of
November, 1868, leaving the plaintiff, John J. Town*
send his executor, that the plaintiff at that time took
possession of the estate of Frederick Bronson, and also
of the property belonging to Miss Troup and Mrs.
Brinckerhoff, that in December, 1868, shortly after
Bronson' 8 death, Mrs. Brinckerhoff appointed Elias L.
Smith and Robert L. Pell her joint attorneys and agents

CIVIL PROCEDURE REPORTS. 401

Townsend t>. N. Y. Life Ins. Co.

to take charge of her estate, and that on February
2, 1869, Miss Troup wrote plaintiff the following letter :

"New York, Feb. 2d, 1869.
44 Dear Mr. Townsend :

Mrs. Brinckerhoff and myself thank you kindly for
the interest you have taken in our affairs. We prefer
that Mr. Pell and Mr. Smith should serve us under the
power of attorney given them. If Mr. Smith declines,
perhaps our relative, Mr. Ireland, could be induced to
take his place. We should like to have Mr. Calhoun
retained as Mr. Smith's assistant.

Respectfully yours,

Miss Louisa Troup."

The referee found, among other things, "that from
the date of Frederick Bron son's death until the
appointment of the New York Life Insurance and Trust
Company, as the administrator of Mrs. Brinckerhoff,
the claimant, John J. Townsend, by the authority and
employment of Mrs. Brinckerhoff, had the same charge,
management and care of her property and securities as
Frederick Bronson in his lifetime had had, and ren-
dered the same services in and about the same as the
said Bronson had previously rendered, supervising the
keeping of the accounts of the estate, directing Mr,
Smith, who continued to act as the clerk and book-
keeper in the performance of his duties, keeping the
property invested and re-invested, adjusting and pay-
ing the taxes upon the property, attending to all ques-
tions and matters arising in regard to it, and carrying
on all negotiations incident to it," and that the plain-
tiff was entitled'to judgment against the defendant for
$5,876.30. Further facts are stated in the opinion.

Ira 2). Warren, for appellant.
The power of attorney being joint, Smith had no
Vol. IV.— 26

402 CIVIL PROCEDURE REPORTS.

Townaend «. N. Y. Life Ins. Co.

authority under it to employ Townsend without Pell's
assent. . . . Much less could he employ another
agent to direct and control the business, who should
be entitled to a commission on the whole estate. Pell
and Smith jointly could not do rhis ; much less could
Smith alone. Guildersleeve v. Board of Education, 17
Abb. Pr. 202 ; Green v. Miller, 6 Johns. 38 ; Holtsinger
v. Corn Exchange Bank, 6 Abb. N. S. 296 ; Sinclair v.
Jackson, 8 Caw. 644 ; Oakley v. Aspinwall, 3 N. Y.
565 ; Perry v. Lynen, 22 Barb. 137 ; Howes v. Walker,
S3 Id. 304.

Joseph H. Choate, for respondent.

Danfokth, J. — The proceeding brought up by this
appeal was instituted under sec. 34, t. 3, p. 2, ch. 6,
art. 2, of the R. S. (2 vol. p. 88) relating to the duty
of administrators, &c, in the payment of debts and
legacies. It must be assumed that the claim as pre-
sented conveyed sufficient information to the defen-
dants, for so far as appears they demand neither
vouchers nor the affidavit of the creditor. To both
these modes of verification they were entitled before
they could be called upon to pay, or even to express a

doubt of the justice of the claim (sections 35, 36,
['J » Id.). It was also in their power at its presentation,

and before rejecting it, or consenting to a reference,
to require that the claim be made definite and precise
(Weller v. Weller, 4 Bun, 196). They were confronted
with a demand, which, if just, they were bound to pay,
if unjust to resist, and as to which they were entitled
to particulars, if from its generality or for other reason
they were in doubt whether to pay or reject it. It
seems that they did demand a bill of items, and that
it was not furnished. But, instead of insisting upon
it they united with the creditor in an agreement by
which an issue was formed. That agreement consti-

CIVIL PROCEDURE REPORTS. 403

Townsend t>. N. T. Life Ins. Co.

tnted the pleadings between the parties. On the one
side the claim in writing, and a denial on the other
that the alleged creditor was ever retained by the
intestate, or that he had rendered any service for which
he had not been paid. It was approved by the sur-
rogate, and in accordance with the statute (supra), a
referee was appointed by the supreme court " to hear
and determine the matter in controversy mentioned in

the agreement." The referee could not vary or
[*] enlarge this matter, nor cojild he reject evidence of

any item fairly within the scope of the claim.
The case is not within the provisions of the

Code (§ 531), which prescribe how an account shall
[*] be pleaded and the penalty for omitting to present

a bill of items. If the claim had been rejected
the creditor would have been driven to his action and
the defendant could then have had all the means of
defense given by the Code. But the proceeding adop-
ted is a special one, and governed by provisions of the
Revised Statutes (supra, and sec. 39), all of which are
still in force. The learned referee therefore, did not

err in refusing to find as matter of law that the
[*] plaintiff, having furnished no bill of particulars,

was precluded from giving evidence of — or from
recovering for, if proved — the items fairly within his
statement.

Second. But in respect to another question,

the referee exceeded his discretion. The plaintiffs
[*] claim was limited by its terms to compensation for

services rendered in the general care and protec-
tion of the estate of Mrs. Brinckerhoff (defendant's
intestate), and the referee allowed for that the sum of
$6,020.30, or five per cent, upon the income of her
estate from the 1st of November, 1868, to the 31st of
October, 1873. This allowance answered the claim of
the creditor, and may be said to be within its scope
and meaning ; but neither the claim nor the measure of

404 CIVIL PROCEDURE REPORTS.

Townsend «. N. Y. Life Ins. Co.

compensation had any reference whatever to the plain-
tiff in his professional capacity. Services rendered by

reason of a special relation would naturally be the
[•] subject of a distinct and specific statement. The

claim is not of that description, but is a general
one for care and aid in the protection of the estate —
services which any one may render. The evidence
shows the services to have been of that nature. The
claimant was the executor of the estate of Bronson.
Bronson had in his lifetime charge of Mrs. Brincker-
hofFs estate, and the claimant, as he testifies, immedi-
ately upon the decease of Mr. Bronson, took the entire
assets of the estate into his possession, "kept it,
invested it and watched over it ;" and the referee finds
that Bronson during his life "cared for and managed
Mrs. Brinckerhoff s estate, and for his services in the
matter charged and received five per cent., upon the in-
come of that estate." In substance he finds that the
claimant rendered similar services, and for those allows
the same rate of compensation ; and all this was no
doubt fairly within the agreement under which he was
acting as referee. But he went beyond this. He
allowed, against the objection of the defendant, evi-
dence of the claimant's acts in a professional capacity
as attorney and counsel in defending an action brought
against Mrs. Brinckerhoff and Miss Troup as co-defend-
ants, in conducting proceedings in court for dispos-
sessing a tenant, and in preparing a codicil to Mrs.
Brinckerhoff s will, and for these services reported an
additional and separate compensation of $350. These

matters were not referred to him, and in their
f ] allowance the referee erred. But with the assent

of the claimant the judgment as to these items
might be corrected, leaving the residue to stand.

It becomes necessary, therefore, to examine the
more important question relating to the main item —
that embraced in the claim. There is evidence that

CIVIL PROCEDURE REPORTa 405

Townsend v. N. T. Life Ids. Co.

services were rendered by the claimant in relation to
the estate of Mrs. Brinckerhoff, under circumstances
above adverted to, but we are unable to find that they
were rendered upon any authority conferred by her or
with her knowledge, or that the claimant's acts were
at any time ratified by her. The referee has undoubt-
edly found to the contrary of this. He reports that
from the death of Bronson until the appointment of
the N. Y. Insurance and Trust Co. (the appellant), the
claimant acted in the matters referred to under her
authority and employment; when conferred or how
is not stated, and, as above said, we find no evidence
of it. Indeed, the learned counsel for the respondent
concedes that the usual evidence of such employment
was not given, but he relies Tipon proof of the claim-
ant's " actual and continued employment by one
Smith," who, he says, held her general power of attor-
ney. We are to look then to that instrument to ascer-
tain the nature and the extent of the authority con-
ferred upon that person. "I constitute and appoint,"
she says, "Elias L. Smith and Robert L. Pell my true
and lawful joint attorneys and general agents . . .
to attend to the transaction of and manage all and sin-
gular my business affairs and concerns whatsoever."
Smith acted as such ; attended, as the claimant testi-
fied, to everything that was done, and his conferences
with him in respect to matters in the estate were daily
and continuous. He made investments with the knowl-
edge and request of Smith, and undoubtedly he is
shown to have done other things under like circum-
stances. It may well be that for some of these ser-
vices, and perhaps all, he would be entitled to recover
as for acts done in aid of Smith and for the benefit of
the estate.

But he is not now claiming for specific services ; he
claims compensation for general services to the entire
estate, and for advice in transactions relating thereto,

406 CIVIL PROCEDURE REPORTS.

Townsend ». N. Y. Life Ins. Co.

as if upon a continuous employment, and in that char-
acter he could not have recovered. Of the value of spe-
cific services no evidence has been given. The authority

to Smith, as general agent, would no doubt include
[°] power to employ necessary means to render his

agency effectual. But the written power does not,
in terms, or by implication, go to the extent of authoriz-
ing him to delegate his authority, or put another agent
in his place. It is obvious that Smith was selected to do
the very things which are embraced within the general
claim now made by the respondent, and that they were
covered by the terms of his employment and by the

compensation awarded to him. I do not wish to
['] be understood as finding that there is evidence

either of a delegation of agency by Smith, or such
general employment as is claimed, but if either existed
the relation would have been unauthorized and Mrs.
Brinckerhoff not bound.

The respondent claims that as the books of the
estate were referred to on the trial, and are not brought
here, we cannot say that within their covers evidence
may not have been found for the satisfaction of the
referee. I think it may fairly be inferred that all the
evidence was inserted in the case which the claimant
thought material, but if not it does not appear that the
books were in any way referred to as containing evi-
dence as to the employment of the claimant. They were
offered by him as containing evidence of receipts and
payments by the estates during the period covered by
his claim, and apparently to show the amount of the
estate, and from them no doubt the learned referee
ascertained the income upon which commissions were
allowed. It is not suggested that they were before him
for any other purpose, and as to that no inaccuracy is
alleged. The respondent also refers to another item of
evidence, a letter produced by him as containing a
recognition by Mrs. Brinckerhoff of his employment.

CIVIL PROCEDURE REPORTS. 407

Townsend «. N. Y. Life Ins. Co.

The power of attorney was executed on December 16,
1868 ; the letter February 2, 1869. We find in it no
evidence of knowledge of past services, or a desire to
give the respondent future employment. It seems to
exclude both. It was written by Miss Troup, who, to
some extent, was interested with Mrs. Brinckerhoff.
In behalf of both she thanks the respondent, not for
services rendered, but "for the interest you have
taken in our affairs," and apparently makes answer to
an offer of service, or exercising an option in some way
brought before them, says, " We prefer that Mr. Pell
and Mr. Smith should serve under the power of attor-
ney given them," and suggests that Mr. Ireland be
substituted for Smith if the latter declines, and wishes
Mr. Calhoun retained as Smith's assistant. It may be
conceded that, if already employed, it does not dis-
charge the respondent. It does not recognize his em-
ployment, or express a wish for his services. It seems
to decline proffered services. Upon another trial other
testimony may be produced ; bat as the case now
stands, and on the plaintiffs showing, we have not
found evidence which under any reasonable construc-
tion will sustain the referee's findings, and are there-
fore constrained to say that the appeal from his
decision was well taken, and that the judgment of the
supreme court should be reversed, new trial granted,
costs to abide the event.

All concurred.

408 CIVIL PROCEDURE REPORTS.

Funk e. Tribune Association.

FUNK v. THE TRIBUNE ASSOCIATION.

City Court of New York, Special Term,
January, 1884.

§§ 870, 880.

The plaintiff in an action for libel may be examined "before trial a* to the

truth of the alleged libel where such examination will not subject him

to a criminal prosecution or a penalty or forfeiture, or render

him infamous. — Questions which may in any way do that

should not be allowed, and the witness should not be

required to plead his privilege as an excuse for

not answering them.

The rules that the court will not compel a defendant in an action for
libel or slander to furnish evidence in answer to a bill of discovery,
to maintain the action and subject him to pun a tire damages in the
nature of the penalty, does not prevent the defendant compelling
a discovery from the plaintiff of the truth of the alleged libel, wheie
such discovery will not subject bim to a criminal prosecution or to
a penalty or forfeiture or render him infamous.

On an examination of a party before trial, no questions should be per-
mitted, the answers to which may in any way tend to subject the
witness to a criminal prosecution or penalty, or render him infamous,
nor should he be required to plead his privilege as au excuse for
not answering, such a requirement, being contrary to the spirit and
intent of the rule regulating such examinations

{Decided January 5, 1884.)

Motion to vacate an order for the examination of the
plaintiff before trial in an action for libel.

This action was brought by plaintiff to recover
$2,000, damages alleged to have been suffered by rea-
son of the publication of an alleged libelous article in
the Tribune, a daily newspaper published by the de-
fendant. The defendant procured an order for the
examination of the plaintiff before it had answered, to
enable it to prepare its answer and for trial, which

CIVIL PROCEDURE REPORTS. 409

Funk 9. Tribune Association.

order plaintiff now seeks to have vacated and set
aside.

McAdam, Ch. J.— While it is true that the courts
will not compel a defendant, in an action for libel or
slander, to furnish evidence in answer to a bill of dis-
covery to maintain the action and subject him to pallia-
tive damages in the nature of a penalty (5 Barb. 297 ;*
9 Paige, 680 ;f 2 Abb. N. C. 158 # 14 Hun, 122 1), the
rule does not prevent the defendant compelling a dis-
covery from a plaintiff of the truth of the alleged libel,
where such discovery will not subject him to a criminal
prosecution, or to a penalty or forfeiture, or render
him infamous (9 Paige, 680 ;f 26 Hun, 166 §). The
application to vacate the order for examination will
therefore, be denied, and the plaintiff will be required
to submit to the required examination, but no ques-
tion will be permitted, the answer to which may in any
way tend to subject her to a criminal prosecution or
penalty, or to render her infamous, nor will the witness
be required to plead her privilege as an excuse for not
answering such questions, such a requirement being
contrary to the spirit and extent of the rule regulating
such examination (see 26 Hun, 169 §). So limited, the
examination may be had on the 9th day of January,
1884, at 10 a. m., and the defendant to have three days
within which to answer after the completion of such
examination.

* Bailey v. Dean.

t March v. Davidson.

X Phoenix v. Dupuy.

| Brandon MT g Co. «. Bridgman.

{ Kinney t>. Roberts & Co.

410 CIVIL PROCEDURE REPORTS.

Kranse v. Averill.

KRAUSE v. AVERILL.

City Court of New York, Special Term,
November, 1883.

§§ 421, 422. .

Appearance.— When notice of appearance efficient: — Order extending
time to answer valid although defendant ha$ not appeared.

The fact that section 421 of the Code of Civil Procedure has pre-
scribed a certain form in which the defendant's attorney must add
his signature to a notice of appearance, demurrer or answer does
not make such a paper when varied somewhat in that regard,
void.[\ <J

The court has jurisdiction to grant an order extending a defendant's
time to answer, where he has not appeared, and its order is valid

. until set aside. [*, •, 5]

{Decided November 22, 1883.)

Motion that the plaintiff be required to accept ser-
vice of an order extending defendant's time to answer.

The opinion states sufficient facts.

William J. Cannon, for the motion.

Charles K. Lezow, opposed.

Ha wes, J. — It appears that the defendant in this
case obtained an order extending time to answer, and
served the same upon the plaintiffs attorney, bnt
served no formal notice of appearance. Judgment
was entered by plaintiff as for want of an answer, and
no notice of subsequent proceedings was served upon
defendant's attorney, and the question now presented
is whether sections 421 and 423 of the Code have so

CIVIL PROCEDURE REPORTS. 411

KrausotJ. Averill.

modified the former practice that the order of exten-
sion and papers upon which it is based are void. The
case of Conch v. Mnlhane (63 How. 79) would seem in
its language to sustain the plaintiff's theory, and, to a
certain extent, the same may be said of the case of
Douglas v. Haberstro (68 Sow. 276), although in the
latter case the question here presented was not neces-
sarily involved. Upon an examination of the statute I
am unable to discover any such radical changes in the
practice as these decisions would seem to imply. Sec-
tion 421 is a substitute for section 130 of the Code of
Procedure, and defines in terms the requisites of a
formal notice of appearance when such appearance is
made ; but these formal requisites were substantially
the same as those existing under the old practice ; and
under the strictest construction their specific require-
ments were demanded only when the appearance was
to meet certain well-known provisions of the statute.
It seems to me, however, that because section 421 of

the Code has prescribed a certain form in wbich
['] the defendant's attorney must add his signature to

a notice of appearance, demurrer or answer, that
the paper so served is not void even though it should
vary somewhat in that regard. In the, case at bar
(and the same may be said of all similar cases) the
attorney, under oath, in his application for the order,
states that he is the attorney for the defendant in the
above entitled action, and he is so described in the
affidavit of merits sworn to by the defendant. The
papers are indorsed by the attorney as attorney for the
defendant, and his office address also indorsed in the
usual manner. These papers so indorsed, including
the order of the court extending time for defendant to
answer, were served upon the plaintiff's attorney
within the required time. The court, acting upon the
papers submitted, extends defendant's time to answer.
Can it be claimed that under such circumstances the

418 CIVIL PROCEDURE REPORTS.

Krauae v. AverUL

court acquired no jurisdiction to grant the order, and
is not this a substantial test as to whether it was or
was not a void appearance ? The fact is, as it seems to
me, that the act was one which took place during the
progress of the case, and that the defendant has sub-
mitted to the jurisdiction of the court and he is
estopped from denying its validity. The plaintiff
deems it invalid, but the most he can claim is that
['] it is irregular, even though there was no order of
the court. If, however, the court had power to
make the order it is valid until set aside. The ques-
tion of jurisdiction in such a case is fully discussed in
Cooley v. Lawrence (5 Duery 606), where the whole
issues depended upon its determination and it was
decided that the power was complete. It would
[•] seem to be elementary, in view of the accompany-
ing facts which appear in this and kindred cases.
If, therefore, the court had power to grant the order,
the position of the plaintiff is indefensible in any phase
of the case. But aside from this I do not think, as
said above, that the provisions of section 421 are in any
material respect different from the former practice as
would seem to be implied in the decisions above
referred to. The body of the notice of appearance was
precisely alike under the former and the present prac-
tice. Under the former, rule 10 required that " on all
papers served, the attorney, besides subscribing his
name, shall add thereto his place of business." This
is substantially embodied in section 421 of the
[4] Code, and the decisions which apply to the ques-
tion in its different phases are equally applicable,
and certainly a slight variance in that regard would
not, in my opinion, make the order wholly void.
Admitting that such an appearance would be voidable
under the provision of the code, I think that it
[*] had sufficient life to give to the court jurisdiction

CIVIL PROCEDURE REPORTS. 418

Fowler v. Callan.

to make the order, and if so it was sufficient to
bind the plaintiff nntil vacated.

Plaintiff must accept service of the order. No costs
to either party.

FOWLER, Appellant, v. CALLAN, et ai*,
Respondents.

N. Y. Common Pleas, General Term,
January, 1884.

§74.

Attorneys.— Champerty.— What conetituUs, under 2 R 8. 288, $ 72.

Plaintiff, who was an attorney at law, entered into an agreement, by
which he promised to render for defendant legal service necessary
to secure for him the title to certain premises and to save him from
the payment of any costs and expenses in connection therewith, and
upon the same date defendant executed and delivered to plaintiff,
in advance payment for such services and immunity from expense,
quit-claim deed of one half of said premises.

In an action upon the deed to recover possession of the premises so
conveyed, after the rendition of the services: Held, that the agree-
ment and deed were champcrtous and void withiu the spirit of 2 It.
S. 288, § 72, in regard to advances of money, etc., by attorneys.

It seeme that the law of champerty and maintenance has no existence
in this state except as contained in the statutes.*

♦The common law definition of champerty is an agreement with a
plaintiff or defendant to divide the land (campum par tire), or other
matter sued for, between them, if they prevail at law, and the cham-
pertor is to carry on the suit at his own expense. It differed from
maintenance in this, that in the latter the person assisting receives
no benefit 4 Bl. Com. 135.

Section 72, 2 R. S. 288, 5th ed. (now repealed) was as follows: " No
attorney . . . either before or after suit brought, shall lend or
advance, or agree to lend or advance, or procure to be lent or
advanced any money or any bond, bill of exchange, draft or other

414 CIVIL PROCEDURE REPORTS.

Fawler v. Callan.

Appeal from judgment dismissing the complaint.

This action was brought to recover possession of one
undivided half of premises conveyed by a quit claim
deed dated May 5, 1865, executed and delivered to the
plaintiff, an attorney at law, by the defendant Callan.

thing in action, to any person as an inducement of the placing, or
in consideration of having placed in the hands of said attorney,
counselor or solicitor or in the hands of any other person, any debt,
demand or thing in action for collection." Section 74, Code Civ.
Pro., enacted in its place, is substantially the same, the word "lend"
being omitted, and *4 valuable consideration " put in place of "any
money or any bond, bill of exchange, draft or other thing in action,"
and "for the purpose of bringing an action thereon,*1 substituted
in place of "for collection."

2R.B. 288, §f 71, 73, forbidding purchase of claims, etc., by attor-
ney, and making a violation of such provision or of § 72 (supra) a
misdemeanor, are also repealed, and §§ 78 and 75 Code Civ. Proa
to the same effect, enacted in their stead.

By § 186 Penal Code, a violation of § 73 or § 74 Code Civ. Proa
is punishable as a misdemeanor.

That the law of champerty and maintenance forms no part of the
common law of the state of New York, see Richardson v. Rowland, 40
Conn. 565.

The doctrine of Sedgwick t?. Stanton, 14 2f. 7. 289, Voorhees «.
Dorr, 51 Barb. 580, and other cases holding that nothing of the law of
maintenance and champerty remains in this state except as embodied
in the statutes relating to attorneys, and to titles to lands, approved
in Courtright v. Bums (U. S. Circ. Ct. Miss.) 13 Hep. 261; 13 Fed.
Sep. 217, as allowing a more liberal policy in regard to contracts
between attorney and client. See also Small t. Mott, 22 Wend.
403; Durgin «. Ireland, 14 N. T. 822. But an agreement that an
attorney shall be paid for his services out of the amount recovered
is valid, under $ 303, Code Proc ({ 66, Code Civ. Proc), provided
only there be no agreement by him to bear the expense* thereof. Bene-
dict v. Stuart, 28 Barb. 420, and see cases cited above by respond-
ent's counsel. But see contra, Fogerty e. Jordan, 2 Robt. 310, hold-
ing that an agreement made since the Code Proc., by an attorney to
commence and carry on a suit for a client, and to ''furnish all
lawyer's expenses and everything else," is not a violation of 2 R. S*
288, § 71, forbidding an attorney from buying a thing in action for
the purpose of bringing suit.

CIVIL PROCEDURE REPORTS. 415

Fowler v. Callan.

The plaintiff under same date delivered to defend-
ant Callan, his agreement to render for said defendant
all necessary and requisite legal services to secure him
the title to the entire premises and to save him from
the payment of any costs and expenses. The deed
was given as advance payment for the professional
services mentioned in the agreement, and the immunity
from charges and expenses. The services were ren-
dered, and involved title to the realty described in the
conveyance and agreement.

At the close of the case the court dismissed the com-
plaint, to which plaintiff duly excepted.

N. Hill Fowler and Scott Lordy for appellant.

The complaint was improperly dismissed. Even
before the Revised Statutes, when the law against
champerty and maintenance was in full effect, many
acts in the nature of maintenance were held justifiable
and the agreement in this case is not against the
statute, though there was a promise to pay expenses.
Voorhees t>. Dorr, 51 Barb. 580. This was a contract
calculated to induce repose rather than litigation.
Plaintiff bound himself to defend, &c. Benedict v. Stu-
art, 23 Barb. 420.

The law of champerty and maintenance is not in
force in this state, except as contained in our statutes,
which do not cover this case. Sedgwick v. Stanton, 14
N. T. 289 ; approved Howland v. Coffin, 32 How. 307,
also in Zogbaun v. Parker, 66 Barb. 341 ; Durgin v.
Ireland, 14 N. Y. 322.

The tendency of legislation in this direction is
shown by the provisions of the Code, allowing an
attorney to make agreement as to his compensation.
Code Proc. § 303 ; Code Civ. Pro. § 66.

J. Adolplcus Kamping, for respondent Callan.
In transactions between attorney and client every

416 CIVIL PROCEDURE REPORTS.

Fowler 9. Callan.

presumption is against the attorney. Hitchings t?. Van
Brunt, 38 if. Y 335 ; Burling v. King, 2 T. A C. 545 ;
Whitehead v. Kennedy, 69 N. Y 462.

The agreement was champertous and therefore the
deed based on it was void. Champerty is an offense at
common law and is not repealed by the Revised Stat-
utes. Jackson v. Ketchum, 8 Johns. 482 ; Hoy t 0.
Thompson, 5 JV. Y. 320 ; Ogden v. Des Arts, 4 Duer,
275. Any agreement to pay part of the sum recovered
by commission or otherwise, on consideration either
of money advanced to maintain a suit, or services
rendered, or information given, or evidence furnished,
is champertous. 2 Pars, Contr. (5th ed.) 766; Lathrop
v. Amherst Bank, 9 Mete. 480 ; Satterlee v. Frazer, 2
Sand/. 141.

Q. McAdam, for respondents Kelly and Griffin.

The deed is based on a consideration forbidden by
law and is void. Notwithstanding the provisions of
the Code in regard to attorney's compensation, an agree-
ment such as this, to bear the expense of the litigation
" and to save his client from the payment of any costs
or expenses in relation to the same," is void. Brother-
son v. Consalus, 26 How. 213 ; Coughlin v. N. Y. Cen-
tral & H. R. R. R. Co., 71 N. Y. 443.

Beach, J. — The agreement and the deed were void,
the latter being in contravention of the statute then in
force (2 R. 8. 5th ed. 282, § 72). This enactment pro-
hibits an attorney from agreeing to advance money to
any person as an inducement to the placing, or in con-
sideration of having placed in his hands any debt,
demand or thing in action for collection. It may be
questionable whether or not the subject matter of the
agreement technically falls within the statutory speci-
fications of " debt, demand or thing in actions for col-
lection." I think "demand" has a meaning broad

CIVIL PROCEDURE REPORTS. 41*

Fowler 9. Callan.

enough to cover it, and "collection" may be held
synonmyous with enforcement.

The case of Voorhees v. Dorr, 51 Barb. 580, seems
overruled by Coughlin v. N. Y. C. & H. R. R. R. Co.,
71 N. Y. 443, 452. As an original question, the agree-
ment in that case would appear to be for an advance of
fifty dollars and expenses to the assignee of the claim,
with immunity from costs, as an inducement to place
in the defendants hands for collection. But the learned
court construed the contract differently, and were it
not for the controlling decision in Coughlin v. R. R.
Co., supra, I should feel constrained to follow the decis-
ion.

Legislative enactment, enforced by controlling
adjudication, has undoubtedly swept away the law of
champerty and maintenance, save an exception con-
tained in the Revised Statutes (Sedgwick v. Stanton,
14 N. Y. 289 ; Durgin v. Ireland, Id. 322).

These decisions seem contrary to the apt and forc-
ible suggestions of Justice Bockes in Brotherson v.
Consalus, 26 How. Pr. 213, except, that while not
authoritative, they are like to cause regret over the
absence of statutory enactments preventing attorneys
and counselors of the court, from encouraging litiga-
tion in any and all cases, by actual loans to litigants or
agreements to indemnify them against costs and ex-
penses.

The judgment should be affirmed with costs and
disbursements.

Van Brunt and Van Hobsen, JJ., concur.

Tol. IV.— 27

418 CIVIL PROCEDURE REPORTS.

Titus u. Fairchild.

TITOS, Respondent, v. FAIRCHILD, Appellant.

N. Y. Superior Court, General Term, May, 1883.

§§ 715, 814.

Bond— to officer, when not forbidden by 8 R. 8. 448, § 49. — Word* of

description. — Evidence. — BecitaU. — Orders a* evidence in

suit on receiver's bond.

A bond given under an order, by a receivei to the clerk of the court,
conditioned for the performance by the receiver of his duty, does
not come under the statute forbidding a sheriff or other officer to
take any bond, etc., by color of his office, except such as are pro-
Tided by law.[>]

Where the penalty in a receiver's bond is made payable to " J. H. S.,
clerk of the superior court, etc.," without words showing that the
obligee's representatives are to take his rights, and which shows on
its face that it is given in pursuance of orders of the court, to secure
the performance of the receiver's duty, etc., said bond is not an
obligation to J. M. S. individually, but is valid for the purpose for
which it is given. ['J

The party interested, may properly bring an action on such bond, in
his own name, after leave of court by order, under $ 814, OhIo
Civ. Pro.[«]

In an action on the bond, the recitals Ate prima facie evidence of the
facts set forth. [*]

Where the bond is that the receiver shall perform his trust and make
payments according to order of the court, it is enough to sustain an
action against the sureties, to prove orders entered upon notice to
the receiver and after he had been heard, directing him to pay a
certain sum to plaintiff, and adjudging him in contempt for failure
to do so, and plaintiff need not prove that the receiver has funds
enough to meet the claim. [•]

(Decided May 7, 1883.)

Appeal by defendant from a judgment in favor of
plaintiff and against tbe defendant for $5,018.74,

CIVIL PROCEDURE REPORTS. 419

Titus u. Fairchild.

entered on the verdict of a jury, by the direction of the
court.

The facts appear in the opinion.

Arnoux, Hitch & Woodford, for appellant.

The bond is contrary to the statute, and is null and
void, if an official bond. 3 Rev. Stat. 448, § 49, 6th ed.
Any bond taken by any officer by color of bis office in
any other case than such as are provided by law, is
void. People v. Meigban, 1 Hill^ 298; Webb v.
Albertson, 4 Barb. 51 ; Bank of Buffalo v. Boughton,
21 Wend. 57; Webbers v. Blunt, 19 Id. 188 ; Sullivan
t. Alexander, 19 Johns. 233 ; Love v. Palmer, 7 Id.
159. It is a personal bond to James M. Sweeny, the
words " to clerk of the superior court" being descrip-
tive of the person, and the action must be by him.
Brockway v. Allen, 17 Wend. 40 ; Moss v. Livingston,
4 Corns. 208 ; Davis v. Garr, 2 Seld. 124 ; Taf t v. Brew-
ster, 9 Johns. 334 ; De Witt v. Walton, 9 N. Y 571 ;
Barker v. Mech. Fire Ins. Co., 3 Wend. 94; Hills v.
Bannister, 8 Cow. 81 ; Pumpelly v. Phelps, 40 If. Y.
59 ; Merritt v. Seaman, 2 Seld. 168 ; Sutherland!). Carr,
85 If. Y. 106. The law favors sureties. Ward t.
Stabl, 81 N. Y. 406. The bond of a receiver can only
be given to the people of the state of New York. The
approval of the bond does not make it legal or valid.
Merritt v. Seaman, 6 If. Y. 168 ; Austin v. Munro, 47
Id. 360 ; Buffalo Catholic Inst. v. Bitter, 87 Id. 260.
This is not such a bond as the Code, § 814, contemplates.
The orders recited in the bond should have been given in
evidence, the recitals in the bond do not prove them.
Germond v. People, 1 Hill, 343 ; Cadwell v. Colgate,
7 Barb. 253. Nothing contained in a bond by way of
recital will estop a party to it from showing it to be
void. Germond v. People, supra. In all of this class
of cases where it has been held that the surety was

420 CIVIL PROCEDURE REPORTS.'

Titus v. Faircbild.

bound by orders or decrees that the principal should
pay, it was shown that sufficient funds came into his
hands to pay with. Thayer v. Clark, 4 Abb. App. Dec.
391 ; Dayton v. Johnston, 69 N. Y. 419 ; People v.
Hascall, 22 Id. 188 ; Casoni v. Jerome, 58 Id. 315 ;
Thomson v. MaeGregor, 81 Id. 592.

George J. Greenfield, for respondent.

The bond was properly made to James M. Sweeney,
clerk of the superior court. Section 715, Code Civ.
Pro., requiring security to run to the people, was not
then in force. Banks v. Potter, 21 How. 469 ; 2 Barb.
Ch. Pr. 622, precedent No. 282 ; 2 Waifs Pr. 239, 240 ;
Edw. on Hec. 91, note a, No. 4 of Receiver's Bond, in
High on Hec. 548. And the bond could be prosecuted
upon the application, and for the benefit, of any party
interested. 3 DanieVs Chan. Pr. 643 ; 3 Bulst. 62;
Banks v. Potter, supra. In any event it was a defect
of form only and would not invalidate the bond. Wiser
v. Blachly, 1 Johns. Ch. 607 ; Schoharie v. Pindar, 3
Lans. 8, 11 ; Farley v. MoConnell, 7 Lans. 428-30 ;
Weaver v. Shryock, 6 Serg. A H. 262, 264 ; Prior v.
Williams, 2 Reyes, 530 ; Sikes v. Territt, 4 Jones Eq.
\N. C] 360 ; 2 Hen. Stat. 556, § 83 ; Gerould v. Wilson,
81 H. T. 573. And having been voluntarily given by
defendant, it would be valid as a common-law obliga-
tion. Baker v. Bartol, 7 Cat. 551 ; Ring v. Gibbs, 26
Wend. 501 ; Burrall v. Acker, 23 Wend. 605 ; 21 Wend.
605 ; Adee v. Adee, 16 Hun, 46 ; Chamberlain v. Beller,
18 N. Y. 115.

The action was properly brought in name of plain-
tiff, the real party in interest. § 814, Code Ciy. Pro. ;
Baggott v. Boulger, 2 Duer, 160-170 ; O' Conner v.
Such, 9 Bosw. 318; 3 DanieVs Ch. Pr. 543. The
objection should be taken by demurrer. Baggott v.
Boulger, 2 Duer, 160 ; O'Connor t>. Such, 9 Bosw. 318,

CIVIL PROCEDURE REPORTS. 421

Titus*. Fairchild.

The recitals were evidence against the surety.
Franklin v. Pendleton, 3 Sand. 672 ; Potter v. Mer-
chants' Bank, 28 N. Y. 641 ; Scott v. Buncombe, 49
Barb. 73, 84 ; Carpenter v. Battler, 8 M, cfe W. 209 ;
People v. Norton, 9 N. Y. 176, 179, 183; Ransom v.
Keyes, 9 Caw. 128 ; Allen v. Locket, 3 J. J. Marsh.
164 ; Kellar v, Heclar, 4 Id. 655 ; Trimble v. State, 4
BlacJtf. 436; Id. 553; Cutter o. Dickinson, 8 Pick.
386 ; Norton v. Sanders, 7 /. J. Marsh. 12 ; Ceil v.
Early, 10 Qratt. 198. The evidence established the
pendency of the action at the time of and before the
making of the orders and execution of the bond. The
orders of the court in Clark v. Binninger, directing Barr,
the receiver, to pay to plaintiff the amount therein
stated, and adjudging that said Titus was entitled there-
to, and the order adjudging said receiver guilty of con-
tempt for refusal to pay, were conclusive evidence
against defendant, the surety, as to the breach of the
bond and the amount plaintiff was entitled to recover
against him thereon. Baggott v. Boulger, 2 JDver, 160,
170 ; Westervelt v. Smith, Id. 449 ; People v. Norton,
9 N. Y. 176, 183 ; Scofield v. Churchill, 72 Id. 565 ;
Thomson v. MacGregor, 81 Id. 592, 597 599, and cases
cit^d ; 9 Abb. N. G. 138 ; Gerould v. Wilson, 81 JV. Y.
573 ; Thayer v. Clark, 4 Abb. App. Dec. 391 ; 46 Barb.
343 ; Casoni v. Jerome, 58 N. Y. 351.

Ingraham, J. — This is an action brought to recover
the sum of $4,254.66, from the defendant as one of the
sureties on a bond given under and in pursuance of
several orders of this court made in an action wherein
Abraham B. Clark was plaintiff, and Abraham
Binninger was defendant, and conditioned that one
of the obligers, Thomas J. Barr, who had been
appointed receiver of all debts, property and effects
of the copartnership existing between the said Clark
and Binninger should " duly account for what he had
received or had in charge as co-receiver or for what

422 CIVIL PROCEDURE REPORTS.

Titus «. Fairebild.

he shall have in charge as sole receiver in said action,
and shall pay and apply the same as he nay from time
to time be directed or ordered by said court, and shall
faithfully discharge the duties of his trnst as such
receiver. The bond was joint and several, and was
executed by the principal Barr and by Henry Smith,
the defendant, as sureties. Henry Smith died before
the commencement of this action. The bond provides
that the obligors are held, etc*, unto James M. Sweeney,
clerk of the superior court as aforesaid, for which pay-
ment, etc. The bond then recites an order of this
court in an action therein pending, made March 87,

1869, whereby Thomas J. Barr, one of the obligors,
was appointed an additional or co-receiver with one
Daniel H. Hanrahan, receiver, of the property of the
copartnership existing between Clark and Binninger ;
and also an order made April 12, 1870, requiring
Hanrahan as receiver, and Barr as co-receiver to execute
new bonds in the penalty of $260,000, for the faithful
discharge of their duties as receivers ; and providing
that in case one of them should fail to give such
security, that the other of them who had given such
security should be the sole receiver under the original
order appointing such receiver ; and further reciting
that said Hanrahan having failed to give such new
bonds, that by an order of the court made April 27,

1870, the said Hanrahan was removed as receiver, and
which order directed that the said Barr ; if he should
comply with the said order of April 12, 1870, should
be continued as receiver ; and which Barr recited
another order dated April 80, 1870, reducing the
penalty of the bond to be given to $100,000.

On the trial, the plaintiff introduced in evidence
the bond duly approved as to the form, manner of exe-
cution, and sufficiency of securities, by one of the
judges of this court ; then an order of the special term
of this court, made on motion to said Barr, and after
hearing counsel on his behalf, dated April 16. 1877,

CIVIL PROCEDURE REPORTS. 433

Titos 0. Fairchild.

which ordered and adjudged that plaintiff in this
action on June 14, 1870 had a lien upon the property,
estate and effects in the possession of the said Barr as
receiver to the extent of $5,237.80, that said Titus is
entitled to be paid said sum of $6,237.80, out of said
property, etc., by said Barr, receiver, and that said
Thomas J. Barr, receiver as aforesaid, do pay out of
said property, estate and effects referred to, and he
•was thereby directed to pay to said Titus said sum of
$5,237.80, with interest thereon from August 22, 1876,
within ten days after the service of a copy of the order.
Plaintiff then introduced an order in the said action
dated August 7, 1877, reciting the foregoing order ; the
granting of an order to show cause, why "the said Barr
should not be punished for contempt in refusing to
obey the said order of April 16, 1877, and the said
Barr having been heard, ordered and adjudged that
said Barr had been and was guilty of a contempt in
having willfully disobeyed the said order of April 16,
1877, by refusing to pay plaintiff in this action the said
sum of $5,237.80 with interest from August 22, 1876,
less sum of $1,250, paid on account thereof, which
reduced the sum ordered to be paid on account there-
of to $4,254.06, and committing said Barr for contempt,
until such amount should be paid ; and also an order
dated February 18, 1878, authorizing plaintiff to com-
mence an action on the bond. Plaintiff then testified
that there was due him the said sum of $4,254.06, with
interest from May 17, 1877.

The court directed a verdict for the plaintiff.

The first objection taken by defendant is that the
bond is within the prohibition of the statute that pro-
vides that no sheriff or other officer shall take any
bond, obligation or security, by color of his office, in
any other case or manner except such as are provided
by law, such other bond, &o. taken otherwise shall be
void. 3 Rev. Stat. c. 448, § 49, 6 ed.

424 CIVIL PROCEDURE REPORTS.

Titus 9. Fairchild.

It is very evident that the bond in question
[*] does not come within the provisions of this statute.
The bond was not one taken by a sheriff or other
officer, but was given in pursuance of a judgment or
order of a court of equity, as security for the faith-
ful performance of the duty of an officer of the court.
The power to require such a bond the court has always
possessed and exercised, and a bond given in pursu-
ance of its direction becomes one given in pursuance
of law. It was held in Gerould v. Wilson (81 N. Y.
573), that the statute does not apply to a bond taken
in such a case, and all of the cases cited by counsel
for the appellant apply to officers who are specially
directed by statute to take bonds for their own good
and safety, and under certain conditions, and they
hold that a bond taken by such an officer that does not
follow closely the statute requirements is void. It is
evident that such authorities do not apply to a bond
given in pursuance of an order or judgment of a court
of competent jurisdiction, as a portion of the machinery
by which it is enabled to carry into effect its judgment.
No provision of law has been cited that restricts this
power of the court, and the approval of the bond by
one of the judges of the court, adopts it as a compli-
ance with the order.

But a more serious question is presented by the
[a] objections taken by the appellant that the bond is
an obligation to James M. Sweeney personally, it
not being taken to him as clerk of the court, and the
penal sum is to be paid to "said James M. Sweeney,
clerk of the superior court," and as no assignment by
him or his representatives was proved on the trial,
plaintiff had no right of action in the bond.

The principal case relied on by the appellant on the
argument was the case of Sutherland v. Carr (85 N. Y.
105). That was an action on a bond given to secure
the faithful discharge of the duties of one Marshall,

CIVIL PROCEDURE REPORTS. 435

Titos t>. Fairchild.

elected supervisor of the town of White Plains, to a
Jackson Hyatt, town clerk of said town, " to be paid
to said town clerk, or his successors in office," and the
objection was taken in that case that the bond was one
to Hyatt individually, and not officially as town clerk,
and that the addition of the words "town clerk" to
his name was a mere "descriptio persona." The
court, however, held that the rule that " where a party
to a written instrument is described as executor, ad-
ministrator or assignee, without introducing any words
to show that he intends to act in such capacity, that
such phrase is a mere description of the person, is not
so rigid a rule " as not to yield to the evident purpose
of the instrument ; and if there can be plainly gathered
from the whole of it. that a particular character or
capacity is to be attached to the person named, he will
be deemed to hold it in his relation to the transaction.
If in a pleading the promise or other obligation or the
duties are alleged as those of or to the body that the
person named represents, the pleading is looked upon
as one for or against that body, " so it must be with an
instrument in writing."

This being the rule, its application to the bond in
question is not difficult. It will be noticed that no
words are used to show that the obligee's representa-
tives are to succeed to his rights ; the money is to be
paid to the "said James M. Sweeney, clerk of the
superior court, aforesaid." The bond then recites the
object for which the bond was given. It shows on its
face that there was no obligation to James M. Sweeney
individually, but that it was given in pursuance of
several orders of the court requiring the receiver, be-
fore appointed, to give security for the faithful dis-
charge of his duties as such receiver, and the condition
of the obligation is not that any act should be done
to or by James M. Sweeney, but that the receiver
should perform the duties to which he had been ap-

42* CIVIL PROCEDURE REPORTS.

Titus t. Fairchild.

pointed by the court, of which the obligee was in the
instrument named in as clerk.

Taking the whole instrument together, it must be
apparent that the evident purpose and object of the
bond was to secure to the parties interested in the
trnst, the faithful discharge of the duties of the receiver,
and that it was the clerk of the court who was the
obligee, and not James M. Sweeney, the individual in
his own right.

When this action was commenced, viz., September

1878, section 814 of the Code of Civil Procedure
[*] was in force, and an order granting plaintiff leave

to bring the action was all that wis necessary to
give plaintiff the right to sue. The bond having been
a valid bond, and having been made to the clerk of the

court, the recitals in the bonds of the pendency of
[4] the action in which the receiver was appointed,

and the regularity of the appointment, was at any

rate "prima/acif evidence of the facts therein recited.

The only other question that requires atten-

[*] tion is, whether the order of the court directing

the receiver to pay and adjudging him guilty of
contempt is sufficient to sustain the action, without
proof that there was sufficient funds in the receiver's
hands, the property of the co-partnership, to pay the
amount due plaintiff.

It will be noticed that the conditions of the obliga-
tions are not only that the receiver will faithfully dis-
charge the duties of the trust, but " that he will pay
and apply the same (viz., what he had theretofore re-
ceived as co-receiver, or what he shall receive or have
in charge as such sole receiver) as he may from time to
time be directed by the court."

In Schofield v. Churchill (73 iT. T. f 65), the bond
was one given by an executor, and was conditioned that
the executor should faithfully execute the trust re-
posed in him as executor, and also obey all orders of

CIVIL PROCEDURE REPORTS. 427

Titos 9. Fairchild.

the surrogate, etc. And it was held that the surrogate
makes an order that the executor pay over money to
a legatee, a breach of the conditions has occurred with-
in the letter of the bond, and the positive undertaking
of the sureties had become fixed and operative by the
surrogate's decree, and in the absence of fraud or col-
lusion, the decree of the surrogate is conclusive upon
the sureties.

The conditions here are that the receiver shall ac-
count for what he has received and for what he shall
receive, and shall pay the same by order of the court.
The orders on notice to the receiver adjudge that he
shall pay to plaintiff a portion of what he has received,
and subsequently adjudge that he has not obeyed the
order and was in contempt. The orders were all made
on notice to the receiver and after he had been heard.
I think they were conclusive upon the principal and
sureties alike. That the principal having failed to
obey the order to pay, the conditions were -broken and
the obligations were in full force and effect. There
can be no doubt of the power of the court to make the
order directing its officer to pay property in his pos-
session, and when such an order, is made and the prin-
cipal refuses to pay, he has not only disobeyed the
order, but has failed to faithfully execute the trust,
and then there has been a twofold breach of the con
dition of the bond. Gerould v. Wilson, 81 iV. Y. 573.

The order of April 16, 1877, adjudged that plaintiff
had a lien on the property of said firm in the hands of
said Barr, receiver, and orders the said Barr, as such
receiver, to pay the said sum. That being an adjudi-
cation that said Barr had property of the copartnership
in his hand and orders him to pay, that adjudication
is conclusive against the receiver, and the sureties on
the bond, having made themselves privy to the pro-
ceedings against their principal, are, without fraud or

426 CIVIL PROCEDURE REPORTS.

Luce v. Alexander.

collusion, concluded when their principal is concluded.
Gerould v. .Wilson, supra.

I am of the opinion that the judgment appealed
from was right and should be affirmed with costs.

Sedgwick, Ch. J., and O' Gorman, J., concur.

LUCE, Respondent, v. ALEXANDER, et. alm
Appellants.

N. Y. Superior Court, General Term, May. 1883.
§§ 600, 1204, 1205.

Bond — liability of parties when discharged — complaint on— Pleading —
denial when insufficient.

A denial as follows : (l Defendant denies each and every allegation in
said complaint contained, not herein-before specifically admitted
or denied, does not raise an issue." [*]

"Where a bond is given upon opening a default, executed by the
defendants against whom judgment was taken and sureties, and
is conditioned for ** the payment of any judgment which plain-
tiff may recover, etc., and two judgments are rendered, one
against all of the defendants for a certain sum, and another against
one of tbe defendants for a larger amount, payment of said judg-
ment recovered against all of the defendants does not release the
parties executing the bond from their liability thereon as to the
remaining judgment. [!]

It is not necessary that the complaint should show that plaintiff has
exhausted his remedy against the principal. [']

(Decided May 9, 1883.)

Appeal from a judgment against the defendants,
entered March 21, 1882, for $1,202.62, damages and
costs, and from an order denying a motion for a new
trial.

CiyiL PROCEDURE REPORTS. 439

Luce v. Alexander.

The answer, after certain specific denials, contained
the following clause :

''Farther answering, defendants deny each and
every allegation in said complaint contained, not/
hereinbefore specifically admitted or denied."

The bond upon which this action was brought was
g'ven upon the opening of a default taken in an action
by the present plaintiff against certain of the present
defendants, and the condition thereof was that the
parties executing it, should " well and truly pay, or
caused to be paid, unto the above-named Thomas Luce
or his certain attorney, executors, administrators or
assigns, any judgment he may recover in said action,
without fraud or delay." ,

Further facts and the exceptions appear in the
opinion.

Joseph E Newburger, for appellant.

Charles N. Judson. for respondent.

O' Gorman, J.— It is averred by the plaintiff in his
complaint and expressly admitted, or not sufficiently
denied by the defendants, that on January 23, 1879,
they duly executed jointly and severally a bond under
seal whereby they obliged themselves to pay to the
plaintiff any judgment that he might receive in an
action then pending in the court, wherein said Thomas
Luce was plaintiff, and John C. Morrison, Theobald
Frohwein, Julius D. Alexander, and Magnus D. Alex-
ander were defendants ; that all the conditions and
terms of said bond on the part of the plaintiff were
duly performed ; and that the plaintiff did, on Decem-
ber 14, 1880, recover in said action, judgment against
said John C. Morrison for the sum of $1,118.95, being
the amount of a verdict against him with interest, and
costs, and against said John C. Morrison, Theobald

430 CIVIL PROCEDURE REPORTS.

Luce «. Alexander.

Frohwein, Magnus D. Alexander, and Julius D. Alex-
ander, for the sum of $388.84, being the amount of the
verdict against them in said action, with interest and
costs ; that the sum of $388.84, with interest was paid
to plaintiff on January 26, 1881, leaving the amount
$1,018.95, due and unpaid. The defendants, Magnus
D. Alexander, and Julius D. Alexander, in their
answer, admit these allegations of the complaint, but
deny that there was a valuable consideration for the
bond, and allege that the said judgment was discharged
by satisfaction on, or about March 7, 1881 ; and also
that the said judgment was improperly granted and
without warrant of law.

The plaintiff's counsel, at the trial of this action,
put in evidence the bond of the defendants, and after
proving interest, rested his case. The defendant's
counsel thereupon moved for dismissal of the com-
plaint, which motion was denied, and he duly except-
ed. He then put in evidence a document executed by
the plaintiff's attorney, in which (after setting forth
the rendition of a judgment in said action on Decem-
ber 21, 1880, in favor of plaintiff against the defend-
ant Morrison for $1,018.05, and against the other
defendants therein for $388.84), he acknowledged pay-
ment of the sum of $388.84, being the part so recovered
against said Morrison, Frohwein, Magnus D. Alexan-
der, and Julius D. Alexander. Defendants' counsel also
put in evidence the record showing satisfaction of said
judgment in the sum of $388.84, on March 7, 1881,
and then rested his case. The action was tried by
consent by the learned chief judgg of this court
without a jury, and he adjudged that the plaintiff was
entitled to payment in the sum of $1,018.95, with costs
and allowances.

The objections of the defendants' counsel, as
presented in his request to charge, and exceptions,
and relied on in his printed points, are as follows :

CIVIL PROCEDURE REPORTS. 431

Luce e. Alexander.

1. That the bond sued on is without consideration,
and void. This objection is not tenable. The plain-
tiff, in his complaint, has alleged that the bond was
executed by defendant for a valuable consideration.
Sufficient consideration for the execution of a sealed
instrument will be presumed, in the absence of evi-
dence to the contrary. No such evidence appears in
this case. 2. That payment of part of the judgment
discbarges the sureties on the bond. The case cited
by the counsel for the defendants (Woods v. Pangburn,

75 iV. Y. 495), is not in point, and does not sustain
[*] defendants' objection. Sections 1204-5 of the Code

of Civil Procedure allow judgment to be given for or
against one or more plaintiffs, and for or against one or
more defendants, etc., and the court may render judg-
ment against one or more defendants, and direct that
the action proceed against the others. There is no
authority for the position that payment by one de-
fendant of the amount for which he is adjudged to be
alone liable, is a discharge of the judgment against
other defendants, adjudged to be liable in another
sum. 3. Defendants further claim that no action can

be sustained against the sureties, unless it appears
[*] by the complaint, thaf plaintiff has exhausted his

remedies as against the principal. This is matter
of defense, and should have been set up by the defend-
ants in their answer. The opinion of Judge Folger
. in Colgrove t>. Tallman (67 N. Y. 95), does not sustain
the contention of defendants' counsel. In that case,
it appeared in evidence that the defendant, Tallman,
had sold out his interest in a partnership to one Barnes,
who agreed to pay the firm's debts. Tallman soon
afterward notified the plaintiff, who then held an over-
due note made by the firm, of his agreement, and re-
quested him to collect it, which plaintiff failed to do.
The court held that Tallman was by virtue of his agree-
ment, in the position of surety for Barnes, and that

482 CIVIL PROCEDURE REPORTS.

Luce v. Alexander.

the delay of the plaintiff to see Barnes, on receiving
notice from defendant, and defendant's request that
he should collect the note from Barnes, released
the defendant. There is no dictum in the opinion of
Judge Folger, and no suggestion in the argument of
the counsel in that case, that the plaintiff was bound
in his complaint to negative the charge of negligence,
which was the defendants' ground of defense.

It should be noticed that the allegations in the
['] plaintiff's complaint, that all the conditions, etc.,
on his part had been duly complied with, etc., is
not denied by the defendants in their answer. The
form of denial is incorrect and insufficient (Code Civ.
Pro. § 500 ; Miller v. McCloskey, 1 N. Y. Civ. Pro. 252,
and notes).

The defendants' objection that the judgment was
invalid and improperly obtained, is not tenable.
The validity of a judgment cannot be thus impeached
collaterally.

The remaining objections presented by the learned
counsel for the defendants, are overruled.

The judgment is affirmed with costs, and the order
appealed from is affirmed, with $10 costs.

Tbuax, J., concurs.

CIVIL PROCEDURE REPORTS. 483

Smith t>. CriMey.

SMITH v. CRISSEY.

supreme cottrt, third department, albany
Countt, Special Term, February, 1883.

§448.

Portia defendant — Person* doming money necessary t in action against

officer of municipal corporation to restrain its payment, — Law

of 1881, chap. 581, does not affect this rule.

In an action to restrain the comptroller of a city from countersigning
or pajiug any draft or drafts drawn for the payment of a certain
police force, which was one of two police forces claiming to be the
legal force of the city, an injunction so restraining such comptrol-
ler will not be granted when tho parties claiming the moneys are
not parties to the uction.f1, *, *, *] If such relief was granted they
would be deprived of what they claim to be their property with-
out having their day in court, [•] and no judgment can be rendered
depriving a person of what he claims to be his, without bringing
him before the court which is asked to determine his rights. [!]

Chapter 531 of the Laws of 1881, which allows a taxpayer to bring an
action against a public officer to prevent a waste of funds or prop*
erty belonging to a municipal corporation, does not dispense with
the necessity of making persons having claims against a city or
some representative of them parties to an action to adjudge such
claims invalid. [4 J

(Decided February^ 1888.)

Motion by defendant to dissolve an injunction
restraining the comptroller of the city of Troy from
countersigning, &c., certain drafts.

The opinion states the facts.

B. A. Parmenter, for the motion.

Merritt <fe Byany opposed.

Wbstbrook, J.— The injunction which this motion
seeks to vacate restrains the defendant, as comptroller
Vol. IV.— 28

434 CIVIL PROCEDURE REPORTS.

Smith t>. Criesey.

of the city of Troy, " from countersigning any draft
or drafts drawn by Michael Cavanangh and Edward
Hannan for the payment of any police force in said
city over which John McKenna claims to be superin-
tendent, or from countersigning any draft or drafts,
for the payment of any police force, which are not
drawn by a majority of the board of police commis-
sioners ;" and the complaint in the action demands
a judgment awarding a permanent injunction of a like
character, " and for the costs of this action."

When this action was commenced, and when the
motion to dissolve the injunction was argued and sub-
mitted, there were in the city of Troy two police forces,
each claiming to be the legal force of the city. The
object of the action was to restrain the payment for
services to the members of one force, and to procure
a permanent judgment therein declaring that such
force was not legal, and that no member thereof should
ever obtain compensation for his services. In other
words, without giving the parties who were to be
affected by the relief sought an opportunity to be
heard, this court was asked temporarily and perma-
nently to enjoin the payment to them, and each of
them, of moneys which each and all claimed to be legally
due. It is true, that since the submission of this
motion, the court of appeals, in People ex reL Woods
v. Crissey (91 N. Y. 616), has settled the question
between the two forces, and determined it against the
one which the plaintiff in this suit claims to be illegal ;
but that decision does not dispose of one question
which both this motion and suit present, and that is :
Can an action which seeks to enjoin payment of money
to individuals be maintained without making them
parties to it!

The answer to the question propounded does not

seem to be difficult. He who is deprived of his

['] property, or of what he claims to be Ms, is entitled

CIVIL PROCEDURE REPORTS. 485

Smith v. Crimey.

to be heard, and no judgment can be rendered de-
priving him of that which he claims to be his, without
bringing him before the court which is asked to deter-
mine his rights. The Code of Civ. Pro. (§ 447) has accord-
ingly provided, "Any person may be made a defend-
ant who has or claims an interest in the contro-
ls versy adverse to the plaintiff, or who is a neces-
sary party defendant for the complete determina-
tion or settlement of a question involved therein;''
and when the parties are too numerous to be all
united, it has (§ 448) further declared : " One or more
may sue or defend for the benefit of all."

It is apparent, if the relief asked by the complainant
in this action be granted, that many individuals
[*] will be deprived of what they claim to be their
property without having their day in court. The
comptroller of the city of Troy, who is the sole defend-
ant in the action, has no interest whatever in the
result. If the judgment demanded by the plaintiff be
rendered, he sustains no loss, but it will fall upon
others who have not been brought before the court,
and have never been heard in the assertion of their
supposed rights. Such a result would be a reproach
to the administration of justice, and the maintenance
of the legal principle leading to it would be most dis-
astrous in its consequences.

It is argued, however, that the act of 1881 *allows
a taxpayer to bring an action against a public
[4] officer to prevent the waste of funds or property
belonging to a municipal corporation, and that
therefore this action, which seeks to prevent the pay-
ment of that which is not due, is maintainable. It is
true that the act referred to justifies the action as
against the comptroller, but it has not declared that' to
obtain the entire relief such officer is the only neces-

* "Laws of 1881, chap. 531. .

434 CIVIL PROCEDURE REPORT&

Smith «. Crwtey.

sary party. There are eases in which the officer may
be the only necessary party, but in this, which seeks
to adjudge and declare illegal and unjust, claims held
by numerous individuals. against the city of Troy, the
persons holding such claims, or some representatives
of them, as required by section 448 of the Code, are
necessary parties.

There are other objections to the maintenance of
this injunction and action (see opinion in Tappan t>.
same defendant ; also, Morris v. Whelan, 64 Haw. Pr.
100), but they will not be considered. It seems to me
to be a clear legal impossibility to decide and ad-
[*] judge that persons holding claims against another
can, by a direct judgment, be deprived of them
without their being brought before the court. It is
true that in an action between some individuals a court,
in deciding matters which affect them, may establish
principles and decide questions which affect others
also, but neither this court, nor any court, can legally
decide that an action which has for its direct object
the forfeiture of the property or rights of an indi-
vidual, is maintainable without bringing before it as
a party the individual at whom and at whose right
and property such action is directly aimed. This
action is one of the character just described. The judg-
ment asked, directly and sharply, and not incidentally
or collaterally, will affect, if rendered, persons not
before the court ; and before it can be granted, or the
injunction maintained, such persons must be made
parties, or at least some of them (if they be very num-
erous), as required by section 448 of the Code.

The motion to dissolve the injunction must be
granted. The order to be entered, in consequence of
the decision of the court of appeals, to which allusion
has been made, will probably be of no practical effect,
as the defendant, in his official action, will doubtless
conform himself to it, and to its results. The fact,

CIVIL PROCEDURE REPORTS.

Morrison e. Lewis.

however, that the plaintiff is right in his allegatio
to which is the legal police force of the city of 1
will not justify this court in maintaning aninjunc
or rendering a judgment, against persons not parti
the action, and over whom it has no jurisdic
because they have not been legally required to aj
in the assertion of their rights.

MORRISON, sr al., Respondents, v. LEWIS
Receiver, &o., Appellant.

N. Y. Supebiob Coubt, General Tebm, April,

§§481,1720.

False resfresentations, — Replevin. — Pleading. — Allegations of own
and of intent to deceive.

In an action to recover personal property claimed to have
obtained upon credit by false representations, where the com
shows that plaintiffs sold and delivered the goods to defendan
that in cpnsequence of the fraud therein doly alleged, they sc
avoid the contract of sale, the complaint sufficiently alleges i
coal property in the goods and a right to their possession,
1 1720, Code Civ. Pro.H

It items, that the ownership of the property should be implied
the allegation of sale and delivery. [*]

It is enough that the allegation that the false representations
made with intent to deceive and defraud, etc., can be fairly
end from all the averments of the pleading. [•]

Accordingly, where the false representations were alleged to
been made to a commercial agency with intent " to obtain
and to induce merchants and others to sell goods to them,"
defendants knew the statements were false and untrue, etc.,—
on demurrer, sufficient.

(Decided April 9, 1888).

488 CIVIL PROCEDURE REPORTS.

Morrison «. Lewis.

Appeal by defendant from judgment entered on
order of special term overruling demurrer to the com-
plaint, and ordering judgment for plaintiff.

The action was to recover possession of certain
goods obtained from plaintiff upon false representa-
tions, made to a commercial agency.

The facts appear in the opinion.

John J. Adams, for appellant.
Dewitt C. Brown, for respondents.

Ingea^ham, J.— The complaint alleges that the plain-
tiff, relying on certain representations made by defend-
ants Hunt & Warren, sold and delivered to said Hunt
& Warren as co-partners, certain goods and merchan-
dise particularly described, which were of the value of
$246.96 ; that said representations were false ; that
subsequently said Hunt & Warren made a general
assignment for the benefit of creditors; that the
assignee was removed by an order of the superior court
and the defendant Lewis was appointed receiver of the
property assigned by said assignment ; that Lewis had
qualified as such receiver and took possession of the
property so assigned, and was in possession of the
property described in the complaint. The complaint
demands judgment for the possession of said goods and
chattels and damages for their detention.

Defendant Lewis demurs on the ground that the
complaint does not state facts sufficient to constitute
a cause of action against him.

The special term ordered judgment for the plaintiff
on the demurrer, and judgment was entered in favor
of the plaintiff and against the defendant Lewis for the
possession of the property therein described with costs.
From that judgment defendant Lewis appeals.

The first defect in the complaint on which plaintiff

CIVIL PROCEDURE REPORTS. 439

Morrison v. Lewis.

relies to sustain the demurrer is, that there is no
allegation in the complaint that the specific property
sought to be recovered is or was the property of the
plaintiff, or that plaintiff was the owner thereof, the
only allegation being that plaintiff sold and delivered
to defendants goods, etc., and the question to be deter-
mined is whether this is a sufficient allegation of plain-
tiff, ownership of the property.

The Code of Civil Procedure (§ 1720) provides how
in an action for claim and delivery of personal prop-
erty title shall be stated in the pleadings, and it is
there stated that an ' ' allegation to the effect that the
party pleading or a third person, was at the time when
the action was commenced or the chattel was replevied,
as the case may be, the owner of the chattel, or that it
was then his property, is a sufficient statement of title,
unless the right of action . . . rests upon the right of
possession by virtue of a special property, in which
case the pleading must set forth the facts upon which
the special property depends, so as to show, etc., that
the party pleading was entitled to the possession of
the chattels."

1 think the pleader has in this case complied
['] with the provisions of this section. He alleges that
plaintiff sold and delivered the goods to defendants,
and in consequence of fraud asks to avoid the contract
of sale and be placed in the same position that he was
before the property was obtained from him by the
fraud. The demurrer admits that plaintiff sold and
delivered the goods ; that the sale was induced by
fraud ; and that the godds are in possession of defendant
Lewis. This is sufficient to show that the plaintiff has
a special property in the property described, and is
sufficient to enable him to maintain this action. The
delivery of the property was part of a contract that
was fraudulent. Plaintiff asks to have that contract
rescinded and is entitled to have it rescinded. In

440 CIVIL PROCEDURE REPORTS.

Morrison v. Lewis.

order to completely rescind it, it is necessary to rede-
liver the property to the plaintiff.

The cases cited by appellant do not conflict with
this view. In Patterson v. Adams (7 Bill, 126), the
complaint alleged that plaintiffs were entitled to the
possession of the property. It was "held that this
was not sufficient, as in pleading his right the fact
must be alleged and not the conclusion." In Scofield
v. Whitelegge (49 N. F. 259), the complaint alleged
4 * that defendant had become possessed of and wrong-
fully detained from plaintiff." It was " held that the
allegation that the property has wrongfully detained
was a conclusion to be drawn from the fact of the
ownership or right to possession, and that the fact
must be alleged in the complaint, and not the conclu-
sion. In this case it is the fact of the sale and delivery
that is alleged, and that having been induced by fraud
gives plaintiff a right to have it rescinded.

I think also that ownership of the property

[*] should be implied from the allegations of sale and

delivery. Possession of personal property alone

and without explanation is evidence of ownership.

Rawley v. Brown (71 N. Y. 89).

In an actiop to recover the value of property sold
and delivered no allegation of ownership is necessary.
The fact of the sale and delivery of the goods implies
that the goods belong to the seller (Phillips a. Bartlett,
9 Bosw. 678). There is no reason why the same impli-
cation should not apply in this case.

The second ground on which it is claimed that the
demurrer should be sustained is that complaint does
not allege that the statement was made with intent to
defraud. The complaint alleges that the representa-
tions were made for the purposing of securing credit
to defendants Hunt & Warren, and to induce mer-
chants to extend credit and sell goods to them, and
that such representations were false, and were known

CIVIL PROEDURE REPORTS. 441

Estate of Bogert

to defendants to be false at the time they were made
and when the goods were sold.

In the case of Zabriskie v. Smith (13 N. Y. 822)
['J the court says, " it is sufficient, however, that the
requisite allegations (viz. that the false representa-
tions were made with an intention to deceive and
defraud plaintiff) can be fairly gathered from all the
averments in the complaint."

The averments in this complaint come within this
rule and make out the allegation' of bad faith and
intent to defraud. The representations are alleged to
have been made with intent to obtain credit and to
induce merchants and others to sell goods to them,
when they knew the statements were false and untrue.
There could be but one motive, and .that would be tct
defraud the persons trusting them in the faith of such
representations.

The judgment appealed from should be affirmed
with costs.

Sedgwick, Ch. J., and O' Gorman, J., concur.

ESTATE OP WILLIAM S. BOGERT, Deceased.

Surrogate's Court, Kings County, Pfbruart, 1884.

§§ 2611, 2618, 2623.

Probate of will. — Testimony of subscribing witness in proceedings for, not

controlling. — Will not be invalidated by absence of or defect in

attestation clause. — Proponent not bound by testimony

of subscribing witness to will.

Tho question of the due execution of a will is to be determined,
like any other fact, in view of all the legitimate evidence in the
case and no controlling effect is to be given to the testimony of
the subscribing witnesses. [8] If the person executing the will is
shown to be familiar with the law upon the subject, the presump-

442 CIVIL PROCEDURE REPORTS.

Estate of Bogert.

tion that the formalities have been observed is very strong and
should the testimony of a subscribing witness amount to a
positive denial, the relative weight of the conflicting proof would
then depend upon the apparent integrity and intelligence of the
witness and the circumstances surrounding the particular case.[*]

While the general rule undoubtedly is that an uncontradicted witness
must be believed, when his testimony is improbable or he is
interested or where be is impeached the court or jury is not bound
blinily to adopt his testimony as true, [4] and where a party in a
civil action deliberately swears false to one material part of his
testimony and the jury are satisfied that he has so sworn falsely
intentionally they are not only at liberty but it is sometimes their
duty to reject the whole, for the maxim is "faUu* in uno/alaus
in omnibus."[*]

Where in proceedings to probate an alleged last will and testament
it appeared that the deceased signed the paper propounded, which
was in his own handwriting, and acknowledged the signature to
be his ; that he declared the instrument to be his last will and
testament, and requested one witness, G., to become a witness there-
to; that subsequenely he requested the witness F. to sign "as a
witness," but, according to F.'s testimony, without either acknowl-
edging the signature or declaring it to be his will ; that the tes-
tator was familiar with the requisite formalities attending the exe-
cution of a will and that the witness F., who was a man of more
than ordinary intelligence was interested in the estate, and his testi-
mony was not in all particulars true, and the attestation clause to
the will was faulty in that it omitted to state that the witness
signed at the request of the testator: Held, that the instrument
was properly executed and should be admitted to probate ; ["]
that the attestation clause was sufficient as a declaration that it
was his will,[3] and tlwt as when F. was requested to become a
witness the signature of the deceased was in full view, there was a
sufficient acknowledgment of the testator's signature. [*]

The fact that there is no attestation clause to a paper offered for
probate as a last will and testament or that the attestation clause is
faulty or incomplete will not prevent its being admitted to pro-
bate.f'-15] The cases on the subject reviewed. [•-"]

Where the law obliges one to call a witness he may impeach him,["]
accordingly, Held, that the fact that the proponent of an alleged
last will and testament hod called a subscribing witness to the will
as a witness, did not preclude him from asking a finding in opposi-
tion to the uncontradicted testimony of such witness. [,€J

(Decided February 21, 1884.)

CIVIL PROCEDURE REPORTS. 443

Estate of Bogert.

Proceedings for the probate of an alleged last will
and testament.

Rufus T. Griggs & M. J. McKenna, for proponent.

Eastman & Oarretson for Sarah D. Conselyea and
others, contestants.

Scomlle & Dewitt for Charles W. Bogert and others,
contestants.

Bergen, Surrogate. — The evidence in these pro-
ceedings shows, the deceased signed the paper pro-
pounded, and acknowledged the signature to be his ;
declared the instrument to be his last will and testa-
ment, and requested the witness, Gray, to become a
witness thereto ; that subsequently he requested the
witness, PowJer, to sign "as a witness," but according
to his testimony, without either acknowledging the
signature, or declaring it to be his will.

The question before me is, whether the instrument
has been sufficiently proved to authorize its being
admitted to probate 1

The statute provides that the testator shall sign in
the presence of the witnesses, or acknowledge the
signature to be his, and declare the instrument to be
his last will and testament.*

The attestation clause is faulty in that it omits to
state that the witnesses signed at the request of the
testator.

Now, in view of this, is it competent for this court
to admit the paper to probate %

The testator is shown to be familiar with the requi-
site formalities attending the execution of a will, for
they were observed at the time Mr. Gray became a
witness, as testified tp by him, and this was previous
to Fowler becoming a witness,

* 2 R. 8. 63, $40.

444 CIVIL PROCEDURE REPORTS.

Estate of Bogert,

" The result of the authorities upon the probate
of wills is that the question of the due execution
['] of a will is to be determined, like any other fact,
in view of all the legitimate evidence in the case
and that no controlling effect is to be given to the testi-
mony of the subscribing witnesses" (Orser 0. Orser, 84
N. r. 52). And if the person executing the will
[*] is shown to be familiar with the law upon the sub-
ject, the presumption that the formalities have been
observed is very strong ; and should the testimony of
a subscribing witness amount to a positive denial, the
relative weight of the conflicting proof would then
depend upon the apparent integrity and intelligence of
the witness and the circumstances surrounding the
particular case (Orser v. Orser, 24 N. Y. 63, 54).

Fowler's testimony should be carefully scrutinized;
— he is an interested party — the manner of giving and
its matter are such as to lead me to conclude that he
cannot, in this matter, be relied upon. The maxim,
"falsus in uno falsus in omnibus" applies with
unusual force. He is a party to these proceedings and,
though a man of more than ordinary intelligence, says
he does not know whether or not he is interested, or
whether he will be benefited by the instrument being
rejected : a statement unworthy of credence. There
are other portions equally improbable and unworthy
of belief. I therefore do not think it should be con-
sidered in determining the question. When a party in
a civil action deliberately swears false to one material
part of his testimony, and the jury are satisfied that
[•] he has so sworn falsely, intentionally false, they
are not only at liberty, but it is sometimes the duty
of the jury, to reject the whole. The maxim is "falstis
in uno falsus in omnibus" (Moett v. People, 85 JV.
T 373).

Though, undoubtedly, the general rule is, that
[4] an uncontradicted witness must be believed, it is

CIVIL PROCEDURE REPORTS. 446

Estate of Bogert

subject to the qualification, that when his testi-
mony is improbable, or he is interested, or where he is
impeached, the court or jury is not bound blindly to
adopt his testimony as true. Elwood v. Western
Union Telegraph Co., 45 N. Y. 553 ; Gildersleeve v.
Landon, 73 N. Y. 609 ; Moett «. People, supra ;
McNulty v. Hard, 86 N. Y. 547.

In Orser v. Orser (supra), there was an attestation
clause, one witness was dead and the other testified to
facts which negatived the contention that the proper
formalities had been observed, yet the court said the
jury were at liberty to find the proper execution of the
instrument. It is true that there was a full attestation
clause, and, therefore, the question remains, whether
or not there is a presumption from the circumstances.

The attestation clause is sufficient as a declara-
[•] tion that it is his will, and the sole question is,

whether or not I can conclude there was an
[•] acknowledgment of his signature. Even under

Mitchell v. Mitchell (77 If. Y. 596, affirming 16
JHu7i, 97), an acknowledgment was here proved. When
Fowler was requested to become a witness the signa-
ture of the deceased was, he said, in full view, that
circumstance was there conceded by the court to be
sufficient.

The case was distinguished from Baskin a.
H Baskin (48 Barb. 200) affirmed in court of appeals,

36 N. Y. 416, where that was held a sufficient ac-
knowledgment under the statute.

In Hands v. James (1 Comyn, [Eng. Ring's
[•] Bench] 531), the court said, " An attestation clause

is not required by the statute, and whether inserted
or not, it must be proved. If inserted, it does not con-
clude, but it may be proved contra; then if not con-
clusive when inserted, the omission does not conclude
it was not so, and therefore, must be proved by the
best proof which the nature of the thing will admit."

446 CIVIL PROCEDURE REPORTS,

Estate of Bogert.

Again, in Croft a. Pawlet (2 Strange [Eng.
[■] King's Bench] 1109), the attestation clause was
defective in that it did not state a signing in the
presence of the testator. The court held, it was evi-
dence to be left to a jury of a compliance with all the
conditions, and a verdict was given for the will.

In Brice t>. Smith ( WiUes [Eng. C. P.] 1), the
["] witnesses were both dead and the attestation
clause was defective in not stating, that the instru-
ment had been signed by the witnesses in the presence
of the testator. The conrt held the will was well
proved, relying upon Hands t>. James {supra).

Chancellor Walworth in Chaffee v. Baptist Mis-
["] sionary Convention (10 Paige, 90) says : " Indeed
it has been decided, that a formality of this kind
not noticed in the attestation clause may even be pre-
sumed from circumstances after tbe witnesses to the
will are dead," citing Croft v. Pawlet (supra)] Brice
v. Smith (supra) ; and Hands v. James (supra).

The circumstances here relied upon are, that the
testator was familiar with the requisite formalities
(Orser v. Orser, supra) ; knew its contents and charac-
ter (Gibert v. Knox, 52 N. T. 125) ; the will was in
handwriting of the testator. Since January 1, 1838,
when the present English statute of wills took effect,
the courts have had to consider the question now be-
fore me. I do not apprehend there is any difference
in the force of an attestation clause under their law
from that under ours. It is true their statute declares
no formal attestation necessary, a declaration which
coincides with the construction of our own legislation
upon the subject. Their statute, as ours, prescribes
certain formalities, and any presumption that is avail-
able in their courts can be indulged in by us. In
["] re Seagram (3 Notes of Cases [Eng. Ecc. & Mar. Cts.]
436), there was no attestation clause, the will was
admitted though the witnesses were dead.

CIVIL PROCEDURE REPORTS. 447

Eatate of Bogert.

The same In re Johnston (2 Curteis [Eca] 841). The

same in In re Luffman (5 Notes of Cases, [Eng.

["] Ecc. & Mar. Cts.] 183), where the attestation was

defective and the whereabouts of the witnesses

unknown.

In Leech t>. Bates (6 Id. 699) two codicils purported
to be signed by the testator and attested respec-
[M] tively by witnesses, the clause of attestation being
imperfect, one witness deposed to facts, which if
true, would show that the statute had not been complied
with, but circumstances proved that his recollection
could not be relied upon. Held, as positive affir-
mative evidence was necessary, the presumption
from the circumstances was that the proper formali-
ties had been observed. And in Wright v. Rogers
["] (L. It. 1 Prob. & Din. 678), the same was held where
one of the subscribing witnesses was dead, and the
other testified that the witnesses did not sign in the
presence of the testator

There is an additional question to be examined,
and that is, whether in view of the circumstances that
the witness, Fowler, was produced upon the part of
the proponent, the rule applies, that as he was pre-
sented as a credible witness the proponent cannot ask
for a finding in opposition to his uncontradicted testi-
mony.

Under section 2618 of the Code of Civil Pro-
[ir] cednre the proponent was bound to examine this
witness to the will. He was competent to testify on
direct examination (Trustees of Auburn Seminary v.
Calhoun, 25 N. T. 426), though not upon the part of
the contestants, as to transactions with the de-
ceased. Where the law obliges one to call a witness he
may be impeached (1 Qreerileaf on Evidence, 443), and
a party is at liberty to contradict the testimony of his
own witness, though indirectly he may be impeached
thereby (lb.).

448 CIVIL PROCEDURE REPORTS.

Godfrey «. Fell.

Here the testimony of this witness is not sufficient
to overthrow the presumption arising from the circum-
stances. I do not, therefore, think this forms any
objection to the conclusion to which I have arrived,
["] which is, that the instrument was' properly exe-
cuted and should be admitted to probate.

GODFREY, as Administrator, &c, Respondent «.
PELL, Appellant.

N. Y. Superior Court, General Term, May, 1883.

Ordtr of arrat— Jurisdiction — Undertaking. —Irregularity, fot» waited.

It seems that the failure to require from the plaintiff on granting an
order of arrest an undertaking in an amount at least equal to one-
tenth of the bail demanded by the order as required by § 599, Code
Civ. Pro., is an error, which makes the order void for want of
Jurisdiction.

But such error is waived and cured where after arrest, defendant, by
order to show cause, claims relief in the alternative, either that the
order be vacated and set aside on the merits and for irregularity
(which is not specified, as required by rule 87), or that the amount
of bail required in said order be reduced, upon which application
the bail is reduced to an amount bringing the plaintiff's undertaking
within the requirements of §599, Code Civ. Pro.

(Decided May 9, 1888.)

Appeal from an order denying defendant's motion to
vacate an order of arrest.

James M. FisJee> for appellant.

Felix T. Murphy y and B. D. McCarthy, for respon-
dent.

CIVIL PROCEDURE REPORTS. 44d

t 1 1 i i

Godfrey e. Pell.

O' Gorman, J. — So far as the merits of this case are
concerned, and on the facts as they appear in the affi-
davits and papers used on the motion, this court holds
that there was enough to justify the order of arrest.

A question, however, has been raised on the argu-
ment whether the learned judge who granted the order
of arrest did not err in failing to require from th6
plaintiff an undertaking in an amount at least equal to
one- tenth of the amount of bail required by the order,
in compliance with section 599 of the Code, and whether
such error rendered the order of arrest void for want of
jurisdiction.

The amount of bail required was $6,000, whereas
the amount of plaintiff's undertaking was $250.

The defendant's order to show cause on which the
order appealed from was granted, claimed relief in the
alternative, either that the order of arrest should be
vacated and set aside for irregularity and on its merits,
or that the amount qf bail required in said order be
reduced. The learned judge by his order did reduce
the amount of bail from $6,000 to $2,500.

We fully concur in the opinion of Judge Law-
rence, in the case of Southern Navigation Co. v.
Sherwin (1 N. Y. Civ. Pro. 46), cited by counsel for the
defendant here, " that the Uberty of the citizen is of
quite as much importance as the preservation or se-
curity of his property, and that the provisions of the
Code should be as strictly construed in cases of arrest
as in case of attachment.'9

The defendant in the case at bar, however, has in
his order to show cause, complained of the defect, not
as going to the jurisdiction of the court to grant the
order of arrest, but only as an irregularity ; and he
has failed to specify in his order to show cause the
the irregularity complained of as required by rule of
court 37.

The order appealed from is in compliance with one
Vol. IV.— 29

MO CIVIL PROCEDURE REPORTS.

Godfrey «. Pell.

of the prayers of his order to show cause, to wit, that
the amount of bail be reduced ; and from that part of
the order, no appeal has been taken.

The defendant's objection as to the insufficient
amount of the plaintiff's undertaking, has in our judg-
ment been waived by the defendant, and cured by the
.court.

The amount of defendant's bail having at the
instance of defendant been reduced, the amount of the
plaintiff's undertaking is sufficient.

The order appealed from is affirmed, with $10
costs.

Bxdgwiok, Ch. J., andLtfGRAHAH, J., concurecL

INDEX.

ABATEMENT— 8ee Action.

AQOOtTNT— Payments on, go in extinguishment of the debt. . . 311

Role as to pleading, and failure to serve copy, does not apply

to reference of claim against executor, Ac., 898

AOXNOWZiSDGMSNT— -See Administration, Letters TES-
TAMENTARY AND OF", ARBITRATION.

ACTION — When action did not abate by the death of the defend-
ant both parties have an absolute right to a continuance 78

The presenting of a claim to an executor and agreeing to

refer it, without naming a referee, does not bar the continuance
against the executor of an action on said claim began against
the decedent before his death 78

In case of a transfer of interest, an action may be continued

by the original party 76

—The granting of an order substituting the person to whom
the interest was transferred is in the discretion of the court. . . 78

See Discontinuance; Prisoner; Security for costs.

ADMINISTRATOR— See Executor and Administrator; Sor-

ADMINISTRATION— Letters Testamentary and of; proof
required on issuing ancillary 11

Such letters not void nor to be disregarded in collateral pro-
ceeding because proof on which they were granted was defect-
ive or irregular, if surrogate acquired jurisdiction 11

Power of attorney to receive such letters properly acknow-
ledged before vice consul of U. & 11

AGSNOT— When general agent cannot delegate authority or
appoint another general agent 808

ALIMONY— May be granted wife in action by husbtnd to annul
marriage 821

AWOWANOS—See Costs.

ANSWBR— See Pleadings.

&451]

INDEX 409

Pb#b

Where attachment vacated in part only, the sureties on the

undertaking to procure it do not become liable for damages,
and this although it was sustained in part because a portion of
the property attached had been sold under execution in the

same action 4

The practice as to the payment of sheriff's fees and charges

upon executing an attachment and the reinbursement of the

party paying them, stated 148

When motion to punish party for contempt for failing to pay

such fees as required by an order of the court will be denied. 148

Whether court has power to fix amount of sheriff's fees on

attachment or, determine who shall pay them, qvare 118

Sheriff has lien upon attached property for his fees, etc., and

is not obliged to deliver it to defendant upon vacation of attach-
ment until they are paid 148-154

Sheriff may bring action to procure a sale of such property

in satisfaction of his lien 154

ATTORNBY — See Reference; Security for Costs.
ATTORNEY'S UEN — Attorney where claim was settled after
action began and before auswer, without satisfying his lien for
costs, may, if the defendant fail to answer enter judgment. ... 44

Mode of enforcing 44

—When attorney's right to costs absolute and not to be defeated

by payment to judgment creditor 140

BAIL — When duly allowed, the allowance cannot be vacated. . . 824

See Abrest.

BAB — See Offer of Judom eht.

BILL OF PARTIOULARa-Object of 64

Not ordered wheu party applying for, knows what his adver-
sary means to rely on 64

Not ordered for the purpose of disclosing evidence 64

Instance of an action of ejectment in which one should not

be ordered 64

Will not be Ordered where it appears that the defendant who

seeks it has more knowledge of the particulars sought by him

than plaintiff 169

Instance of an action in which one should be ordered 240

When right to, lost by laches 817

See Account.

BOND-To officer when not forbidden by 2 R. 8. 448 1 46 418

When not to officer personally 418

Recitals in, prima facie evidence of the facts set forth 418

Orders as evidence in action on receivers 418

Where a bond was given in an action conditioned for " the

payment of any judgment which plaintiff may recover " and he

464 INDEX

Ft*

recovered two judgments, payment of one of them will not

release bondsmen 428

CHAMPERTY AND MAINTBNANOB— What constitutes

under8R.& 288 § 72 412

Does not exist in this State except as contained in the

statutes 418

Note oh 418

OTTY COURT OF NSW YORK— See Attachment; Security

FOB COBT8.

OODB OF CIVIL FROOBDTJR8 See ante, pp. xxxiii.

COLLATERAL — See Sbcubitt.

COMMISSIONS— See Surrogate

COMPLAINT— See Pleadings.

CONTEMPT— Sheriff's fees in proceedings to punish for, to be
paid by prosecuting party, when it is a civil, and by county,
when a criminal contempt 268

Section 110, et mq. of the Code of Civil Procedure not appli-
cable to proceedings to punish for civil contempt 288

See Attachment; Supplement art Proceedings.

CONTINUING* ACTION— See Action.

CONTRACT— See Arrest; Attachment; Security.

CORPORATION— Action to set aside alienation of property of,
made by its officers and trustees by whom brought 288

Complaint and parties defendant in such action 280

Place of residence of a corporation 188

Foreign, may sue and be sued here, not because it is here but

because it acts by agents and may thereby submit itself to the
jurisdiction of a foreign tribunal 188

Nature of the right and interest of a stockholder in the cor-
porate property 189

See Attachment; Municipal Corporation; Pleadings ;

Answer,

COSTS— Argument in Court of Appeals for which, are allowed,
may be either oral or written 281

When in a matter of account, the plaintiff is not entitled toy

where he recovers less than $50 287

When Court of Appeals reverses a judgment " with costs to

abide the event," the party eventually successful recovers costs
for all steps in the action 25

When judgment was modified, and as modified affirmed

"with costs to the appellant, " " with costs " means costs in the
Court of Appeals only 25

The costs of an action for the foreclosure of a mortgage are

discretionary 28

— - Of appeals from surrogate's decree. , 87

INDEX. 455

Page

Surrogate ha* no power to award or order payment of, ex-
cept as directed by the appellate court 57

When surrogate may exercise his discretion in reference to

the award of costs '. 57

When plaintiff recovering less than $50, not entitled to ... . 811

Additional allowances not limited to $2,000 in the aggregate,

but to $2,000 on each side When both parties are successful in
an action specified in Section 3,258 of the Code 805

Extra allowance should be computed on amount involved in

action 865

See Attachment ; Attorney's Lien ; Discontinuance ;

Security for Costs.

COUNTER CLAIM— See Pleadings, Answer.

COUNT? COURTS— See Supreme Court.

COURT — Cannot decide abstract question of law disconnected
from granting of relief 884

See City Court of New Tore ; Court of Common

Pleas for the City and County of N. Y. ; Costs; Dis-
trict Court in City of New York ; Justice of the
Peace ; Supreme Court ; Surrogate.

COURT OF APPEALS-See Costs.

COURT OF COMMON PUBAS-For the City and County of
New York, belongs to class denominated Superior City Courts 79

Is a county court for certain purposes, but not within the

meaning of section 8,268 of the Code 70

See Security for Costs.

DEATH— See Pleadings, Complaint.

DEFAULT — Defendant moving to open default in failing to
answer should serve with his motion papers a copy of his pro-
posed answer 44

DEMURRER— See Appeal ; Pleadings, Demurrer.

DENIALS — See Pleadings, Answer.

DISCONTINUANCE— Court has power to discontinue' action
without costs 41

An infant plaintiff, when may discontinue an action without

costs 41

See Arbitration; Jurisdiction.

DISCOVERT— Petition for, of books must state what informa-
tion is wanted and that the books contain it 128

DISTRIBUTIVE SHARE — See Surrogate.

DISTRICT COURT— In the City of New York. Judgment
debtor cannot file transcript of judgment with county clerk. .. 820

See Justice op the Peace.

DIVORCE — See Alimony.

466 INDEX

■ ^ **•

EVIDENCE— When the law compels a party to call a witness,

he may impeach him % 44)

See Bond ; Examination of Party Before Tbial ;

Will.
EXAMINATION OF PARTY BEFORE TOIAXr-When

party may be examined at his own instance before trial 838

Not allowed in U. S. Circuit Court 844

May be continued in action removed to U. 8. Circuit Court if

begun before removal 344

Such examination when and how used 844

When, may be had of plaintiff in action for libel 408

When, not allowed in action founded on tort 880

The fact that questions may be put to a witness on an, which

will tend to criminate him, does not justify his refusal to be

sworn 82

Order for, should be denied where it will necessarily compel

the witness to invoke the protection of the court 88

Should not be allowed when the only issue is the criminality

of the witness sought to be examined 38

Questions which tend to criminate party examined on, or ren-
der him infamous, should not be allowed, and he should not
be required to plead his privilege as an excuse for not answer-
ing 408

Party cannot be examined before trial in any county other

than that in which he resides, or has a place oi business 243

EXECUTION — Plaintiff in, cannot maintain action to prevent or
recover for taking away and conversion of property levied upon

thereunder „ ,... 170

May maintain action to remove obstruction to its orderly

enforcement and in aid of it 179

Rights and liabilities of sheriff 178

Effect of stay of proceedings after levy under, and mode of

obtaining relief therefrom 170

Form of, where summons served by publication 303

Share of practicing lawyer in N. Y. Law Institute is exempt

from levy and sale under 274

When properly issued out of U. S. circuit court on judgment

recovered in U. S. district court 1

May bo issued of course witbiu five years after right to issue

has fully accrued 53

See " Replevin."

EXECUTOR AND ADMINISTRATOR— Disputing claim must

file written answer 218

Claim of, against his intestate's estate can be paid only on

allowance by surrogate 370

INDEX. 457

Page

Neither he nor his assignee can maintain action on such claim 370

May require vouchers, affidavit of creditor and items of claim

presented to him before paying or rejecting it 898

See " Account ;" "Action;" "Administration, Letters

Testamentary and of;" " Parties to action;" Pleadings ;"

" Security for costs;" " Surrogate."
EXEMPTION— See "Execution."
PUBS— See "Attachment;" "Contempt;" "Costs;" "Surro*

GATE."

FORECLOSURE — Prior mortgagee properly made party de-
fendant, in action for the foreclosure of a- mortgage for the
purpose of determining the amount due on his mortgage 158

See " Appeal."

GUARDIAN, SPECIAL— When functions of, cease 57

- — If recognized as guardian ad litem in appellate court entitled
to compensation 57

HUSBAND AND WIFE— See "Alimony."

INFANT— See "Poor Person."

IN FORMA PAUFBRIS-See " Poor Person."

INJUNCTION— Order restraining defendant from interfering
with partnership property pending action for dissolution of
partnership cannot be made unless plaintiff gives security 167

Instance of an injunction pendente lite which should not be

vacated 53

See "Summary Proceedings;" " Supplementary Proceed-
ings."

INSPECTION— See "Discovery."

JUDGMENT— See "Attorney's Lien;" "Bond;" "Plead-
ings."

JURISDICTION — Court not divested of jurisdiction of motion
to discontinue action by entry of judgment 41

See "Attachment;" "Arrest;" "Service by Publica-
tion."

JUSTICE OF THE FEAOB— To oust a, of jurisdiction in a
matter of account on the ground that the accounts exceed $400,
they must exceed that sum exclusive of payments 228

See "District Court in the City op New York."

LAW— See •' Statutes."

LEGACY — See " Surrogate."

LEVY — See "Execution;" "Replevin."

LIEN— See * 4 Attachment ;" " Attorney's Lien. n

MAINTENANCE —See " Champerty and Maintenance.''

MARRIAGE-See " Alimony."

MORTGAGE— See " Foreclosure."

468 INDEX.

MOTION*— Order for taking deposition to be used on motion
can be granted only on application of party to action. 214

MUNICIPAL CORPORATION— When bound by unauthorized
acts of officer or private individual MO

See "Pasties to Acttoh."

N. T. CITY COURT— See "Attachment;" "Cnr Court or
New Yoke."

N. Y. LAW msnrUTB— See "BxBCunoii;" "Supplement*
art Proceedings."

OFFER OF JUDGMENT— When accepted, is a bar to a new
action on the claim or a part of the claim aet out in the com-
plaint , S90

ORDER— To whom application to vacate, resettle or modify,
should be made MS

See * * Appearance ;" " Appeal ;n " Bond."

ORDER OF ARREST— See u Arrest."

PARTIES TO ACTION— Persons claiming money necessary
parties defendant in action against officer of municipal corpora-
tion to restrain its payment 488

Laws of 1881, chap. 581 does not affect this rule 488

Propriety of making party defendant cannot be determined

on motion to strike out allegations of complaint referring to
him as irrelevant and redundant 828

A person cannot sue as the administrator of two decedents

in one action to recover damages for causing their death 386

Action to set aside alienation of property of corporation

made by its officers and trustees, by whom brought.

Parties defendant to such action 289

PARTITION — When defendant must litigate title in action for. . 888

Action for, cannot be maintained between remaindermen

when actual partition cannot be had without great prejudice to
owners 885

Purchaser at, sale when not compelled to take title 885

PARTNERSHIP— See *' Injunction;" *• Receiver."

PLEADINGS — What matter in, is irrelevant and redundant. . . . 898

Matter can be expunged from a pleading for irrelevancy only

when it is irrelevant to the cause of action or defense attempted
to be stated in the pleading against the moving party; will not
be stricken out because tbey are irrelevant to an alleged cause
of action against some other party 888

At least five days notice of a motion for judgment on frivolous

pleading must be given 18

Court cannot shorten such time 18

— — Affidavits cannot be used on such motion 18

INDEX. 489

Pag*

In action in U. 8. Circuit Court in this state to reeorer duties

illegally exacted* sufficiency of» to be determined by Code of

Civil Procedure. . . - 11B

See "Rbcrivkb,"

Complaint. Plaintiff may demand any relief but is not pre*

eluded thereby from refusing to take it or asking additional

relief 126

- Court when controlled by relief demanded, in awarding judg-
ment i 126

Ultimate facts only to be stated in complaint 112

Instance of statement of such facts 112

Two causes of action for causing death cannot be united in

same complaint 286

Propriety of making party defendant cannot be determined

on motion to strike out allegations in complaint referring to him 323
Complaint in action to enforce liability fraudulently con-
tracted must set forth facts showing fraud 840

Form of complaint in action to set aside alienation of property

of corporation made by its officers and trustees 230

Complaint in action to recover personal property obtained

by fraudulent representations; allegations of ownership and

fraudulent intent 487

Akswkb. Instance of an insufficient denial 4

Denial of each and every allegation in "the complaint con-
tained not hereinbefore specifically admitted, qualified or

denied " insufficient 245

Denial of "each and every allegation in the complaint not

hereinbefore specifically admitted or denied " does not raise an

issue 428

Denial, which is neither specific or general, may be dis-
regarded 245

To raise an issue as to the incorporation of a defendant, there

must be an affirmative allegation that it is not a corporation. .. 260

Denial of nationality insufficient 260

Supplemental answer when allowed « 849

Counter-claim founded on tort cannot be set up in action on

contract 867

Demubreb. Instance of demurrer which was not frivolous 1 8

POOR PERSON— Infant may sue as 105

POWER OF ATTORNEY— See ** Abmhubtbation, Lbtteks

Testamentary aitd or."
PREFERENCES — Under general rules of practice are governed

by section 793 of the code. 201

Right to, waived by noticing cause for trial 201

460 , INDEX.

PRI80NER — Sentence to state prison for term less than life does
not deprive prisoner of right to defend action against him .... 146

PROCEEDING SUPPLEMENTARY TO EXECUTION— Bee
"Supplementary Proceedings."

PUBLICATION — See "Execution;" "Service bt Publica-
tion."

RECEIVER — Order appointing, not made on concurrent de-
mands in answer and reply 196

Instance of action to dissolve partnership in which, was

properly appointed 167

See " Supplementary Proceedings."

REFERENCE— When ordered in action by attorney for pro-
fessional service , 800, 803

REPLEVIN — When property replevied is not in custody of law
so as to prevent levy thereon under execution 878

Undertaking given in replevying personal property docs not

secure or protect judgment creditor of defendant 378

Complaint in action to recover personal property obtained

by false and fraudulent representations - 487

RESIDENCE— Of Corporation 189

See " Security for Costs."

SALE— See " Partition."

SECURITY — The giving of collateral security does not neces-
sarily prevent enforcement of original undertaking 150

SECURITY FOR COSTS— A plaintiff cannot be required to
give security for costs in the N. Y. Court of Common Pleas be-
cause he is a non-resident of the county 79

In a case within section 8208 of the Code defendant's right

to, is absolute unless lost by laches 80

Under section 3271 of the Code the court may, in its discre-
tion, require plaintiff to give security for costs 80

When not required in action by administrator. 80

Order substituting transferee in place of plaintiff not granted

when it will defeat object of order theretofore made requiring
plaintiff to give security for costs. ... 76

What must be shown on motion in City Court of New York

for, on ground of non-residence 104

When order requiring infant to give, will be vacated 105

When sum deposited as, to be paid to successful party 102

Sum deposited as, to be returned to plaintiff on rendition of

judgment in his favor 103

NOTE ON 8S

When right to, absolute ; when discretionary ; laches 82; who

must give nud when 85; The application and order 97: The
security 98 ; Enforcing the undertaking ;' excepting to and

index; 48*

justification of sureties d9; Additional security 100; Effect of
failure to give; Liability of attorney 101

SENTENCE TO STATE PRISON— See "Pruonbb."

SERVICE BY PUBLICATION— Proof that defendant cannot
be served in State 276

Letters or papers referred to in affidavit to obtain order for,

should be annexed 276

See "Execution."

SHHKIPF — Court has no power, to renew his liability as bail
after be has been regularly discharged from liability 224

See Attachment; Contempt; Execution; Replevin.

STATUTE — Rule as to construction of. 120

2 R. S. 448 $ 49 construed 418

For sections of codes cited and construed, and statutes and

laws, etc., cited, see ante, pp. xxix. xxxiii.

SUBROGATION— See Action; Security for Costs.

SUMMARY PROCEEDINGS — When execution of warrant in,
will not be enjoined except incase where proceedings on judg-
ment in action of ejectment would be. 159

The cases in which such injunction will be granted, stated. . 150

SUMMONS— When may be amended by inserting real names of
defendants in place of name under which they did business. .. 144

SUPPLEMENTARY PROCEEDINGS— Second examination
of judgment debtor in, not allowed when similar proceeding in
another judgment between the same parties is pending 278

Judgment debtor who expends his earnings for his personal

services rendered within sixty days next before the institution
of supplementary proceedings, for the support of a family
dependent upon him is not guilty of contempt, although the
order for his examination contained the usual injunction 255

—Motion for receiver in, when denied 274

——Money owing to debtor but not due and payable at the time
an order in was served, cannot be reached by 10

Share of practicing lawyer in N. Y. Law Institute cannot be

reached in 274

bujrwHME COURT— Will not review discretionary order of a
County Court 802

SURROGATE — Commissions to testamentary trustees the same
as those allowed to executors 280

Amount of, when fund originally less than $100,000 was in-
creased by income to more than that sum 280

— — -Has power to determine controversy in regard to title, &c,
to legacy or distributive share 120

Should decree payment of claim against administrator when

no written answer filed ,.. 218

488 INDEX.

***

Extent of power of, to direct the application of money in the

hands of a temporary administrator 17?

See "Administration, Lbttkbb Testamentary and of;19

"Appeal;" "Costs;" "Executor akd Administrator;"
"Guardian, Special;" "Will."
TESTAMEBNTARY TRUSTEE—See "Surrogate."
UMDBRTAKINa— See " Appeal ;" "Arrest;" "Attach-
ment;" "Bond;" "Replevin;" "Security fob Costs."
U. a BISTRIOT COURT— See " Execution."
U. 8. CIRCUIT COURT — See " Examination op Party before

Trial;" "Execution;" "Pleadings."
WARRANT OF ATTACHMENT— See " Attachment."
WILL— Subscribing witness to, cannot take any greater share in

estate thereunder than he would have taken by descent 129

Not invalidated by absence of or defect in attestation clause 441

What is sufficient acknowledgment and declaration of 441

Proponent not bound by testimony of subscribing witness . . 441

Testimony of witness to, not controlling 441

WITNES8— See "Evidence;" "Examination of Party]
Trial;" "Wat"

g*. «r. a. a,.

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